BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         JESSE W. JAMES,
 
         
 
              Claimant,
 
         
 
                                                 File No. 747521
 
         vs.
 
                                              A R B I T R A T I O N
 
         SHELLER-GLOBE CORPORATION,
 
                                                 D E C I S I O N
 
              Employer,
 
              Self-Insured,
 
              Defendant.
 
         
 
         
 
         
 
                                   INTRODUCTION
 
         
 
              This is a proceeding brought by Jesse W. James, the 
 
         claimant, spouse of Rosa Lee James, decedent, against 
 
         Sheller-Globe Corporation, self-insured employer, for death 
 
         benefits and burial expenses.  The case was heard by former 
 
         Deputy Industrial Commissioner, Garry W. Woodward.  The case was 
 
         fully submitted at the completion of the hearing.
 
         
 
              On July 13, 1988, this case was transferred to the 
 
         undersigned by David E. Linquist, Industrial Commissioner.
 
         
 
              The record consists of the testimony of Jesse W. James, 
 
         claimant, Donald Johnsen, retired employee of defendant, Karen 
 
         Boatman, sister of decedent, Nelma Goodare, employee of 
 
         defendant, Pam Perry, employee of defendant, and Codie Barentine, 
 
         mother of decedent.  The record also consists of joint exhibits 1 
 
         through 38 and defendant's exhibits A through C.
 
         
 
              The parties stipulated to the existence of an 
 
         employer-employee relationship between the decedent and the 
 
         employer at the time of the alleged injury.  The parties also 
 
         stipulated that if liability was proven, the commencement date 
 
         for the award or death benefits would commence on September 8, 
 
         1985 and that the weekly benefit amount would be $187.00 per 
 
         week.
 
         
 
                                    ISSUES
 
         
 
              The issues presented by the parties.at the time of the 
 
         prehearing are:
 
         
 
              1.  Whether Rosa Lee James sustained injuries arising out of 
 
         and in the course of her employment;
 
         
 
              2.  Whether injuries allegedly arising out of and in the 
 
         course of Rosa Lee James' employment was a proximate cause of her 
 
         death; and,
 
         
 
              3.  Whether defendant is liable for death benefits.
 

 
         
 
         
 
         
 
         JAMES V. SHELLER-GLOBE CORPORATION
 
         PAGE   2
 
         
 
         
 
         
 
                                 FACTS PRESENTED
 
         
 
              Decedent was an employee of defendant in 1970 and then from 
 
         late 1972 through the early portion of 1974.  She was also 
 
         employed by defendant from late 1975 until September 7, 1985, the 
 
         date of her death.  During the course of her employment she 
 
         worked in a variety of departments and performed a number of 
 
         tasks.
 
         
 
              According to corporate records, decedent worked in 
 
         Department 78 from January 12, 1981 through February 14, 1982 and 
 
         from March 15, 1982 through January 23, 1984 when she permanently 
 
         transferred.  Department 78 was known as the crash pad 
 
         department.  Decedent served as a finish operator in that 
 
         department where she used a spray wax.
 
         
 
              Medical records indicate that as early as August 4, 1981 
 
         decedent sought medical attention for "acute sinusitis and 
 
         tracheo bronchitis.O  Subsequent to August 4, 1981 decedent 
 
         sought additional medical treatment for like symptoms.
 
         
 
              Again in 1963 and in 1984 decedent sought medical treatment 
 
         for similar symptoms to the above.  John E. Beckert, D.O., the 
 
         family physician, diagnosed the patient as having "an allergic 
 
         phenomena from the chemicals at work."  During 1983, decedent 
 
         missed work for the same problems during the periods: April 15, 
 
         1983 through May 9, 1983, July 16, 1983 to September 5,1983, and 
 
         October 31, 1983 through December 18, 1983.
 
         
 
              In June of 1983, Dr. Beckert referred decedent to Leonard 
 
         Grayson, M.D., an allergy and clinical immunology specialist.  
 
         Ten pulmonary function tests were performed on decedent by Dr. 
 
         Grayson using four specimens which the patient had brought from 
 
         the work site.  These specimens contained samples of the wax used 
 
         at work, two pieces of gray plastic, a soap solution and a 
 
         solvent used at the work place.
 
         
 
              Dr. Grayson, in his letter of June 21, 1983 writes:
 
         
 
              In an attempt to summarize all of this material, I have 
 
              to say that of all the things that the patient brought 
 
              in from work, the only item I can incriminate as 
 
              causing some problem would be the jar that contained 
 
              the wax.  If there is wax vapor in the air, then I 
 
              think it can cause trouble for this patient.
 
         
 
              However, the initial baseline pulmonary function study 
 
              did show a mild obstructive pattern compatible with 
 
              bronchitis, and this may be what the patient has as an 
 
              underlying condition, possibly aggravated by exposure 
 
              to the wax.
 
         
 
              Subsequent to Dr. Grayson's medical evaluation, decedent 
 
         returned to Department 78 until January 23, 1984 when she was 
 
         permanently transferred from that department to Department 15.  
 
         Decedent was not exposed to the same wax in Department 15.  She 
 
         worked in that department until September 6, 1985, the day prior 
 
         to her death.
 

 
         
 
         
 
         
 
         JAMES V. SHELLER-GLOBE CORPORATION
 
         PAGE   3
 
         
 
         
 
         
 
              Decedent filed her original workers' compensation complaint 
 
         on November 16, 1983.  After filing the workers' compensation 
 
         complaints, decedent sought the assistance of the Occupational 
 
         Medicine Clinic at the University of Iowa Hospitals.  James 
 
         Merchant, M.D., in his letter of July 19, 1985 writes:
 
         
 
              Your patient was seen in the Occupational Medicine 
 
              Clinic on July 15, 1985, with a diagnosis of 
 
              occupational asthma.
 
         
 
              Mrs. James is a 43 year old white female seen for 
 
              follow-up of her occupational asthma....
 
         
 
              At the deposition of Dr. Merchant, defendant's attorney 
 
         posed the following question:
 
         
 
              Q.  From your examination, Doctor, did it appear to you 
 
              that Rosa Lee James on June 3, 1985, was in any. 
 
              immediate danger of dying from any pulmonary condition 
 
              that may have been diagnosed?
 
         
 
              Dr. Merchant testified as follows:
 
         
 
              A.  Well, I wouldn't say in any immediate danger of 
 
              dying, but obviously whenever you have asthma you are 
 
              at risk to an acute attack of asthma which can be 
 
              fatal, and she clearly did have asthma.  It was our 
 
              opinion that she had occupational asthma and it was 
 
              induced by her work exposure, by her history, and she 
 
              had other medical evaluations which tended to support 
 
              that that were done prior to coming to our clinic.  So 
 
              we felt that she did have occupational asthma.  We 
 
              documented that she had.hyperreactive airways, which is 
 
              part and parcel of the diagnosis.  She did have very 
 
              good and rather marked reversal with bronchodilators 
 
              which made us feel that she could be treated 
 
              effectively.  But nevertheless anybody with asthma is 
 
              -- continues to be at risk depending upon an acute 
 
              exposure.
 
         
 
              Q.  And acute exposure would be something that the 
 
              patient would get into and have immediate reaction of 
 
              some kind bringing on an asthmatic attack?
 
         
 
              A.  Yes.  Asthmatics who have hyperreactive airways 
 
              will tend to have their asthma triggered by a number of 
 
              different irritants, and this may be chemicals, it can 
 
              be hair spray, it can be solvents, can be paint, can be 
 
              fumes, can be dust, molds, can be exercises, can be 
 
              cold air.  These are all well-described and typical 
 
              types of exposures that can trigger an acute asthmatic 
 
              attack, even though the original asthma may well have 
 
              been caused in the workplace, which we believe was the 
 
              case in this particular patient.
 
         (Exhibit 1, pages 8 & 9)
 
         
 
         Later in his deposition, Dr. Merchant testified:
 
         
 

 
         
 
         
 
         
 
         JAMES V. SHELLER-GLOBE CORPORATION
 
         PAGE   4
 
         
 
         
 
              So I think in terms of the plant exposure, I think the 
 
              role there would be in preexisting condition of 
 
              hyperreactive airways, which would predispose her to a 
 
              situation where then she could -- she could have her 
 
              asthma triggered by any nonspecific irritant.  So I 
 
              think that's the way I see it.  But obviously we don't 
 
              have a lot of the facts in terms of what happened in 
 
              that period of time between the time she left the plant 
 
              and the time of her death. (Ex. 1, p. 22)
 
         
 
              Decedent was to continue treatment through the Occupational 
 
         Medicine Clinic after her July 15, 1985 appointment.  However, 
 
         decedent died prior to her next scheduled consultation.
 
         
 
              According to the investigative report of the Missouri State 
 
         Highway Patrol, decedent died on September 7, 1985.  A post 
 
         mortum examination was conducted by Jay D. Dix, M.D., on 
 
         September 9, 1985.  He determined the cause of death to be asthma 
 
         in his Pathologic Diagnoses of September 25, 1985.
 
         
 
              It is unclear how decedent died.  Claimant testified at the 
 
         hearing that prior to the time of death, decedent had been doing 
 
         some laundry and had been cleaning the bathroom with Comet 
 
         cleanser.
 
         
 
               After the death of decedent, claimant filed his amended 
 
         complaint.  The employer, in response, to this complaint, 
 
         forwarded various documents and medical reports, pertaining to 
 
         decedent to Paul From, M.D., Mark D. Ravreby, M.D., Thomas L. 
 
         Bennett, M.D., and R. C. Wooters, M.D.
 
         
 
              By way of deposition, Dr. From concurred with Dr. Dix that 
 
         decedent had died of asthma.  Upon cross-examination by the 
 
         claimant's attorney, the subsequent question was posed by Mr. 
 
         Vonderhaar:
 
         
 
              Q.  Doctor, as you said a couple of times, we are 
 
              really never going to know what caused the attack on 
 
              that particular day at that particular time, are we?
 
         
 
              A.  No, we are not.
 
         (Ex. 2, p. 27)
 
         
 
              Dr. Ravreby did not examine decedent.  He reviewed the 
 
         medical records supplied to him by the defendant.  Dr. Ravreby 
 
         stated in his deposition, "It's my opinion that the death of Rosa 
 
         James was not related to her occupation." (Ex. 3, p. 10)
 
         
 
              Thomas L. Bennett, M.D., Iowa State Medical Examiner, 
 
         concurred with the opinion of Dr. Dix that:
 
         
 
              Mrs. James died as the result of an acute asthmatic 
 
              attack .... However, the approximate 19 to 20 hour 
 
              period of time between the last time at work and the 
 
              time when death probably occurred are strong evidence 
 
              against the allergin being one she contacted at work.  
 
              Thus, in my.opinion, Rose Lee James did not die as the 
 
              direct result of exposure to irritants at her 
 
              employment with Sheller-Globe.
 

 
         
 
         
 
         
 
         JAMES V. SHELLER-GLOBE CORPORATION
 
         PAGE   5
 
         
 
         
 
         (Ex. 31)
 
         
 
              Finally, R. C. Wooters, M.D., Polk County Medical Examiner, 
 
         concurred that decedent died of asthma.  He writes in his letter 
 
         of July 16, 1987:
 
         
 
              I see no way that there would be a connection between 
 
              her death due to Asthma and exposure to a substance, 
 
              approximately 19 hours earlier without her having been 
 
              known to be in serious to critical condition throughout 
 
              the evening hours.
 
         
 
                               APPLICABLE LAW
 
         
 
              Claimant has the burden of proving by a preponderance of the 
 
         evidence that the injury or asthma which decedent suffered arose 
 
         out of and in the course of decedent's employment.  McDowell v. 
 
         Town of Clarksville, 241 N.W.2d 904 (Iowa 1976), Musselman v. 
 
         Central Telephone Co., 261 Iowa 352, 154 N.W.2d 128 (1967).
 
         
 
              The claimant also has the burden of proving by a 
 
         preponderance of the evidence that any injury or death is 
 
         causally related to the employment of decedent.  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).  According to the 
 
         case of Blacksmith v. All-American, Inc., 290 N.W.2d 348 (Iowa 
 
         1980), "A cause is proximate if it is a substantial factor in 
 
         bringing about the result."  It does not need to be the only 
 
         cause.  A possibility is insufficient; a probability is 
 
         necessary.  Burt v. John Deere Waterloo Tractor Works, 247 Iowa 
 
         691, 73 N.W.2d 732 (1955).  The question of causal connection is 
 
         essentially within the domain of expert testimony.  Bradshaw v. 
 
         Iowa Methodist Hospital, 251 Iowa 375, 101 N.W.2d 167 (1960).
 
         
 
              However, expert medical evidence must be considered with all 
 
         other evidence introduced bearing on the causal connection.  
 
         Burt, 247 Iowa 691, 73 N.W.2d 732.  The opinion of experts need 
 
         not be couched in definite, positive or unequivocal language.  
 
         Sondag v. Ferris Hardware, 220 N.W.2d 903 (Iowa 1974).  However, 
 
         the expert opinion may be accepted or rejected, in whole or in 
 
         part, by the trier of fact. Id. at 907.  Further, the weight to 
 
         be given to such an opinion is for the finder of fact, and that 
 
         may be affected by the completeness of the premise given the 
 
         expert and other surrounding circumstances.  Bodish, 257 Iowa 
 
         516, 133 N.W.2d 867.  See also Musselman, 261 Iowa 352, 154 
 
         N.W.2d 128 (1967).
 
         
 
              While a claimant is not entitled to compensation for the 
 
         results of a preexisting injury or disease, the mere existence at 
 
         the time.of a subsequent injury is not a defense.  Rose v..John 
 
         Deere Ottumwa Works, 247 Iowa 900, 908, 76 N.W.2d 756, 760-761 
 
         (1956).  If the claimant had a preexisting condition or 
 
         disability that is aggravated, accelerated, worsened or lighted 
 
         up so that it results in disability, claimant is entitled to 
 
         recover.  Nicks v. Davenport Produce Co., 254 Iowa 130, 115 
 
         N.W.2d 812, 815 (1962).
 
         
 
              When an aggravation occurs in the performance of an 
 
         employer's work and a causal connection is established, claimant 
 

 
         
 
         
 
         
 
         JAMES V. SHELLER-GLOBE CORPORATION
 
         PAGE   6
 
         
 
         
 
         may recover to the extent of the impairment.  Ziegler v. United 
 
         States Gypsum Co., 252 Iowa 613, 620, 106 N.W.2d 591, 595 
 
         (1960).
 
         
 
              The Iowa Supreme Court cites, apparently with approval, the 
 
         C.J.S. statement that the aggravation should be material if it is 
 
         to be compensable.  Yeager v. Firestone Tire & Rubber Co., 253 
 
         Iowa 369, 112 N.W.2d 299 (1961); 100 C.J.S. Workmen's 
 
         Compensation SS555(17)(a).
 
         
 
              Our supreme court has stated many times that a claimant may 
 
         recover for a work connected aggravation of a preexisting 
 
         condition.  Almquist v. Shenandoah Nurseries, 218 Iowa 724, 254 
 
         N.W. 35 (1934).  See also Auxier v. Woodward State Hosp. Sch., 
 
         266 N.W.2d 139 (Iowa 1978); Gosek v. Garmer and Stiles Co., 158 
 
         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, 253 Iowa 369, 112 N.W.2d 299 (1961); 
 
         Ziegler, 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 
 
         (1960), and cases cited.
 
         
 
                                    
 
         
 

 
         
 
         
 
         
 
         JAMES V. SHELLER-GLOBE CORPORATION
 
         PAGE   7
 
         
 
                                 ANALYSIS
 
 
 
              Claimant has not met his burden in proving that the 
 
         decedent, his spouse, suffered a work related injury that caused 
 
         her death.  The evidence is clear that the decedent suffered from 
 
         asthma and that the asthma did not occur until after the decedent 
 
         had been employed at the Sheller-Globe Corporation.  
 
         Specifically, symptoms did not appear until the decedent had been 
 
         working in Department 78 of the plant.  The condition developed 
 
         at least by June 3, 1985.
 
         
 
              Dr. Grayson, after performing pulmonary function tests, 
 
         determined the wax used by decedent in Department 78 caused 
 
         problems for her.  Dr. Grayson writes in his medical report of 
 
         June 21, 1983, "These symptoms seem to disappear on weekends, and 
 
         recur after the patient goes back to work."  Decedent was then 
 
         treated on July 2, 1983 by her regular physician Dr. Beckert for 
 
         "...an allergic phenomena from the chemicals at work, prog: 
 
         guarded Dx:  chemical bronchitis."  Decedent continued treatment 
 
         with Dr. Beckert throughout the remainder of calendar years 1983, 
 
         1984 and through march 21, 1985.
 
         
 
              On May 2, 1985, Waiter Hierholzer, M.D., of the University 
 
         of Iowa Hospitals and Clinics, diagnosed decedent as follows:
 
         
 
              Rosa James was seen in the Occupational Medicine Clinic 
 
              on April 22, 1985, with the diagnosis of hyperactive 
 
              airways disease, possible occupational asthma.
 
         
 
                 ...
 
         
 
              The patient's history of dyspnea with exposure to 
 
              workplace wax in conjunction with her Monday morning 
 
              chest tightness and response to wax vapor suggest 
 
              occupational asthma.
 
         
 
              In the clinical resume decedent was diagnosed as having 
 
         occupational asthma by the University of Iowa Hospitals as of 
 
         June 3, 1985.  Decedent was to return to the University Clinic 
 
         six weeks after her diagnosis.  Decedent died prior to her next 
 
         appointment.
 
         
 
              The opinions of Dr. Bennett and Dr. Wooters are accorded 
 
         great weight.  Neither physician found a causal connection 
 
         between the decedentOs death and any work related disease.  Both 
 
         doctors are experts in the field of pathology and forensic 
 
         medicine, nevertheless, they were unable to attribute decedent's 
 
         death to the exposure of chemicals in the work place.
 
         
 
              It is undisputed the cause of death was asthma.  The 
 
         decedent was at home at the time of her death.  She had not been 
 
         working with the wax used in Department 78 at Sheller-Globe since 
 
         January 23, 1984.  More than 19 hours had transpired since the 
 
         decedent had left the work environment.  When the claimant set 
 
         out for the plant, on the morning of September 7, decedent did 
 
         not appear ill.  There is evidence to indicate the decedent had 
 
         worked with household cleansers and laundry detergent prior to 
 
         her death.  Her bronchodilator was close to her when she was 
 
         discovered by her husband.  The record indicates exposure to 
 
         certain household cleansers can precipitate an asthma attack.  
 
         There is nothing to indicate that on the final day of her 
 

 
         
 
         
 
         
 
         JAMES V. SHELLER-GLOBE CORPORATION
 
         PAGE   8
 
         
 
         
 
         employment the decedent was suffering from an asthma attack, 
 
         either at work, or immediately after working hours.  Experts 
 
         refute claimant's testimony that the asthma attack at the time of 
 
         death was work related.  The claimant has not established the 
 
         decedentOs death was causally connected to her employment or 
 
         proximately caused by her employment.  The time of death was 
 
         removed from any work exposure.
 
         
 
                                 FINDINGS OF FACT
 
         
 
              WHEREFORE, based on the evidence presented and the 
 
         principles of law previously cited, the following findings of 
 
         fact and conclusions of law are made:
 
         
 
              FINDING 1.  The decedent developed asthma while employee 
 
         with defendant.
 
         
 
              FINDING 2.  Rosa Lee James died on September 7, 1985 of 
 
         asthma while at home.
 
         
 
              FINDING 3.  Rosa Lee James was afflicted with a 
 
         predisposition towards asthma.
 
         
 
              FINDING 4.  Rosa Lee James' asthma was the primary factor 
 
         responsible for her death.
 
         
 
              FINDING 5.  Jesse James, the claimant, was married to Rosa 
 
         Lee James at the time of her death.
 
         
 
              FINDING 6.  Decedent's asthma attack on September 7, 1985 
 
         was not induced or caused by any chemical or activity of the 
 
         defendant.
 
         
 
                                CONCLUSIONS OF LAW
 
         
 
              Claimant has failed to prove by a preponderance of the 
 
         evidence that the death of decedent was proximately caused by an 
 
         injury which arose out of and in the course of employment or that 
 
         her death was proximately caused by her employment.
 
         
 
                                      ORDER
 
         
 
              IT IS THEREFORE ORDERED that claimant take nothing from this 
 
         proceeding.
 
         
 
              IT IS FURTHER ORDERED that the costs of this action are 
 
         assessed against the defendant.
 
         
 
         
 
              Signed and filed this 20th day of September, 1988.
 
         
 
         
 
         
 
         
 
         
 
                                          MICHELLE A. McGOVERN
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
         
 
         
 

 
         
 
         
 
         
 
         JAMES V. SHELLER-GLOBE CORPORATION
 
         PAGE   9
 
         
 
         
 
         Copies To:
 
         
 
         Mr. Arthur Hedberg
 
         Mr. Phillip C. Vonderhaar
 
         Attorneys at Law
 
         840 5th Ave.
 
         Des Moines, Iowa 50308
 
         
 
         Mr. Harry W. Dahl
 
         Attorney at Law
 
         Suite 16
 
         974 - 73rd St.
 
         Des Moines, Iowa 50312
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                              1108.3; 1805
 
                                              Filed September 20, 1988
 
                                              MICHELLE A. McGOVERN
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         JESSE W. JAMES,
 
         
 
              Claimant,
 
                                                 File No. 747521
 
         vs.
 
                                              A R B I T R A T I O N
 
         SHELLER-GLOBE CORPORATION,
 
                                                 D E C I S I O N
 
              Employer,
 
              Self-Insured,
 
              Defendant.
 
         
 
         
 
         
 
         1108.3; 1805
 
         
 
              ClaimantOs decedent died approximately 19 hours after her 
 
         employment shift.  The cause of death was asthma.  The evidence 
 
         failed to show that decedent's death was caused by exposure to 
 
         chemicals in the work environment.  It was held claimant had 
 
         failed to establish that decedent's death arose out of and in the 
 
         course of employment.
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                       BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         SHERYL MOORHEAD-FRAME,
 
         
 
              Claimant,
 
                                                     File No. 747913
 
         VS.
 
         
 
         HILLHAVEN,                                    A P P E A L
 
         
 
              Employer,                              D E C I S I 0 N
 
         
 
         and
 
         
 
         RANGER INSURANCE COMPANY,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
                              STATEMENT OF THE CASE
 
         
 
              Claimant appeals from an arbitration decision denying 
 
         benefits relating to a back injury of October 10, 1983.
 
         
 
              The record on appeal consists of the transcript of the 
 
         arbitration hearing; claimant's exhibits 1 through 9; and 
 
         defendants' exhibits 1 through 52.  Both parties filed briefs on 
 
         appeal.
 
         
 
                                      ISSUES
 
         
 
              Claimant states the issues on appeal are whether the deputy 
 
         erred in determining that the claimant had not shown she received 
 
         an injury arising out of and in the course of her employment and 
 
         whether the deputy placed undue reliance upon the fact that 
 
         claimant had prior lower back pain.
 
         
 
                              REVIEW OF THE EVIDENCE
 
         
 
              The arbitration decision adequately and accurately reflects 
 
         the pertinent evidence and it will not be totally reiterated 
 
         herein.
 
         
 
              Claimant originally injured her right foot on October 10, 
 
         1983 in a work-related accident.  Claimant testified that while 
 
         she was at home she slipped on her crutches and had back pain.  
 
         She stated that this incident took place sometime in the first or 
 
         mid part of November 1983.  She stated that she called Dr. 
 
         Kimelman and complained of back pain.  She also testified that 
 
         she told the doctor of back pain on examination the latter part 
 
         of November.  She further testified that she told Margaret 
 
         McLaughlin at a medical terminology class that she fell with her 
 
         crutches.  Claimant's earlier answers to interrogatories 
 
         indicated she had informed McLaughlin by telephone.  Claimant 
 
         initially denied and later testified she could not remember 
 
         whether she missed work on June 7, 1983 because of a bike 
 
         accident in which she had hurt her back.
 
         
 

 
         
 
         
 
         
 
         MOORHEAD-FRAME V. HILLHAVEN
 
         Page   2
 
         
 
              Joshua J. Kimelman, D.O., testified that claimant did not 
 
         mention the back pain from the slip with crutches in the 
 
         telephone call she made to him on November 18, 1983 or the 
 
         office visits on November 15 and December 6, 1983.  Margaret 
 
         McLaughlin, who was director of nursing for defendant Hillhaven 
 
         and was claimant's supervisor in October 1983, testified that 
 
         she did not recall claimant ever stating she had slipped with 
 
         her crutches.  Jeri Zurg, a staff nurse at Hillhaven, testified 
 
         that she accepted work absence call-ins and that claimant had 
 
         called in and said she would not be at work in June 1983 
 
         because she had a bike accident and hurt her back.
 
         
 
              A Mercy Hospital admitting form dated April 16, 1981 
 
         reports that claimant complained of an injury to the lower back 
 
         and right thigh.  A September 6, 1983 note of Roy W. Overton, 
 
         M.D., indicates that claimant complained of low backache and 
 
         aching in the right hip area.
 
         
 
              Kent M. Patrick, M.D., indicated in a letter dated January 
 
         25, 1985 that claimant did not relate history of back problems 
 
         prior to the pain she developed while on her crutches following 
 
         the foot injury.  He noted that any activity could bring about 
 
         the same back pain symptoms.  In a letter dated January 2, 
 
         1985, Dr. Patrick indicated that he had only claimant's story 
 
         and the records to go on that she developed back pain while on 
 
         crutches.  He opined in that sense the pain is work-related.  
 
         He also noted in that letter that history of a preexisting or 
 
         another injury would change the situation.
 
         
 
                               APPLICABLE LAW
 
         
 
              The citations of law in the arbitration decision are 
 
         appropriate to the issues and evidence and will be augmented only 
 
         as necessary.
 
         
 
              The claimant has the burden of proving by a preponderance of 
 
         the evidence that the injury of October 10, 1983 is causally 
 

 
         
 
         
 
         
 
         MOORHEAD-FRAME V. HILLHAVEN
 
         Page   3
 
         
 
         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).
 
         
 
                                     ANALYSIS
 
         
 
              Claimant has the burden of proving by a preponderance of the 
 
         evidence that the injury of October 10, 1983 is causally 
 
         connected to her alleged disability.  She asserts that she fell 
 
         while using her crutches in early or mid-November 1983.  That 
 
         assertion is not corroborated by other lay testimony or the 
 
         medical record.  Her assertion that she informed two other 
 
         persons of the injury contemporaneously to the event is directly 
 
         contradicted by those persons.  Dr. Patrick opined that 
 
         claimant's pain, which was a result of use of the crutches, was 
 
         work-related.  He indicated, however, that his opinion would be 
 
         different if there was a history of prior injury.  There was 
 
         evidence of prior back problems when claimant was seen for 
 
         complaints of pain in the low back April 16, 1981 and September 
 
         6, 1983.  Also, she missed work prior to November 1983 for a 
 
         nonwork-related back condition.
 
         
 
              Claimant has not proved by the greater weight of evidence 
 
         that her back injury is causally connected to the incident on 
 
         October 10, 1983.
 
         
 
              Claimant argues on appeal that the deputy placed undue 
 
         reliance upon the fact that claimant had prior lower back pain.  
 
         The deputy in reaching her conclusion relied upon the evidence 
 
         available, including the history of prior back problems.  The 
 
         deputy correctly relied upon this history, particularly in 
 
         assessing whether claimant had met her burden of proof and in 
 
         assessing whether Dr. Patrick's opinion was accurate in light of 
 
         an inaccurate history.
 
         
 
                                 FINDINGS OF FACT
 
         
 
              1.  Claimant was examined at Mercy Hospital April 16, 1981 
 
         for low back and right thigh pain.
 
         
 
              2.  Claimant reported she would be absent from work on 
 
         account of a nonwork back injury in Spring prior to October 10, 
 

 
         
 
         
 
         
 
         MOORHEAD-FRAME V. HILLHAVEN
 
         Page   4
 
         
 
         1983.
 
         
 
              3.  Claimant reported right leg pain radiating into the low 
 
         back and right hip to Dr. Overton on September 6, 1983.
 
         
 
              4.  Claimant injured her right foot in a work incident of 
 
         October 10, 1983.
 
         
 
              5.  Crutches were initially prescribed for claimant's right 
 
         foot injury.
 
         
 
              6.  Claimant first saw Dr. Kimelman on October 14, 1983.
 
         
 
              7.  Dr. Kimelman advised claimant not to use crutches on 
 
         November 15, 1983.
 
         
 
              8.  Claimant telephoned Dr. Kimelman's office and complained 
 
         of back problems on November 18, 1983.
 
         
 
              9.  Dr. Kimelman surmised claimant's funny way of walking 
 
         and her use of crutches were "screwing up" her back but did not 
 
         report a specific incident of claimant falling on crutches on 
 
         November 18, 1983 or at any other time.
 
         
 
             10.  Dr. Kimelman's notes reflect a minor reported incident 
 
         wherein claimant injured her toes following her original foot 
 
         injury.
 
         
 
             11.  Claimant's claim of a fall on her crutches is not 
 
         corroborated.
 
         
 
             12.  Use of crutches alone might create back problems, but 
 
         other sources need be considered where a claimant has had prior 
 
         back problems.
 
         
 
             13.  Claimant has had prior back problems.
 
         
 
             14.  Claimant did not advise either Dr. Patrick or Dr. 
 
         Kimelman of her prior back problems.
 
         
 
             15.  Claimant's back condition is as likely as not a 
 
         preexisting condition unrelated to her use of crutches as it is a 
 
         condition created by her use of crutches.
 
         
 
         
 
                                CONCLUSIONS OF LAW
 
         
 
              Claimant received an injury arising out of and in the course 
 
         of her employment on October 10, 1983.
 
         
 
              Claimant failed to meet her burden to causally connect any 
 
         back problem to her injury of October 10, 1983.
 
         
 
              WHEREFORE, the decision of the deputy is affirmed.
 
         
 
                                      ORDER
 
         
 
              That claimant take nothing further from this proceeding.
 
         
 
              That claimant pay costs of this proceeding pursuant to 
 

 
         
 
         
 
         
 
         MOORHEAD-FRAME V. HILLHAVEN
 
         Page   5
 
         
 
         Division of Industrial Services Rule 343-4.33.
 
         
 
         
 
              Signed and filed this 29th day of January, 1988.
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
                                                 DAVID E. LINQUIST
 
                                                 INDUSTRIAL COMMISSIONER
 
         
 
         
 
         Copies To:
 
         
 
         Mr. David Drake
 
         Attorney at Law
 
         P.O. Box 65355
 
         1200 35th Street, Suite 500
 
         West Des Moines, Iowa 50265
 
         
 
         Mr. Joseph S. Cortese II
 
         Attorney at Law
 
         1000 Des Moines Building
 
         Des Moines, Iowa 50309
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                                        1108.50; 1402.20
 
                                                        Filed 1-28-88
 
                                                        David E. Linquist
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         SHERYL MOORHEAD-FRAME,
 
         
 
              Claimant,
 
                                                   File No. 747913
 
         VS.
 
         
 
         HILLHAVEN,                                  A P P E A L
 
         
 
              Employer,                            D E C I S I 0 N
 
         
 
         and
 
         
 
         RANGER INSURANCE COMPANY,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         1108.50; 1402.20
 
         
 
              Claimant did not prove that her back injury was causally 
 
         connected to an injury that arose out of and in the course of her 
 
         employment.  Claimant's allegation of back injury was not 
 
         corroborated and her assertions that she told certain persons of 
 
         the injury was contradicted by those persons.  She was also not 
 
         credible when she denied previous back injury but a medical 
 
         exhibit and testimony of a coworker provided evidence of the 
 
         previous back injury.  Claimant had asserted that she had injured 
 
         her back while using crutches because she had a foot injury that 
 
         was a result of a work injury.
 
 
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                                 4000.2
 
                                                 Filed August 10, 1988
 
                                                 MICHELLE A. McGOVERN
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         WALTER L. PETERMAN,
 
                                                    File No. 747931
 
              Claimant,
 
                                                    D E C I S I O N
 
         vs.
 
                                                         O N
 
         AMERICAN FREIGHT SYSTEM,
 
                                                 S E C T I O N   86.13
 
              Employer,
 
              Self-Insured,
 
              Defendant.
 
         
 
         
 
         
 
         4000.2
 
         
 
              Additional benefits under 86.13 were not awarded to a 
 
         claimant when it was reasonable for the employer to believe there 
 
         was no causal connection between the date of the occurrence and 
 
         the nature of the injury.
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                   BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         WALTER L. PETERMAN,
 
                                                  File  No.  747931
 
              Claimant,
 
                                                   D E C I S I O N
 
         vs.
 
                                                        O N
 
         AMERICAN FREIGHT SYSTEM,
 
                                                S E C T I O N   86.13
 
         
 
              Employer,
 
              Self-Insured,
 
              Defendant.
 
         
 
         
 
         
 
         
 
                                   INTRODUCTION
 
         
 
              This is a proceeding upon a bifurcated section 86.13 claim. 
 
          The parties filed a stipulation subsequent to the arbitration 
 
         decision which was filed on September 20, 1985 and subsequent to 
 
         the decision on rehearing which was filed on October 31, 1985.
 
         
 
              In the stipulation, the parties agreed that the record for 
 
         the previous contested case proceeding could be used for this 
 
         proceeding and that additional evidence would not be taken.  The 
 
         parties further stipulated that the record would consist of the 
 
         evidence taken at the prior hearing as well as:
 
         
 
              1.  Transcript of the hearing of March 21, 1985;
 
         
 
              2.  All perpetuation transcripts taken and offered as 
 
         evidence, including medical and lay testimony;
 
         
 
              3.  All exhibits accepted into evidence at the time of 
 
         hearing; and,
 
         
 
              4.  The petition, answer and all answers to interrogatories, 
 
         defendant's response to request for production of documents and 
 
         its attachments, claimant's and defendant's post-hearing briefs, 
 
         the arbitration decision and decision on rehearing, and all of 
 
         claimant's and defendants requests for admissions and responses 
 
         thereto.
 
         
 
                                       ISSUES
 
         
 
              The issues presented at this proceeding are:  1) Whether the 
 
         employer unreasonably or without probable cause delayed the 
 
         commencement of benefits under chapter 85 of the Iowa Code 
 
         (1987); 2) Whether the claimant is entitled to additional 
 
         benefits pursuant to section 86.13; and, 3) The amount of those 
 
         benefits.
 
         
 
                                 FACTS PRESENTED
 
         
 
              This proceeding incorporates by reference the facts 
 
         presented in the arbitration decision which was filed on 
 
         September 20, 1985.
 
         
 

 
         
 
         
 
         
 
         PETERMAN V. AMERICAN FREIGHT SYSTEM
 
         PAGE   2
 
         
 
         
 
              In addition to the above, the following facts have been 
 
         considered:
 
         
 
             Ms. Spilde testified in her deposition that she was 
 
         personally notified of Mr. Peterman's shoulder and arm pain on 
 
         August 15, 1983.   Likewise, Ms. Spilde testified that the 
 
         claimant informed her that the injury could only have resulted 
 
         from the shot he received on April 26, 1983 and that the injury 
 
         was not the result of a fall.
 
         
 
              As a result of the claimant's telephone call on the 15th of 
 
         August, Ms. Spilde conducted a further investigation on the part 
 
         of the employer.  She testified she requested Robert J. Foley, 
 
         M.D.,'s medical report of September 16, 1983.  Once the, employer 
 
         had received Dr. Foley's report of September 16, 1983, Ms. Spilde 
 
         testified she forwarded a denial of compensation benefits to the 
 
         claimant in a letter of October 17, 1983.  Ms. Spilde also 
 
         testified that subsequent to her letter of October 17, 1983, she, 
 
         on behalf of the employer, had not been advised of any additional 
 
         information which could establish that Mr. Peterman was entitled 
 
         to compensation benefits for his shoulder and arm.  However, Ms. 
 
         Spilde did acknowledge the receipt of letters from R. R. Carlson, 
 
         M.D., of February 15, 1984 and letters from William R. Boulden, 
 
         M.D., of March 23, 1984 and of April 20, 1984.  All three of the 
 
         aforementioned letters were admitted as evidence.
 
         
 
             The claimant, in his response to defendants request for 
 
         admissions stated:
 
         
 
              2.  That Claimant admits that he did not report any 
 
              right arm and shoulder complaints to his supervisors 
 
              until following his return from a vacation in mid-July, 
 
              1983 ....
 
         
 
              3. ... Claimant acknowledges that he did not obtain 
 
              medical care or treatment relating to his arm and 
 
              shoulder complaints until August 9, 1983 but maintains 
 
              that he sought such care prior to August 9, 1983.
 
         
 
                              APPLICABLE LAW
 
         
 
              Section 86.13 of the Iowa Code provides in relevant 
 
         portion:
 
         
 
                 If a delay in commencement or termination of 
 
              benefits occurs without reasonable or probable cause or 
 
              excuse, the industrial commissioner shall award 
 
              benefits in addition to those benefits payable under 
 
              this chapter, or chapter 85, 85A, or 85B, up to fifty 
 
              percent of the amount of benefits that were 
 
              unreasonably delayed or denied.
 
         
 
              Under section 86.13 benefits are not awarded for medical 
 
         expenses.  The section 86.13 benefits are only applicable to 
 
         weekly compensation benefits.  Zahn v. Iowa State Men's 
 
         Reformatory, IV Iowa Industrial Commissioner Report 409 (1983).
 
         
 
              If it is alleged that an employer wrongfully withholds 
 
         weekly compensation benefits from a claimant, the claimant must 
 
         establish the benefits were withheld unreasonably in order for 
 
         the claimant to receive additional benefits under section 86.13.  
 
         Curtis v. Swift Independent Packing, IV Iowa Industrial 
 
         Commissioner Report 88 at 93 (1983).  In a previous decision 
 

 
         
 
         
 
         
 
         PETERMAN V. AMERICAN FREIGHT SYSTEM
 
         PAGE   3
 
         
 
         
 
         before the Division of Industrial Services, a hearing deputy has 
 
         ruled that it was reasonable for an employer to withhold benefits 
 
         when the employer was not alerted to occurrences which would 
 
         notify a reasonable person that benefits would be due or when 
 
         there was no work time lost.  McCormack v. Sunsprout, I-1 Iowa 
 
         Industrial Commissioner Decisions 142 at 144 (1984).
 
         
 
              In a separate decision before the Division of Industrial 
 
         Services, the same deputy industrial commissioner awarded 
 
         benefits under section 86.13. here there was an unreasonable 
 
         delay since there were no contradictions in the claimant's claim.  
 
         Willis v. Ruan Transport Corporation, IV Iowa Industrial 
 
         Commissioner Report 395 at 396 (1984).  In the Willis case at 396 
 
         the deputy wrote:
 
         
 
              ... Reports and letters from the doctor are consistent 
 
              with claimant's statements regarding his injury.
 
         
 
              There were no ambiguities and inconsistencies in 
 
              claimant's claim.  Withholding benefits was arbitrary 
 
              and unreasonable.  The five percent award based on Iowa 
 
              Code section 86.13 will be attached to healing period 
 
              only.  Although the evidence presented clearly relates 
 
              claimant's permanent impairment to his injury, 
 
              defendants will be given the benefit of the doubt as to 
 
              whether or not a failure to pay permanent disability 
 
              also was unreasonable.  Claimant had prior back 
 
              troubles and conceivably some portion of his impairment 
 
              might.have been related to those difficulties or to a 
 
              preexisting arthritis rather than to his injury.
 
         
 
                                    ANALYSIS
 
         
 
              Claimant has not met his burden in proving that defendant 
 
         unreasonably withheld his weekly compensation benefits or that 
 
         without probable cause, the defendant withheld the benefits.  On 
 
         April 26, 1983, the claimant sustained an injury arising out of 
 
         and in the course of his employment with defendant.  However, ail 
 
         reports submitted at that time indicated the claimant received a 
 
         laceration to his right cheek for which medical attention was 
 
         sought.  This medical attention included a shot in the right arm. 
 
          At the time of the injury, there was no indication the claimant 
 
         had suffered an injury to his right shoulder and to his arm.  No 
 
         mention of such an injury was recorded by the claimant in an 
 
         accident report.
 
         
 
              Moreover, the claimant admitted in defendant's request for 
 
         admissions that he did not report the arm and shoulder injury to 
 
         his supervisor until mid-July of 1983.  The claimant further 
 
         admitted that he did not obtain medical care for this condition 
 
         until August 9, 1983.
 
         
 
              There was at least a three month lapse between the date of 
 
         the injury and file date the arm and shoulder injury was reported 
 
         to supervisory personnel.  Such a break in time was 
 
         unforeseeable.  It would not be unreasonable on the part of the 
 
         employer to assume the arm and shoulder injuries were unrelated 
 
         to a lacerated right cheek.  Consequently, it would not be 
 
         unreasonable for the employer to deny benefits, especially since 
 
         the claimant had not lost any work time since the date of the 
 
         injury.
 
         
 
              After the claimant received medical treatment on August 9, 
 

 
         
 
         
 
         
 
         PETERMAN V. AMERICAN FREIGHT SYSTEM
 
         PAGE   4
 
         
 
         
 
         1983, it still was not unreasonable for the employer to delay 
 
         benefits for the arm and shoulder injuries.  A reasonable person 
 
         could assume there would be no causal connection between arm and 
 
         shoulder pain in August and a facial injury occurring in April.
 
         
 
              Likewise, it would not be unreasonable for the employer to 
 
         delay benefits even though the employee had received medical 
 
         reports from Dr. Foley in September of 1983, from Dr. Boulden in 
 
         March and April of 1984, and from Dr. Carlson in February of 
 
         1984.  These reports were not totally consistent with the 
 
         claimants claim.  Dr. Foley could not relate the injury to the 
 
         April 26, 1983 incident.  The other physicians were only relying 
 
         upon statements made to them by the claimant many months after 
 
         the April date.  As a consequence, a reasonable person could 
 
         question the causal connection and thus deny compensation 
 
         benefits.
 
         
 
                     FINDINGS OF FACT AND CONCLUSIONS OF LAW
 
         
 
              WHEREFORE, based upon the stipulation, the evidence 
 
         presented, the previous arbitration decision and the principles 
 
         of law previously stated, the following findings of fact and 
 
         conclusions of law are made:
 
         
 
              Finding 1.  Employer delayed the commencement of benefits 
 
         under Chapter 85 of the Code of Iowa (1987).
 
         
 
              Finding 2.  The delay in the commencement of benefits was 
 
         not unreasonable.
 
         
 
              Conclusion A.  The claimant is not entitled to additional 
 
         benefits under section 86.13 of the Iowa Code (1987).
 
         
 
                                      ORDER
 
         
 
              THEREFORE, claimant will take no additional benefits under 
 
         section 86.13 of the Iowa Code (1987).
 
         
 
              Costs of this proceeding will be taxed to the defendant.
 
         
 
         
 
         
 
         
 
              Signed and filed this 10th day of August, 1988.
 
         
 
         
 
         
 
                                        MICHELLE A. McGOVERN
 
                                        DEPUTY INDUSTRIAL COMMISSIONER
 
         
 
         
 
         Copies To:
 
         
 
         Mr. Jan V. Berry
 
         Attorney at Law
 
         110 S.E. Grant, Suite 205
 
         Ankeny, Iowa 50021
 
         
 
         Ms. Dorothy L. Kelley
 
         Attorney at Law
 
         1000 Des Moines Bldg.
 
         Des Moines, Iowa 50309-2462
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                   BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         
 
         JOHANNA ARROWOOD,
 
         
 
              Claimant,
 
         
 
         vs.
 
         
 
         VIVIAN LORTZ D/B/A
 
         MINI CARE CENTER,                      File No.  748373
 
         
 
                Employer,                    A R B I T R A T I 0 N
 
         
 
         and                                    D E C I S I 0 N
 
         
 
         STATE FARM INSURANCE,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         
 
         
 
                                   INTRODUCTION
 
         
 
              This is a proceeding in arbitration brought by Johanna 
 
         Arrowood, claimant, against Vivian Lortz d/b/a Mini Care Center, 
 
         employer, and State Farm Insurance Company, insurance carrier, 
 
         defendants, for benefits as a result of an injury which occurred 
 
         on October 10, 1983.  A hearing was held on August 26, 1987 at 
 
         Des Moines, Iowa and the case was fully submitted at the close of 
 
         the hearing.  The record consists of the testimony of Johanna 
 
         Arrowood (claimant), Richard S. Arrowood (claimant's husband), 
 
         Joint Exhibits 1 through 10 and Defendant's Exhibits A and B.  
 
         Both parties submitted excellent briefs.  A number of the same 
 
         exhibits were introduced by both parties.  Apparently, the 
 
         parties did not meet prior to the hearing to eliminate 
 
         duplication of exhibits as directed by paragraph ten of the 
 
         hearing assignment order.
 
         
 
                                STIPULATIONS
 
         
 
              The parties stipulated to the following matters:
 
         
 
              That an employer-employee relationship existed between 
 
         claimant and employer at the time of the alleged injury;
 
         
 
              That claimant sustained an injury on October 10, 1983 which 
 
         arose out of and in the course of her employment with employer;
 
         
 
              That the injury was the cause of temporary disability during 
 
         a period of recovery from October 11, 1983 to December 14, 1984;
 
         
 
              That claimant is entitled to and was paid 62 weeks of 
 
         healing period benefits from October 11, 1983 to December 14, 
 

 
         
 
         
 
         
 
         ARROWOOD V. VIVIAN LORTZ D/B/A/ MINI CARE CENTER
 
         PAGE   2
 
         
 
         
 
         1984;
 
         
 
              That the type of permanent disability, if the injury is 
 
         found to be a cause of permanent disability, is industrial 
 
         disability to the body as a whole;
 
         
 
              That the commencement date for permanent partial disability 
 
         benefits, in the event such benefits are awarded, is December 14, 
 
         1984;
 
         
 
              That the rate of compensation, in the event of an award of 
 
         weekly benefits, is $97.13 per week;
 
         
 
              That all requested medical benefits have been or will be 
 
         paid by defendants; and
 
         
 
              That defendants are entitled to a credit for 35 weeks of 
 
         permanent partial disability benefits paid prior to hearing at 
 
         the rate of $97.13 per week.
 
         
 
                                      ISSUES
 
         
 
              The parties submitted the following issues for determination 
 
         at the time of the hearing:
 
         
 
              Whether the injury was the cause of any permanent 
 
         disability; and
 
         
 
              Whether claimant is entitled to permanent partial disability 
 
         benefits, and if so, to what extent.
 
         
 
         
 
                             SUMMARY OF THE EVIDENCE
 
         
 
              All of the evidence was examined and considered.  The 
 
         following is a summary of the pertinent evidence.
 
         
 
              Claimant was 19 years old at the time of the injury on 
 
         October 10, 1983.  She was 23 years old at the time of the 
 
         hearing.  Claimant had been married one month at the time of the 
 
         injury.  Since the injury, claimant has given birth to two 
 
         children.  Her first child was born on June 9, 1985 and her 
 
         second child was born on April 21, 1987.
 
         
 
              Claimant graduated from high school in 1981 with a B 
 
         average.  She completed one semester in modeling at Des Moines 
 
         Area Community College.  She has completed the Jafra cosmetics 
 
         management training program.  Past employments include busing 
 
         tables, baby-sitting and shopping mall maintenance.  The latter 
 
         job involved mowing the lawn, cleaning floors, painting, making 
 
         signs and disposing of the garbage and trash.  Claimant has also 
 
         worked as a carhop for a drive-in, a cook and a dishwasher in a 
 
         restaurant.  She has also performed heavy-duty housecleaning work 
 
         for a number of private clients.  She once worked part-time as a 
 
         campaign worker for a political candidate.  Both claimant and her 
 
         husband described claimant as a very physical young woman who 
 
         lifted weights prior to the injury.
 
         
 
              Prior to this injury, claimant injured the right side of her 
 

 
         
 
         
 
         
 
         ARROWOOD V. VIVIAN LORTZ D/B/A/ MINI CARE CENTER
 
         PAGE   3
 
         
 
         
 
         back doing an overhead press with a spotter.  She testified that 
 
         she was examined for this earlier injury by her personal 
 
         physician Dennis Rolek, D.O.  He permitted her to work and to go 
 
         to school, but suspended her from weightlifting for ten days.  
 
         This problem disappeared and she had no further trouble with her 
 
         back after that.  Claimant said that she was in good physical 
 
         condition when she started to work for employer part-time in the 
 
         summer of 1982.
 
         
 
              The defendant, Mini Care Center, was primarily an 
 
         arrangement by defendant, Vivian Lortz, to provide care for her 
 
         elderly father, mother, aunt and another gentleman.  Claimant 
 
         performed a variety of tasks for employer.  She testified that 
 
         her job involved lifting patients, bathing patients, dispensing 
 
         medications, fixing the hair of patients, preparing patients for 
 
         their naps, taking walks with patients and taking patients to the 
 
         doctor.  Her tasks also included doing the laundry, 
 
         housecleaning, cooking, purchasing groceries and preparing menus.  
 
         Claimant testified that she worked eight hours a day at $3.50 per 
 
         hour.  Claimant stated that she lifted patients who weighed from 
 
         82 pounds up to 170 pounds.  She lifted patients onto chairs, 
 
         commodes and into the tub.  She lifted approximately three or 
 
         four patients three or four times a day.  The care center did not 
 
         have a hydraulic lift at that time.  Claimant said that she 
 
         performed a number of other tasks that required extensive lifting 
 
         and bending.  She also stated that since the injury, some of the 
 
         patients have died and that the care center is now closed.
 
         
 
              Claimant related that on October 10, 1983, she injured her 
 
         back while assisting the owner's father into his bed.  The 
 
         patient started to fall and claimant caught him and assisted him 
 
         to the bed.  A short time later that day, her back began to hurt.  
 
         Claimant treated initially with the Dietz Family Practice Clinic.  
 
         She told them that she had pain radiating up her back and down 
 
         both legs.  The diagnosis of Daniel R. Blizzard, D.O., was low 
 
         back pain and lumbar sacral strain.  He treated claimant with 
 
         osteopathic manipulative treatments and medication from 
 
         approximately October 17, 1983 to November 4, 1983.  He then 
 
         referred claimant to Steven Adelman, D.O., a neurologist.
 
         (Exhibit 1).
 
         
 
              Dr. Adelman examined claimant on November 17, 1983.  He 
 
         concluded his notes for this visit as follows:
 
         
 
              IMPRESSION:  Johanna presents as a 20 year old woman 
 
              with a 5 week history of low back and leg pain which is 
 
              related to a work injury.  Clinically her symptoms are 
 
              suggestive of right L-5 radiculopathy however, there 
 
              are no objective findings at the present time.
 
         
 
              PLANS:  I've explained my findings at length to 
 
              Johanna.  She has had normal lumbosacral spine films as 
 
              an outpatient.  She is anxious for aggressive therapy 
 
              how-ever, considering the relatively short duration of 
 
              her symptoms I would still prefer to go with 
 
              symptomatic therapy.  I will begin her on a course of 
 
              steroids beginning with Prednisone 60mg. daily and 
 
              tapering over a 10 day period.  I will ask her to give 
 
              Dr. Blizzard a call in 2 weeks time and if she is still 
 

 
         
 
         
 
         
 
         ARROWOOD V. VIVIAN LORTZ D/B/A/ MINI CARE CENTER
 
         PAGE   4
 
         
 
         
 
              having difficulty I would then recommend probable EMG 
 
              and perhaps myelography.  If there are appropriate 
 
              findings and she is still relatively disabled with her 
 
              pain I would then recommend surgery.
 
         
 
         (Ex. 2, page 4)
 
         
 
              Claimant was then hospitalized for tests from November 
 
         22,1983 to November 30, 1983.
 
         
 
              The result of the spinal x-ray which was taken on November 
 
         23, 1983, was as follows:
 
         
 
              LUMBOSACRAL SPINE:  THE ALIGNMENT OF THE LUMBOSACRAL SPINE 
 
              IS GOOD IN ALL PROJECTIONS.  NO EVIDENCE OF RECENT INJURY OR 
 
              OTHER BONE PATHOLOGY IS SEEN.  IMPRESSION:  NORMAL 
 
              LUMBOSACRAL (SIC) SPINE.
 
         
 
         (Ex. 3, P. 10; Ex. B, p. 10)
 
         
 
              The result of the lumbar CT scan, which was done on November 
 
         23, 1983, was as follows:
 
         
 
              CT OF THE LUMBAR SPINE:  (WITHOUT CONTRAST - 22) EXAMINATION 
 
              WAS OBTAINED WITH CUTS FROM THE INFERIOR MARGIN OF L-3 
 
              THROUGH S-1 WITH THE L-3 - L-4, L-4 - L-5 and L-5 - S-1 DISC 
 
              SPACES WERE WELL SEEN WITH NO DEFINITE ABNORMALITY 
 
              IDENTIFIED AT THE DISC SPACE LEVELS OR THE FACET JOINTS.
 
              IMPRESSION:  NORMAL CT OF THE LOWER LUMBOSACRAL SPINE.
 
         
 
         (Ex. 3, p. 10; Ex. B, p. 11)
 
         
 
              The result of the myelogram performed on November 28, 1983, 
 
         was as follows:
 
         
 
              AMIPAQUE MYELOGRAM:  EXAMINATION WAS PERFORMED WITH AMIPAQUE 
 
              INSTILLED INTO THE LUMBAR SUBARACHNOID SPACE WITH 
 
              VISUALIZATION UP TO THE T9-10 LEVEL WITH SYMMETRIC 
 
              DISTRIBUTION OF THE NERVE ROOTS AND NO EXTRADURAL DEFECTS OR 
 
              OTHER ABNORMALITIES IDENTIFIED.
 
              IMPRESSION:  NORMAL AMIPAQUE MYELOGRAM FROM THE T8 LEVEL 
 
              DISTALLY.
 
         
 
         (Ex. 3, p. 11; Ex. B, p. 12)
 
         
 
              The report from the EMG, which was performed on November 22, 
 
         1983, read as follows:
 
         
 
              RESULTS:
 
         
 
                 LOWER:  NO ABNORMALITY OF THE EMG.
 
         
 
         (Ex. 3, p. 12; Ex. B, p. 13)
 
         
 
              Dr. Adelman succinctly summarized claimant's situation in 
 
         his discharge summary from the hospital on November 30, 1983:
 
         
 
              Johanna is a 20-year-old nurses aid who relates the 
 
              onset of her difficulties on 10-10-83 when while at 
 

 
         
 
         
 
         
 
         ARROWOOD V. VIVIAN LORTZ D/B/A/ MINI CARE CENTER
 
         PAGE   5
 
         
 
         
 
              work she was attempting to move a patient.  The patient 
 
              began to fall and Johanna tried to prevent this by 
 
              twisting and straining her low back.  Over the 
 
              subsequent week she began to experience radiating pain 
 
              initially down her right leg and subsequently into her 
 
              left leg as well.  She had an extensive trial of 
 
              conservative therapy as an outpatient including 
 
              nonsteroidal anti-inflammatory meds as well as a course 
 
              of Prednisone.  She was admitted for treatment and 
 
              evaluation of intractable low back pain not responding 
 
              to outpatient management.  Exam on admission was 
 
              remarkable for low back pain with pain radiating down 
 
              both legs.  There was no focal neurologic deficits 
 
              appreciated on her exam.  Lab studies - revealed normal 
 
              SMA-12, CBC, UA.  A spinal fluid done at the time of 
 
              myelography revealed a protein of 19 and no cells.  
 
              Johanna had normal lumbosacral spine films as well as a 
 
              normal CT scan of the lower lumbosacral spine.  She 
 
              also underwent a myelogram which was normal.  She did 
 
              seem to respond to some degree to physiotherapy.  
 
              However, on discharge she was still troubled by low 
 
              back pain.
 
         
 
         (Ex. 31 p. 3; Ex. B, p. 9)
 
         
 
              Dr. Adelman reported on December 20, 1983, that claimant had 
 
         reported some improvement.  Physical therapy and the TENS unit 
 
         were helpful, but she still suffered intermittent back pain and 
 
         pain down her leg (Ex. 2, p. 7).
 
         
 
              On February 7, 1984, Dr. Adelman said that claimant still 
 
         had back and leg complaints and that she had begun to suffer 
 
         headaches also.  He stated that he prescribed a medicine for the 
 
         headaches but had nothing further that he could offer to her.  
 
         His final report reads as follows:
 
         
 
              Johanna returns for F/U neurologic appointment today.  
 
              She continues to experience low back pain with pain 
 
              down her left leg but does feel that she does get 
 
              minimal relief with physical therapy which she has been 
 
              continuing at Mercy.  In addition to her low back and 
 
              leg pain, she also relates a 3 week history of headache 
 
              which is described as a dull achy sensation in her 
 
              occipital region across to her bitemporal region.  The 
 
              headache has been there everyday for the past three 
 
              weeks and may wax and wane to some degree throughout 
 
              the day.  She takes Tylenol with some relief.
 
         
 
              On her examination, she demonstrates no evidence of 
 
              papilledema.  She does have occipital muscle 
 
              tenderness.  Her deep tendon reflexes in her lower 
 
              extremities are still well preserved and her straight 
 
              leg raising is negative.
 
         
 
              I have informed Johanna that I really do not have 
 
              anything more to offer her regarding her back and leg 
 
              pain as we have completely evaluated her with EMG, CAT 
 
              scan, as well as myelogram.  I have suggested that if 
 
              she does get relief, she should continue to go to 
 

 
         
 
         
 
         
 
         ARROWOOD V. VIVIAN LORTZ D/B/A/ MINI CARE CENTER
 
         PAGE   6
 
         
 
         
 
              physical therapy.  I have also explained to her that I 
 
              feel her headaches are related to muscle contraction 
 
              and have given her some samples as well as a 
 
              prescription for Midrin to take 1 every four hours as 
 
              she needs it for headache.  If she continues to have 
 
              difficulty then she has raised the question of 
 
              possibility of biofeedback therapy for headaches. (Ex. 
 
              2, p. 8)
 
         
 
              Dr. Adelman did not award a permanent functional impairment 
 
         rating; nor did he impose any limitations or restrictions on 
 
         claimant's activities.
 
         
 
              Claimant then began to see Kent Patrick, M.D., an orthopedic 
 
         surgeon on April 18, 1984, and continued to see him until 
 
         approximately December 14, 1984.  On April 18, 1984, he reported 
 
         that she complained of back pain, pain in the left leg and 
 
         migraine headaches.  He stated that she had a lumbar strain 
 
         associated with the event at the nursing home which occurred on 
 
         October 10, 1983 (Ex. 5, p. 1).  He stated that her previous 
 
         workup was very thorough and that there was nothing further that 
 
         he could offer.  Dr. Patrick concluded as follows:
 
         
 
              Based on her present examination, I feel she warrants a 
 
              permanent partial impairment rating of 5% of the body 
 
              as a whole.  She should be able to return to work with 
 
              a little more time.  I would not want her lifting more 
 
              than 30 pounds and work in the nursing home may be 
 
     
 
         
 
         
 
         
 
         
 
         ARROWOOD V. VIVIAN LORTZ D/B/A/ MINI CARE CENTER
 
         PAGE   7
 
         
 
         
 
              something that she should avoid.  Any job should avoid 
 
              repetitive bending, stooping, lifting, or twisting of 
 
              any amount.
 
         
 
         (Ex. 5, p. 2; Ex. 6, p. 3, Ex. B, pp. 3 & 4)
 
         
 
              On May 23, 1984, Dr. Patrick reported that claimant 
 
         unexpectedly returned to see him and reported some improvement 
 
         (Ex. 5, p. 2; Ex. 6, p. 4; Ex. B, p. 4). On August 1, 1984, her 
 
         back pain and headaches were present again.  Dr. Patrick ordered 
 
         a new CT scan (Ex. 5, p. 2; Ex. 6, p. 5; Ex. B p. 4).  The new CT 
 
         scan was performed on August 7, 1984 (Ex. 7).  On August 13, 
 
         1984, Dr. Patrick reported that the CT scan was normal (Ex. 5, p. 
 
         3; Ex. 6, p. 6; Ex. B, p. 5).  The report itself read as 
 
         follows:
 
         
 
              CT OF THE LUMBAR SPINE. (WITHOUT CONTRAST) SERIAL 
 
              SECTIONS THROUGH THE LUMBOSACRAL SPINE AT THE L-3 - 
 
              L-4, L-4 - L-5 and L-5 - S-1 DISC SPACES WERE OBTAINED 
 
              IN A PATIENT WITH LOW BACK PAIN, MOSTLY TO THE LEFT AND 
 
              PAIN INVOLVING THE LEFT POSTERIOR THIGH.  POSTERIOR LEG 
 
              AND LEFT FOOT.
 
                 THE L-3 - L-4, L-4 - L-5 and L-5 - S-1 DISCS APPEAR 
 
              SIMILAR TO THE PREVIOUS EXAMINATION OF 11/22/83 AND 
 
              APPEAR TO BE WITHIN NORMAL LIMITS.  NO SIGNIFICANT 
 
              HYPERTROPHIC DEGENERATIVE CHANGES OR BONE ENCROACHMENT 
 
              ON THE SPINAL CANAL COULD BE IDENTIFIED TO SUGGEST AN 
 
              AREA OF IMPINGEMENT ON NERVE ROOTS.
 
              IMPRESSION: NORMAL LUMBOSACRAL SPINE CT AT THE L-3 - 
 
              L-4, L-4 - L-5 and L-5 - S-1 LEVELS, ESSENTIALLY 
 
              UNCHANGED FROM 11/22/83.
 
         
 
         (Ex. 7, p. 3)
 
         
 
              On December 14, 1984, Dr. Patrick reported that claimant was 
 
         pregnant with her second child.  At that time she suffered back 
 
         pain, left leg pain, headaches and some symptoms in her arms.  
 
         Dr. Patrick concluded this report as follows:
 
         
 
              Physical exam reveals moderate stiffness in the lumbar 
 
              spine.  Neurologically, there is no evidence of root 
 
              compression.  The left ankle dorsiflexors are minimally 
 
              weak and there is no other finding to corroborate this.  
 
              Her scans have been negative.  It should be noted that 
 
              she must have been early in her pregnancy at the time 
 
              of her last CT scan in August of this year.
 
              I feel Mrs. Arrowood continues to have symptoms from a 
 
              lumbar strain.  It is not unusual that these symptoms 
 
              would be worse during pregnancy.  This increase in 
 
              symptoms during the pregnancy often reverts to its 
 
              previous level of symptoms.  I feel that she has 
 
              reached her point of maximum healing and that her 
 
              previous permanent partial impairment rating of 5% of 
 
              the body as a whole stands.
 
         
 
              I need not see Johanna back in the future on a 
 
              scheduled basis.  Should she have difficulties, I would 
 
              be happy to continue in her care.
 
         
 

 
         
 
         
 
         
 
         ARROWOOD V. VIVIAN LORTZ D/B/A/ MINI CARE CENTER
 
         PAGE   8
 
         
 
         
 
         (Ex. 5, p. 3; Ex. B, p. 5)
 
         
 
              Claimant said that she next saw Dennis Rolek, D.O., who has 
 
         been her personal physician since she was 17 years old.  Dr. 
 
         Rolek gave a report in which he summarized claimant's situation 
 
         in a letter to claimant's counsel dated October 29, 1985.  It 
 
         reads in part as follows:
 
         
 
              Mrs. Arrowood first requested my opinion about her back 
 
              pain on February 4, 1985.  At that time, she was 
 
              pregnant with her first child.  I informed her that I 
 
              could not completely examine her back at that time 
 
              because of her pregnancy.  I informed her that I would 
 
              be happy to examine her back after she had completely 
 
              recovered from her pregnancy.
 
         
 
              Mrs. Arrowood returned on Sept. 27, 1985 for evaluation 
 
              of her low back pain.  After examining her, I felt that 
 
              she probably had a herniated L-S disc at L4 to L5 and 
 
              L5 to Sl.  I ordered a CT of the lumbar spine to be 
 
              preformed (sic) at the Outpatient Diagnostic Center.
 
         
 
              The CT scan was preformed (sic) on October 2,  1985
 
              and was interpreted by Dr. Stephen Cooper (Radiologist) 
 
              to show bulging annulus at L4 to L5 and L5 to Sl.
 
         
 
              On October 10, 1985 I informed Mrs. Arrowood about the 
 
              X-Ray findings.  I also informed her that in my opinion 
 
              and to my knowledge, there is no specific surgical or 
 
              medical treatment for her problem.  I also informed her 
 
              that sometime in the future her pain may become 
 
              extremely worse, at which time surgery may be 
 
              indicated.
 
         
 
              Relative to Mrs. Arrowood's disability, permanent 
 
              impairment rating, relative to her body as a whole, I 
 
              feel that she is approximately seventy percent 
 
              disabled.  In arriving at my disability rating, I have 
 
              considered many factors including: the actual injury, 
 
              her education, her previous employer, her lack of 
 
              potential employers because of the back injury.
 
         
 
         (Ex. 9, pp. 1 & 2)
 
         
 
              The actual x-ray and CT reports, which are dated October 2, 
 
         1985, read as follows:
 
         
 
              LUMBAR SPINE:  Anatomic alignment and disc spaces are 
 
              normal.  The pedicles, posterior arches and paraspinous 
 
              tissues are normal.  Both S1 joints are intact. there 
 
              may be some partial lumbarization of S1.
 
         
 
              IMPRESSION:  NO ACUTE ABNORMALITY SEEN.  THERE WAS 
 
              PARTIAL LUMBARIZATION OF THE FIRST SACRAL SEGMENT.
 
         
 
              CT OF LUMBAR REGION:  At L4-L5 there was a minimal 
 
              bulging annulus.  The dural sac is intact.  No bone 
 
              hypertrophy is identified.  The intervertebral foramina 
 
              are normal.  No facet joint abnormalities are 
 

 
         
 
         
 
         
 
         ARROWOOD V. VIVIAN LORTZ D/B/A/ MINI CARE CENTER
 
         PAGE   9
 
         
 
         
 
              demonstrated.
 
         
 
              At L5-Sl again bulging annulus is identified.  No 
 
              obscuration of the nerve roots or epidural fat is 
 
              identified.  No bone hypertrophy is seen.  The S1 
 
              joints are intact.
 
         
 
              Several cuts through the sacrum were obtained and no 
 
              abnormalities involving the upper portion of the sacrum 
 
              were identified.
 
         
 
              IMPRESSION:  MINIMAL BULGING ANNULUS AT L4-L5 AND L5-Sl 
 
              WITH NO EVIDENCE OF DISC HERNIATION.  NO ABNORMALITIES 
 
              INVOLVING THE VISUALIZED PORTION OF THE SACRUM WERE 
 
              IDENTIFIED.
 
         
 
         (Ex. 9, p. 3)
 
         
 
              On November 8, 1985, Dr. Rolek revised his disability rating 
 
         downward as follows:
 
         
 
              Ms. Arrowood's functional disability rating according 
 
              to the AMA guidelines would be approximately 20%.
 
         
 
         (Ex. 9, p. 4)
 
         
 
              On March 12, 1986, Dr. Patrick addressed Dr. Rolek's 
 
         findings as follows:
 
         
 
              I have reviewed the information that you provided about 
 
              Dr. Rolek's examination and the CT scan which was 
 
              obtained on 10/2/85.  I find Dr. Rolek's impairment 
 
              rating to be somewhat incredible.  I am unsure why he 
 
              felt it necessary to obtain a third CT scan since her 
 
              previous studies had all been normal.
 
         
 
              Her neurological exam has always been normal.  I would 
 
              have to review her CT scan from October of 1985 to see 
 
              whether I would even concur that there is minimal 
 
              bulging of the disc.  For many people this is 
 
              essentially a normal finding, and I do not think this 
 
              represents any significant change in her situation.  I 
 
              certainly do not think an x-ray alone is the basis for 
 
              a large impairment rating since her symptomatology has 
 
              not corresponded to any abnormalities and films in the 
 
              past.  As of yet, her CT scan has not arrived in this 
 
              office, and I would appreciate your seeing that it gets 
 
              here so that I could review it. In addition to this, it 
 
              sounds as if a repeat exam is in order since I have not 
 
              seen the patient for over a year.  Possibly this will 
 
              help clear the air as well.
 
         
 
         (Ex.  B, p. 6)
 
         
 
              Dr. Patrick then reexamined claimant on April 9, 1986,
 
         and reported as follows:
 
         
 
              As you can see, I still feel that she warrants a 
 
              permanent partial impairment rating of only 5% of the 
 

 
         
 
         
 
         
 
         ARROWOOD V. VIVIAN LORTZ D/B/A/ MINI CARE CENTER
 
         PAGE  10
 
         
 
         
 
              body as a whole.  I am not sure why Dr. Rolek rated her 
 
              so highly, but she does not show evidence of radicular 
 
              problem, and I do not think she warrants an impairment 
 
              rating as high as he has given her.
 
              (Ex. 6, p. 1; Ex. B, p. 8)
 
         
 
              Dr. Rolek was deposed on June 16, 1986 (Ex. 10).  He stated 
 
         that he has a BS degree in biology, a MS in psychology, a PhD in 
 
         psychology and a medical degree from the College of Osteopathic 
 
         Medicine and Surgery in Des Moines in 1975.  He stated that he 
 
         has specialized in family practice for ten years.  He first saw 
 
         claimant on June 1, 1981.  He has been her doctor for 
 
         approximately five years.  He had examined the records of the 
 
         Dietz Clinic, Dr. Adelman and Dr. Patrick.  He stated that he did 
 
         not actually treat her for this condition, but he did recommend 
 
         an additional CAT scan.  He did examine claimant and his 
 
         examination demonstrated a positive straight leg raising test of 
 
         60 degrees on the left and a positive head flexion and foot 
 
         flexion test on the left at an angle of 45 degrees.  Dr. Rolek 
 
         believed that the injury of October 10, 1983 could cause and was 
 
         consistent with the symptoms she reported to him.  The CT scan 
 
         which he ordered showed minimal bulging of the annulus at L4, L5 
 
         and L5, Sl with no evidence of disc herniation.  He said that all 
 
         he has done since then is to refill her prescriptions for pain 
 
         medication (Ex. 10, pp. 4-11).  Dr. Rolek testified that the 
 
         injury of October 10, 1983 was the cause of her present problems 
 
         (Ex. 10, p. 13).
 
         
 
              Dr. Rolek testified that his records did not disclose any 
 
         previous back problem.  He was not able to find that he had 
 
         treated claimant for the weightlifting injury in 1982 as claimant 
 
         has testified (Ex. 10, p. 12).
 
         
 
              Dr. Rolek explained why, in his opinion, the earlier 
 
         extensive radiography tests done at Mercy Hospital did not detect 
 
         the bulging annulus.
 
         
 
                 I believe the principal explanation of this is that 
 
              the CAT scanner that is owned by the Charter Hospital 
 
              Outpatient Diagnostic Center is the state of the art as 
 
              far as CAT scanners.  It's a much more sensitive 
 
              machine, much more accurate machine than the CAT 
 
              scanner that Mercy Hospital has.  It is by far the best 
 
              CAT scanner in the city, so basically it's a more 
 
              refined sophisticated test was ordered on a very 
 
              sophisticated machine.
 
         
 
         (Ex. 10, p. 14)
 
         
 
              Dr. Rolek did not know if the radiologist compared his 
 
         results with the earlier x-rays, CT scans and the myelogram (Ex. 
 
         10, pp. 27 & 28).
 
         
 
              Dr. Rolek explained the basis for his November 81 1985 
 
         rating of 20 percent according to the AMA guidelines as follows:
 
         
 
              Q.  What factors, Doctor, did you take into 
 
              consideration on arriving at a 20 percent impairment 
 
              rating?
 

 
         
 
         
 
         
 
         ARROWOOD V. VIVIAN LORTZ D/B/A/ MINI CARE CENTER
 
         PAGE  11
 
         
 
         
 
         
 
              A.  Well, I guess the two major things are her back 
 
              injury, her -- most any physician if you were forced to 
 
              go by the AMA guidelines would give her a disability of 
 
              probably 5 to 8 percent.  I also feel that Ms. Arrowood 
 
              is extremely depressed about her ongoing pain and she 
 
              developed true psychological and psychiatric problems 
 
              as a result of her injury, and I feel that this added 
 
              approximately 15 percent to her disability rating.
 
         
 
         (Ex. 10, p. 16)
 
         
 
         Claimant's counsel quizzed Dr. Rolek more about his impairment 
 
         rating and the following colloquy transpired:
 
         
 
              Q.  I just have one question, Doctor.  If you were not 
 
              using the AMA guide and just using your own 
 
              professional opinion based upon this problem, would 
 
              your impairment rating be different than that based 
 
              upon the AMA guidelines?
 
         
 
              A.  It would be definitely different.
 
         
 
              Q.  Could you explain, would it be higher, lower, the 
 
              same, and why?
 
         
 
              A.  It would be much higher.  The main reason is I 
 
              think that the AMA Guide for Evaluation of Permanent 
 
     
 
         
 
         
 
         
 
         
 
         ARROWOOD V. VIVIAN LORTZ D/B/A/ MINI CARE CENTER
 
         PAGE  12
 
         
 
         
 
              Impairment is probably the most ludicrous text I have 
 
              ever been forced to use in my life.  It makes no 
 
              difference it the man is a piano player and loses his 
 
              his (sic) index finger or if he pushes a broom and 
 
              loses his index finger.  They all get the same rating 
 
              irregardless of training, education, potential 
 
              employment.
 
         
 
              I feel that Ms. Arrowood's true disability is probably 
 
              in the nature of 70 to 75 percent.  She has a very, 
 
              very poor prognosis as far as finding a job.  She has 
 
              tremendous limitations for future insurability, both 
 
              health and life insurance, disability insurance.  As I 
 
              previously stated, the AMA guidelines is completely 
 
              ridiculous as far as I'm concerned.
 
         
 
         (Ex. 10, pp. 33 & 34)
 
         
 
              Dr. Rolek further elaborated as follows in response to a 
 
         question from defendants' counsel:
 
         
 
              Q.  Doctor, your indication of a 70 percent factor, 
 
              when you say in your opinion there's a 70 percent 
 
              factor here, you're referring to what?
 
         
 
              A.  Okay. I'm referring to going outside of the 
 
              AMA.guidelines and to consider not only the injury but 
 
              the potential employability of the individual in view 
 
              of their education, their family background, I take all 
 
              of the sociological factors and to give a rating.  The 
 
              AMA guidelines, as I stated, I think is completely 
 
              ludicrous, completely ridiculous.
 
         
 
         (Ex. 10, p. 36)
 
         
 
              Dr. Rolek testified that claimant should not lift over 20 to 
 
         25 pounds and should not do any prolonged standing or sitting at 
 
         work (Ex. 10, pp. 16 & 19).  Dr. Rolek said that the bulging disc 
 
         he discovered two years after the incident of October 10, 1983, 
 
         would be caused by the incident of October 10, 1983 unless, 
 
         claimant suffered some other injury that he was not aware of.  
 
         Dr. Rolek added that he was not aware of any other such injury 
 
         (Ex. 10, pp. 19 & 20).
 
         
 
              Dr. Rolek then testified that his records did not show that 
 
         claimant was involved in an automobile accident of June or July 
 
         of 1984 (Ex. 10, pp. 26 & 27).  Dr. Rolek conceded that his 
 
         opinion was based upon the fact that claimant had not sustained 
 
         any trauma after the injury of October 10, 1983 (Ex. 10, p. 29).  
 
         He added that if claimant had sustained other injuries from an 
 
         automobile accident, then these injuries could have caused the 
 
         bulging annulus (Ex. 10, p. 30).  Dr. Rolek did not think that 
 
         the pregnancy would have caused it (Ex. 10, p. 31).
 
         
 
              Claimant admitted that she was in an automobile accident on 
 
         August 9, 1984 at which time she rear ended the car in front of 
 
         her.  The 1976 Chevette that she was driving was a total loss and 
 
         had to be towed from the scene of the accident.  Claimant denied 
 
         that she was injured in this incident, but she stated that she 
 

 
         
 
         
 
         
 
         ARROWOOD V. VIVIAN LORTZ D/B/A/ MINI CARE CENTER
 
         PAGE  13
 
         
 
         
 
         did tell Dr. Rolek about the accident when she was in his office 
 
         on another matter.
 
         
 
              Claimant related that she did not return to work for 
 
         employer because Dr. Patrick told her to avoid this kind of work.  
 
         She added that Dr. Rolek told her to get off her feet and to get 
 
         a sitting job.  Claimant testified that she did sell Jafra 
 
         products about 11 months after her injury.  She grossed 
 
         approximately $200.00 per month and netted approximately $100.00 
 
         per month.  She worked four hours a day.  She carried a fifteen 
 
         pound case from the car to the customer's house and back to the 
 
         car again.  She was able to do it but it hurt her back to do so.  
 
         She added that she currently only takes reorders for Jafra and 
 
         only works about one hour every two weeks and earns about $10.00 
 
         per month.
 
         
 
              Defense counsel produced an advertising  flier  stating that 
 
         a person could earn $600.00 to $1,000.00 per month selling Jafra.  
 
         Claimant countered that this was misleading because only two 
 
         people in the United States were able to do that.  There was 
 
         speculation as to whether a person could earn up to $100,000.00 
 
         per year with Jafra.  Claimant testified that she only works on 
 
         Jafra as a hobby to get out of the house.  She stated that she 
 
         really didn't care to pursue it in the future.
 
         
 
              Claimant related that since the spring of 1986, she has been 
 
         employed at the Good Times Nursery School as a teacher's aid.  
 
         She watches children, helps with classes, sweeps, washes dishes 
 
         and helps in the kitchen for $3.35 per hour.  At first, she 
 
         worked six hours a day, five days a week.  However, she could not 
 
         put cots up and down, change the sheets on the cots or handle 
 
         trays of dishes.  The nursery school did not like these 
 
         limitations and did not call her anymore.  Currently she acts as 
 
         a substitute and watches kids and cleans up the kitchen.  She 
 
         works two and one-half hours per day, five days a week and earns 
 
         about $30.00 a month from this job.  Claimant said that she 
 
         also,does some light housekeeping work for private clients, but 
 
         is unable to do heavy housekeeping as in the past.
 
         
 
              Claimant admitted that she is not currently seeking 
 
         employment because she is nursing her second child.  She admitted 
 
         that in an earlier deposition she stated that she did not want to 
 
         work but preferred to be a homemaker and mother.  She added that 
 
         her present intention is that she wanted to be both a mother and 
 
         homemaker and return to work as soon as her children start 
 
         school.
 
         
 
              Claimant testified that she still has migraine headaches 
 
         that last from a few hours to a few days.  These headaches began 
 
         10 or 11 months after the injury.  Her back pain is more centered 
 
         in her spine and does not shoot down her leg now.  She feels that 
 
         the injury has adversely affected her emotionally and 
 
         psychologically.
 
         
 
              Claimant testified that she can no longer do yard work, 
 
         clean the car or lift her two year old child.  She has trouble 
 
         sleeping on a flat bed and she has had to purchase a water bed.  
 
         Her husband is a youth pastor and she can no longer help the kids 
 
         with the water slide or horseback riding.  Claimant granted that 
 

 
         
 
         
 
         
 
         ARROWOOD V. VIVIAN LORTZ D/B/A/ MINI CARE CENTER
 
         PAGE  14
 
         
 
         
 
         she did go with her husband and does assist him however, only on 
 
         the tasks which she feels that she is able to perform.
 
         
 
              Claimant testified that her ambitions were to become either 
 
         a registered nurse or a licensed practical nurse.  She had also 
 
         contemplated going to barber school to learn to cut hair.  She 
 
         had also envisioned being a beautician.  Since the injury, she 
 
         stated that she has not been able to perform the task that these 
 
         jobs require.  Now she hopes to study hospital administration at 
 
         the community college.
 
         
 
              Claimant testified that she applied for a job at Dahl's 
 
         grocery store and was told that since she had a back injury, she 
 
         would have a hard time finding a job there or anywhere else.
 
         
 
              Richard Arrowood, claimant's husband, testified that he is a 
 
         youth minister.  His wife assists him but she is now limited on 
 
         how much she can do.  She cannot go roller skating, ride on the 
 
         rides at Worlds of Fun or handle 10 to 12 kids at camp like she 
 
         used to do.  He now does the heavy work at home that she can no 
 
         longer do.  He said that claimant was emotionally and 
 
         psychologically changed since the injury.  She is more edgy and 
 
         snaps at him more.  He testified that ideally she would like to 
 
         stay home and care for the children, but financially "we decided" 
 
         that she has to work.
 
         
 
                           APPLICABLE LAW AND ANALYSIS
 
         
 
              The claimant has the burden of proving by a preponderance of 
 
         the evidence that the injury of October 10, 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.O. Boggs, 236 Iowa 296, 18 N.W.2d 607 (1945).  A 
 
         possibility is insufficient; a probability is necessary.  Burt v. 
 
         John Deere Waterloo Tractor Works, 247 Iowa 691, 73 N.w.2d 732 
 
         (1955).  The question of causal connection is essentially within 
 
         the domain of expert testimony.  Bradshaw v. Iowa Methodist 
 
         Hospital, 251 Iowa 375, 101 N.W.2d 167 (1960).
 
         
 
              However, expert medical evidence must be considered with all 
 
         other evidence introduced bearing on the causal connection.  
 
         Burt, 247 Iowa 691, 73 N.W.2d 732.  The opinion of experts need 
 
         not be couched in definite, positive or unequivocal language.  
 
         Sondag v. Ferris Hardware, 220 N.W.2d 903 (Iowa 1974).  However, 
 
         the expert opinion may be accepted or rejected, in whole or in 
 
         part, by the trier of fact.  Id. at 907.  Further, the weight to 
 
         be given to such an opinion is for the finder of fact, and that 
 
         may be affected by the completeness of the premise given the 
 
         expert and other surrounding circumstances.  Bodish, 257 Iowa 
 
         516, 133 N.W.2d 867.  See also Musselman v. Central Telephone 
 
         Co., 261 Iowa 352, 154 N.W.2d 128 (1967).
 
         
 
              As a claimant has an impairment to the body as a whole, an 
 
         industrial disability has been sustained.  Industrial disability 
 
         was defined in Diederich v. Tri-City Railway Co., 219 Iowa 587, 
 
         593, 258 N.W. 899, 902 (1935) as follows:  "It is therefore plain 
 
         that the legislature intended the term 'disability' to mean 
 
         'industrial disability' or loss of earning capacity and not a 
 
         mere 'functional disability' to be computed in the terms of 
 

 
         
 
         
 
         
 
         ARROWOOD V. VIVIAN LORTZ D/B/A/ MINI CARE CENTER
 
         PAGE  15
 
         
 
         
 
         percentages of the total physical and mental ability of a normal 
 
         man."
 
         
 
              Functional disability is an element to be considered in 
 
         determining industrial disability which is the reduction of 
 
         earning capacity, but consideration must also be given to the 
 
         injured employee's age, education, qualifications, experience and 
 
         inability to engage in employment for which he is fitted.  Olson 
 
         v. Goodyear Service Stores, 255 Iowa 1112, 1121 125 N.W.2d 251, 
 
         257 (1963).
 
         
 
              Claimant did establish that the injury was the-cause of 
 
         permanent disability.  Dr. Patrick said that claimant had a 
 
         lumbar strain associated with the incident at the nursing home 
 
         (Ex. 5, p. 1).  Dr. Rolek testified that the injury was the cause 
 
         of her present problem (Ex. 10, p. 13).
 
         
 
              Dr. Patrick awarded a permanent functional impairment rating 
 
         of five percent of the body as a whole.  He felt that claimant 
 
         could return to some type of work but recommended that the 
 
         nursing home may be something she should avoid.  He did not want 
 
         her to lift more than 30 pounds.  He added that any job should 
 
         avoid repetitive bending, stooping, lifting or twisting in any 
 
         amount (Ex. 5, p. 2; Ex. 6, p. 3; Ex. B, p. 4).
 
         
 
              Dr. Rolek initially awarded a 70 percent "disability rating" 
 
         (Ex. 9, pp. 1 & 2).  He then revised that downward to a 20 
 
         percent "disability rating" according to the AMA guidelines (Ex. 
 
         9, p. 4).  Then in his deposition he conceded that approximately 
 
         15 percent of his rating was for psychological and psychiatric 
 
         problems.  He admitted that going strictly by the AMA Guides, 
 
         claimant would be entitled to a five percent to eight percent 
 
         permanent functional impairment rating.
 
         
 
              Dr. Rolek clearly demonstrated that he was not aware of the 
 
         difference between medical impairment and disability as explained 
 
         in the preface to the Guides to Evaluation of Permanent 
 
         Impairment, second edition, published by the American Medical 
 
         Association beginning at page vii.  Dr. Rolek was apparently 
 
         assessing industrial disability which is beyond the scope of 
 
         medical expertise and which has statutorily been placed in the 
 
         province of the industrial commissioner.  Wright v. Walter Kidde 
 
         Co., Thirty-third Biennial Report of the Industrial Commissioner 
 
         237, 239 (Appeal Decision 1977).
 
         
 
              The brief of defendants' counsel addresses Dr. Rolek's 
 
         evaluation in the following words:O
 
         
 
                   Dr. Rolek as a family physician, and without any 
 
              special training in psychiatry or psychology, attempted 
 
              to ascribe a 15% impairment rating to Ms. Arrowood by 
 
              reason of psychiatric and psychological problems. (Dr.  
 
              Rolek deposition, p. 16, lines 7-15).  However, Dr. 
 
              Rolek's medical notes, Joint Exhibit 8, do not reflect 
 
              any reference to psychological or psychiatric problems 
 
              and Dr. Rolek provided no treatment or medication for 
 
              that condition.  In addition, Dr. Rolek indicated in 
 
              his deposition, p. 31 and 32, that he would provide a 
 
              written supplement indicating the portion of the AMA 
 

 
         
 
         
 
         
 
         ARROWOOD V. VIVIAN LORTZ D/B/A/ MINI CARE CENTER
 
         PAGE  16
 
         
 
         
 
              guidelines relied upon by him to render his opinion of 
 
              a 15% impairment based upon psychiatric or 
 
              psychological problems.  Dr. Rolek failed to provide 
 
              that supplement.  Dr. Rolek also testified at page 36 
 
              of his deposition that in his opinion the AMA 
 
              guidelines were "completely ludicrous, completely 
 
              ridiculous.O
 
         
 
         (Defendants' Brief, pp. 6 & 7)
 
         
 
              Dr. Rolek has failed to establish or substantiate any basis 
 
         for his opinion concerning psychiatric or psychological 
 
         conditions in Ms. Arrowood.  The claim filed by Ms. Arrowood in 
 
         this proceeding was for an injury to her back and at no time in 
 
         this hearing has Ms. Arrowood or anyone on her behalf presented 
 
         any reliable evidence to establish any psychiatric or 
 
         psychological problem that would be appropriate for compensation.  
 
         Ms. Arrowood has never requested or received any treatment or 
 
         medication for a psychiatric or psychological problem.
 
         
 
              So much of Dr. Rolek's testimony that ascribes five percent 
 
         or eight percent of permanent functional impairment for 
 
         claimant's back injury is accepted as reasonable and consistent 
 
         with the other evidence in the record.  This rating is accepted 
 
         even though he had no record or recollection of treating claimant 
 
         for the weightlifting back strain in 1982 for which claimant said 
 
         that he was the treating physician.  His rating is accepted even 
 
         though he had no knowledge of the automobile accident of August 
 

 
         
 
         
 
         
 
         ARROWOOD V. VIVIAN LORTZ D/B/A/ MINI CARE CENTER
 
         PAGE  17
 
         
 
         
 
         9, 1984, where claimant rear ended the car in front of her and 
 
         totaled out her own vehicle and had to be towed from the accident 
 
         scene and which resulted in approximately $1,000.00 damage to her 
 
         car.  Claimant denied that she was injured in this automobile 
 
         accident, but she testified that she did mention it to Dr. Rolek 
 
         when she saw him for another reason.
 
         
 
              Dr. Rolek's restrictions were similar to-those of Dr. 
 
         Patrick.  He thought it would be dangerous for claimant to lift 
 
         more than 20 to 25 pounds.  He added that she should not do any 
 
         prolonged sitting or standing at work (Ex. 10, pp. 16 & 19).  
 
         These restrictions are reasonable and comport with the other 
 
         evidence in the record.
 
         
 
              Dr. Adelman and Dr. Patrick offer the most  reasonable and 
 
         acceptable medical evidence.  Their opinions are supported by 
 
         x-rays, CT scans, a myelogram and an EMG performed shortly after 
 
         the injury occurred.  This evidence constitutes the greater 
 
         weight of the evidence.  It outweighs a CT scan performed two 
 
         years, one pregnancy and one automobile accident later.  Rockwell 
 
         Graphics Systems, Inc. v. Prince, 366 N.W.2d 187, 192.  
 
         Furthermore, Dr. Adelman is a neurologist and Dr. Patrick is an 
 
         orthopedic surgeon, whereas Dr. Rolek is a family practice 
 
         physician.  A doctor's expertise and board certification may 
 
         accord his testimony greater weight.  Reiland v. Palco, Inc., 
 
         Thirty-second Biennial Report of the Industrial Commissioner 56 
 
         (1975); Dickey v. ITT Continental Baking Co., Thirty-fourth 
 
         Biennial Report of the Industrial Commissioner 89 (1979).
 
         
 
              The operative phrase in industrial disability is  loss of 
 
         earning capacity.  Ver Steegh v. Rolscreen, IV Iowa Industrial 
 
         Commissioner Report 377 (1984).  At age 23, claimant is young 
 
         enough to be educated or trained in various remunerative 
 
         endeavors.  Conrad v. Marguette School Inc., IV Iowa Industrial 
 
         Commissioner Report 74, 78 (1984).  In fact, claimant had not yet 
 
         really established a career or a career pattern at the time of 
 
         this injury.  Her young age is in her favor and naturally reduces 
 
         her loss of earning capacity.  Walton v. B.T.H. Tank Co., II Iowa 
 
         Industrial Commissioner Report 426 (1981).
 
         
 
              Claimant is well educated for her age.  She  completed high 
 
         school with a B average.  She studied modeling at the community 
 
         college and the management training course for Jafra.  Claimant 
 
         previously felt capable to study to be a registered nurse or 
 
         licensed practical nurse or to become a barber or beautician.  
 
         She is bright, adaptable and versatile as evidenced by the varied 
 
         and numerous jobs that she has been able to do at her young age.
 
         
 
              There are many kinds of work that claimant is qualified to 
 
         do.  At the present time, she sells Jafra, tends children and 
 
         cleans homes.  Her sales skills and management skills are 
 
         transferable to many other lines and products.
 
         
 
              Claimant, however, is unable to engage in many of her former 
 
         employments, in particular, those that require lifting over 25 to 
 
         30 pounds.  This forecloses claimant to nursing home work and the 
 
         work usually performed by a nurse or a licensed practical nurse.  
 
         It should be stated however, that these latter jobs were only 
 
         aspirations.  Whether claimant could actually have become a 
 

 
         
 
         
 
         
 
         ARROWOOD V. VIVIAN LORTZ D/B/A/ MINI CARE CENTER
 
         PAGE  18
 
         
 
         
 
         registered nurse, licensed practical nurse, barber or beautician 
 
         is only speculative.  Stewart v. Crouse Cartage Co., File no. 
 
         738644 (Appeal Decision February 20, 1987).  The lifting 
 
         limitations as well as the other limitations about standing, 
 
         sitting, bending, stooping and twisting foreclose the claimant 
 
         from many kinds of jobs which require physical strength and 
 
         dexterity.  These kinds of jobs are usually the most plentiful.  
 
         For this reason, claimant has sustained a serious industrial 
 
         disability which is diminished only by her young age and 
 
         adaptability.  Michael v. Harrison County, Thirty-fourth Biennial 
 
         Report of Industrial Commissioner 218, 219 (1979); Rohrberg v. 
 
         Griffin Pipe Products Co., I Iowa Industrial Commissioner Report 
 
         282 (1981).
 
         
 
              The fact that claimant is not working at the present time 
 
         because she is nursing her second child, desires to mother her 
 
         young children and make a home for her husband and family, in no 
 
         way reduces her loss of earning capacity when she goes to seek 
 
         employment again when her children are in school.
 
         
 
              For all of the foregoing reasons and based upon all of the 
 
         factors that are used to evaluate industrial disability, it is 
 
         determined that claimant has sustained a 20 percent industrial 
 
         disability to the body as a whole.
 
         
 
              Claimant did not sustain the burden-of proof by a 
 
         preponderance of the evidence that her headaches were caused by 
 
         the injury of October 10, 1983.  Nor did claimant establish the 
 
         burden of proof by a preponderance of the evidence that she 
 
         sustained a psychological or psychiatric injury as a result of 
 
         the injury that occurred on October 10, 1983.
 
         
 
         
 
                                 FINDINGS OF FACT
 
         
 
              WHEREFORE, based upon the evidence presented the following 
 
         findings of fact are made:
 
         
 
              That both Dr. Patrick and Dr. Rolek indicated that the 
 
         injury of October 10, 1983 was the cause of permanent 
 
         impairment;
 
         
 
              That claimant is in fact permanently disabled;
 
         
 
              That Dr. Patrick rated claimant's permanent functional 
 
         impairment at five percent of the body as a whole.  That Dr. 
 
         Rolek indicated that claimant had sustained a five percent to 
 
         eight percent permanent impairment;
 
         
 
              That claimant is age 23, young, well educated and can pursue 
 
         many well compensated forms of employment;
 
         
 
              That claimant is foreclosed from performing nursing home 
 
         work or any work which requires lifting over 25 to 30 pounds; 
 
         and
 
         
 
              That claimant has sustained an industrial disability of 20 
 
         percent of the body as a whole.
 
         
 

 
         
 
         
 
         
 
         ARROWOOD V. VIVIAN LORTZ D/B/A/ MINI CARE CENTER
 
         PAGE  19
 
         
 
         
 
                                CONCLUSIONS OF LAW
 
         
 
              WHEREFORE, based upon the evidence presented and the 
 
         principles of law previously stated the following conclusions of 
 
         law are made:
 
         
 
              That claimant sustained the burden of proof by a 
 
         preponderance of the evidence that the injury of October 10, 1983 
 
         caused permanent disability;
 
         
 
              That claimant is entitled to 100 weeks of permanent partial 
 
         disability benefits as industrial disability based upon an 
 
         industrial disability of 20 percent of the body as a whole; and
 
         
 
              That claimant did not sustain the burden of proof by a 
 
         preponderance of the evidence that the injury of October 10, 1983 
 
         was the cause of her headaches or that it caused her to be 
 
         psychiatrically or psychologically injured.
 
         
 
                                      ORDER
 
         
 
              THEREFORE, IT IS ORDERED:
 
         
 
              That defendants pay to claimant one hundred (100) weeks of 
 
         permanent partial disability benefits at the rate of ninety-seven 
 
         and 13/100 dollars ($97.13) per week in the total amount of nine 
 
         thousand seven hundred thirteen dollars ($9,713.00) commencing on 
 
         December 14, 1984;
 
         
 
              That defendants are entitled to a credit for thirty-five 
 
         (35) weeks of permanent partial disability benefits paid to 
 
         claimant prior to hearing in the total amount of three thousand 
 
         three hundred ninety-nine and 55/100 dollars ($3,399.55);
 
         
 
              That defendants pay this amount in a lump sum;
 
         
 
              That interest will accrue pursuant to Iowa Code section 
 
         85.30;
 
         
 
              That defendants are to pay the costs of this action pursuant 
 
         to Division of Industrial Services Rule 343-4.33; and
 
         
 
              That defendants file claim activity reports as requested by 
 
         this agency pursuant of Division of Industrial Services Rule 
 
         343-3.1.
 
         
 
              Signed and filed this 29th day of July, 1988.
 
         
 
         
 
         
 
         
 
                                          WALTER R. McMANUS, JR.
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 

 
         
 
         
 
         
 
         ARROWOOD V. VIVIAN LORTZ D/B/A/ MINI CARE CENTER
 
         PAGE  20
 
         
 
         
 
         Copies to:
 
         
 
         Mr. Robert McKinney
 
         Attorney at Law
 
         480 6th St
 
         P.O. Box 209
 
         Waukee, Iowa  50263
 
         
 
         Mr. Thomas E. Leahy, Jr.
 
         Attorney at Law
 
         2222 Grand Ave
 
         P.O. Box 10434
 
         Des Moines, Iowa 50306
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                               1402.40: 1803
 
                                               Filed July 29, 1988
 
                                               WALTER R. McMANUS, JR.
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         JOHANNA ARROWOOD,
 
         
 
              Claimant,
 
         
 
         vs.
 
         
 
         VIVIAN LORTZ D/B/A
 
         MINI CARE CENTER,                      File No.  748373
 
         
 
              Employer,                      A R B I T R A T I 0 N
 
         
 
         and                                    D E C I S I 0 N
 
         
 
         STATE FARM INSURANCE/
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         
 
         1402.40, 1803
 
         
 
              Claimant, who injured her back lifting a patient in a 
 
         nursing home, was awarded a 20 percent industrial disability 
 
         based upon a permanent functional impairment rating of five 
 
         percent awarded by the employer's treating physician and also her 
 
         own independent medical examiner and personal physician.
 
 
 
         
 
 
         
 
 
 
 
 
 
 
 
 
 
 
         before the iowa industrial commissioner
 
         _________________________________________________________________
 
                                         :
 
         MARVIN E. COLLENTINE,           :
 
                                         :
 
              Claimant,                  :
 
                                         :
 
         vs.                             :
 
                                         :        File No. 748675
 
         E.N.T. ASSOCIATES,              :
 
                                         :          A P P E A L
 
              Employer,                  :
 
                                         :        D E C I S I O N
 
         and                             :
 
                                         :
 
         AETNA CASUALTY INSURANCE CO.,   :
 
                                         :
 
              Insurance Carrier,         :
 
              Defendants.                :
 
         _________________________________________________________________
 
         The record, including the transcript of the hearing before the 
 
         deputy and all exhibits admitted into the record, has been 
 
         reviewed de novo on appeal.  The decision of the deputy filed 
 
         June 14, 1991 is affirmed and is adopted as the final agency 
 
         action in this case.
 
         Defendants shall pay the costs of the appeal, including the 
 
         preparation of the hearing transcript.
 
         Signed and filed this ____ day of December, 1992.
 
         
 
         
 
         
 
         
 
                   ________________________________
 
                            BYRON K. ORTON
 
                       INDUSTRIAL COMMISSIONER
 
         
 
         Copies To:
 
         
 
         Mr. Greg A. Egbers
 
         Attorney at Law
 
         600 Union Arcade Bldg.
 
         111 East Third St.
 
         Davenport, Iowa 52801
 
         
 
         Mr. Thomas J. Shields
 
         Attorney at Law
 
         600 Davenport Bank Bldg.
 
         Davenport, Iowa 52801
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                          9998
 
                                          Filed December 21, 1992
 
                                          BYRON K. ORTON
 
                                          LPW
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
            _____
 
                                            :
 
            MARVIN E. COLLENTINE,           :
 
                                            :
 
                 Claimant,                  :
 
                                            :
 
            vs.                             :
 
                                            :        File No. 748675
 
            E.N.T. ASSOCIATES,              :
 
                                            :          A P P E A L
 
                 Employer,                  :
 
                                            :        D E C I S I O N
 
            and                             :
 
                                            :
 
            AETNA CASUALTY INSURANCE CO.,   :
 
                                            :
 
                 Insurance Carrier,         :
 
                 Defendants.                :
 
            ____________________________________________________________
 
            _____
 
            
 
            
 
            9998
 
            
 
                 Summary affirmance of deputy's decision filed June 14, 
 
            1991.
 
            
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         MARVIN E. COLLENTINE,
 
         
 
              Claimant,
 
                                                      File No. 748675
 
         VS.
 
         
 
         E.N.T. ASSOCIATES,                        A R B I T R A T I 0 N
 
         
 
              Employer,                               D E C I S I 0 N
 
         
 
         and
 
         
 
         AETNA CASUALTY & SURETY
 
         COMPANY
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
                                         
 
                                   INTRODUCTION
 
         
 
              This is a proceeding in arbitration brought by Marvin E. 
 
         Collentine, claimant, against E.N.T. Associates, employer, and 
 
         Aetna Casualty & Surety Company, insurance carrier, for the 
 
         recovery of benefits as a result of an alleged injury on 
 
         September 22, 1983.  This matter was heard before the undersigned 
 
         at the Bicentennial Building in Davenport, Scott County, Iowa, on 
 
         December 23, 1986.  It was considered fully submitted at the 
 
         conclusion of the hearing.  The record consists of the testimony 
 
         of claimant and Ellen K. Stebbens; and joint exhibits A through 
 
         M, and Cl through C7.
 
         
 
                             STIPULATIONS AND ISSUES
 
         
 
              Pursuant to the prehearing report filed by the parties, the 
 
         following stipulations were made:
 
         
 
              1.  On September 22, 1983, there was an employer-employee 
 
         relationship existing between the claimant and defendant.
 
         
 
              2.  On September 22, 1983, claimant suffered an injury 
 
         arising out of and in the course of his employment.
 
         
 
              3.  As a result of the injury, claimant suffered temporary 
 
         disability.
 
         
 
              4.  Claimant was off work as a result of his injury from
 
         September 27, 1983 through December 4, 1983.
 
         
 
              5.  Claimant's rate of compensation is $518 per week.
 

 
         
 
         
 
         
 
         COLLENTINE V. E.N.T. ASSOCIATES
 
         Page   2
 
         
 
         
 
         
 
              6.  All requested medical benefits have or will be paid by 
 
         defendants.
 
         
 
              7.  Claimant has been paid 75 weeks of permanent partial 
 
         disability benefits at his rate of $518.  Further, claimant has 
 
         been paid for all time off work.
 
         
 
              8.  Each party has actually paid the expenses which they 
 
         now assert as the cost of this action.
 
         
 
              The issues to be determined in this proceeding are whether 
 
         or not the injury suffered by claimant resulted in permanent 
 
         disability, the nature and extent of that disability, and 
 
         whether claimant is precluded from permanent disability as a 
 
         result of his return to work.
 
         
 
                               EVIDENCE PRESENTED
 
         
 
              Claimant testified that he is 54 years old.  He is employed 
 
         by E.N.T. Associates, P.C., as an otolaryngologist, which he said 
 
         is a subspecialty within the specialized field of ear, nose and 
 
         throat medicine.  Claimant said he attended the University of 
 
         Iowa from 1950 to 1957 when he graduated with a medical degree.  
 
         From 1958 to 1962 he served in the United States Navy as a flight 
 
         surgeon at Portsmouth Naval Hospital.  From 1962 to 1966, he 
 
         obtain specialized training in otolaryngology.  In 1966, he moved 
 
         to Iowa.  Claimant advised he is a board certified 
 
         otolaryngologist and is licensed to practice medicine in Iowa, 
 
         Wisconsin and Colorado.
 
         
 
              In addition to his employment with E.N.T. Associates, P.C., 
 
         claimant also works in his own medical practice, E.N.T. Allergy, 
 
         P.C. He said this practice was established in July 1984.
 
         
 
              Claimant recalled that he suffered his injury on September 
 
         22, 1983 following an ear operation on a large female patient.  
 
         Following the operation, claimant was assisting the operating 
 
         room Staff to remove the patient from the table when he felt a 
 
         sharp pain in his back.  He walked around for about half an hour 
 
         hoping the pain would subside.
 
         
 
              Claimant said he continued to work for about a month though 
 
         in considerable pain.  He sought physical therapy treatments from 
 
         the hospital physical therapist at Mercy Hospital.  Because of 
 
         continued pain and increasing severity of the pain, he consulted 
 
         Byron W. Rovine, M.D., a neurosurgeon.  Claimant reported that at 
 
         that time there was no way he could continue to function.
 
              
 
              Claimant stated that he had a CT scan the same day that he 
 

 
         
 
         
 
         
 
         COLLENTINE V. E.N.T. ASSOCIATES
 
         Page   3
 
         
 
         
 
         saw Dr. Rovine.  The doctor reported to the claimant that he 
 
         suffered a herniated disc and that surgery would be necessary if 
 
         conservative treatment was unsuccessful.  On November 4, 1983, 
 
         claimant had a myleogram which revealed a herniated disc and he 
 
         underwent a laminectomy immediately following.  Claimant reported 
 
         that the day following surgery he felt considerable relief.
 
         
 
              Claimant testified that he has continued to suffer symptoms 
 
         in the form of pain in the buttocks, leg and thigh.  He said the 
 
         pain is present on a daily basis, but is not continuous.  He said 
 
         the severity of the pain varies from day to day depending upon 
 
         his activities.
 
         
 
              Claimant stated that he no longer lifts patients and has 
 
         decreased the stooping and bending he has to do while on the job.  
 
         He has been able to return to jogging and within the past year 
 
         returned to playing golf.
 
         
 
              Claimant stated that since his injury he has attempted to 
 
         change the nature of his practice.  He said one of the reasons 
 
         for establishing E.N.T. Allergy, P.C., was to further this goal. 
 
          He stated, however, that he would earn more money as a surgeon 
 
         than as an allergy specialist.  Claimant outlined a number of 
 
         surgical procedures that he no longer engages in due to the time 
 
         involved.  For example, he advised that he no longer does 
 
         mastoidectomies which is a procedure that can take up to four to 
 
         six hours.  Claimant said he finds it difficult to sit for that 
 
         period of time, and due to the risk involved by his patients he 
 
         is unwilling to continue such practices and procedures.  He said 
 
         he has referred such patients to other doctors and word has 
 
         circulated in the medical community that he no longer does these 
 
         procedures, so he no longer receives referrals from other 
 
         physicians.  Claimant said he believed that the chronic back pain 
 
         has affected his mental attitude as well in that he no longer 
 
         desires to work as much as he did prior to the injury.
 
         
 
              On cross-examination, claimant stated that he did not 
 
         believe his skill has been reduced except to the extent that 
 
         skills are lost as a result of not doing procedures.  He 
 
         summarized by saying he simply does not feel as comfortable with 
 
         certain procedures as he did when his back was healthy.  Claimant 
 
         admitted that he has not advised any medical boards or hospitals 
 
         at which he has privileges that he no longer does certain types 
 
         of surgery.  He indicated, however, that he has discussed 
 
         changing his status from a Class IV to a Class II surgeon.  On 
 
         cross-examination, claimant explained in considerable detail 
 
         certain types of operative procedures which he now has 
 
         reservations about doing.
 
         
 
              On redirect examination, claimant said his income from 
 
         E.N.T. Associates will diminish as a result of the increased 
 
         amount of time he is devoting to his allergy practice.  He 
 
         added that he has referred some of the more lucrative 
 
         operative procedures to his partners because he no longer 
 
         feels as mentally or physically capable of doing those as 
 
         he was prior to his injury.
 
         
 
              Ellen K. Stebbens testified that she presently works for 
 
         E.N.T. Associates as the office manager.  As office manager, she 
 

 
         
 
         
 
         
 
         COLLENTINE V. E.N.T. ASSOCIATES
 
         Page   4
 
         
 
         
 
         maintains new patient accounts for each of the doctors in the 
 
         practice.  She explained her record keeping which is disclosed in 
 
         exhibit C. She further testified that claimant's patient load has 
 
         decreased at E.N.T. Associates since 1983.  She stated, however, 
 
         that that was not necessarily the case with E.N.T. Allergies.
 
         
 
              On rebuttal, claimant testified that prior to his injury as 
 
         senior associate of E.N.T., his earnings were greater than that 
 
         of his associates.  He said that since the injury his associates' 
 
         earnings have exceeded that of his own.
 
         
 
              John S. Koch, M.D., testified by way of deposition which was 
 
         submitted into the record as defendants' exhibit J. Dr. Koch 
 
         stated that he is an orthopedic surgeon practicing in Cedar 
 
         Rapids, Iowa.  He outlined his educational background and 
 
         expertise in the field.  He is licensed to practice medicine in 
 
         the states of Iowa and Wisconsin.
 
         
 
              Dr. Koch testified that he examined claimant in January 1986 
 
         for purposes of evaluating claimant's lower back difficulties.  
 
         Dr. Koch explained the nature of the back problem that claimant 
 
         had had and the medical treatment received by him in 1983.  Dr. 
 
         Koch explained that in evaluating a patient with a low back 
 
         difficulty, he uses different standards which include the Guides 
 
         For Evaluation of Permanent Impairment by the American Medical 
 
         Association, and Occupational Grading.  The doctor indicated that 
 
         he also utilizes his own professional experience in such 
 
         evaluations and incorporates therein such factors as general 
 
         physical makeup, age, prior disease or injuries, health patterns, 
 
         psychological factors, and economic features.  He said he also 
 
         considers the presence of insurance or litigation.  Dr. Koch said 
 
         that his first task in carrying out an examination of claimant 
 
         was an interview with claimant in which he obtained a history and 
 
         description of difficulties he was having at the time of the 
 
         examination.  The doctor said he conducted a physical examination 
 
         of claimant and discussed with him the activities in which 
 
         claimant had been involved since the injury.  Dr. Koch said that 
 
         he found claimant had virtually no limitation of the range of 
 
         motion in his back, and minimal pain on bending.  The doctor 
 
         reviewed in considerable detail his findings of the x-rays which 
 
         were supplied to him for examination.
 
         
 
              Based upon Dr. Koch's physical findings, claimant's ability 
 
         to return to work, the history relayed to the doctor by claimant, 
 
         and the result of the surgical procedure which claimant 
 
         underwent,
 
         the doctor said that he believes claimant suffered a five percent 
 
         permanent disability of the body as a whole as a result of the 
 
         injury of September 1983.  He indicated that with the passage of 
 
         years claimant would have increasing impairment as a result of 
 
         the continuing wear and tear process going on within his body.   
 
         The doctor also stated that based upon the examination and his 
 
         interviews of claimant, it was his opinion that claimant would be 
 
         able to resume his regular labor practices.  The doctor 
 
         specifically opined that he found nothing which would interfere 
 
         with claimant's ability to practice otolaryngology.
 
         
 
              On cross-examination, Dr. Koch stated that it was his 
 
         opinion that claimant suffered an injury to the L5-Sl disc in the 
 

 
         
 
         
 
         
 
         COLLENTINE V. E.N.T. ASSOCIATES
 
         Page   5
 
         
 
         
 
         incident that occurred in September 1983.  Included in the 
 
         deposition is deposition exhibit 1 which is a copy of the written 
 
         evaluation Dr. Koch performed on claimant.  In the written 
 
         report, the doctor says claimant suffered an aggravation of a 
 
         preexisting osteoarthritic condition as a result of the injury of 
 
         September 1983.  He also states that claimant would have a ten 
 
         percent disability, but taking into account his ability to resume 
 
         his regular practices, the doctor said he would consider 
 
         claimant, at most, five percent disabled.  Deposition exhibit 2 
 
         is page 30 of the manual published by the American Academy of 
 
         Orthopedic Surgeons relating to impairment of the low back.
 
         
 
              Byron W. Rovine, M.D., testified by way of deposition which 
 
         was admitted as exhibit K.  Dr. Rovine stated that he was a 
 
         specialist in neurological surgery practicing in Davenport, Iowa.  
 
         The doctor outlined his educational background and training.  He 
 
         is licensed to practice medicine in the states of Iowa and 
 
         Illinois.
 
         
 
              Dr. Rovine testified that he first treated claimant on 
 
         October 19, 1983.  Claimant presented to the doctor with 
 
         complaints of severe left sciatic pain following some heavy 
 
         lifting on September 22, 1983.  Dr. Rovine said he conducted a 
 
         physical examination of claimant at that time and concluded that 
 
         claimant required immediate hospitalization.  Additional 
 
         diagnostic testing was undertaken while claimant was hospitalized 
 
         and a diagnosis of herniated lumbar disc was made.  The doctor 
 
         said that conservative treatment was initiated, but this failed 
 
         to improve claimant's condition.
 
         
 
              Following the initial effort at conservative treatment, 
 
         claimant was readmitted to the hospital in early November 1983 
 
         and a myelogram confirmed a large defect at the L5-Sl disc.  
 
         Shortly thereafter, Dr. Rovine performed a bilateral laminectomy 
 
         at the L5-Sl level.  The doctor went on to outline the 
 
         postoperative treatment of claimant.  Dr. Rovine last saw 
 
         claimant as a patient on November 23, 1983.
 
         
 
              Dr. Rovine said he examined claimant for purposes of 
 
         evaluation of his condition on May 30, 1984.  Based upon the 
 
         examination and the Guides for Permanent Impairment of the AMA, 
 
         Dr. Rovine assigned claimant an impairment rating equal to 20 
 
         percent of the body as a whole.  He said the rating took into 
 
         account limited motion and residual neurological symptoms.
 
         
 
              On cross-examination, Dr. Rovine stated that the May 30, 
 
         1984 examination of claimant did not include a history of his 
 
         post surgery activity level.
 
         
 
              Maurice D. Schnell, M.D., testified by way of deposition 
 
         which was admitted as exhibit L.  Dr. Schnell testified that he 
 
         was a specialist in physical medicine and rehabilitation.  The 
 
         doctor explained his educational background and training.  Dr. 
 
         Schnell said he is licensed to practice medicine in Iowa, 
 
         Illinois and North Carolina.
 
         
 
              Dr. Schnell advised that he had had occasion to treat 
 
         claimant; his first contact with claimant being January 27, 1984.  
 
         Dr. Schnell had been asked to evaluate the status of claimant's 
 

 
         
 
         
 
         
 
         COLLENTINE V. E.N.T. ASSOCIATES
 
         Page   6
 
         
 
         
 
         back following the September 1983 injury and subsequent surgery. 
 
         He reviewed the history given to him by claimant as well as a 
 
         description of the symptoms claimant was suffering at that time.  
 
         Dr. Schnell also conducted a physical examination of claimant at 
 
         that time and explained in detail his findings.  As a result of 
 
         that examination, Dr. Schnell concluded that claimant had a 
 
         status post left hemilaminotomy with discectomy at the L5-S1 
 
         level; a mild residual low back discomfort secondary to back 
 
         strain and incomplete rehabilitation of the lumbar spine 
 
         post-operatively; there was, however, no evidence of acute lumbar 
 
         radiculopathy.  Dr. Schnell recommended that claimant initiate 
 
         graduated situp exercises, use proper body mechanics, and use an 
 
         analgesic for control of pain.
 
         
 
              Dr. Schnell testified that he last saw claimant on May 23, 
 
         1984 at which time he performed an evaluation of claimantOs 
 
         permanent impairment.  The doctor said that he utilized the 
 
         Manual For Orthopedic Surgeons in Evaluating Permanent Physical 
 
         Impairment and arrived at an impairment rating of 20 percent of 
 
         the body as a whole. He explained the various factors which he 
 
         considered in arriving at this rating which included continued 
 
         pain in the low back and buttock, absent left ankle jerk, 
 
         infrequent use of pain medication, and some degree of limited 
 
         function.  Dr. Schnell added that even though claimant had 
 
         resumed a number of activities since his May 1984 examination,he 
 
         did not believe the impairment rating should be reduced.
 
         
 
              Joint exhibit M is a copy of the deposition testimony of 
 
         claimant.  A review of this deposition discloses no significant 
 
         inconsistencies with claimantOs testimony at hearing.
 
              
 
              Joint exhibit A is a copy of the written report of Dr. Koch 
 
         which was reviewed as a part of his testimony in exhibit J.  
 
         Joint exhibit B is a written report concerning claimant dated 
 
         September 7, 1984 and authored by Vijay Verma, M.D.  Dr. Verma 
 
         reviews claimant's history and sets forth his findings on 
 
         examination.  Utilizing the AMA Guides, Dr. Verma assessed 
 
         claimant a 10 percent body as a whole impairment as a result of 
 
         the injury.
 
         
 
              Joint exhibit E is a copy of the office notes of Dr. 
 
         Schnell, the substance of which was adequately discussed by the 
 
         doctor in his deposition (see exhibit L).  Exhibit F is a 
 
         surgeon's report form signed by Dr. Schnell dated May 25, 1984 
 
         which reports the doctor's assessment of claimant's impairment.  
 
         Exhibit G is a May 30, 1984 report from Dr. Rovine which assesses 
 
         claimant as having a 20 percent whole man impairment.  Exhibits H 
 
         and I are copies of Mercy Hospital records which report the 
 
         results of a CT scan and myelogram performed on claimant in 
 
         October and November 1983.  These reports establish that claimant 
 
         was suffering from a herniated disc at L5-Sl.
 
         
 
              Exhibits Cl through C7 are various records concerning 
 
         claimant's job activities both prior to and subsequent to his 
 
         injury.  Cl sets forth the new patient count for claimant for the 
 
         years 1982 through 1985.  According to that exhibit, claimant had 
 
         1,063 new patients at E.N.T. Associates in 1982; 841 in 1983; 
 
         1,003 in 1984; and, 803 in 1985.  Exhibit C2 sets forth the 
 
         number of surgical procedures performed by claimant for the same 
 
         period of time as set forth in Exhibit Cl.  This exhibit 
 

 
         
 
         
 
         
 
         COLLENTINE V. E.N.T. ASSOCIATES
 
         Page   7
 
         
 
         
 
         discloses that in 1982 claimant performed 475 operative 
 
         procedures; in 1983, 409; in 1984, 365; and, in 1985, 340.  The 
 
         exhibit also sets forth the specific nature of each of these 
 
         operative procedures.  Exhibit C3 outlines the gross receipts 
 
         produced by claimant at E.N.T. Associates for the years 
 
         1982-1985.  Those receipts are shown to be as follows: 1982 - 
 
         $206,114; 1983 $224,545; 1984 - $220,172.94; 1985 - $227,277.02.
 
         
 
              Exhibits C4 and C5 are records concerning claimant's 
 
         activities at E.N.T. Allergy, P.C.  From July 1, 1984 through 
 
         December 31, 1984, claimant attended 368 patients and for the 
 
         year 1985 attended 716 patients.  C5 sets forth the monthly 
 
         record of new patients seen by claimant for the same period of 
 
         time which total 302.
 
         
 
              Exhibits C6 and C7 reflect claimant's gross receipt, 
 
         consultations and surgical procedures for 1986 from January 
 
         through November.  Gross receipts over that period total 
 
         $171,523.30.  He attended approximately 1,945 patients.
 
         
 
              Finally, exhibit D contains claimant's federal income tax 
 
         returns for the years from 1979 through 1985.  A review of 
 
         claimant's wage income for those years shows a marked decrease
 
         commencing in 1984 from E.N.T. Associates.  There is, however, a 
 
         corresponding increase from E.N.T. Allergy, P.C.
 
         
 
                           APPLICABLE LAW AND ANALYSIS
 
         
 

 
         
 
         
 
         
 
         COLLENTINE V. E.N.T. ASSOCIATES
 
         Page   8
 
         
 
         
 
              Claimant has established that he suffered permanent 
 
         disability as a result of his injury.  Although impairment and 
 
         disability are not synonymous, the existence of impairment 
 
         indicates disability.  In this case it is evident that the 
 
         claimant has had to change, and in some cases, limit, his 
 
         practice to accommodate his physical impairment.  The mere fact 
 
         that he was able to return to work for the same employer does not 
 
         mean no disability has been experienced.  The difficult question 
 
         is not whether he has suffered disability, but the extent of 
 
         disability suffered.
 
         
 
              Functional disability is an element to be considered in 
 
         determining industrial disability which is the reduction of 
 
         earning capacity, but consideration must also be given to the 
 
         injured employee's age, education, qualifications, experience and 
 
         inability to engage in employment for which he is fitted.  Olson 
 
         v. Goodyear Service Stores, 255 Iowa 1112, 125 N.W.2d 251 (1963).  
 
         Barton v. Nevada Poultry, 253 Iowa 285, 110 N.W.2d 660 (1961).
 
         
 
              A finding of impairment to the body as a whole found by a 
 
         medical evaluator does not equate to industrial disability.  This 
 
         is so as impairment and disability are not synonymous.  Degree of 
 
         industrial disability can in fact be much different than the 
 
         degree of impairment because in the first instance reference is 
 
         to loss of earning capacity and in the later to anatomical or 
 
         functional abnormality or loss.  Although loss of function is to 
 
         be considered and disability can rarely be found without it, it 
 
         is not so that a degree of industrial disability is 
 
         proportionally related to a degree of impairment of bodily 
 
         function.
 
         
 
              Factors to be considered in determining industrial 
 
         disability include the employee's medical condition prior to the 
 
         injury, immediately after the injury, and presently; the situs of 
 
         the injury, its severity and the length of healing period; the 
 
         work experience of the employee prior to the injury, after the 
 
         injury and potential for rehabilitation; the employee's 
 
         qualifications intellectually, emotionally and physically; 
 
         earnings prior and subsequent to the injury; age; education; 
 
         motivation; functional impairment as a result of the injury; and 
 
         inability because of the injury to engage in employment for which 
 
         the employee is fitted.  Loss of earnings caused by a job 
 
         transfer for reasons related to the injury is also relevant.  
 
         These are matters which the finder of fact considers collectively 
 
         in arriving at the determination of the degree of industrial 
 
         disability.
 
         
 
              There are no weighting guidelines that indicate how each of 
 
         the factors is to be considered.  There are no guidelines which
 
         give, for example, age a weighted value of ten percent of the 
 
         total value, education a value of fifteen percent of total, 
 
         motivation - five percent; work experience - thirty percent, etc.  
 
         Neither does a rating of functional impairment directly correlate 
 
         to a degree of industrial disability to the body as a whole.  In 
 
         other words, there are no formulae which can be applied and then 
 
         added up to determine the degree of industrial disability.  It 
 
         therefore becomes necessary for the deputy or commissioner to 
 
         draw upon prior experience, general and specialized knowledge to 
 
         make the finding with regard to degree of industrial disability. 
 

 
         
 
         
 
         
 
         COLLENTINE V. E.N.T. ASSOCIATES
 
         Page   9
 
         
 
         
 
          See Peterson v. Truck Haven Cafe, Inc., (Appeal Decision, 
 
         February 28, 1985); Christensen v. Hagen, Inc., (Appeal Decision, 
 
         March 26, 1985).
 
         
 
              For example, a defendant employer's refusal to give any sort 
 
         of work to a claimant after he suffers his affliction may justify 
 
         an award of disability.  McSpadden v. Big Ben Coal Co., 288 
 
         N.W.2d 181 (Iowa 1980).
 
         
 
              Similarly, a claimant's inability to find other suitable 
 
         work after making bona fide efforts to find such work may 
 
         indicate that relief would be granted.  McSpadden v. Big Ben Coal 
 
         Co., supra.
 
         
 
              Much of the evidence submitted in this case centers around 
 
         the functional impairment rating assigned to the claimant.  This, 
 
         however, is but one of the several factors which are considered 
 
         in assessing disability.  The lowest rating, assigned by Dr. 
 
         Koch, would appear to take into account many factors which relate 
 
         to disability rather than impairment.  Considerations such as 
 
         claimant's age, education and work experience are properly the 
 
         province of the industrial commissioner.  Consequently, Dr. 
 
         Koch's opinion is given less weight than that of those doctors 
 
         who limited their assessment to the physical impact of claimant's 
 
         injury.  Those physicians establish an impairment rating of 10 to 
 
         20 per cent.  The record as a whole indicates that claimant 
 
         received, on the whole, a good result from the surgery on his 
 
         back.
 
         
 
              Unfortunately, there is little evidence of the physical 
 
         limitations suffered by claimant beyond functional impairment.  
 
         Lifting, bending, twisting, standing and sitting limitations are 
 
         not clearly stated.  It would appear that claimant has been able 
 
         to assess such limitations on his own.  There is not the 
 
         slightest suggestion or indication that claimant imposes on 
 
         himself any unjustified limitation.  Claimant was at all times 
 
         clear and forthright about his physical problems and did not at 
 
         any time appear to exaggerate his symptoms.
 
         
 
              The ultimate question is the extent to which claimant has 
 
         demonstrated a loss of future earning capacity.  Looking at the 
 
         factors of industrial disability as set forth above, it would at 
 
         first glance appear that claimant has suffered little loss.  He 
 
         is highly educated, articulate, excellently motivated and has 
 
         returned to work for the same employer.  There is, however, 
 
         considerable question as to whether claimant has or can return to 
 
         substantially similar employment.
 
         
 
              Office records from E.N.T. Associates support claimant's 
 
         contention that he has reduced his surgical practice since his 
 
         injury.  Claimant asserts that this reduction is the result of 
 
         his injury.  In essence, although he could physically continue to 
 
         perform, he has made a professional judgment that,it is neither 
 
         in his nor in his patients' best interests that he continue the 
 
         same type of practice as he had prior to the injury.  The 
 
         claimant's professional judgment in this matter is given 
 
         considerable weight.  There is absolutely nothing to indicate 
 
         that this judgment call by the claimant is motivated by any other 
 
         factor than dedication to his chosen profession.
 

 
         
 
         
 
         
 
         COLLENTINE V. E.N.T. ASSOCIATES
 
         Page  10
 
         
 
         
 
         
 
              Claimant has undertaken the establishing of a new medical 
 
         practice which will allow him to continue to practice in the 
 
         general field of his specialty, but excluding long surgical 
 
         procedures.   It would appear he is achieving success at this, 
 
         but it remains his contention that his earnings will suffer 
 
         substantially.  This does not appear to be evident at this time, 
 
         however.
 
         
 
              Based upon the record as a whole and all factors relevant to 
 
         industrial disability, claimant has established an industrial 
 
         disability of 20% of the body as a whole.
 
         
 
                                 FINDINGS OF FACT
 
         
 
              WHEREFORE, IT IS FOUND:
 
         
 
              1.  On September 22, 1983, claimant suffered a herniated 
 
         intervertebral disc at L5-Sl when he moved a patient off the 
 
         operating table.
 
         
 
              2.  As a result of his injury, claimant was off work from 
 
         September 27, 1983 to December 5, 1983.
 
         
 
              3.  As a result of his injury, claimant suffered permanent 
 
         physical impairment of 10 to 20 per cent.
 
         
 
              4.  Claimant is well educated, highly motivated and 
 
         intelligent.
 
         
 
              5.  Claimant has undertaken changing the nature of his 
 
         medical practice as a result of his injury.
 
         
 
         
 
         
 
              6.  Claimant has reduced the surgical portion of his 
 
         practice as a result of his injury.
 
         
 
              7.  Claimant is credible.
 
         
 
              8.  Claimant's rate of compensation is $518.
 
         
 
              9.  Claimant has been previously paid all healing period 
 
         benefits and 75 weeks of permanent partial disability benefits.
 
         
 
             10.  As a result of his injury,, claimant has suffered an 
 
         industrial disability equal to 20 per cent of the body as a 
 
         whole.
 
         
 
                                CONCLUSIONS OF LAW
 
         
 
              IT IS THEREFORE CONCLUDED that claimant has proven, by a 
 
         preponderance of the evidence, that he suffered an industrial 
 
         disability equal to 20% of the body as a whole as a result of his 
 
         injury of September 22, 1983.
 
         
 
                                      ORDER
 
         
 
              IT IS THEREFORE ORDERED that defendants pay unto claimant 
 

 
         
 
         
 
         
 
         COLLENTINE V. E.N.T. ASSOCIATES
 
         Page  11
 
         
 
         
 
         one hundred (100) weeks of permanent partial disability at his 
 
         rate of five hundred eighteen dollars ($518.00) commencing 
 
         December 5, 1983.  Defendants shall be given credit for 
 
         seventy-five (75) weeks of permanent partial disability 
 
         previously paid.  All accrued benefits shall be paid in a lump 
 
         sum together with interest.
 
         
 
              Costs are taxed to defendants.
 
         
 
         
 
         
 
              Signed and filed  this 22nd day of June, 1987.
 
         
 
         
 
         
 
         
 
         
 
         
 
                                        STEVEN E. ORT
 
                                        DEPUTY INDUSTRIAL COMMISSIONER
 
                           
 
                        
 
         
 
         Copies To:
 
         
 
         Mr. Greg Egbers
 
         Attorney at Law
 
         600 Union Arcade Building
 
         Davenport, Iowa 52801
 
         
 
         Mr. Raymond R. Stefani
 
         Mr. Raymond R. Stefani II
 
         Attorneys at Law
 
         200 American Building
 
         101 Second Street SE
 
         Cedar Rapids, Iowa 52401
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                                   1402.40, 1803
 
                                                   Filed June 22, 1987
 
                                                   STEVEN E. ORT
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         MARVIN E. COLLENTINE,
 
         
 
              Claimant,                              File No. 748615
 
         VS.
 
         
 
         E.N.T. ASSOCIATES,                       A R B I T R A T I 0 N
 
         
 
              Employer,                              D E C I S I 0 N
 
         
 
         and
 
         
 
         AETNA  CASUALTY & SURETY
 
         CCMPANY,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         
 
         
 
         1402.40, 1803
 
         
 
              Sole issue in this case was the extent of permanent partial 
 
         disability suffered by an otolaryngologist when he herniated a 
 
         disc moving a patient off the operating table.  The doctor 
 
         maintained that, even though he had a good result from surgery, 
 
         residual pain made him uncomfortable doing microscopic surgery.  
 
         Doctor's professional concerns were given great weight.  He was 
 
         now limiting practice to allergies which is less lucrative than 
 
         surgery.  Twenty percent PPD awarded.
 
 
 
         
 
         
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            MARVIN E. COLLENTINE,         :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :      File No.  748675
 
            E.N.T. ASSOCIATES,            :
 
                                          :        R E V I E W -                  
 
            :      
 
                 Employer,                :      R E O P E N I N G
 
                                          :      
 
            and                           :       D E C I S I O N
 
                                          :
 
            AETNA CASUALTY INSURANCE CO., :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
            
 
                              STATEMENT OF THE CASE
 
            
 
                 This is a proceeding in review-reopening brought by 
 
            Marvin E. Collentine, claimant, against E.N.T Associates, 
 
            employer, and Aetna Casualty Insurance Company, insurance 
 
            carrier, defendants, for recovery of further workers' com
 
            pensation benefits as a result of an injury on September 22, 
 
            1983.  A prior arbitration decision for this injury was 
 
            filed by this agency on June 22, 1987.  As no appeal was 
 
            taken from this decision, it constitutes the last final 
 
            agency decision on this matter.  On April 10, 1991, a 
 
            hearing was held on claimant's petition for review-reopening 
 
            and the matter was considered fully submitted at the close 
 
            of this hearing.
 
            
 
                 The parties have submitted a prehearing report of 
 
            contested issues and stipulations which was approved and ac
 
            cepted as a part of the record of this case at the time of 
 
            hearing.  The oral testimony and written exhibits offered 
 
            and received during the hearing are set forth in the hearing 
 
            transcript.
 
            
 
                                      issues
 
            
 
                 The parties submitted the following issues for determi
 
            nation in this proceeding:
 
            
 
                 I.  Whether claimant suffered a change of condition re
 
            lated to the original injury since that last arbitration 
 
            award; and
 
            
 
                 II.  The extent of claimant's entitlement to additional 
 
            permanent disability benefits.
 
            
 
                                 findings of fact
 
            
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
                 Having heard the testimony and considered all the 
 
            evidence, the deputy industrial commissioner finds as 
 
            follows:
 
            
 
                 A review of the prior arbitration award decision in 
 
            1987, indicates that claimant is a board certified 
 
            otolaryngologist.  He suffered his work injury on September 
 
            22, 1983, while attempting to lift a patient from an operat
 
            ing table.  This injury was diagnosed and treated as herni
 
            ated disc in the lower spine.  The injury left claimant with 
 
            significant permanent partial impairment.  When the injury 
 
            occurred, claimant was employed by E.N.T. Associates, a 
 
            professional corporation (P.C.).  At the time of the injury, 
 
            claimant was one of the professional stockholders or owners 
 
            of E.N.T. Associates.  At the time of the injury, E.N.T. 
 
            Associates was insured by Aetna for workers' compensation 
 
            injuries suffered by employees.  The employee-employer rela
 
            tionship between claimant and E.N.T. Associates has never 
 
            been in dispute.
 
            
 
                 At the prior arbitration hearing and in the hearing in 
 
            this case, claimant explained he was compelled by his 
 
            professional standards to reduce his involvement in oto
 
            laryngologist surgeries.  These surgeries, especially the 
 
            microsurgeries, are by their nature very delicate and 
 
            demanding upon a surgeon's physical abilities to remain very 
 
            still and motionless for extended periods of time.  It is 
 
            also very important in these surgeries that the surgeon's 
 
            concentration not be distracted by pain.  The procedure 
 
            often utilizes microscopic equipment and tools in close 
 
            proximity to vital nerves and organs of the body which if 
 
            injured can have a disastrous effect.
 
            
 
                 In an effort at self-vocational rehabilitation, prior 
 
            to the last arbitration hearing, the doctor had engaged in 
 
            the process of changing his practice from surgery to treat
 
            ment of allergies.  He began his own separate professional 
 
            corporation, E.N.T. Allergy Associates in 1984.  Since that 
 
            time, claimant's involvement in otolaryngology surgeries 
 
            have dwindled.  At the prior hearing, claimant alleged that 
 
            his change of practice would have a significant impact upon 
 
            his earning capacity.  
 
            
 
                 The following excerpts from the arbitration decision of 
 
            June 22, 1987, is important to this decision and shall be 
 
            set forth below.
 
            
 
                    The ultimate question is the extent to which 
 
                 claimant has demonstrated a loss of future earning 
 
                 capacity.  Looking at the factors of industrial 
 
                 disability as set forth above, it would at first 
 
                 glance appear that claimant has suffered little 
 
                 loss.  He is highly educated, articulate, excel
 
                 lently motivated and has returned to work for the 
 
                 same employer.  There is, however, considerable 
 
                 question as to whether claimant has or can return 
 
                 to substantially similar employment.
 
            
 
                    Office records from E.N.T. Associates support 
 
                 claimant's contention that he has reduced his sur
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
                 gical practice since his injury.  Claimant asserts 
 
                 that this reduction is the result of his injury.  
 
                 In essence, although he could physically continue 
 
                 to perform, he has made a professional judgment 
 
                 that it is neither in his nor in his patient's 
 
                 best interests that he continue the same type of 
 
                 practice as he had prior to the injury.  The 
 
                 claimant's professional judgment in this matter is 
 
                 given considerable weight.  There is absolutely 
 
                 nothing to indicate that this judgement call by 
 
                 the claimant is motivated by any other factor than 
 
                 dedication to his chosen profession.
 
            
 
                    Claimant has undertaken the establishing of a 
 
                 new medical practice which will allow him to con
 
                 tinue to practice in the general field of his 
 
                 specialty, but excluding long surgical procedures.  
 
                 It would appear he is achieving success at this, 
 
                 but it remains his contention that his earnings 
 
                 will suffer substantially.  This does not appear 
 
                 to be evident at this time, however. (emphasis 
 
                 added).
 
            
 
                 Following this above analysis, it was found in the pre
 
            vious arbitration decision that as a result of the work 
 
            injury, claimant was compelled to change the nature of his 
 
            practice by reducing the more complicated forms of surgery 
 
            which aggravated his back problems.  At that time, claimant 
 
            had not ended entirely, his surgical involvement.  Claimant 
 
            was then found to have suffered a 20 percent loss of earning 
 
            capacity as a result of the injury.  
 
            
 
                 With reference to the current claim in review-reopen
 
            ing, it is found that claimant has suffered a significant 
 
            nonphysical change of condition since that last arbitration 
 
            decision by being compelled to end entirely his surgical 
 
            practice.  Furthermore, he has suffered a much greater loss 
 
            of earning capacity than was anticipated at the prior hear
 
            ing.  As noted in the last hearing, claimant continues to be 
 
            intelligent, articulate and highly credible.  Claimant ex
 
            plained that he ended all of his surgery practice in May of 
 
            1987 due to his back problems caused by the original injury.  
 
            In the prior proceeding, claimant had felt that he could 
 
            maintain some surgery practice, but after the arbitration 
 
            decision he found that this was not possible.  He simply is 
 
            unable to maintain the correct position for the surgery and 
 
            to maintain the type of concentration needed due to back 
 
            pain that is required by his patient's and the demands of 
 
            profession.  Claimant explained that in his patient's best 
 
            interests, he was compelled to discontinue surgery 
 
            altogether.  As was the case in the last agency decision, 
 
            this deputy commissioner gives considerable weight to the 
 
            claimant's professional judgment and again there is abso
 
            lutely nothing in the record to suggest that this judgment 
 
            call by the claimant is motivated by any other factor then 
 
            dedication to his chosen profession.
 
            
 
                 Claimant has now completely ended his relationship with 
 
            E.N.T. Associates.  Claimant explained that due to the 
 
            surgery practice of his former associates, the cost of mal
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            practice insurance of E.N.T. Associates has greatly in
 
            creased.  As claimant was no longer engaged in performing 
 
            surgeries, there was no need for him to remain with E.N.T. 
 
            Associates and share in the increased costs.  Therefore, he 
 
            left the association.
 
            
 
                 Furthermore, as noted by the deputy commissioner in the 
 
            previous arbitration decision in 1987, claimant's claim of a 
 
            significant loss in income was not "evident at this time."  
 
            However, as a result of the claimant's inability to perform 
 
            any surgery, claimant's current actual earnings are more 
 
            than 50 percent less than the calendar year 1986, the last 
 
            full year of earnings prior to the 1987 arbitration deci
 
            sion.  Claimant states that his former associates, who still 
 
            perform surgery, earn almost four times his current income.  
 
            Defendants argue that claimant is the owner of his own 
 
            professional corporation and sets his own salary and work 
 
            schedule and any claim of loss of earnings is his own 
 
            making.  However, defendants failed to offer any evidence to 
 
            suggest that the income figures set forth in exhibit B are 
 
            bogus or unrealistic.
 
            
 
                 The claimant is not sandbagging his draw from his own 
 
            P.C.  Claimant's testimony that these are real earnings is 
 
            credible and uncontroverted.  Claimant has demonstrated that 
 
            he has made every reasonable effort to enlarge his current 
 
            practice and increase his earnings with the use of mailers 
 
            and new brochures.  However, as credibly explained by Dr. 
 
            Collentine, fees generated by an allergy practice are simply 
 
            considerably less than surgical fees.  The risks are less as 
 
            well as the fees.   Along with the reduced physical demands 
 
            in the allergy practice, the doctor is compelled to accept a 
 
            reduced income.  Defendants also suggest that claimant's age 
 
            of 58 years provides an independent desire to retire from a 
 
            demanding surgical practice and this has caused his 
 
            reductions in earnings.  Again, this is only speculation by 
 
            the defense and offered no credible evidence to suggest 
 
            there was any desire to end surgery practice apart from 
 
            claimant's work injury.
 
            
 
                 Therefore, it is found that as a result of the change 
 
            of condition, claimant has suffered an additional 40 percent 
 
            loss of earning capacity as a result of his injury of 
 
            September 22, 1983, since the last arbitration award of June 
 
            22, 1987.
 
            
 
                                conclusions of law
 
            
 
                 I.  In a review-reopening proceeding, claimant has the 
 
            burden of establishing by a preponderance of the evidence 
 
            that he suffered a change of condition or a failure to 
 
            improve as medically anticipated as a proximate result of 
 
            his original injury, subsequent to the date of the award or 
 
            agreement for compensation under review, which entitles him 
 
            to additional compensation.  Deaver v. Armstrong Rubber Co., 
 
            170 N.W.2d 455 (Iowa 1969); Meyers v. Holiday Inn of Cedar 
 
            Falls, Iowa, Iowa App., 272 N.W.2d 24 (1978).  Such a condi
 
            tion is not limited to a physical change of condition.  A 
 
            change in earning capacity subsequent to the original award 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            which is proximately caused by the original injury also con
 
            stitutes a change of condition under Iowa Code section 
 
            85.26(2) and Iowa Code section 86.14(2).  See McSpadden v. 
 
            Big Ben Coal Co., 288 N.W.2nd 181 (Iowa 1980); Blacksmith v. 
 
            All American, Inc., 290 N.W.2d 348 (Iowa 1980).
 
            
 
                 II. A disability to the body as a whole or an 
 
            "industrial disability" is a loss of earning capacity 
 
            resulting from the work injury.  Diederich v. Tri-City 
 
            Railway Co., 219 Iowa 587, 593, 258 N.W. 899 (1935).  A 
 
            physical impairment or restriction on work activity may or 
 
            may not result in such a loss of earning capacity.  The ex
 
            tent to which a work injury and a resulting medical condi
 
            tion has resulted in an industrial disability is determined 
 
            from examination of several factors.  These factors include 
 
            the employee's medical condition prior to the injury, 
 
            immediately after the injury and presently; the situs of the 
 
            injury, its severity and the length of healing period; the 
 
            work experience of the employee prior to the injury, after 
 
            the injury and potential for rehabilitation; the employee's 
 
            qualifications intellectually, emotionally and physically; 
 
            earnings prior and subsequent to the injury; age; education; 
 
            motivation; functional impairment as a result of the injury; 
 
            and inability because of the injury to engage in employment 
 
            for which the employee is fitted.  Loss of earnings caused 
 
            by a job transfer for reasons related to the injury is also 
 
            relevant.  Olson v. Goodyear Service Stores, 255 Iowa 1112, 
 
            1121, 125 N.W.2d 251, 257 (1963).  See Peterson v. Truck 
 
            Haven Cafe, Inc., (Appeal Decision, February 28, l985).
 
            
 
                 In the case sub judice, it was found that claimant 
 
            suffered an additional 40 percent loss of his earning 
 
            capacity over and above the disability found in the original 
 
            arbitration award of 1987.  Based upon such a finding, 
 
            claimant is entitled as a matter of law to an additional 200 
 
            weeks of permanent partial disability benefits under Iowa 
 
            Code section 85.34(2)(u) which is 40 percent of 500 weeks, 
 
            the maximum allowable for an injury to the body as a whole 
 
            in that subsection.  Benefits are awarded in review-
 
            reopening awards from the date of the award.
 
            
 
                                      order
 
            
 
                 1.  Defendants shall pay to claimant two hundred (200) 
 
            weeks of permanent partial disability benefits at the rate 
 
            of five hundred eighteen dollars ($518.00) per week from the 
 
            date of this decision.
 
            
 
                 2.  Defendants shall pay interest on weekly benefits 
 
            awarded herein as set forth in Iowa Code section 85.30.
 
            
 
                 3.  Defendants shall pay the costs of this action 
 
            pursuant to rule 343 IAC 4.33, including reimbursement to 
 
            claimant for any filing fee pain in this matter.
 
            
 
                 4.  Defendants shall file activity reports upon payment 
 
            of this award as requested by this agency pursuant to rule 
 
            343 IAC 3.1.
 
            
 
                 Signed and filed this ____ day of June, 1991.
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            
 
            
 
                                          ______________________________
 
                                          LARRY P. WALSHIRE
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies to:
 
            
 
            Mr Greg A. Egbers
 
            Attorney at Law
 
            600 Union Arcade Bldg
 
            111 E. Third St
 
            Davenport IA 52801-1596
 
            
 
            Mr Thomas J Shields
 
            Attorney at Law
 
            600 Davenport Bank Bldg
 
            Davenport IA 52801
 
            
 
            
 
                 
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                      2905; 1803
 
                      Filed June 14, 1991
 
                      Larry P. Walshire
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            MARVIN E. COLLENTINE,         :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :      File No.  748675
 
            E.N.T. ASSOCIATES,            :
 
                                          :        R E V I E W -                  
 
            :      
 
                 Employer,                :      R E O P E N I N G
 
                                          :      
 
            and                           :       D E C I S I O N
 
                                          :
 
            AETNA CASUALTY INSURANCE CO., :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
            2905; 1803
 
            Medical doctor was found to have suffered a non-physical 
 
            change of condition and increased industrial disability as a 
 
            result of the original injury which entitled him to an 
 
            additional 200 weeks of permanent partial disability.
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                    BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         DIANE LAREE LAHN
 
         
 
              Claimant,
 
         
 
         vs.                                        File No. 748932
 
         
 
         GREATER SIOUX EMPIRE d/b/a              A R B I T R A T I 0 N
 
         O'GARRITY'S,
 
                                                    D E C I S I 0 N
 
              Employer,
 
         
 
         and                                           F I L E D
 
         
 
         AETNA COMMERCIAL INSURANCE DIV               APR 19 1989
 
         
 
              Insurance Carrier,                  INDUSTRIAL SERVICES
 
              Defendants.
 
         
 
         
 
                                   INTRODUCTION
 
         
 
              This is a proceeding in arbitration brought by Diane Laree 
 
         Lahn, claimant, against Greater Sioux Empire, d/b/a O'Garrity's, 
 
         employer, and Aetna Commercial Insurance Division, insurance 
 
         carrier, defendants, for benefits as the result of an injury that 
 
         occurred on September 19, 1983.  A hearing was held in Storm 
 
         Lake, Iowa, on March 30, 1988, and the case was fully submitted 
 
         at the close of the hearing.  The record.consists of the 
 
         testimony of Diane Laree Lahn, claimant, Gerald Dubyak, senior 
 
         claims representative, claimant's exhibits 1 through 10, 10A, 11 
 
         through 18, 20 and 21, and defendants' exhibits 1 through 5.  
 
         Claimant's exhibits 10, 11, 16 and 17 were actually withdrawn by 
 
         claimant's counsel in the course of the hearing, but remain with 
 
         the record at the request of defendants' counsel.  Claimant's 
 
         exhibits 23 through 25 were objected to by defendants, the 
 
         objection was sustained and these three exhibits were excluded 
 
         from evidence for the reason that they were not served within 15 
 
         days prior to the hearing as required by paragraph six of the 
 
         hearing assignment order.  There is no exhibit 19 or 22 admitted 
 
         into evidence.  Both attorneys submitted excellent posthearing 
 
         briefs.  The deputy ordered a transcript of the hearing.
 
         
 
                             OFFICIAL NOTICE
 
         
 
              Defendants requested that the deputy take official notice 
 
         [Iowa Administrative Procedure Act 17A.14(4)] of a letter in the 
 
         industrial commissioner's file dated July 8, 1986, from 
 
         defendants' counsel to claimant's counsel explaining that the 
 
         insurance carrier will not authorize medical care and treatment 
 
         by Horst G. Blume, M.D.; indicating that three other physicians 
 
         had recommended against surgical procedures or diagnostic tests; 
 
         and offered continuing care through Alexander Kleider, M.D., 
 
                                                
 
                                                         
 
         claimant's initial authorized physician, or a substitute if he is 
 
         unacceptable.  Claimant did not object to this request by 
 
         defendants and official notice is taken of the letter of July 8, 
 
         1986, from Charles T. Patterson to M.W. Miller, Jr.
 
         
 
                             STIPULATIONS
 
         
 
              The parties stipulated to the following matters.
 
         
 
              That an employer-employee relationship existed between 
 
         claimant and employer at the time of the injury.
 
         
 
              That claimant sustained an injury on September 19, 1983, 
 
         which arose out of and in the course of employment with 
 
         employer.
 
         
 
              That the injury was the cause of temporary disability from 
 
         September 19, 1983 to September 7, 1984; that claimant was paid 
 
         temporary total disability benefits for that period of time; and 
 
         that no further claim is made for temporary disability benefits 
 
         at this time.
 
         
 
              That the injury was not the cause of permanent disability 
 
         and that no claim is made for entitlement to permanent disability 
 
         benefits at this time.
 
         
 
              That the provider of medical services and supplies would 
 
         testify that the fees charged were reasonable and defendants are 
 
         not offering contrary evidence.
 
         
 
              That defendants claim no credit for benefits paid under an 
 
         employee nonoccupational group health plan prior to hearing.
 
         
 
              That defendants are entitled to a credit in the amount of 
 
         $120.54 for the prior overpayment of medical expenses.
 
         
 
              That there are no bifurcated claims.
 
         
 
                                      ISSUES
 
         
 
              The sole issue presented for determination is whether 
 
         claimant is entitled to certain medical expenses which were 
 
         incurred after September of 1984 and prior to hearing on March 
 
         30, 1988.
 
         
 
                         SUMMARY OF THE EVIDENCE
 
         
 
              Of all of the evidence that was introduced, the following is 
 
         a summary of the evidence most pertinent to this decision.
 
         
 
              Claimant testified that she was employed as a waitress for 
 
         employer on September 19, 1983.  She slipped and fell and landed 
 
         on her right hip in the kitchen with her hands full of things 
 
         that she was carrying out.  Claimant was taken by ambulance to 
 
         St. Luke's Hospital where she was treated as an outpatient by 
 
                                                
 
                                                         
 
         D.J. Greco, M.D.  Claimant testified that she then saw T.H. 
 
         Mitchell, M.D., and F.J. Kissel, M.D., her family physicians.  
 
         They referred her to Horst G. Blume, M.D., a neurosurgeon, after 
 
         a CAT scan showed a minimal bulge in her lower back.  The 
 
         insurance carrier refused to approve Dr. Blume as a treating 
 
         physician, but gave claimant a choice of two or three other 
 
         doctors.  The carrier recommended and claimant accepted Alexander 
 
         Kleider, M.D., a neurosurgeon.  She saw Dr. Kleider for 
 
         approximately two or three visits.  Dr. Kleider hospitalized 
 
         claimant for a myelogram, a CT scan and several days of bed rest 
 
         (tr. pp. 36 & 37).  Dr. Kleider ordered physical therapy from Dr. 
 
         Krisztofiak (full name unknown) who is a physical therapist (tr. 
 
         p. 18).
 
         
 
              Claimant also saw Clifford Meylor, D.C., a chiropractor, 
 
         from February of 1984 (tr. p. 40) until he released her in June 
 
         of 1984 (tr. p. 41) or July of 1984 (tr. p. 42).  All of this 
 
         treatment transpired before September of 1984 and claimant 
 
         testified that all of these bills were paid by the insurance 
 
         carrier (tr. pp. 19 & 20).  Dr. Kleider said that claimant did 
 
         not need surgery and did not need any further medical care (tr. 
 
         p. 40).
 
         
 
              Sometime later, after September of 1984, claimant was still 
 
         having pain in her right lower back that would go into her leg 
 
         area and she chose to go see Dr. Blume.
 
         
 
              Dr. Blume sent claimant to Omaha for a MRI (tr.  P. 23) and 
 
         to South Sioux City for an EMG (tr. p. 24).  Claimant testified 
 
         that she also chose to see another chiropractor, Pat Luse, D.C., 
 
         with the approval of Dr. Blume.  Claimant testified that she was 
 
         also hospitalized at Marion Health Center two or three times by 
 
         Dr. Blume in 1985 for pain, a CT scan and a myelogram (tr. p. 
 
         25). Dr. Blume administered conservative treatment of a brace and 
 
         physical therapy from December of 1984 until he sent her to the 
 
         Mayo Clinic in January of 1987 because the same back pain was 
 
         radiating into her right leg and foot.  The Mayo Clinic examined 
 
         the former tests, took some more tests of their own and 
 
         administered physical therapy.  Claimant testified that she had 
 
         not sought any medical treatment since the Mayo Clinic and did 
 
         not anticipate seeking any in the future (tr. p. 21).
 
         
 
              When claimant finished treating with Dr. Meylor, the 
 
         insurance company terminated her benefits (tr. p. 44) and 
 
         claimant obtained an attorney at that time (tr. p. 42).  Claimant 
 
         then took a job as a receptionist at the country club on a 
 
         full-time basis from 9 a.m. to 5 p.m. for a period of 
 
         approximately two months (tr. p. 44).
 
         
 
              Claimant testified that she is currently making a claim for 
 
         the medical bills which she incurred between September of 1984 
 
         and July of 1987 owed to Dr. Blume, Marion Health Center, Mayo 
 
         Clinic, St. Mary's Hospital, Stone Avenue Medical Clinic (Dr. 
 
         Cunningham) and Dr. Pat Luse.  Claimant testified that the entire 
 
         amount of these bills was for treatment due to the injury of 
 
                                                
 
                                                         
 
         September 19, 1983 (tr. pp. 26 & 27).
 
         
 
              Claimant agreed that after Dr. Kissel referred her to Dr. 
 
         Blume that Mr. Dubyak with the insurance carrier said:  "No." 
 
         Instead he supplied Dr. Kleider as a treating neurosurgeon (tr. 
 
         pp. 28, 35 and 36).  She testified that the insurance carrier did 
 
         not pay any of these bills after September of 1984.  Claimant 
 
         conceded that she had no authorization to see any of these 
 
         doctors after September of 1984 (tr. p. 29).  Claimant agreed 
 
         that she did not obtain insurance carrier permission to see Dr. 
 
         Luse (tr. p. 54).  Claimant admitted that when she went to see 
 
         Dr. Blume, that Mr. Dubyak had explained to her that the 
 
         insurance carrier would not be responsible for these charges (tr. 
 
         p. 54).
 
         
 
              Claimant never did have any back surgery (tr. p. 57). 
 
         Claimant acknowledged that Dr. Blume never hospitalized her 
 
         except for the purpose for taking tests (tr. pp. 55 and 56).  
 
         Claimant agreed that she never received insurance company 
 
         permission to go to the Mayo Clinic (tr. p. 51).  Claimant agreed 
 
         that the Mayo Clinic could not find anything wrong with her; they 
 
         did not perform surgery, but rather recommended against it; 
 
         however, they did suggest a pain control management center which 
 
         she did not seek out because her pain was diminishing (tr. p. 
 
         60).  Claimant agreed that she has not had.any medical treatment 
 
                         
 
                                                         
 
         for this injury since January of 1987 (tr. pp. 60 & 61).
 
         
 
              When claimant finished with Dr. Meylor and was refused 
 
         treatment a second time with Dr. Blume, she did not ask to see 
 
         anyone else and the insurance carrier did not offer anyone else 
 
         for her to see (tr. p. 78).  When claimant was considering the 
 
         trip to the Mayo Clinic, defendants offered to send her to see 
 
         Allen Fruin, M.D., in Omaha, rather than to send her to the Mayo 
 
         Clinic, but claimant did not keep the appointment that the 
 
         insurance carrier set up for her with Dr. Fruin
 
         
 
         (tr. p. 109).
 
         
 
              Gerald Dubyak testified that he is the senior claims 
 
         representative for the insurance carrier who handled this claim. 
 
         He testified that the company accepted the claim and paid 
 
         benefits up until the time claimant's disability ended and then 
 
         notified claimant that her benefits would be terminated.  He 
 
         averred that when claimant first asked to see Dr. Blume, because 
 
         Dr. Kissel set up an appointment for her on November 10, 1983, 
 
         that he told claimant that Dr. Blume's care was unauthorized, but 
 
         that he would supply another physician, Dr. Alexander Kleider, a 
 
         neurosurgeon. Claimant expressed no dissatisfaction with this 
 
         physician (tr. pp. 113 & 114).  Dubyak testified that claimant 
 
         first saw Dr. Meylor without authorization, but upon learning 
 
         that she had been seeing him, Dubyak authorized Dr. Meylor's care 
 
         until Dr. Meylor discharged claimant (tr. p. 115).
 
         
 
              Dubyak said that he learned that claimant had an attorney in 
 
         November of 1984.  He stated that the attorney never asked him 
 
         for alternate medical care, but did file an original notice and 
 
         petition and subsequent to that filed an application tantamount 
 
         to an application for alternate care.  At that time, Dubyak 
 
         arranged for claimant to see Dr. Alan Fruin, a neurosurgeon in 
 
         Omaha. Dubyak assumed that claimant did not keep that appointment 
 
         because he never received a bill from Dr. Fruin (tr. pp. 116 & 
 
         117).
 
         
 
                        APPLICABLE LAW AND ANALYSIS
 
         
 
              Claimant did not sustain the burden of proof by a 
 
         preponderance of the evidence that she is entitled to be.paid for 
 
         medical expenses which she incurred after September of 1984, up 
 
         until the time of the hearing on March 30, 1988.  More 
 
         specifically, she is not entitled to payment of the bill of Horst 
 
         G. Blume, M.D. (claimant's ex. 18), Marion Health Care Center (no 
 
         exhibit), Pat Luse, D.C. (cl. ex. 16), the Magnetic Imaging 
 
         Centre (cl. ex. 12), Mayo Clinic (cl. ex. 13), St. Mary's 
 
         Hospital (cl. ex. 14) and the Stone Avenue Medical Clinic (Dr. 
 
         Cunningham, cl. ex. 15).
 
         
 
              Iowa Code section 85.27 provides that the employer is 
 
         required to provide reasonable medical care and treatment to an 
 
         injured worker.  It also provides that the employer has the right 
 
         to choose the care.  Claimant can make an application to the 
 
                                                
 
                                                         
 
         industrial commissioner for an order for alternate care.  
 
         Claimant can choose the medical care in the case of an 
 
         emergency.
 
         
 
              Dubyak testified and claimant also admitted that claimant 
 
         was repeatedly told that Dr. Blume was not an authorized 
 
         physician and that the insurance carrier would not be responsible 
 
         for any medical expenses incurred with Dr. Blume.  Claimant was 
 
         given this information on November 8, 1983, when Dr. Kissel set 
 
         the appointment with Dr. Blume for November 10, 1983.  Claimant 
 
         was told a second time by Dubyak that the insurance carrier would 
 
         not be responsible for any medical expenses incurred with Dr. 
 
         Blume when claimant saw him in January of 1985.
 
         
 
              Dubyak testified that when claimant notified them that she 
 
         was to go to the Mayo Clinic at the suggestion of Dr. Blume, they 
 
         offered Alan Fruin, M.D. in Omaha.  Claimant admitted that Mayo 
 
         Clinic care was not authorized, but that she decided to receive 
 
         it anyway, because she felt that Mayo Clinic would see her sooner 
 
         than Dr. Fruin.  Claimant did not allege an emergency or 
 
         demonstrate that a valid emergency existed that would justify 
 
         going to the Mayo Clinic over the objection of the insurance 
 
         carrier.
 
         
 
              Dr. Luse, the chiropractor, was claimant's own choice of 
 
         physician.  She did not request permission to see Dr. Luse. 
 
         Claimant testified that she incurred the Stone Avenue Clinic bill 
 
         when she was treated by Dr. Cunningham in the absence of Dr. 
 
         Blume, but she did not obtain any authorization from the 
 
         insurance carrier in order to see Dr. Cunningham.
 
         
 
              Claimant offered no justification for incurring these 
 
         expenses other than the fact that after employer had provided 
 
         adequate care in September of 1984, she still hurt.  It is 
 
         noteworthy that none of the subsequent care which she chose 
 
         produced any diagnosis, findings or treatment other than what 
 
         claimant had already received by authorized physicians.  There is 
 
         a great deal of medical evidence that established that claimant 
 
         had a number of obstetrical/gynecological problems before, 
 
         concurrent with and possibly subsequent to the treatment to her 
 
         back.  Also, there is substantial evidence that psychological 
 
         factors greatly influenced her chronic pain behaviour response 
 
         (ex. 7).  The Minnesota Multiphasic Personality Inventory (MMPI) 
 
         demonstrated that claimant had many problems over and above the 
 
         back strain that she incurred at work (def. ex. 4).
 
         
 
              Claimant did not prove that she was entitled to payment for 
 
         the care at the Marion Health Center on October 3, 1983, for 
 
         pelvic inflammatory disease, an ovarian cyst and iron deficiency 
 
         anemia (def. ex. 1).  Nor did claimant prove that she was 
 
         entitled to payment for the treatment at St. Luke's Hospital on 
 
         July 30, 1985, for abdominal pain with pregnancy (def. ex. 3).  
 
         Nor did claimant prove that she is entitled to payment of the 
 
         treatment at St. Luke's Hospital on August 27, 1985, for 
 
         abdominal pain secondary to abdominal wall pathology or internal 
 
                                                
 
                                                         
 
         adhesions (def. ex. 5).
 
         
 
                             FINDINGS OF FACT
 
         
 
              Wherefore, based upon the evidence presented the following 
 
         findings of fact are made.
 
         
 
              That defendants employer and insurance carrier provided 
 
         claimant with reasonable medical care and alternate medical care 
 
         for back strain from the time of the fall at work on September 
 
         19, 1983, by providing care at St. Luke's Hospital, Drs.  
 
         Mitchell and Kissel, Dr. Kleider, Dr. Krisztofiak, Dr. Meylor and 
 
         Dr. Fruin.
 
         
 
              That all of the other providers of medical services were 
 
         chosen by claimant without first having obtained the 
 
         authorization of the employer and insurance carrier.
 
         
 
              That the insurance carrier representative clearly 
 
         communicated to claimant that the insurance carrier would not be 
 
         responsible for the expense incurred with Dr. Blume, but claimant 
 
         saw Dr. Blume and that Dr. Blume subsequently ordered an 
 
         electromyogram test at South Sioux City, a magnetic resonance 
 
         imaging test at Omaha, arranged an appointment for claimant at 
 
         the Mayo Clinic and St. Mary's Hospital and approved the 
 
         treatment by Dr. Luse.  Claimant did not prove that any of these 
 
         medical expenses were authorized, or were reasonable, or were 
 
         necessary medical treatment for this injury, or that they were 
 
         incurred as the result of an emergency.
 
         
 
              That claimant did not request an order for alternate medical 
 
         care at the time of the prehearing conference and therefore, this 
 
         issue was not designated as a hearing issue on the hearing 
 
         assignment order.
 
         
 
                           CONCLUSIONS OF LAW
 
         
 
              Wherefore, based upon the evidence presented and the 
 
         foregoing principles of law, the following conclusions of law are 
 
         made.
 
         
 
              That claimant did not sustain the burden of proof by a 
 
         preponderance of the evidence and that the medical care and the 
 
         expenses for it that she incurred after September of 1984, up 
 
         until the date of the hearing on March 30, 1988, was authorized 
 
         care; or that it was reasonable treatment for this injury; or 
 
         that it was emergency treatment for the fall injury of September 
 
         19, 1983, when she fell on her left hip in the kitchen at work 
 
         and strained her back.
 
         
 
              That claimant is not entitled to the medical expenses for 
 
         which she has made claim at this time.
 
         
 
              That claimant did not request an order for alternate care at 
 
         the time of the prehearing conference and this issue was not 
 
                                                
 
                                                         
 
         designated as an issue on the hearing assignment order.
 
         
 
                                   ORDER
 
         
 
              THEREFORE, IT IS ORDERED:
 
         
 
              That no additional amounts are owed by defendants to 
 
         claimant for medical expenses or otherwise.
 
         
 
              That since claimant was not allowed any medical expenses, 
 
         that it is not possible to award defendants a credit in the 
 
         amount of one hundred twenty and 54/100 dollars ($120.54) for the 
 
         overpayment of medical bills as stipulated to by the parties.
 
         
 
              That the costs of this proceeding are charged to claimant, 
 
         except the cost of the transcript of the hearing which is charged 
 
         to defendants, pursuant to Iowa Code section 86.19 and Division 
 
         of Industrial Services Rule 343-4.33.
 
         
 
              That defendants file claim activity reports as requested by 
 
         this agency pursuant to Industrial Services Rule 343-3.1.
 
         
 
              Signed and filed this 19th day of April, 1989.
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
                                       WALTER R. McMANUS, JR.
 
                                       DEPUTY INDUSTRIAL COMMISSIONER
 
 
 
 
 
                                   
 
                                                         
 
         
 
         Copies to:
 
         
 
         Mr. Marvin (Wally) Miller
 
         Attorney at Law
 
         216 W. Main St
 
         Cherokee, IA  51012
 
         
 
         Mr. Charles T. Patterson
 
         Attorney at Law
 
         200 Home Federal Bldg
 
         PO Box 3086
 
         Sioux City, IA  51102
 
         
 
         
 
         
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
                                                
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                       51401, 51402.60, 2501
 
                                       Filed April 19, 1989
 
                                       WALTER R. McMANUS, JR.
 
         
 
         BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         DIANE LAREE LAHN,
 
         
 
              Claimant,
 
         
 
         vs.                                         File No. 748932
 
         
 
         GREATER SIOUX EMPIRE d/b/a               A R B I T R A T I 0 N
 
         O'GARRITY'S,
 
                                                     D E C I S I 0 N
 
              Employer,
 
         
 
         and
 
         
 
         AETNA COMMERCIAL INSURANCE DIV
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         51401, 51402.60, 2501
 
         
 
              Claimant incurred a great deal of medical expenses that were 
 
         not authorized after claimant was told that it was not 
 
         authorized. Employer provided reasonable care and alternate 
 
         care.
 
         
 
              Husband's health care provider forced claimant to obtain an 
 
         attorney, file a petition, have a hearing and get a decision, she 
 
         was not entitled to workers' compensation before they would pay 
 
         his claim for dependant medical benefits.
 
         
 
         
 
         
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
                                                
 
 
            
 
 
 
 
 
          
 
 
 
                      BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         __________________________________________________________________
 
          
 
 
 
          SHARON K. OBORNY,
 
 
 
              Claimant,
 
                                                  File No. 749017
 
          VS.
 
                                                    A P P E A L
 
          WILSON FOODS CORPORATION,
 
                                                  D E C I S I 0 N
 
              Employer,
 
              Self-Insured,
 
              Defendant.
 
          
 
          __________________________________________________________________
 
          
 
 
 
                         STATEMENT OF THE CASE
 
 
 
               Defendant appeals from an arbitration decision awarding 
 
          permanent partial disability benefits and healing period 
 
          benefits.
 
 
 
               The record on appeal consists of the transcript of the 
 
          arbitration hearing; joint exhibits 1 through 7; and defendant's 
 
          exhibits A and B. Both parties filed briefs on appeal.
 
 
 
                                  ISSUES
 
 
 
               The issues raised by defendant on appeal are: 1) Whether the 
 
          deputy erred in considering any evidence on neck and back injury; 
 
          2) the nature and extent of the disability; 3) whether there is a 
 
          causal connection between the injury and the disability.
 
 
 
                            REVIEW OF THE EVIDENCE
 
 
 
               The arbitration decision adequately and accurately reflects 
 
          the pertinent evidence and it will not be totally reiterated 
 
          herein.
 
 
 
               On October 21, 1983, claimant was cutting out kidneys on the 
 
          kill floor of defendant and she had to separate two sows by 
 
          pushing with her left arm and pulling with her right arm.  She 
 
          felt something snap in her back.  She worked for about another 
 
          week and began to experience a tingling down her right arm and 
 
          one of her hands became numb.  Keith Garner, M.D., examined her 
 
          and referred her to John Connolly, M.D. She attempted to return 
 
          to work doing a different job but was eventually hospitalized by 
 
          Dr. Connolly in December 1983.  She subsequently returned to work 
 
          at another job but was unable to perform that job also and 
 
          eventually separated from defendant.  She saw M.E. Wheeler, M.D., 
 
          at Dr. Garner's suggestion.
 
 
 
 
 
 
 
          In a letter dated August 27, 1984, Dr. Connolly wrote to Dr.
 
          Garner:
 

 
                     OBORNY V. WILSON FOODS CORPORATION                                  age   2
 
 
 
                    I reevaluated Sharon Oborny for the neck and right 
 
               shoulder pain.  She is still having symptoms in the 
 
               region of the rhomboids and trapezius muscles of the 
 
               right shoulder with repetitive activity.  She said the 
 
               pain does not bother her until she starts using the arm 
 
               in an overhead position, and then it comes back again. 
 
                She said she could not get back to work at the packing 
 
               house and wanted our evaluation of the problem at this 
 
               time. (Emphasis added.)
 
 
 
                    When I examined her, she was in no acute distress 
 
               and had essentially full range of motion.  She 
 
               localized pain in the region of the infraspinatrus and 
 
               rhomboid muscles of the right shoulder with forceful 
 
               external rotation, or pinching her shoulder blades 
 
               together.  Her persistent symptoms may have, I thought, 
 
               been consistent with a suprascapular nerve entrapment.  
 
               Consequently, I asked Dr. Streib to reevaluate her 
 
               neurologically and electromyographically.  He did a 
 
               complete evaluation and found no evidence of 
 
               suprascapular nerve impingement. Consequently, I think 
 
               her major problem is that of rhomboid weakness, and 
 
               weakness of the shoulder rotators.  I instructed her in 
 
               a program of exercises and advised her it would be best 
 
               to quit her job at the packinghouse if this seems to be 
 
               the source of her shoulder complaints.  However, I do 
 
               not think she has any functional impairment at this 
 
               time, and that her problems are only related to pain 
 
               when she starts using the shoulder vigorously.  I 
 
               believe her symptoms will subside if she works.on a 
 
               program of shoulder strengthening exercises. (Emphasis 
 
               added.)
 
 
 
          (Joint Exhibit 3)
 
 
 
               In a follow-up letter dated September 7, 1984, he wrote:
 
 
 
                    At the present time I could find no objective 
 
               evidence of functional impairment in her neck and 
 
               shoulder and her main problem is complaints of pain.  
 
               However, based oh the best of our ability to evaluate 
 
               objective functional impairment I cannot state that she 
 
               has any at this time. (Emphasis added.)
 
 
 
 
 
          (Joint Ex. 3)
 
 
 
 
 
 
 
 
 
 
 
               Dr. Wheeler examined claimant on one occasion.  That 
 
          examination lasted about ten minutes.  Dr. Wheeler gave claimant 
 
          a five percent permanent partial impairment rating for her right 
 
          upper extremity.  However, he also stated that "I doubt she will 
 
          be able to return to her previous employment."
 
 
 
                               APPLICABLE LAW
 

 
                     OBORNY V. WILSON FOODS CORPORATION                                  age   3
 
               The citations of law in the arbitration decision are 
 
          appropriate to the issues and the evidence.
 
 
 
                                ANALYSIS
 
 
 
               At the time of prehearing neither party indicated that there 
 
          was an issue of causal connection between claimant's injury and 
 
          any disability on which claimant was basing this claim.  The 
 
          parties also stipulated to causal connection in the prehearing 
 
          report filed by them at the beginning of the hearing.  Then, at 
 
          the beginning of the hearing it was stated:
 
 
 
                    MR. SAYRE: It is the position of defendant that 
 
               some of the injuries -- some of the disability referred 
 
               to in the doctors' reports, which will be included in 
 
               the exhibits submitted, pertain to congenital 
 
               difficulties with the claimant's back which have no 
 
               relationship to the injury at the place of employment.  
 
               So our position is not -- Our position is that, yes, 
 
               there is some injury and some disability, quote, 
 
               temporary and permanent caused by the injury at the 
 
               plant but not to the extent of all the injuries set 
 
               forth in the doctors' examinations, as they're not 
 
               being causally related to the injury of the plaintiff.
 
 
 
                    THE COMMISSIONER: That particular report that 
 
               you're making reference to, was that prepared prior to 
 
               November 25th, 1985?
 
 
 
                    MR. SAYRE: Well, the doctor discusses -- Yes, I'm 
 
               sure it was.  And the doctor discusses various 
 
               situations and refers to them as being a congenital 
 
               back problem.
 
 
 
                    THE COMMISSIONER: If you know, what's the date of 
 
               that report?
 
 
 
                    MR. SAYRE:  There's a July 18th, 1984, report of 
 
               Dr. Connolly   And --
 
 
 
                    THE COMMISSIONER: When did you receive a copy of 
 
               that report?
 
 
 
                    MR. SAYRE: We would have received -- I can't 
 
               actually tell you when we received it.
 
 
 
                      THE COMMISSIONER:  Prior to November 25th, 
 
                                1985?
 
 
 
                    MR. SAYRE:  Yes.
 
 
 
                    THE COMMISSIONER: Any further comment at this 
 
               point?
 
 
 
                    MR. SAYRE: Well, all I'm saying is, if I 
 
               understand it, what you may be talking about, just the 
 
               fact that the doctor may talk about other medical 
 
               problems of the patient or the claimant in the 
 
               examination of the claimant, I didn't figure it 
 

 
                     OBORNY V. WILSON FOODS CORPORATION                                  age   4
 
               foreclosed us from arguing that those have no 
 
               relationship to the injury.  The -- the rating which -- 
 
               The permanent partial and permanent rating which the 
 
               doctor gives has -- does not deal with those problems 
 
               anyway.
 
 
 
          (Transcript, pages 4-6)
 
 
 
               It is true that just because the parties stipulate as to 
 
          causal connection they do not necessarily stipulate to 
 
          disabilities that a claimant may have which are unrelated to the 
 
          incident which gives rise to the action.  However, for the 
 
          defendant in the present case to argue that matters concerning 
 
          anything but the arm was not stipulated to has very little merit.  
 
          In her petition claimant alleged problems in the shoulder which 
 
          would be beyond the schedule of the upper extremity.  Also, of 
 
          importance is the joint exhibits which contain medical reports 
 
          indicating cervical spine complaints and back pain.  There is no 
 
          surprise to a party when their own exhibits disclose the 
 
          problem.
 
 
 
               Notwithstanding the fact that defendant failed to properly 
 
          raise the issue, a review of all the evidence indicates claimant 
 
          has carried her burden of proving a causal connection between her 
 
          injury and the disability upon which she bases her claim.
 
 
 
               The parties disagree as to the nature and extent of 
 
          claimant's disability.  Defendant argues that if there is any 
 
          permanent disability that disability is to a scheduled member.  
 
          Claimant argues that the deputy was correct in determining that 
 
          the disability was to the body as a whole.
 
 
 
               Claimant started working for defendant in May of 1983.  
 
          There is no indication that claimant had any physical problems 
 
          until her injury at work on October 21, 1983.  Dr. Connolly 
 
          opines that claimant has no permanent impairment and then states 
 
          that claimant should seek other employment because of the pain 
 
          she has in her job with defendant.  Dr. Wheeler indicates that
 
          claimant has "chronic muscle strain pattern, rhomboid area, right 
 
          shoulder." This is obviously a problem to the body as a whole.  
 
          Yet he then opines that claimant has five percent permanent 
 
          impairment to the upper extremity.  Although the greater weight 
 
          of evidence indicates that claimant's impairment may only be 
 
          slight, impairment is only one of the factors in determining 
 
          industrial disability.
 
 
 
               Claimant is 33 years old and had no physical restrictions 
 
          prior to her injury on October 21, 1983.  Claimant's physicians 
 
          agree that she should refrain from doing heavy or,repetitive work 
 
          at a packing plant or elsewhere.  Claimant is presently working 
 
          but has experienced an actual reduction in her earnings.  
 
          Claimant is a high school graduate with no other formal 
 
          education.  She appears to be a reasonably intelligent person 
 
          and, therefore, seems capable of pursuing additional education or 
 
          training.  Claimant is well-motivated to improve her physical 
 
          condition and to remain employed.  Claimant is right handed and 
 
          her right side was most affected by her injury on October 21, 
 
          1983.
 
 
 

 
                     OBORNY V. WILSON FOODS CORPORATION                                  age   5
 
               Taking all appropriate factors into account, it is concluded 
 
          that claimant's industrial disability is 20 percent.
 
 
 
                             FINDINGS OF FACT
 
 
 
               1.  Claimant was born on May 11, 1952.
 
 
 
               2.  Claimant is right handed.
 
 
 
               3.  Claimant graduated from high school in 1974 and has no 
 
          other formal education.
 
 
 
               4.  Claimant is reasonably intelligent and is capable of 
 
          pursuing additional education or training.
 
 
 
               5.  Claimant started working for defendant in May 1983.
 
 
 
               6.  Claimant injured her right shoulder, right arm, and back 
 
          on October 21, 1983 while working for defendant.
 
 
 
               7.  Claimant's injury of October 21, 1983 resulted in 
 
          impairment to her whole body, not just her right arm.
 
 
 
               8.  On October 21, 1983, claimant was earning $6.50 per hour 
 
          at defendant, plus fringe benefits such as health insurance.
 
 
 
               9.  Claimant currently works as a kitchen aide for $3.85 per 
 
          hour.
 
 
 
               10.  Claimant is now physically incapable of doing heavy or 
 
          repetitive labor.
 
 
 
               11.  Claimant is well-motivated to improve her physical 
 
          condition and remain employed.
 
 
 
               12.  Claimant was in good health prior to October 21, 1983.
 
 
 
               13.  Claimant reached maximum healing on September 7, 1984.
 
 
 
               14.  Claimant has an industrial disability of 20 percent.
 
 
 
                                   CONCLUSIONS OF LAW
 
 
 
               Claimant met her burden in proving she has an industrial 
 
          disability of 20 percent as a result of her injury on October 21, 
 
          1983.
 
 
 
               Claimant's permanent partial disability benefits should 
 
          commence on September 7, 1984.
 
 
 
               WHEREFORE, the decision of the deputy is affirmed in part 
 
          and modified in part.
 
 
 
                                    ORDER
 
 
 
               THEREFORE, it is ordered:
 
 
 
               That defendant pay unto claimant healing period benefits for 
 

 
                     OBORNY V. WILSON FOODS CORPORATION                                  age   6
 
          the days she missed work from the date of injury until September 
 
          7, 1984 at a rate of one hundred sixty-three and 98/100 dollars 
 
          ($163.98) and one hundred (100) weeks of permanent partial 
 
          disability benefits at the same rate.
 
 
 
               That defendant pay accrued benefits in a lump sum and pay 
 
          interest pursuant to section 85.30, The Code.
 
 
 
               That defendant be given credit for benefits and interest 
 
          already paid to claimant.
 
 
 
               That defendant pay the costs of this action pursuant to 
 
          Division of Industrial Services Rule 343-4.33.
 
 
 
               That defendant shall file claim activity reports, pursuant 
 
          to Division of Industrial Services Rule 343-3.1(2), as requested 
 
          by the agency.
 
 
 
               Signed and filed this 30th day of December, 1987.
 
 
 
 
 
 
 
                                                  DAVID E. LINQUIST
 
                                                  INDUSTRIAL COMMISSIONER
 
 
 
          Copies To:
 
 
 
          Mr. Harry H. Smith
 
          Attorney at Law
 

 
          
 
          OBORNY V. WILSON FOODS CORPORATION    
 
          Page   7
 
          
 
          
 
 
 
          P.O. Box 1194
 
          632-640 Badgerow Bldg.
 
          Sioux City, Iowa 51102
 
 
 
          Mr. David L. Sayre
 
          Attorney at Law
 
          223 Pine Street
 
          Cherokee, Iowa 51012
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                            1108.50-1402.40-1803.1
 
                                            Filed December 30, 1987
 
                                            DAVID E. LINQUIST
 
         
 
                      BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         _________________________________________________________________
 
         
 
          SHARON K. OBORNY,
 
         
 
              Claimant,
 
                                                 File No. 749017
 
         VS.
 
                                                   A P P E A L
 
         WILSON FOODS CORPORATION,
 
                                                 D E C I S I 0 N
 
              Employer,
 
              Self-Insured,
 
              Defendant.
 
         _________________________________________________________________
 
         
 
          1108.50 - 1402.40
 
         
 
              Notwithstanding the fact that defendant failed to properly 
 
         raise the issue, claimant carried her burden of proving a causal 
 
         connection between her injury and her disability.
 
         
 
         1803.1
 
         
 
              Claimant's chronic muscle strain pattern, rhomboid area, 
 
         right shoulder is disability to the body as a whole.