BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         JANINE A. GRONBACH,
 
         
 
              Claimant,
 
                                                 File Nos. 759380/771093
 
         
 
         VS.                                                    771094
 
         
 
         IOWA BEEF PROCESSORS
 
         (I.B.P.),                                   A P P E A L
 
         
 
              Employer,                            D E C I S I O N
 
              Self-Insured,
 
              Defendant.
 
         
 
         
 
         
 
                              STATEMENT OF THE CASE
 
         
 
              Defendant appeals from a consolidated arbitration decision 
 
         awarding permanent partial disability benefits based on a 75 
 
         percent industrial disability.
 
         
 
              The record on appeal consists of the transcript of the 
 
         arbitration hearing; joint exhibits 1 through 17, 24, 25, 26A, 
 
         and 34 through 37; claimant's exhibits 18 through 23, 26, 27 
 
         through 33, and 38 through 40; and employer's exhibits A through 
 
         K.  Both parties filed briefs on appeal.
 
         
 
                                      ISSUES
 
         
 
              Defendant states the following issues on appeal:
 
         
 
              I.  Did the deputy commissioner err in determining that the 
 
         claimant sustained a 75% industrial disability arising out of and 
 
         in the course of her employment with IBP, Inc.?
 
         
 
              II.  Did the deputy commissioner err in determining that the 
 
         medical services rendered by and at the direction of Dr. John 
 
         Walker were reasonably necessary and causally connected to any 
 
         injury of claimant and thus were required to be paid by the 
 
         employer, IBP, Inc., pursuant to section 85.27?
 
         
 
              III.  Did the deputy commissioner err in determining that 
 
         the healing period extended to October 1, 1985?
 
         
 
              IV.  Did the deputy commissioner err in determining that 
 
         the applicable rate of compensation for all three files was 
 
         $159.98?
 

 
         
 
         
 
         
 
         GRONBACH V. IOWA BEEF PROCESSORS (I.B.P.)
 
         Page   2
 
         
 
         
 
         
 
              V.  Did the deputy commissioner err in determining that 
 
         Dr. Walker's billing for his September 7, 1984 examination 
 
         constituted the reasonable cost for performance of an 85.39 
 
         examination?
 
         
 
                             REVIEW OF EVIDENCE
 
         
 
              The arbitration decision adequately and accurately reflects 
 
         the pertinent evidence and it will not be totally reiterated 
 
         herein.
 
         
 
              Claimant testifies that on December 3, 1984 she sustained an 
 
         injury to her neck, left shoulder, and low back when her foot 
 
         broke through a wooden pallet while she was lifting an 81 pound 
 
         box of jowls.  Claimant indicates that she was sent to W. E. 
 
         Erps, M.D., for x-rays.  Dr. Erps diagnosed left shoulder girdle 
 
         strain and released claimant for return to work on December 12, 
 
         1983.
 
         
 
              Claimant states that on February 23, 1984 she experienced a 
 
         great deal of pain in her back, shoulder and neck while she was 
 
         Oskinning picnic hams.O  Claimant opines that skinning picnics is 
 
         a heavy job involving twisting and bending.  Claimant states that 
 
         she informed her foreman, Jeff Lorenz, that she was hurting but 
 
         that he did nothing.  She also spoke with the personnel director, 
 
         Tom Dunlop, but he did not schedule a doctor's appointment for 
 
         her.  Eventually, after a conversation with a union 
 
         representative, she went to see Jonathan J. Hruska, M.D.  Dr. 
 
         Hruska diagnosed back strain and excused claimant from work on 
 
         February 24, 1984.  Dr. Hruska recommended that claimant do 
 
         different work.
 
         
 
              Claimant testified that on March 1, 1984 she sustained a 
 
         work injury to her neck and shoulder when she was struck by two 
 
         hams falling from a conveyor belt.  Claimant initially saw Dr. 
 
         Erps on March 2 and was off work until March 6.  She worked March 
 
         6, 7, and 8 but left work on March 9 and did not return until 
 
         June 20, 1984.  Dr. Erps referred claimant to John J. Dougherty, 
 
         M.D., on March 20, 1984.
 
         
 
              Dr. Dougherty admitted claimant to the hospital on April 3, 
 
         1984.  In his report Dr. Dougherty states:
 
         
 
                 The above patient was admitted to the hospital 4-3-84 
 
              with complaints of pain in her left shoulder, back and neck, 
 
              and left side of her body.  Apparently was injured on 3-1-84 
 
              when two hams fell on her shoulder.  She is kyphotic.  The 
 
              patient was treated conservatively.  Seen by Dr. Krysztofiak 
 
              who recommended continued conservative treatment.  I don't 
 
              think a myelogram was indicated.  EMG showed no evidence of 
 
              cervical radiculopathy.
 
         
 
         
 
              Patient was also tried with a stimulator.  Gradually seemed 
 
              to be improving, although certainly slow.  Subsequently 
 
              dismissed on 4-14-84 to be followed in the office.
 
         
 
              FINAL DIAGNOSIS:
 

 
         
 
         
 
         
 
         GRONBACH V. IOWA BEEF PROCESSORS (I.B.P.)
 
         Page   3
 
         
 
         
 
         
 
                 Previous contusion of the upper dorsal spine on the left 
 
              with probably traumatic myositis of the periscapular area 
 
              and cervical spine superimposed upon a scoliosis to the 
 
              right in the dorsal spine with an increased kyphosis and old 
 
              epiphysitis.
 
         
 
         (Joint Exhibit 8, unnumbered page 5)
 
         
 
              An MMPI was administered by Marcie Moran, M.A., a 
 
         psychologist.  Moran opines in her report that " [t]he test 
 
         results indicate an elevation of the Hypochondriasis and the 
 
         Hysteria scales with significant lowering of the Depressive 
 
         scale." (Joint Ex. 8, unnumbered p. 1)
 
         
 
              Claimant's continued complaints of pain prompted Dr. 
 
         Dougherty to readmit claimant to the hospital for myelographic 
 
         testing on June 5, 1984.  The myelogram report indicates:
 
         
 
                 Myelography was performed following introduction of 
 
              Metrizamide into the lumbar subarachnoid space by Dr. 
 
              Dougherty at the L2-3 lumbar interspace.
 
         
 
                 There was good outline of the lumbar subarachnoid space 
 
              without evidence of abnormality.  The nerve roots are well 
 
              outlined.
 
         
 
                 Under fluoroscopy, opaque media was passed through the 
 
              dorsal region without evidence of abnormality.
 
         
 
                 In the cervical region, there is good outline of the 
 
              subarachnoid space without evidence of abnormality.  The 
 
              nerve roots are well outlined.
 
         
 
         (Joint Ex. 13, unnumbered p. 2)
 
         
 
              Based on these results Dr. Dougherty opines:
 
         
 
                 The above patient was admitted to the hospital on 6-5-84.  
 
              She continued to complain of pain in her neck and upper 
 
              back, some in the lower back and left leg.  Myelogram was 
 
              carried out.  The myelogram was felt to be within normal 
 
              limits.  Her sed rate was 25.  Spinal fluid was normal.  
 
              Bone scan was normal.  Patient was subsequently dismissed 
 
              on
 
         
 
         
 
              6-8-84.  She has a back support, dorsal lumbar.  Home on 
 
              exercise program.  We will follow her in the office.
 
         
 
              FINAL DIAGNOSIS:
 
         
 
              Same as before.
 
              Contusion of the upper dorsal spine.
 
              Probably traumatic myositis left trapezius superimposed upon 
 
              a scoliosis on the right in the lower dorsal and upper 
 
              lumbar spine.  Possible old epiphysitis with increased 
 
              kyphosis.
 
         
 

 
         
 
         
 
         
 
         GRONBACH V. IOWA BEEF PROCESSORS (I.B.P.)
 
         Page   4
 
         
 
         
 
         (Joint Ex. 13, unnumbered p. 4)
 
         
 
              Dr. Dougherty released claimant to return to work on June 
 
         20, 1984.  Claimant states that she worked for a few days with 
 
         pain until she went to see Dr. Erps on June 26, 1984.  Dr. Erps 
 
         diagnosed muscle spasms of the back and left shoulder and 
 
         released claimant for return to work on June 29, 1984.  Claimant 
 
         terminated her employment with defendant on June 29, 1984.
 
         
 
              Dr. Dougherty opines in a letter to claimant's attorney 
 
         dated July 19, 1984:
 
         
 
              Patient was last seen by me on 6-18-84.  I felt we could let 
 
              her go back to work, stay on the exercises, try to lose some 
 
              weight, see on a prn basis.  Overall, I did not feel she 
 
              sustained a serious injury.  I felt she aggravated probably 
 
              some pre-existing conditions in her back plus the fact the 
 
              patient is somewhat overweight.
 
         
 
                 As far as any permanent disability, I would not feel she 
 
              sustained any permanent partial disability, and I think her 
 
              prognosis is good although I do feel that with the old 
 
              epiphysitis and some of the curvature in her spine which I 
 
              mentioned above which I feel is old, may continue to give 
 
              her some difficulty with her back if she overuses her back.  
 
              However, I would also feel that this is not directly related 
 
              to her accident.
 
         
 
         (Joint Ex. 17)
 
         
 
              Claimant testified that after she left IBP she worked as a 
 
         receptionist at $3.50 per hour until September 1984.  On 
 
         September 6, 1984 claimant saw John R. Walker, M.D., for an 
 
         examination pursuant to section 85.39, The Code.  Dr. Walker 
 
         opines in a letter to claimant's attorney dated September 13, 
 
         1984:
 
         
 
              I read your September 13, 1984 inquiry with
 
         
 
         
 
         
 
         
 
              interest and I have also reviewed this patient's records and 
 
              chart.  In one of the latter paragraphs, I stated that the 
 
              probable answer to her low back problem would be a surgical 
 
              arthrodesis of the lumbosacral joint.  If this were done, we 
 
              would end up with a permanent, partial impairment of 20% of 
 
              the body as a whole and adding to this, for the cervical and 
 
              dorsal spine pain and discomfort, I would estimate after 
 
              proper treatment that this would be reduced to some degree.  
 
              To the 20% permanent, partial impairment involving the low 
 
              back I would add another 8% of the body as a whole which 
 
              would bring it up to 28% of the body as a whole.  At this 
 
              point, it is probable that her temporary, partial impairment 
 
              is higher than the above figures.
 
         
 
         (Claimant's Ex. 19)
 
         
 
              Dr. Walker admitted claimant to the hospital on October 19, 
 

 
         
 
         
 
         
 
         GRONBACH V. IOWA BEEF PROCESSORS (I.B.P.)
 
         Page   5
 
         
 
         
 
         1984.  A myelogram performed on November 2, 1984 indicated no 
 
         evidence of disc protrusion.  Nevertheless, Dr. Walker proceeded 
 
         to inject chymopapase in the L3, 4 and 5 disc interspaces.  In a 
 
         letter to claimant's attorney dated November 13, 1984 Dr. Walker 
 
         explains:
 
         
 
              I repeated the myelogram on November 1, 1984 and reviewed it 
 
              personally and it was reported as negative.  Unfortunately 
 
              the radiologists tend to report everything negative unless 
 
              there is a huge defect.  This, at least, is my experience 
 
              here in Waterloo.  In my review of the myelogram I found 
 
              that there were some peculiarities of the nerve root on the 
 
              right and the left both but it was difficult to really say 
 
              anything, however, the patient did have a very high spinal 
 
              fluid protein, 66 mg.% which of course is extremely high for 
 
              a disc problem.  I thought, after reviewing everything, that 
 
              the 4th lumbar disc showed a definite midline bulge on slice 
 
              10 of the CT scan and I felt that the L-4 disc was 
 
              definitely herniated.  I felt that the nerve root involved 
 
              was under an irritative situation and I did not believe that 
 
              she had true axonal degeneration and felt that the EMG would 
 
              be noncontributory because of this.  This, of course, is a 
 
              known fact to all concerned.
 
         
 
                 I felt, we should definitely do discograms at L-4 and L-5 
 
              and inject chymopapase or chymodiactin as indicated.  On 
 
              October 20, 1984 we did indeed do the Saline acceptance test 
 
              at the 3rd and 4th and 5th lumbar interspaces and at the 3rd 
 
              and the 5th
 
         
 
         
 
         
 
         
 
         
 
              interspaces the disc would not accept any Saline, therefore 
 
              we knew these were negative.  However, at the 4th 
 
              interspace, as I had suspected, 4 to 5 cc. of Saline was 
 
              readily accepted by the disc and we are speaking now of the 
 
              ruptured area.  We then proceeded, after a short wait, to 
 
              inject chymopapase in to the area.  The patient went home a 
 
              few days later feeling quite well and fairly asymptomatic.
 
         
 
         (Cl. Ex. 21)
 
         
 
              Claimant opines that the chymopapase injections helped her. 
 
          Claimant discloses that she returned to see Dr. Walker December 
 
         24, 1984 because she was in pain and could hardly move.  Claimant 
 
         also reveals that Dr. Walker gave her a shot and then she felt 
 
         better.  Claimant testified that she returned to see Dr. Walker 
 
         in February 1985.
 
         
 
              Dr. Walker admitted claimant to the hospital on February 6, 
 
         1985 and performed a fusion of the left sacroiliac joint on 
 
         February 7. Dr. Walker's admitting discharge diagnoses were 
 
         "painful sacroiliac joint, left post-traumatic arthritis, 
 
         instability.O  See Cl. Ex. 22, unnumbered page 4.
 
         
 
              In a letter dated April 1, 1985 Dr. Walker opines that 
 
         claimant will require another six months of healing at least.  
 

 
         
 
         
 
         
 
         GRONBACH V. IOWA BEEF PROCESSORS (I.B.P.)
 
         Page   6
 
         
 
         
 
         See Cl. Ex. 26.  In an April 8, 1985 letter Dr. Walker opines:
 
         
 
              Basically, as I review the information on this patient, it 
 
              is my final opinion that the patient's injuries, suffered at 
 
              the Iowa Beef Product's were the cause of her coming to me 
 
              and my treatment of her and the resultant problems that she 
 
              may still have at this particular time.  I certainly do not 
 
              relate it to any accidents or injuries that she had in 1979 
 
              or in the era of chiropractic treatment.
 
         
 
         (Cl. Ex. 27)
 
         
 
              In a June 4, 1985 letter Dr. Walker states that claimant's 
 
         permanent partial impairment is 28 percent of the body as a 
 
         whole.  See Cl. Ex. 28.  Finally, in an August 31, 1985 letter 
 
         Dr. Walker indicates the following about claimant's condition:
 
         
 
              1.)  In my opinion Janine Gronbach at this time, is not able 
 
              to do light work on a regular basis.
 
         
 
              2.)  I believe Janine Gronbach might well do sedentary work, 
 
              although I would certainly state that she should use her 
 
              head and neck and shoulders on a limited basis.  Basically, 
 
              she should not have to extend her neck looking upward or do 
 
              work with
 
         
 
              her arms above her head.
 
         
 
              3.)  See number two.
 
         
 
              4.)  Janine cannot sit or stand for any length of time.  She 
 
              should not do any heavy lifting at all.  She can carry 
 
              perhaps 5 lbs. from table top to table top infrequently.  
 
              Bending and crawling are out.  She cannot do these.
 
         
 
                 In reviewing the regulations #4, sub-part P of the 
 
              regulations, I note that this patient has had an ankylosis 
 
              of the sacroiliac joint on the left, however, she needs one 
 
              on the right as well, so she falls in to this category 
 
              fairly easily.  Of course she has had an anterior disc 
 
              excision of the 5th cervical disc with interbody fusion of 
 
              Cloward performed on 2-11-85.  Certainly these problems are 
 
              capable of rendering her just about incapable of almost 
 
              anything except for the most sedentary work.  In reviewing 
 
              the qualifications consisting of two hours per day standing 
 
              and two hours per day walking, I don't believe that she 
 
              would qualify at this point.  Perhaps later on, in another 
 
              12 to 14 months she might.
 
         
 
         (Cl. Ex. 30)
 
         
 
              Claimant testified that she sustained a back injury in 
 
         November 1979 while she was working for Marlo Molded Products.  
 
         Claimant discloses that she received workers' compensation 
 
         benefits for this injury.  Claimant states that she was treated 
 
         by Kenneth L. Zelm, D.C.  Dr. Zelm's diagnosis and prognosis are 
 
         set out in Joint Exhibit 26A as follows:
 
         
 
              DIAGNOSIS:
 

 
         
 
         
 
         
 
         GRONBACH V. IOWA BEEF PROCESSORS (I.B.P.)
 
         Page   7
 
         
 
         
 
         
 
              1.  An acute cervical strain
 
              2.  An acute lumbar strain
 
              3.  An acute thoracic strain
 
         
 
              PROGNOSIS:
 
         
 
              The patient has responded well to Chiropractic care and has 
 
              relief from all symptoms.  She was dismissed on January 21, 
 
              1980, asymptomatic.  These injuries can cause problems in 
 
              later years due to weakening of these areas.  As I told her 
 
              she will probably need some Chiropractic care periodically 
 
              to maintain the correction that we achieved. (Emphasis 
 
              added.)
 
         
 
              Claimant revealed that she was involved in an accident in
 
         
 
         
 
         
 
         1979.  Claimant states that she saw M. L. Northup, M.D., for 
 
         treatment of injuries resulting from that accident.  Claimant 
 
         denies having pain relating to her neck, left shoulder or any 
 
         portion of her back as a result of the car accident.  Dr. Northup 
 
         opines in a letter to claimant's counsel dated March 8, 1985:
 
         
 
                 According to my records Janine Gronbach had an automobile 
 
              accident on 6/23/79 and she was seen by Dr. Bagon at.that 
 
              time.  She had some swelling of the frontal region and was 
 
              nauseated.  X-ray of the skull was negative and was given 
 
     
 
         
 
         
 
         
 
         
 
         GRONBACH V. IOWA BEEF PROCESSORS (I.B.P.)
 
         Page   8
 
         
 
         
 
              Compazine 10,mg IM for her nausea and prescription for 
 
              Tylenol #3 for headache.  She was not seen again until 
 
              10/l/79 when she had a left otitis media infection.  I have 
 
              no other records concerning her automobile accident, 
 
              although I certainly do not feel, according to the records, 
 
              that she injured her back in any way on this accident.
 
         
 
         (Joint Ex. 25)
 
         
 
              Claimant testified that she is 25 years old; that she is a 
 
         high school graduate; and that she has experience in restaurant 
 
         work, bartending, wall papering and other part-time jobs.
 
         
 
                                  APPLICABLE LAW
 
         
 
              The citations of law in the arbitration decision are 
 
         appropriate to the issues and evidence.
 
         
 
                                     ANALYSIS
 
         
 
              The first issue that defendant states on appeal encompasses 
 
         three separate issues:  Whether claimant sustained injuries 
 
         arising out of and in the course of employment; whether claimant 
 
         currently suffers any disability which is causally related to the 
 
         alleged injuries; and what is the nature and extent of any 
 
         disability which claimant allegedly suffers.
 
         
 
              1.  Arising out of and in the course of employment.
 
         
 
              Defendant presented testimony and evidence attempting to 
 
         show that claimant could not have stepped through the wooden 
 
         pallets at IBP; that claimant could not have been struck by 
 
         falling hams; and that the work performed by claimant at IBP was 
 
         not as strenuous as she testified it to be.  The deputy correctly 
 
         rejected this evidence and correctly found claimant to be a 
 
         credible witness.  Claimant's account of the injuries she 
 
         sustained has been consistent throughout this proceeding and is 
 
         supported by the medical record.  Claimant has established by a 
 
         preponderance of the evidence presented that the injuries alleged 
 
         arose out of and in the course of her employment.
 
         
 
         
 
              2.  Causal connection.
 
         
 
              Dr. Walker opines that claimant suffers a 28 percent 
 
         permanent partial disability to the body as a whole as a result 
 
         of the work injuries.  Dr. Dougherty, however, maintains that 
 
         claimant suffers no permanent disability.  Alexander Kleider, 
 
         M.D., has examined claimant and his medical records.  He opines 
 
         that claimant suffers an 11 percent permanent partial impairment 
 
         to the body as a whole as a result of the Chymopapain injections 
 
         administered by Dr. Walker. (See pp. 27-28, Kleider's 
 
         deposition)
 
         
 
              The deputy adopted the opinions of Dr. Walker over those of 
 
         Drs. Dougherty and Kleider.  The greater weight of evidence 
 
         supports the conclusions of Dr. Walker.  Therefore, we find that 
 
         the disability claimant now suffers is causally connected to the 
 
         work injuries she sustained on December 3, 1983, February 23, 
 

 
         
 
         
 
         
 
         GRONBACH V. IOWA BEEF PROCESSORS (I.B.P.)
 
         Page   9
 
         
 
         
 
         1984 and March 1, 1984.
 
         
 
              3.  Nature and extent of claimant's disability.
 
         
 
              Claimant has sustained an injury to the body as a whole as 
 
         such she is entitled to benefits for industrial disability.  
 
         Claimant suffers functional impairment; however, functional 
 
         impairment is only one factor considered in evaluating industrial 
 
         disability.  Claimant is 25 years old and a high school graduate. 
 
          Her work experience is limited to manual unskilled labor.  
 
         Claimant's age and education indicate that she is a good 
 
         candidate for further education and retraining.  Claimant's 
 
         motivation appears to be good based upon her work history.  
 
         Taking all these factors into account it is concluded that 
 
         claimant's industrial disability is 75 percent.
 
         
 
              Contrary to defendant's second argument on appeal claimant 
 
         did not need defendant's authorization to recover the expenses 
 
         for medical treatment she received at Dr. Walker's direction.  
 
         Defendant has denied liability throughout this proceeding.  The 
 
         agency has consistently held that Iowa Code section 85.27 does 
 
         not allow the defendant to deny liability and at the same time 
 
         direct the course of claimant's medical treatment.  See Barnhart 
 
         v. MAQ Incorporated, I Iowa Industrial Commissioner Report 16, 17 
 
         (Appeal Decision 1981); Kindhart v. Fort Des Moines Hotel, 
 
         (Appeal Decision March 27, 1985).
 
         
 
              The evidence does indicate that the medical treatment 
 
         rendered by Dr. Walker was reasonable and necessary.  It appears 
 
         that claimant did receive at least some temporary relief from the 
 
         surgery.  The fact that the surgery may have been less than 
 
         successful does not make it unreasonable or unnecessary.  
 
         Furthermore, the fact that another doctor would not have done the 
 
         same thing does not render the treatment unreasonable or 
 
         unnecessary.
 
              If, in receiving treatment for a problem, claimant's 
 
         condition gets worse because of natural consequences or poor 
 
         medical practice, defendant's liability for all disability 
 
         related thereto remains.
 
         
 
              Defendant contends that claimant's healing period ended in 
 
         June 1984 when Dr. Erps and Dr. Dougherty released claimant for 
 
         return to work.  The record reveals that she continued to 
 
         experience pain,which required treatment after she was released 
 
         for work.  Therefore, Dr. Walker's opinion is more persuasive in 
 
         determining the date claimant's healing period ended.  We find 
 
         that claimant's healing period ended on October 1, 1985 based on 
 
         Dr. Walker's April 1, 1985 letter.
 
         
 
              Defendant contends that the deputy erred in his 
 
         determination of the applicable rate.  The analysis set out in 
 
         the arbitration decision of the rate issue is accurate and 
 
         adopted herein.  The applicable rate for all three injuries is 
 
         $159.98 per week.
 
         
 
              Defendant's final contention is that Dr. Walker's charges 
 
         for the examination pursuant to section 85.39 include items not 
 
         necessary for the evaluation of permanent impairment.  It is 
 
         unnecessary to consider this argument since it has already been 
 

 
         
 
         
 
         
 
         GRONBACH V. IOWA BEEF PROCESSORS (I.B.P.)
 
         Page  10
 
         
 
         
 
         concluded that Dr. Walker's treatment was reasonable and 
 
         necessary.  If the section 85.39 examination included items which 
 
         defendant considers are for treatment, defendant is nevertheless 
 
         obligated to pay those charges.
 
         
 
                                 FINDINGS OF FACT
 
         
 
              1.  Claimant was born on July 20, 1960.
 
         
 
              2.  Claimant graduated from high school in 1978 and has no 
 
         other formal education.
 
         
 
              3.  After graduation from high school, claimant worked at a 
 
         number of manual labor and service jobs.
 
         
 
              4.  Claimant worked as a manual laborer for IBP.
 
         
 
              5.  Claimant was injured on December 3, 1983 when she 
 
         stepped on a wooden pallet which broke causing her to sustain 
 
         permanent partial impairment to her body as a whole.
 
         
 
              6.  On February 21, 1984, claimant aggravated the injury she 
 
         sustained on December 3, 1983; this aggravation caused additional 
 
         permanent partial impairment to her body as a whole.
 
         
 
              7.  On March 1, 1984, while working for IBP, two hams fell 
 
         on claimant and this series of events caused claimant to sustain 
 
         additional permanent partial impairment to her body as a whole.
 
              8.  Claimant suffers a 28 percent permanent partial 
 
         impairment of the body as a whole.
 
         
 
              9.  After claimant separated from IBP in June 1984, she 
 
         worked as a receptionist until about September 1984 at which time 
 
         she quit this employment because she was physically unable to sit 
 
         for more than one-half hour; she has not worked after September 
 
         1984 nor has she looked for work because of the condition of 
 
         her.health.
 
         
 
             10.  The medical treatment provided by Dr. Walker was 
 
         reasonably necessary from a medical standpoint.
 
         
 
             11.  Claimant's healing period ended on October 1, 1985.
 
         
 
             12.  Claimant cannot now perform manual labor jobs.
 
         
 
             13.  Claimant's health was good prior to starting work for 
 
         IBP.
 
         
 
             14.  Claimant's industrial disability is 75 percent.
 
         
 
                                CONCLUSIONS OF LAW
 
         
 
              Claimant sustained injuries on December 3, 1983.  February 
 
         23 and March 1, 1984 arising out of and in the course of 
 
         employment.
 
         
 
              Claimant suffers a 75 percent industrial disability as a 
 
         result of the work injuries she sustained on December 3, 1983, 
 
         February 23, 1984 and March 1, 1984.
 

 
         
 
         
 
         
 
         GRONBACH V. IOWA BEEF PROCESSORS (I.B.P.)
 
         Page  11
 
         
 
         
 
         
 
              The treatment claimant received from John R. Walker, M.D., 
 
         from September 6, 1984 through August 31, 1985 was reasonable and 
 
         necessary to treat the disability claimant suffers as a result of 
 
         the work injuries.
 
         
 
              The weekly rate of compensation for injuries involved is 
 
         $159.98.
 
         
 
              WHEREFORE, the decision of the deputy is affirmed.
 
         
 
                                      ORDER
 
         
 
              THEREFORE, it is ordered:
 
         
 
              That defendant pay claimant healing period benefits 
 
         commencing December 3, 1983 through October 1, 1985 (except for 
 
         the days claimant worked) at the weekly rate of one hundred 
 
         fifty-nine and 98/100 dollars ($159.98).
 
         
 
         
 
              That defendant pay claimant permanent partial disability 
 
         benefits for three hundred seventy-five (375) weeks commencing 
 
         October 3, 1985 at the weekly rate of one hundred fifty-nine and 
 
         98/100 dollars ($159.98).
 
         
 
              That defendant pay claimant for medical services rendered by 
 
         John R. Walker as set out in claimant's exhibits 31 and 32 and 
 
         for mileage set out in claimant's exhibit 33.
 
         
 
              That defendant pay accrued benefits in a lump sum together 
 
         with interest pursuant to section 85.30.
 
         
 
              That defendant be given credit for benefits already paid.
 
         
 
              That defendant pay all the costs of this action pursuant to 
 
         Division of Industrial Services Rule 343-4.33 including the costs 
 
         of the appeal.
 
         
 
              That defendant shall file claim activity reports, pursuant 
 
         to Division of Industrial Services Rule 343-3.1(2), as requested 
 
         by the agency.
 
         
 
         
 
              Signed and filed this 24th day of November, 1987.
 
         
 
         
 
         
 
                                               DAVID E. LINQUIST
 
                                               INDUSTRIAL COMMISSIONER
 
         
 
         
 
         
 
         Copies To:
 
         
 
         Mr. Marlon D. Mormann
 
         Attorney at Law
 
         P.O. Box 515
 
         Dakota City, NE 68731
 

 
         
 
         
 
         
 
         GRONBACH V. IOWA BEEF PROCESSORS (I.B.P.)
 
         Page  12
 
         
 
         
 
         
 
         Mr. Robert S. Kinsey III
 
         Attorney at Law
 
         214 N. Adams
 
         P.O.Box 679
 
         Mason City, Iowa 50401
 
         
 
         
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                                  1100-1402.20-1402.30
 
                                                  1402.40-1803-1403.10
 
                                                  Filed November 24, 1987
 
                                                  DAVID E. LINQUIST
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         JANINE A. GRONBACH,
 
         
 
              Claimant,
 
                                           File Nos. 759380/771093
 
         VS.
 
                                                        771094
 
          IOWA BEEF PROCESSORS
 
          (I.B.P.),                                  A P P E A L
 
          
 
              Employer,                            D E C I S I 0 N
 
              Self-Insured,
 
              Defendant.
 
         
 
         
 
         
 
         
 
         1100 - 1402.20 - 1402.30
 
         
 
              Defendants attempts to discredit claimant's testimony about 
 
         the occurrence of her injuries were rejected.  Claimant's 
 
         testimony was consistent throughout the proceeding and was 
 
         supported by the medical record.
 
         
 
         1402.40 - 1803
 
         
 
              Claimant awarded 75 percent industrial disability.
 
         
 
         1403.10
 
         
 
              Defendant's authorization arguments failed as they cannot 
 
         control the course of medical care and at the same time deny 
 
         liability.
 
 
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         JANINE A. GRONBACH,
 
                                              File Nos. 759380/771093
 
         
 
              Claimant,                                   771094
 
         
 
         
 
         VS.                                           0 R D E R
 
         
 
          IOWA BEEF PROCESSORS                          N U N C
 
          
 
          (I.B.P.),                                      P R O
 
         
 
              Employer,                                 T U N C
 
              Self-Insured,
 
              Defendant.
 
         
 
         
 
         
 
              This matter comes for determination on claimant's 
 
         application for an order Nunc Pro Tunc.
 
         
 
              Review of the appeal decision filed November 24, 1987 
 
         reveals the following error which needs correction.
 
         
 
              On page 12, the first full paragraph should read:
 
         
 
              That defendant pay claimant for medical services as set out
 
         in claimant's exhibits 31 and 32 including those of John R. 
 
         Walker, M.D, and for mileage as set out in claimant's exhibit 
 
         33.
 
         
 
              This correction does not change the outcome of the appeal 
 
         decision.  On appeal defendant objected only to the bills of John 
 
         R. Walker, M.D.  If defendant had raised the issue of other 
 
         medical bills, the issue would have been decided.  The 
 
         arbitration decisions of the deputy ordered "that defendant pay 
 
         all the medical bills, drug bills, mileage costs at issue in 
 
         these cases."
 
         
 
              Signed and filed this 4th day of December, 1987.
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
                                              DAVID E. LINQUIST
 
                                              INDUSTRIAL COMMISSIONER
 
         
 
         GRONBACH V. IOWA BEEF PROCESSORS (I.B.P.)
 
                                                
 
                                                         
 
         
 
         
 
         
 
         Copies To:
 
         
 
         Mr. Robert S. Kinsey III
 
         Attorney at Law
 
         214 N. Adams
 
         P.O. Box 679
 
         Mason City, Iowa 50401
 
         
 
         Mr. Marlon D. Mormann
 
         Attorney at Law
 
         P.O. Box 515
 
         Dakota City, NE 68731
 
 
 
 
         
 
 
 
 
 
 
 
 
 
 
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         DONALD A. RUDEN,
 
          
 
               Claimant,                       File No. 759599
 
          
 
          VS.                                  A R B I T R A T I 0 N
 
          
 
          JOHN DEERE DUBUQUE WORKS             D E C I S I 0 N
 
          OF DEERE & COMPANY,
 
          
 
               Employer,
 
               Self-Insured,
 
               Defendant.
 
         
 
         
 
                                   INTRODUCTION
 
         
 
              This is a proceeding in arbitration wherein Donald A. Ruden 
 
         seeks compensation for permanent partial disability benefits, the 
 
         payment of some medical expenses, and temporary total disability 
 
         or healing period benefits based upon a work-related back injury 
 
         on March 9, 1984.  The case was heard before the undersigned at 
 
         Dubuque, Iowa on March 8, 1990.  The record in the proceeding 
 
         consists of the testimony of the claimant, claimant's wife Sheri 
 
         Ruden, Edward Kinsella, Clement Koepernich, Mervin L. McClenahan, 
 
         M.D., Norman Homb, and Thomas Blosch and joint exhibits 1 through 
 
         23.
 
         
 
                                      ISSUES
 
         
 
              The issues for resolution are:
 
         
 
              1. The extent of claimant's permanent disability;
 
         
 
              2 .Whether in October of 1988 the employer should have paid 
 
         four weeks of temporary total disability benefits rather than 
 
         four weeks of a private disability benefit; and
 
         
 
              3. Whether defendant is responsible for the claimant's 
 
         $1,301.50 bill with Medical Associates Clinic as a result of 
 
         claimant's October 1988 disability.
 
         
 
              Claimant's Motion to Amend changing this action from 
 
         review-reopening to arbitration was sustained.  Defendant 
 
         withdrew its resistance to the motion.
 
         
 
         
 
         
 
         RUDEN v. JOHN DEERE DUBUQUE WORKS OF DEERE & COMPANY
 
         Page 2
 
         
 
         
 
                              REVIEW OF THE EVIDENCE
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              Claimant is a high school graduate who began working for 
 
         the defendant employer at 18 years of age in 1960 and has worked 
 
         there continuously to the present time, except for a six-week 
 
         layoff.  Claimant described the many jobs he has done at John 
 
         Deere over the approximately 30 years.
 
         
 
              On March 9, 1984, claimant injured his back while placing a 
 
         stabilizer into a wooden crate.  Claimant said that after he 
 
         disconnected the hoist, he attempted to move the part in the box 
 
         because it was stuck and then he heard a "crack" in his back.  
 
         Claimant described the problems he was having and the medical 
 
         services he sought which included two surgeries, the last being 
 
         in August of 1984.  Claimant acknowledged that the company, with 
 
         the consultation of Dr. McClenahan, found a light-duty job for 
 
         the claimant that complied with claimant's restrictions.  
 
         Claimant is able to do this job and described it as not a hard 
 
         job.  Claimant said he is not able to stand eight hours a day and 
 
         his light-duty job allows him to sit down and rest.  Claimant 
 
         indicated he has pain in his back every day.  He said he cannot 
 
         climb ladders, shovel snow, squat, walk over one and one-half 
 
         miles, lift anything heavy, paint walls or pick up cap screws 
 
         that fall on the floor while he is working.
 
         
 
              Claimant said he played golf in October 1988 and tries to 
 
         play once per week during the summer and bowls once a week.  
 
         Claimant stated he used to bowl two times a week and golfed two 
 
         to three times a week before his 1984 injury.  Claimant 
 
         acknowledged he is in a couples' bowling league.
 
         
 
              Claimant described his October 1988 golf incident.  He said 
 
         he stepped off a golf cart and started walking when his back 
 
         snapped like it did when he had his 1984 injury.  Claimant was 
 
         off work one month.  Claimant went to his private insurance HMO 
 
         doctor and incurred a $1,301.50 medical bill for the treatment.
 
         
 
              Claimant denies a history of back problems.  Claimant was 
 
         referred to several medical exhibits and dates involving 
 
         notations of back pain and he did not remember these dates or 
 
         instances nor the number of days he was off work.
 
         
 
              Claimant acknowledged he was in an incentive job in 1984 
 
         and is in an incentive job now, working in the slot mill 
 
         department.  Claimant admitted he has worked full-time since 
 
         Julian G. Nemmers  M.D., released him in September 1984 up to the 
 
         present time, except for the October 1988 golf injury in which he 
 
         missed a month.
 
         
 
         
 
         
 
         RUDEN v. JOHN DEERE DUBUQUE WORKS OF DEERE & COMPANY
 
         Page 3
 
         
 
         
 
              Edward Kinsella, a retired John Deere worker, testified he 
 
         worked the slot mill job like claimant is presently working.  He 
 
         said this is not heavy labor and one could sit down every so 
 
         often if they wanted to.  He said he also had a bad back.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              Sheri Ruden testified that claimant cannot ride in a car 
 
         for a long time, takes time to get out of the car and walk, 
 
         spends time lying on a couch after work and sleeps four hours and 
 
         awakes and must sleep with his legs in an upright bent position 
 
         as a result of his March 1984 injury.
 
         
 
              Clement Koepernich, defendant employer's department 
 
         supervisor over claimant's slot mill department, has known 
 
         claimant since May 9, 1988 at which time claimant took a job in 
 
         that department.  He retired from John Deere November 30, 1988.  
 
         He related how Dr. McClenahan and Mr. Zimmerman reviewed the job 
 
         with him to determine if claimant could perform the work within 
 
         his restrictions.  He said claimant had no problem performing the 
 
         job and emphasized claimant was doing 140 percent of the average 
 
         incentive work after his original three-day break-in period.  
 
         Koepernich recalled claimant returned to this job on October 31, 
 
         1988 after his golf injury and did his normal work including the 
 
         140 percent of average again.  He recalled discussing claimant's 
 
         back and claimant said it was not bothering him any more than it 
 
         ever did.  He said claimant told him his problems were job 
 
         related and so he did not ask claimant any more questions.
 
         
 
              Norman Homb replaced Clement Koepernich on December 1, 1988 
 
         at the defendant employer.  He said there were no discussions or 
 
         complaints with claimant regarding his back.  He stated that 
 
         claimant's 140-142 percent of average incentive work was 
 
         consistent each month.  He said they expect 100 percent and 
 
         anything over that is more money in the claimant's pocket.  He 
 
         knew of no job more suitable to claimant's restrictions than this 
 
         slot mill job.  He emphasized that a person with claimant's 
 
         30-year seniority would not lose his job unless the plant closed 
 
         down.
 
         
 
              Thomas Blosch, supervisor of factory employment, testified 
 
         he helped locate the job for claimant to comply with claimant's 
 
         no repetitive reaching,. twisting and lifting restriction.  He 
 
         discussed the jobs claimant went through after his injury to 
 
         ultimately find claimant's present job in the slot mill 
 
         department.  He said claimant is highly unlikely to get bumped 
 
         off his current job.  He acknowledged that claimant was making 
 
         $200 per week less in the forklift job that claimant was given 
 
         after his injury than he was making at the incentive job.
 
         
 
         
 
         
 
         RUDEN v. JOHN DEERE DUBUQUE WORKS OF DEERE & COMPANY
 
         Page 4
 
         
 
         
 
              Mervin L. McClenahan, M.D., the medical director of 
 
         defendant employer for eight years, first saw claimant on 
 
         November 13, 1981.  He said there were instances in the 
 
         claimant's medical records indicating claimant had low back pain 
 
         prior to 1981.  The doctor testified as to the care of his 
 
         medical department regarding claimant on March 9, 1984 through 
 
         claimant's release to work with restrictions on August 13, 1984.  
 
         He said he put claimant on light duty with no repeated bending, 
 
         lifting, twisting or reaching as temporary restrictions (Dr.  
 
         McClenahan's testimony, page 8).  He related claimant then had 
 
         additional surgery August 30, 1984 involving the excision of a 
 
         ruptured disc at L4-5.  He further described claimant's medical 
 
         care and restrictions and references to Mayo and Rockford 
 
         Clinics.  Dr. McClenahan placed "permanent restriction on him of 
 
         no repeated bend, lift, twisting, or reaching and no lift, push, 
 
         pull over 20 pounds."  (Dr. McClenahan's testimony, page 13, 
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         lines 21-25.)  On July 2, 1985, he concluded claimant reached his 
 
         full medical rehabilitation and he affirmed what Dr. Nemmers had 
 
         concluded on June 5, 1985 as to claimant's permanent partial 
 
         impairment evaluation.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              Dr. McClenahan said that the forklift job claimant was 
 
         performing was causing some flare-up in the claimant due to 
 
         jarring or jolting so he placed additional restrictions on 
 
         claimant on May 4, 1988 of "no jarring or jolting" and changed 
 
         the weight limit to not over 30 pounds (Dr. McClenahan's 
 
         testimony, page 15, lines 16-25).  He said these are claimant's 
 
         current restrictions also.  In May of 1988, Dr. McClenahan said 
 
         he realized claimant was not able to drive a forklift without 
 
         discomfort so he later in May okayed claimant's moving into the 
 
         slot mill job which claimant presently holds.  On July 2, 1988, 
 
         Dr. McClenahan opined a 22 percent permanent partial impairment 
 
         rating and indicated there would be nothing to change that now, 
 
         except claimant did have a golf injury in October 1988 which was 
 
         not work related.  The doctor said claimant returned to work 
 
         October 31, 1988 and resumed without problems his slot mill job.
 
         
 
              The doctor related how he arrived at claimant's 22 percent 
 
         permanent partial impairment rating through the use of the AMA 
 
         guides which included a 5 percent add-on because claimant's 
 
         lumbar four disc is gone.  He acknowledged that if a person has a 
 
         standing or walking.limitation, you could add another 5-20 
 
         percent.  Dr. McClenahan admitted something should be added to 
 
         claimant's impairment due to claimant's walking and standing 
 
         limitation, but later he said he sees no reason to go back and 
 
         make a new impairment evaluation nor would he put a standing or 
 
         walking restriction on the claimant (Dr.  McClenahan's testimony, 
 
         page 37, lines 9-12;
 
         
 
         
 
         
 
         RUDEN v. JOHN DEERE DUBUQUE WORKS OF DEERE & COMPANY 
 
         Page 5
 
         
 
         
 
         page 42, lines 8-11).  He said claimant's outside activities, 
 
         like bowling and golfing, are recommended.  Dr. McClenahan 
 
         acknowledged Dr. Nemmers rated the claimant's degree of 
 
         discomfort and the limitations did not seem to fit with the 
 
         physical pathology Dr. Nemmers thought was there, but Dr. 
 
         McClenahan did not himself form an opinion about any functional 
 
         overlay in the claimant.
 
         
 
              Claimant's medical records at John Deere reflect claimant 
 
         has had various back pain problems beginning in September 1962 
 
         until November 1, 1982.  These records also show that claimant 
 
         was brought to the medical department by ambulance on March 9, 
 
         1984 as a result of a work-related injury.  Dr. McClenahan 
 
         testified in person and had these records available.  There is no 
 
         necessity to further set out these records (joint exhibit 1) as 
 
         Dr. McClenahan covered and testified as to the important areas.
 
         
 
              Julian G. Nemmers, M.D., has treated claimant for back 
 
         problems at least since January 27, 1970 at which time he 
 
         released claimant for work after cervical disc syndrome caused by 
 
         kicking a football.  On August 30, 1984, he performed an excision 
 
         of the ruptured lumbar disc.  On May 7, 1984, Dr. Nemmers 
 
         performed a chymopapain injection on the claimant after a 
 
         diagnosis of a herniated L4 disc right.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              Claimant saw various other doctors including the Mayo 
 
         Clinic, but there is no necessity for setting out herein any 
 
         further discussion of these visits, treatments or reports.
 
         
 
              The record of Douglas A. Schmid, M.D., of the Medical 
 
         Associates Clinic, P.C., noted on June 24, 1986 in taking 
 
         claimant's history that, besides claimant's two operations, 
 
         including a lumbar laminectomy a few years ago, claimant had also 
 
         undergone three knee surgeries, two on the left and one on the 
 
         right (joint exhibit 4, page 11).  The clinic's records reflect 
 
         treatment of claimant for his October 1, 1988 golf outing injury 
 
         (joint exhibit 4, page 17) which indicates it occurred when 
 
         claimant was coming back to the clubhouse and he experienced pain 
 
         in his low back going into his right leg with tingling.
 
         
 
                                  APPLICABLE LAW
 
         
 
              The claimant has the burden of proving by a preponderance 
 
         of the evidence that the injury of March 9, 1984 is casually 
 
         related to the disability on which he now bases his claim.  
 
         Bodish v. Fischer., Inc., 257 Iowa 516, 133 N.W.2d 867 (1965).  
 
         Lindahl v. L. 0. Boggs, 236 Iowa 296, 18 N.W.2d 607 (1945).  A 
 
         possibility is insufficient; a probability is necessary.  Burt v. 
 
         John Deere Waterloo
 
         
 
         
 
         
 
         RUDEN v. JOHN DEERE DUBUQUE WORKS OF DEERE & COMPANY 
 
         Page 6
 
         
 
         
 
         Tractor Works, 247 Iowa 691, 73 N.W.2d 732 (1955).  The question 
 
         of casual 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 casual connection.  
 
         Burt, 247 Iowa 691, 73 N.W.2d 732.  The opinion of experts need 
 
         not be couched in definite, positive or unequivocal language.  
 
         Sondag v. Ferris Hardware, 220 N.W.2d 903 (Iowa 1974).  However, 
 
         the expert opinion may be accepted or rejected, in whole or in 
 
         part, by the trier of fact.  Id. at 907.  Further, the weight to 
 
         be given to such an opinion is for the finder of fact, and that 
 
         may be affected by the completeness of the premise given the 
 
         expert and other surrounding circumstances.  Bodish, 257 Iowa 
 
         516, 133 N.W.2d 867.  See also Musselman v. Central Telephone Co.
 
         , 261 Iowa 352, 154 N.W.2d 128 (1967).
 
         
 
              If claimant has an impairment to the body as a whole, an 
 
         industrial disability has been sustained.  Industrial disability 
 
         was defined in Diederich v. Tri-City Railway Co. 219 Iowa 587, 
 
         593, 258 N.W.2d 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."
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
                                     ANALYSIS
 
         
 
              Claimant is a 48-year-old high school graduate.  Except for 
 
         a few months, he has worked his entire adult life for defendant 
 
         employer in various capacities.  It is undisputed that his 
 
         current position within the defendant employer's company is the 
 
         result of claimant's March 9, 1984 injury to his back and the 
 
         permanent restrictions placed on him.  The defendant employer has 
 
         done its best to try to accommodate the claimant and is to be 
 
         congratulated for that attitude.  This type of attitude can have 
 
         a substantial affect on the extent of an employee's industrial 
 
         disability.  Dr. Nemmers opined a 20 percent permanent partial 
 
         impairment to claimant's body as a whole and Dr. McClenahan 
 
         opined 22 percent.  Dr. Nemmers has been treating claimant since 
 
         at least January of 1970 during which time claimant has had a 
 
         series of back problems which had nothing to do with his March 9, 
 
         1984 injury.  It was reasonable to expect Dr. Nemmers to continue 
 
         claimant's back treatment after claimant's March 9, 1984 injury.  
 
         Dr. McClenahan has also followed claimant for a few years.  There 
 
         was extensive testimony as to whether Dr. McClenahan's. 22 
 
         percent
 
         
 
         
 
         
 
         RUDEN v. JOHN DEERE DUBUQUE WORKS OF DEERE & COMPANY 
 
         Page 7
 
         
 
         
 
         permanent partial impairment to claimant's body as a whole should 
 
         be 5-20 percent higher because the doctor may not have considered 
 
         claimant's contention that he has a standing and walking 
 
         limitation.  The testimony at first in part seems unintentionally 
 
         confusing.  The doctor seemed to indicate there would be 5-20 
 
         percent added to his 22 percent rating if claimant has a walking 
 
         and standing limitation.  The doctor also said he saw no reason 
 
         for a new evaluation and would not put a standing and walking 
 
         restriction on the claimant (transcript, page 37, lines 9-12; 
 
         page 42, lines 8-11).  The two doctors are two percent apart in 
 
         their ratings.  Dr. McClenahan is closer to the claimant's work 
 
         situation than Dr. Nemmers and, since Dr. McClenahan testified in 
 
         person, the undersigned accepts his 22 percent permanent partial 
 
         impairment as the present updated impairment of claimant.  Dr. 
 
         McClenahan has acted in a very honest and professional manner in 
 
         his treatment and testimony regarding claimant.  It appears, as 
 
         is ethically required, that Dr. McClenahan has testified in an 
 
         unbiased manner, notwithstanding he is a full-time medical 
 
         director at defendant employer.  This is the way it should be, 
 
         but unfortunately is not always the case within the medical 
 
         profession.  It is for this reason the undersigned is 
 
         specifically giving this recognition as it is not seen as often 
 
         as it should be.  This attitude of the doctor supplements well 
 
         the defendant employer's attitude towards the claimant as 
 
         previously referred to, to keep a valued, long-term employee 
 
         employed at a job.  The undersigned finds claimant has a 22 
 
         percent permanent partial impairment to his body as a whole.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              Claimant is currently in a job which he likes and which 
 
         complies with claimant's permanent restrictions.  He has no, loss 
 
         of income comparing his current income and his income at the time 
 
         of his injury, but there was a period of time between his March 
 
         1984 injury and May of 1988 that claimant was in an hourly job 
 
         versus an incentive pay job that resulted in a reduction of 
 
         income during that period.
 
         
 
              Claimant's permanent restrictions of no repeated bending, 
 
         lifting, twisting or reaching, no jarring or jolting, and a 
 
         weight limit of not over 30 pounds, result in a loss of earning 
 
         capacity.  Claimant is fortunate to have a high seniority which 
 
         enables him to bump someone of lower seniority.  The fact still 
 
         remains that claimant is apparently at one of the easier, 
 
         lighter-duty jobs at defendant employer.  His earned seniority 
 
         enabled him to be able to get this position.  He has lost the 
 
         capacity to go to other jobs in the company or elsewhere which 
 
         would obviously violate claimant's work restrictions.  It is 
 
         obvious claimant cannot do his former job that he had at the
 
         
 
         
 
         
 
         RUDEN v. JOHN DEERE DUBUQUE WORKS OF DEERE & COMPANY 
 
         Page 8
 
         
 
         
 
         time of his March 9, 1984 injury.  There are many criteria to 
 
         consider in determining one's industrial disability.  It is a 
 
         process of evaluation and not a computation.  Claimant contends 
 
         he has walking and standing limitations, but he can golf at least 
 
         one time a week during the summer and bowl one time a week in a 
 
         couples' league.  Although the doctors said exercise is good, the 
 
         undersigned believes that claimant is exaggerating to some extent 
 
         his limitation.  In the first instance, if the undersigned 
 
         totally accepted claimant's contentions, the undersigned would 
 
         question claimant's active participation in the sports of bowling 
 
         and golf.  These would seem to aggravate a severe impairment.  
 
         Taking into consideration the age, education, skills, motivation, 
 
         prior medical history, current impairment, income and all the 
 
         other criteria used to determine industrial disability, the 
 
         undersigned finds claimant has a 35 percent industrial disability 
 
         as a result of his March 9, 1984 injury.
 
         
 
              There are two other issues remaining to be resolved.  
 
         Claimant contends that a $1,301.50 medical bill incurred due to 
 
         claimant hurting his back on October 1, 1988 while playing golf 
 
         is a result of his March 9, 1984 injury.  Likewise, claimant 
 
         contends he should be paid for the four weeks that he was totally 
 
         disabled for the month of October, 1988 when claimant was unable 
 
         to work as a result of his golf incident.  Claimant has the 
 
         burden of proof to show the October 1, 1988 incident was work 
 
         related.  There is no dispute claimant was golfing when his back 
 
         went out.  We can blame it on the March 9, 1984, but also this 
 
         incident appears to be similar to instances in 1962, 1965, 1969, 
 
         1970, 1978, 1981 and 1982 when various parts of claimant's back 
 
         were strained by nonwork-related incidents.  Golfing does not 
 
         seem to be conducive to claimant's well-being, given the back 
 
         history he has had since 1970.  There is no need to further dwell 
 
         on these issues.  Claimant has failed to carry his burden.  The 
 
         undersigned finds that claimant is responsible for the $1,301.50 
 
         bill of the Medical Associates Clinic and that claimant is not 
 
         entitled to any temporary total disability benefits or healing 
 
         period benefits during October 1988.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
                                 FINDINGS OF FACT
 
         
 
              1. Claimant incurred a work-related 22 percent impairment 
 
         to his body as a whole.as a result of his March 9, 1984 injury.
 
         
 
              2. Claimant incurred restrictions of no repetitive bending, 
 
         lifting, twisting or reaching, no jarring or jolting and a weight 
 
         limit of not over 30 pounds as a result of his March 9, 1984 
 
         work-related injury.
 
         
 
         
 
         
 
         RUDEN v. JOHN DEERE DUBUQUE WORKS OF DEERE & COMPANY
 
         Page 9
 
         
 
         
 
              3. Claimant has no current loss of income as a result of 
 
         his March 9, 1984 work-related injury, but claimant did have a 
 
         loss of income for a period of time between his injury and May of 
 
         1988 when his restrictions placed him in an hourly paying job 
 
         rather than a work incentive job.
 
         
 
              4. Claimant has a loss of earning capacity.
 
         
 
              5. Claimant's temporary disability between October 3, 1988 
 
         and October 31, 1988 was not the result of claimant's 
 
         work-related injury on March 9, 1984, but was the result of 
 
         claimant's golfing incident on October 1, 1988.
 
         
 
              6. Claimant is responsible for his $1,301.50 bill with 
 
         Medical Associates Clinic which was incurred for services 
 
         rendered as a result of claimant's October 1, 1988 golf incident.
 
         
 
                                CONCLUSIONS OF LAW
 
         
 
              Claimant has a work-related 22 percent permanent partial 
 
         impairment caused by his March 9, 1984 injury.
 
         
 
              Claimant has restrictions of no repetitive bending, 
 
         lifting, twisting or reaching, no jarring or jolting and a weight 
 
         limit of not over 30 pounds which were caused by his work-related 
 
         March 9, 1984 injury.
 
         
 
              Claimant has a 35 percent industrial disability.
 
         
 
              Claimant is responsible for the $1,301.50 bill from Medical 
 
         Associates Clinic.
 
         
 
              Claimant is not entitled to four weeks of temporary total 
 
         disability or healing period benefits for October of 1988.
 
         
 
                                      ORDER
 
         
 
              IT IS THEREFORE ORDERED:
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              That claimant is entitled to one hundred seventy-five 
 
         (175), weeks of permanent partial disability benefits at the 
 
         weekly rate of three hundred forty-nine and 62/100 dollars 
 
         ($349.62) commencing March 30, 1988.
 
         
 
              That claimant is responsible for the payment of the one 
 
         thousand three hundred one and 50/100 dollars ($1,301.50) Medical 
 
         Associates Clinic bill.
 
         
 
         
 
         
 
         RUDEN v. JOHN DEERE DUBUQUE WORKS OF DEERE & COMPANY
 
         Page 10
 
         
 
         
 
              That defendant shall pay accrued weekly benefits in a lump 
 
         sum and shall receive credit against the award for weekly 
 
         benefits previously paid.  Defendant has already paid one hundred 
 
         forty-five (145) weeks of permanent partial disability benefits 
 
         at the rate of three hundred forty-nine and 62/100 dollars 
 
         ($349.62).
 
         
 
              That defendant shall pay interest on benefits awarded 
 
         herein as set forth in Iowa Code section 85.30.
 
         
 
              That defendant shall pay the costs of this action pursuant 
 
         to Division of Industrial Services Rule 343-4.33.
 
         
 
              That defendant shall file an activity report upon payment 
 
         of this award as required by this agency pursuant to Division of 
 
         Industrial Services Rule 343-3.1.
 
         
 
              Signed and filed this 18th day of May, 1990.
 
         
 
         
 
         
 
         
 
                                               BERNARD J. O'MALLEY
 
                                               DEPUTY INDUSTRIAL 
 
         COMMISSIONER
 
         
 
         
 
         
 
         Copies to:
 
         
 
         Mr. Michael J. Coyle
 
         Attorney at Law
 
         200 Security Building
 
         Dubuque, Iowa 52001
 
         
 
         Mr. Leo A. McCarthy
 
         Attorney at Law
 
         222 Fischer Building
 
         P.O. Box 239
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         Dubuque, Iowa 52004-0239
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
 
         
 
 
 
 
 
 
 
 
 
 
 
                                               5-1108, 5-1801, 5-1803
 
                                               Filed May 18, 1990
 
                                               BERNARD J. O'MALLEY
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         DONALD A. RUDEN,
 
         
 
              Claimant,                        File No. 759599
 
         
 
         VS.                                   A R B I T R A T I 0 N
 
         
 
                                               D E C I S I 0 N
 
         
 
         JOHN DEERE DUBUQUE WORKS 
 
         OF DEERE & COMPANY,
 
         
 
              Employer,
 
              Self-Insured,
 
              Defendant.
 
         
 
         
 
         5-1803
 
         
 
              Claimant awarded 35 percent industrial disability which was 
 
         6 percent (30 weeks) more than defendant had already paid.
 
         
 
         5-1108
 
         
 
              Claimant was not awarded $1,301.50 medical bill.  Found not 
 
         casually connected, but due to a golfing incident.
 
         
 
         5-1801
 
         
 
              Claimant was not awarded 4 weeks temporary total disability 
 
         as his temporary disability, which occurred 4 1/2 plus years 
 
         after claimant's work injury, was not casually connected, but was 
 
         the result of a golfing incident.
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         LARRY BEYER,                               File No. 759698
 
         
 
              Claimant,                               A P P E A L
 
         
 
         vs.                                          R U L I N G
 
         
 
         IBP, INC.,                                    F I L E D
 
         
 
              Employer,                               JUN 15 1988
 
              Self-Insured,
 
              Defendant.                     IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
              Division of Industrial Services Rule 343-4.27 states in 
 
              part:
 
         
 
                   No appeal shall be separately taken under this or 4.25 
 
              (17A, 86) from an interlocutory decision, order or ruling of 
 
              a deputy industrial commissioner.  A decision, order or 
 
              ruling is interlocutory if it does not dispose of the 
 
              contested case, unless the sole issue remaining for 
 
              determination is claimant's entitlement to additional 
 
              compensation for unreasonable denial or delay of payment 
 
              pursuant to Iowa Code section 86.13.
 
         
 
              The ruling filed April 11, 1988, which is the subject matter 
 
         of this appeal is not dispositive of the contested case and 
 
         therefore interlocutory.
 
         
 
              THEREFORE, the appeal filed April 25, 1988 is hereby 
 
         dismissed.
 
         
 
         
 
              Signed and filed this 15th day of June, 1988.
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
                                               DAVID E. LINQUIST
 
                                            INDUSTRIAL COMMISSIONER
 
         
 
         Copies To:
 
         
 
         Marlon D. Mormann
 
         Litigation Attorney
 
         P.O. Box 515
 
         Dakota City, NE  68731
 
         
 
         Mr. R. Ronald Pogge
 
                                                
 
                                                         
 
         Attorney at Law
 
         2700 Grand Ave., Suite 111
 
         Des Moines, Iowa  50312
 
 
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         _________________________________________________________________
 
         
 
         MARLENE SCARLETT,
 
         
 
              Claimant,
 
         
 
         VS.
 
                                                 FILE NO. 760079
 
         FIRESTONE TIRE & RUBBER CO.,
 
                                               A R B I T R A T I 0 N
 
             Employer,
 
                                                 D E C I S I 0 N
 
         and
 
         
 
         CIGNA INSURANCE COMPANIES,
 
         
 
         
 
             Insurance Carrier,
 
             Defendants.
 
         
 
         _________________________________________________________________
 
         
 
                          STATEMENT OF THE CASE
 
         
 
              This is a proceeding in arbitration brought by Marlene 
 
         Scarlett, claimant, against Firestone Tire & Rubber Company, 
 
         employer (hereinafter referred to as Firestone) and CIGNA 
 
         Insurance Companies, insurance carrier, defendants, for benefits 
 
         as a result of an alleged injury on March 19, 1984.  On March 5, 
 
         1987, a hearing was held on claimant's petition and the matter 
 
         was considered fully submitted at the close of this hearing.
 
         
 
              The parties have submitted a prehearing report of contested 
 
         issues and stipulations which was approved and accepted as a part 
 
         of the record of this case at the time of hearing.  All testimony 
 
         was received during the hearing from claimant and the following 
 
         witnesses: Chuck Scarlett, Naomi Petrie, Judy Steenhoek, and Mike 
 
         Polovick.  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 March 19, 1984, claimant received an injury which 
 
         arose out of and in the course of employment with Firestone.
 
         
 
              2.  Claimant is entitled to healing period benefits for the 
 
         period from March 19, 1984 to May 28, 1985 and the work injury is 
 
         a cause of permanent disability.
 
         
 
              3.  The commencement date for permanent partial disability
 
         benefits shall be May 29, 1985.
 
         
 
              4.  Claimant's rate of compensation in the event of an award 
 
         of weekly benefits from this proceeding shall be $345.10 per 
 
         week.
 

 
         
 
              5.  All requested medical benefits have been or will be paid 
 
         by defendants.
 
         
 
              6.  Claimant has been paid 87 weeks of compensation at the 
 
         rate of $345.10 per week prior to the hearing.
 
         
 
              The only issue submitted in the prehearing report for 
 
         determination in this decision is the extent of claimant's 
 
         entitlement to weekly benefits for permanent disability.
 
         
 
                              FINDINGS OF FACT
 
         
 
              1.  Claimant was a credible witness.
 
         
 
              From her demeanor while testifying, claimant appeared to be 
 
         truthful.  Claimant's testimony was consistent with histories 
 
         provided to her physicians during treatment and evaluation of her 
 
         injuries.  Physicians in this case expressed their belief that 
 
         claimant's physical complaints are real.  Claimant's physicians 
 
         and a rehabilitation specialist, Judy Steenhoek who monitored and 
 
         coordinated claimant's treatment for Firestone's insurance 
 
         carrier, all indicated that claimant was highly motivated to 
 
         follow physicians' instructions and to return to normal work 
 
         life.  Consequently, claimant was found to be credible.
 
         
 
              2.  Claimant was employed by Firestone from 1978 until her 
 
         work injury in March, 1984.
 
         
 
              There was little dispute among the parties as to the nature 
 
         of claimant's employment at Firestone.  Claimant testified that 
 
         her jobs at Firestone primarily involved tire building but she 
 
         also held positions as a ultility worker and janitor.  All of 
 
         claimant's positions at Firestone involved working around moving 
 
         machinery, overhead reaching, lifting in excess of 25 pounds and 
 
         repetitive pushing and pulling.  Claimant was earning $13.50 per 
 
         hour as a tire builder at the time of the work injury.
 
         
 
              Claimant has not worked for Firestone since the work 
 
         injuries herein but this is primarily due to her layoff.  After 
 
         her release from work, she received a layoff notice as a result 
 
         of a general plant wide reduction in force.  Claimant has since 
 
         chosen to take severance pay and separate her relationship with 
 
         Firestone relinquishing her right to recall from layoff.  
 
         Claimant stated that one of the reasons for the decision to take 
 
         the severance pay and not wait for a recall from Firestone is
 
         
 
         
 
         
 
         Firestone's unstable future and past history of layoffs.
 
         
 
              3.  On March 19, 1984, claimant suffered multiple injuries 
 
         which arose out of and in the course of her employment with 
 
         Firestone.
 
         
 
              Claimant testified at the time she suffered her injuries she 
 
         was using a tire building machine.  Somehow she was pulled into 
 
         the machine and she lost consciousness for a few minutes.  
 
         Claimant is unable to remember the events immediately before and 
 
         after the incident.  According to the medical records of treating 
 
         physicians, claimant was immediately taken to the hospital with 
 
         multiple facial fractures, a ruptured eardrum, two skull 
 
         fractures, a fractured right ankle and multiple bruises and 
 
         contusions over her body.  A few days later claimant underwent 
 

 
         
 
         
 
         
 
         SCARLETT V. FIRESTONE TIRE & RUBBER CO.
 
         Page   3
 
         
 
         
 
         surgical procedures to repair the facial and ankle fractures and 
 
         to suture the collateral ligament of the right ankle.  Claimant 
 
         was discharged from the hospital on March 30, 1984.
 
         
 
              Claimant was treated by Robert G. Smits, an 
 
         otolaryngologist, for facial injuries and her ear condition.  
 
         Since he first saw claimant, claimant complained of dizziness 
 
         which Dr. Smits attributes to a traumatic injury of the inner ear 
 
         and the events of March 19, 1984.  Dr. Smits has a special 
 
         interest in balance problems due to inner ear disease.  According 
 
         to Dr. Smits, claimant temporary loses her ability to maintain 
 
         her position after assuming certain positions for a few minutes 
 
         at a time.  This condition is described by Dr. Smits as mild so 
 
         long as she does not place herself in a dangerous situation when 
 
         she experiences these dizziness episodes.  Claimant also suffered 
 
         a mild hearing loss in the speech range.  Claimant's facial 
 
         injuries healed satisfactory.  Claimant reached maximum healing 
 
         from the head and facial injuries in March, 1985.
 
         
 
              Claimant's right ankle problems were treated by William 
 
         Boulden, M.D, an orthopedic surgeon.  Dr. Boulden surgically 
 
         repaired the fracture and ligament damage while claimant was in 
 
         the hospital.  Repair of the fracture involved the insertion of a 
 
         plate and screws which was later removed.  Dr. Boulden 
 
         recommended ankle rehabilitation exercises and referred claimant 
 
         to Thomas Bower, LPT, for physical therapy.
 
         
 
              Claimant developed right shoulder difficulties and she was 
 
         initially treated by Dr. Boulden.  However, after conservative 
 
         therapy failed to alleviate the persistent pain, claimant was 
 
         referred to Scott Neff, D.O., an orthopedic surgeon, who has an 
 
         apparent specialty in shoulder injuries according to Dr. Boulden.  
 
         Dr. Neff ultimately surgically repaired an "impingement syndrome" 
 
         in December, 1984.
 
         
 
              Claimant also was treated for neck and right elbow pain 
 
         following the injury by Robert A. Hayne, M.D., a neurosurgeon.
 
         After x-rays of a cervical spine, Dr. Hayne opined that her pain 
 
         might be due to spondylosis.  Aside from restricting her activity 
 
         during a period of recovery, Dr. Hayne did not actively treat 
 
         these complaints and claimant improved with the passage of time.  
 
         Dr. Hayne released claimant for work with restrictions in 
 
         October, 1984.
 
         
 
              Finally, claimant was treated for post-traumatic stress 
 
         reaction associated with her work injuries of March 19, 1984 by 
 
         Todd Hines, Ph.D., a clinical psychologist.  Claimant testified 
 
         that she experiences nightmares of being caught and smothered and 
 
         experiences anxiety or panic after these nightmares.  After three 
 
         sessions with Dr. Hines, claimant improved and the nightmares 
 
         have become less frequent.  Dr. Hines' active treatment ended in 
 
         1984.
 
         
 
              Claimant reached maximum healing from all of her injuries in 
 
         June of 1985 and she was released to work at that time.  However, 
 
         due to her seniority she was unable to return to work due to a 
 
         major plant layoff.  Mike Polovick, the labor relations manager 
 
         at Firestone, testified that regardless of her injuries, claimant 
 
         would not be working today at Firestone due to her low seniority 
 

 
         
 
         
 
         
 
         SCARLETT V. FIRESTONE TIRE & RUBBER CO.
 
         Page   4
 
         
 
         
 
         and the lack of available work at Firestone.
 
         
 
              4.  The work injury of March 19, 1984 was a cause of 
 
         significant permanent partial impairment to claimant's body as a 
 
         whole.
 
         
 
              Claimant's medical records indicate that she had significant 
 
         problems with bilateral carpal tunnel syndrome especially on the 
 
         right in March, 1980, which required a release surgery in April, 
 
         1980, by Douglas Reagan, M.D. No doctor opines that she suffered 
 
         permanent impairment from this condition but claimant experienced 
 
         significant problems continuously until her layoff from Firestone 
 
         in the latter part of 1980.  Claimant worked only a few months in 
 
         1981 and was again laid off until December, 1983.  Claimant then 
 
         only worked a few months before her March, 1984 injuries.  
 
         However, despite this limited work activity since 1980, there is 
 
         no record of right wrist complaints after 1980 in the physician 
 
         and company records contained in the record.
 
         
 
              Claimant's medical records also reveal that she experienced 
 
         pain in the left shoulder, neck and left arm in early 1980.  
 
         However, treatment of these conditions was conservative.  This 
 
         past history of neck complaints prohibits a finding that 
 
         claimant's neck problems after the March, 1984 injuries were work 
 
         related.  Dr. Haynes only opines that the condition may be caused 
 
         by spondylosis.
 
         
 
              Claimant testified that since the Firestone injuries she has 
 
         experienced recurrent severe and/or as she describes "sickening" 
 
         headaches which immobilizes her for as much as three or four 
 
         hours at a time.  These headaches have become less frequent
 
         
 
         since the injury but claimant states that they still occur three 
 
         or four times a month.  Claimant had no such headaches before her 
 
         injuries in March, 1984.  Claimant's physicians have not opined 
 
         as to the permanency of these headaches but they persist after 
 
         almost three years since the work injuries.
 
         
 
              Claimant testified that like her headaches, claimant's 
 
         nightmares have subsided but persist on occasion.  She had no 
 
         such nightmares before March, 1984.  However, Dr. Hines opines 
 
         that claimant did not suffer any permanent psychological damage 
 
         from the March, 1984 injuries.
 
         
 
              Claimant stated that she suffers hearing loss which she 
 
         notices only when other noise is present such as a radio or 
 
         people talking in a room.   Dr. Smits opines that claimant has 
 
         suffered a mild permanent hearing loss from inner ear damage.  
 
         This loss is 25 decibels in the speech range.
 
         
 
              Claimant continues to have dizzy spells which cause her to 
 
         fall down on occasion.  Claimant's friend, Naomi Petrie, observed 
 
         claimant losing her balance on two occasions since the injury.  
 
         Claimant did not have balance problems before March, 1984.  Dr. 
 
         Smits considers the condition as mild but imposed permanent work
 
         restrictions against working around moving or dangerous 
 
         machinery.
 
         
 
              Claimant testified that she continues to have lingering pain 
 

 
         
 
         
 
         
 
         SCARLETT V. FIRESTONE TIRE & RUBBER CO.
 
         Page   5
 
         
 
         
 
         in her right shoulder after heavy activity.  Dr. Neff and a 
 
         therapist, Bower, opined that claimant only has a one percent 
 
         permanent partial impairment to the upper extremity due to her 
 
         shoulder condition.  However, Dr. Neff has imposed permanent work 
 
         restrictions prohibiting lifting in excess of 25 pounds; work 
 
         above shoulder height; and, repetitive pushing and pulling.
 
         
 
              Claimant further testified that she continues to have 
 
         stiffness and aching in her left ankle after prolonged standing.  
 
         Dr. Boulden and the therapist, Bower, opines that claimant 
 
         suffered a nine percent permanent partial impairment to the lower 
 
         extremity from the March, 1984 injury.
 
         
 
              The above permanent, physical and mental problems persist 
 
         today despite a determined effort on the part of claimant to 
 
         achieve rehabilitation.  This determination is verified by her 
 
         physicians and the rehabilitation specialist, Steenhoek, who 
 
         monitored claimant's medical treatment.
 
         
 
              5.  The work injuries of March 19, 1984, are a cause of a 25 
 
         percent permanent loss of earning capacity.
 
         
 
              Although claimant's impairment ratings are low and most 
 
         physicians describe her permanent impairments as mild, the 
 
         permanent work restrictions imposed by claimant's physicians are 
 
         significant from an industrial disability standpoint.  Claimant
 
         can no longer perform the type of work she was performing at the 
 
         time of the March, 1984 injuries and most other heavy factory 
 
         labor work.  Claimant also was earning a substantial wage in the 
 
         excess of $13.00 per hour at the time of the work injury.  
 
         Consequently, her loss of earnings as a result of the work 
 
         injuries are quite severe.  However, claimant chose to take 
 
         severance pay and terminate her relationship with Firestone due 
 
         to a realistic view of her bleak future at Firestone regardless 
 
         of her disability.  It is also well known that the availability 
 
         of manufacturing work at the wages claimant earned at the time of 
 
         the work injuries is on the decline in this state and elsewhere.
 
         
 
              Furthermore, claimant's employment prior to Firestone 
 
         primarily consists of clerical and typing work since 1962.  
 
         Claimant admits that such work is still available to her and that 
 
         she could earn somewhere in the neighborhood of $10,000 to 
 
         $11,000 per year from such employment.
 
         
 
              Claimant is 42 years of age, has a high school education and 
 
         exhibited average intelligence at the hearing.  Claimant has 
 
         average potential for successful vocational rehabilitation.  
 
         Claimant has chosen to be self-employed as a horse breeder and 
 
         trainer, a business in which her and her husband have been 
 
         involved in over the last several years.  She now has a fine 
 
         facility in which to perform this work activity.  However, 
 
         claimant's riding of horses is not favored by Dr. Smits due to 
 
         claimant's balance problems but he does allow such activity if 
 
         claimant is careful.  Claimant testified that she earns 
 
         approximately $5,000 a year in such activity.  Claimant also has 
 
         leather work talents which can be used for making leather 
 
         articles or repairing horse tack.  This activity, however, has 
 
         not yielded any significant income.  According to Steenhoek, such 
 
         a leather work skill is marketable in the local economy but she 
 

 
         
 
         
 
         
 
         SCARLETT V. FIRESTONE TIRE & RUBBER CO.
 
         Page   6
 
         
 
         
 
         was not very clear as to the potential earnings from such 
 
         activity.  Claimant only earns a little over $2,000 a year from 
 
         her leather work and teaching of leather work classes.
 
         
 
              Claimant is middle age and should be in the most productive 
 
         years of her life.  Her loss of earning capacity due to 
 
         disability is much more severe than would be the case for a 
 
         younger or older individual.
 
         
 
         Finally, claimant's physical problems before March, 1984 with her 
 
         right carpal tunnel syndrome and neck pain were significant but 
 
         she lost little, if any, work as a result of these problems.  
 
         Consequently, these conditions had not developed to a point where 
 
         they affected her earning capacity prior to the work injuries 
 
         herein.
 
         
 
                            CONCLUSIONS OF LAW
 
         
 
              The foregoing findings of fact were made under the 
 
              following
 
         
 
         principles of law:
 
         
 
              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 of 
 
         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 4nd 
 
         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 v. All-American, Inc., 290 N.W.2d 348, 
 
         354 (Iowa 1980).  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).
 
         
 
              Although a finding was made causally connecting the work 
 
         injuries to significant functional impairment to her body as a 
 
         whole, such a finding does not, as a matter of law, automatically 
 
         entitle claimant to benefits for a permanent disability.  The 
 
         extent to which this physical impairment results in disability 
 
         was examined under the law setforth below.
 
         
 

 
         
 
         
 
         
 
         SCARLETT V. FIRESTONE TIRE & RUBBER CO.
 
         Page   7
 
         
 
         
 
              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 R. Co., 
 
         219 Iowa 587, 593, 258 N.W. 899 (1935).  A physical impairment or 
 
         restriction on work activity may or may not result in such a loss 
 
         of earning capacity.  The 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 
 

 
         
 
         
 
         
 
         SCARLETT V. FIRESTONE TIRE & RUBBER CO.
 
         Page   8
 
         
 
         
 
         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).
 
         
 
              No apportionment of loss of earning capacity between 
 
         claimant's preexisting physical condition and the work injuries 
 
         was made in this case because such an apportionment is proper 
 
         only when there was some ascertainable disability which existed 
 
         independently before the injuries occurred.  Varied Enterprises, 
 
         Inc. v. Sumner, 353 N.W.2d 407 (Iowa 1984).  In this case, there 
 
         was no independent ascertainable disability before March, 1984.
 
         
 
              At the prehearing conference in this case, claimant 
 
         indicated that she was not relying upon the so called "odd-lot 
 
         doctrine" under the holding in Guyton v. Irving Jensen Co., 373 
 
         N.W.2d 101, 105 (Iowa 1985).  It is the policy of this agency 
 
         that such a theory cannot be invoked or utilized by claimant 
 
         without prior notice to defendants at the prehearing conference.
 
         
 
              Defendants argued in this case that claimant had not 
 
         established a body as a whole disability.  This was clearly not 
 
         the case.  The permanent work restrictions were based primarily 
 
         upon claimant's balance problems due to inner ear disease and her 
 
         shoulder difficulties.  Both of these physical conditions are 
 
         clear body as a whole injuries.  It is well established in Iowa 
 
         that a shoulder injury is an injury to the body as a whole and 
 
         not to a scheduled member injury simply because the function of 
 
         the shoulder joint impacts on a scheduled member.  Alm v. Morris 
 
         Barick Cattle Co., 240 Iowa 1174, 38 N.W.2d 161 (1949); Nazarenus 
 
         v. Oscar Mayer & Co., II Iowa Industrial Commissioner Report 281 
 
         A P . Dec. 1982); Godwin v. Hicklin G.M. Power, II Iowa 
 
         Industrial Commissioner Reports 170 (Appl.  Decn. 1981).  
 
         Furthermore, claimant has suffered multiple permanent 
 
         impairments.  Three or more scheduled member injuries in the same 
 
         incident constitute a body as a whole injury because Iowa Code 
 
         section 85.34(u) is a catchall provision to include all 
 
         disabilities not previously described in the subsection.  No 
 
         other subsection deals with more than two scheduled member 
 
         injuries in the same incident.  Schlottman v. Sharpe Bros.  
 
         Contracting Co., (Review-reopening decision filed January 4, 
 
         1980).
 
              Based upon a finding of a 25 percent loss of earning 
 
         capacity as a result of the injury to the body as a whole, 
 
         claimant is entitled as a matter of law to 125 weeks of permanent 
 
         partial disability benefits under Iowa Code section 85.34(2)(u) 
 
         which is 25 percent of the 500 weeks allowable for an injury to 
 
         the body as a whole in that subsection.  The parties stipulated 
 
         that claimant received 87 weeks of compensation before the 
 
         hearing and that claimant was entitled to healing period benefits 
 
         in the amount of 57 6/7 weeks.  Therefore, claimant was paid 29 
 
         1/7 weeks of permanent partial disability.  Consequently, 
 
         claimant is entitled to an additional 95 6/7 weeks of weekly 
 
         compensation for permanent partial disability.
 
         
 
                                    ORDER
 
         
 
              1.  Defendants shall pay to claimant an additional 
 
         ninety-five and six-sevenths (95 6/7) weeks of permanent partial 
 

 
         
 
         
 
         
 
         SCARLETT V. FIRESTONE TIRE & RUBBER CO.
 
         Page   9
 
         
 
         
 
         disability benefits at the rate of three hundred forty-five and 
 
         10/100 dollars ($345.10) per week from twenty-nine and 
 
         one-seventh (29 1/7) weeks after the stipulated beginning of 
 
         permanent partial disability benefits, May 29, 1985.
 
         
 
              2.  Defendants shall pay accrued weekly benefits in a lump 
 
         sum.
 
         
 
              3.  Defendants shall pay interest on benefits awarded herein 
 
         as setforth in Iowa Code section 85.30.
 
         
 
              4.  Defendants shall pay the costs of this action pursuant 
 
         to Division of Industrial Services Rule 343-4.33.
 
         
 
              5.  Defendants shall file activity reports on the payment of 
 
         this award as requested by this agency pursuant to Division of 
 
         Industrial Services Rule 343-3.1.
 
         
 
         
 
              Signed and filed this 9th Friday of June, 1987.
 
         
 
         
 
                                            LARRY P. WALSHIRE
 
                                            DEPUTY INDUSTRIAL COMMISSIONER
 
         
 
         Copies To:
 
         
 
         Mr. Gregory A. Hulse
 
         Attorney at Law
 
         1009 Main Street
 
         Adel, Iowa 50003
 
         
 
         Mr. Frank T. Harrison
 
         Attorney at Law
 
         Terrace Center, STE 111
 
         2700 Grand Ave.
 
         Des Moines, Iowa 50312
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                                      1803
 
                                                      Filed June 9, 1987
 
                                                      LARRY P. WALSHIRE
 
         
 
                   BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         _________________________________________________________________
 
         
 
         MARLENE SCARLETT,
 
         
 
              Claimant,
 
         
 
         VS.
 
                                                     FILE NO. 760079
 
         FIRESTONE TIRE & RUBBER CO.,
 
                                                 A R B I T R A T I 0 N
 
              Employer,
 
                                                     D E C I S I 0 N
 
         and
 
         
 
         CIGNA INSURANCE COMPANIES,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         _________________________________________________________________
 
         
 
         1803
 
         
 
         
 
              Claimant was awarded industrial disability benefits 
 
         equivalent to a 25 percent industrial disability as a result of a 
 
         work injury at Firestone Rubber Company.  Value of the award is 
 
         $33,080.25.
 
 
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         
 
         WALTER L. SMELTZER,
 
         
 
              Claimant,                             File No. 760113
 
         
 
         vs.
 
                                                      A P P E A L
 
         OSCAR MAYER FOODS CORP.,
 
                                                    D E C I S I O N
 
              Employer,
 
              Self-Insured,
 
              Defendant.
 
         
 
         
 
         
 
         
 
                              STATEMENT OF THE CASE
 
         
 
              Claimant appeals from an arbitration decision awarding 
 
         permanent partial disability benefits based upon an industrial 
 
         disability of 20 percent.
 
         
 
              The record on appeal consists of the transcript of the 
 
         arbitration hearing and joint exhibits 1 through 6.  Both parties 
 
         filed briefs on appeal.
 
         
 
                                      ISSUE
 
         
 
              The issue on appeal is the extent of claimant's industrial 
 
         disability.
 
         
 
                              REVIEW OF THE EVIDENCE
 
         
 
              The arbitration decision adequately and accurately reflects 
 
         the pertinent evidence and it will not be totally reiterated 
 
         herein.
 
         
 
              Claimant was 53 years old at the time of the hearing.  He 
 
         attended school until the ninth grade but did not finish that 
 
         grade.  He had no more formal education and does not have a high 
 
         school equivalency certificate.  His work experience prior to 
 
         working for defendant was generally unskilled labor.  Claimant 
 
         began working for defendant in September 1963.  He worked six or 
 
         seven years on the production line pulling leaf lard, snatching 
 
         guts, shaving hogs, and working on the head table.  Those jobs 
 
         required him to stand eight hours a day.  He then worked in the 
 
         maintenance department as a master mechanic.  He testified that 
 
         the department is responsible to keep the machinery running and 
 
         for the electrical needs of the plant.  He stated that the 
 
         department does welding and plumbing and is jack of all trades 
 
         and master of none.  The work varied in physical requirements as 
 
         well as environmental factors including temperatures.  On March 
 
                                                
 
                                                         
 
         8, 1984, while on his way to fix a dock door, he slipped and fell 
 
         injuring his back and staking his head.
 
         
 
              Claimant testified that he had had asthma for 25 years, that 
 
         the asthma periodically flares up, that he has been hospitalized 
 
         when the asthma flared up, that he has missed work because of 
 
         asthma, that he always returned to work for defendant after an 
 
         asthma attack, and that his asthma was better after not working 
 
         for defendant.
 
         
 
              Claimant was released to return to work in May 1985 but did 
 
         not return to work and has not returned to work.  Claimant 
 
         indicated that he did not feel he was able to return to work in 
 
         May 1985 because his back was still hurting and his legs were 
 
         swollen.  Claimant testified that he did not believe he would be 
 
         able to work because he would not be able to do an employer 
 
         justice; that he would not be able to handle it; that he might be 
 
         able to work for two or three days or maybe one day and then be 
 
         off the rest of the work week.  He testified that he wanted to go 
 
         back to work but knew he could not handle it.
 
         
 
              Claimant is receiving social security benefits.  Claimant 
 
         applied for and defendant awarded claimant his disability pension 
 
         plan that is available to its workers who are disabled.  Claimant 
 
         also applied for and was awarded benefits due to his disability 
 
         under a private disability income policy.
 
         
 
              After claimant's fall he was seen by Robert Deranleau, M.D., 
 
         who is claimant's personal physician.  Dr. Deranleau referred 
 
         claimant to Ronald Bunten, M.D., who placed claimant in Iowa 
 
         Methodist Medical Center for four or five days.  Claimant was 
 
         seen by Bruce Hagen, D.C.  In May 1985, Dr. Hagen released 
 
         claimant to return to work.  Claimant was evaluated by John 
 
         Grant, M.D., as a result claimant's application for benefits from 
 
         his private disability plan.  Claimant was evaluated by Paul 
 
         From, M.D., and was also seen by Dr. Simmons and Dr. Weinstein at 
 
         the University of Iowa Hospitals and Clinics.
 
         
 
              A hospital report from Iowa Methodist Medical Center dated 
 
         March 26, 1984, stated:
 
         
 
              FINAL DIAGNOSIS: Degenerative disc disease,
 
              cervical and lumbar spine.
 
         
 
              SECONDARY DIAGNOSIS:
 
         
 
              1.  Peripheral neuropahty.
 
              2.  Bilateral carpal tunnel syndromes.
 
              3.  Intrinsic asthma with chronic obstructive
 
                  pulmonary disease.
 
              4.  Hypertension.
 
              5.  Obesity.
 
         
 
         (Joint Exhibit 1, page 215)
 
         
 
                                                
 
                                                         
 
              Office notes of Dr. Bunten dated August 24, 1984, reads in 
 
         part:
 
         
 
              I think he is likely to continue to be significantly 
 
              impaired by his chronic obstructive pulmonary disease, 
 
              and apparently his peripheral neuropathy affecting his 
 
              extremities is likely to continue to prevent him from, 
 
              physically performing a great deal.  I do not think his 
 
              degenerative changes in the back or neck would warrant 
 
              additional treatment, but may continue to bother him 
 
              with physical performance.  I think his work-related 
 
              fall in March 1984 may have precipitated or aggravated 
 
              some of his degenerative change in the low back, but 
 
              that his principal impairments and disabilities relate 
 
              to the pre-existing degenerative changes in the spine, 
 
              peripheral neuropathy, and pulmonary disease.  I would 
 
              regard him as having a 10% permanent partial impairment 
 
              of his total body function, based on the aggravation 
 
              sustained in the fall, and that his remaining 
 
              disability and inability to work are related to his 
 
              chronic illnesses.
 
         
 
         (Jt. Ex. 1, p. 44)
 
         
 
              Dr. Simmons' statement dated October 5, 1984, reads in part: 
 
         "IMPRESSION:   The patient was seen and examined with Dr. 
 
         Weinstein.  He has chronic low back pain and multiple trigger 
 
         points.  His impairment rating is 10-12 percent at this time.O 
 
         (Jt. Ex. 1, p. 243)
 
         
 
              Dr. Grant's orthopedic report in June 1985 reads in 
 
         part:. "In combining the impairments of 5 percent for the 
 
         cervical spine, 10 percent for the lumbosacral spine, and 4 
 
         percent for the ulnar nerve, the combined table values 
 
         reveal a partial permanent physical impairment of 17 percent 
 
         of the body as a whole.O (Jt. Ex. 1, p. 40)
 
         
 
              In a letter dated November 21, 1985, Dr. From wrote:
 
         
 
                 His impairment from the injuries sustained in March 
 
              1984, since they do involve the neck and the lower 
 
              back, can be translated into whole man impairment.  He 
 
              has not had surgery for this condition. one examiner 
 
              previously gave him a total 17% impairment, but I would 
 
              think that his impairment was about 11 to 12%, based 
 
              upon 5% for the cervical spine, 10% for the lumbosacral 
 
              spine, and 4% for the ulnar nerve.  He has not had 
 
              surgery for any of his musculoskeletal conditions.
 
         
 
         (Jt. Ex. 1, pp. 23-24)
 
         
 
              Dr. Bunten also testified:
 
         
 
              A. ...I felt the degenerative disc disease likely had 
 
              been aggravated by falling down....
 
                                                
 
                                                         
 
         
 
                 ....
 
         
 
              A.  ...I thought his problems were sort of a 
 
              combination of peripheral neuropathy and his intrinsic 
 
              asthma and chronic obstructive lung disease as well as 
 
              the pain in his back and the numbness that he 
 
              experienced intermittently and variably in the 
 
              extremity.  And that's the sum total of all that would 
 
              perhaps not allow him to return to his former work.
 
         
 
         (Bunten Deposition, pages 6-7, 13-14)
 
         
 
              Phil Schumacher, personnel manager for defendant, testified 
 
         that claimant's last job with defendant was as a master mechanic. 
 
          The job involves performing a number of functions.  Schumacher 
 
         testified that the last few years claimant worked for defendant 
 
         claimant's job was not heavy and claimant's job was open until he 
 
         retired.
 
         
 
                                  APPLICABLE LAW
 
         
 
              The citations of law in the arbitration decision are 
 
         appropriate to the issues and evidence.
 
         
 
                 
 
                                                         
 
                                     ANALYSIS
 
         
 
              Claimant argues on appeal that the deputy erred in awarding 
 
         only a 20 percent industrial disability.  Defendant counters by 
 
         saying that the deputy's award was generous. in discussing his 
 
         decision, the deputy stated:
 
         
 
                 Defendant argues in its brief on pages 8-9 that 
 
              claimant is poorly motivated to return to work because 
 
              of the various monies that he is currently receiving.  
 
              Defendant also points to claimant's failure to look for 
 
              work and his failure to return to the job he was 
 
              performing for Oscar Mayer at the time of his injury.  
 
              Claimant counters that he is well-motivated to return 
 
              to work, but that his ,physical problems prevent him 
 
              from doing so.  Phil Schumacher testified that at some 
 
              point claimant decided not to retire because he could 
 
              not afford to live on the retirement monies available 
 
              to him at the.time.  At the present time, however, 
 
              claimant is receiving about $1300 on a monthly basis.  
 
              This deputy believes, and it will be found, that 
 
              claimant is poorly motivated to return to work and that 
 
              his various sources of income play a part in his 
 
              motivational problems.  Claimant is not a good 
 
              candidate for vocational rehabilitation at this, point 
 
              and he is poorly educated.  Taking into account all 
 
              relevant factors, it is determined that claimant's 
 
              industrial disability is 20 percent.
 
         
 
              Claimant argues that the deputy erred in finding that 
 
         claimant is poorly motivated to return to work and alleges that 
 
         the deputy is penalizing claimant for applying for and receiving 
 
         benefits.  The conclusion that claimant is poorly motivated is 
 
         inescapable.  The record is devoid of any evidence indicating 
 
         that claimant has sought employment, retraining, or any source of 
 
         earnings.   The fact that income from claimant's various benefits 
 
         are comparable to his earnings while working for defendant would 
 
         play a part in his lack of motivation.  When all factors are 
 
         considered, the deputy correctly concluded that claimant's 
 
         disability is 20 percent.
 
         
 
                                 FINDINGS OF FACT
 
         
 
              1.  Claimant is 53 years old.
 
         
 
              2.  On March 8, 1984, claimant sustained a whole body injury 
 
         while working for defendant.
 
         
 
              3.  Claimant sustained permanent partial impairment of 10-15 
 
         percent as a result of his work injury of March 8, 1984.
 
         
 
              4.  The impairment that resulted from the work injury of 
 
         March 8, 1984 caused some loss of earning capacity.
 
         
 
              5.  Claimant did not complete high school.
 
                                                
 
                                                         
 
         
 
              6.  Claimant is a poor candidate for rehabilitation.
 
         
 
              7.  Claimant currently has an income of about $1300 per 
 
         month from various sources.
 
         
 
              8.  Claimant has permanently separated from employment with 
 
         defendant.
 
         
 
              9.  Claimant was a "master mechanic" with defendant when he 
 
         last worked for defendant.
 
         
 
             10.  Claimant's job as "master mechanic" was available to him 
 
         at the time of his separation or retirement from defendant.
 
         
 
             11.  Claimant did not make a good faith effort to return to 
 
         work after his work-related injury of March 8, 1984.
 
              12.  Claimant's industrial disability is 20 percent.
 
         
 
              13.  Claimant's stipulated rate of weekly compensation is 
 
         $248.08.
 
         
 
         
 
                                CONCLUSIONS OF LAW
 
         
 
              Claimant has established by a preponderance of the evidence 
 
         that there is a causal connection between his work-related injury 
 
         of March 8, 1984 and some disability.
 
         
 
              Claimant has established by a preponderance of the evidence 
 
         that as a result of his injury on March 8, 1984, his industrial 
 
         disability is 20 percent.
 
         
 
              WHEREFORE, the decision of the deputy is affirmed.
 
         
 
         
 
                                      ORDER
 
         
 
              THEREFORE, it is ordered:
 
         
 
              That defendant pay one hundred (100) weeks of permanent 
 
         partial disability benefits at the stipulated rate of two hundred 
 
         forty-eight and 08/100 dollars ($248.08) commencing May 1985.
 
         
 
              That defendant pay accrued benefits in a lump sum and pay 
 
         interest pursuant to section 85.30, The Code.
 
         
 
              That claimant pay the costs of this appeal and transcription 
 
         of the arbitration hearing.
 
         
 
              That defendant file claim activity reports pursuant to 
 
         Division of Industrial Services Rule 343-3.1(2).
 
         
 
         
 
              Signed and filed this 21st day of June, 1988.
 
                                                
 
                                                         
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
                                                 DAVID E. LINQUIST
 
                                                 INDUSTRIAL COMMISSIONER
 
         
 
         
 
         Copies to:
 
         
 
         Mr. David Drake
 
         Attorney at Law
 
         West Towers Office Complex
 
         1200 3rd St., Suite 500
 
         P.O. Box 65355
 
         West Des Moines, Iowa 50265
 
         
 
         Mr. Barry Moranville
 
         Attorney at Law
 
         974 73rd Street, Suite 16
 
         Des Moines, Iowa 50312
 
 
 
         
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                                        1402.40 1803
 
                                                        Filed 6-21-88
 
                                                        David E. Linquist
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         WALTER L. SMELTZER,
 
         
 
              Claimant,                             File No. 760113
 
         
 
         vs.
 
                                                      A P P E A L
 
         OSCAR MAYER FOODS CORP.,
 
                                                    D E C I S I 0 N
 
              Employer,
 
              Self-Insured,
 
              Defendant.
 
         
 
         
 
         
 
         1402.40; 1803
 
         
 
              Claimant aggravates a preexisting back condition and his 
 
         industrial disability was 20 percent.  Claimant's lack of 
 
         motivation to return to work was a factor in determining his 
 
         industrial disability.  Claimant's income from various sources, 
 
         including private disability benefit plans, were comparable to 
 
         his earnings while working for defendant employer and this fact 
 
         played a part in lack of motivation.  Claimant's job had been 
 
         held open for him after his injury but he did not make a good 
 
         faith effort to return to work to see it he could physically 
 
         handle his job.
 
 
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         _________________________________________________________________
 
         
 
         WALTER L. SMELTZER,
 
         
 
              Claimant,
 
                                                 File No. 760113
 
         VS.
 
                                               A R B I T R A T I 0 N
 
         OSCAR MAYER FOODS CORP.,
 
                                                 D E C I S I 0 N
 
              Employer,
 
              Self-Insured,
 
              Defendant.
 
         
 
         _________________________________________________________________
 
         
 
                                        
 
                              STATEMENT OF THE CASE
 
         
 
              This is a proceeding in arbitration brought by Walter L. 
 
         Smeltzer, claimant, against Oscar Mayer Foods Corp. (Oscar 
 
         Mayer), self-insured employer, for benefits as a result of an 
 
         injury on March 8, 1984.  A hearing was held in Des Moines, Iowa 
 
         on October 30, 1986 and the case was submitted on that date.
 
         
 
              The record consists of the testimony of claimant and Phil 
 
         Schumacher; and joint exhibits 1 through 6. Both parties filed 
 
         briefs.
 
         
 
              The parties stipulated that claimant's weekly rate of 
 
         compensation is $248.08; that claimant is entitled to healing 
 
         period benefits from March 12, 1984 through May 2, 1985; that 
 
         permanent partial disability benefits, if awarded, would commence 
 
         on May 3, 1985; that the parties informally resolved all medical 
 
         benefit issues; that claimant sustained an injury on March 8, 
 
         1984 that arose out of and in the course of his employment with 
 
         Oscar Mayer; and that the claimant's injury is a whole body 
 
         injury.
 
         
 
                                    ISSUES
 
         
 
              The contested issues are:
 
         
 
              1)  Whether there is a causal connection between claimant's 
 
         injury of March 8, 1984 and claimant's asserted disability; and
 
         
 
              2)  Nature and extent of disability; specifically, whether 
 
         claimant is entitled to permanent partial disability  benefits 
 
         and, if so, the extent of those benefits.
 
         
 
         
 
         
 
                            SUMMARY OF THE EVIDENCE
 
         
 

 
         
 
         
 
         
 
         
 
         SMELTZER V. OSCAR MAYER FOODS CORP.
 
         Page   2
 
         
 
         
 
              Claimant testified that he has lived on an eighty acre farm 
 
         near Woodward, Iowa, for some seventeen years.  He and his wife 
 
         own that property.  He and his wife have been married 
 
         thirty-three years.  They have had three boys all of adult age 
 
         from that marriage.  Claimant is 53 years old with his date of 
 
         birth being May 10, 1933.
 
         
 
              Claimant went through school until the ninth grade, not 
 
         quite completing that year in Redfield High School.  He got out 
 
         of high school in approximately 1949 and has not returned to 
 
         school at any time since then, nor taken any correspondence 
 
         courses or education courses.  He does not have a high school 
 
         equivalency certificate.  Claimant has never been in the armed 
 
         services.
 
         
 
              In 1950, claimant started to work for the ASC office which 
 
         was a government program building government grain storage bins 
 
         in different counties around Iowa.  His duties were that of labor 
 
         helping to construct the bins.  He performed this work for 
 
         approximately one year.  His next employment was with Iowa Soy 
 
         Company at Redfield.  He worked in the sacking room of that 
 
         company sacking grain meal.  In addition to sacking the meal, he 
 
         was required to carry the sacks of meal after being packaged.  He 
 
         did that employment approximately one year.
 
         
 
              After that employment, he went to work for New Monarch in 
 
         Des Moines, Iowa.  They manufactured toy tractors and novelty 
 
         items.  His duties involved painting the toys.  He ran the dip 
 
         rack where you would hang the toys on a hook and dip them into 
 
         the paint.  He held that job approximately six months.  After 
 
         that employment, he went to C.E. Erickson Company.  That company 
 
         manufactured milk cases and other novelty items.  At that 
 
         employment, he ran a shear machine cutting sheet metal.  He did 
 
         not fabricate the metal, only performing the cutting duties.  He 
 
         performed that job approximately eleven or twelve years.  During 
 
         that employment, he also worked at John Deere for approximately 
 
         seven months holding down two jobs at the same time.  There was a 
 
         general layoff at C.E. Erickson and he went to work for Iowa Clay 
 
         Pipe.
 
         
 
              At Iowa Clay Pipe, he poured plastic for sewer systems.  He 
 
         only performed this job approximately six weeks when he went to 
 
         work for Oscar Mayer Company in approximately September of 1963.  
 
         When he first went to work for Oscar Mayer Company, he was hired 
 
         to work on the production line.  Oscar Mayer is a packing plant 
 
         that deals in processing hogs.  Claimant worked on the production 
 
         line for approximately six or seven years holding different 
 
         production line jobs during that period of time including pulling 
 
         leaf lard, snatching guts, shaving hogs and working on the head 
 
         table.  He described the work as being pretty physical in both 
 
         the leaf lard job and the snatching guts job.  He testified that 
 
         the other jobs depended on whether or not you had
 
         
 
         the buckets to lift.  All the work required him to stand for long 
 
         periods of time, eight hours a day.  Throughout the day, of 
 
         course, there were breaks and his dinner break.
 
         
 
              Claimant eventually moved out of the production area to the 
 

 
         
 
         
 
         
 
         
 
         SMELTZER V. OSCAR MAYER FOODS CORP.
 
         Page   3
 
         
 
         
 
         maintenance department which is responsible for keeping all the 
 
         machinery running and the electrical needs of the plant supplied.  
 
         He testified that they would do electrical work, welding and 
 
         plumbing being a jack of all trades and master of none.  It was 
 
         his responsibility to make sure the machines were working and the 
 
         lines would keep running.  The work varied not only in physical 
 
         requirements but also being exposed to a variety of environmental 
 
         factors including temperatures.
 
         
 
              Claimant testified that he picked up those skills by 
 
         himself, by working with the other maintenance people and by 
 
         trying to get some books and reading up on electrical and welding 
 
         skills.
 
         
 
              On March 8, 1984, claimant was sent to the cellars to fix a 
 
         dock door.  The courtyard had been hosed off the night before and 
 
         it had frozen.  He slipped on the ice and fell landing on his 
 
         tailbone and then went all the way back over and cracked his head 
 
         on the ground.  This happened at approximately 10:00 a.m. At that 
 
         point in time, he was working from 7:00 a.m. to approximately 
 
         3:30 p.m. He continued to work that day and in fact did finish 
 
         his work that day.  He reported the injury to Kay who was the 
 
         plant nurse on that shift.  He reported to work the next day but 
 
         did not finish the day out because he did not feel good from the 
 
         fall.  He had seen Dr. Deranleau, who restricted him from work at 
 
         that time.  Dr. Deranleau gave claimant some medicine and sent 
 
         him home.
 
         
 
              Claimant saw Dr. Deranleau again a few days later and was 
 
         placed in the Dallas County Hospital for approximately ten days.  
 
         In the hospital they gave   him  some therapy, apparently 
 
         intermittent traction on his neck and legs.  His physical 
 
         complaints and symptoms at that time were pain in his lower back 
 
         and his legs.  He testified that the pain went across the lower 
 
         part of his back going down into his legs.  He also testified 
 
         that the therapy at the hospital did not help him.
 
         
 
              Dr. Deranleau then sent claimant to be examined by Dr. 
 
         Bunten in Des Moines, Iowa.  Dr. Bunten placed him in Iowa 
 
         Methodist Medical Center in Des Moines, and claimant was in that 
 
         facility' for four or five days.  Claimant was also seen in this 
 
         period of time by Dr. Brenton who examined him.
 
         
 
              Claimant continued off work throughout 1984 without much 
 
         change in his symptoms.  He continued to see Dr. Bunten three or 
 
         four times during that period of time without much change in 
 
         symptomatology or relief.  The next doctor that claimant saw was, 
 
         a Dr. Hagen.
 
         
 
              Dr. Hagen is a chiropractor to whom Phil Schumacher, the 
 
         personnel manager at Oscar Mayer, sent claimant.  Dr. Hagen's 
 
         treatment started on January 21, 1985, with claimant seeing him 
 
         for three different periods of time.  Claimant was housed at 
 
         facilities that Dr. Hagen has set up for his patients in Sioux 
 
         Center, Iowa, and claimant was there approximately one week each 
 
         time.  Claimant testified that he did not believe Dr. Hagen's 
 
         treatments helped.
 
         
 

 
         
 
         
 
         
 
         
 
         SMELTZER V. OSCAR MAYER FOODS CORP.
 
         Page   4
 
         
 
         
 
              In May of 1985, Dr. Hagen released claimant to return to 
 
         work, but claimant did not actually return to work, nor has he 
 
         ever returned to work.  In May of 1985, claimant returned to the 
 
         the plant and talked to Phil Schumacher about returning to work 
 
         and about his physical condition.  Claimant did not feel he was 
 
         able to return to work at that time because his back was still 
 
         hurting and his legs were swollen.  Claimant's workers' 
 
         compensation benefits were terminated in May of 1985.  Claimant 
 
         at that time applied for social security disability benefits and 
 
         was awarded those benefits.  Claimant is currently receiving 
 
         social security disability benefits.  Oscar Mayer awarded to 
 
         claimant its disability pension plan that is available to its 
 
         workers who are disabled.  Oscar Mayer awarded claimant those 
 
         benefits after he applied.  Claimant also had a private 
 
         disability income policy that he made application on and was 
 
         awarded benefits due to his disability.  Claimant saw a Dr. Grant 
 
         at the McFarland Clinic in Ames, Iowa, as a result of a request 
 
         from his private disability plan, and Dr. Grant's reports are in 
 
         evidence in this case as well.
 
         
 
              Claimant testified that he has had asthma for twenty-five 
 
         years and that it is pretty bad at times.  It has, however, been 
 
         better since he has not worked at the plant.  When the asthma 
 
         flares up he usually winds up in the hospital and his symptoms 
 
         are that he can't catch his breath and that he wheezes and puffs.  
 
         The medical records show that he has been hospitalized on 
 
         numerous occasions for his asthma, sometimes being hospitalized 
 
         once a year or twice a year, but that there are periods of time 
 
         over two or three-year periods when he has not been hospitalized 
 
         for his asthma.  He has been on medication for the asthma since 
 
         approximately 1960.  He usually gets his asthma when he has a 
 
         cold and ends up getting pneumonia.  He testified that he had 
 
         missed some work for that but that there probably were times that 
 
         he worked when he shouldn't have.  Oscar Mayer allowed him to 
 
         continue working there even though he had these periodic asthma 
 
         attacks and missed time from work.  When he would get over his 
 
         asthma attack he would come back to work and perform his regular 
 
         duty job.  There was never a time in his twenty plus year 
 
         employment with Oscar Mayer that he did not return to work after 
 
         an asthma attack.  He believes that his asthma is better today 
 
         because of the less exposure to different changes in the air 
 
         namely the change in temperatures that he is not exposed to at 
 
         Oscar Mayer.  He is continuing to take asthma medication;
 
         
 
         however, he has not been hospitalized for his asthma since the 
 
         injury to his back in March of 1984.
 
         
 
              Claimant testified that asthma is not the reason he is not 
 
         working today, but rather that his back and legs won't take it.  
 
         He readily admits that he has asthma and that it has been a 
 
         serious problem for him over the years in terms of needing 
 
         medication and requiring hospitalization to treat it; he believes 
 
         that he survived with it at work since it was diagnosed and that 
 
         he would be able to survive with it today if it not for the back 
 
         and leg problem.
 
         
 
              Claimant also testified about peripheral neuropathy.  
 
         Claimant testified that the first time he was ever told about 
 

 
         
 
         
 
         
 
         
 
         SMELTZER V. OSCAR MAYER FOODS CORP.
 
         Page   5
 
         
 
         
 
         peripheral neuropahy was by Dr. Bunten and that Dr. Bunten 
 
         rendered no treatment for that condition.  Dr. Bunten referred 
 
         claimant to Dr. Brenton for the peripheral neuropathy who told 
 
         claimant that he had it, but again, no treatment was rendered nor 
 
         was any suggested.
 
         
 
              Claimant testified that his physical activities today 
 
         include watching television, driving uptown or going to the 
 
         neighbors.  He testified that he is able to drive a vehicle 
 
         approximately one-half hour at a time and then needs to get out 
 
         and move around because his back gets to bothering him.  He 
 
         further testified that when his back starts to hurt his legs also 
 
         hurt.  He testified that he can also sit comfortably for 
 
         approximately one-half hour, maybe forty-five minutes.  He 
 
         testified that he can stand without aggravating his problem for 
 
         approximately fifteen minutes and that while it varies on some 
 
         days it is not something that varies very much.  He did testify 
 
         that standing or being out on the grass as opposed to concrete 
 
         makes a difference, with the concrete surface being worse.  He 
 
         testified that he does not go for many walks, but that if he 
 
         does, he may be able to comfortably manage a block or half a 
 
         block.  If he goes any further, his back and legs are 
 
         aggravated.
 
         
 

 
         
 
         
 
         
 
         
 
         SMELTZER V. OSCAR MAYER FOODS CORP.
 
         Page   6
 
         
 
         
 
              He testified that to alleviate the pain he usually lies down 
 
         on the floor on his back.  He testified that he did that every 
 
         day approximately every hour or so that he was in the house.  He 
 
         testified that rather than sit in a chair or a recliner, he would 
 
         just lie on the floor because that seemed to help.  He also takes 
 
         hot baths and has a heating pad to help the back and leg pain 
 
         when aggravated.  He testified that he did not believe he would 
 
         be able to work because he would not be able to do them justice; 
 
         that he would not be able to handle it; that he might be able to 
 
         work for a couple or three days or maybe one day and then be off 
 
         the rest.  He testified that he wanted to go back to work but he 
 
         knew he could not handle it.  That is when he signed up for the 
 
         retirement disability shortly after Dr. Hagen released him.  He 
 
         testified that the complaints that keep him from working would be 
 
         his back and legs, that he cannot stand on them
 
         and could not sit for any period of time.  He also felt that 
 
         distance walking was out.  He does not believe that the asthma 
 
         played a part in his inability to work because he always worked 
 
         before.  Although he missed time, he went right back to work.
 
         
 
              Phil Schumacher testified that he is the personnel manager 
 
         at the Oscar Mayer plant in Perry.  Claimant was hired by Oscar 
 
         Mayer in September 1963.  Claimant's last job with Oscar Mayer 
 
         was as a master mechanic performing a number of functions.  
 
         Exhibit 3, pages 18-19, is a job description of claimant's last 
 
         job.  Schumacher testified that claimant's job was not heavy 
 
         during claimant's "last few years with Oscar Mayer." At some 
 
         point, Schumacher and claimant talked about claimant's 
 
         retirement, but claimant decided not to retire because he "could 
 
         not afford to live on that kind of money." Claimant's job was 
 
         open until he retired and, as a result, he could have returned to 
 
         his job as a master mechanic.  There are twenty-four master 
 
         mechanics at Perry currently.
 
         
 
              In exhibit 6,, pages 6-7, Dr. Bunten stated in part: "I felt 
 
         the degenerative disc disease likely had been aggravated by 
 
         falling down...." Dr. Bunten also stated on pages 13-14 of 
 
         exhibit 6:
 
         
 
              I thought his problems were sort of a combination 
 
              of peripheral neuropathy and his intrinsic asthma 
 
              and chronic obstructive lung disease as well as 
 
              the pain in his back and the numbness that he 
 
              experienced intermittently and variably in the 
 
              extremity.  And that's the sum total of all that 
 
              would perhaps not allow him to return to his 
 
              former work.
 
         
 
                         APPLICABLE LAW AND ANALYSIS
 
         
 
              I.  The claimant has the burden of proving by a 
 
         preponderance of the evidence that the injury of March 8, 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. 0. Boggs, 236 Iowa 296, 18 N.W.2d 607 
 
         (1945).  A possibility is insufficient; a probability is 
 
         necessary.  Burt v. John Deere Waterloo Tractor Works, 247 Iowa 
 
         691, 73 N.W.2d 732 (1955).  The question of causal connection is 
 

 
         
 
         
 
         
 
         
 
         SMELTZER V. OSCAR MAYER FOODS CORP.
 
         Page   7
 
         
 
         
 
         essentially within the domain of expert testimony.  Bradshaw v. 
 
         Iowa Methodist Hospital, 251 Iowa 375, 101 N.W.2d 167 (1960).
 
         
 
              While a claimant is not entitled to compensation for the 
 
         results of a preexisting injury or disease, the mere existence at 
 
         the time of a subsequent injury is not a defense.  Rose v. John 
 
         Deere Ottumwa Works, 247 Iowa 900, 908, 76 N.W.2d 756t 760-761 
 
         (1956).  If the claimant had a preexisting condition or 
 
         disability that is aggravated, accelerated, worsened or lighted 
 
         up so that it results in disability, claimant is entitled to
 
         recover.  Nicks v. Davenport Produce Co., 254 Iowa 130, 115 
 
         N.W.2d 812, 815 (1 2).
 
         
 
              An employer takes an employee subject to any active or 
 
         dormant health impairments, and a work connected injury which 
 
         more than slightly aggravates the condition is considered to be a 
 
         personal injury   Ziegler v. United States Gypsum Co., 252 Iowa 
 
         613, 620, 106 N.W.2d 591 (1960), and cases cited.
 
         
 
              An injury is the producing cause; the disability, however, 
 
         is the result, and it is the result which is compensated. Barton 
 
         v. Nevada Poultry Co., 253 Iowa 285, 110 N.W.2d 660 (1961); 
 
         Dailey v. Pooley Lumber Co., 233 Iowa 758, 10 N.W.2d 569 
 
         (1943).
 
         
 
              In Blacksmith v. All-American, Inc., 290 N.W.2d 348, 354 
 
         (Iowa 1980), the- Iowa Supreme Court stated:
 
         
 
              A cause is proximate if it is a substantial factor in 
 
              bringing about the result.  See Holmes v. Bruce Motor 
 
              Freight, Inc., 215 N.W.2d 296, 297 (Iowa 1974).  It 
 
              only needs to be one cause; it does not have to be the 
 
              only cause.  See Langford v. Kellar Excavating & 
 
              Grading, Inc., 191 N.W.2d at 670.
 
         
 
              It is concluded that claimant carried his burden to 
 
         establish a causal connection between his work-related injury and 
 
         his asserted disability.  In this regard, it will be found that 
 
         the physical impairment that resulted from the fall on March 8, 
 
         1984 did cause some disability; the employer's argument to the 
 
         contrary is rejected.  In sum, claimant materially aggravated a 
 
         preexisting condition when he fell at work on March 8, 1984; this 
 
         fall was at least a substantial factor in causing claimant some 
 
         disability.
 
         
 
              The degree of industrial disability is the primary fighting 
 
         issue in this case and that issue will be addressed next.
 
         
 
              II.  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 
 

 
         
 
         
 
         
 
         
 
         SMELTZER V. OSCAR MAYER FOODS CORP.
 
         Page   8
 
         
 
         
 
         is so as impairment and disability are not synonymous.  Degree of 
 
         industrial disability can in fact be much different
 
         
 
         
 
         
 
         
 
         
 
         than the degree of impairment because in the first instance 
 
         reference is to loss of earning capacity and in the later to 
 
         anatomical or functional abnormality or loss.  Although loss of 
 
         function is to be considered and disability can rarely be found 
 
         without it, it is not so that a degree of industrial disability 
 
         is proportionally related to a degree of impairment of bodily 
 
         function.
 
         
 
              Factors to be considered in determining industrial 
 
         disability include the employee's medical condition prior to the 
 
         injury, immediately after the injury, and presently; the situs of 
 
         the injury, its severity and the length of healing period; the 
 
         work experience of the employee prior to the injury, after the 
 
         injury and potential for rehabilitation; the employee's 
 
         qualifications intellectually, emotionally and physically; 
 
         earnings prior and subsequent to the injury; age; education; 
 
         motivation; functional impairment as a result of the injury; and 
 
         inability because of the injury to engage in employment for which 
 
         the employee is fitted.  Loss of earnings caused by a job 
 
         transfer for reasons related to the injury is also relevant.  
 
         These are matters which the finder of fact considers collectively 
 
         in arriving at the determination of the degree of industrial 
 
         disability.
 
         
 
              There are no weighting guidelines that indicate how each of 
 
         the factors are to be considered.  There are no guidelines which 
 
         give, for example, age a weighted value of ten percent of the 
 
         total value, education a value of fifteen percent of total, 
 
         motivation - five percent; work experience - thirty percent, etc.  
 
         Neither does a rating of functional impairment directly correlate 
 
         to a degree of industrial disability to the body as a whole.  In 
 
         other words, there are no formulae which can be applied and then 
 
         added up to determine the degree of industrial disability.  It 
 
         therefore becomes necessary for the deputy or commissioner to 
 
         draw upon prior experience, general and specialized knowledge to 
 
         make the finding with regard to degree of industrial disability.  
 
         See Christensen v. Hagen, Inc., (Appeal Decision, March 26, 
 
         19-85); Peterson v. Truck Haven Cafe, Inc., (Appeal Decision, 
 
         February 28, 1985).
 
         
 
              Defendant argues in its brief on pages 8-9 that claimant is 
 
         poorly motivated to return to work because of the various monies 
 
         that he is currently receiving.  Defendant also points to 
 
         claimant's failure to look for work and his failure to return to 
 
         the job he was performing for Oscar Mayer at the time of his 
 
         injury.  Claimant counters that he is well-motivated to return to 
 
         work, but that his physical problems prevent him from doing so.  
 
         Phil Schumacher testified that at some point claimant decided not 
 
         to retire because he could not afford to live on the retirement 
 
         monies available to him at the time.  At the present time, 
 
         however, claimant is receiving about $1300 on a monthly basis.  
 

 
         
 
         
 
         
 
         
 
         SMELTZER V. OSCAR MAYER FOODS CORP.
 
         Page   9
 
         
 
         
 
         This deputy believes, and it will be found, that claimant, is 
 
         poorly motivated to return to work and that his various
 
              sources of income play a part in his motivational problems.  
 
         Claimant is not a good candidate for vocational rehabilitation at 
 
         this point and he is poorly educated.  Taking into account all 
 
         relevant factors, it is determined that claimant's industrial 
 
         disability is 20 percent.
 
         
 
                                   FINDINGS OF FACT
 
         
 
              1.  Claimant is 53 years old.
 
         
 
              2.  On March 8, 1984, claimant sustained a whole-body injury 
 
         while working for Oscar Mayer.
 
         
 
              3.  Claimant sustained some permanent partial impairment as 
 
         a result of his work injury of March 8, 1984.
 
         
 
              4.  The impairment that resulted from the work injury of 
 
         March 8, 1984 caused some loss of earning capacity.
 
         
 
              5.  Claimant did not complete high school.
 
         
 
              6.  Claimant is a poor candidate for rehabilitation.
 

 
         
 
         
 
         
 
         
 
         SMELTZER V. OSCAR MAYER FOODS CORP.
 
         Page  10
 
         
 
         
 
         
 
              7.  Claimant currently has an income of about $1300 per
 
              month from various sources.
 
         
 
              8.  Claimant has permanently separated from his Oscar Mayer 
 
         employment.
 
         
 
              9.  Claimant was a "master mechanic" at Oscar Mayer when he 
 
         last worked for this employer.
 
         
 
              10.  Claimant's job as master mechanic was available to him. 
 
         at the time of his separation or retirement from Oscar Mayer.
 
         
 
              11.  Claimant did not make a good faith effort to return to 
 
         work after his work-related injury of March 8, 1984.
 
         
 
              12.  Claimant's industrial disability is twenty percent 
 
         (20%).
 
         
 
              13.  Claimant's stipulated rate of weekly compensation is 
 
         two hundred forty-eight and 08/100 dollars ($248.08).
 
         
 
                             CONCLUSIONS OF LAW
 
         
 
              1.  Claimant established by a preponderance of the evidence 
 
         that there is a causal connection between his work-related injury 
 
         of March 8, 1984 and some disability.
 
         
 
              2.  Claimant has established by a preponderance of the 
 
         evidence that his industrial disability is twenty percent (20%).
 
         
 
                                    ORDER
 
         
 
              That defendant pay one hundred (100 ) weeks of permanent 
 
         partial disability benefits at a rate of two hundred forty-eight 
 
         and 08/100 dollars ($248.08) commencing on May 3, 1985.
 
         
 
              That defendant pay accrued benefits in a lump sum and pay 
 
         interest pursuant to section 85.30, The Code.
 
         
 
              That defendant be given credit for benefits already paid to 
 
         claimant.
 
         
 
              That defendant pay the costs of this action, pursuant to 
 
         Division of Industrial Services Rule 343-4.33, formerly 
 
         Industrial Commissioner Rule 500-4.33.
 
         
 
              That defendant shall file claim activity reports, pursuant 
 
         to Division of Industrial Services Rule 343-3.1(2), formerly 
 
         Industrial Commissioner Rule 500-3.1(2), as requested by the 
 
         agency.
 
         
 
                   Signed and filed this 31st day of December, 1986.
 
         
 
         
 
         
 
         
 
         
 

 
         
 
         
 
         
 
         
 
         SMELTZER V. OSCAR MAYER FOODS CORP.
 
         Page  11
 
         
 
         
 
                                  T.J. McSWEENEY
 
                                   DEPUTY INDUSTRIAL COMMISSIONER
 
         
 
         Copies to:
 
         
 
         Mr. David Drake
 
         Attorney at Law
 
         P.O. Box 367
 
         2141 Grand Ave.
 
         Des Moines, Iowa 50302
 
         
 
         Mr. Barry Moranville
 
         Attorney at  Law
 
         974 73rd Street, Suite 16
 
         Des Moines, Iowa 50312
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                                     1402.40; 1803
 
                                                     Filed 12-31-86
 
                                                     T. J. McSweeney
 
         
 
         
 
         
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         _________________________________________________________________
 
         
 
         WALTER L. SMELTZER,
 
         
 
              Claimant,
 
         
 
                                                  File No. 760113
 
         
 
         
 
          VS.                                  A R B I T R A T I 0 N
 
         
 
         
 
          OSCAR MAYER FOODS CORP.                D E C I S I 0 N
 
          
 
               Employer,
 
               Self-Insured,
 
               Defendant.
 
         _________________________________________________________________
 
         
 
         1402.40; 1803
 
         
 
         Held in arbitration that claimant materially aggravated a 
 
         preexisting condition and that his industrial disability was 20%.  
 
         His industrial disability was reduced because of lack of 
 
         motivation to return to work.  Claimant's job had been held open 
 
         for him after his injury but he did not make a good faith effort 
 
         to return to work to see if he could physically handle his job.
 
 
 
         
 
 
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                       BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         JAMES E. CROWLEY,
 
         
 
              Claimant,                             File No. 760351
 
         
 
         vs.                                          A P P E A L
 
         
 
         MEREDITH/BURDA CORPORATION,                D E C I S I O N
 
         
 
              Employer,
 
                                                       F I L E D
 
         and
 
                                                      JUN 22 1988
 
         TRAVELERS INSURANCE COMPANY,
 
                                             IOWA INDUSTRIAL COMMISSIONER
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
                            STATEMENT OF THE CASE
 
         
 
              Defendants appeal from an arbitration decision awarding 
 
         permanent partial disability benefits based on a 60 percent 
 
         impairment to the left foot.
 
         
 
              The record on appeal consists of the transcript of the 
 
         arbitration hearing; claimant's exhibits 1 through 15 and 
 
         defendants' exhibits A through S.  Both parties filed briefs on 
 
         appeal.
 
         
 
                                     ISSUES
 
         
 
              Defendants state the following issues on appeal:
 
         
 
                   Whether the Deputy erred in finding that Claimant 
 
              proved by a preponderance of the evidence that:
 
         
 
                   1.  Claimant sustained an injury arising out of his 
 
                       employment with Meredith/Burda in August in 1983; 
 
                       and,
 
         
 
                   2.  Claimant sustained an injury in the course of his 
 
                       employment with Meredith/Burda in August of 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 citations of law contained in the arbitration decision 
 
         are appropriate to the issues and evidence.
 
                                                
 
                                                         
 
         
 
                                  ANALYSIS
 
         
 
              Claimant's treating physicians, Doctors Fellows and 
 
         Cunningham, agree that claimant's left foot impairment is related 
 
         to his work injuries.  Although Dr. Hertko opined that claimant's 
 
         foot impairment was not the result of his work for defendant 
 
         employer, his opinion is not consistent with the record as a 
 
         whole.  The mere fact that claimant has not controlled his 
 
         diabetes adequately, does not preclude his recovery.  The greater 
 
         weight of evidence establishes that claimant sustained a material 
 
         aggravation of his preexisting condition.
 
         
 
                                FINDINGS OF FACT
 
         
 
              1.  Claimant has known that he was a diabetic since 1969.
 
         
 
              2.  Claimant has not maintained adequate control of his 
 
         diabetes.
 
         
 
              3.  Claimant was wearing safety shoes at work on July 28-30, 
 
         1983.
 
         
 
              4.  On July 30, 1983, claimant developed blisters on his 
 
         feet and on July 31, 1983 the blisters broke.
 
         
 
              5.  The blisters on the right foot healed, but the left foot 
 
         required numerous surgeries.
 
         
 
              6.  Claimant's left foot condition was diagnosed as chronic 
 
         draining osteomyelitis and neurotrophic ulcer.
 
         
 
              7.  Claimant sustained a stress fracture to the left foot 
 
         while he was climbing at work as a result of the weakened 
 
         condition of his foot.
 
         
 
              8.  Claimant suffers a 60 percent permanent impairment to 
 
         the left foot as a result of the injuries he sustained at work on 
 
         July 30, 1983.
 
         
 
              9.  Claimant's healing period ended on January 14, 1985.
 
         
 
              10.  Claimant's weekly rate of compensation is $342.14.
 
         
 
                              CONCLUSIONS OF LAW
 
         
 
              Claimant established by a preponderance of the evidence that 
 
         he sustained an injury that arose out of and in the course of his 
 
         employment with Meredith.
 
         
 
              Claimant established by a preponderance of the evidence that 
 
         there is a causal connection between claimant's work-related 
 
         injury and his asserted disability.
 
         
 
              WHEREFORE, the decision of the deputy is affirmed.
 
                                                
 
                                                         
 
         
 
                                      ORDER
 
         
 
              THEREFORE, it is ordered:
 
         
 
              That defendants pay healing period benefits from August 4, 
 
         1983 through September 7, 1983; from October 7, 1983 through June 
 
         6, 1984; and from July 23, 1984 through January 14, 1985, all at 
 
         a weekly rate of three hundred forty-two and 14/100 dollars 
 
         ($342.14).
 
         
 
              That claimant is entitled to ninety (90) weeks of permanent 
 
         partial disability benefits commencing on January 15, 1985, at a 
 
         weekly rate of three hundred forty-two and 14/100 dollars 
 
         ($342.14).
 
         
 
              That defendants pay accrued benefits in a lump sum and pay 
 
         interest pursuant to section 85.30, The Code.
 
         
 
              That defendants be given credit for benefits already paid to 
 
         claimant.
 
         
 
              That defendants pay the costs of this action including the 
 
         cost of the transcription of the arbitration hearing pursuant to 
 
         Division of Industrial Services Rule 343-4.33.
 
         
 
              That defendants shall file claim activity reports pursuant 
 
         to Division of Industrial Services Rule 343-3.1(2).
 
         
 
              Signed and filed this 22nd day of June, 1988.
 
         
 
         
 
         
 
         
 
         
 
                                               DAVID E. LINQUIST
 
                                            INDUSTRIAL COMMISSIONER
 
         
 
         Copies To:
 
         
 
         Mr. John R. Hearn
 
         Attorney at Law
 
         1300 Locust Street
 
         Des Moines, Iowa  50309
 
         
 
         Mr. Terry L. Monson
 
         Mr. Wade R. Hauser III
 
         Attorneys at Law
 
         100 Court Avenue
 
         Des Moines, Iowa  50309
 
 
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                                 1402.30; 1803
 
                                                 Filed June 22, 1988
 
                                                 David E. Linquist
 
         
 
                 BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         JAMES E. CROWLEY,
 
         
 
              Claimant,
 
                                                      File No. 760351
 
         vs.
 
         
 
         MEREDITH/BURDA CORPORATION,                    A P P E A L
 
         
 
              Employer,                               D E C I S I 0 N
 
         
 
         and
 
         
 
         TRAVELERS INSURANCE COMPANY,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         1402.30; 1803
 
         
 
              The greater weight of evidence established that claimant 
 
         sustained a material aggravation of his preexisting condition.
 
 
 
         
 
         
 
         
 
 
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                          1602 - 2204
 
                                          Filed June 13, 1990
 
                                          DAVID E. LINQUIST
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            SUZANNE K. WILLIAMS KOSTELAC  ,:
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :      File No. 760401
 
            FELDMAN'S, INC.,              :
 
                                          :        A P P E A L
 
                 Employer,                :
 
                                          :      D E C I S I O N
 
            and                           :
 
                                          :
 
            GREAT AMERICAN INSURANCE CO., :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
            1602
 
            Decedent's suicide was a result of wilfull injury.  The 
 
            standard to be used is whether the suicide was from a 
 
            "voluntary wilfull choice determined by a moderately 
 
            intelligent mental power which knows the purpose and 
 
            physical affect of the suicidal act."  Schofield v. White, 
 
            95 N.W.2d 40 (Iowa 1959).  In this case the suicide was 
 
            intentional and calculated.  The suicide took place at home 
 
            more than a full day after decedent last worked.  The 
 
            suicidal act was not the result of an uncontrollable impulse 
 
            or in a delirium of frenzy, without conscious volition to 
 
            produce death.  Decedent's suicide met the standard of the 
 
            affirmative defense.
 
            
 
            2204
 
            Claimant did not prove that her decedent suffered a 
 
            psychological work injury.  The psychiatrists' opinions in 
 
            this case were based upon a "psychological autopsy."  The 
 
            most reliable psychiatrist's opinion did not state that 
 
            decedent's major depressive disorder was probably caused by 
 
            work.  Also, it was impossible to tell if decedent was 
 
            subjected to more stress than that which all employees must 
 
            experience.
 
            
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            SUZANNE K. WILLIAMS KOSTELAC, :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :      File No. 760401
 
            FELDMAN'S, INC.,              :
 
                                          :          N U N C
 
                 Employer,                :
 
                                          :           P R O
 
            and                           :
 
                                          :          T U N C
 
            GREAT AMERICAN INSURANCE CO., :
 
                                          :         O R D E R
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            The appeal decision in this matter filed June 13, 1990 is 
 
            modified to read at page 8, the second full paragraph as 
 
            follows:
 
            Even if claimant had proved that the decedent had suffered 
 
            an injury that arose out of and in the course of his 
 
            employment, she may not recover if defendants can prove an 
 
            affirmative defense.  Under Iowa law benefits are not 
 
            allowed if defendants can prove the injury was result of 
 
            decedent's willful intent to injury himself.  The standard 
 
            to be used under Iowa law is whether the suicide was from a 
 
            "voluntary willful choice determined by a moderately 
 
            intelligent mental power which knows the purpose and 
 
            physical effect of the suicidal act."  See Schofield, 95 
 
            N.W.2d 40.  Again, Dr. Taylor's opinions are relied upon.  
 
            His opinions give a logical and reasonable explanation of 
 
            decedent's actions the day before and the day of the 
 
            suicide.  Decedent's suicide took place at his home on a day 
 
            on which it did not appear that he went to work.  There was 
 
            a calculated effort by decedent to take his own life.  
 
            Decedent's suicide meets the standard of the affirmative 
 
            defense.  Even if decedent had suffered an injury that arose 
 
            out of and in the course of employment, claimant's claim is 
 
            not allowed.
 
            Signed and filed this ______ day of June, 1990.
 
            
 
            
 
            
 
            
 
                                         _____________________________
 
                                               DAVID E. LINQUIST
 
                                            INDUSTRIAL COMMISSIONER
 
            
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            Copies To:
 
            
 
            Mr. Charles T. Patterson
 
            Ms. Judith Ann Higgs
 
            Attorneys at Law
 
            200 Home Federal Building
 
            P.O. Box 3086
 
            Sioux City, Iowa 51102
 
            
 
            Mr. Jack W. Rogers
 
            Mr. David Shinkle
 
            Attorneys at Law
 
            100 Court Avenue, Ste. 203
 
            Des Moines, Iowa 50309