Page   1
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            DELBERT HEMMIE,               :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :      File No.  753787
 
            FRUEHAUF CORPORATION,         :
 
                                          :  R E V I E W - R E O P E N I 
 
            N G
 
                 Employer,                :
 
                                          :         D E C I S I O N
 
            and                           :
 
                                          :
 
            CNA INSURANCE,                :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
                              statement of the case
 
            
 
                 This is a proceeding in review-reopening upon the 
 
            petition of claimant filed on October 12, 1990.  Claimant 
 
            sustained an injury to his back on January 3, 1984, arising 
 
            out of and in the course of employment with defendant 
 
            employer.  Defendant insurance carrier is CNA.  Following a 
 
            hearing on August 20, 1985, a decision was filed on October 
 
            16, 1986.  The decision resulted in a 65 percent industrial 
 
            disability, with 55 percent resulting from a work injury.
 
            
 
                 A petition for review-reopening was filed, a hearing 
 
            was held on August 17, 1989, and a review-reopening decision 
 
            was filed by Deputy Industrial Commissioner David R. Rasey.  
 
            In his decision, Deputy Rasey determined claimant had failed 
 
            to establish a change of condition.
 
            
 
                 This record is composed of joint exhibits 1 through 5.  
 
            Additionally, the record is composed of the testimony of 
 
            claimant.  Administrative notice of the official file is 
 
            taken.
 
            
 
                                      issue
 
            
 
                 The issue presented for determination is whether 
 
            claimant has experienced a change of condition since the 
 
            prior arbitration and review-reopening hearing and, if so, 
 
            the extent of claimant's current industrial disability.
 
            
 
                                 findings of fact
 
            
 
                 The deputy, having heard the testimony and considered 
 
            all the evidence, finds:
 
            
 
                 Claimant sustained a work-related injury while he was 
 
            using a fork lift.  He placed a front-end assembly on a 
 
            conveyor belt.  As the fork lift was backing up, it became 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            stuck and the front-end assembly fell off and placed 700 to 
 
            900 pounds of pressure on claimant.
 
            
 
                 Claimant testified he now has less flexibility in his 
 
            back than he had on August 17, 1989, the day of his last 
 
            hearing.  Claimant testified he receives no relief from any 
 
            of the medications he has had prescribed for him.  Claimant 
 
            also testified that since the date of his last hearing, he 
 
            has begun receiving social security disability benefits.
 
            
 
                 Upon cross-examination, claimant testified he worked 
 
            four months and 29 days subsequent to his work injury.  He 
 
            last worked for defendant in July of 1985.  Since that time, 
 
            claimant has worked no where else.
 
            
 
                 Claimant stated there was no job he can presently 
 
            perform, not even stocking shelves in a store, because he is 
 
            unable to bend and stoop.  Claimant testified he can sit and 
 
            stand for very short periods of time, but he can perceive no 
 
            job for which he can be retrained.
 
            
 
                 In his deposition of September 11, 1991, Robert R. 
 
            Kemp, M.D., testified he had treated claimant for a 
 
            long-standing back problem related to claimant's work 
 
            injury.  Dr. Kemp also testified that since August of 1989, 
 
            claimant's condition had gone downhill and claimant had 
 
            become more disabled (exhibit 5, page 4).  However, upon 
 
            cross-examination, Dr. Kemp admitted there had been no real 
 
            change in claimant's physical condition since October 3, 
 
            1988 (ex. 4, p. 7).
 
            
 
                                conclusions of law
 
            
 
                 Iowa Code section 86.14(2) governs a proceeding to 
 
            review-reopen an award for weekly benefits.  In a 
 
            review-reopening proceeding, inquiry is to be made into 
 
            whether there has been a change of condition.  A change of 
 
            condition is required in order to modify the original award.  
 
            Henderson v. Iles, 250 Iowa 787, 96 N.W.2d 321 (1959).  It 
 
            is not proper to merely redetermine the condition of the 
 
            employee as adjudicated by the former award.  Stice v. 
 
            Consol. Indus. Coal Co., 228 Iowa 1031, 291 N.W.2d 452 
 
            (1940).
 
            
 
                 Upon review-reopening, claimant has the burden to show 
 
            a change in condition related to the original injury since 
 
            the original award was made.  The change may be either 
 
            economic or physical.  Blacksmith v. All-American, Inc., 290 
 
            N.W.2d 348, 354 (Iowa 1980); Henderson, 250 Iowa 787, 96 
 
            N.W.2d 321.  A mere difference of opinion of experts as to 
 
            the percentage of disability arising from an original injury 
 
            is not sufficient to justify a different determination on a 
 
            petition for review-reopening.  Rather, claimant's condition 
 
            must have worsened or deteriorated in a manner not 
 
            contemplated at the time of the initial award before an 
 
            award on review-reopening is appropriate.  Bousfield v. 
 
            Sisters of Mercy, 249 Iowa 64, 86 N.W.2d 109 (1957).  A 
 
            failure of a condition to improve to the extent anticipated 
 
            originally may also constitute a change of condition. Meyers 
 
            v. Holiday Inn of Cedar Falls, Iowa, 272 N.W.2d 24 (Iowa 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            App. 1978).
 
            
 
                 In the case at hand, it is clear to the undersigned 
 
            there has not been a change of physical condition since 
 
            before August 17, 1989.  Dr. Kemp testified there had been 
 
            no real change in the physical condition since October 3, 
 
            1988.  While claimant expressed a change of his physical 
 
            condition, his subjective opinion is accorded less weight 
 
            than the testimony of his long-standing treating physician, 
 
            who had a contrary opinion.
 
            
 
                 Likewise, it is clear to the undersigned there has not 
 
            been a change of claimant's economic condition.  At the time 
 
            of the prior hearing, claimant had not been working.  Nor 
 
            had claimant sought employment since August 17, 1989.  
 
            Basically, claimant is in the same position now as he was 
 
            prior to the former review-reopening hearing.  Therefore, 
 
            there is no reconsideration of the previous decisions with 
 
            respect to industrial disability.
 
            
 
                                      order
 
            
 
                 THEREFORE, IT IS ORDERED:
 
            
 
                 Since claimant has failed to establish a change of 
 
            condition, his industrial disability shall not be 
 
            re-evaluated.
 
            
 
                 Defendants shall be responsible for the costs of this 
 
            proceeding pursuant to rule 343 IAC 4.33.
 
            
 
                 Signed and filed this ____ day of October, 1991.
 
            
 
            
 
            
 
            
 
                                          ______________________________
 
                                          MICHELLE A. MCGOVERN 
 
                                          DEPUTY INDUSTRIAL COMMISSIONER    
 
            
 
            Copies to:
 
            
 
            Mr. James Hoffman
 
            Attorney at Law
 
            Middle Road
 
            Keokuk, IA  52632-1087
 
            
 
            Mr. Elliott R. McDonald, Jr.
 
            Attorney at Law
 
            PO Box 2746
 
            Davenport, IA  52809
 
            
 
                 
 
            
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
                      52905
 
                      Filed October 24, 1991
 
                      Michelle A. McGovern
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            DELBERT HEMMIE,               :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :      File No.  753787
 
            FRUEHAUF CORPORATION,         :
 
                                          :  R E V I E W - R E O P E N I 
 
            N G
 
                 Employer,                :
 
                                          :         D E C I S I O N
 
            and                           :
 
                                          :
 
            CNA INSURANCE,                :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
            52905
 
            In a review-reopening proceeding, claimant was unable to 
 
            establish a change of condition since the last 
 
            review-reopening hearing or since the arbitration hearing.
 
            
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            DELBERT HEMMIE,               :
 
                                          :
 
                 Claimant,                :      File No. 753787
 
                                          :
 
            vs.                           :          N U N C 
 
                                          :
 
            FRUEHAUF CORPORATION,         :           P R O
 
                                          :
 
                 Employer,                :          T U N C
 
                                          :
 
            and                           :         O R D E R
 
                                          :
 
            CNA INSURANCE,                :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
            
 
                 A review-reopening decision had been filed in this 
 
            matter on October 24, 1991.  After reflection, this deputy 
 
            has determined that a nunc pro tunc order is necessary to 
 
            clarify the record.  Administrative notice of the official 
 
            file has been taken, yet a portion of the official file is 
 
            missing due to inadvertence, neglect or mistake.  The file 
 
            does not contain the following exhibits:
 
            Arbitration Decision Exhibits 1 through 40
 
            Arbitration Decision Exhibits A and B
 
            Review-reopening decision of August 22, 1990 - defendants' 
 
            exhibits 1 through 6 and claimant's exhibits 1 through 69.
 
            
 
            These have been listed as claimant's exhibit 1 in this 
 
            pro-ceeding.
 
            
 
                 The aforementioned exhibits have not been located, even 
 
            though a diligent search for them has been made by the 
 
            staff, including a search by the undersigned on October 28, 
 
            1991.  The exhibits are considered lost.  However, this 
 
            deputy, in rendering the decision of October 24, 1991, has 
 
            considered the absence of the missing documents to be 
 
            unimportant.  This deputy has been able to render a decision 
 
            without the benefit of the missing exhibits since this 
 
            deputy has the duty and obligation to follow the findings of 
 
            fact and conclusions of law of the two previous decisions.  
 
            The only issue which has been before this deputy is whether 
 
            claimant has experienced a change of condition since the 
 
            prior arbitration and review-reopening hearings.  The 
 
            missing documents are considered to provide no additional 
 
            information relative to the issue on change of condition.  
 
            They are immaterial to the case at hand.  Nevertheless, 
 
            after giving consideration to the matter, this deputy has 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            selected to modify the review-reopening decision of October 
 
            24, 1991, so that the record more accurately reflects the 
 
            current status of the file and, the decision making process 
 
            of this deputy.
 
            
 
                 Therefore, the review-reopening decision of October 24, 
 
            1991, is modified to reflect that the record is comprised of 
 
            joint exhibits 1-5 but that exhibit 1 has been and is 
 
            unavailable to the undersigned.  The review-reopening 
 
            decision is also modified to reflect that administrative 
 
            notice of the official file has been taken but that the 
 
            aforementioned exhibits have been and are currently absent 
 
            from the file.  Additionally, the record is modified to 
 
            reflect that the prior arbitration and review-reopening 
 
            decisions are incorporated by reference herein and that the 
 
            findings of fact and conclusions of law are adopted and 
 
            given full force and effect in this review-reopening 
 
            decision.
 
            
 
                 Finally, sentence one under the Findings of Fact of the 
 
            October 24, 1991 review-reopening decision is stricken from 
 
            the decision.  It is replaced with the following modified 
 
            sentence:
 
            
 
                 The deputy, having heard the testimony; having 
 
            personally observed claimant; having taken administrative 
 
            notice of the existing file absent the missing exhibits; 
 
            having considered the missing exhibits as unimportant, 
 
            irrelevant and immaterial to this decision; and, having 
 
            considered the remaining evidence finds:
 
            
 
                 All other portions of the decision and order remain the 
 
            same.  It is the intent of this order to clarify the record 
 
            for the parties.
 
            
 
                 The undersigned apologizes for any inconvenience or 
 
            misunderstanding.
 
            
 
            
 
            
 
                 Signed and filed this ____ day of October, 1991.
 
            
 
            
 
            
 
            
 
            
 
                                          ______________________________               
 
            MICHELLE A. McGOVERN
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            
 
            
 
            Copies To:
 
            
 
            Mr. James P. Hoffman
 
            Attorney at Law
 
            Middle Rd
 
            Box 1087
 
            Keokuk  IA  52632
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            
 
            Mr. Elliott R. McDonald, Jr.
 
            Attorney at Law
 
            P O Box 2746
 
            Davenport  IA  52809
 
            
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            DELBERT HEMMIE,               :
 
                                          :
 
                 Claimant,                :
 
                                          :         File No. 753787
 
            vs.                           :
 
                                          :          R E V I E W -
 
            FRUEHAUF CORPORATION,         :
 
                                          :        R E O P E N I N G
 
                 Employer,                :
 
                                          :         D E C I S I O N
 
            and                           :
 
                                          :
 
            CNA INSURANCE,                :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ____________________________________________________________
 
            
 
                              statement of the case
 
            
 
                 This is a proceeding in review-reopening upon 
 
            claimant's petition filed November 7, 1986.  Claimant 
 
            sustained an injury to his back on January 3, 1984 arising 
 
            out of and in the course of his employment with defendant 
 
            employer Fruehauf Corporation.  Defendant insurance carrier 
 
            is CNA.  Following hearing on August 20, 1986, a deputy 
 
            industrial commissioner issued an arbitration decision on 
 
            October 16, 1986; that decision was not appealed and has 
 
            become final.  It was held that claimant had established a 
 
            causal relationship between the work injury and disability 
 
            resulting from his low back condition, but had failed to 
 
            prove a causal relationship between the injury and 
 
            disability resulting from his cervical condition.  With 
 
            respect to the lower back condition, claimant was found to 
 
            have a 65 percent industrial disability, 10 percent being 
 
            attributable to a preexisting condition, and 55 percent 
 
            resulting from the work injury.
 
            
 
                 Hearing on the review-reopening petition was held in 
 
            Burlington, Iowa, on August 17, 1989.  The record consists 
 
            of claimant's testimony, defendants' exhibits 1 through 6 
 
            and claimant's exhibits marked 1 through 69, inclusive.  It 
 
            should be noted that some of claimant's exhibits do not 
 
            appear to match up with the list of exhibits 
 
            contemporaneously submitted and one at least, exhibit 45, 
 
            does not physically exist, but appears to be a request that 
 
            official notice be taken of the agency file.
 
            
 
                                      issues
 
            
 
                 Pursuant to the prehearing report, the parties have 
 
            stipulated:  that claimant sustained an injury arising out 
 
            of and in the course of his employment on January 3, 1984; 
 
            that the injury has been established as causing temporary 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            and permanent disability; that the extent of claimant's 
 
            healing period has already been determined; that claimant 
 
            has sustained an industrial disability to the body as a 
 
            whole; that the appropriate rate of weekly compensation is 
 
            $251.87; that benefits have been paid prior to hearing 
 
            pursuant to the arbitration decision.
 
            
 
                 Issues presented for resolution include:  whether 
 
            claimant sustained a change in condition since the 
 
            arbitration hearing; if so, the extent of his entitlement to 
 
            compensation for permanent disability; whether claimant is 
 
            entitled to medical benefits under Iowa Code section 85.27 
 
            with respect to Dr. Kemp's bill and Keokuk Area Hospital 
 
            bills, and whether those expenses are causally connected to 
 
            the work injury, claimant's condition, and whether they were 
 
            authorized by defendants.
 
            
 
                                 findings of fact
 
            
 
                 The undersigned deputy, having heard the testimony and 
 
            considered all of the evidence, finds:
 
            
 
                 Claimant sustained an injury while he was putting a 
 
            front-end assembly on a conveyor belt with a forklift.  As 
 
            the forklift was backing up, it got stuck, which caused the 
 
            front-end assembly to come off and put some 700-900 pounds 
 
            on claimant, causing immediate pain.  Claimant eventually 
 
            underwent surgery at the hands of Donald Mackenzie, M.D., 
 
            which the physician described as right-sided L4-5 and L5-S1 
 
            laminotomies and discectomies with foraminotomies at both 
 
            levels.  Following a return to work, claimant experienced 
 
            significantly increased pain and underwent further surgery 
 
            on July 31, 1984, again being treated by Dr. Mackenzie.  The 
 
            surgery followed a diagnosis of arachnoiditis and was 
 
            described as a right L4-5 exploration with complete right 
 
            laminectomy at L5, lysis of adhesions, foraminotomy at L4-5 
 
            and foraminotomy and adhesiolysis at S1.  A free fat graft 
 
            was placed over the defects.
 
            
 
                 Claimant was released to return to work in October, 
 
            1984, but was eventually laid off in a general layoff.  In 
 
            the meantime, he developed neck pain not proven to be 
 
            causally related to the work injury.  Richard F. Neiman, 
 
            M.D., who saw claimant for his cervical problems, imposed a 
 
            25-pound lifting limit and restrictions against overhead 
 
            lifting.  Due to those restrictions, claimant has not been 
 
            offered further work with Fruehauf.  He was unemployed at 
 
            the time of the arbitration hearing and so remained at the 
 
            time of the review-reopening hearing.
 
            
 
                 Dr. Mackenzie opined in a deposition before the 
 
            arbitration hearing that claimant had suffered a permanent 
 
            impairment equal to 30 percent of the body as a whole 
 
            pursuant to guidelines of the American Academy of 
 
            Orthopaedic Surgeons.  In a second deposition, Dr. Mackenzie 
 
            revised that opinion, finding an impairment equal to 20 
 
            percent of the body as a whole.  He further expected 
 
            claimant to observe a 50-60 pound lifetime lifting limit.  
 
            Dr. Neiman opined that claimant had a disability rating of 
 
            25-30 percent.  It was unclear both to the arbitration 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            deputy and to the undersigned whether Dr. Neiman intended to 
 
            relate that rating to the neck, back, or both.  The 
 
            arbitration deputy found that claimant had sustained a 20-30 
 
            percent body as a whole impairment as a result of the low 
 
            back condition, a "significant impairment."  He noted that 
 
            claimant was continuing to suffer pain and other problems 
 
            with his back, had a limited education (seventh grade) and 
 
            was of such an age that rehabilitation would be difficult.  
 
            The deputy noted that claimant's prior work experience was 
 
            limited to conditions in which a strong and healthy back was 
 
            essential.  It was specifically found as fact that it was 
 
            unlikely that claimant would be able to return to heavy 
 
            manual labor jobs because of his low back condition.
 
            
 
                 Since the arbitration hearing, claimant has been seen 
 
            by John E. Sinning, Jr., M.D., and Ernest M. Found, Jr., 
 
            M.D., assistant professor of the Spine Diagnostic and 
 
            Treatment Center of the University of Iowa Hospitals and 
 
            Clinics.  Claimant has also been seen by his long-time 
 
            family physician, Robert R. Kemp, M.D., and Gerald Howe, 
 
            M.D., of the Steindler Clinic.
 
            
 
                 Dr. Sinning referred claimant to Dr. Found for a 
 
            functional capacity evaluation which was completed on May 
 
            11, 1988.  Dr. Found wrote that claimant had zero active 
 
            range of motion of the trunk, and that the physical 
 
            therapist for the spine team felt that his maximum lifting 
 
            limit should be 30 pounds with a repetitive lifting limit of 
 
            15 pounds and sitting tolerance limited to 45 minutes.  As 
 
            had Dr. Sinning, Dr. Found recommended continued physical 
 
            therapy.  Claimant was found not to be a suitable candidate 
 
            for the clinic's low back pain rehabilitation program.  Dr. 
 
            Found opined that claimant had an impairment equivalent to 
 
            18 percent of the body as a whole.
 
            
 
                 Dr. Sinning was of the view that claimant had a 15-20 
 
            percent impairment of function.  He did not believe claimant 
 
            was a suitable candidate for further physical conditioning 
 
            or a formal back rehabilitation program, at least as of his 
 
            letter to defense counsel dated March 29, 1988.
 
            
 
                 Although Dr. Kemp has seen claimant for his back 
 
            condition and prescribed medications, he has apparently not 
 
            imposed medical restrictions other than those of the 
 
            treating physician or rated claimant's impairment.  His 
 
            billings, claimant's exhibit 58, show services to claimant 
 
            on May 24, July 18, October 3 and November 28, 1988 and 
 
            March 20, 1989.  Dr. Kemp's chart notes reflect that 
 
            claimant was seen at least in part for his back condition on 
 
            each occasion.  Defendants' attorney was specifically 
 
            notified by a letter from Dr. Sinning dated February 9, 
 
            1988, that claimant continued to be followed by Dr. Kemp.  
 
            The record does not reflect that claimant was ever advised 
 
            that he lacked authorization for these treatments, which 
 
            clearly relate to his low back condition previously found 
 
            compensable.  The same observations are true with respect to 
 
            Keokuk Area Hospital charges totalling $81.65 for a back 
 
            brace.  Claimant personally paid each bill.
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            
 
                 Dr. Howe appears to recommend additional surgery by way 
 
            of fusion.  He does not appear to impose restrictions or to 
 
            evaluate claimant's impairment. 
 
            
 
                 Pamela J. Christy, D.O., reviewed claimant's medical 
 
            records and wrote on October 6, 1988, that claimant should 
 
            be considered a candidate for total disability and was 
 
            incapable of returning to the work for which he was trained.
 
            
 
                 Claimant testified that his condition is now worse than 
 
            it was at the time of the arbitration hearing.  He is always 
 
            in pain, his back is stiffer, he is unable to sit upright 
 
            properly (he demonstrated that he braces himself with his 
 
            arms), he is unable to sit without a brace more than 5-10 
 
            minutes or stand more than 15 minutes.  Claimant has given 
 
            up the idea of seeking employment and knows of no job he can 
 
            do, either in the work place or at home.
 
            
 
                 Claimant has had no work within his restrictions since 
 
            the time of the first hearing.  This was also true before 
 
            the first hearing, from August, 1985.  He was advised both 
 
            before and after the arbitration hearing by Job Service of 
 
            Iowa representatives that it was unlikely he would be hired 
 
            due to his back problems.  Claimant could not weld before or 
 
            after the arbitration hearing.  He could do only a "very 
 
            little" carpentry prior to the arbitration hearing, and now 
 
            states that he is able to do even less.
 
            
 
                                conclusions of law
 
            
 
                 Pursuant to Iowa Code section 86.14(2), in a proceeding 
 
            to reopen an award for payments, inquiry is to be made into 
 
            whether or not the condition of the employee warrants an end 
 
            to, diminishment of, or increase of compensation previously 
 
            awarded.  A change in condition must be shown to justify 
 
            changing the original award.  Henderson v. Iles, 250 Iowa 
 
            787, 96 N.W.2d 321 (1959).  It is not proper to merely 
 
            redetermine the condition of the employee as adjudicated by 
 
            the former award.  Stice v. Consol. Indus. Coal Co., 228 
 
            Iowa 1031, 291 N.W.2d 452 (1940).
 
            
 
                 A mere difference of opinion of experts or competent 
 
            observers as to the degree of disability arising from the 
 
            original injury is insufficient to justify a different 
 
            determination on a petition for review-reopening; there must 
 
            be substantial evidence of a worsening of the condition not 
 
            contemplated at the time of the first award.  Bousfield v. 
 
            Sisters of Mercy, 249 Iowa 64, 86 N.W.2d 109 (1957).  Or, a 
 
            change in condition may be found where claimant has failed 
 
            to improve to the extent initially anticipated, Meyers v. 
 
            Holiday Inn of Cedar Falls, Iowa, 272 N.W.2d 24 (Iowa App. 
 
            1978).  Additionally, in cases not involving scheduled 
 
            members, a change in earning capacity subsequent to the 
 
            original award which is proximately caused by the original 
 
            injury may constitute a change in condition.  Blacksmith v. 
 
            All-American, Inc., 290 N.W.2d 348 (Iowa 1980).
 
            
 
                 Claimant certainly has severe industrial disability, 
 
            but it is not the function of this deputy to evaluate that 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            disability unless it be found that he has undergone a change 
 
            of condition.  No such change in condition appears of 
 
            record.  Estimates of claimant's physical impairment are now 
 
            even less than they were at the time of the arbitration 
 
            hearing.  Physical restrictions suggested by the University 
 
            of Iowa as part of an evaluation are less than the 
 
            restrictions imposed by Dr. Mackenzie.  The arbitration 
 
            deputy determined that claimant was unlikely to return to 
 
            work similar to that in which he was experienced, and such 
 
            has proven to be the case.  Claimant was not working at the 
 
            time of the arbitration decision and has not worked since.  
 
            While claimant states that his physical condition is now 
 
            worse than in 1986, his subjective opinion is less valuable 
 
            in determining his limitations than is the objective opinion 
 
            of a trained and licensed physician.  Even less is that 
 
            subjective opinion capable by itself of establishing the 
 
            requisite change in condition to reevaluate industrial 
 
            disability.  Accordingly, there shall be no reconsideration 
 
            of the arbitration decision with respect to industrial 
 
            disability.
 
            
 
                 Claimant shall be allowed compensation under Iowa Code 
 
            section 85.27 for the bills of Dr. Kemp (all treatment for 
 
            his back concerning which defendants were notified) and the 
 
            Keokuk Area Hospital bill for claimant's back brace.  As 
 
            claimant has paid each bill out of pocket, defendants shall 
 
            reimburse him directly.  Because defendants were notified 
 
            directly that claimant was undergoing further treatment from 
 
            his family physician, defendants should have warned him that 
 
            such charges were not authorized rather than seeking to 
 
            interpose lack of authorization as a defense at this late 
 
            date.
 
            
 
                                      order
 
            
 
                 THEREFORE, IT IS ORDERED:
 
            
 
                 As claimant has failed to establish a change of 
 
            condition, his industrial disability shall not be 
 
            reevaluated.
 
            
 
                 Defendants shall directly reimburse claimant for his 
 
            Keokuk Area Hospital bill totalling eighty-one and 65/100 
 
            dollars ($81.65) and billings from Dr. Kemp totalling 
 
            seventy-six and 00/100 dollars ($76.00).
 
            
 
                 Each party shall be responsible for its own costs 
 
            pursuant to Division of Industrial Services Rule 343-4.33.
 
            
 
                 Signed and filed this ______ day of ____________, 1990.
 
            
 
                 
 
            
 
                 
 
                 
 
                                          ______________________________
 
                                          DAVID RASEY
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            
 
            Mr. James P. Hoffman
 
            Attorney at Law
 
            Middle Road
 
            P.O. Box 1066
 
            Keokuk, Iowa  52632
 
            
 
            Mr. Elliott R. McDonald, Jr.
 
            Attorney at Law
 
            P.O. Box 2746
 
            Davenport, Iowa  52809
 
            
 
            
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                               1402.40
 
                                               Filed August 22, 1990
 
                                               DAVID RASEY
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            DELBERT HEMMIE,               :
 
                                          :
 
                 Claimant,                :
 
                                          :         File No. 753787
 
            vs.                           :
 
                                          :          R E V I E W -
 
            FRUEHAUF CORPORATION,         :
 
                                          :        R E O P E N I N G
 
                 Employer,                :
 
                                          :         D E C I S I O N
 
            and                           :
 
                                          :
 
            CNA INSURANCE,                :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ____________________________________________________________
 
            
 
            1402.40
 
            Claimant with reduced medical opinions as to physical 
 
            impairment and limitations did not establish change of 
 
            condition in review-reopening.
 
            
 
 
        
 
 
 
 
 
                       BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
        
 
        
 
        VIOLA FUGARINO,
 
        
 
            Claimant,                   File No. 754230
 
        
 
        vs.                                 A P P E A L
 
        
 
        IOWA CITY COMMUNITY SCHOOLS,      D E C I S I O N
 
        
 
            Employer,
 
        
 
        and
 
        
 
        EMPLOYERS MUTUAL COMPANIES,
 
        
 
            Insurance Carrier,
 
            Defendants.
 
        
 
        
 
                                 STATEMENT OF THE CASE
 
        
 
        Claimant appeals from an arbitration decision awarding permanent 
 
        partial disability benefits.
 
        
 
        The record on appeal consists of the transcript of the 
 
        arbitration proceeding and Joint Exhibits 1 through 25. Both 
 
        parties filed briefs on appeal, and claimant filed a reply brief.
 
        
 
                                      ISSUE
 
                                                
 
        Claimant states the following issue on appeal:
 
        
 
        Whether the claimant's depressive condition is causally connected 
 
        to her work injury on October 20, 1983.
 
        
 
                                 REVIEW OF THE EVIDENCE
 
        
 
        The arbitration decision adequately and accurately reflects the 
 
        pertinent evidence and it will not be set forth herein.
 
        
 
                                 APPLICABLE LAW
 
        
 
        The claimant has the burden of proving by a preponderance of the 
 
        evidence that the injury of October 20, 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).
 
        
 
        FUGARINO V. IOWA CITY COMMUNITY SCHOOLS
 
        Page 2
 
        
 
        
 
        A possibility is insufficient; a probability is necessary. Burt 
 
        v. John Deere Waterloo Tractor Works, 247 Iowa 691, 73 N.W.2d 732 
 
        (1955). The question of causal connection is essentially within 
 
        the domain of expert testimony. Bradshaw v. Iowa Methodist 
 
        Hospital, 251 Iowa 375, 101 N.W.2d 167 (1960).
 
        
 
        However, expert medical evidence must be considered with all 
 
        other evidence introduced bearing on the causal connection. Burt, 
 
        247 Iowa 691, 73 N.W.2d 732. The opinion of experts need not be 
 

 
        
 
 
 
 
 
        couched in definite, positive or unequivocal language. Sondag v. 
 
        Ferris Hardware, 220 N.W.2d 903 (Iowa 1974). However, the expert 
 
        opinion may be accepted or rejected, in whole or in part, by the 
 
        trier of fact. Id. at 907. Further, the weight to be given to 
 
        such an opinion is for the finder of fact, and that may be 
 
        affected by the completeness of the premise given the expert and 
 
        other surrounding circumstances. Bodish, 257 Iowa 516, 133 N.W.2d 
 
        867. See also Musselman v. Central Telephone Co., 261 Iowa 352, 
 
        154 N.W.2d 128 (1967).
 
        
 
        If 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 
 
        percentages of the total physical and mental ability of a normal 
 
        man."
 
        
 
        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;
 
        
 
        FUGARINO V. IOWA CITY COMMUNITY SCHOOLS
 
        Page 3
 
        
 
        
 
        and inability because of the injury to engage in employment for 
 
        which the employee is fitted. Loss of earnings caused by a job 
 
        transfer for reasons related to the injury is also relevant. 
 
        These are matters which the finder of fact considers collectively 
 
        in arriving at the determination of the degree of industrial 
 
        disability.
 
        
 
        There are no weighting guidelines that indicate how each of the 
 
        factors are to be considered. There are no guidelines which give, 
 
        for example, age a weighted value of ten percent of the total 
 
        value, education a value of fifteen percent of total, motivation 
 
        - five percent work experience - thirty percent, etc. Neither 
 
        does a rating of functional impairment directly correlate to a 
 
        degree of industrial disability to the body as a whole. In other 
 
        words, there are no formulae which can be applied and then added 
 
        up to determine the degree of industrial disability. It therefore 
 
        becomes necessary for the deputy or commissioner to draw upon 
 
        prior experience, general and specialized knowledge to make the 
 
        finding with regard to degree of industrial disability. See 
 
        Peterson v. Truck Haven Cafe, Inc., (Appeal Decision, February 
 

 
        
 
 
 
 
 
        28, 1985); Christensen v. Hagen, Inc., (Appeal Decision, March 
 
        26, 1985).
 
        
 
                                      ANALYSIS
 
        
 
        Claimant's medical evidence establishes that claimant suffers 
 
        from myofascial syndrome and depression. Several of claimant's 
 
        physicians pointed out that claimant was depressed and needed a 
 
        psychiatric evaluation. The testimony of claimant and her husband 
 
        regarding claimant's lack of depression prior to her injury is 
 
        unrebutted. Thus,-there is little dispute in the record that 
 
        claimant suffered from depression subsequent to her injury of 
 
        October 20, 1983.
 
        
 
        Claimant has the burden to show that her condition was caused by 
 
        the injury of October 20, 1983. Dr. Carlstrom opined that 
 
        claimant's myofascial syndrome is causally related to her injury. 
 
        Dr. Carlstrom did not differentiate between claimant's physical 
 
        and mental conditions in his statement of causal connection to 
 
        the work injury.
 
        
 
        Claimant alleges that her mental condition causes a portion of 
 
        her present disability. Claimant bears the burden of proving that 
 
        her present mental condition is causally related to her injury. 
 
        Although the testimony of claimant and her husband that claimant 
 
        did not suffer depression prior to her injury is significant, 
 
        causal connection must be established by competent medical 
 
        testimony.
 
        
 
        Claimant underwent a psychological examination by Richard
 
        
 
        FUGARINO v. IOWA CITY COMMUNITY SCHOOLS
 
        Page 4
 
        
 
        
 
        Dill, but no findings were made as to a causal connection with 
 
        claimant's injury. The only medical evidence causally connecting 
 
        claimant's present mental condition to her injury is the 
 
        statement by Dr. Carlstrom that claimant's overall condition is 
 
        caused by her injury. Even if Dr. Carlstrom's statement is 
 
        interpreted as causally linking claimant's present mental 
 
        condition to her injury, it is noted that Dr. Carlstrom's area of 
 
        medical specialty is neurology. Dr. Carlstrom is not a 
 
        psychiatrist or a psychologist. Dr. Carlstrom's testimony is 
 
        given little weight because it only vaguely refers to claimant's 
 
        mental condition.
 
        
 
        Claimant was advised by numerous physicians to obtain the 
 
        services of a psychiatrist, but claimant refused such treatment. 
 
        Because no psychiatric or psychological evidence causally 
 
        connecting claimant's depression with her work injury appears in 
 
        the record, claimant has failed to carry her burden of proof to 
 
        causally connect her present depression to her work injury.
 
        
 
        Claimant's industrial disability must be determined. Claimant 
 
        was 39 years old at the time of the hearing, with a GED diploma. 
 
        She has worked only approximately four of her twenty years of 
 
        married life. Her past positions have involved light duty work 
 
        such as clerk or clerical duties. Although claimant states she 
 
        is unable to perform any of these duties at this time, she has no 
 
        medical restrictions. The vocational rehabilitation nurse was 
 
        able to find two positions claimant could perform, cosmetics 
 
        clerk and receptionist. Claimant has a permanent impairment 
 
        rating of 1-2 percent of the body as a whole. Claimant still 
 
        suffers from pain, headaches and mild tremors. Claimant's test 
 
        results show she is able to perform the routine math skills most 
 

 
        
 
 
 
 
 
        likely involved in the kind of positions claimant would qualify 
 
        for. Claimant does suffer some memory loss and continues to 
 
        suffer from depression. Claimant rejected the services of a pain 
 
        center. Claimant initially declined to avail herself of 
 
        psychiatric services which several doctors recommended she 
 
        undertake. Claimant has not sought any employment.
 
        
 
        Based on these and all other appropriate factors for determining 
 
        industrial disability, claimant is determined to have an 
 
        industrial disability of 10 percent.
 
        
 
                                 FINDINGS OF FACT
 
        
 
        1. Claimant suffered an injury that arose out of and in the 
 
        course of her employment on October 20, 1983.
 
        
 
        2. Claimant's injury consisted of a backward fall after she was 
 
        tripped by a student she was supervising.
 
        
 
        FUGARINO V. IOWA CITY COMMUNITY SCHOOLS
 
        Page 5
 
        
 
        
 
        3. Claimant experienced pain throughout her body as well as 
 
        nausea, loss of memory, headaches, and body tremors subsequent to 
 
        her injury.
 
        
 
        4. Claimant has experienced depression subsequent to her injury.
 
        
 
        5. Claimant had rejected suggested psychiatric treatment from her 
 
        injury until time of hearing.
 
        
 
        6. Claimant has a myofascial injury.
 
        
 
        7. Claimant was 39 years old at time of hearing.
 
        
 
        8. Claimant has completed the eleventh grade and has obtained a 
 
        GED.
 
        
 
        9. Claimant has past work experience as a factory assembly 
 
        worker, a check processor, a computer operator, a lingerie sales 
 
        clerk, and a school bus driver and education aide for profoundly 
 
        and severely handicapped children.
 
        
 
        10. Claimant has not sought employment since her injury.
 
        
 
        11. Claimant has no physician imposed work restrictions, but has 
 
        a permanent physical impairment rating of 1-2 percent of the body 
 
        as a whole.
 
        
 
        12. Claimant has a loss of earning capacity of 10 percent.
 
        
 
                                 CONCLUSIONS OF LAW
 
                                                
 
        Claimant has established that her injury of October 20, 1983 is 
 
        the cause of the permanent partial disability on which she now 
 
        bases her claim. Claimant has failed to establish that her 
 
        present mental condition is causally connected to her work injury 
 
        of October 20, 1983.
 
        
 
        Claimant has an industrial disability of 10 percent as a result 
 
        of her injury of October 20, 1983.
 
        
 
        WHEREFORE, the decision of the deputy is affirmed.
 
        
 
                                      ORDER
 

 
        
 
 
 
 
 
                                                
 
        THEREFORE, it is ordered:
 
        
 
        That defendants pay unto claimant temporary total disability 
 
        benefits at a rate of one hundred sixteen and 15/100 dollars 
 
        ($116.15) per week from November 7, 1983 to June 23, 1985.
 
        
 
        FUGARINO V. IOWA CITY COMMUNITY SCHOOLS
 
        Page 6
 
        
 
        
 
        That defendants pay unto claimant permanent partial disability 
 
        benefits for fifty (50) weeks at the rate of one hundred sixteen 
 
        and 15/100 dollars ($116.15) from June 24, 1985.
 
        
 
        That defendants be given credit for benefits previously paid.
 
        
 
        That defendants pay accrued amounts in a lump sum. That 
 
        defendants pay interest pursuant to section 85.30.
 
        
 
        That defendants pay costs pursuant to Division of Industrial 
 
        Services Rule 343-4.33. Claimant shall pay the costs of the 
 
        transcription of the hearing proceeding.
 
        
 
        That defendants file claim activity reports as required by the 
 
        agency.
 
        
 
        Signed and filed this 30th day of September, 1988.
 
        
 
        
 
        
 
                                        DAVID E. LINQUIST
 
                                     INDUSTRIAL COMMISSIONER
 
        
 
        
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                     
 
                   BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         VIOLA FUGARINO,
 
         
 
              Claimant,
 
                                                      File No. 754230
 
         VS.
 
         
 
         IOWA CITY COMMUNITY SCHOOLS,              A R B I T R A T I 0 N
 
         
 
              Employer,                               D E C I S I 0 N
 
         
 
         and
 
         
 
         EMPLOYERS MUTUAL COMPANIES,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
                                        
 
                                   INTRODUCTION
 
         
 
              This is a proceeding in arbitration brought by the claimant, 
 
         Viola Fugarino, against her employer, Iowa City Community 
 
         Schools, and its insurance carrier, Employers Mutual Casualty 
 
         Companies, to recover benefits under the Iowa Workers' 
 
         Compensation Act, as a result of an injury sustained October 20, 
 
         1983.  This matter came on for hearing before the undersigned 
 
         deputy industrial commissioner in Des Moines, Iowa, on April 21, 
 
         1987.  A first report of injury was filed January 10, 1984.  The 
 
         parties stipulated that claimant has been paid 85 weeks of 
 
         temporary total disability from November 7, 1983 to June 23, 
 
         1985, and that claimant has been paid ten weeks of permanent 
 
         partial disability.  The record was considered fully submitted at 
 
         close of hearing.
 
         
 
              The record in this proceeding consists of the testimony of 
 
         claimant, of Joseph Fugarino, and of Patricia McCollom, as well 
 
         as of defendants' exhibits 1 through 25.
 
         
 
                                      ISSUES
 
         
 
              Pursuant to the prehearing report, the parties stipulated 
 
         that claimant's rate of weekly compensation is  $116.50; that 
 
         claimant received an injury on October 20, 1983 which arose out 
 
         of and in the course of her employment; that that injury is 
 
         causally related to temporary total disability; and that the 
 
         commencement date for any permanent partial disability award is 
 
         June 24, 1985.  Issues remaining to be decided are:
 
              
 
              1)  Whether a causal relationship exists between the 
 
         injury and claimed permanent partial disability or claimed 
 
         permanent total disability; and
 

 
         
 
         
 
         
 
         FUGARINO V. IOWA CITY COMMUNITY SCHOOLS
 
         Page   2
 
         
 
         
 
         
 
              2)  Whether claimant is entitled to benefits and the 
 
         nature and extent of such benefit entitlement, including the 
 
         related question of whether claimant is an odd-lot worker under 
 
         the Guyton doctrine.
 
         
 
                            REVIEW OF EVIDENCE
 
         
 
              Claimant was born June 2, 1947, is married and has three 
 
         children.  She has completed the eleventh grade and has obtained 
 
         a GED.  She also has taken, but did not complete, a bookkeeping 
 
         course.  Claimant has worked as a factory assembly worker, a 
 
         check processor at the Iowa Regional Check Processing Center, a 
 
         computer operator, and a school bus driver for special education 
 
         students, as well as department store lingerie clerk before 
 
         beginning work as an educational aide with severe to profoundly 
 
         handicapped preschoolers.  Claimant initially characterized all 
 
         of her preinjury employment as requiring lifting of thirty to 
 
         fifty pounds or more at times.  She indicated that the check 
 
         processing, as well as the computer operator courses, required 
 
         good math skills.  On cross-examination, she agreed that she had 
 
         characterized the store clerking and check processing as light 
 
         work in her deposition.
 
         
 
              Claimant testified that she was injured on October 20, 1983 
 
         when she fell backwards in a hallway between the school 
 
         administrative offices and the nurse's office at approximately 
 
         12:45 p.m. after being tripped by a nine year old emotionally 
 
         disturbed child.  She reported that she lost consciousness for 
 
         approximately ten to fifteen minutes, but that the child, 
 
         described as unruly, remained in the hall throughout that time 
 
         and was laughing when she regained consciousness.  Claimant 
 
         reported that she reported the incident to the school secretary 
 
         several days after it happened.  She denied that she had ever 
 
         reported that she fell on her left side, that she had struck her 
 
         left shoulder, or that she had fell on top of the child.  
 
         Claimant stated that she was extremely nauseous and had headaches 
 
         and pain on the day following the injury with vomiting and vision 
 
         problems, as well as stiffness and difficulty walking and 
 
         difficulty getting out of bed.  She reported that she did not see 
 
         a physician until seven days after the incident, however.  
 
         Claimant testified that she has had no improvement in her 
 
         condition in the past two and one-half years and that she 
 
         continues to have severe pain throughout her body as well as 
 
         severe headaches.  She reported that she has increased pain in 
 
         her neck, back, and hips, and that she has one-sided headaches, 
 
         occurring either on the left or the right side approximately 
 
         every five to ten days and lasting three to five days.  Claimant 
 
         stated that her only relief from these headaches is to lie down 
 
         and wait them out, and that they make her nauseous and cause her 
 
         to vomit.  Claimant described her muscles as "like rocks" and 
 
         stated that she has shooting, stabbing pains in her joint.  She 
 
         reported that she is very weak some days and cannot lift even a 
 
         toothbrush.  Claimant described herself as having balance 
 
         problems and body tremors which cause her to shake.  She reported 
 
         memory problems, very poor concentration, and using words out of 
 
         context as well as misspelling words.  Claimant self-described as 
 
         having very limited range of motion and as walking in very short 
 
         steps.  She stated that she felt she was unable to work in any 
 

 
         
 
         
 
         
 
         FUGARINO V. IOWA CITY COMMUNITY SCHOOLS
 
         Page   3
 
         
 
         
 
         job she had previously held.  Claimant reported that she no 
 
         longer socializes, travels, plays ball, or picnics with her 
 
         family as she had done preinjury.  She reported that she is no 
 
         longer able to do crafts or hand work on account of tremors.  She 
 
         reports that she cooks when she feels well enough to do so, but 
 
         otherwise does very little housework and does not grocery shop or 
 
         balance her checkbook.  Claimant testified that she no longer 
 
         flower gardens or mows her lawn and goes nowhere alone as she 
 
         fears she will fall.  Claimant agreed that she had rode to 
 
         California in 1985, however.  Claimant takes Naprosyn two times 
 
         daily as well as Extra Strength Tylenol.  She reported that she 
 
         had submitted a $12 charge for Tylenol and a $14 charge for an 
 
         office business to the Oelwein Valley Practice Clinic.  She 
 
         reported that visit was to permit a refill of her Naprosyn 
 
         prescription.
 
         
 
              Claimant could not recall having a conflict with Dr. Tegler 
 
         regarding his treatment and recommendations, but agreed that she 
 
         generally rejected physicians' suggestions that she seek 
 
         psychiatric help.  Claimant testified that she is not adverse to 
 
         psychiatric treatment, but reported that she had never 
 
         communicated to the insurer her desire to now seek psychiatric 
 
         care.  She agreed that she rejected an offer of pain center 
 
         treatment.  Claimant denied that she had had family or marital 
 
         problems in 1984.  She agreed that she had seen vocational 
 
         rehabilitation nurse Patricia McCollom in 1984 and 1985.  
 
         Claimant stated she has not sought work since then and feels she 
 
         is not able to work.  She reported that she would have told any 
 
         physician releasing her to work that the physician did not know 
 
         of what he was talking.
 
         
 
              Claimant agreed that the insurer had provided a whirlpool, 
 
         and exercise bike and payment for fitness center on her request. 
 
          She stated that if the insurer really cared, the insurer would 
 
         have stayed on top of things and not left her stranded.  She 
 
         characterized the insurer as "not there for her as it should have 
 
         been" and stated that she felt neglected.
 
         
 
              Joseph Fugarino, claimant's husband since August 1966, 
 
         corroborated claimant's testimony regarding her pre and post 
 
         injury physical and emotional condition and her activity 
 
         restrictions following the injury.  He agreed that there have 
 
         been substantial periods in the couple's marriage in which 
 
         claimant has not been employed.
 
         
 
              Patricia McCollom, a rehabilitation nurse consultation, 
 
         initially met with claimant and her husband on April 10, 1984 and 
 
         followed claimant through June 26, 1985.  She reported that 
 
         claimant's husband was present at interviews generally throughout 
 
         this period, even taking off from work to be present.  Ms. 
 
         McCollom reported that because of claimant's symptoms, she 
 
         initially suggested a referral to Mayo Clinic for neurological 
 
         evaluation.  She reported that that evaluation was not completed, 
 
         but that the Mayo physicians suggested psychiatric care for 
 
         claimant which claimant and her husband resisted.  Ms. McCollom 
 
         then recommended that claimant be referred to W C. Koenig, M.D., 
 
         whom Ms. McCollom characterized as a physical medicine and 
 
         rehabilitation specialist.  McCollom stated that she suggested 
 
         referral to Dr. Koenig as she had felt claimant had symptoms 
 

 
         
 
         
 
         
 
         FUGARINO V. IOWA CITY COMMUNITY SCHOOLS
 
         Page   4
 
         
 
         
 
         consistent with multiple sclerosis.  She reported that Dr. Keonig 
 
         subsequently diagnosed claimant as having a myofascial pain 
 
         syndrome, but that tests for multiple sclerosis were negative.  
 
         Dr. Keonig apparently subsequently referred claimant to Thomas 
 
         Carlstrom, M.D.  Tests of Dr. Carlstrom for arterial venous 
 
         malformation were negative.  Ms. McCollom also arranged for a 
 
         psychiatric consultation with Michael Taylor, M.D.  Ms. McCollom 
 
         opined it might have been helpful had claimant participated in 
 
         some of the counseling recommended for her.  She reported that 
 
         claimant had had a decrease in her complaints in the first two 
 
         months [apparently when she worked with claimant] but that her 
 
         symptoms had increased as weather had become colder with claimant 
 
         having observable increased tremors, facial paralysis, and 
 
         difficulty with speech.  Ms. McCollom indicated that she had 
 
         conducted a job search in the Oelwein area where claimant was 
 
         then living and had located potential jobs as a cosmetics counter 
 
         clerk and as a receptionist for claimant.  She indicated that 
 
         during this period, claimant volunteered for one hour per week in 
 
         parenting classes sponsored by claimant's church.
 
         
 
              A clinical note of Wayne Tegler, M.D., of November 9, 1983, 
 
         reports that claimant stated she was tripped by a handicapped 
 
         child approximately three weeks ago and fell backwards striking 
 
         her head, shoulders, arms, left hip, and knee.  He reports 
 
         claimant as having increased pain in the neck and shoulder area 
 
         and as having aggravated her neck and shoulder pain on the 
 
         morning of the examination when two youngsters were fighting and 
 
         she tried to pull them apart.  The doctor noted that on 
 
         examination, claimant appeared to be a little depressed, but in 
 
         no acute distress.  She was ambulating quite well and had some 
 
         discomfort in the neck and shoulders when she flexed and rotated 
 
         her head.  Claimant had tenderness in the upper cervical dorsal 
 
         junction.  Reflexes were 1/1 with good hand grip and good back 
 
         range of motion of the back.  Dr. Tegler reported on November 22, 
 
         1983, that on examination, motion of the entire spine was 
 
         guarded, but not restricted with crepititis in both shoulders and 
 
         no scapular grading.  He reported that x-rays of the total spine 
 
         revealed a completely normal skeletal structure with no 
 
         fractures, no arthritis, and no congenital abnormalities.
 
         
 
              On January 6, 1984, James P. Worrell, M.D., reported that 
 
         claimant's neck movements were guarded but not really painful.  
 
         Range of motion of the back was limited.  The [back area] was 
 
         diffusely tender albeit in a rather nonspecific way.  Range of 
 
         motion of the hips and straight leg raising were negative.  Arms 
 
         and legs were strong with normal tone.  Claimant was somewhat 
 
         tremulously with outstretched hands, with the tremor very rapid 
 
         and of low aptitude.  Reflexes were brisk and symmetrical without 
 
         pathological reflexes.  Sensory exam was normal, and hop, gait, 
 
         Romberg, and tandem were all performed okay.  Dr. Worrell 
 
         reported that claimant is depressed at times, but feels she is 
 
         more angry than anything else with the anger directed at the 
 
         injury more than any one thing.  The doctor reported that 
 
         claimant's husband was equally concerned with [her] state, but 
 
         both were very unwilling to accept a psychiatric cause [for any 
 
         of her problems].  Dr. Worrell characterized claimant as having a 
 
         rather severe injury syndrome of rather nonspecific nature and 
 
         stated there was almost certainly an extremely severe, if not 
 
         entire, functional overlay to the problem.
 

 
         
 
         
 
         
 
         FUGARINO V. IOWA CITY COMMUNITY SCHOOLS
 
         Page   5
 
         
 
         
 
         
 
              G. M. Vandervelde, M.D., reported that a CT scan of the head 
 
         of March 27, 1984 was negative.
 
         
 
              On May 1, 1985, S. M. Cook, M.D., reported that he had last 
 
         examined claimant on March 11, 1985 and was seeing her 
 
         approximately every three months.  He reported his diagnosis as 
 
         remaining myofascial, pain syndrome and affective disorder, 
 
         depressed type, but difficult to control due to intolerance of 
 
         side effects of antidepressant medications.  He then reported 
 
         claimant remained on Naprosyn 250 mg. BID which allowed her to 
 
         function at home with limitation to strenuous activities such as 
 
         vacuuming, lifting heavy objects, and washing windows, etc.  On 
 
         November 28, 1984, Dr. Cook had opined that claimant continued to 
 
         have symptoms of discomfort and findings of tenderness of the 
 
         paraspinus musculature of the thoracic spine.  In addition, she 
 
         had prominent symptoms of depression.  He reported that 
 
         claimant's passive-aggressive personality make treating her 
 
         rather difficult.  He anticipated that claimant would continue to 
 
         have similar problems at varying degrees for years.  He stated it 
 
         was impossible to say that she had suffered any permanent 
 
         functional impairment as she had been unable to accept or 
 
         tolerate the recommended treatment.  On June 25, 1984, Dr. Cook 
 
         had diagnosed claimant's problems as possible post traumatic 
 
         syndrome, possible vascular headaches, rule-out degenerative 
 
         neurologic disorder, that is, multiple sclerosis, and psychiatric 
 
         disorder questionable, depressive illness secondary to diagnosis 
 
         number 1 and number 2.  He reported that he could not say with 
 
         certainty whether her injury caused all of her problems, but that 
 
         it would not difficult to "describe" many of them to her injury.
 
         
 
              J. M. Kiely, M.D., of the Mayo Clinic, reported on May 31, 
 
         1984 that claimant was tremulous and obviously very anxious 
 
         during examination with considerable local tenderness in the 
 
         musculoskeletal area on deep palpation.  She had some slight 
 
         limitation of the internal rotation of the right shoulder girdle 
 
         suggesting a mild tendinitis but the musculoskeletal examination 
 
         otherwise showed no restriction of motion and no evidence of 
 
         synovial thickening or intra-articular fluid formation.  He 
 
         reported that an automated version of the Minnesota Multiphasic 
 
         Personality Inventory was obtained and that the inventory 
 
         "certainly fits the fact that the patient has a multitude of 
 
         physical symptoms which seem to be due basically to nervous 
 
         tension and musculoskeletal stress and strain."  He reported that 
 
         claimant was unable to come up with any obvious precipitating 
 
         emotional or psychological problems to account for the onset of 
 
         her symptoms following the injury.  He indicated that a Dr. 
 
         Gordon Moore of MayoOs psychiatry department felt that claimant 
 
         would benefit from a comprehensive in-patient psychiatric 
 
         treatment program.
 
         
 
              Thomas A. Carlstrom, M.D., admitted claimant to the Iowa 
 
         Methodist Medical Center from January 28, 1985 through January 
 
         30, 1985.  On February 12, 1985, he reported that on examination 
 
         he was unable to find any significant abnormalities which he 
 
         would describe as organic.  He stated claimant appeared depressed 
 
         and had a generalized tremor which he believed reflected a rather 
 
         high anxiety level.  Detailed motor and sensory examinations were 
 
         performed with no difficulty whatsoever.  Both myelographic and 
 

 
         
 
         
 
         
 
         FUGARINO V. IOWA CITY COMMUNITY SCHOOLS
 
         Page   6
 
         
 
         
 
         CT scan studies of claimant's head were entirely normal as was an 
 
         EEG.  Dr. Carlstrom reported that he saw no evidence for organic 
 
         disease in the patient whatsoever, but that there was an 
 
         extremely significant psychological overlay to all her symptoms. 
 
          He believed that any regimen would need to include some type of 
 
         psychiatric or psychological evaluation and treatment which most 
 
         likely would need to be performed independently and in some type 
 
         of setting where claimant was separated from family and other 
 
         influential persons close to her.  On March 5, 1985, Dr. 
 
         Carlstrom opined that claimant had a myofascial injury with an 
 
         extremely significant psychological component which seemed to be 
 
         work related.  On May 28, 1985, Dr. Carlstrom rated claimant's 
 
         permanent partial impairment as one to two percent of the body as 
 
         a whole.
 
         
 
              A report of Richard A. Dill, Ph.D., a clinical psychologist, 
 
         states that on July 12, 1984, claimant was administered portions 
 
         of the Luria-Nebraska Neuropsycholical Test Battery and received 
 
         a brief neuropsychological screening.  During the assessment 
 
         interview, claimant did not evidence any significate receptive or 
 
         expressive deficits and was capable of following three to five 
 
         set commands without difficulty.  She related in a pleasant 
 
         manner, being cooperative in all the various tests administered 
 
         to.her. There was no evidence of any significant thought or 
 
         affective disturbance.  She did evidence some blunted affect and 
 
         was generally unresponsive unless prompted by the evaluator to 
 
         perform an activity, however.  Neuropsychological examination 
 
         indicated slowing of fine motor activities bilaterally, which 
 
         became significantly worse as claimant was required to perform 
 
         more sequential types of activities.  She had extreme 
 
         difficulties performing more complex sequential activities 
 
         involving both hands and performed much better in a slow manner 
 
         on unilateral motor tasks.  Cognitive assessment indicated that 
 
         claimant performed in the borderline range on tests requiring 
 
         abstract reasoning and interpretation of proverbs.  She also had 
 
         difficulty concerning similarities and differences among common 
 
         objects.  Dyscalculia was in evidence on more complex verbal 
 
         arithmetic tasks.  Her estimated full scale IQ score of 99 placed 
 
         claimant within the average range of intellectual functioning.  
 
         Memory testing indicated slow acquisition rates of seven word 
 
         lists and difficult recall of sequential words when an 
 
         interference was added.  There was a significant impairment in 
 
         both short term and delayed recalls for auditorially presented 
 
         short stories.  Visual memory was grossly intact and 
 
         reproductions were essentially normal. It was not felt that 
 
         claimant was suffering from any significant central organic brain 
 
         deficits.  Peripheral deficits were ruled out since claimant's 
 
         history indicated a decreased, as opposed to an increase, in 
 
         finding motor tremor activity.
 
         
 
              Charles F. Denhart, M.D., interpreted brain stem auditory 
 
         evoked response and visual evoked response examinations of July 
 
         11, 1984 as normal.
 
         
 
              Vernon P. Varner, M.D., saw claimant on October 9, 1985.  On 
 
         October 15, 1985, he recommended that claimant be completely 
 
         "worked up" as he did not have a complete neuropsychological 
 
         assessment and understood that one had never been done.  His 
 
         presumptive diagnosis was status, post head injury with change in 
 

 
         
 
         
 
         
 
         FUGARINO V. IOWA CITY COMMUNITY SCHOOLS
 
         Page   7
 
         
 
         
 
         personality, depressive syndrome, and and typical pain syndrome. 
 
          His formal diagnosis was organic personality disorder, organic 
 
         affective disorder, and residual pain syndrome, all secondary to 
 
         head injury.  He opined that he did not believe claimant was able 
 
         to work until her disability was better and more completely 
 
         defined and that he did not believe she would be able to work in 
 
         the foreseeable future.  In a clinical note of October 9, 1985, 
 
         Dr. Varner wrote that claimant evidences depressive symptoms as 
 
         follows:
 
         
 
              She does evidence the following depressive symptoms 
 
              including initial sleep disorder, hypersomnia without rest.  
 
              She had crying spells in the past but none now.  No blue 
 
              spells and no dry crying spells.  There is a marked increase 
 
              in irritability, agitation, and anxiety.  There is a 
 
              fluctuating appetite with about a 35 pound weight gain.  At 
 
              times she is nauseated.  Her libido has dropped.  There is a 
 
              diurnal variation with the a.m. being the worst part of the 
 
              day.  She denies significant social withdrawal or social 
 
              paranoia, although some are present.  There is a decreased 
 
              concentration, decreased short term memory.  She denies 
 
              olfactory hallucinations, macropsia, micropsia, deja vu, 
 
              jamais vu, changes in colors or autoscopia.  She admits to 
 
              word finding problems and inability to phrase her words the 
 
              way she used to before the accident.  She is distressed at 
 
              her pain and her inability to cope.
 
         
 
              An Allen Memorial emergency treatment record of February 26, 
 
         1984 indicates that claimant's subjective history of her injury 
 

 
         
 
         
 
         
 
         FUGARINO V. IOWA CITY COMMUNITY SCHOOLS
 
         Page   8
 
         
 
         
 
         is that in October 1983 she fell at work and tripped over a child 
 
         and fell to the floor striking her head.  An employee's report 
 
         signed by the claimant and dated January 6, 1984 indicates that 
 
         Deb Lisgum did not see Leon "the student" trip me, that is, 
 
         claimant, but did see claimant on the floor.
 
         
 
              A Schuchmanns' Pharmacy statement of March 31, 1987 reports 
 
         a balance of $12.22.
 
         
 
              The balance of the evidence was reviewed and considered in 
 
         the disposition of this matter.
 
         
 
                           APPLICABLE LAW AND ANALYSIS
 
         
 
              We consider the question of whether claimant has an injury 
 
         causally related to either permanent partial or permanent total 
 
         disability.
 
         
 
              The claimant has the burden of proving by a preponderance of 
 
         the evidence that the injury of October 20, 1983 is causally 
 
         related to the disability on which she now bases her claim.  
 
         Bodish v. Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867 (1965). 
 
         Lindahl v. L. 0. Boggs, 236 Iowa 296, 18 N.W.2d 607 (1945).  A 
 
         possibility is insufficient; a probability is necessary.  Burt v. 
 
         John Deere Waterloo Tractor Works, 247 Iowa 691, 73 N.W.2d 73 
 
         (1955).  The question of causal connection is essentially within 
 
         the domain of expert testimony.  Bradshaw v. Iowa Methodist 
 
         Hospital, 251 Iowa 375, 101 N.W.2d 167 (1960).
 
         
 
              However, expert medical evidence must be considered with all 
 
         other evidence introduced bearing on the causal connection.  
 
         Burt, 247 Iowa 691, 73 N.W.2d 732.  The opinion of experts need 
 
         not be couched in definite, positive or unequivocal language.  
 
         Sondag v. Ferris Hardware, 220 N.W.2d 903 (Iowa 1974).  However, 
 
         the expert opinion may be accepted or rejected, in whole or in 
 
         part, by the trier of fact.  Id. at 907.  Further, the weight to 
 
         be given to such an opinion is for the finder of fact, and that 
 
         may be affected by the completeness of the premise given the 
 
         expert and other surrounding circumstances.  Bodish, 257 Iowa 
 
         516, 133 N.W.2d 867.  See also Musselman v. Central Telephone 
 
         Co., 261 Iowa 352, 154 N.W.2d 128 (1967).
 
         
 
              While claimant has various symptoms, the generally accepted 
 
         diagnosis for her conditions are myofascial pain syndrome and 
 
         depressive illness.  Dr. Carlstrom relates her myofascial pain 
 
         syndrome to her injury and opines that it has resulted in a one 
 
         or two percent permanent partial disability.  He considers the 
 
         psychological component extremely significant and reports 
 
         claimant's condition seems to be work related.  He does not 
 
         separate the physical from the psychological component in making 
 
         that statement, however.  Dr. Stone indicates that it would not 
 
         be difficult to attribute claimant's depressive condition as well 
 
         as her other diagnoses to the injury.  Dr. Tegler's November 9, 
 
         1983 office note indicates that claimant appears to have a 
 
         depressed affect as of that time, however.  As Dr. Tegler's note 
 
         was made on claimant's initial visitation following her injury, 
 
         the notes suggests that claimant's depressed affect might well 
 
         have preceded her work incident.  While an aggravation of a 
 
         preexisting condition is compensable, we have no medical opinion 
 

 
         
 
         
 
         
 
         FUGARINO V. IOWA CITY COMMUNITY SCHOOLS
 
         Page   9
 
         
 
         
 
         testimony on this record suggesting that claimant's work injury 
 
         significantly increased depressive or other psychological 
 
         symptomology other than Dr. Carlstrom's and Dr. Stone's ambiguous 
 
         statements.  Claimant's physicians variously have described her 
 
         as generally angry or as having a passive aggressive personality.  
 
         Claimant's MMPI was interpreted as consistent with a multitude of 
 
         physical symptoms which seem basically due to nervous tension and 
 
         musculoskeletal stress and strain.  These factors would suggest 
 
         that claimant's personality problems relate to a long-term 
 
         pattern of interaction more than to the effects of her injury per 
 
         se.  Therefore, without more than claimant's and her husband's 
 
         testimony that claimant has undergone a significant personality 
 
         change since her injury date, we are not able to say that 
 
         claimant's injury either produced, or aggravated her 
 
         psychological condition.  We note that Dr. Varner has opined that 
 
         claimant has symptoms consistent with a post head injury 
 
         syndrome.  We find that the neuropsychological assessment 
 
         conducted by Dr. Dill generally would not support Dr. Varner's 
 
         tentative diagnosis.  We find that claimant has a myofascial 
 
         syndrome related to her injury with preexisting significant 
 
         psychological overlay.
 
         
 
              We consider the benefit entitlement question.
 
         
 
              Initially, we note that claimant is not an odd-lot worker 
 
         under the Guyton doctrine.  Claimant has not actively sought 
 
         employment since her injury, but rather has self-assessed as 
 
         being unable to do so.  See Emshoff v. Petroleum Transportation 
 
         and Great West Casualty, appeal decision file number 753723, 
 
         filed March 31, 1987.  Nor has claimant effectively assisted in 
 
         her : own rehabilitation by taking steps recommended by her 
 
         physicians, namely, that she considers psychiatric consultation 
 
         and treatment.  See Beemblossom v. Tindal Farm Supply Co. and 
 
         Allied Mutual Insurance,f/k/a Aid Insurance arbitration decision 
 
         file number 727594, filed January 29, 1987.
 
         
 
              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 
 

 
         
 
         
 
         
 
         FUGARINO V. IOWA CITY COMMUNITY SCHOOLS
 
         Page  10
 
         
 
         
 
         the injury, its severity and the length of healing period; the 
 
         work experience of the employee prior to the injury, after the 
 
         injury and potential for rehabilitation; the employee's 
 
         qualifications intellectually, emotionally and physically; 
 
         earnings prior and subsequent to the injury; age; education; 
 
         motivation; functional impairment as a result of the injury; and 
 
         inability because of the injury to engage in employment for which 
 
         the employee is fitted.  Loss of earnings caused by a job 
 
         transfer for reasons related to the injury is also relevant.  
 
         These are matters which the finder of fact considers collectively 
 
         in arriving at the determination of the degree of industrial 
 
         disability.
 
         
 
              There are no weighting guidelines that indicate how each of 
 
         the factors are to be considered.  There are no guidelines which 
 
         give, for example, age a weighted value of ten percent of the 
 
         total value, education a value of fifteen percent of total, 
 
         motivation - five percent; work experience - thirty percent, etc.  
 
         Neither does a rating of functional impairment relate to a degree 
 
         of industrial disability to the body as a whole.  In other words, 
 
         there are no formulae which can be applied and then added up to 
 
         determine the degree of industrial disability. it therefore 
 
         becomes necessary for the deputy or commissioner to draw upon 
 
         prior experience, general and specialized knowledge to make the 
 
         finding with regard to degree of industrial disability.  See 
 
         Peterson v. Truck Haven Cafe, Inc., (Appeal Decision, February 
 
         28, 1985); Christensen v. Hagen, Inc., (Appeal Decision, March 
 
         26, 1985).
 
         
 
              Claimant is a relatively young worker.  She is of average 
 
         intelligence, and has worked in a number of positions in which 
 
         she was able to use clerical skills, computer skills, and social 
 
         interactive skills.  While claimant self-describes as unable to 
 
         utilize any those skills or to engage in heavy manual labor, no 
 
         physician has imposed restrictions on claimant.  Her permanent 
 
         partial impairment rating is minute, at best.  Claimant appeared 
 
         to exaggerate both her symptoms and her lack of abilities at 
 
         hearing.  Consequently, her self-described restrictions are not 
 
         found to be credible and assessment of claimant's overall 
 
         residual earning capacity is made more difficult.  Ms. McCollum 
 
         did not render an opinion relative to claimant's residual earning 
 
         capacity, indicating that at the time that she ceased involvement 
 
         with claimant's case, claimant was as yet medically unable or 
 
         unwilling to consider employment.  Ms. McCollum did identify two 
 
         positions within claimant's skill level in claimant's then local 
 
         vicinity, namely, cosmetics clerk, and receptionist.  We find it 
 
         not unreasonable that claimant should be able to be employed in 
 
         like positions in the future.  Nor do we accept claimant's belief 
 
         that she could not return to work as a lingerie clerk, education 
 
         aide, check processor, or computer operator.  We find that each 
 
         of these might well be within claimant's remaining capacities 
 
         were she to attempt work.  While claimant stressed that many 
 
         positions required math skills, Dr. Dill only found dyscalculia 
 
         with more complex arithmetic tasks.  It is doubtful that problem 
 
         would affect claimant's ability to perform the jobs outlined.  
 
         Likewise, we have no substantial evidence that claimant could not 
 
         at least attempt factory assembly work.  We find that the 
 
         credible evidence, at most, indicates that claimant has sustained 
 
         a loss of earning capacity of ten percent.
 

 
         
 
         
 
         
 
         FUGARINO V. IOWA CITY COMMUNITY SCHOOLS
 
         Page  11
 
         
 
         
 
         
 
                                 FINDINGS OF FACT
 
         
 
              WHEREFORE, IT IS FOUND:
 
         
 
              Claimant fell backwards in a hallway while working in a 
 
         school as an education aide after being tripped by a nine year 
 
         old emotionally disturbed child.
 
         
 
              Claimant has had headache, fatigue, weakness, tremor and 
 
         pain throughout her body as well as anxiety and a depressed 
 
         affect.
 
         
 
              Claimant's depressed affect was apparent on initial 
 
         examination following the injury.
 
              Claimant's depressive condition likely predated the injury.
 
         
 
              Claimant appears angry and has a passive aggressive style of 
 
         relating as described by her physicians.
 
         
 
              Claimant's Minnesota Multiphasic Personality Inventory was 
 
         consistent with an individual having a multitude of physical 
 
         symptoms which seem due basically to nervous tension and 
 
         musculoskeletal stress and strain.
 
         
 
              Claimant has rejected suggested pain center treatment.
 
         
 
              Claimant had rejected suggested psychiatric treatment from 
 
         her injury until time of hearing.
 
         
 
              Claimant's tremor is a very rapid and of low aptitude and 
 
         relates to her anxiety.
 
         
 
              Claimant has a myofascial injury with an extremely 
 
         significant psychological component.
 
         
 
              Claimant does not have significant central organic brain 
 
         deficits and peripheral deficits.
 
         
 
              Claimant's personality problems relate to a long-term 
 
         pattern of interaction more than to the effects of her injury per 
 
         se.
 
         
 
              Claimant was 40 years old on June 2, 1947.
 
         
 
              Claimant has completed eleventh grade and has obtained a 
 
         GED.
 
         
 
              Claimant began, but did not complete, a bookkeeping course.
 
         
 
              Claimant has past work experience as a factory assembly 
 
         worker, a check processor, a computer operator, a lingerie sales 
 
         clerk, and a school bus driver and education aide for profoundly 
 
         and severely handicapped children.
 
         
 
             Claimant has not sought employment since her injury.
 
         
 
              Claimant has not effectively assisted in her own 
 
         rehabilitation.
 

 
         
 
         
 
         
 
         FUGARINO V. IOWA CITY COMMUNITY SCHOOLS
 
         Page  12
 
         
 
         
 
         
 
              Claimant has no physician imposed work restrictions.
 
         
 
              Claimant's dyscalculia is present only with more complex 
 
         arithmetic tasks.
 
         
 
              Claimant's dyscalculia would not impact on her ability to 
 
         hold positions held prior to her injury.
 
         
 
         
 
         
 
              Claimant's self-described life and work limitations were not 
 
         a credible assessment of her post injury work restrictions.
 
         
 
              Positions as a receptionist and cosmetics sales clerk were 
 
         located for claimant and are within her physical, intellectual, 
 
         and educational abilities.
 
         
 
              Many of claimant's preinjury work positions likely remain 
 
         within claimant's post injury physical, intellectual, and 
 
         educational abilities.
 
         
 
              Claimant has a one to two percent permanent partial 
 
         impairment to the body as a whole.
 
         
 
              Claimant has a loss of earnings capacity of ten percent 
 
         (10%).
 
         
 

 
         
 
         
 
         
 
         FUGARINO V. IOWA CITY COMMUNITY SCHOOLS
 
         Page  13
 
         
 
         
 
         
 
                                CONCLUSIONS OF LAW
 
         
 
              THEREFORE, IT IS CONCLUDED:
 
         
 
              Claimant has established that her injury of October 20, 1983 
 
         is the cause of the permanent partial disability on which she now 
 
         bases her claim.
 
         
 
              Claimant is entitled to permanent partial disability 
 
         resulting from her October 20, 1983 injury of ten percent (10%).
 
         
 
         
 
                                      ORDER
 
         
 
              THEREFORE, IT IS ORDERED:
 
         
 
              Defendants pay claimant permanent partial disability 
 
         benefits for an additional forty (40) weeks at the rate of one 
 
         hundred sixteen and 15/100 dollars ($116.15).  Those payments are 
 
         to commence September 2, 1985.
 
         
 
              Defendants pay accrued amounts in a lump sum.
 
         
 
              Defendants pay interest pursuant to section 85.30.
 
         
 
              Defendants pay costs pursuant to Division of Industrial 
 
         Services Rule 343-4.33.
 
         
 
              Defendants file claim activity reports as required by the
 
         agency.
 
         
 
         
 
         
 
         
 
         
 
              Signed and filed this 16th day of July, 1987.
 
         
 
                                          
 
 
 
 
 
                                          
 
                                          HELEN JEAN WALLESER
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
         
 
 
 
         Copies to:
 
         
 
         Mr. Thomas M. Wertz
 
         Attorney at Law
 
         P.O. Box 998
 
         4040 First Avenue NE
 
         Cedar Rapids, Iowa 52406-0998
 
         
 
         Mr. Larry D. Spaulding
 
         Attorney at Law
 
         1100 Des Moines Building
 

 
         
 
         
 
         
 
         FUGARINO V. IOWA CITY COMMUNITY SCHOOLS
 
         Page  14
 
         
 
         
 
         Des Moines, Iowa 50307
 
 
 
         
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                                    1108.20; 1108.50;
 
                                                    1803
 
                                                    Filed 7-16-87
 
                                                    Helen Jean Walleser
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         VIOLA FUGARINO,
 
         
 
              Claimant,
 
                                                     File No. 754230
 
         VS.
 
         
 
         IOWA CITY COMMUNITY SCHOOLS,             A R B I T R A T I 0 N
 
         
 
              Employer,                              D E C I S I 0 N
 
         
 
         and
 
         
 
         EMPLOYERS MUTUAL COMPANIES,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         1108.20; 1108.50; 1803
 
         
 
              Claimant found to have a myofascial pain syndrome related to 
 
         work-related fall with preexisting significant psychological 
 
         overlay.  Claimant's personality problems found to relate to a 
 
         long-term pattern of interaction and not to her injury per se 
 
         where physicians described claimant as depressed within weeks of 
 
         her injury, described claimant as angry or as having a passive 
 
         aggressive personality, and where claimant's MMPI was interpreted 
 
         as consistent with a multitude of physical symptoms basically due 
 
         to nervous tension and musculoskeletal stress and strain.
 
         
 
              Ten percent permanent partial disability awarded.
 
 
 
         
 
         
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            RONALD R. BENTON,             :
 
                                          :
 
                 Claimant,                :
 
                                          :         File Nos. 721933
 
            vs.                           :                   754493
 
                                          :
 
            HYMAN FREIGHTWAYS,            :          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
 
                                          :
 
            EXCALIBUR INSURANCE COMPANY   :
 
            by IOWA INSURANCE GUARANTY    :
 
            ASSOCIATION,                  :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ____________________________________________________________
 
            
 
                              statement of the case
 
            
 
                 These are proceedings in review-reopening upon 
 
            claimant's petitions filed March 16, 1989.  Claimant 
 
            sustained back injuries on November 26, 1982 (file number 
 
            721933) and September 20, 1983 (file number 754493).  
 
            Following a hearing on April 17, 1986, an arbitration 
 
            decision was filed on April 25 of that year finding that 
 
            claimant had sustained an industrial disability of 24 
 
            percent, two-thirds of which was attributable to the 1982 
 
            work injury and one-third of which was attributable to the 
 
            1983 work injury.  Defendants thereupon appealed and an 
 
            appeal decision was issued on December 16, 1986 which 
 
            discussed the accrual of interest, but otherwise affirmed 
 
            the arbitration decision.
 
            
 
                 Claimant now asserts that he has undergone a 
 
            deleterious change in condition and seeks benefits based 
 
            upon allegedly increased industrial disability.  A hearing 
 
            was thereafter held in Des Moines, Iowa, on June 4, 1990.  
 
            The record consists of the testimony of claimant and Joe 
 
            Chavez and joint exhibits 1 through 8.  Defendants' exhibit 
 
            9 was offered but excluded upon objection.  In addition, 
 
            official notice was taken of both files and the evidence 
 
            presented at the time of the arbitration hearing.
 
            
 
                                      issues
 
            
 
                 Pursuant to the prehearing report, the sole issues 
 
            presented for resolution include whether claimant has 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
            undergone a change of condition giving rise to additional 
 
            industrial disability, and if so, whether there is a causal 
 
            relationship to either or both work injuries.
 
            
 
                                 findings of fact
 
            
 
                 The undersigned deputy, having heard the testimony and 
 
            considered all of the evidence, finds:
 
            
 
                 Pursuant to the appeal decision filed on December 16, 
 
            1986, claimant's work with defendant Hyman Freightways 
 
            consisted of dock work and the delivery and pick up of 
 
            freight as of November 29, 1982, when he injured the disc at 
 
            L5-S1 requiring surgery in March, 1983.  The surgical 
 
            treatment consisted of a bilateral discectomy, 
 
            neuroforaminotomies and the removal of free fragments and 
 
            calcified disc for alleviation of symptoms.
 
            
 
                 On June 29, 1983, claimant was released for full duty, 
 
            but continued to have lingering back pain with work 
 
            activity.  On September 20, 1983, claimant reinjured his 
 
            lower back by fully herniating the same disc.  Additional 
 
            surgery to fuse the vertebrae at this level was performed in 
 
            January 1984.
 
            
 
                 Claimant returned to light-duty work in July 1984 and 
 
            was released to full-duty work in August of that year.  He 
 
            continued to suffer lingering pain and recurrent episodes 
 
            from work activity.
 
            
 
                 By reason of functional impairment and physical 
 
            restrictions following both work injuries, claimant as of 
 
            April 17, 1986 was unable to lift heavy or bulky objects, 
 
            but was able to function in his normal job as a dock worker 
 
            and driver with the assistance of mechanical devices and 
 
            accommodations made by Hyman Freightways.  Claimant 
 
            continued to suffer recurrent flare-ups of back pain while 
 
            performing his normal duties which necessitated occasional 
 
            absences and medication.  It was found that claimant had not 
 
            suffered a significant loss in actual earnings from 
 
            employment, but his future loss of earnings, if any, was 
 
            largely dependent upon the availability of continued 
 
            employment with Hyman.
 
            
 
                 Claimant was found to be highly motivated to remain 
 
            employed despite his physical impairment, and was then 34 
 
            years of age, had the equivalent of a high school education 
 
            and exhibited average intelligence.
 
            
 
                 Claimant was 38 years of age at the hearing of this 
 
            cause.  His work responsibilities remained the same as a 
 
            driver and dock worker.  Claimant agreed he could still 
 
            perform that work, but due to increasing pain, has 
 
            additional difficulties and must take more care in the 
 
            performance of his duties.  He has performed essentially the 
 
            same work for Hyman and a predecessor employer since 1973.  
 
            Hyman Freightways continues to accommodate him and claimant 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
            is satisfied with his job and intends to spend the rest of 
 
            his career in the same work.  He occasionally misses work 
 
            due to pain, and has done so since 1986.  However, he 
 
            generally works 40 or more hours per week, and occasionally 
 
            as many as 60 hours per week.  Medical records reflect that 
 
            he is now missing less time from work than he was in 1986.  
 
            However, this pattern is properly attributable to claimant's 
 
            courageous efforts to cope with his disability.
 
            
 
                 As was true at the time of the arbitration hearing, 
 
            claimant's continued back problems have not affected his 
 
            actual earnings.  Joe Chavez, director of safety and 
 
            compliance for Hyman Freightways, testified that claimant is 
 
            capable of doing his work and defendant is satisfied with 
 
            his job performance.  Defendant instituted a general program 
 
            of light-duty work to specifically accommodate claimant and 
 
            continues to do so.  Claimant's income has actually 
 
            increased because his hourly wage has increased per 
 
            negotiations with his bargaining unit.
 
            
 
                 Claimant's treating surgeon was William R. Boulden, 
 
            M.D.  Dr. Boulden testified by deposition taken May 31, 
 
            1990.  Prior to the arbitration hearing, the only medical 
 
            restriction Dr. Boulden imposed was the use of proper back 
 
            mechanics.  Following the fusion surgery, Dr. Boulden 
 
            believed that claimant had sustained a 15 percent permanent 
 
            partial impairment to the body as a whole.  One-third of 
 
            that rating was attributable to the fusion surgery.
 
            
 
                 Claimant saw Dr. Boulden with back pain complaints on 
 
            three occasions in May 1986.  Dr. Boulden concluded that the 
 
            pain arose from developing looseness of metal rods used in 
 
            the fusion surgery.  The fusion was stable, but loosening 
 
            rods can cause irritation.  Accordingly, additional surgery 
 
            was performed on June 2, 1986 to remove the rods.
 
            
 
                 Dr. Boulden did not believe that removal of the rods 
 
            increased impairment or disability.  Claimant complained of 
 
            pain on a number of occasions subsequently, typically 
 
            following unusual exertion at work, but Dr. Boulden believed 
 
            these to be instances of soft tissue strain or sprain and 
 
            has found no increased impairment attributable to either 
 
            subject work injury.  He has not assessed claimant's 
 
            impairment rating as being higher, nor have additional 
 
            medical restrictions been imposed (Dr. Boulden recommended 
 
            against claimant resuming work as an over-the-road truck 
 
            driver, work he had previously done, but claimant agreed 
 
            that this physician recommended against that work prior to 
 
            the 1986 hearing).
 
            
 
                 In his deposition testimony, claimant Dr. Boulden 
 
            stated:
 
            
 
                 A.  Based on my care and treatment of the patient 
 
                 and based on the surgery and based on the clinical 
 
                 findings up through January of 1989, I have found 
 
                 no changes to rate him out with any more 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
                 disability, so, no, I have not changed my opinion.
 
            
 
            (Dr. Boulden deposition, page 15, line 21 through page 16, 
 
            line 1)
 
            
 
                 And:
 
            
 
                 A.  Let's say my rating, as I stated before, is 
 
                 the same, and if Ron came in and said, "I've had 
 
                 persistent pain.  Nothing is helping me.  I'm not 
 
                 getting better," and all this stuff, then the 
 
                 rating would have definitely gone up; but as I 
 
                 stated and testified earlier, before he's had a 
 
                 lot of temporary aggravations which we always seem 
 
                 to get down to a good baseline, that he returns to 
 
                 functional use again, so that's why I have not 
 
                 determined that he has anything pathologically 
 
                 changed to persist in his symptoms, to make him 
 
                 persistent in nature.  I'm not saying he hadn't 
 
                 had spells or flare-ups, and that's how I guess I 
 
                 utilize a system when I say persistent pain.
 
            
 
            (Dr. Boulden deposition, page 38, lines 5 through 19)
 
            
 
                 Although magnetic resonance imaging has shown a bulging 
 
            of the disc immediately above the surgically excised disc, 
 
            it is unclear whether that bulging preexisted the subject 
 
            work injuries and subsequent fusion surgery since MRI 
 
            studies were not available at the time.  Fusion surgery does 
 
            tend to put additional stress on the next higher disc, but 
 
            at least at this point, it cannot be said that claimant has 
 
            sustained additional impairment or loss of earning capacity 
 
            resulting from any other level of the spine.  Dr. Boulden 
 
            described this bulging disc as "early degenerative," meaning 
 
            not advanced degeneration, and indicated that such disc 
 
            bulges are nothing out of the ordinary for anybody who works 
 
            hard with his or her back.  He also noted that the bulge 
 
            showed no signs of nerve entrapment or pressure.
 
            
 
                 Claimant was seen for evaluation by Martin Rosenfeld, 
 
            D.O.  Dr. Rosenfeld testified by deposition on May 1, 1990.  
 
            He believed that claimant had sustained a 20 percent 
 
            impairment to the body as a whole by reason of the subject 
 
            work injuries, but since he had not seen claimant before the 
 
            arbitration hearing, was unable to render an opinion as to 
 
            whether claimant's condition had deteriorated.  However, he 
 
            noted that he would normally anticipate deterioration 
 
            following a fusion in the next higher level because stress 
 
            is transferred upward.  Dr. Rosenfeld did not suggest 
 
            specific medical restrictions.  In response to a direct 
 
            question, he indicated that he held no opinion as to whether 
 
            claimant had undergone any change in medical condition 
 
            because he had been seen on only one occasion.
 
            
 
                 Claimant credibly testified to increased pain since the 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
            arbitration hearing.  Whereas back pain was intermittent in 
 
            1986, he now suffers either from pain or numbness almost 
 
            constantly, especially in the left leg, and feels that his 
 
            back is becoming progressively weaker.  He finds his ability 
 
            to lift, twist or bend to be progressively less.
 
            
 
                                conclusions of law
 
            
 
                 Pursuant to Iowa Code section 86.14(2), in a proceeding 
 
            to reopen an award for payments, inquiry is to be made into 
 
            whether or not the condition of the employee warrants an end 
 
            to, diminishment of, or increase of compensation previously 
 
            awarded.  A change in condition must be shown to justify 
 
            changing the original award.  Henderson v. Iles, 250 Iowa 
 
            787, 96 N.W.2d 321 (1959).  It is not proper to merely 
 
            redetermine the condition of the employee as adjudicated by 
 
            the former award.  Stice v. Consol. Indus. Coal Co., 228 
 
            Iowa 1031, 291 N.W.2d 452 (1940).
 
            
 
                 A mere difference of opinion of experts or competent 
 
            observers as to the degree of disability arising from the 
 
            original injury is insufficient to justify a different 
 
            determination on a petition for review-reopening; there must 
 
            be substantial evidence of a worsening of the condition not 
 
            contemplated at the time of the first award.  Bousfield v. 
 
            Sisters of Mercy, 249 Iowa 64, 86 N.W.2d 109 (1957).  Or, a 
 
            change in condition may be found where claimant has failed 
 
            to improve to the extent initially anticipated, Meyers v. 
 
            Holiday Inn of Cedar Falls, Iowa, 272 N.W.2d 24 (Iowa App. 
 
            1978).  Additionally, in cases not involving scheduled 
 
            members, a change in earning capacity subsequent to the 
 
            original award which is proximately caused by the original 
 
            injury may constitute a change in condition.  Blacksmith v. 
 
            All-American, Inc., 290 N.W.2d 348 (Iowa 1980).
 
            
 
                 Claimant has undergone additional surgery since the 
 
            arbitration decision to remove metal rods from his fused 
 
            vertebrae at L5-S1.  The surgery did not result in increased 
 
            impairment or medical restrictions.  He has undergone 
 
            intermittent bouts of back pain, typically diagnosed as due 
 
            to strain or sprain.  He does suffer additional pain in the 
 
            back and left leg, but as of the present time this has not 
 
            interfered with his ability to continue performing his job 
 
            up to 60 hours per week.
 
            
 
                 In essence, industrial disability is primarily a 
 
            reduction in earning capacity.  Olson v. Goodyear Serv. 
 
            Stores, 255 Iowa 1112, 125 N.W.2d 251 (1963).  Claimant's 
 
            actual earnings are now greater than they were at the time 
 
            of the 1986 arbitration hearing.  His earning capacity has 
 
            not changed as he remains in the same job (as before, 
 
            subject to the accommodations made by Hyman Freightways) 
 
            working the same hours.  Claimant intends to continue in 
 
            this work.  There has been no change in impairment and he 
 
            has no additional medical restrictions.  It does not appear 
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
            that claimant is currently foreclosed from any form of 
 
            remunerative endeavor which he could perform as of April 17, 
 
            1986.
 
            
 
                 There has been a change in claimant's condition in that 
 
            he now suffers increased pain to the back and left leg.  
 
            Pain and suffering is, of course, an appropriate element of 
 
            damages in personal injury litigation.  However, pain and 
 
            suffering does not operate to increase industrial disability 
 
            unless there is some impact on earning capacity.
 
            
 
                 Considering all of the evidence then, it is determined 
 
            that claimant has failed to establish a change in his 
 
            condition since the arbitration hearing of April 17, 1986, 
 
            indicating that he now has increased industrial disability 
 
            causally related to either subject work injury.
 
            
 
                                      order
 
            
 
                 IT IS THEREFORE ORDERED:
 
            
 
                 Claimant shall take nothing from these proceedings.
 
            
 
                 Costs are assessed to defendants pursuant to rule 343 
 
            IAC 4.33.
 
            
 
                 Signed and filed this ______ day of ____________, 1991.
 
            
 
                 
 
            
 
                 
 
                 
 
                                          ______________________________
 
                                          DAVID RASEY
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr. W. Michael Murray
 
            Attorney at Law
 
            2323 Grand Avenue
 
            Des Moines, Iowa  50312
 
            
 
            Mr. Cecil L. Goettsch
 
            Mr. D. Brian Scieszinski
 
            Attorneys at Law
 
            1100 Des Moines Building
 
            Des Moines, Iowa  50309
 
            
 
            
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                    BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         JUNIOR LEWIS BRIGGS,
 
         
 
              Claimant,
 
                                                   File No. 754994
 
         vs.
 
         
 
         THATCHER PLASTICS,                     A R B I T R A T I 0 N
 
         
 
              Employer,                            D E C I S I 0 N
 
         
 
         CRUM & FORSTER,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
                              STATEMENT OF THE CASE
 
         
 
              This is a proceeding in arbitration brought by  Junior L. 
 
         Briggs, claimant, against Thatcher Plastics, employer, and Crum & 
 
         Forster, insurance carrier, as a result of an alleged injury of 
 
         May 26, 1983.  This matter came on for hearing before the 
 
         undersigned deputy industrial commissioner April 25, 1988 and the 
 
         record was considered fully submitted at the close of the 
 
         hearing.  The record in this case consists of the testimony of 
 
         claimant, Edward Ridenour, David Seal, and Keith Herrick; 
 
         claimant's exhibits A through V, inclusive; and defendants' 
 
         exhibits 2, 3A, 3B, 6, 7, 8, 10 and 11.
 
         
 
                                      ISSUES
 
         
 
              Pursuant to the prehearing report and order submitted and 
 
         approved April 25, 1988, the following issues are presented for 
 
         determination:
 
         
 
              1.  Whether claimant sustained an injury on May 26, 1983 
 
         which arose out of and in the course of his employment;
 
         
 
              2.  Whether the alleged injury was the cause of temporary 
 
         total disability for the periods from November 17, 1983 to August 
 
         13, 1984 and January 7, 1986 to November 1, 1986; and
 
         
 
              3.  Claimant's entitlement to benefits as provided by Iowa 
 
         Code section 85.27.
 
         
 
              At the time of hearing, defendants attempted to raise the 
 
         issues of limitation of actions under Iowa Code section 85.26 and 
 
         notice of injury under Iowa Code section 85.23.  These issues 
 
         were not raised at the time of prehearing, were not on the 
 
         hearing assignment order and were not added to the hearing 
 
         assignment order by a request to amend the same.  Pursuant to the 
 
         industrial commissioner's decision in Joseph Presswood v. Iowa 
 
         Beef Processors, Appeal Decision filed November 14, 1986, which 
 
         held that an issue not noted on the hearing assignment order is 
 
         waived, the undersigned has no jurisdiction to consider the 
 
         issues presented under Iowa Code sections 85.26 and 85.23.  
 
         Consequently, such issues will not be addressed.
 

 
         
 
                                 FACTS PRESENTED
 
         
 
              Claimant testified that on May 26, 1983 while standing on 
 
         the fifth rung of a six foot stepladder, he fell, landing on his 
 
         right elbow and felt severe pain in his groin, chest, neck, elbow 
 
         and arm.  Claimant stated that he reported the incident to his 
 
         supervisor and the company nurse but continued working in his 
 
         regular job as a millwright for a number of months although he 
 
         maintained he could not move his right arm as he felt he could 
 
         before this fall and could not lift overhead as he felt he should 
 
         be able.
 
         
 
              Claimant stated he "laid off work" on August 12, 1983 
 
         because his back and leg were bothering him "so much."  Claimant 
 
         explained he has had chronic back problems since long before his 
 
         fall and was treating with William D. Catalona, M.D., therefor.  
 
         Claimant testified that by November 17, 1983, his back was better 
 
         and that he could have returned to work but that his shoulder was 
 
         getting worse.  Claimant recalled that on November 17, 1983, he 
 
         saw his family doctor (Swayze) for his shoulder pain and pain in 
 
         the chest area and that when he was sent to the hospital for 
 
         tests, a "broken bone in the clavicle" and a bony mass or lump 
 
         were discovered.  When asked whether claimant advised the doctor 
 
         about his fall in May 1983, claimant "guessed" it had been 
 
         discussed because he "thought" he had mentioned it but could only 
 
         recall with certainty telling the doctor about an incident when 
 
         he was in approximately the sixth grade and he caught his arm on 
 
         a clothesline.  Claimant testified that throughout his visits to 
 
         Dr. Catalona, Dr. Catalona could not arrive at any conclusions on 
 
         the cause of his pain, that he was sent to Iowa City where he 
 
         also did not receive any explanation as to the cause of his pain 
 
         although heart trouble as the cause was eliminated and that he 
 
         eventually ended up at the Mayo Clinic.  When asked whether any 
 
         doctor there could explain the cause of his pain, claimant 
 
         responded "not really."  Claimant testified he returned to work 
 
         in August 1984 and, that although he had pain, continued to 
 
         perform his regular job as a millwright.  On October 3, 1984, 
 
         claimant saw R. H. Cofield, M.D., of the Mayo Clinic, whom he 
 
         said told him he had torn muscles in the chest area and 
 
         recommended exercises which did lessen his pain.
 
         
 
              Claimant described an incident in September 1985 when he 
 
         twisted or wrenched his right shoulder while drilling.  Claimant 
 
         testified he reported the incident to the nurse and his 
 
         supervisor and noticed that afterwards the pain in his chest 
 
         slowly got worse.  Claimant stated he laid off work again January 
 
         7, 1986 and returned to the Mayo Clinic.  Claimant explained he 
 
         attempted to return to work May 22, 1986 but that defendant 
 
         employer would not allow him to return without some clarification 
 
         of his condition from Dr. Cofield.  Claimant did return to work 
 
         November 1, 1986 in a capper setup job which he found to be 
 
         harder work than that of a millwright.  Claimant found the work 
 
         increasingly difficult to perform and, when defendant would not 
 
         allow him to return to his millwright job and the pain in his 
 
         shoulder got worse, claimant "laid off" work again effective 
 
         December 5, 1987.
 
         
 
              On cross-examination, claimant stated he could not recall 
 
         contacting defendant employer on June 6, 1983 to report an 
 
         inability to work that day due to "non-industrial shoulder 
 
         injury."  Claimant acknowledged that from May 26, 1983 through 
 
         August 12, 1983, he did not complain of pain to any supervisor 
 
         although he maintained he told several employees and the company 
 
         nurse.  Claimant admitted that in August 1983 he filed for group 
 

 
         
 
         
 
         
 
         BRIGGS V. THATCHER PLASTICS
 
         PAGE   3
 
         
 
         health disability benefits indicating his disability was not 
 
         related to his employment and that he received 26 weeks of 
 
         benefits.  Claimant acknowledged he also applied for and received 
 
         disability benefits for the period from January 6, 1986 through 
 
         October 27, 1986.
 
         
 
              Edward Ridenour testified he was employed by defendant from 
 
         October 1953 until his retirement on July 30, 1987, that he has 
 
         known claimant for 25 or 30 years, and that he has worked with 
 
         claimant in maintenance and as a millwright.  Mr. Ridenour saw 
 
         claimant fall from the stepladder on May 26, 1983 and observed 
 
         that after the fall claimant could not lift or work overhead with 
 
         his right arm, that claimant complained of pain in his arm and 
 
         chest area, and that his arm was black and blue for two to four 
 
         weeks thereafter.  Mr. Ridenour stated he observed claimant being 
 
         "thrown" by the hand drill in September 1985.
 
         
 
              David Seal, who identified himself as manager of the 
 
         maintenance department for defendant employer, testified he could 
 
         not recall discussing with claimant claimant's fall in may 1983 
 
         and that he first became aware claimant fell in January 1984.  
 
         Mr. Seals stated he could not recall either claimant or 
 
         claimant's co-workers complaining that claimant could not do any 
 
         aspect of his job.  Mr. Seal testified it was his understanding 
 
         that when claimant left work on January 7, 1986, it was not 
 
         because of any problems relating to his fall in May 1983 or the 
 
         incident in September 1985.
 
         
 
              Keith Herrick, who identified himself as director of 
 
         industrial relations for defendant employer, testified he was 
 
         involve in the process through which claimant took a leave of 
 
         absence in August 1983 and was not told by claimant he sustained 
 
         a work injury that was causing him to leave.  Mr. Herrick stated 
 
         that at the time claimant took his next leave of absence in 
 
         January 1986, the employer had no report from any doctor that 
 
         claimant was gone as a result of the incident of May 1983 and 
 
         that through November 1986, the company still had no medical 
 
         reports that the reason for claimant's absence related to the May 
 
         1983 fall.  Mr. Herrick opined it would be unusual for an 
 
         employee to file for disability benefits, as did claimant, if it 
 
         was a "workers' compensation accident."
 
         
 
              A review of claimant's absentee record (defendants' exhibit 
 
         7) establishes claimant has had approximately 1,714 days of 
 
         absence since beginning work with defendant employer in 1960, 38 
 
         periods of absence for one week or more, and that on June 6, 
 
         1983, the records reflect claimant was absent due to "non-ind. 
 
         shoulder."  Claimant acknowledged he played baseball and softball 
 
         during high school and for fifteen years thereafter, that he was 
 
         a fast pitch softball pitcher when he played, that he quit 
 
         playing a few years before his fall in May 1983, and that he is 
 
         the manager of a "girls" team and pitched one or two times per 
 
         week.
 
         
 
              The medical records of William D. Catalona, M.D., F.A.C.S., 
 
         orthopaedic surgeon, revealed claimant was seen August 16, 1983 
 
         with report of low back pain worsening over the past week.  Notes 
 
         from October 25 do not record any change in claimant's condition 
 
         and on November 8, Dr. Catalona wrote Ostatus quo.  Feels unable 
 
         to work."  It was not until November 22, 1983 that Dr. Catalona 
 

 
         
 
         
 
         
 
         BRIGGS V. THATCHER PLASTICS
 
         PAGE   4
 
         
 
         made any reference to shoulder and chest pain when he wrote:
 
         
 
              Ref. by Dr. Swayze for eval. & care painful rt. ant. 
 
              chest & should.  Spontan. onset.  Consult.  Dr. Swayze 
 
              because of concern of "heart attack".  Dr. Swayze had 
 
              chest & rt. should. x-rays made.  Show benign tumor 
 
              med. cortex surg. neck of humerus & ant. asp. body of 
 
              scapula.  Describes aggrav. of pain by ABER & also 
 
              notes episodes of paresth. rt. hand especially on 
 
              holding newspaper while reading.  States inj. rt. 
 
              should. during childhood when walked into clothesline 
 
              wrenching should. sev.
 
         
 
         (Claimant's Exhibit M, page 1)
 
         
 
              The first reference to claimant's May 26, 1983 fall is found 
 
         in office notes dated May 14, 1984 which state:
 
         
 
              Pt. insists he inj. his rt should in fall off 
 
              stepladder at work 5/26/83 & that his back, rt. should 
 
              & rt. upper chest pain has been contin. since that 
 
              time.  He contends he rept. his inj. to his employer & 
 
              that they agree that he inj. his rt. should. & rt. 
 
              upper chest in his fall off stepladder.  Because he had 
 
              not documented this history on prev. sign-in slip, I 
 
              had him write a detailed description which I will 
 
              forward to ins. co.  OC & lengthy conf. w/pt.
 
         
 
         (Cl. Ex. M, pp.2-3)
 
         
 
              On April 9, 1984, Dr. Catalona wrote to defendant insurance 
 
         company:
 
         
 
                 In reply to yours of April 4, 1984 regarding the 
 
              above, I am enclosing a copy of my clinical notes on 
 
              this patient which will provide you with this man's 
 
              presenting history, my physical findings, x-ray report, 
 
              consultation reports, EMG report, treatment and 
 
              progress.
 
         
 
                 You will note there is some discrepancy [sic] 
 
              between your history of this man's injury as described 
 
              in your letter to me and his presenting history in my 
 
              office.  I don't how [sic] to explain this.  We 
 
              document patient's histories and elaborate on them in 
 
              interview from information on a "sign-in slip" which we 
 
              use.
 
         
 
         
 
                 Regarding right upper chest and right shoulder pain 
 
              which Mr. Briggs developed in November of 1983, x-rays 
 
              made of his right shoulder at that time by Dr. Swayze 
 
              showed a benign tumor medical cortex surgical neck of 
 
              the right humerus and the anterior aspect of the body 
 
              of the right scapula.  Mr. Briggs related this pain to 
 
              an injury to this shoulder during childhood when he 
 
              walked into a clothesline severely wrenching his right 
 
              shoulder.
 
         
 
                 ....
 

 
         
 
         
 
         
 
         BRIGGS V. THATCHER PLASTICS
 
         PAGE   5
 
         
 
         
 
              ... Regarding his right shoulder pain it is difficult 
 
              to make a prognosis.  This shoulder pain has persisted 
 
              for about six months now and I have no way of 
 
              predicting its further natural course ....  I have no 
 
              information on which to base any opinion regarding Mr. 
 
              Briggs' right shoulder pain and injury on May 26, 
 
              1983.
 
         
 
         (Defendants' Exhibit 11)
 
         
 
              As Dr. Catalona notes he had nothing further to offer 
 
         claimant, claimant was referred to the Mayo Clinic where he saw 
 
         Richard B. Tompkins, M.D., of the Department of Internal 
 
         Medicine, Division of Rheumatology.  On July 2, 1984, Dr. 
 
         Tompkins wrote:
 
         
 
                 Junior Lewis Briggs of Letts, Iowa, was seen here 
 
              between June 22 and 25, 1984.  He came primarily for 
 
              evaluation of two sets of complaints.  His primary 
 
              complaint was that of discomfort in his right shoulder, 
 
              chest and scapular region with a secondary complaint 
 
              being discomfort in his low back and legs.  His 
 
              shoulder problem apparently began May 26, 1983, when he 
 
              fell at work landing on his flexed elbow at his side 
 
              jamming the elbow upward toward the shoulder.  
 
              Following that, he had the onset of discomfort in the 
 
              shoulder, right upper chest and scapular region.  He 
 
              kept working in spite of this until August when he 
 
              stopped in part because of the shoulder problem and in 
 
              part because of his back problem.  He apparently has 
 
              not worked since August, 1983.  He admits to an injury 
 
              to his shoulder when he was age six but apparently had 
 
              no further difficulty until this incident in May, 1983.  
 
              In fact, he played baseball all through high school and 
 
              has been a fast pitch softball pitcher until this year.  
 
              He has tried a variety of analgesics for his shoulder 
 
              without benefit.
 
         
 
                 ....
 
         
 
              ... His chest x-ray was normal revealing a bony density 
 
              below the right coracoid process and behind the 
 
              scapula.  X-rays of his shoulders revealed a 
 
              broad-based benign bony exostosis in the region of the 
 
              lesser tuberosity of the right humerus.  There was 
 
              benign heterotrophic bone inferomedial to the right 
 
              coracoid process.  Both of these findings were felt to 
 
              probably be due to old trauma and secondary to myositis 
 
              ossificans involving the subscapularis muscle .... An 
 
              arthrogram of the right shoulder revealed the rotator 
 
              cuff to be intact.  The exostosis of the proximal 
 
              humerus was extracapsular and caused only mild 
 
              compression of the capsule.  The arthrogram showed some 
 
              contraction of the shoulder capsule with scarring but 
 
              no lack of integrity to the joint capsule.
 
         
 
         (Def. Ex. 6)
 
         
 
              Dr. Tompkins had no specific recommendations for treatment 
 

 
         
 
         
 
         
 
         BRIGGS V. THATCHER PLASTICS
 
         PAGE   6
 
         
 
         for claimant outside of following a program of physical therapy.
 
         
 
              Claimant returned to the Mayo Clinic in June 1985 and saw R. 
 
         H. Cofield, M.D., who reported:
 
         
 
                 His symptoms have not really changed much from his 
 
              visit here in the summer of 1984 ....
 
         
 
                 On examination there is normal shoulder girdle 
 
              movement and very good strength.  Contraction of the 
 
              shoulder internal rotators against resistance causes 
 
              some discomfort. on examining the pectoralis, it is not 
 
              of the same bulk as that seen on the opposite side 
 
              whereas the bulk of his other shoulder muscle groups 
 
              seemed normal.
 
         
 
         
 
                 ....
 
                 As before, I think it is likely that he had a 
 
              partial tear of his pectoralis major or subscapularis 
 
              or both through the muscular portion.
 
         
 
         (Def. Ex. 6)
 
         
 
              Approximately one year later on April 17, 1986, Dr. Cofield 
 
         wrote of claimant:
 
         
 
              He was here in May of 1985, and it was felt that he 
 
              might have had some partial tearing of his right 
 
              pectoralis major or subscapularis.
 
         
 
                 He has been off work since January of this year 
 
              because of discomfort in the area of his throat which 
 
              extends through the neck posteriorly to the shoulder 
 
              blade area.  He says he also has aching in his neck and 
 
              headaches.  His symptoms in the shoulder now remain 
 
              very similar to that seen last year with aching in the 
 
              shoulder in general which is more significant along the 
 
              anterior chest wall.
 
         
 
                 ....
 
         
 
                 I discussed with him that his symptoms seem to be 
 
              related to a number of things; some degenerative 
 
              arthritis of his neck, his old probable subscapularis 
 
              tear of his shoulder, and perhaps the exostosis on his 
 
              proximal humerus.  In further discussion, none of these 
 
              areas is really symptomatic enough to warrant the 
 
              consideration of surgical treatment.
 
         
 
              At this point, he will resume his more normal 
 
              activities and will reinstitute his home physiotherapy 
 
              program.
 
         
 
         (Def. Ex. F)
 
         
 
              Claimant at this time seeks temporary total disability 
 
         benefits for the periods from November 17, 1983 to August 13, 
 
         1984 and January 7, 1986 to November 1, 1986.  Claimant makes no 
 
         claim for permanent partial disability benefits at this time.
 

 
         
 
         
 
         
 
         BRIGGS V. THATCHER PLASTICS
 
         PAGE   7
 
         
 
         
 
                           APPLICABLE LAW AND ANALYSIS
 
         
 
              An employee is entitled to compensation for any and all 
 
         personal injuries which arise out of and in the course of the 
 
         employment.  Section 85.3(l).
 
         
 
              The claimant must prove by a preponderance of the evidence 
 
         that his injury arose out of and in the course of his employment. 
 
         Musselman v. Central Telephone Co., 261 Iowa 352, 154 N.W.2d 128 
 
         (1967).
 
         
 
              In the course of employment means that the claimant must 
 
         prove his injury occurred at a place where he reasonably may be 
 
         performing his duties.  McClure v. Union, et al., Counties 188 
 
         N.W.2d 283 (Iowa 1971).
 
         
 
              Arising out of suggests a causal relationship between the 
 
         employment and the injury.  Crowe v. DeSoto Consolidated School 
 
         District, 246 Iowa 402, 68 N.W.2d 63 (1955).
 
         
 
              There does not appear to be any dispute but on May 26, 1983, 
 
         claimant, while at work performing part of his regular job and 
 
         responsibilities, fell from a stepladder.  The question becomes 
 
         whether claimant has established he sustained any "injury" as a 
 
         result of that fall.  It is recognized that at the time of his 
 
         incident claimant lost no time from work, sought no medical 
 
         attention outside of seeing the plant nurse and continued to 
 
         perform his regular occupational duties.
 
         
 
              The supreme court of Iowa in Almquist v. Shenandoah 
 
         Nurseries, 218 Iowa 724, 254 N.W. 35 (1934) at 731-32, discussed 
 
         the definition of personal injury in workers' compensation cases 
 
         as follows:
 
         
 
              While a personal injury does not include an 
 
              occupational disease under the workmen's Compensation 
 
              Act, yet an injury to the health may be a personal 
 
              injury [Citations omitted.]  Likewise a personal injury 
 
              includes a disease resulting from an injury .... The 
 
              result of changes in the human body incident to the 
 
              general processes of nature do not amount to a personal 
 
              injury.  This must follow, even though such natural 
 
              change may come about because the life has been devoted 
 
              to labor and hard work.  Such result of those natural 
 
              changes does not constitute a personal injury even 
 
              though the same brings about impairment of health or 
 
              the total or partial incapacity of the functions of the 
 
              human body.
 
         
 
                 ....
 
         
 
              A personal injury, contemplated by the Workmen' 
 
              Compensation Law, obviously means an injury to the 
 
              body, the impairment of health, or a disease, not 
 
              excluded by the act, which comes about, not through the 
 
              natural building up and tearing down of the human body, 
 
              but because of a traumatic or other hurt or damage to 
 
              the health or body of an employee. [Citations omitted.] 
 
              The injury to the human body here contemplated must be 
 

 
         
 
         
 
         
 
         BRIGGS V. THATCHER PLASTICS
 
         PAGE   8
 
         
 
              something, whether an accident or not, that acts 
 
              extraneously to the natural processes of nature and 
 
              thereby impairs the health, overcomes, injuries, 
 
              interrupts, or destroys some function of the body, or 
 
              otherwise damages or injures a part or all of the 
 
              body.
 
         
 
              As cited above in Crowe, there must be a causal relationship 
 
         between the employment and the injury.
 
         
 
              The claimant has the burden of proving by a preponderance of 
 
         the evidence that the injury of March 26, 1983 is causally 
 
         related to the disability on which he now bases his claim.  
 
         Bodish v. Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867 (1965).  
 
         Lindahl v. L.O. Boggs, 236 Iowa 296, 18 N.W.2d 607 (1945).  A 
 
         possibility is insufficient; a probability is necessary.  Burt v. 
 
         John Deere Waterloo Tractor Works, 247 Iowa 691, 73 N.W.2d 732 
 
         (1955).  The question of causal connection is essentially within 
 
         the domain of expert testimony.  Bradshaw v. Iowa Methodist 
 
         Hospital, 251 Iowa 375, 101 N.W.2d 167 (1960).
 
         
 
              However, expert medical evidence must be considered with all 
 
         other evidence introduced bearing on the causal connection.  
 
         Burt, 247 Iowa 691, 73 N.W.2d 732.  The opinion of experts need 
 
         not be couched in definite, positive or unequivocal language.  
 
         Sondag v. Ferris Hardware, 220 N.W.2d 903 (Iowa 1974) and 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 
 

 
         
 
         
 
         
 
         BRIGGS V. THATCHER PLASTICS
 
         PAGE   9
 
         
 
         and other surrounding circumstances.  Bodish, 257 Iowa 516, 133 
 
         N.W.2d 867.  See also Musselman v. Central Telephone Telephone 
 
         Co., 261 Iowa 352, 154 N.W. 2d 128 (1967).
 
         
 
              Since the question of causal connection is essentially 
 
         within the domain of expert testimony, review is first given to 
 
         those experts' opinions.  Although claimant has seen a myriad of 
 
         physicians in a number of places, none truly seem able to find a 
 
         cause for claimant's asserted pain.  Nor do they seem inclined to 
 
         relate the cause of the pain to the fall on May 26, 1983.  Dr. 
 
         Catalona, who treated claimant for his back when claimant first 
 
         left work in August 1983 does not make any note of shoulder pain 
 
         until November 23, 1983 and notes at that time that the pain 
 
         onset spontaneously.  Yet, claimant asserts he was in continuous 
 
         pain since the May 26, 1983 incident so much so that he could not 
 
         move his right arm as he had before and could not work overhead. 
 
          While it is possible claimant's back problems may have 
 
         overshadowed pain in his shoulder and chest, claimant's actions 
 
         in advising Dr. Catalona of the childhood incident of running 
 
         into a clothesline but not making any record of the fall at work 
 
         with him once he finally complained of shoulder and chest pain to 
 
         Dr. Catalona, calls into serious questions claimant's credibility 
 
         and sincerity as to whether this incident at work actually caused 
 
         claimant's problems.  Claimant's testimony that he thought he 
 
         told the doctor of the fall and that he guessed it was discussed 
 
         is not convincing particularly when Dr. CatalonaOs note of May 
 
         14, 1984 is read.  At this time, Dr. Catalona seemed somewhat 
 
         surprised to hear of a fall at work one year earlier.  It seems 
 
         unlikely to the undersigned that claimant could forget an 
 
         incident that he now alleges caused so much of his disability and 
 
         remember an incident in childhood from which he now asserts he 
 
         had no residual impairment.
 
         
 
              One also cannot ignore the fact that claimant played and 
 
         coached softball for a number of years.  While claimant argued at 
 
         hearing he had stopped playing softball a few years before the 
 
         fall and stopped pitching after the fall, the letter of Dr. 
 
         Tompkins of the Mayo Clinic dated July 2, 1984 states "In fact, 
 
         he played baseball all through high school and has been a fast 
 
         pitch softball pitcher until this year."  This would lead one to 
 
         the conclusion claimant continued to play during 1983 which would 
 
         have been after the May 26, 1983 fall.  This, then, calls into 
 
         question the employer's records that claimant did not report to 
 
         work on June 6, 1983 due to a nonindustrial shoulder injury.. 
 
         Claimant's inability to recall such reporting does not instill 
 
         confidence in his story.  Further, there is no dispute that when 
 
         claimant originally left work in August 1983, it was due to 
 
         recurring back pain.  Claimant made no mention of having any 
 
         pain, according to the employer's records, as a result of the May 
 
         1983 fall.  When claimant left on his leave of absence in January 
 
         1986 which ran through October 1986, there is also no mention of 
 
         the 1983 fall as a cause for that leave of absence.  If claimant 
 
         was asserting as early as November 1983 that the fall caused his 
 
         shoulder and chest pain, it is curious as to why claimant would 
 
         not have documented such an allegation in taking his leave of 
 
         absence at least in January 1986.
 
         
 
              A review of the other medical evidence also does not 
 
         establish a causal connection between claimant's asserted 
 
         temporary total disability and the incident of May 26, 1983.  Dr. 
 

 
         
 
         
 
         
 
         BRIGGS V. THATCHER PLASTICS
 
         PAGE  10
 
         
 
         Tompkins' letter of July 2, 1984 states that claimant's shoulder 
 
         problems apparently began May 26, 1983 when he fell at work.  Dr. 
 
         Tompkins refers to "old trauma" but does not indicate how "old." 
 
         Nowhere in the report does Dr. Tompkins give an opinion based 
 
         upon a reasonable degree of medical certainty that there was a 
 
         connection between the complaint and the fall on May 26, 1983.  A 
 
         subsequent letter from Dr. Tompkins dated July 26, 1984 also does 
 
         not express any opinion on causal connection.  Dr. Cofield's 
 
         letter of November 5, 1984 does not comment or give an opinion 
 
         that any of claimant's complaints were related to the fall of May 
 
         26, 1983.  As the court stated in Burt v. John Deere Tractor 
 
         Works, supra, a possibility of causal connection is insufficient, 
 
         a probability is necessary.  At most, claimant has established 
 
         only that the fall of May 26, 1983 is possibly connected to the 
 
         disability on which he now bases his claim.  Claimant has failed 
 
         to establish any probability between that incident and his 
 
         alleged injury.
 
         
 
              Therefore, although claimant has shown he fell at work on 
 
         may 26, 1983, claimant has failed to establish he sustained any 
 
         injury as a result of that fall and that the fall was the cause 
 
         of claimant's inability to work from November 17, 1983 through 
 
         August 13, 1984 and again from January 7, 1986 to November 1, 
 
         1986.  Further, as claimant has failed to establish he sustained 
 
         an injury arising out of and in the course of his employment on 
 
         May 26, 1983, claimant has also failed to establish he sustained 
 
         any aggravation in September 1985.  The undersigned does not have 
 
         the jurisdiction to determine whether claimant sustained a new 
 
         injury in September 1985 as that question is not before her.  In 
 
         light of these conclusions, the other issue presented for 
 
         resolution need not be addressed and claimant will take nothing 
 
         further from these proceedings.
 
         
 
                                 FINDINGS OF FACT
 
         
 
              Wherefore, based on all the evidence presented, the 
 
         following findings of fact are made:
 
         
 
              1.  On May 26, 1983, claimant, while standing on the fifth 
 
         rung of a six foot ladder, fell.
 
         
 
              2.  Claimant, as a result of this incident, lost no time 
 
         from work, sought no medical attention except to see the company 
 
         nurse and continued to perform his regular millwright duties.
 
         
 
              3.  Claimant left work on a medical leave of absence on 
 
         August 12, 1983 advising the employer his leave was as a result 
 
         of a preexisting back condition unrelated to his employment.
 
         
 
              4.  Claimant asserted he was in continual pain in his 
 
         shoulder and chest since the May 26, 1983 fall.
 
         
 
              5.  Claimant was treating regularly with a physician for his 
 
         back but the first mention of shoulder/chest pain in the office 
 
         notes was on November 22, 1983 and the pain was recorded as 
 
         "spontan. onset."
 
         
 
              6.  Office notes recorded & childhood incident of walking 
 
         with a clothesline but made no mention of the May 26, 1983 fall 
 
         until May 14, 1984.
 

 
         
 
         
 
         
 
         BRIGGS V. THATCHER PLASTICS
 
         PAGE  11
 
         
 
         
 
              7.  Claimant failed to report for work on June 6, 1983 and 
 
         reported to the employer it was because of nonindustrial shoulder 
 
         injury.
 
         
 
              8.  Claimant played and pitched baseball and softball for a 
 
         number of years before his fall and for a time after his fall.
 
         
 
              9.  Claimant left work on January 7, 1986 on a medical leave 
 
         of absence and did not indicate to the employer it was as a 
 
         result of any work-related condition.
 
         
 
             10.  Claimant's primary treating physician, William D. 
 
         Catalona, advised he had no information on which to base any 
 
         opinion regarding claimant's shoulder pain and the incident on 
 
         May 26, 1983.
 
             11.  Claimant's evaluating physicians could not state with 
 
         any degree of medical certainty that claimant's pain and the 
 
         incident of May 26, 1983 were causally connected.
 
         
 
             12.  The greater weight of evidence does not establish a 
 
         causal connection between the incident of May 26, 1983 and 
 
         claimant's asserted periods of disability.
 
         
 
             13.  Claimant fell from a ladder on May 26, 1983 but failed 
 
         to establish he sustained any injury as a result of that fall.
 
         
 
                                CONCLUSIONS OF LAW
 
         
 
              Therefore, based on the principles of law previously stated, 
 
         the following conclusions of law are made:
 
         
 
              Claimant has failed to meet his burden he sustained an 
 
         injury on May 26, 1983 which arose out of and in the course of 
 
         his employment.
 
         
 
              Claimant has failed to establish the incident of May 26, 
 
         1983 is causally connected to his alleged periods of disability.
 
         
 
                                      ORDER
 
         
 
              THEREFORE, IT IS ORDERED:
 
         
 
              Claimant take nothing from these proceedings.
 
         
 
              Costs are assessed claimant pursuant to Division of 
 
         Industrial Services Rule 343-4.33.
 
         
 
         
 
              Signed and filed this 13th day of December, 1988.
 
         
 
         
 
         
 
         
 
                                         DEBORAH A. DUBIK
 
                                         DEPUTY INDUSTRIAL COMMISSIONER
 
         
 
         Copies to:
 
         
 
         Mr. Duane Goedken
 

 
         
 
         
 
         
 
         BRIGGS V. THATCHER PLASTICS
 
         PAGE  12
 
         
 
         Attorney at Law
 
         301 Batternson Bldg.
 
         Muscatine, IA 52761
 
         
 
         Mr. Thomas J. Shields
 
         Attorney at Law
 
         700 Davenport Bank Bldg
 
         Davenport, IA 52801
 
 
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                                 1402.30
 
                                                 Filed December 13, 1988
 
                                                 DEBORAH A. DUBIK
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         JUNIOR LEWIS BRIGGS,
 
         
 
              Claimant,
 
                                                  File No. 754994
 
         vs.
 
         
 
         THATCHER PLASTICS,                   A R B I T R A T I 0 N
 
         
 
              Employer,                          D E C I S I 0 N
 
         
 
         and
 
         
 
         CRUM & FORSTER,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         
 
         1402.30
 
         
 
              Claimant failed to sustain his burden of proof that he 
 
         sustained an injury arising out of and in the course of his 
 
         employment.  Although the claimant established that he fell while 
 
         at work on May 26, 1983, claimant failed to show that he 
 
         sustained any injury as a result of that fall.
 
 
 
         
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            ROGER L. STANLEY,             :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :      File No.755167
 
            SWIFT INDEPENDENT PACKING     :
 
            COMPANY,                      :
 
                                          :        A P P E A L
 
                 Employer,                :
 
                                          :      D E C I S I O N
 
            and                           :
 
                                          :
 
            NATIONAL UNION FIRE           :
 
            INSURANCE COMPANY,            :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
            The record, including the transcript of the hearing before 
 
            the deputy and all exhibits admitted into the record, has 
 
            been reviewed de novo on appeal.  The decision of the deputy 
 
            is affirmed and is adopted as the final agency action in 
 
            this case.
 
            That claimant pay the costs of this proceeding including the 
 
            costs of transcription of the arbitration hearing.
 
            Signed and filed this ______ day of June, 1990.
 
            
 
            
 
            
 
            
 
                                         _____________________________
 
                                               DAVID E. LINQUIST
 
                                            INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr. P. D. Furlong
 
            Attorney at Law
 
            401 Commerce Building
 
            P.O. Box 3005
 
            Sioux City, Iowa 51102-3005
 
            
 
            Ms. Judith Ann Higgs
 
            Attorney at Law
 
            200 Home Federal Building
 
            P.O. Box 3086
 
            Sioux City, Iowa 51102
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                          5-9998
 
                                          Filed June 13, 1990
 
                                          DAVID E. LINQUIST
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            ROGER L. STANLEY,             :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :      File No.755167
 
            SWIFT INDEPENDENT PACKING     :
 
            COMPANY,                      :
 
                                          :        A P P E A L
 
                 Employer,                :
 
                                          :      D E C I S I O N
 
            and                           :
 
                                          :
 
            NATIONAL UNION FIRE           :
 
            INSURANCE COMPANY,            :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
            5-9998
 
            Deputy's decision summarily affirmed on appeal.
 
            
 
 
         
 
 
 
 
 
 
 
 
 
 
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         ROGER L. STANLEY,
 
         
 
              Claimant,                                  File No. 755167
 
         
 
         VS.
 
                                                 A R B I T R A T I 0 N
 
         SWIFT INDEPENDENT PACKING
 
         COMPANY,                                  D E C I S I 0 N
 
          
 
               Employer,
 
          
 
          and
 
          
 
          NATIONAL UNION FIRE INSURANCE
 
          COMPANY,
 
          
 
               Insurance Carrier,
 
               Defendants.
 
         
 
         
 
                              STATEMENT OF THE CASE
 
         
 
              This is a proceeding in arbitration brought by Roger L. 
 
         Stanley, claimant, against Swift Independent Packing Company, 
 
         employer, and National Union Fire Insurance Company, insurance 
 
         carrier, to recover benefits as a result of an injury sustained 
 
         January 12, 1984.  This matter came on for hearing before the 
 
         undersigned deputy industrial commission on November 8, 1988 in 
 
         Sioux City,.Iowa. .The record in this case consists of the 
 
         testimony of claimant; Roger L. Stanley, claimant's wife, Sherry 
 
         Diane Stanley, Steven Shook, M.D.; Donald C. Zavala, M.D.;, 
 
         claimant's exhibits 1 through 18; and defendants' exhibits, A 
 
         through CC.
 
         
 
              After submission of evidence, claimant filed a motion to 
 
         strike defendants' brief for the reason that it was not timely 
 
         filed.  There being no merit in claimant's contention, motion is 
 
         denied.
 
         
 
              Defendants filed a motion to strike the two articles 
 
         attached to claimant's brief as they were not offered as exhibits 
 
         at the time of hearing.  This motion is sustained.as claimant is 
 
         attempting to submit further evidence evidence contrary to the 
 
         prehearing order.and rule of,.the agency 343-4.31.
 
         
 
              The parties stipulated that: The injury on January 12, 1984 
 
         arose out of and in the course of employment; if permanent 
 
         disability is found, it would be industrially rated; and, that 
 
         the weekly rate of compensation would be $252.86.
 
         
 
         STANLEY V. SWIFT INDEPENDENT PACKING COMPANY
 
         Page  2
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         
 
                                      ISSUES
 
         
 
              The issues for determination in this matter are:
 
         
 
              1.  Whether there is a causal connection between the injury 
 
         of January 12, 1984 and any disability from which he now suffers;
 
         
 
              2.  Whether the claimant is entitled to temporary total or 
 
         healing period benefits;
 
         
 
              3.  Whether the claimant is permanently and totally disabled 
 
         under the odd-lot doctrine;
 
         
 
              4.. Whether the claimant's use of oxygen is causally related 
 
         to and reasonably necessary for the treatment of his injury on 
 
         January 12, 1984.
 
         
 
                                 FACTS PRESENTED
 
         
 
              Claimant testified that he was exposed to ammonia on January 
 
         12, 1984 while working for defendant employer.  Claimant 
 
         testified at length as to various activities he could do before 
 
         his injury on January 12, 1984, which activities he is unable to 
 
         do now because of his alleged injury.  The activities claimant 
 
         contends he is limited in performing now include: Driving an 
 
         automobile except for short distances and periods of time, 
 
         lifting, standing, stooping, bending, sitting, walking, or 
 
         riding.  Claimant states he has not returned to any type of 
 
         employment since the day of the accident January 12, 1984.
 
         
 
              On December 2, 1987, the claimant testified by deposition 
 
         that "I am taking Empirin 3 with Codeine to cut down on my 
 
         coughing and pain." At the deposition, claimant indicated he 
 
         coughed a lot which caused his chest and throat to hurt, but he 
 
         had no pain in any other part of his body.. This. condition 
 
         claimant contributes to his injury of January 12, 1984. 
 
         ..Claimant further testified that he was also taking sleeping 
 
         pills and nitroglycerin pills which were initially prescribed by 
 
         Dr. Shook.  The medical records indicate that claimant has been 
 
         using oxygen for over two years.  During the hearing, claimant 
 
         brought a portable oxygen tank with tubes running from the
 
         tank to his nose.
 
         
 
              Steven L. Shook, M.D., testified he had first seen the 
 
         claimant for medical services in 1983.  Dr. Shook acknowledged 
 
         receipt of a letter from Dr. Robert Fontana of February 10,.1986, 
 
         Mayo Clinic, in which Dr. Fontana discussed claimant's extremely 
 
         limited activities and told Dr.Shook that he agreed with Dr. 
 
         Shook's recommended program of increased activity, even if it 
 
         does cause him more coughing, because he was concerned.that 
 
         "unless this happens, his condition will deteriorate.".:Dr. 
 
         Fontana further stated in said letter "I feel we should
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         
 
         STANLEY V. SWIFT INDEPENDENT PACKING COMPANY 
 
         Page 3
 
         
 
         
 
         push him to increased activity, because I feel that's the 
 
         beginning of recovery."
 
         
 
              Dr. Shook also testified that he received a note from Dr. 
 
         Robert Stewart on September 15, 1986 indicating "that objective 
 
         findings, for the most part, have been negative." Dr. Shook 
 
         agreed with that.
 
         
 
              On March 30, 1987, Dr. Shook wrote:
 
         
 
                 As you know, Mr. Stanley was recently asked to go to Iowa 
 
              City for an evaluation.  He was seen by Dr. Zavala and was 
 
              subjected to a graded treadmill test.  This treadmill test 
 
              did, in fact, show evidence for ischemic heart disease.  Dr. 
 
              Zavala, a pulmonologist, did theorize that the chronic cough 
 
              may be secondary to low cardiac output ....
 
              
 
                  ....
 
         
 
                 It is possible that he had some underlying cardiac 
 
              disease which was aggravated by the accident.. It is also 
 
              conceivable that the pulmonary injury and his subsequent 
 
              incapacity led to an exacerbation of the heart problems.  It 
 
              is, of course, still possible that all of his current 
 
              problems are related to heart disease and not necessarily to 
 
              the lung injury, but I don't necessarily find any evidence 
 
              for this.
 
              
 
              We certainly don't have all the answers at this point, nor 
 
              do any of the specialists in Iowa City or Mayo that he is 
 
              seeing.
 
              
 
         (Cl Ex. 3U)
 
         
 
         
 
              Dr. Shook testified that he prescribed the portable oxygen., 
 
         and stated that dyspenia or shortness of breath or the sensation 
 
         thereof would be the medical condition that he would be looking 
 
         for that would require the necessity for oxygen to be prescribed.  
 
         Dr. Shook also testified that these could be dangerous to 
 
         claimant's lungs if claimant continued to use oxygen and had 
 
         asked claimant to limit his use of oxygen.  Dr. Shook indicated 
 
         that claimant's accident on January 12, 1984 temporarily gave 
 
         claimant problems.
 
         
 
              Dr. Shook opined that claimant's disability-was caused by 
 
         the injury on January 12, 1984.  Dr. Shook.testified that he was 
 
         aware that the insurance company offered to have some further 
 
         evaluation of Mr. Stanley done in Iowa City and further stated 
 
         "they set up an appointment in Iowa City, and Mr. Stanley at that 
 
         point, I believe, was advised for.unspecified reasons not to go 
 
         for that."  Dr. Shook further testified that he thought it was 
 
         Mr. Furlong who gave that advice.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         
 
         
 
         STANLEY,V. SWIFT INDEPENDENT PACKING COMPANY
 
         Page 4
 
         
 
         
 
              Dr. Shook testified that he referred the claimant to a 
 
         pulmonary specialist, Donald C. Zavala,.  M.D. Dr. Zavala 
 
         testified, when asked "What findings would we see in someone 
 
         who's been exposed to ammonia?"
 
         
 
              The most important finding would be an abnormal arterial 
 
              blood gas in which the PaO2, which represents the level of 
 
              arterial oxygen, is reduced below a normal level.
 
              
 
              A normal level is 100 minus one-third of your age.  As we 
 
              get older, our arterial oxygen levels go down because of 
 
              physiological changes that occur in the lungs.  We call this 
 
              aging.
 
              
 
         (Zavala Dep., page 14)
 
         
 
              Dr. Zavala stated that to determine whether a person has 
 
         been injured due to exposure to ammonia fumes, he would make .a 
 
         careful examination of the chest with a stethoscope to see if he 
 
         could hear rattles in the chest, which are called rhonchi, or 
 
         hear crackling or bubbling sounds in the chest.  Dr. Zavala 
 
         indicated that individuals exposed to ammonia fumes would have a 
 
         chemical burn of the mucosa lining the trachea and the 
 
         tracheobronchial tree which would cause their resting respiratory 
 
         rate to increase from a normal rate of 8 to 10 to a significantly 
 
         high level.  Dr. Zavala testified that he observed no chemical 
 
         burns of claimant's mucosa lining of the trachea or the 
 
         tracheobronchial tree and that he evaluated claimant's lungs to 
 
         be without injury and without any evidence of claimant being in 
 
         respiratory distress.  Dr. Zavala commented that claimant did 
 
         show evidence of anxiety.
 
         
 
              Dr. Zavala stated that there is no portion of claimant's 
 
         current disability that relates to his ammonia exposure in 
 
         January of 1984.
 
         
 
              Dr. Zavala testified that there were no objective findings 
 
         in any of the records that he reviewed which that claimant needed 
 
         supplemenatry oxygen.
 
         
 
              Dr. Zavala further stated
 
         
 
              I wish to categorically state that administering this person 
 
              oxygen, a person who has normal.arterial blood gases, is a 
 
              deviation or a departure from the.accepted standards of 
 
              medical care because,,oxygen is a drug and, if given long 
 
              enough and in high, enough concentrations, can in itself 
 
              produce lung disease.  Furthermore, oxygen dries out the 
 
              mucosa of the trachea and the lungs and promotes coughing.
 

 
              
 
 
 
 
 
 
 
 
 
 
 
              
 
         (Zavala Dep. p. 21)
 
         
 
         
 
         
 
         STANLEY.V. SWIFT INDEPENDENT PACKING COMPANY
 
         Page  5
 
         
 
         
 
              Dr. Zavala stated that "Nitroglycerin is prescribed for 
 
         angina, which is a result of coronary artery disease." (Zavala 
 
         Dep. p. 21)
 
         
 
              Dr. Zavala emphasized that there is absolutely no reason for 
 
         claimant to be using the oxygen that he is using on a regular and 
 
         continuous basis.  Dr. Zavala stated that the claimant's lung 
 
         pathology is not attributed to the 1984 ammonia fumes accident 
 
         because claimant "has no clinical findings or laboratory findings 
 
         to support this diagnosis, nor did he ever have them."
 
         
 
              Dr. Zavala opined:
 
         
 
              ... In the absence of clinical or laboratory findings, one 
 
              has to consider that this patient may have a fixed delusion.  
 
              Now, I'm not a psychiatrist; but as a specialist in internal 
 
              medicine, I'm entitled to an opinion.  And I've seen many 
 
              patients over the years...
 
              
 
                  ....
 
         
 
              I think this man should be admitted to a hospital where he 
 
              can be examined on a medical psychiatric unit as an 
 
              inpatient where the possibilities can be explored of a 
 
              psychiatric nature.  Now, I'm not saying he's a malingerer 
 
              and I'm not saying he has hypochondriasis although these 
 
              diagnoses have been considered in the differential 
 
              diagnosis.  And not being a psychiatrist, I don't consider 
 
              myself qualified to make a [sic] exact diagnosis; but I 
 
              essentially can suspect a fixed delusion in which a man 
 
              starts coughing and then you have to consider that cough 
 
              begets cough.  A cough is an explosive phenomenon where the 
 
              air comes out of the lungs in a very rapid fashion.  The 
 
              most cells that are in the lungs are stimulated from this 
 
              blast of air.  These cells then release histamine which 
 
              makes the patient cough more.  So cough begets cough. and 
 
              once that cycle is started, it is extremely difficult to 
 
              interrupt that cycle.
 
              
 
                 ....
 
              
 
              I also have a strong suspicion that this man:has psychiatric 
 
              problem even though he was examined by a psychiatric 
 
              resident, not a specialist in psychiatry, but a resident 
 
              from Sioux City, Dr. Vicky.Moody.who stated that the patient 
 
              did not have a psychiatric illness.  I strongly disagree 
 
              with this opinion by this resident.  I would like to see an 
 
              opinion by
 

 
              
 
 
 
 
 
 
 
 
 
 
 
              
 
         STANLEY V. SWIFT INDEPENDENT PACKING COMPANY 
 
         Page 6
 
         
 
         
 
              a certified psychiatrist.
 
         
 
         
 
         
 
              ... (A]fter reviewing this extremely difficult unfortunate 
 
              patient's history and going over voluminous reports, I 
 
              concluded that there is a major emotional problem that this 
 
              individual has which is incapacitating him 100 percent and 
 
              will probably be permanent.
 
              
 
         
 
         (Zavala Dep., pp. 25-27)
 
         
 
              Robert M. Stewart, M.D., wrote that he had seen the claimant 
 
         "intermittently at the request of his family physician, Dr. 
 
         Steven Shook, since February 1, 1984." Dr. Stewart further wrote 
 
         on April 21, 1986: "My primary concern is that Mr. Stanley may 
 
         have bronchiolitis obliterans as a consequence of his ammonia 
 
         inhalation.  This of course is a very difficult diagnosis to 
 
         establish.  I recommended that he be seen by another 
 
         pulmonologist to get a second opinion and I think that this has 
 
         been done." (Claimant's Exhibit 3R)
 
         
 
              On March 25, 1985, Anita Howell, manager of rehabilitation 
 
         at Crawford Risk Management Services, wrote: "At his relative 
 
         young age, he should definitely receive vocational rehabilitation 
 
         to allow him to return to productive employment within his 
 
         physical capabilities." (Cl.  Ex. 3H)
 
         
 
              On October 25, 1985, James J. Sanders, vocational consultant 
 
         with Crawford Risk Management Services, wrote to claimant's 
 
         attorney, Mr. Furlong: "Mr. Stanley is obviously in need of 
 
         rehabilitation assistance.  We are prepared to provide that 
 
         assistance as soon as you allow him to cooperate." (Cl. Ex. 3M)
 
         
 
                           APPLICABLE LAW AND ANALYSIS
 
         
 
              The claimant has the burden of proving by a preponderance of 
 
         the evidence that the injury of January 12, 1984 is causally 
 
         related to the disability on which he now bases his claim. Bodish 
 
         v. Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867 (1965). Lindahl v. 
 
         L.O. Boggs, 236 Iowa 296, 18 N.W.2d 607 .(1945).  A possibility 
 
         is insufficient; a probability is necessary. Burt v. John Deere 
 
         Waterloo Tractor Works,..247 Iowa.691,73 N.W.2d 732 (1955).  The 
 
         question of causal connection is essentially within the domain of 
 
         expert testimony.  Bradshaw v.Iowa Methodist.Hospital, 251 Iowa 
 
         375, 101 N.W.2d 167 (1960).
 
         
 
              A treating physician's testimony is not entitled to greater. 
 
         weight as a matter of law than that of a physician who later 
 
         examines claimant in anticipation of litigation.  Weight to be 
 
         given testimony of physician is a fact issue to be decided
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         
 
         
 
         STANLEY V. SWIFT INDEPENDENT PACKING COMPANY 
 
         Page 7
 
         
 
         
 
         by the industrial commissioner in light of the record the parties 
 
         develop.  In this regard, both parties may develop facts as to 
 
         the physician's employment in connection with litigation, if so; 
 
         the physician's examination at a later date and not when the 
 
         injuries were fresh; the arrangements as to compensation; the 
 
         extent and nature of the physician's examination; the physician's 
 
         education, experience, training, and practice; and all other 
 
         factors which bear upon the weight and value of the physician's 
 
         testimony may be considered.  Both parties may bring all this 
 
         information to the attention of the fact-finder as either 
 
         supporting or weakening the physician's testimony and opinion.  
 
         All factors go to the value of the physician's testimony as a 
 
         matter of fact not as a matter of law.  Rockwell Graphic Systems, 
 
         Inc.
 
         v.   Prince, 366 N.W.2d 187, 192 (Iowa 1985).
 
         
 
         
 
              A greater weight should be given to the testimcny of Dr. 
 
         Zavala.  Dr. Shook, claimant's treating family doctor, referred 
 
         claimant to Dr. Zavala because claimant's suspected medical 
 
         problems were not within Dr. Shook's expertise, and he thought 
 
         Dr. Zavala had the medical expertise.  From the record and 
 
         credentials of Dr. Zavala, Dr. Shook made a good choice.  Dr. 
 
         Shook is a 1982 medical school graduate and is certified as a 
 
         family practitioner.  Dr. Zavala is a 1948 medical school 
 
         graduate with extensive experience as a private practitioner, 
 
         professor of medicine and medical writer.
 
         
 
              Claimant can easily generate sympathy for his medical 
 
         problems.  This claimant came into court with a portable oxygen 
 
         tank with tubes into his nose.  Claimant did considerable 
 
         coughing during the hearing.  However, there must be a causal 
 
         connection .between the injury arising out of and in the course 
 
         of the claimant's employment on January 12, 1984 and any 
 
         disability from which claimant suffers.  The greater weight of 
 
         medical evidence indicates that claimant's injury has not caused 
 
         his present disability.  Sympathy is not to prejudice that 
 
         decision.
 
         
 
              Claimant is still using oxygen.  Medical evidence is 
 
         undisputed that oxygen can cause problems with the lungs and can 
 
         dry out the mucus and throat areas.  This can cause coughing and 
 
         other harmful symptoms.  Claimant's own doctor at the time of 
 
         this hearing was not advocating the use of oxygen by this 
 
         claimant and had advised claimant to attempt to stop using it and 
 
         attempt to press himself to activities as a part of his 
 
         rehabilitation.  Other medical doctors in the evidence indicate 
 
         that there,was not the need for the oxygen and the facts did not 
 
         warrant its prescription in the first place.  According.to Dr. 
 
         Zavala, prescribing oxygen for claimant was contrary to good 
 
         medical advice.  Claimant has obviously disagreed with this 
 
         medical..advice and appears to have made no effort to wean 
 
         himself from this oxygen use.     It would appear that the 
 
         disposition of this case may have an effect on the future and 
 
         motivation of claimant.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              The testimony of Dr. Zavala indicates the claimant's 
 
         condition
 
         
 
         
 
         
 
         STANLEY V. SWIFT INDEPENDENT PACKING COMPANY 
 
         Page 8
 
         
 
         
 
         is possibly caused by claimant's psychological problems,.but 
 
         there is insufficient evidence that these psychological problems 
 
         are caused by the injury.  A review of the evidence fails to show 
 
         that any temporary total disability benefits were due claimant 
 
         because the tests show no objective finding that any of the 
 
         conditions resulted from his injury or that he was required to 
 
         miss work from this injury.  Because the problems started near 
 
         the event does not mean the event caused the disability.
 
         
 
                                 FINDINGS OF FACT
 
         
 
              1.  Claimant was exposed to ammonia fumes on January 12, 
 
         1984.
 
         
 
              2.  Claimant's exposure to ammonia on January 12, 1984 did 
 
         not injure claimant's lungs.
 
         
 
              3.  Claimant's use of oxygen is not causally related to and 
 
         reasonably necessary for-the treatment of an injury arising out 
 
         of and in the course of his employment on January 12, 1984.
 
         
 
                                CONCLUSIONS OF LAW
 
         
 
              THEREFORE, it is concluded:
 
         
 
              There is no causal connection between any injury on January 
 
         12, 1984 and claimant's claimed disability.
 
         
 
              Claimant is not entitled to any temporary total, healing 
 
         period, permanent partial disability or permanent total 
 
         disability benefits.
 
         
 
              Claimant is not entitled to receive the cost of oxygen for 
 
         the treatment of his condition.
 
         
 
                                      ORDER
 
         
 
              THEREFORE, it is ordered:
 
         
 
              Claimant take nothing from these proceedings.
 
         
 
              Claimant shall pay the costs of the proceeding pursuant to 
 
         Division of Industrial Services Rule 343-4.33.
 
         
 
              Signed and filed this 2nd day of February, 1989.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         
 
         
 
         
 
         
 
         
 
                                         BERNARD J. O'MALLEY
 
                                         DEPUTY INDUSTRIAL COMMISSIONER
 
         
 
         
 
         
 
         STANLEY V. SWIFT INDEPENDENT PACKING COMPANY
 
         Page 9
 
         
 
         
 
         copies to:
 
         
 
         Mr. P.D. Furlong
 
         Attorney at Law
 
         401 Commerce Bldg.
 
         Sioux City, IA 51101
 
         
 
         Ms. Judith Ann Higgs
 
         Attorney at Law
 
         200 Home Federal Bldg
 
         P.O. Box 3086
 
         Sioux City, IA 51102
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
 
                                            
 
 
 
 
 
 
 
 
 
 
 
                                            1100; 1108.30; 1402.20;
 
                                            1402.40; 4100; 1800; 2205
 
                                            Filed February 2, 1989
 
                                            Bernard J. O'Malley
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         ROGER L. STANLEY,
 
          
 
               Claimant,                    File No. 755167
 
          
 
          VS.
 
                                            A R B I T R A T I 0 N
 
          SWIFT INDEPENDENT PACKING
 
          COMPANY,                          D E C I S I 0 N
 
          
 
               Employer,
 
          
 
          and
 
          
 
          NATIONAL UNION FIRE INSURANCE
 
          COMPANY,
 
          
 
               Insurance Carrier,
 
               Defendants.
 
          
 
          
 
         1100; 1108.30; 1402.20;  1402.40; 4100; 1800; 2205
 
         
 
              Claimant sought benefits as a result of his contact with 
 
         ammonia fumes at his place of employment.  Claimant had not 
 
         worked since this exposure four years prior to hearing.
 
         
 
              Claimant's treating physician referred claimant to a medical 
 
         specialist who concluded no evidence of any lung damage.  
 
         Therefore, there is no causal connection between claimant's 
 
         claimed disability and his exposure to ammonia fumes at work.
 
         
 
              Claimant's treating physician opined a causal connection 
 
         between claimant's claimed disability and his exposure to ammonia 
 
         fumes at work.  This doctor was a family practitioner with little 
 
         experience and no specialty as compared to the specialist to whom 
 
         he referred claimant for evaluation and determination of cause of 
 
         claimant's condition and recommended treatment.
 
         
 
              Claimant came into hearing with a portable oxygen tank and 
 
         tubes from tank to his nose and an "intractable" cough.  The 
 
         specialist opined that oxygen should never have been prescribed 
 
         by claimant's treating physician under acceptable medical 
 
         standards and that oxygen is a drug and can cause coughing by 
 
         drying out the mucosa of the trachea and the lungs and that 
 
         oxygen given long enough can cause lung disease.  Claimant was on 
 
         oxygen over two years and claimant's treating physician had 
 
         advised claimant to discontinue use and claimant made no effort 
 
         to wean himself from oxygen.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              Application of odd-lot doctrine requested but found not 
 
         applicable.
 
         
 
              No benefits awarded to claimant.
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         _________________________________________________________________
 
         
 
         CHARLES STILLINGS,
 
         
 
              Claimant,
 
         VS.
 
                                                    FILE NO. 755731
 
         PAYNE & KELLER,
 
                                                 A R B I T R A T I 0 N
 
              Employer,
 
                                                    D E C I S I 0 N
 
         and
 
         
 
         AETNA CASUALTY & SURETY CO.,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
                                      
 
                                       
 
         __________________________________________________________________
 
         
 
                              STATEMENT OF THE CASE
 
         
 
              This is a proceeding in arbitration brought by Charles W. 
 
         Stillings, claimant, against Payne & Keller, employer, 
 
         hereinafter referred to as P & K, and Aetna Casualty & Surety 
 
         Company, insurance carrier, defendants, for benefits as a result 
 
         of an alleged injury on January 16, 1984.  On March 11, 1987, a 
 
         hearing was held on claimant's petition and the matter was 
 
         considered fully submitted at the close of this hearing.
 
         
 
              Claimant is alleging in this proceeding that as a result of 
 
         a work injury to his low back, claimant has suffered severe 
 
         permanent industrial disability.  Defendants dispute the severity 
 
         of this disability.
 
         
 
              The parties have submitted a prehearing report of contested 
 
         issues and stipulations which was approved and accepted as a part 
 
         of the record of this case at the time of hearing.  Oral 
 
         testimony was received during the hearing from claimant and 
 
         Kenneth Perron.  The exhibits received into the evidence at the 
 
         hearing are listed in the prehearing report.  All of the evidence 
 
         received at the hearing was considered in arriving at this 
 
         decision.
 
         
 
              The prehearing report contains the following stipulations: 
 
         (1) on January 16, 1984, claimant received an injury which arose 
 
         out of and in the course of his employment with P & K; (2) 
 
         claimant does not seek additional temporary total disability or 
 
         healing period benefits in this proceeding; (3) the commencement 
 
         date for permanent partial disability benefits, if awarded
 
         
 
         
 
         
 
         herein, shall be January 24, 1985; (4) claimant's rate of 
 
         compensation in the event of an award of weekly benefits from 
 
         this proceeding shall be $206.42; (5) all requested medical 
 
         benefits have been or will be paid by defendants; and, (6) 
 

 
         defendants have voluntarily paid 25 weeks of permanent partial 
 
         disability benefits to claimant prior to the hearing.
 
         
 
              The prehearing report submits the following issues for 
 
         determination in this decision:
 
         
 
              I.  Whether there is a causal relationship between the work 
 
         injury and the claimed disability;
 
         
 
              II.  The extent of claimant's entitlement to weekly 
 
         disability benefits.
 
         
 
                              FINDINGS OF FACT
 
         
 
              1.  Claimant was employed as an iron worker helper by P & K 
 
         from November, 1982 to January, 1984 except for a six month 
 
         period of layoff between December, 1982 and May, 1983.
 
         
 
              Claimant was a non-union iron worker for P & K Construction 
 
         Company.  Claimant's wages were $8.00 per hour for a 40 hour work 
 
         week.  P & K has a long term "evergreen" contract with ADM 
 
         Company who has a plant in the Clinton, Iowa area.  According to 
 
         Kenneth Perron, superintendent of P & K at the ADM plant in 
 
         Clinton, this contract provides for a flat charge per hour for 
 
         construction and maintenance work at the ADM plant but does not 
 
         guarantee that such work will be available.
 
         
 
              After the work injury in January, 1984, claimant never 
 
         returned to P & K and was terminated for "medical reasons' 
 
         according to company records.  According to claimant's superior, 
 
         claimant's job performance was only fair despite a better than 
 
         average attitude.  Consequently, given the heavy competition for 
 
         jobs in the Clinton area, claimant probably would not be rehired 
 
         regardless of his physical condition.
 
         
 
              2.  On January 16, 1984, claimant suffered an injury to his 
 
         lower back consisting of a herniated disc at the L5-Sl level of 
 
         the spine, which arose out of and in the course of his employment 
 
         with P & K.
 
         
 
              From his demeanor at the hearing, claimant appeared to be 
 
         testifying for the most part truthfully although some 
 
         inconsistencies between his testimony at hearing and in this 
 
         deposition, pointed out by defense counsel in cross-examination, 
 
         revealed that he has a tendency to exaggerate the effects of his 
 
         disability and downplay his current physical abilities.  Claimant 
 
         testified that at the time of the injury he was assisting in 
 
         handling conveyor shells, or large tubes, with a boom truck.  One 
 
         of theshells slipped and claimant pulled his back in an attempt 
 
         to hold onto the shell.  Claimant felt severe pain and numbness 
 
         in the low back after a few minutes extending into his neck.  
 
         These symptoms did not subside and claimant sought treatment from 
 
         D. G. Wulf, M.D., two days later.  Upon a diagnosis of acute back 
 
         strain, Dr. Wulf prescribed medication and mild physical therapy.  
 
         Claimant's condition deteriorated over the next few days and pain 
 
         extended into his legs.  Claimant was then referred by Dr. Wulf 
 
         to a board certified neurosurgeon, Eugene Herzberger, M.D. 
 
         According to Dr. Herzberger's records and deposition testimony, 
 
         claimant complained of severe low back and leg pain and was 
 
         immediately hospitalized for approximately six days for 
 
         diagnostic testing and intensive physical therapy.  A CT scan at 
 
         the hospital revealed that claimant had suffered a herniated disc 
 
         at the L5-Sl level of the spine.  Despite the diagnosis, Dr. 
 
         Herzberger's treatment remained conservative with medication and 
 

 
         
 
         
 
         
 
         STILLINGS V.PAYNE & KELLER
 
         Page   3
 
         
 
         
 
         physical therapy for approximately one month.  Claimant's 
 
         condition did not improve over this period of time and claimant 
 
         was again hospitalized in early March, 1984, by Dr. Herzberger 
 
         who performed at that time a chemonucleolysis procedure in the 
 
         area of the herniated disc.  This procedure consisted of 
 
         injecting chembpapain into the area of the disc to dissolve or 
 
         reduce the size of the herniated disc thereby relieving pressure 
 
         on the ajoining nerves.  Claimant's leg pain was significantly 
 
         reduced by this procedure but claimant's low back pain persisted 
 
         to a limited degree at the present time.
 
         
 
              3.  The work injury of January 16, 1984, is a cause of a 
 
         mild permanent partial impairment to claimant's body as a whole.
 
         
 
              Claimant had no previous medical history of any back 
 
         problems and no prior functional impairment or disability due to 
 
         a back problem before the work injury in this case.  Claimant's 
 
         past medical records and credible testimony established that he 
 
         was in excellent health before the work injury.
 
         
 
              Claimant currently has permanent functional impairment to 
 
         his body as a whole.  Claimant's primary treating physician, Dr. 
 
         Herzberger, has opined that claimant has suffered from a five 
 
         percent permanent partial impairment to the body as a whole as a 
 
         result of a weaken back caused by the January 16 work injury.  
 
         However, Dr. Herzberger has not imposed any restrictions on 
 
         claimant's work activities.  In his deposition testimony, Dr. 
 
         Herzberger stated that claimant is able to perform any type of 
 
         physical work but agreed with claimant's counsel and another 
 
         neurosurgeon, Byron Rovine, M.D., that claimant should avoid over 
 
         strenuous activity of the lower back and use common sense.
 
         
 
              Claimant stated that the back pain persists at the present 
 
         time but admits that since the injury claimant has been involved 
 
         in extensive physical activity both at work and at home.  
 
         Claimant is in excellent physical condition and works out
 
         
 
         
 
         regularly with weights in excess of 50 pounds.  Since reaching 
 
         maximum healing from the injury in July, 1985, claimant had 
 
         numerous full and part-time jobs requiring repetitive and heavy 
 
         lifting in a woodworking shop, a cereal plant, and an assembly 
 
         plant and a metal fabricating company as a welder.  Claimant also 
 
         performs a limited amount of auto maintenance, carpentry, cement 
 
         contracting, welding and electrical wiring on a self-employment 
 
         basis.  All such work at times requires heavy and repetitive 
 
         lifting.
 
         
 
              Claimant did reinjure his back after the work injury on July 
 
         25, 1984, after lifting a 50 to 60 pound keg of beer.       
 
         However, after examination and another CT scan, Dr. Herzberger 
 
         opines that claimant suffered only muscle ligament strain and did 
 
         not suffer any permanent damage from this incident.  This opinion 
 
         is uncontroverted in the record.
 
         
 
              6.  The work injury of January 16, 1984, was a cause of a 15 
 
         percent permanent loss of earning capacity.
 
         
 
              Due to only a mild physical impairment caused by the injury, 
 

 
         
 
         
 
         
 
         STILLINGS V.PAYNE & KELLER
 
         Page   4
 
         
 
         
 
         claimant is physically able to return to the work he was 
 
         performing at the time of the work injury and most other jobs 
 
         claimant has held in the past such as construction work and auto 
 
         and truck repair.
 
         
 
              However, the work injury is a significant cause of 
 
         claimant's current reduced earnings from employment.  Claimant's 
 
         employment has been spurious and low paying since the injury.  
 
         Claimant only earned a little over $2,000 in 1986 and must rely 
 
         on a few odd jobs for his income due to heavy unemployment in the 
 
         Clinton, Iowa area.  Admittedly, claimant's loss of income is 
 
         largely due to the poor state of the Iowa economy, but the fact 
 
         remains that claimant was placed into this situation because he 
 
         was terminated by P & K as a result of his inability to return to 
 
         work following the work injury.  Defendants have made no effort 
 
         to return claimant to his job despite the availability of work at 
 
         P & K.
 
         
 
              Claimant is 23 years of age.  Due to his youthful age, 
 
         claimant's disability is not as severe as would be the case for 
 
         an older person.  Despite the fact that claimant has only a tenth 
 
         grade education, claimant exhibited above average intelligence at 
 
         the hearing.  Claimant is very versatile and his knowledge of 
 
         auto mechanics and electricity was gained by reading books.  
 
         Claimant is currently attending college.  Consequently, claimant 
 
         has high potential for successful vocational rehabilitation.
 
         
 
              A Richard McCluhan, apparently a vocational rehabilitation 
 
         consultant (his qualifications were not submitted into the 
 
         evidence) performed a "VERTEK" evaluation of claimant's 
 
         vocational opportunities.  This evaluation is simply a computer 
 
         read out of jobs in the dictionary of occupational titles which 
 
         match
 
         
 
         claimant's work history, education, physical abilities and 
 
         transferrable skills.  The read out identified a very large 
 
         number of jobs, in excess of 100.  However, the read out has only 
 
         limited value in the assessment of claimant's disability because 
 
         it does not provide information as to the availability of those 
 
         jobs in the geographical area of claimant's residence or even in 
 
         this state or surrounding states.  On the other hand, the large 
 
         number of jobs identified was further evidence of claimant's 
 
         versatility.
 
         
 
                                CONCLUSIONS OF LAW
 
         
 
              In this case, there was no controversy raised by the parties 
 
         concerning the applicable law to be followed in the determination 
 
         of the issues.   The foregoing findings of fact were made on the 
 
         following principles of law:
 
         
 
              I.  The claimant has the burden of proving by a 
 
         preponderance of the evidence that the work injury is a cause of 
 
         the claimed disability.  A disability may be either temporary or 
 
         permanent.  In the case of a claim for temporary disability, the 
 
         claimant must establish that the work injury was a cause of 
 
         absence from work and lost earnings during a period of recovery 
 
         from the injury.  Generally, a claim of permanent disability 
 
         invokes an initial determination of whether the work injury was a 
 

 
         
 
         
 
         
 
         STILLINGS V.PAYNE & KELLER
 
         Page   5
 
         
 
         
 
         cause of permanent physical impairment or permanent limitation in 
 
         work activity.  However, in some instances, such as a job 
 
         transfer caused by a work injury, permanent disability benefits 
 
         can be awarded without a showing of a causal connection to a 
 
         physical change of condition.  Blacksmith v. All-American, Inc., 
 
         290 N.W.2d 348, 354 (Iowa 1980); McSpadden v. Big Ben Coal Co., 
 
         288 N.W.2d 181 (Iowa 1980).
 
         
 
              The question of causal connection is essentially within the 
 
         domain of expert medical opinion.  Bradshaw v. Iowa Methodist 
 
         Hospital, 251 Iowa 375, 101 N.W.2d 167 (1960).  The opinion o 
 
         experts need not be couched in definite, positive or unequivocal 
 
         language and the expert opinion may be accepted or rejected, in 
 
         whole or in part, by the trier of fact.  Sondag V. Ferris 
 
         Hardware, 220 N.W.2d 903 (Iowa 1974).  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 v. Fischer, Inc., 257 
 
         Iowa 516, 133 N.W.2d 867 (1965).
 
         
 
              Furthermore, if the available expert testimony is 
 
         insufficient alone to support a finding of causal connection, 
 
         such testimony may be coupled with nonexpert testimony to show 
 
         causation and be sufficient to sustain an award.  Giere v. Aase 
 
         Haugen Homes, Inc., 259 Iowa 1065, 146 N.W.2d 911, 915 (1966).  
 
         Such evidence does not,however, compel an award as a matter of 
 
         law.  Anderson v. Oscar Mayer & Co., 217 N.W.2d 531, 536 (Iowa 
 
         1974).  To establish compensability, the injury need only be 
 
         a significant factor, not be the only factor causing the 
 
         claimed disability.  Blacksmith, 290 N.W.2d 348, 354.  
 
         In the case of a preexisting condition, an employee is not 
 
         entitled to recover for the results of a preexisting injury 
 
         or disease but can recover for an aggravation thereof which 
 
         resulted in the disability found to exist.  Olson 
 
         v. Goodyear Service Stores, 255 Iowa 1112, 125 N.W.2d 251 
 
         (1963).
 
         
 
              In the case sub judice, although a finding was made causally 
 
         connecting the work injury to claimant's permanent functional 
 
         impairment to his body as a whole, such a finding does not, as a 
 
         matter of law, automatically entitle claimant to benefits for 
 
         permanent disability.  The extent to which this physical 
 
         impairment results in disability was examined under the law 
 
         setforth below.
 
         
 
              II.  Claimant must establish by a preponderance of the 
 
         evidence the extent of weekly benefits for permanent disability 
 
         to which claimant is entitled.  As the claimant has shown that 
 
         the work injury was a cause of a permanent physical impairment or 
 
         limitation upon activity involving the body as a whole, the 
 
         degree of permanent disability must be measured pursuant to Iowa 
 
         Code section 85.34(2)(u). However, unlike scheduled member 
 
         disabilities, the degree of disability under this provision is 
 
         not measured solely by the extent of a functional impairment or 
 
         loss of use of a body member.  A disability to the body as a 
 
         whole or an "industrial disability" is a loss of earning capacity 
 
         resulting from the work injury.  Diederich v. Tri-City Railway 
 
         Co., 219 Iowa 587, 593, 258 N.W. 899 (1935).  A physical 
 
         impairment or restriction on work activity may or may not result 
 

 
         
 
         
 
         
 
         STILLINGS V.PAYNE & KELLER
 
         Page   6
 
         
 
         
 
         in such a loss of earning capacity.  The extent to which a work 
 
         injury and a resulting medical condition has resulted in an 
 
         industrial disability is determined from examination of several 
 
         factors.  These factors include the employee's medical condition 
 
         prior to the injury, immediately after the injury and presently; 
 
         the situs of the injury, its severity and the length of healing 
 
         period; the work experience of the employee prior to the injury, 
 
         after the injury and potential for rehabilitation; the employee's 
 
         qualifications intellectually, emotionally and physically; 
 
         earnings prior and subsequent to the injury; age; education; 
 
         motivation; functional impairment as a result of the injury; and 
 
         inability because of the injury to engage in employment for which 
 
         the employee is fitted.  Loss of earnings caused by a job 
 
         transfer for reasons related to the injury is also relevant. 
 
         Olson, 255 Iowa 1112, 1121, 125 N.W.2d 251, 257 (1963).  See 
 
         Peterson v. Truck Haven Cafe, Inc., (Appeal Decision, February 
 
         28, 1985)
 
         
 
              Based upon a finding of a 15 percent loss of earning 
 
         capacity or industrial disability as a result of the injury to 
 
         the body as a whole, claimant is entitled as a matter of law to 
 
         75 weeks of permanent partial disability benefits under Iowa Code 
 
         section 85.34(2)(u) which is 15 percent of the 500 weeks 
 
         allowable for
 
         
 
         an injury to the body as a whole in that subsection.  Claimant 
 
         has already been paid 25 weeks according to the parties' 
 
         prehearing report.  Therefore, claimant shall be awarded an 
 
         additional 50 weeks.
 
         
 
                                      ORDER
 
         
 
              IT IS THEREFORE ORDERED as follows:
 
         
 
              1.  Defendants shall pay to claimant an additional fifty
 
              (50) weeks of permanent partial disability benefits at the 
 
         rate of two hundred six and 42/100 dollars ($206.42) per week 
 
         from seven (7) days after defendants' last voluntary payment of 
 
         permanent partial disability benefits.
 
         
 
              2.  Defendants shall pay interest on benefits awarded herein 
 
         as setforth in Iowa Code section 85.30 and cases interpreting in 
 
         that code section.
 
         
 
              3.  Defendants shall pay the costs of this action pursuant 
 
         to Division of Industrial Services Rule 343-4.33.
 
         
 
              4.  Defendants shall file activity reports upon payment of 
 
         this award as requested by this agency pursuant to Division of 
 
         Industrial Services Rule 343-3.1.
 
         
 
         
 
              Signed and filed this 21st day of May, 1987.
 
         
 
                                          
 
         
 
                                           LARRY P. WALSHIRE
 
                                           DEPUTY INDUSTRIAL COMMISSIONER
 

 
         
 
         
 
         
 
         STILLINGS V.PAYNE & KELLER
 
         Page   7
 
         
 
         
 
                                          
 
         
 
         
 
         Copies To:
 
         
 
         Mr. David H. Sivright, Jr.
 
         Attorney at Law 
 
         408 South Second Street
 
         Clinton, Iowa 52732
 
         
 
         Mr. Craig A. Levien
 
         Mr. Larry L. Shepler
 
         Attorneys at Law
 
         600 Union Arcade Building
 
         111 East Third St.
 
         Davenport, Iowa 52801
 
         
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                                      1803
 
                                                      Filed May 21, 1987
 
                                                      LARRY P. WALSHIRE
 
         
 
                    BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         _________________________________________________________________
 
         
 
         CHARLES STILLINGS,
 
         
 
              Claimant,
 
         VS.
 
                                                 FILE NO. 755731
 
         PAYNE & KELLER,
 
                                              A R B I T R A T I 0 N
 
              Employer,
 
                                                 D E C I S I 0 N
 
         and
 
         
 
         AETNA CASUALTY & SURETY CO.,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         _________________________________________________________________
 
         
 
         1803
 
         
 
              Although claimant's physical impairment caused by the injury 
 
         was mild and is physically able to return to the work he was 
 
         performing at the time of the injury, claimant was still awarded 
 
         15 percent permanent partial disability benefits.  Defendants 
 
         made no attempt to return claimant to work after the injury and 
 
         terminated claimant from employment as a result of the work 
 
         injury.  Claimant has not been able to secure replacement of 
 
         employment which pays as well as the job he held at the time of 
 
         the work injury.
 
 
 
         
 
 
        
 
 
 
 
 
                       BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
        
 
        
 
        CHET BALLENGER,
 
        
 
            Claimant,                    File No. 755986
 
        
 
        v s.                              A P P E A L
 
        
 
        LITHCOTE COMPANY,               D E C I S I O N 
 
        
 
            Employer,
 
            Self-Insured,
 
            Defendant.
 
        
 
        
 
                                 STATEMENT OF THE CASE
 
        
 
        Defendant appeals from an arbitration decision awarding healing 
 
        period benefits and permanent partial disability benefits based 
 
        upon an industrial disability of 30 percent from an injury on 
 
        January 16, 1984. The arbitration decision also ordered that the 
 
        defendant pay the costs of the action.
 
        
 
        The record on appeal consists of the transcript of the 
 
        arbitration hearing; joint exhibits 1 through 15, 18, 19 and 20; 
 
        and claimant's exhibits 21 through 26. Both parties filed briefs 
 
        on appeal.
 
        
 
                                      ISSUES
 
        
 
        Defendant states the issues on appeal are:
 
        
 
        I. The deputy erred in finding that the claimant sustained damage 
 
        to both the L4-5 and L5-51 intervertebral lumbar discs as a 
 
        result of an injury on January 16, 1984.
 
        
 
        II. The deputy erred in finding that the claimant's healing 
 
        period lasted from January 19, 1984 to August 25, 1985.
 
        
 
        III. The deputy's award of 30% industrial disability is excessive 
 
        under the facts in law in this case.
 
        
 
        IV. The deputy erred in assessing the cost of Dr. Beck's and Dr. 
 
        Neiman's evaluations to the employer, since the claimant did not 
 
        apply to the division of industrial services as required under 
 
        section 85.39.
 
        
 
        BALLENGER v. LITHCOTE COMPANY
 
        Page 2
 
        
 
        
 
                                 REVIEW OF THE EVIDENCE
 
        
 
        The arbitration decision adequately and accurately reflects the 
 
        pertinent evidence and it will not be totally reiterated herein.
 
        
 
        Claimant is a 29-year-old married man whose formal education is 
 
        limited to the eighth grade. Since quitting school he has engaged 
 
        in a number of occupations including commercial fishing, 
 
        clamming, carpentry, painting, masonry work, plumbing, electrical 
 
        work and bartending. Many of his work activities required a great 
 
        degree of physical strength, particularly clamming and commercial 
 

 
        
 
 
 
 
 
        fishing, where he would perform repetitive lifting of weights of 
 
        as much as 80-100 pounds and occasional lifting of up to 200 
 
        pounds.
 
        
 
        Claimant commenced employment with Lithcote Company on April 14, 
 
        1983. Claimant testified that on January 16, 1984 he was grinding 
 
        with a 10-14 pound grinder working overhead and fell. Claimant 
 
        consulted Mark O'Dell, M.D., on January 19, 1984. Dr. O'Dell 
 
        noted complaints of pain in claimant's back and left gluteal area 
 
        and numbness in his calf and left foot. Upon examination, Dr. 
 
        O'Dell found claimant's left Achilles reflex to be absent, the 
 
        straight leg raising test to be positive and tenderness at the 
 
        right sciatic notch. A follow-up examination on January 25, 1984 
 
        showed that no significant improvement had occurred and claimant 
 
        was referred to David C. Naden M.D. Dr. Naden's initial diagnosis 
 
        was that claimant had a probable herniated nucleosis pulposis at 
 
        either the L4-5 or L5-Sl level and also with either a free 
 
        fragment from the above level or a large free fragment at the 
 
        L5-Sl level compromising the first sacral nerve root on the left. 
 
        A myelogram was performed on January 27, 1984 which was 
 
        interpreted as showing:
 
        
 
        [A] moderately large extradural defect at the L4-5 disk space 
 
        level anteriorally. Bilateral nerve compression at that level 
 
        (nerve roots of L5) unilateral L5 nerve root sheath 
 
        at.amputation on the left side.... An additional large extradural 
 
        defect was present at the mid L5 vertebral body level on the 
 
        left side ... resulting in compression with the left nerve of S1.
 
        
 
        (Joint Exhibit 1, page 24)
 
        
 
        Richard Kundel,M.D., who interpreted the myelogram, concluded 
 
        that it showed a herniated intervertebral disk at the L4-5 level 
 
        with probable free fragment with nerve root compression. Dr. 
 
        Naden suggested chemonucleolysis which was performed at the L4-5 
 
        level on February 21, 1984. The chymopapain was 
 
        
 
        BALLENGER v. LITHCOTE COMPANY
 
        Page 3
 
        
 
        
 
        injected without any apparent abnormal reaction or leakage. 
 
        Claimant thereafter went through an extended period of 
 
        recuperation and was evaluated by several doctors.
 
        
 
        Dr. Naden indicated that claimant had attained the maximum 
 
        improvement that he would attain without surgery on July 23, 
 
        1984. He went on to state, however, that there was some 
 
        additional improvement in claimant's condition subsequent to July 
 
        31, 1984 and up to April of 1985 when claimant actually returned 
 
        to work. He indicated that he did not release claimant to return 
 
        to work until April of 1985.
 
        
 
        Claimant testified he returned to work on April 29, 1985 and 
 
        worked for four and a half days before discontinuing work because 
 
        the work hurt his back. Claimant returned to Dr. Naden on May 28, 
 
        1985. A myelogram was again performed on June 4, 1985 which 
 
        indicated: "There is nerve root amputation on the left side at 
 
        the L4-5 level and pressure effect on the nerve root on the right 
 
        side at this level. In addition there appears to be nerve root 
 
        amputation on the left at the L5-Sl level." It was interpreted by 
 
        Dr. Kundel as showing probable disc herniation on the left side 
 
        at the L4-5 and L5-Sl levels.
 
        
 
        Claimant was again hospitalized and a laminectomy was performed 
 
        at the L4-5 and L5-S1 levels with extraction of a herniated disc 
 

 
        
 
 
 
 
 
        and intradiscal material. Thereafter, claimant experienced a 
 
        relatively unremarkable recovery, was released to return to work 
 
        and did so on August 26, 1985.
 
        
 
        Dr. Naden indicated that the L5-Sl level of claimant's spine was 
 
        normal at the time of the 1984 myelogram and he could not say 
 
        when or why the problem at that level developed. He indicated 
 
        that the claimant's L4-5 disk problem was related to his work, 
 
        but declined to make such a causal connection. with regard to the 
 
        L5-51 level. Dr. Naden indicated that, during surgery, he 
 
        observed a difference between the discs at the L4-5 and L5-S1 
 
        level which indicated that the L4-5 injury had existed longer 
 
        than the L5-S1.
 
        
 
        David W. Beck, M. D., a board certified neurosurgeon, examined 
 
        claimant on May 20, 1986. Dr. Beck expressed the opinion that 
 
        claimant injured both the L4-5 and L5-S1 discs in the fall that 
 
        occurred on January 16, 1984. Dr. Beck explained that 
 
        chymopapain is contraindicated for a free disc fragment, but that 
 
        it is used for treating bulging discs. He rated claimant as 
 
        having a 30 percent impairment. Dr. Beck recommended that 
 
        claimant follow a 20-25 pound lifting limit, use very limited 
 
        motion and avoid doing a job if it aggravates his back.
 
        
 
        Richard F. Neiman, M. D., a board certified neurologist, 
 
        testified by deposition and also in person at hearing. Dr. 
 
        Neiman felt that at the time the chymopapain injection was
 
        
 
        BALLENGER v. LITHCOTE COMPANY
 
        Page 4
 
        
 
        
 
        performed, there was some indication of a free fragment as well 
 
        as L4-5 herniation. He stated that there has to be a tear in the 
 
        annulus fibrosus of a disc for there to be a free fragment. He 
 
        stated that chymopapain is not indicated if there is a free 
 
        fragment because if chymopapain escapes from the disc into the 
 
        spinal canal it damages nerves and surrounding soft tissues. Dr. 
 
        Neiman noted that the chymopapain operation report by Dr. Naden 
 
        showed that there was no tear in the L4-5 disc from which a free 
 
        fragment could have resulted. Dr. Neiman expressed the opinion 
 
        that the L5-Sl disc was injured in claimant's fall together with 
 
        the L4-5 disc. Dr. Neiman felt that claimant had a 25 percent 
 
        permanent partial impairment of the whole person and recommended 
 
        that he restrict his lifting to 15-20 pounds and avoid excessive 
 
        extension, flexion and lateral rotation.
 
        
 
        Dr. Neiman attributed the different appearances of the L4-5 and 
 
        L5-Sl discs to the fact that chymopapain had been injected into 
 
        the L4-5 disc. Dr. Beck also felt that the difference between 
 
        the L4-5 disc and L5-Sl disc was due to the chymopapain 
 
        injection.
 
        
 
        Claimant currently earns more than $8.00 per hour. He stated that 
 
        all other people with more seniority have jobs that require heavy 
 
        work and provide higher pay than his current job as a stenciler. 
 
        He stated that there is no one with more seniority who has a 
 
        lower paying job and could bump him out of his current position. 
 
        Claimant testified that, if he had kept working at his prior 
 
        position without injury, he would now be an inspector earning the 
 
        same rate of pay as he currently earns.
 
        
 
        Dena R. Garvin who worked with the personnel and payroll of the 
 
        defendant testified that claimant currently earns $8.43 per hour 
 
        and that, if he were currently working as a helper, the position 
 
        he held at time of injury, he would be earning only $7.33 per 
 

 
        
 
 
 
 
 
        hour. She stated that jobs are bid by seniority and that there is 
 
        no one in the plant with less seniority than claimant who has a 
 
        higher rate of pay than claimant, with the possible exception of 
 
        the third shift lead worker.
 
        
 
                                 APPLICABLE LAW
 
        
 
        The citations of law in the arbitration decision are appropriate 
 
        to the issues and evidence.
 
        
 
                                      ANALYSIS
 
        
 
        The first issue To be resolved is whether there is a causal 
 
        connection between claimant's work; injury of January 16, 1984 
 
        and damage at both the L4-5 and L5-S1 vertebrae. There is no 
 
        disagreement that the damage at the L4-5 vertebrae was causally 
 
        connected to the work injury. The medical opinions are 
 
        uncontroverted that the damage at the L4-5 vertebrae was the 
 
        result
 
        
 
        BALLENGER v. LITHCOTE COMPANY
 
        Page 5
 
        
 
        
 
        of the work injury and the defendant does not argue otherwise on 
 
        appeal. The question to be resolved is whether the damage at the 
 
        L5-51 vertebrae is the result of the work injury.
 
        
 
        The defendant. argues that initial impressions by medical 
 
        personnel and Dr. Naden's opinion should be accepted that the 
 
        L5-S1 herniation occurred subsequent to the L4-5 herniation. The 
 
        defendant argues that Dr. Beck's and Dr. Neiman's opinions that 
 
        the two herniations occurred at the same time should be rejected. 
 
        While there is conflicting opinions from the physicians in this 
 
        case, there is general agreement that after the work injury there 
 
        were two abnormalities in the L4-5 and L5-Sl area. The 
 
        disagreement lies in whether one of these abnormalities was a 
 
        free fragment or a bulging disc at L5-Sl. Dr. Naden's 
 
        post-operative diagnosis changed after the laminectomy. The 1985 
 
        myelogram and the laminectomy itself revealed a bulging L5-Sl 
 
        disc and neither revealed a free fragment. Dr. Naden's reluctance 
 
        to causally connect the work injury to the L5-Sl disc herniation 
 
        appears to be based upon the difference in the discs he observed 
 
        during the laminectomy. Dr. Beck and Dr. Neiman both explained 
 
        that the difference in the discs would be attributed to the fact 
 
        that chymopapain had been injected into the L4-5 disc but not 
 
        into the L5-Sl disc. Their explanation in this regard appears to 
 
        be undisputed. Dr. O'Dell's observation on January 19, 1984 which 
 
        was three days after the work injury as that the left Achilles 
 
        reflex was absent. Drs. Beck and Neiman indicated that the 
 
        Achilles reflex impairment is highly specific for an 51 nerve 
 
        root problem. Both the 1984 and the 1985 myelograms show an 
 
        abnormality at the level of the S1 nerve root. Drs. Beck and 
 
        Neiman offered opinions and explanations consistent with 
 
        objective evidence in this case. Also, their explanations as to 
 
        the diagnosis and possible confusion of early diagnosis is more 
 
        descriptive and is reasonable. Their opinions are adopted as 
 
        correct. Claimant has proved that the work injury resulted in a 
 
        disc herniation at both L4-5 and L5-S1.
 
        
 
        The second issue to be resolved is the length of the healing 
 
        period. In discussing this question the deputy stated:
 
        
 
        A substantial question exists regarding the termination of 
 
        claimant's healing period. Under the finding previously made, 
 
        even if terminated in 1984, further healing period would have 
 

 
        
 
 
 
 
 
        been warranted commencing with the hospitalization in 1985 and 
 
        running until the return to work on August 26, 1985. It appears 
 
        from the evidence that Dr. Naden did, in fact, waiver regarding 
 
        his recommendation to claimant. The records indicate that, at 
 
        times, he recommended surgery and that, at other times, he 
 
        indicates claimant's condition would not be improved by surgery. 
 
        Early on, he expressed the expectation that a laminectomy would 
 
        be necessary, but it was not until April of 1985 that he 
 
        discharged
 
        
 
        BALLENGER v. LITHCOTE COMPANY
 
        Page 6
 
        
 
        
 
        claimant from his care or authorized claimant to return to work 
 
        in any capacity. During the summer of 1984, Dr. Naden indicated 
 
        that claimant had reached the maximum medical improvement that he 
 
        would attain without further surgery, but at no point was the 
 
        surgery specifically declined. Rather, claimant continued to seek 
 
        other opinions on what is certainly a serious matter. He did so 
 
        with the consent of Dr. Naden. In fact, Dr. Naden indicated in 
 
        his deposition that claimant continued to improve, albeit 
 
        minimally, following the time in July, 1984 when an impairment 
 
        rating was assigned. It was only the physicians at the University 
 
        of Iowa Hospitals and Clinics who recommended that claimant seek 
 
        retraining and enter a different occupation. All the others that 
 
        were consulted concurred with claimant's desire for continued 
 
        conservative treatment with hopes of improvement.
 
        
 
        The defendant argues that the deputy erred and the healing period 
 
        ended on July 23, 1984 when Dr. Naden concluded that claimant had 
 
        reached maximum medical improvement. Defendant also argues that 
 
        support for that date is found in the fact that Dr. Naden's 
 
        permanent impairment ratings prior to and subsequent to the 
 
        laminectomy were the same. As the deputy correctly discussed, Dr. 
 
        Naden waivered regarding claimant's reaching maximum medical 
 
        improvement and whether claimant should have the laminectomy. It 
 
        should be noted that Dr. Naden save impairment ratings in 1984 
 
        which were contingent upon a laminectomy. Dr. Naden in a letter 
 
        dated April 10, 1984 wrote:
 
        
 
        My own feeling is that he is going to need to have a laminectomy 
 
        to remove this free fragment that is still in his spinal canal 
 
        before this young man can resume his previous work activities. I 
 
        do feel, however, that this fragment can be removed with a 
 
        minimum of surgery so that he will end up with a good result here 
 
        and that he should be able to return to his previous employment 
 
        somewhere around six to eight weeks after his laminectomy.
 
        
 
        His PPD rating will be somewhere probably around 15-20% of the 
 
        whole body.
 
        
 
        (Joint Exhibit 1, page 34.)
 
        
 
        In a letter dated July 31, 1984 he wrote:
 
        
 
        This young man came in the week of July 23 stating that he could 
 
        not return to work in the condition he was in and that he wanted 
 
        to see a good back surgeon. Apparently Dr. Jersild and I don't 
 
        fit his criteria.
 
        
 
        BALLENGER v. LITHCOTE COMPANY
 
        Page 7
 
        
 
        
 
        As of July 23, 1984, I feel that he has obtained a maximum amount 
 

 
        
 
 
 
 
 
        of recovery and declare his situation status-quo, reaching the 
 
        maximum benefit.
 
        
 
        As a result of this affliction, I would reward him a 15% PPD 
 
        rating of the whole body. This includes the free fragment in the 
 
        spinal canal as well as the bulging disc and chymopapain 
 
        injection.
 
        
 
        (Jt. Ex. 1, p. 37)
 
        
 
        It should also be remembered that in July 1984 Dr. Naden was 
 
        giving his opinions on maximum medical improvement and impairment 
 
        ratings based upon a diagnosis that he changed after he had 
 
        performed the laminectomy. It is not possible to tell from Dr. 
 
        Naden's opinion when claimant reached maximum medical 
 
        improvement. It is however possible to tell when claimant 
 
        returned to work. Claimant returned to work on April 29, 1985 
 
        after he was released to return to work by Dr. Naden on April 23, 
 
        1985 . Claimant returned to work for four and one-half days when 
 
        he sought further medical treatment that resulted in the 
 
        laminectomy on June 5, 1985. He returned to work on August 16, 
 
        1985 following the laminectomy. Claimant 's healing period was 
 
        from January 19, 1984 through August 26, 1985 except for the five 
 
        days he had returned to work.
 
        
 
        The third issue to be resolved is the extent of claimant's 
 
        industrial disability. Defendant argues on appeal that the 
 
        deputy's award of 30 percent industrial disability is excessive 
 
        when all factors are taken into account. The factors the 
 
        defendant cites are claimant's ability to return to work for the 
 
        same employer at a substantially higher wage, secure employment 
 
        future and ability to obtain employment in other fields. In 
 
        discussing claimant's industrial disability the deputy made the 
 
        following comments:
 
        
 
        Claimant has a very limited education. This is often an 
 
        indication of limited intellectual capacity. There is some 
 
        indication in the record that his use of the book for stenciling 
 
        railroad cars in his current employment may indicate intellectual 
 
        functioning of a level higher than his eighth grade education. 
 
        Nevertheless the record does not show any evidence upon which to 
 
        determine that claimant has the aptitude for academic pursuits. 
 
        His prior work history is devoid of any indication that he used 
 
        substantial intellectual exertion. Claimant has had surgery 
 
        at two levels of his spine. The impairment ratings assigned by 
 
        physicians range from 15% to 30%. The physical restrictions are 
 
        less divergent in that those who have assigned a weight limit 
 
        have generally indicated that it should be in the range of 
 
        20-25
 
        
 
        BALLENGER v. LITHCOTE COMPANY
 
        Page 8
 
        
 
        
 
        pounds and those who have spoken to the issue have indicated that 
 
        claimant should avoid repetitive bending, stooping, twisting and 
 
        other activities which typically aggravate a spinal condition. He 
 
        is clearly developing degenerative arthritis at the injured 
 
        spinal levels. When all the factors of industrial disability are 
 
        considered, it is clear that claimant is seriously impaired in 
 
        his ability to be gainfully employed. A relatively high 
 
        disability award would be appropriate in this case were it not 
 
        for the fact that claimant has suffered no actual loss of 
 
        earnings. While actual earnings are only one element to be 
 
        considered in determining loss of earning capacity, they are most 
 
        certainly a very substantial element. Anthes v. Anthes, 258 Iowa 
 

 
        
 
 
 
 
 
        260, 139 N.W.2d 201 (1965). Raney v. Honeywell, Inc. 540 F.2d 932 
 
        (C.A. Iowa 1976). The evidence indicates that claimant's 
 
        employment with Lithcote Company is reasonably secure and can be 
 
        expected to continue without interruption due to business closing 
 
        or lack of work within his physical capabilities. Should such 
 
        occur in the near future, the remedy of review-reopening would be 
 
        available. In assessing the disability in this case, however, it 
 
        is recognized that there is no guarantee that Lithcote Company 
 
        will continue to employ claimant indefinitely in the future 
 
        throughout his working life. then all the material factors of 
 
        industrial disability are considered, it is determined that 
 
        claimant has a 30% permanent partial disability.
 
        
 
        The deputy correctly considered the factors necessary in 
 
        determining industrial disability. He based his determination 
 
        upon current factors and did not improperly speculate that 
 
        claimant may not indefinitely be employed by the defendant. When 
 
        all factors of industrial disability are considered claimant has 
 
        an industrial disability of 30 percent.
 
        
 
        The last issue to be resolved is weather the deputy correctly 
 
        assessed the costs of Dr. Beck's and Dr. Neiman's evaluation to 
 
        the employer. Defendant argues that it was improper to do so 
 
        because claimant had not filed an application for an independent 
 
        medical examination pursuant to Iowa Code section 85.39 For 
 
        purposes of this discussion it is assumed that defendant objects 
 
        to the request by the claimant filed on November 6, 1987 to be 
 
        awarded costs for Dr. Neiman ($450) and Dr. Beck ($150) pursuant 
 
        to Division of Industrial Services Rule 343-4.33(6). Rule 4.33 
 
        provides in relevant parts:
 
        
 
        Costs taxed by the industrial commissioner or a deputy 
 
        commissioner shall be . . .(6) the reasonable costs of obtaining 
 
        no more than two doctor's or practitioners' reports. . . .Costs 
 
        are to be assessed at the discretion of the deputy commissioner 
 
        or industrial commissioner
 
        
 
        BALLENGER v. LITHCOTE COMPANY
 
        Page 9
 
        
 
        
 
        hearing the cast unless otherwise required by the rules of civil 
 
        procedure governing discovery.
 
        
 
        Iowa Code section 85.39 provides in relevant part:
 
        
 
        If an evaluation of permanent disability has been made by a 
 
        physician retained by the employer and the employee believes this 
 
        evaluation to be too low, the employee shall, upon application to 
 
        the commissioner and upon delivery of a copy of the application 
 
        to the employer and its insurance carrier, be reimbursed by the 
 
        employer the reasonable fee for a subsequent examination by a 
 
        physician of the employee's own choice, and reasonably necessary 
 
        transportation expenses incurred for the examination. The 
 
        physician chosen by the employee has the right to confer with and 
 
        obtain from the employer-retained physician sufficient history of 
 
        the injury to make a proper examination.
 
        
 
        The bills for claimant's costs indicate that Dr. Neiman billed 
 
        for services performed on June 11, 1986. The report of Dr. Neiman 
 
        dated June 11, 1986 was exhibit 24. In that report Dr. Neiman 
 
        gave opinions of causal connection and a "disability" rating. It 
 
        appears that the bill for Dr. Neiman was for services other than 
 
        merely preparation of the report. The bills for claimant's costs 
 
        also indicate that Dr. Beck requested payment for services on 
 
        April 16, 1986. A report of Dr. Beck dated April 16, 1986 was 
 

 
        
 
 
 
 
 
        exhibit 22. in that report Dr. Beck gave his opinion of causal 
 
        connection but save no impairment rating. Claimant argues in his 
 
        brief that assessment of the costs was appropriate because the 
 
        reports were for the purpose of establishing a causal connection. 
 
        Claimant's point is well taken. The real dispute in the matter 
 
        has been whether there was a causal connection between the work 
 
        injury and damage at the L5-S1 vertebrae. Claimant sought 
 
        medical opinions on this issue. Claimant did not seek the 
 
        medical opinions merely for purposes of evaluating permanent 
 
        disability. Defendant's reliance upon section 85.39 is 
 
        misplaced. Defendant argues that the arbitration decision's 
 
        award of costs would allow an injured employee "to retain the 
 
        services of as many physicians as he pleases for the purpose of 
 
        obtaining favorable permanent impairments ratings." This 
 
        argument is not convincing. Subrule 4.33(6) under which the 
 
        costs were assessed allows for the costs of only two reports. It 
 
        should be noted that the hearing assignment order in this matter 
 
        dated September 36, 1986 indicates that an issue was whether 
 
        claimant received an injury that arose out of and in the course 
 
        of his employment. As stated above the $450 cost for Dr. Neiman 
 
        appears to include services other than for preparation of a 
 
        report. The cost would be allowable under Iowa Code sections 
 
        85.27.
 
        
 
        However, claimant seeks costs for both preparation of a report by 
 
        Dr. Beck and for the deposition of Dr. Beck. Cost
 
        
 
        BALLENGER v. LITHCOTE COMPANY
 
        Page 10
 
        
 
        
 
        may be taxed for either the report or the expert witness fee but 
 
        not both because to tax both as costs would be taxing for 
 
        cumulative evidence. See Jones v. R. M. Boggs Company, Inc. 
 
        Appeal Decision, June 29, 1988. In this case the total cost to 
 
        be taxed for Dr. Beck will be $150.
 
        
 
                                 FINDINGS OF FACT
 
        
 
        1. On January 16, 1984, claimant was a resident of the state of 
 
        Iowa, employed by Lithcote Company at Muscatine, Iowa.
 
        
 
        2. Claimant was injured on January 16, 1984 when he fell while 
 
        grinding in a railroad car as part of his job duties at the 
 
        employer's place of business.
 
        
 
        3. The injuries sustained in the fall included damage to 
 
        claimant's L4-5 intervertebral lumbar disc and also to the L5-Sl 
 
        intervertebral lumbar disc. The injury produced bulging of both 
 
        intervertebral discs which encroached upon nerve roots in 
 
        claimant's spine.
 
        
 
        4. Following the injury, claimant was medically incapable of 
 
        performing work in employment substantially similar to that he 
 
        performed at the time of injury from January 19, 1984 until 
 
        August 26, 1985 when claimant returned to work, except for an 
 
        interruption of five days running from April 29, 1985 through May 
 
        3, 1985 when he made an unsuccessful attempt to return
 
        to work.
 
        
 
        5. Following the injury, claimant continued to improve throughout 
 
        the time that elapsed until his eventual return to work in August 
 
        1985 even though in July 1984, it was indicated that his treating 
 
        physician did not expect further substantial improvement without 
 
        additional surgery.
 
        
 

 
        
 
 
 
 
 
        6. The fall that occurred on January 16, 1984 was a substantial 
 
        factor in producing the surgery and other medical procedures 
 
        spine and also of the surgery and other medical procedures 
 
        performed in treatment of the bulging discs.
 
        
 
        7. Claimant is a 29-year-old married man who dropped out of 
 
        school during the ninth grade and has no further formal 
 
        education. His entire work history is devoid of any employment 
 
        that utilized substantial intellectual capabilities and he has no 
 
        demonstrated aptitude for successfully completing academic or 
 
        intellectual pursuits.
 
        
 
        8. Claimant presently has approximately a 20 percent functional 
 
        impairment of the body as a whole due to the condition of his 
 
        spine that resulted from the fall on January 16, 1984 and the 
 
        condition of the spine render his physical capabilities such that 
 
        he is medically advised to avoid lifting more than 
 
        
 
        BALLENGER v. LITHCOTE COMPANY
 
        Page 11
 
        
 
        
 
        25 pounds and to avoid physical activities which require flexion, 
 
        twisting or extension of the spine.
 
        
 
        9. Claimant is well motivated to be gainfully employed.
 
        
 
        10. The assessment of claimant's medical case as determined by 
 
        Dr. Beck and Neiman is correct as opposed to the assessments made 
 
        by other physicians who have expressed opinions contrary to those 
 
        expressed by Beck and Neiman.
 
        
 
        11. Claimant has sustained a 30 percent permanent impairment of 
 
        his earning capacity.
 
        
 
                                 CONCLUSIONS OF LAW
 
        
 
        Claimant has proved by the greater weight of the evidence that 
 
        his work injury of January 16, 1984 resulted in damage to the 
 
        L4-5 and the L5-Sl intervertebral discs.
 
        
 
        Claimant has proved by the greater weight of evidence that his 
 
        healing period commenced January 19, 1984 and continued until 
 
        August 26, 1985 except for the five days from April 29, 1985 
 
        through May 3, 1985.
 
        
 
        Claimant has proved by the greater weight of evidence that he has 
 
        suffered an industrial disability of 30 percent as a result of 
 
        the work injury on January 16, 1984.
 
        
 
         WHEREFORE,, the decision of the deputy is affirmed and 
 
        modified.
 
        
 
                                      ORDER
 
        
 
        THEREFORE, it is ordered:
 
        
 
        That the employer pay claimant eighty- three point five seven one 
 
        (83.571) weeks of compensation for healing period at the 
 
        stipulated rate of one hundred seventy- seven and 88/100 dollars 
 
        dollars ($177.88) per week commencing January 19, 1984 and 
 
        interrupted by five (5) days commencing April 29, 1985. 
 
        that the employer pay claimant one hundred fifty (150) weeks of 
 
        compensation for permanent partial disability at the stipulated 
 
        rate of one hundred seventy-seven and 88/100 dollars ($177.88) 
 
        per week commencing August 26, 1985. That the employer pay the 
 

 
        
 
 
 
 
 
        costs of this action including the costs of transcription of the 
 
        arbitration hearing pursuant to Division of Industrial Services 
 
        Rule 343-4.33. However, the total Dr. Beck costs is one hundred 
 
        fifty dollars ($150).
 
        
 
        BALLENGER v. LITHCOTE COMPANY
 
        Page 11
 
        
 
        
 
        That the employer shall file claim activity reports as required 
 
        by the agency pursuant to Division of Industrial Services Rule 
 
        343-3.1.
 
        
 
        Signed and filed this 30th day of December, 1988.
 
        
 
        
 
        
 
                                          DAVID E. LINQUIST
 
                                       INDUSTRIAL COMMISSIONER