BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         KAREN KISTLER,
 
         
 
              Claimant,                             File No. 764556
 
         
 
         VS.
 
                                                A R B I T R A T I 0 N
 
         
 
         MONTGOMERY WARD,
 
                                                   D E C I S I 0 N
 
              Employer,
 
         
 
         and
 
         
 
         AETNA CASUALTY & SURETY,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         
 
                              STATEMENT OF THE CASE
 
         
 
              This is a proceeding in arbitration brought by Karen 
 
         Kistler, claimant, against Montgomery Ward, employer, and Aetna 
 
         Casualty & Surety Company, insurance carrier, to recover benefits 
 
         under the Iowa Workers' Compensation Act as a result of an injury 
 
         sustained May 5, 1984.  This matter came on for hearing before 
 
         the undersigned deputy industrial commissioner October 1, 1987.  
 
         The record was considered fully submitted at the close of the 
 
         hearing.  The record in this case consists of the testimony of 
 
         the claimant and Larry Kistler, her husband; claimant's exhibits 
 
         1 through 9, inclusive, and defendants' exhibit A.
 
         
 
                                      ISSUES
 
         
 
              Pursuant to prehearing report and order approved October 1, 
 
         1987, the issues which remain for decision are:
 
         
 
              1.  Whether the claimant's work injury is the cause of any 
 
         permanent disability, and, if so, the extent thereof;
 
         
 
              2.  Whether claimant is entitled to additional temporary 
 
         total disability/healing period benefits for the period from 
 
         December 31, 1985 to and including May 21, 1986; and
 
         
 
              3.  The appropriateness of certain medical expenses under 
 
         Iowa Code section 85.27.
 
         
 
                                 FACTS PRESENTED
 
         
 
              Claimant testified she was working for defendant employer 
 
         Montgomery Ward on May 5, 1984 as a sales clerk and sustained an 
 
         injury which arose out of and in the course of employment when 
 
         she fell down approximately six steps while carrying a box of 
 
         jeans weighing about 60 pounds.  She recalled she landed on the 
 

 
         
 
         
 
         
 
         KISTLER V. MONTGOMERY WARD
 
         Page   2
 
         
 
         
 
         left side of her back and felt a burning sensation in her neck.  
 
         Claimant was sent to the mall's clinic and, after x-rays, was 
 
         sent home.  Her symptoms did not dissipate but, she felt, 
 
         worsened as the pain began radiating down her back and arm and 
 
         she began to have headaches.  After a few days off,work, claimant 
 
         was directed to see her own doctor who treated her with 
 
         medications.  Even though claimant returned to work June 11, 
 
         1984, she did not feel her family doctor was providing her relief 
 
         from her symptoms and, therefore, on her own initiative, went to 
 
         see David W. Seitz, D.O.
 
         
 
              Claimant testified she was off work again August 5, 1984 and 
 
         began treating with Dr. Seitz on August 7.  Claimant explained 
 
         that after therapy at River Rehabilitation on referral from Dr. 
 
         Seitz she was released to return to work full time September 25, 
 
         1984.  Claimant stated she began to feel better but, on December 
 
         21, 1984, while on her way to see Dr. Seitz, fell on the ice and 
 
         her left leg ended up under her buttocks causing pain.  Claimant 
 
         remained off work again beginning December 28, 1984 through 
 
         February 23, 1985.  She explained that during this period, she 
 
         was moving some furniture at home which set off an increase in 
 
         the pain she was feeling in her back.  Claimant continued 
 
         treating with Dr. Seitz after her return to work and was referred 
 
         by him to Charles F. Andrews, D.O., in April 1985.  Claimant 
 
         testified that by December 1985, she was feeling more and more 
 
         pain and could not perform her job.  She remained off work again 
 
         from December 31, 1985 through May 21, 1986, when she was 
 
         released to return to work by Dr. Andrews.  Claimant explained 
 
         her doctors wanted her to remain off for a full year but, for 
 
         financial reasons, she needed to return to work.
 
         
 
              Claimant stated that in November 1986, she began treating 
 
         with Dennis P. Lopez, D.C., and was still under his care at the 
 
         time of the hearing.  She did not return to see Dr. Andrews after 
 
         she was released to return to work as she felt he had done as 
 
         much as he could to help her.  Claimant also acknowledged she saw 
 
         Richard R. Ripperger, M.D., on February 18, 1985 and again on 
 
         March 5, 1985, at the request of defendants.  Claimant did not 
 
         wish to continue treating with Dr. Ripperger because of his 
 
         recommendation that she take cortisone shots and because of his 
 
         diagnosis of obesity.  She maintained Dr. Ripperger told her 
 
         after the second visit she did not have to return for any further 
 
         care.  Claimant admitted she was advised by defendants that they 
 
         would no longer pay for medical care if she did not return to see 
 
         Dr. Ripperger.
 
              Claimant testified that since she began seeing Dr. Lopez she 
 
         is better.  She perceives some burning in her neck/shoulders 
 
         which goes into pain in her lower back on occasion.  Claimant 
 
         explained she has difficulty remaining on her feet all day but 
 
         admitted that since she returned to work she is able to perform 
 
         all of her responsibilities.  She explained, however, that in 
 
         February 1987, she transferred into her employer's fine jewelry 
 
         department which does not require her to handle stock, freight, 
 
         or move merchandise.  Claimant stated she acquired her GED last 
 
         year and attempted to attend barber college but did not feel she 
 
         could handle the standing that would be required.
 
         
 
              Barry Kistler testified claimant has not been active since 
 
         her injury and, in essence, has become a "couch potato."  He 
 

 
         
 
         
 
         
 
         KISTLER V. MONTGOMERY WARD
 
         Page   3
 
         
 
         
 
         explained he feels he has to listen to claimant's complaints of 
 
         pain all the time.
 
         
 
              David 0. Seitz, D.O., testified by deposition that his 
 
         initial contact with claimant was on August 7, 1984, when she 
 
         appeared at his office without referral.  Initially, Dr. Seitz 
 
         noted claimant's only complaints involved the thoracic and 
 
         cervical area but, after beginning treatment, she complained of 
 
         some discomfort in the low back radiating into the upper thigh.  
 
         Claimant was treated with a program of osteopathic manipulation 
 
         treatments, nonsteriodial anti-inflammatory, analgesics and 
 
         muscle relaxants.  Dr. Seitz notes that by the end of 1984 it was 
 
         elected to keep claimant off work for two or three months.  Of 
 
         claimant's fall in the driveway at home on December 21, 1984, Dr. 
 
         Seitz noted that claimant's pain pattern was essentially 
 
         unchanged; and, of her actions in moving furniture on January 10, 
 
         1985, he noted that that seemed to aggravate the pain in the low 
 
         back and lumbar spine.  Dr. Seitz acknowledges claimant was 
 
         referred to Dr. Andrews April 9, 1985, when no improvement was 
 
         noted.  After the referral, claimant was not seen again until 
 
         July 30, 1985, when she wanted a release to return to work with a 
 
         ten pound weight restriction and then not again until October 28, 
 
         1985, when he recommended to her that she remain off work for one 
 
         year and, if the pain persisted, she would need to consider 
 
         changing jobs.  Dr. Seitz testified he last saw claimant on March 
 
         3, 1986, when he came into her office stating she had no 
 
         significant pain, wanted to return to school part time and needed 
 
         to return to work.  He explained he consulted with Dr. Andrews 
 
         who opined that returning to work would not be a wise thing for 
 
         claimant to do and that she should, in fact, continue to remain 
 
         off for the period of a year and reevaluate it at that time.
 
         
 
              Charles F. Andrews, D.O., first saw claimant April 18, 1985, 
 
         when she was referred for manipulative therapy treatments.  
 
         Claimant was seen regularly through 1985 and complained to Dr. 
 
         Andrews on February 4, 1986, of three weeks of recurring back 
 
         pain.  On February 11, 1986, Dr. Andrews reported that claimant 
 
         stated her back was better but by April 1, 1986, had begun to 
 
         have pain into her left leg.  Claimant was last seen by Dr. 
 
         Andrews May 15, 1986 when claimant reported that she had had some 
 
         occasional pains but was going to go back to work.  On June 20, 
 
         1986, Dr. Andrews concludes:  "My impression is that Karen has a 
 
         chronic reccurent [sic] low back strain which should improve over 
 
         a period of time with treatments, physical conditioning, weight 
 
         loss and to avoid lifting and pushing while having difficulty." 
 
         (Claimant's Exhibit 5)
 
         
 
              Claimant was seen by Richard R. Ripperger, M.D., on February 
 
         18, 1985, whose impression, after examination, was low back 
 
         strain without sciatica.  Dr. Ripperger's notes reflect a poor 
 
         diagnosis because of obesity and very poor conditioning.  
 
         Claimant was seen again March 5, 1985, at which time left greater 
 
         trochanteric bursitis was noted and an injection of cortisone 
 
         into the bursa of this region was recommended.  At this time, Dr. 
 
         Ripperger noted he had no further diagnostic or therapeutic 
 
         measure to recommend and on May 6, 1985, he opined "On the basis 
 
         of her clinical examination, x-rays and CT scan, I would rate the 
 
         percent of permanent physical impairment and loss of physical 
 
         function to be zero.O (Cl. Ex. 4)
 

 
         
 
         
 
         
 
         KISTLER V. MONTGOMERY WARD
 
         Page   4
 
         
 
         
 
         
 
              Dennis P. Lopez, D.C., reports that claimant has been 
 
         treated from November 24, 1986 to the present with specific 
 
         chiropractic manipulations; lumbar intersegmental distraction or 
 
         specific long lever distraction to specific lumbar motor units.  
 
         At the time of his report on June 24, 1987, Dr. Lopez opines that 
 
         claimant has reached maximum medical rehabilitation and that 
 
         claimant has sustained a five percent impairment of the "whole 
 
         man."
 
         
 
                                  APPLICABLE LAW
 
         
 
              An employee is entitled to compensation for any and all 
 
         personal injuries which arise out of and in the course of the 
 
         employment.  Section 85.3(l).
 
         
 
              The claimant has the burden of proving by a preponderance of 
 
         the evidence that the injury of May 5, 1984 is causally related 
 
         to the disability on which she now bases her claim.  Bodish v. 
 
         Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867 (1965).  Lindahl v. 
 
         L. 0. Boggs, 236 Iowa 296, 18 N.W.2d 607 (1945).  A possibility 
 
         is insufficient; a probability is necessary.  Burt v. John Deere 
 
         Waterloo Tractor Works, 247 Iowa 691, 73 N.W.2d 732 (1955).  The 
 
         question of causal connection is essentially within the domain of 
 
         expert testimony.  Bradshaw v. Iowa Methodist Hospital, 251 Iowa 
 
         375, 101 N.W.2d 167 (1960).
 
         
 
              However, expert medical evidence must be considered with all 
 
         other evidence introduced bearing on the causal connection.  
 
         Burt, 247 Iowa 691, 73 N.W.2d 732.  The opinion of experts need 
 
         not be couched in definite, positive or unequivocal language.  
 
         Sondag v.
 
         Ferris Hardware, 220 N.W.2d 903 (Iowa 1974).  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).
 
         
 
              Iowa Code section 85.27 states, in part:
 
         
 
              The employer, for all injuries compensable under this 
 
              chapter or chapter 85A, shall furnish reasonable surgical, 
 
              medical, dental, osteopathic, chiropractic, podiatric, 
 
              physical rehabilitation, nursing, ambulance and hospital 
 
              services and supplies therefor and shall allow reasonably 
 
              necessary transportation expenses incurred for such 
 
              services.  The employer shall also furnish reasonable and 
 
              necessary crutches, artificial members and appliances but 
 
              shall not be required to furnish more than one set of 
 
              permanent prosthetic devices.
 
         
 
              Iowa Code section 85.33(l) states, in part:
 
         
 
              Except as provided in subsection 2 of this section, the 
 
              employer shall pay to an employee for injury producing 
 
              temporary total disability weekly compensation benefits, as 
 

 
         
 
         
 
         
 
         KISTLER V. MONTGOMERY WARD
 
         Page   5
 
         
 
         
 
              provided in section 85.32, until the employee has returned 
 
              to work or is medically capable of returning to employment 
 
              substantially similar to the employment in which the 
 
              employee was engaged at the time of injury, whichever occurs 
 
              first.
 
         
 
         
 
                                     ANALYSIS
 
         
 
              Of first concern is whether or not claimant has sustained 
 
         any disability as a result of her fall on May 5, 1984.  A 
 
         disability may be either temporary or permanent.  In the case of 
 
         temporary disability, the claimant must establish that the work 
 
         injury was the cause of absence from work and lost earnings 
 
         during a period of recovery from the injury.  Generally, a claim 
 
         of permanent disability invokes an initial determination of 
 
         whether the work injury was a cause of permanent physical 
 
         impairment or permanent limitation in work activity.  By the very 
 
         meaning of the phrase, a person with a "permanent disability" can 
 
         never return to the same physical condition he or she had prior 
 
         to the injury.  Armstrong Tire & Rubber Company v. Kubli, 312 
 
         N.W.2d 60, 65 (Iowa 1981), citing 2A Larson, The Law of Workmen's 
 
         Compensation, section 67.12 (1981).
 
         
 
              With the exception of Dr. Lopez who began treating claimant 
 
         in November 1986, no medical practitioner who treated or 
 
         evaluated claimant provides any impairment rating.  Medical 
 
         records of Dr. Oshann, who saw claimant immediately after her 
 
         injury, were not submitted in evidence.  Dr. Seitz, who saw 
 
         claimant from August 1984 until March 1986, renders no opinion on 
 
         any permanent impairment.  Dr. Andrews' prognosis was that 
 
         claimant's condition would improve over a period of time.  
 
         Richard Ripperger, M.D., an orthopedic surgeon, rates claimant's 
 
         permanent impairment as zero based on AMA Guidelines.  Both Dr. 
 
         Andrews and Dr. Ripperger opine that long-term result with 
 
         respect to claimant's back would hinge on proper conditioning and 
 
         weight loss.  These physicians saw claimant nearer to the time of 
 
         her accident.  By the time Dr. Lopez began treating claimant, a 
 
         significant amount of time had lapsed since her accident.  
 
         Further, the report of Dr. Lopez, found at claimant's exhibit 6, 
 
         does not refer to any causal connection between the impairment 
 
         rating given and the claimant's accident of May 5, 1984.  
 
         Although claimant has now changed positions with Montgomery Ward 
 
         so that she no longer is required to handle stock, freight or 
 
         move merchandise, she acknowledged that when she returned to work 
 
         in May 1986, she was able to perform all of the aspects of her 
 
         job as a sales clerk including handling stock, freight, and 
 
         moving merchandise.  When Dr. Andrews released claimant on May 
 
         15, 1986, he does not note she was under any restrictions other 
 
         than to avoid lifting and pushing when having difficulty.  This 
 
         appears to to the undersigned to be more in the nature of 
 
         practical advice rather than strict medical restrictions.  It is 
 
         not believed claimant has met her burden of proof that she has 
 
         sustained a permanent disability.  Rather, the greater weight of 
 
         evidence shows claimant has sustained neither a permanent 
 
         impairment nor a permanent disability.  The record fails to 
 
         establish claimant can never return to the condition she was once 
 
         in.  At most, claimant has established a temporary disability for 
 
         which she is entitled to be compensated.  On the advice of her 
 

 
         
 
         
 
         
 
         KISTLER V. MONTGOMERY WARD
 
         Page   6
 
         
 
         
 
         physicians, claimant remained off work from May 5, 1984 through 
 
         June 10, 1984, August 5, 1984 through September 25, 1984, 
 
         December 28, 1984 through February 23, 1985, and December 31, 
 
         1985 through May 21, 1986.  As a result of her injury on May 5, 
 
         1984, claimant was unable to work during these periods and is 
 
         therefore entitled to temporary total disability benefits 
 
         pursuant to Iowa Code section 85.33(l) during each of these 
 
         periods of time.
 
         
 
              Claimant clearly did not seek the permission of defendants 
 
         to see Dr. Lopez.  She acknowledged by her testimony that she was 
 
         advised by defendants that Dr. Ripperger had been designated as 
 
         the treating physician.  Claimant did not seek alternate medical 
 
         care pursuant to the provisions allowed under Iowa Code section 
 
         85.27.  Therefore, her request for payment for the medical bills 
 
         incurred with Dr. Lopez must be and is hereby denied.  Evidence 
 
         establishes that defendants have paid the medical bills incurred 
 
         with Dr. Seitz and defendants therefore have acquiesced in that 
 
         medical care.  Since Dr. Seitz referred claimant to Dr. Andrews 
 
         and defendants continued to pay the medical expenses incurred by 
 
         his care, defendants shall be liable for all costs incurred as a 
 
         result of his care including $120.42 in medication.
 
         
 
                                 FINDINGS OF FACT
 
         
 
              Wherefore, based on the evidence presented, the following 
 
         facts are found:
 
         
 

 
         
 
         
 
         
 
         KISTLER V. MONTGOMERY WARD
 
         Page   7
 
         
 
         
 
              1.  Claimant sustained an injury arising out of and in the 
 
         course of her employment on May 5, 1984 when she fell while 
 
         carrying merchandise.
 
         
 
              2.  Claimant sought treatment first with her own family 
 
         doctor, then with Dr. David Seitz, who referred her to Dr. 
 
         Charles Andrews.
 
         
 
              3.  Claimant was unable to work as a result of her injury 
 
         for the periods from May 5, 1984 through June 10, 1984, August 5, 
 
         1984 through September 25, 1984, December 28, 1984 through 
 
         February 23, 1985, and December 31, 1985 through May 21, 1986.
 
         
 
              4.  When claimant returned to work in May 1986, she was able 
 
         to perform all aspects of the job she held at the time of her 
 
         injury.
 
         
 
              5.  Neither Dr. Seitz nor Dr. Andrews provide any permanent 
 
         impairment rating.
 
         
 
              6.  Dr. Ripperger, who saw claimant on two occasions, rates 
 
         claimant as zero percent impaired.
 
         
 
              7.  Dr. Lopez, chiropractor, rates claimant five percent 
 
         impaired but gives no indication of any causal connection in his 
 
         report.
 
         
 
              8.  Claimant is currently under no medical restrictions 
 
         other than to avoid lifting and pushing when having difficulty 
 
         with her back.
 
         
 
              9.  Claimant did not seek permission to change medical care 
 
         to treat with Dr. Lopez.
 
         
 
             10.  Claimant has not suffered any permanent impairment to 
 
         her back as a result of her fall.
 
         
 
                                CONCLUSIONS OF LAW
 
         
 
              Wherefore, based on the principles of law previously stated, 
 
         the following conclusions of law are made.
 
         
 
              1.  Claimant has established her entitlement to temporary 
 
         total disability benefits for the period from December 31, 1985 
 
         to and including May 21, 1986.
 
         
 
              2.  Claimant has not established she sustained any permanent 
 
         disability as a result of her injury.
 
         
 
              3.  Claimant is entitled to payment for medical expenses 
 
         incurred with Dr. Charles Andrews.
 
         
 
              4.  Claimant has not established entitlement to payment for 
 
         medical expenses incurred with Dr. Dennis Lopez.
 
         
 
         
 
                                      ORDER
 
         
 
              THEREFORE, IT IS ORDERED:
 

 
         
 
         
 
         
 
         KISTLER V. MONTGOMERY WARD
 
         Page   8
 
         
 
         
 
         
 
              Defendants are to pay unto claimant twenty point two hundred 
 
         eight-six (20.286) weeks of temporary total disability benefits 
 
         at the stipulated rate of eighty-six and 30/100 dollars ($86.30) 
 
         per week.
 
         
 
              Defendants are to pay all disputed medical expenses incurred 
 
         with Dr. Andrews.
 
         
 
              Temporary total disability benefits shall be paid in a lump 
 
         sum together with statutory interest thereon pursuant to Iowa 
 
         Code section 85.30.
 
         
 
              A claim activity report shall be filed upon payment of this 
 
         award.
 
         
 
              Costs of this action are assessed against defendants 
 
         pursuant to Division of Industrial Services Rule 343-4.33.
 
         
 
         
 
              Signed and filed this 15th day of January, 1988.
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
                                           DEBORAH A. DUBIK
 
                                           DEPUTY INDUSTRIAL COMMISSIONER
 
         
 
         
 
         
 
         
 
         
 
         Copies to:
 
         
 
         Mr. Randy J. Hohenadel
 
         Attorney at Law
 
         617 Brady Street
 
         Davenport, Iowa 52803
 
         
 
         Mr. Larry L. Shepler
 
         Attorney at Law
 
         111 East Third Street
 
         600 Union Arcade Building
 
         Davenport, Iowa 52801-1550
 
 
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                                       1402.4; 1402.6
 
                                                       Filed 1-15-88
 
                                                       Deborah A. Dubik
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         KAREN KISTLER,
 
         
 
              Claimant,                             File No. 764556
 
         
 
         VS.
 
                                                A R B I T R A T I 0 N
 
         MONTGOMERY WARD,
 
                                                   D E C I S I 0 N
 
              Employer,
 
         
 
         and
 
         
 
         AETNA CASUALTY & SURETY,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         
 
         1402.4
 
         
 
              Claimant was injured in a fall at work.  She established her 
 
         entitlement to temporary total disability benefits but failed to 
 
         establish any permanent impairment or permanent limitation in 
 
         work activity which would entitle her to an award of permanent 
 
         partial disability.
 
         
 
         1402.6
 
         
 
              Claimant failed to establish entitlement to payment for 
 
         medical expenses incurred with unauthorized physician where 
 
         record did not establish claimant voiced her objections to the 
 
         care provided or that the unauthorized treatment was reasonable, 
 
         necessary or improved claimant's condition.
 
         
 
         
 
         
 
 
 
 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         PAUL A. HIKE,.JR.,
 
         
 
              Claimant,
 
         
 
         vs.                                       File No. 764571
 
                                                            776652
 
         IBP, INC.,
 
                                                A R B I T R A T I O N
 
              Employer,
 
              Self-Insured,                        D E C I S I O N
 
         
 
         and
 
         
 
         WEBSTER CONSTRUCTION CO.,
 
                                                      F I L E D
 
              Employer,
 
                                                     NOV 3 1989
 
         and
 
                                                 INDUSTRIAL SERVICES
 
         AETNA CASUALTY & SURETY
 
         COMPANY,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
                              STATEMENT OF THE CASE
 
         
 
              These are proceedings in arbitration brought by claimant 
 
         Paul A. Hike, Jr., against self-insured defendant employer IBP, 
 
         Inc., (764571), defendant employer Webster Construction Company, 
 
         and its insurance carrier Aetna Casualty & Surety Company 
 
         (776652) to recover benefits under the Iowa Workers' Compensation 
 
         Act as the result of injuries allegedly sustained on May 10, 1984 
 
         (764571) and October 3, 1984 (776652).  Each alleged injury was 
 
         to the right shoulder.  These matters came on for hearing before 
 
         Deputy Industrial Commissioner Garry Woodward in Storm Lake, 
 
         Iowa, on April 5, 1988.  The matter was considered fully 
 
         submitted at the close of hearing, although all parties 
 
         subsequently filed briefs.
 
         
 
              The record in this proceeding consists of claimant's 
 
         exhibits 1 through 6, IBP exhibits 1 through 24 (the record is a 
 
         little unclear, but it appears that exhibit 23 was admitted for 
 
         the limited purpose of impeachment), Webster Construction 
 
         exhibits A through I, all inclusive, and the testimony of 
 
         claimant, Lisa Brockway and Scott Demers.  In addition, Deputy 
 
         Woodward took official notice of the agency file in both cases.
 
         
 
              After the record was closed, Deputy Woodward discontinued 
 
         his employment with the Industrial Commissioner.  By Order of the 
 
         Industrial Commissioner entered July 22, 1988, jurisdiction of 
 
         these matters for the purpose of preparing and filing a proposed 
 
         agency decision was transferred to the undersigned.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
                                      ISSUES
 
         
 
              Pursuant to the prehearing report submitted by the parties 
 
         (but apparently not approved by the deputy at hearing or later) 
 
         in case number 764571, the parties have stipulated:  That an 
 
         employment relationship existed between claimant and employer at 
 
         the time of the alleged injury; that claimant sustained an injury 
 
         on May 10, 1984, arising out of and in the course of that 
 
         employment; that the injury caused temporary disability during a 
 
         period of recovery; that the fees charged for medical services or 
 
         supplies are fair and reasonable; that defendant does not seek 
 
         credit for payments under Iowa Code section 85.38(2); that 
 
         defendant paid claimant 10 2/7 weeks of compensation at the rate 
 
         of $186.85 prior to hearing.
 
         
 
              The following issues in case number 764571 are presented for 
 
         determination:  Whether the work injury caused permanent 
 
         disability; the extent of claimant's entitlement to compensation 
 
         for healing period and permanent disability; whether, if 
 
         claimant's injury is found to have caused permanent disability, 
 
         the injury is a scheduled member disability or an industrial 
 
         disability to the body as a whole; the commencement date for 
 
         permanent partial disability, if awarded; the appropriate rate of 
 
         weekly compensation; the extent of claimant's entitlement to 
 
         medical benefits; taxation of costs.
 
         
 
              Defendant IBP also asserted as an affirmative defense Iowa 
 
         Code sections 85.39 and 85.27 as to authorization of medical 
 
         expenses.  However, the undersigned is of the view that the 
 
         burden of proof of entitlement on these issues remains with 
 
         claimant.
 
         
 
              Pursuant to the prehearing report submitted by the parties 
 
         (but apparently not approved by the deputy) in case number 
 
         776652, the parties have stipulated:  That an employment 
 
         relationship existed between claimant and employer at the time of 
 
         the alleged injury; that the appropriate rate of weekly 
 
         compensation is $174.78 per week; that affirmative defenses are 
 
         not applicable; that the fees charged for medical services or 
 
         supplies are fair and reasonable and incurred for reasonable and 
 
         necessary treatment; that defendants do not seek credit under 
 
         Iowa Code section 85.38(2); that defendants paid claimant one day 
 
         of compensation at the stipulated rate prior to hearing.
 
         
 
              The following issues in case number 776652 are presented for 
 
         determination:  Whether claimant sustained an injury on October 
 
         3, 1984, arising out of and in the course of his stipulated 
 
         employment; whether the alleged injury caused temporary or 
 
         permanent disability and the extent thereof; whether the injury, 
 
         if found to have caused permanent disability, is an industrial 
 
         disability or a scheduled member disability; the commencement 
 
         date for permanent disability, if awarded; the extent of 
 
         claimant's entitlement to medical benefits; taxation of costs.
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
                              REVIEW OF THE EVIDENCE
 
         
 
              Claimant gave extensive testimony through his appearance as 
 
         a witness and the introduction of his deposition taken October 
 
         26, 1987.  Claimant's credibility was attacked through 
 
         cross-examination and in the brief submitted by defendant IBP.  
 
         Because this case was transferred to a deputy industrial 
 
         commissioner other than the deputy who heard the case, claimant's 
 
         demeanor cannot be used as a factor in evaluating his 
 
         credibility.  Rather, only errors or inconsistencies in his 
 
         testimony or specific impeachable facts, such as conviction for a 
 
         crime such as perjury, are valid indices of claimant's 
 
         credibility.  There are examples of prior inconsistent statements 
 
         in the record (for example, at least two physicians report 
 
         claimant's version of how this employment relationship came to an 
 
         end as inconsistent with the undisputed trial testimony that he 
 
         was discharged for absenteeism; however, even there, claimant 
 
         also indicated in his testimony that he believed he had actually 
 
         been discharged because of his injury).  Claimant has made errors 
 
         or misstatements of fact. However, the only incident that truly 
 
         troubles the writer is that claimant knowingly failed to notify 
 
         the Department of Human Services of income at a time that he was 
 
         receiving welfare benefits.  On the other hand, claimant 
 
         forthrightly admitted to this in his testimony, even though he 
 
         was presumably aware that this conduct is arguably criminal.  
 
         Nonetheless, a review of claimant's testimony as a whole is 
 
         consistent with the documentary evidence in the case and his 
 
         testimony as to the most salient issues is internally consistent 
 
         and hangs together well as a unified whole.  On balance, the 
 
         undersigned finds insufficient reason to discount claimant's 
 
         testimony on the basis of credibility.
 
         
 
              Claimant and IBP have stipulated that claimant sustained an 
 
         injury on May 10, 1984, arising out of and in the course of his 
 
         employment.  Claimant described his injury as somewhat cumulative 
 
         in nature, but culminating in a specific incident.  He testified 
 
         that before May 10 his shoulder had "started popping and swelling 
 
         up all the time and bothering me" (transcript, page 13); however, 
 
         on May 10 he suffered a much worse incident while throwing a pork 
 
         belly to the work station above him.  Although claimant was 
 
         supposed to curl pork bellies that still retained ribs and place 
 
         them on a table next to him, claimant apparently was not aware of 
 
         this preferred procedure and commonly threw such bellies back to 
 
         the work station above him.
 
         
 
              The videotape introduced as IBP exhibit 24 shows an 
 
         individual working at a conveyor belt at approximately waist 
 
         height.  To his immediate left is a sloped ramp or chute 
 
         descending from a higher conveyor belt, perhaps slightly over the 
 
         worker's head in height.  The job entails using a meat hook and 
 
         the other hand to maneuver pork bellies into a proper position to 
 
         be cut by an immediately adjacent saw or blade.  Claimant 
 
         described using the shadow cast by a string as a guide for 
 
         positioning the pork bellies.  On the videotape, occasionally 
 
         pork bellies would bunch up or get hung up on the chute; this 
 
         required additional. maneuvering by the worker.  Although the 
 
         film was of approximately 10 minutes' duration (it was not 
 
         timed), the worker did not appear to reject any pork bellies 
 
         while on camera. However, there were several pork bellies already 
 
         on a table to his immediate right, presumably for pork bellies 
 
         containing ribs or abscesses (claimant's job involved rejecting 
 
         any such bellies); at one point when there was a brief gap in the 
 
         line, the worker reached and took one of those bellies to place 
 
         back into the line.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              IBP nurse's notes of the date of injury show that claimant 
 
         complained of a right shoulder injury:
 
         
 
              Turns Fat Bellies--Throws belly up it shoulder cracked.
 
              Unable to extend arm.
 
         
 
              This report is consistent with claimant's testimony.  
 
         Claimant indicated that he went to the first aid office and after 
 
         a brief examination by the nurse was referred to the local 
 
         hospital. Claimant first saw A. Ames, M.D.  Emergency room notes 
 
         by Dr. Ames report acute strain of the right shoulder with full 
 
         motion, although pain.  Claimant had good strength and no 
 
         numbness of the hands or wrist.  Claimant then visited the Buena 
 
         Vista Clinic several times over the next few days.  Records of 
 
         the clinic show that claimant was taken off work immediately.  
 
         Claimant was returned to light work May 21, 1984.  He took work 
 
         in the laundry room which he did with his left arm.  He continued 
 
         in that position until later given an August 13, 1984 
 
         unrestricted return to work by John J. Dougherty, M.D.  Claimant 
 
         returned to work as a floor janitor and helped train another 
 
         employee until discharged September 17, 1984, after an incident 
 
         of absenteeism.
 
         
 
              Claimant was given conservative treatment by W. Erps, M.D., 
 
         of the Buena Vista Clinic.  This included physical therapy and a 
 
         sling.  Claimant still complained of pain on May 31, 1984, so a 
 
         referral appointment was made with John J. Dougherty, M.D., for 
 
         June 7.  On July 26, the office made another appointment with Dr. 
 
         Dougherty for July 30.  Claimant was not seen again by the Buena 
 
         Vista clinic or Dr. Erps until October 4, 1984.  Notes at that 
 
         time show that claimant was having intermittent problems with his 
 
         shoulder since the injury and that the shoulder had started 
 
         hurting again while claimant was working for a different company 
 
         (Webster Construction) on October 2, 1984.  Claimant was taken 
 
         off work until October 8, 1984.
 
         
 
              Dr. Dougherty's notes of June 7, 1984 show that claimant 
 
         continued to complain of pain and that he was tender over the 
 
         acromioclavicular (hereafter AC) joint.  Claimant's strength and 
 
         grip were okay, but he was bothered by flexion and extension.  
 
         Dr. Dougherty was unable to demonstrate any subluxation and found 
 
         x-rays of the shoulder normal.  Claimant was initially treated 
 
         with medication and a shoulder immobilizer.  Dr. Dougherty's 
 
         initial impression was of probable strain to the rotator cuff and 
 
         he reported this to Dr. Erps on June 11, 1984.
 
         
 
              Dr. Dougherty saw claimant again on June 18.  He continued 
 
         to complain of pain and Dr. Dougherty was "not so sure he doesn't 
 
         have a little anterior subluxation compared to the other side.  
 
         He does crepitate."
 
         
 
              Claimant was seen again on June 28.  Although reportedly 
 
         tender, he had good flexion, although showing some crepitation 
 
         upon internal and external rotation.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              Claimant was seen again on July 12 with similar symptoms and 
 
         a good range of motion.  Claimant was seen again on July 30.  He 
 
         had some discomfort on extension and some discomfort in the 
 
         rotator cuff.  Dr. Dougherty was again unable to demonstrate 
 
         subluxation, but continued to note that "he kind of crepitates 
 
         some."
 
         
 
              When claimant was seen on August 13, 1984, he was getting 
 
         along much better.  He was minimally tender with no real 
 
         crepitation.  Strength and range of motion were okay.  He was 
 
         given an unrestricted return to work and released on a PRN basis. 
 
         Dr. Dougherty did not see claimant again until June 30, 1987.
 
         
 
              Claimant testified that he requested the unrestricted return 
 
         to work because a nurse at IBP had told him that he either had to 
 
         return to work or be discharged.  However, it should be noted 
 
         that claimant has given multiple versions of how his employment 
 
         relationship with IBP actually came to an end.
 
         
 
              In any event, claimant was discharged by IBP and almost 
 
         immediately took employment with defendant Webster Construction 
 
         Company.  This position involved in part constructing concrete 
 
         walls by the use of metal forms.  Claimant testified that when he 
 
         accepted this position, his shoulder was still bothering him from 
 
         the IBP injury:  "It was still swelling up all the time and 
 
         popping out of place."  (Transcript, page 22).
 
         
 
              Claimant described his alleged October 3, 1984 injury as 
 
         occurring while he was carrying these forms or pans to be stacked 
 
         when the shoulder joint "popped out."  Claimant repeatedly 
 
         testified that he had had the same experience on numerous 
 
         previous occasions:
 
         
 
              Q.  The injury that you had talked about in October while at 
 
              Webster Construction had happened previously, too, though, 
 
              hadn't it?
 
         
 
              A.  Yes.
 
         
 
              Q.  In fact, your shoulder had popped in the same manner 
 
              many times while at IBP?
 
         
 
              A.  Yes.
 
         
 
              Q.  When it popped at Webster Construction Company, the pain 
 
              in your shoulder wasn't any different than it was at IBP, 
 
              was it?
 
         
 
              A.  No.
 
         
 
              Q.  Was the pain any more intense or less intense?
 
              
 
              A.  No, the same.
 
              
 

 
              
 
 
 
 
 
 
 
 
 
 
 
              Q.  When your shoulder would pop, would the pain go away 
 
              once you let your arm rest for a while?
 
              
 
              A.  Well, it would lighten up after a couple of days.
 
              
 
              Q.  And it only popped one time at Webster Construction 
 
              Company, on October 10 -- I'm sorry; October 3?
 
              A.  Yeah, yeah.
 
         (Transcript, page 91, line 11 through page 92, line 8)
 
         
 
              Claimant further and repeatedly testified that his shoulder 
 
         continued "popping" after employment with Webster Construction 
 
         and until 1987.  The only distinguishing characteristic of this 
 
         particular incident is that claimant sought medical care and was 
 
         off work for four days by doctor's orders.  As has been seen, 
 
         this was Dr. Erps.
 
         
 
              Claimant saw Dr. Beattie on February 25, 1985 with continued 
 
         complaints of shoulder pain.  Claimant was complaining of an 
 
         inability to lift without dropping items and was not then 
 
         working. Dr. Beattie found the right shoulder essentially 
 
         negative with questionable bursitis.  X-rays of the right 
 
         shoulder by roentgenologist N. Faltas, M.D., resulted in findings 
 
         of no recent fracture, dislocation or bone destruction, and of 
 
         intact AC joints without evidence of separation or subluxation.  
 
         Dr. Beattie prescribed pain medication and referred claimant to 
 
         outpatient physical therapy following an injection of cortisone.  
 
         The physical therapist reported that claimant discontinued on 
 
         March 11, 1985 after having a difficult time complying with the 
 
         schedule and being out of contact since March 4, 1985.
 
         
 
              Although claimant saw other physicians between 1985 and 
 
         1987, he did not make complaint of continuing shoulder problems. 
 
         Claimant explained this in his testimony as resulting from his 
 
         lack of medical insurance and consequent inability to stand the 
 
         expense of extensive treatment to the right shoulder.  As of 
 
         February 2, 1987, claimant had finally acquired medical insurance 
 
         coverage while employed with an enterprise known as Osh Kosh 
 
         Tanning, which is not a party to this action.
 
         
 
              Claimant described seeing Dr. Wolfe, who referred him to 
 
         Mark Brodersen, M.D.  Dr. Wolfe noted on February 2, 1987 that 
 
         claimant complained of a three-year history of right shoulder 
 
         problems and that:
 
         
 
              Lately due to his factory job and the repetitive up and down 
 
              motions that he makes he has noted it has flared once again 
 
              and several days ago appeared to be swollen and warm to 
 
              touch.  This has resolved and he is still left with pain 
 
              with abduction primary.
 
         
 
              Dr. Wolfe further noted that claimant was in no distress and 
 
         had full range of motion; crepitus was noted with forward 
 
         flexion. Claimant had no distal weakness, numbness or tingling.
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
              Claimant saw Dr. Brodersen on February 10, 1987.  He again 
 
         complained of right shoulder pain beginning three years ago when 
 
         throwing pork bellies and he felt a pop in the shoulder.  The 
 
         notes revealed:
 
         
 
              2 weeks ago at work -- started popping -- got so sore 
 
              couldn't move it.  Been off work since.
 
         
 
              The notes also show that claimant tried to lift a 50-pound 
 
         speaker two days before and developed pain in the shoulder. 
 
         Claimant had good strength and full range of motion with a 
 
         negative x-ray, but a positive apprehension test.
 
         
 
              Dr. Brodersen noted on February 14, 1987 that claimant's 
 
         arthrogram was positive and that he believed claimant to be a 
 
         subluxer.
 
         
 
              After several more visits, Dr. Brodersen determined on 
 
         surgical treatment which was performed May 7, 1987 at the Mary 
 
         Greeley Medical Center in Ames, Iowa.  Dr. Brodersen's notes of 
 
         May 6 show that Dr. Brodersen anticipated either a tear of the 
 
         labrum or more likely subluxation of the shoulder.  His 
 
         postoperative diagnosis:  "Anterior shoulder subluxation with 
 
         tear of the interior glenoid rim."  The procedure was described 
 
         as arthroscopy, arthrotomy, excision anterior glenoid and 
 
         anterior shoulder repair.  The surgery revealed that "the labrum 
 
         had been torn lose with marked fraying of the glenoid labrum 
 
         anteriorly. Biceps tendon was fine as was the rotator cuff 
 
         tendon."
 
         
 
              Claimant was released to return to work on July 20, 1987.
 
         
 
              Claimant demonstrated the position of the scar on his body 
 
         at the hearing.  Of course, the undersigned was unable to view 
 
         that demonstration.  Claimant described the scar as at the 
 
         shoulder joint and the arm, where they came together, but towards 
 
         the chest.
 
         
 
              July 20, 1987 fell on a Monday.  Claimant testified that the 
 
         "following Monday" he began employment at a business known as 
 
         Northwest Bodies as a fiberglass worker.  It is unclear from the 
 
         testimony, but this may have been the same date.  Claimant 
 
         testified as to his condition at that time:
 
         
 
              Q.  Following the surgery and until you began working for 
 
              Northwest Bodies, how did you get along with your shoulder?
 
         
 
              A.  Between the surgery and Northwest Bodies, I couldn't do 
 
              anything hardly at all.
 
         
 
              Q.  Did the surgery provide you any relief from the problems 
 
              that you were having before that?
 
         
 
              A.  It's basically quit popping now, but I'm still having a 
 
              lot of trouble with it.
 

 
              
 
 
 
 
 
 
 
 
 
 
 
         
 
              Q.  Now, I'm talking about the time period before you 
 
              started to work at Northwest Bodies, before the doctor 
 
              released you.
 
         
 
              A.  Yeah.
 
         
 
              Q.  Okay, what -- was there any improvement that you 
 
              experienced after the surgery?
 
         
 
              A.  It seemed -- it felt a lot better at first.  That's it.
 
         
 
              Q.  Something I failed to mention with you, before you had 
 
              the surgery by Dr. Brodersen, did he prescribe some physical 
 
              therapy for you at the Boone County Hospital?
 
              
 
              A.  Yes, he did.
 
              
 
              Q.  How were you feeling -- how was your right shoulder 
 
              feeling at that time you started work for Northwest Bodies?
 
              
 
              A.  I thought it felt real good when I first started there.  
 
              I still had a lot of limitations, so I had to really be 
 
              careful what I was doing.
 
              
 
              Q.  Did you experience additional problems after you started 
 
              working at Northwest Bodies?
 
         
 
              A.  Yeah.
 
         
 
              Q.  What problems did you experience?
 
              
 
              A.  It just started -- the more repetitious work that I was 
 
              doing, the sorer it was starting to get again.
 
              
 
              Q.  What would be the repetitious work that you mentioned?
 
              
 
              A.  About the last two months that I worked there it was all 
 
              hanging doors, mainly, was my main job.
 
              
 
              Q.  Did this come on gradually, or was it any particular 
 
              injury or anything at Northwest Bodies?
 
              
 
              A.  There was no injuries there, no.  It just gradually kept 
 
              getting worse.
 
         
 
              Q.  The records indicate that you went back to Dr. Brodersen 
 
              on November 23 of 1987.
 
         
 
              A.  Yes.
 
         
 
              Q.  Why did you go back to him at that time?
 
              
 
              A.  I was having a lot of shoulder problems again.
 
              
 

 
              
 
 
 
 
 
 
 
 
 
 
 
              Q.  Did he make any recommendations to you at that time as 
 
              far as work?
 
              
 
              A.  Yes, he took me off work and put me on physical therapy.
 
              
 
              Q.  Have you been off work since that date?
 
              
 
              A.  Yes.
 
              
 
              Q.  Are you still taking physical therapy?
 
              
 
              A.  Yes, I am.
 
         
 
         (Transcript, page 37, line 24 through page 40, line 8)
 
         
 
              Claimant also testified:
 
         
 
              Q.  Has Dr. Brodersen released you to return to work as of 
 
              this date?
 
              
 
              A.  No.
 
              
 
              Q.  What problems are you experiencing with your shoulder at 
 
              the present time?
 
         
 
              A.  It aches constantly, and there's absolutely no power at 
 
              all in it.
 
         
 
              Q.  Are those problems different than the problems you were 
 
              having before you went to Dr. Brodersen?
 
         
 
              A.  No, the only pain that's different is I don't have the 
 
              shoulder popping out of place anymore.
 
         
 
              Q.  The loss of power that you described, was that true 
 
              before you went to see Dr. Brodersen?
 
         
 
              A.  Yes.
 
         
 
              Q.  Has that been true since the injury at IBP?
 
              
 
              A.  Yes, it has.
 
         
 
         (Transcript, page 41, line 2 through line 21)
 
         
 
              Claimant testified further as to the history of his shoulder 
 
         after being released to return to work on July 20, 1987:
 
         
 
              Q.  And it says on 11-23-87, "Paul returns in regards to his 
 
              shoulder.  He has been back at his job, which requires him 
 
              to vigorously pound fiberglass doors into place with the 
 
              palms of his hand."
 
         
 
              A.  Yes.
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
              Q.  "He had developed a fair amount of soreness about the 
 
              right shoulder and some difficulty in fully abducting his 
 
              shoulder, as well as an occasional catching sensation."  So 
 
              you had been working there since July and hadn't been back 
 
              to the doctor since July 17, had you?
 
         
 
              A.  Not until that time, no.
 
              
 
              Q.  And this pounding of the fiberglass caused your shoulder 
 
              to hurt again?
 
              
 
              A.  It had already been hurting, yes, but this pounding of 
 
              the fiberglass made it worse again.
 
              
 
              Q.  Now, what did you have to pound -- why did you have to 
 
              pound the fiberglass?
 
              
 
              A.  You had to make sure the doors were sealed before you 
 
              bolted them on, because if they weren't sealed, they'd leak.
 
              
 
              Q.  So it was part of your job?
 
              
 
              A.  Yes.
 
         
 
              Q.  Couldn't you use a hammer?
 
         
 
              A.  No.
 
         
 
              Q.  You had to use your hands?
 
              
 
              A.  Yep.
 
              
 
              Q.  And this is part of putting these truck bodies together; 
 
              isn't that right?
 
              
 
              A.  Yes.
 
              
 
              Q.  How long had you been doing the, you know, assembling of 
 
              truck bodies?
 
              
 
              A.  Since I had been there.
 
              
 
              Q.  So you had been pounding these doors into place since 
 
              July -- the first Monday after July 17, 1987?
 
         
 
              A.  Yes.
 
         
 
              Q.  And you did that on a daily basis?
 
              
 
              A.  Yeah.
 
              
 
              Q.  And evidently it got to the point where you could no 
 
              longer pound the doors into place because it hurt?
 
              
 
              A.  Yeah.
 

 
              
 
 
 
 
 
 
 
 
 
 
 
              
 
              Q.  And it just kept getting worse and worse and worse until 
 
              you had to go to the doctor again?
 
              
 
              A.  Yes.
 
         
 
              Q.  And at that time you applied for short-term disability?
 
              
 
              A.  Yeah.
 
         
 
         (Transcript, page 121, line 2 through page 123, line 2)
 
         
 
              And as follows:
 
         
 
              Q.  Now, when we did your deposition, were you working 
 
              at.Northwest Bodies?
 
              
 
              A.  I think so.
 
              
 
              Q.  It was on October 26, 1987.  Isn't that right?
 
         
 
              A.  Yeah; yeah.
 
         
 
              Q.  You didn't tell us.anything about having continued 
 
              shoulder problems at that time, did you?
 
         
 
              A.  I don't remember if I did or not.
 
              
 
              Q.  Did you say that your work at Northwest Bodies was 
 
              giving you difficulty?
 
              
 
              A.  I don't remember if I did or not.  I assume that a lot 
 
              of the troubles I was having at Northwest Bodies was because 
 
              I just had the surgery done, and I hadn't given it enough 
 
              time for everything to heal yet.
 
              
 
              Q.  You said today you cannot do engine work because you 
 
              won't be able to lift heads; is that correct?
 
         
 
              A.  Uh-huh (affirmative response).
 
              
 
              Q.  And what do you attribute to the cause of not being able 
 
              to lift heads; what caused your injury or your inability to 
 
              lift heads of cars?
 
              
 
              A.  Well, right at the present time, because of the 
 
              surgery,.I suppose.
 
              
 
              Q.  But you were back lifting -- how much does a head weigh?
 
         
 
              A.  I wouldn't have any idea.
 
              
 
              Q.  You lifted things at Northwest Bodies that were as heavy 
 
              as a head, didn't you?
 
              
 

 
              
 
 
 
 
 
 
 
 
 
 
 
              A.  Yeah.
 
              
 
              Q.  So you were able to lift things at Northwest Bodies that 
 
              were as heavy as a head but today you cannot?
 
         
 
              A.  No.
 
         
 
              Q.  And the only thing you did between the surgery and today 
 
              is work at Northwest Bodies; isn't that right?
 
         
 
              A.  Yes.
 
         
 
         (Transcript, page 124, line 21 through page 126, line 9)
 
         
 
              After Dr. Brodersen took claimant off work on November 23, 
 
         1987, claimant was again seen on December 18.  He still had 
 
         soreness in the shoulder and "it will occasionally go dead." 
 
         Claimant had good range of motion, but some limitation in 
 
         external rotation.  The shoulder was stable and could not be 
 
         subluxed. Claimant was at that time released to return to a 
 
         light-duty job that did not involve repetitive use of his arm or 
 
         lifting above shoulder level or having to push heavy objects with 
 
         his shoulder.
 
         
 
              On October 12,. 1987, before claimant returned with his 
 
         renewed complaints after employment at Northwest Bodies, Dr. 
 
         Brodersen wrote to attorney Glenn Goodwin to note that he had 
 
         last been seen in July and had a mild limitation of range of 
 
         motion in external and internal rotation.  Dr. Brodersen stated:
 
         
 
              It is my feeling that his shoulder problem is on the basis 
 
              of the injury that he sustained while throwing pork bellies.  
 
              Any subsequent injuries may have temporarily aggravated the 
 
              shoulder but it is doubtful that they substantially 
 
              increased the severity of the injury.
 
         
 
              At a point in time two months following his injury, he still 
 
              had some mild limitation of range of motion.  This 
 
              impairment may continue on into the future but it is also 
 
              possible that he may lose this restricted motion as he 
 
              continues to work with his shoulder.  I believe that if he 
 
              does end up with any impairment from either the injury or 
 
              surgery that it will not be very great.
 
         
 
              Dr. Brodersen wrote attorney Marlon Mormann on January 6, 
 
         1988:
 
         
 
              In regards to your recent inquiry about Paul Hike, Clinic 
 
              Number 362-536-5, the following information is provided.  
 
              Mr. Hike was last seen by me on 12/18/87.  At that point in 
 
              time, he had evidence of some mild limited motion in 
 
              external rotation.  On the basis of this, I would feel that 
 
              he had a five percent impairment of his upper extremity or a 
 
              three percent impairment of the person as a whole.
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
              You should be aware that this limited external rotation of 
 
              the shoulder is expected in the post-operative period for 
 
              this type of surgery.  Frequently, this limited motion will 
 
              slowly improve with the resumption of normal activity.  It 
 
              is possible that this impairment rating may decrease as time 
 
              goes by.  I believe that I would classify his current 
 
              impairment as temporary and would be a bit reluctant to give 
 
              him a permanent impairment rating until a year had elapsed 
 
              from the time of his surgery.  The date of his surgery, for 
 
              your information, was 5/7/87.
 
         
 
              Dr. Brodersen's chart notes of March 1, 1988 reflect that 
 
         claimant was not complaining of numbness, but did have night 
 
         throbbing of the joint with anterior tenderness.  The shoulder 
 
         was stable but sore.  Claimant had diminished strength of 
 
         rotators, pectorals and deltoid muscles.  He was referred to 
 
         physical therapy and given restrictions against any overhead work 
 
         or repetitive lifting.  Claimant's return to work date was 
 
         subsequent to the hearing date.
 
         
 
              Claimant was seen again by Dr. Dougherty on June 30, 1987. 
 
         Claimant reported that his shoulder was better than it had been 
 
         prior to surgery.  With reference to the original injury, Dr. 
 
         Dougherty noted agreement with the opinion of Dr. Wirtz that if 
 
         claimant did sublux, it would probably not be on one single 
 
         incident, although if he did the work at IBP repeatedly, the 
 
         doctor supposed he could have stretched his tissues out.  As to 
 
         causal connection, Dr. Dougherty stated:
 
         
 
              With regard to whether I feel his surgery was a direct 
 
              result of his injury of 5-10-84, I think that is a 
 
              possibility. Going back over his records, it appeared that 
 
              he could relate it to one incident of loud popping.  When I 
 
              saw him, I really couldn't demonstrate any significant 
 
              instability.  It certainly has been a long time since his 
 
              initial injury and he has done a lot of things since; 
 
              namely, construction work, odds and ends, working in the 
 
              garden and working at the tanning company.  Said it 
 
              continued to bother him all that time, but apparently he was 
 
              able to do it without any great problems as he really didn't 
 
              [sic] see any doctors.
 
         
 
              Dr. Dougherty noted that claimant still appeared to have 
 
         considerable pain from his surgery and restriction of motion.  He 
 
         felt it perhaps too early to determine claimant's ultimate range 
 
         of motion or ultimate outcome.  Claimant had not reached maximum 
 
         medical improvement as of the examination.  Dr. Dougherty did not 
 
         have the surgical notes and was unclear as to what actually was 
 
         done.  Dr. Dougherty anticipated that the decreased range of 
 
         motion would improve with time and declined to give a disability 
 
         rating at that early stage.
 
         
 
              Claimant was also seen for evaluation by Peter D. Wirtz, 
 
         M.D. He wrote to Lisa Brockway on April 27, 1987.  His diagnosis 
 
         was to rule out subluxation of the right shoulder with chronic 
 
         tendonitis.  He stated:
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              This patient developed symptoms in May, 1984 with activities 
 
              which would indicate that the persistence of the symptoms 
 
              were caused by laxity of the shoulder and subluxation.  If 
 
              this patient has subluxation of the shoulder, based on the 
 
              fact that he had no one single traumatic episode but rather 
 
              multiple work related activities, then he had a pre-existing 
 
              congenital condition that was aggravated by the right arm 
 
              throwing activities in May, 1984.  When this subluxation 
 
              condition develops with laxity of the shoulder it will be on 
 
              a permanent basis.  The period of time between the original 
 
              injury and his most recent medical evaluation (2-87 Dr. 
 
              Broderson [sic]) would indicate few functional problems and 
 
              possible new injury causes; based on these facts the May, 
 
              1984 injury condition cleared.
 
         
 
              Claimant testified that he was paid an hourly wage of $7.15 
 
         by defendant IBP.  Scott Demers testified that claimant was paid 
 
         $6.50 per hour on an hourly basis.  IBP exhibit 21 is a wage 
 
         verification showing claimant's gross wage for the weeks of his 
 
         employment and shows a wage of $6.50.  Beginning the week ending 
 
         May 5, 1984, (the week ending May 12 is the week in which 
 
         claimant was injured) and counting back for thirteen weeks, 
 
         claimant earned a gross sum of $3,038.59.  The wage verification 
 
         form reflects that claimant was paid $6.00 per hour for the weeks 
 
         ending February 2, February 11, February 18 and February 25, 
 
         1984; $6.43 per hour through the week ending March 24, 1984; and, 
 
         $6.50 per hour thereafter.
 
         
 
              Claimant submitted evidence as to his medical costs in 
 
         exhibit 3.  These include Boone County Hospital ($90.00), 
 
         prescriptions at Bedel's Drive-In Pharmacy ($10.29 paid by 
 
         claimant), prescriptions at Storm Lake Drug ($2.70 paid by 
 
         claimant), Buena Vista County Hospital ($74.00 paid by claimant), 
 
         Buena Vista Clinics, P.C. ($66.50 paid by claimant), McFarland 
 
         Clinic ($2,142.03), Mary Greeley Hospital ($1,351.04), and Greene 
 
         County Hospital ($200.00).  It appears that all of these charges 
 
         except for Greene County Hospital were incurred prior to 
 
         claimant's employment with Northwest Bodies.
 
         
 
              Claimant has also set forth certain mileage expenses in his 
 
         exhibit 2.. Those expenses that predated claimant's employment 
 
         with Northwest Bodies include Boone County Hospital (240 miles), 
 
         Mary Greeley Hospital (80 miles), and McFarland Clinic (1,040 
 
         miles).  Claimant has also set forth certain other mileage 
 
         expenses, but the record is unclear as to the purpose of these 
 
         trips.
 
         
 
                           APPLICABLE LAW AND ANALYSIS
 
         
 
              An employee is entitled to compensation for any and all 
 
         personal injuries which arise out of and in the course of the 
 
         employment.  Section 85.3(l).
 
         
 
              Claimant has the burden of proving by a preponderance of the 
 
         evidence that he received injuries on or about May 10, 1984 and 
 
         October 3, 1984 which arose out of and in the course of his 
 
         employment.  McDowell v. Town of Clarksville, 241 N.W.2d 904 
 
         (Iowa 1976); Musselman v. Central Telephone Co., 261 Iowa 352, 
 
         154 N.W.2d 128 (1967).
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              The injury must both arise out of and be in the course of 
 
         the employment.  Crowe v. DeSoto Consol. Sch. Dist., 246 Iowa 
 
         .402, 68 N.W.2d 63 (1955) and cases cited at pp. 405-406 of the 
 
         Iowa Report.  See also Sister Mary Benedict v. St. Mary's Corp., 
 
         255 Iowa 847, 124 N.W.2d 548 (1963) and Hansen v. State of Iowa, 
 
         249 Iowa 1147, 91 N.W.2d 555 (1958).
 
         
 
              The supreme court of Iowa in Almquist v. Shenandoah 
 
         Nurseries, 218 Iowa 724, 254 N.W. 35 (1934) at 731-32, discussed 
 
         the definition of personal injury in workers' compensation cases 
 
         as follows:
 
         
 
              While a personal injury does not include an occupational 
 
              disease under the workmen's Compensation Act, yet an injury 
 
              to the health may be a personal injury [Citations omitted.] 
 
              Likewise a personal injury includes a disease resulting from 
 
              an injury....The result of changes in the human body 
 
              incident to the general processes of nature do not amount to 
 
              a personal injury.  This must follow, even though such 
 
              natural change may come about because the life has been 
 
              devoted to labor and hard work.  Such result of those 
 
              natural changes does not constitute a personal injury even 
 
              though the same brings about impairment of health or the 
 
              total or partial incapacity of the functions of the human 
 
              body.
 
         
 
                 ....
 
         
 
              A personal injury, contemplated by the Workmen's 
 
              Compensation Law, obviously means an injury to the body, the 
 
              impairment of health, or a disease, not excluded by the act, 
 
              which comes about, not through the natural building up and 
 
              tearing down of the human body, but because of a traumatic 
 
              or other hurt or damage to the health or body of an 
 
              employee.  [Citations omitted.]  The injury to the human 
 
              body here contemplated must be something, whether an 
 
              accident or not, that acts extraneously to the natural 
 
              processes of nature and thereby impairs the health, 
 
              overcomes, injures, interrupts, or destroys some function of 
 
              the body, or otherwise damages or injures a part or all of 
 
              the body.
 
         
 
              The claimant has the burden of proving by a preponderance of 
 
         the evidence that the alleged injuries of May 10, 1984 and 
 
         October 3, 1984 are causally related to the disability on which 
 
         he now bases his claim.  Bodish v. Fischer, Inc., 257 Iowa 516, 
 
         133 N.W.2d 867 (1965).  Lindahl v. L.O. Boggs, 236 Iowa 296, 18 
 
         N.W.2d 607 (1945).  A possibility is insufficient; a probability 
 
         is necessary.  Burt v. John Deere Waterloo Tractor Works, 247 
 
         Iowa 691, 73 N.W.2d 732 (1955).  The question of causal 
 
         connection is essentially within the domain of expert testimony.  
 
         Bradshaw v. Iowa Methodist Hospital, 251 Iowa 375, 101 N.W.2d 167 
 
         (1960).
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
              However, expert medical evidence must be considered with all 
 
         other evidence introduced bearing on the causal connection.  
 
         Burt, 247 Iowa 691, 73 N.W.2d 732.  The opinion of experts need 
 
         not be couched in definite, positive or unequivocal language.  
 
         Sondag v. Ferris Hardware, 220 N.W.2d 903 (Iowa 1974).  However, 
 
         the expert opinion may be accepted or rejected, in whole or in 
 
         part, by the trier of fact.  Id. at 907.  Further, the weight to 
 
         be given to such an opinion is for the finder of fact, and that 
 
         may be affected by the completeness of the premise given the 
 
         expert and other surrounding circumstances.  Bodish, 257 Iowa 
 
         516, 133 N.W.2d 867.  See also Musselman v. Central Telephone 
 
         Co., 261 Iowa 352, 154 N.W.2d 128 (1967).
 
         
 
              The right of a worker to receive compensation for injuries 
 
         sustained which arose out of and in the course of employment is 
 
         statutory.  The statute conferring this right can also fix the 
 
         amount of compensation to be paid for different specific 
 
         injuries, and the employee is not entitled to compensation except 
 
         as provided by the statute.  Soukup v. Shores Co., 222 Iowa 272, 
 
         268 N.W. 598 (1936).
 
         
 
              If a claimant contends he has industrial disability he has 
 
         the burden of proving his injury results in an ailment extending 
 
         beyond the scheduled loss.  Kellogg v. Shute and Lewis Coal Co., 
 
         256 Iowa 1257, 130 N.W.2d 667 (1964).
 
         
 
              While claimant and IBP, Inc., have stipulated that claimant 
 
         sustained an injury arising out of and in the course of that 
 
         employment on May 10, 1984, claimant and Webster Construction 
 
         Company dispute whether a second injury occurred on October 3, 
 
         1984 arising out of and in the course of that employment.  The 
 
         record shows that claimant had continuing incidents of "popping" 
 
         of his right shoulder after the work injury of May 10, 1984 and 
 
         continuing through one such incident while employed at Webster 
 
         Construction on October 3, 1984.  Claimant's shoulder was "still 
 
         swelling up all the time and popping out of place" by his own 
 
         testimony.  Claimant admitted that the "popping" incident at 
 
         Webster Construction and the pain derived therefrom did not 
 
         differ from numerous prior incidents at IBP.  The record fails to 
 
         disclose any factor whatsoever indicating that this incident was 
 
         a separate and independent source of disability, except that 
 
         claimant sought medical treatment and was kept off work for four 
 
         days by Dr. Erps.  As discussed below, Dr. Dougherty has opined 
 
         that claimant's disability was related to the IBP incident. 
 
         Claimant has failed to establish by his burden of proof that any 
 
         of his current disability is causally related to the Webster 
 
         Construction incident, or that this incident constituted anything 
 
         greater than a mere temporary exacerbation of his preexisting 
 
         problem.  Claimant was off work for four days and was paid one 
 
         day of temporary disability by defendants Webster and Aetna.  
 
         Claimant has failed to establish his right to any further 
 
         recovery from those defendants.
 
         
 
              It is stipulated that claimant sustained an injury arising 
 
         out of and in the course of his employment with IBP on May 10, 
 
         1984.  Disputed issues include the extent of claimant's temporary 
 
         disability and whether the work injury is causally related to 
 
         permanent disability.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              As has been seen, causal connection between a work injury 
 
         and permanent disability is primarily in the sphere of expert 
 
         testimony, although the entire record is.to be reviewed in making 
 
         the determination.  In this case, it is clear that claimant 
 
         undertook substantial physically demanding work between his 
 
         stipulated injury and his eventual surgery in 1987, all of which 
 
         might easily be.viewed as having excacerbated the original 
 
         injury. In addition, Dr. Wirtz was of the view that the 
 
         substantial gap of time between the injury and claimant's 
 
         subsequent surgery was an indication that the original injury had 
 
         cleared up.  Dr. Dougherty noted that during the substantial time 
 
         gap claimant had performed construction work, odds and ends, 
 
         worked in the garden and worked at a tanning company.  He opined 
 
         only that there was a "possibility" that claimant's surgery was a 
 
         direct result of the IBP work injury.  On the other hand, Dr. 
 
         Brodersen, the treating surgeon, specified directly that the 
 
         shoulder problems he surgically treated were sustained by reason 
 
         of the work injury under review and that any subsequent injuries 
 
         may have temporarily aggravated the shoulder, but it was doubtful 
 
         that they substantially increased the severity of the injury.
 
         
 
              Thus, there is a full range of medical opinion on the 
 
         causation issue.  While Dr. Brodersen was the treating physician, 
 
         it is not an absolute rule that a treating physician's testimony 
 
         is to be given greater weight than the testimony of another 
 
         physician who examines claimant for evaluation.  Rockwell Graphic 
 
         Systems, Inc. v. Prince, 366 N.W.2d 187 (Iowa 1985).  Rather, 
 
         factors such as education, compensation, the date of the 
 
         examination and experience all go to evaluating that testimony as 
 
         a question of fact, not law.
 
         
 
              Claimant testified.that he continued having the same 
 
         symptoms as to his shoulder injury between the work injury and 
 
         his eventual surgery in 1987.  While claimant saw a number of 
 
         physicians during that time, he did not make specific complaint 
 
         of his continuing shoulder problems.  Claimant explained that his 
 
         reason for doing so was because of his lack of medical insurance 
 
         and financial inability to pay for extensive medical treatment.  
 
         Anyone who follows current events can scarcely be unaware that 
 
         medical costs are frequently expensive and have been increasing 
 
         dramatically in recent years.  The writer is unwilling to hold 
 
         that the unwillingness of an individual lacking medical insurance 
 
         to seek medical care is necessarily indicative that no medical 
 
         care is needed.  Claimant's testimony that he continued having 
 
         the same symptoms throughout this extended time gap is accepted 
 
         as credible.  Given this history, Dr. Brodersen's view as to 
 
         causation is the most persuasive in this case.  Claimant has met 
 
         his burden of proof in establishing permanent disability causally 
 
         related to his work injury.
 
         
 
              Before discussing the extent of claimant's permanent 
 
         disability, it is appropriate to consider the extent of his 
 
         healing period.  Healing period may be interrupted or 
 
         intermittent, or terminate and begin again (for example, after 
 
         surgery).  Riesselman v. Carroll Health Center, III Iowa 
 
         Industrial Commissioner Reports 209 (1982); Teel v. McCord, 394 
 
         N.W.2d 405 (Iowa 1986).
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              In this case, claimant's healing period is intermittent in 
 
         nature.  Under Iowa Code section 85.34, healing period begins on 
 
         the date of injury and continues until the employee has returned 
 
         to work, it is medically indicated that significant improvement 
 
         from the injury is not anticipated, or until such time as the 
 
         employee is medically capable of returning to substantially 
 
         similar employment, whichever first occurs.  Claimant was injured 
 
         on May 10, 1984 and given an unrestricted return to work on 
 
         August 13, 1984.  This ended the first segment of healing period, 
 
         which amounts to 13 weeks exactly.  Dr. Brodersen then took 
 
         claimant off work for surgical treatment from May 7, 1987 through 
 
         his return to work July 20, 1987.  This segment totals 10 weeks, 
 
         5 days.
 
         
 
              After claimant was released to return to work in July, 1987, 
 
         he accepted work with Northwest Bodies.  As,has been seen, 
 
         claimant had continuing shoulder problems at that time, and was 
 
         eventually taken off work by Dr. Brodersen on November 23, 1987 
 
         and remained off work as of the date of hearing.. This period of 
 
         temporary disability must be considered in conjunction with the 
 
         issue of permanent disability.  Here, the question of claimant's 
 
         employment with Northwest Bodies must be reviewed.  Claimant 
 
         testified that his work with Northwest Bodies exacerbated his 
 
         shoulder problems.  Claimant's work included vigorously pounding 
 
         fiberglass doors into place with his hands on a daily basis.  As 
 
         claimant testified, it "kept getting worse and worse and worse" 
 
         until he had to return to Dr. Brodersen.  Dr. Brodersen's notes 
 
         show that claimant, as of November 23, 1987, had developed at 
 
         least one additional symptom:  an occasional catching sensation. 
 
         Claimant testified directly as to increased loss of function 
 
         during his employment with Northwest Bodies.  Before working for 
 
         Northwest Bodies, he was able to lift heads (automobile parts), 
 
         but was unable to do so as of the date of hearing.  Claimant 
 
         agreed that the only thing he did between the surgery and the 
 
         date of hearing was work at Northwest Bodies.  Claimant agreed 
 
         that in addition to the vigorous pounding the Northwest Bodies 
 
         job required, he was also required to lift items as heavy as a 
 
         head (claimant did not express an opinion as to what heads weigh, 
 
         but it is apparently substantial).
 
         
 
              Because claimant developed an additional symptom and his 
 
         shoulder condition substantially worsened during his employment 
 
         with Northwest Bodies, it is entirely possible that he sustained 
 
         yet another work injury, cumulative or otherwise, while in that 
 
         employment.  Of course, Northwest Bodies is not a party to this 
 
         litigation.  Obviously, it would be inappropriate to make a 
 
         finding as to whether claimant's employment with Northwest Bodies 
 
         actually caused an aggravation or other new injury.  Nonetheless, 
 
         it remains claimant's burden of proof to establish the extent of 
 
         his disability that is causally related to the IBP work injury 
 
         under review.  On this record, it would be speculative at this 
 
         point to find that claimant's presumably temporary disability 
 
         subsequent to November 23, 1987 or any resulting permanent 
 
         disability is causally related to the work injury under review. 
 
         Claimant has not met his burden of proof in establishing that his 
 
         presumably temporary disability from November 23, 1987 through 
 
         the date of hearing bears a causal relationship to this injury.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              What then is the extent of claimant's permanent disability 
 
         that is shown to be related to the work injury under review?  It 
 
         is first necessary to consider whether the injury is a scheduled 
 
         member disability or an injury to the body as a whole.  Shoulder 
 
         injuries are particularly troublesome to decide.  The leading 
 
         case on this issue is Lauhoff Grain Co. v. McIntosh, 395 N.W.2d 
 
         834 (Iowa 1986).  Although that case dealt with a hip injury, the 
 
         logic is equally applicable to a shoulder injury.  In remanding 
 
         that case to the commissioner for further review of the issue, 
 
         the court noted that "there can be no recovery of benefits for 
 
         industrial disability unless it is shown that a part of the body 
 
         other than the (scheduled member) is impaired."  The court noted 
 
         that surgical intrusion in that case extended into the body 
 
         beyond the hip joint and that claimant presented evidence of 
 
         impairments which were not directly related to the scheduled 
 
         member functions (disabling pain in the hip and lower back).  The 
 
         court recited the commissioner's findings of fact and italicized 
 
         the following finding:  "The surgical procedure has extended 
 
         claimant's disability to the body as a whole(,)" but still chose 
 
         to remand the case.  From the foregoing, the undersigned 
 
         concludes that the disability must be shown to affect the body as 
 
         a whole beyond the scheduled member to be compensable as an 
 
         industrial disability.  On the one hand, the court cited with 
 
         approval cases from other jurisdictions to the effect that an 
 
         injury to the hip joint itself extends beyond the scheduled 
 
         member, but on the other hand, was unable to conclude with 
 
         certainty that a surgical intrusion to the acetabulum, a part of 
 
         the pelvis, extended the injury in that case to the body as a 
 
         whole.  The undersigned readily confesses to an inability to 
 
         apply the teachings of Lauhoff Grain with certainty.
 
         
 
              Dr. Brodersen's surgical notes reflect that "the anterior 
 
         glenoid rim revealed that the labrum had been torn loose with 
 
         marked fraying of the glenoid labrum anteriorly."  The torn 
 
         anterior labrum was then surgically excised.  Thus, the surgical 
 
         intrusion extends beyond the arm into the body as a whole. 
 
         However, under Lauhoff Grain, this is clearly not dispositive of 
 
         the issue.  Instead, it appears that the question depends upon 
 
         whether functional disability extends beyond the scheduled 
 
         member.
 
         
 
              In this case, only Dr. Brodersen has expressed an opinion as 
 
         to the degree of claimant's impairment.  In his letter of January 
 
         6, 1988, Dr. Brodersen based his opinion on evidence of some mild 
 
         limited motion in external rotation.  Based on this, Dr. 
 
         Brodersen was of the view that claimant had sustained a five 
 
         percent impairment of the upper extremity, which he then 
 
         converted to an impairment of the body as a whole.  Because Dr. 
 
         Brodersen's opinion was based on a loss of function of the 
 
         extremity only, it is held that claimant's injury does not extend 
 
         into the body as a whole and should not be compensated 
 
         industrially.
 
         
 
              Dr. Brodersen was also of the view that claimant's 
 
         impairment rating might decrease as time went by and that he was 
 
         reluctant to classify the impairment as other than temporary 
 
         until a year had elapsed from the time of surgery.  However, 
 
         claimant undertook employment at Northwest Bodies before that 
 
         year had elapsed and may well have sustained an independently 
 
         compensable aggravation or new injury.  Therefore, it would be 
 
         speculative to conclude that claimant's disability would actually 
 
         decrease.  In fact, the hearing was held less than a year 
 
         post-surgery.  The best evidence in this case is that claimant 
 
         sustained a five percent impairment of the "upper extremity" by 
 
         reason of his stipulated work injury. Of course, "upper 
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         extremity" is not a scheduled member under Iowa Code section 
 
         85.34.  The AMA Guides to the Evaluation of Permanent Impairment, 
 
         however, do speak of "upper extremity" impairments. For all 
 
         practical purposes, and particularly for the purposes of this 
 
         decision, the arm is coextensive with the upper extremity. Loss 
 
         of an arm is compensable during 250 weeks under Iowa Code section 
 
         85.34(2)(m).  Five percent of 250 weeks is 12.5 weeks. Therefore, 
 
         claimant shall be awarded permanent disability benefits of 12.5 
 
         weeks commencing July 21, 1987.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              The parties also dispute claimant's rate of compensation, 
 
         although it is stipulated that he was married with four 
 
         exemptions on the date of injury.  Claimant was paid on an hourly 
 
         basis and has not been shown to have been a part-time employee.  
 
         Therefore, his rate should be calculated under Iowa Code section 
 
         85.36(6). His gross weekly earnings must be computed by dividing 
 
         by 13 his earnings in the last completed period of 13 consecutive 
 
         weeks immediately preceding the injury.  His earnings for the 13 
 
         weeks ending May 5, 1984 (the last completed weeks prior to 
 
         injury), were $3,038.59, or an average of $233.73 per week.  The 
 
         workers' compensation benefit schedule published by the 
 
         commissioner and effective July 1, 1983 shows that the 
 
         appropriate rate for an individual who is married, has four 
 
         exemptions, and gross weekly wages of $234.00 is $158.96.  
 
         Claimant's rate of compensation is $158.96.
 
         
 
              Defendant IBP takes the position that Dr. Brodersen's 
 
         medical treatment and services are not compensable because they 
 
         were not authorized.  However, numerous cases have held that 
 
         defendants cannot simultaneously deny liability and seek to guide 
 
         the course of treatment.  See Barnhart v. MAQ, Inc. I Iowa 
 
         Industrial Commissioner Reports 16 (1981).  The defense of lack 
 
         of authorization fails.  Of the medical bills set forth in 
 
         claimant's exhibit 3, it appears that the Greene County Hospital 
 
         expenses in the sum of $200.00 were accrued following claimant's 
 
         employment with Northwest Bodies, at least based upon the dates 
 
         set forth for claimant's mileage in claimant's exhibit 2.  
 
         Claimant shall be awarded medical benefits to be paid to the care 
 
         provider, except those paid personally by claimant, as follows:
 
         
 
              Boone County Hospital         $   90.00
 
              Bedel's Drive-In Pharmacy         10.29 (to claimant)
 
              Storm Lake Drug                    2.70 (to claimant)
 
              Buena Vista County Hospital       74.00 (to claimant)
 
              Buena Vista Clinics, P.C.         66.50 (to claimant)
 
              McFarland Clinic               2,142.03
 
              Mary Greeley Hospital          1,351.04
 
              Total                         $3,736.56
 
         
 
              Claimant is also entitled to mileage expenses he accrued 
 
         while seeking medical treatment.  These include trips to Boone 
 
         County Hospital (240 miles), Mary Greeley Hospital (80 miles), 
 
         McFarland Clinic (1,040 miles while claimant lived in Pilot 
 
         Mound, 280 miles while claimant lived in Churdan, and 180 miles 
 
         while claimant lived in Manson), for a total of 1,820 miles.  At 
 
         $.21 per mile, the award shall be $382.20.  Mileage accrued after 
 
         July 17, 1987 (when claimant last saw Dr. Brodersen before 
 
         beginning employment with Northwest Bodies) is excluded as 
 
         speculative, since it is unclear whether those miles may have 
 
         been related to a possible intervening injury.
 
         
 
                                 FINDINGS OF FACT
 
         
 
              THEREFORE, based on the evidence presented, the following 
 
         ultimate facts are found:
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              1.  As stipulated, claimant was employed by defendant IBP, 
 
         Inc., on May 10, 1984, when he sustained an injury arising out of 
 
         and in the course of that employment.
 
         
 
              2.  As stipulated, claimant was employed by Webster 
 
         Construction Company on October 3, 1984.
 
         
 
              3.  Claimant's injury of May 10, 1984 was to his right 
 
         shoulder, but his functional impairment did not extend into the 
 
         body as a whole.
 
         
 
              4.  Claimant has failed to establish that his injury of 
 
         October 3, 1984 (776652) was anything greater than a temporary 
 
         exacerbation of his work injury of May 10, 1984 (764571).
 
         
 
              5.  Claimant was off work by reason of his May 10, 1984 
 
         injury from May 10, 1984 through August 13, 1984 (13 weeks) and 
 
         from May 7, 1987 through July 20, 1987 (10 weeks, 5 days).
 
         
 
              6.  Claimant's injury of May 10, 1984 has been shown to 
 
         result in an impairment of 5 percent of his right arm.
 
         
 
              7.  During the 13 weeks prior to May 10, 1984, claimant, who 
 
         was paid on an hourly basis, earned a total of $3,038.59, or an 
 
         average of $233.73 per week.
 
         
 
              8.  As stipulated, defendant IBP, Inc., paid claimant 10 
 
         weeks, 2 days compensation at the rate of $186.85 prior to 
 
         hearing.
 
         
 
              9.  After being released to return to work July 20, 1987, 
 
         claimant accepted employment with an enterprise known as 
 
         Northwest Bodies.  During that employment, his condition worsened 
 
         and he developed at least one new symptom.
 
         
 
              10.  Although the author of this decision did not view 
 
         claimant's testimony and his credibility was attacked, claimant's 
 
         testimony has not been shown to lack credibility.
 
         
 
              11.  The following medical bills are causally connected to 
 
         claimant's stipulated work injury of May 10, 1984:
 
         
 
              Boone County Hospital            $   90.00
 
              Bedel's Drive-In Pharmacy            10.29*
 
              Storm Lake Drug                       2.70*
 
              Buena Vista County Hospital          74.00*
 
              Buena Vista Clinics, P.C.            66.50*
 
              McFarland Clinic                  2,142.03
 
              Mary Greeley Hospital             1,351.04
 
              Total                            $3,736.56
 
         
 
              * Paid by claimant personally to medical suppliers.
 
         
 
              12.  The following mileage expenses have been shown to be 
 
         causally related to claimant's work injury of May 10, 1984:  
 
         Boone County Hospital (240 miles); Mary Greeley Hospital (80 
 
         miles); and, McFarland Clinic (1,500 miles) for a total of 1,820 
 
         miles.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
                                CONCLUSIONS OF LAW
 
         
 
              WHEREFORE, based on the principles of law previously stated, 
 
         the following conclusions of law are made:
 
         
 
              1.  Claimant has failed to establish by his burden of proof 
 
         that he sustained an injury arising out of and in the course of 
 
         his employment with Webster Construction Company on October 3, 
 
         1984 (776652).
 
         
 
              2.  Claimant sustained an injury arising out of and in the 
 
         course of his employment with IBP, Inc., on May 10, 1984 
 
         (764571).
 
         
 
              3.  Claimant has established entitlement to intermittent 
 
         healing period benefits resulting from his May 10, 1984 work 
 
         injury totalling 23 weeks, 5 days.
 
         
 
              4.  Claimant has established a permanent partial disability 
 
         of 5 percent of the right arm resulting from his work injury of 
 
         May 10, 1984.
 
         
 
              5.  Claimant's injury of May 10, 1984 was to his right arm 
 
         and did not extend into the body as a whole; therefore, the 
 
         injury must be compensated as a scheduled member and not as an 
 
         industrial disability.
 
         
 
              6.  Claimant is entitled to medical expenses and mileage 
 
         under Iowa Code section 85.27 as set forth above.
 
         
 
              7.  Claimant's award must be determined on the basis of his 
 
         condition prior to beginning employment with Northwest Bodies, 
 
         because the worsening of his condition thereafter may have been 
 
         related to an intervening and independent work injury; it would 
 
         be speculative to base this award on claimant's condition 
 
         subsequent to his employment with Northwest Bodies.
 
         
 
              8.  Claimant's rate of compensation is $158.96.
 
         
 
                                      ORDER
 
         
 
              THEREFORE, IT IS ORDERED:
 
         
 
              Claimant shall take nothing from this proceeding with 
 
         respect to file number 776652.
 
         
 
              Defendant IBP, Inc., shall pay unto claimant twenty three 
 
         point seven one four (23.714) weeks of healing period benefits at 
 
         the rate of one hundred fifty-eight and 96/100 dollars ($158.96) 
 
         per week, totalling three thousand seven hundred sixty-nine and 
 
         58/100 dollars ($3,769.58).
 
         
 
              Defendant IBP, Inc., shall pay unto claimant twelve point 
 
         five (12.5) weeks of permanent partial disability at the rate of 
 
         one hundred fifty-eight and 96/100 dollars ($158.96) per week, 
 
         totalling one thousand nine hundred eighty-seven and 00/100 
 
         dollars ($1,987.00).  The commencement date is July 21, 1987.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              Defendant IBP, Inc., shall pay the following medical 
 
              expenses:
 
         
 
               Boone County Hospital            $    90.00
 
               Bedel's Drive-In Pharmacy             10.29*
 
               Storm Lake Drug                        2.70*
 
               Buena Vista County Hospital           74.00*
 
               Buena Vista Clinics, P.C.             66.50*
 
               McFarland Clinic                   2,142.03
 
               Mary Greeley Hospital              1,351.04
 
               Total                             $3,736.56
 
          
 
         Those items marked with an asterisk will be paid directly to 
 
         claimant, while the other items shall be paid directly to the 
 
         care providers.
 
         
 
              Defendant IBP, Inc., shall pay mileage expenses to claimant 
 
         totalling three hundred eighty-two and 20/100 dollars ($382.20).
 
         
 
              Defendant IBP, Inc., shall be entitled to credit for all 
 
         benefits paid to claimant voluntarily prior to hearing.
 
         
 
              As all unpaid benefits have accrued as of the date of this 
 
         decision, they shall be paid in a lump sum together with 
 
         statutory interest thereon pursuant to Iowa Code section 85.30.
 
         
 
              Costs in file number 764571 are assessed to defendant IBP, 
 
         Inc., pursuant to Division of Industrial Services Rule 343-4.33.
 
         
 
              Costs in file number 776652 are assessed to claimant 
 
         pursuant to division of Industrial Services Rule 343-4.33.
 
         
 
              Defendant IBP, Inc., shall file claim activity reports as 
 
         requested by this agency pursuant to Division of Industrial 
 
         Services Rule 343-3.1.
 
              
 
              Signed and filed this 3rd day of November, 1989.
 
         
 
         
 
         
 
         
 
         
 
         
 
                                            DAVID RASEY
 
                                            DEPUTY INDUSTRIAL COMMISSIONER
 
         Copies To:
 
         
 
         Mr. Dennis L. Hanssen
 
         Attorney at LaW
 
         Suite 111, Terrace Center
 
         2700 Grand Avenue
 
         Des Moines, Iowa  50312
 
         
 
         Mr. Marlon D. Mormann
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         Attorney at Law
 
         P.O. Box 515, Dept. #41
 
         Dakota City, Nebraska  68731
 
         
 
         Ms. Lorraine J. May
 
         Attorney at Law
 
         4th Floor, Equitable Building
 
         Des Moines, Iowa  50309
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
 
                                                 
 
 
 
 
 
 
 
 
 
 
 
                                                 51402, 1402.40
 
                                                 Filed November 3, 1989 
 
                                                 DAVID RASEY
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         PAUL A. HIKE, JR.,
 
         
 
              Claimant,
 
         
 
         vs.
 
         
 
         IBP, INC.,
 
                                                   File Nos. 764571
 
              Employer,                                      776652
 
              Self-Insured,
 
                                               A R B I T R A T I 0 N
 
         and
 
                                                  D E C I S I 0 N
 
         WEBSTER CONSTRUCTION CO.,
 
         
 
              Employer,
 
         
 
         and
 
         
 
         AETNA CASUALTY & SURETY
 
         COMPANY,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         51402
 
         
 
              Claimant awarded healing period and five percent permanent 
 
         partial disability of the right arm.
 
         
 
         1402.40
 
         
 
              Where claimant suffered one new symptom and exacerbation of 
 
         his shoulder condition while employed with a nonparty subsequent 
 
         employer, his permanency was calculated as of the time he began 
 
         the subsequent employment.
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
 
         
 
        
 
           
 
         
 
           
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         ____________________________________________________________
 
                                       :
 
         PAUL HIKE,                    :
 
                                       :        File No. 764571
 
              Claimant,                :
 
                                       :          R E M A N D
 
         vs.                           :
 
                                       :        D E C I S I O N
 
         IBP, INC.,                    :
 
                                       :
 
              Employer,                :
 
              Self-Insured,            :
 
              Defendant.               :
 
         ___________________________________________________________
 
         
 
         
 
                              STATEMENT OF THE CASE
 
         
 
              The above captioned case has been remanded to the Iowa 
 
         Industrial Commissioner by ruling of the Iowa District Court, 
 
         dated October 31, 1991.  The remand ruling stated the case was 
 
         remanded "for a determination of disability pursuant to 
 
         85.34(2)(u)." 
 
         
 
                                      ISSUE
 
         
 
              The judicial review decision determined that claimant's 
 
         injury was to the body as a whole.  That decision was not 
 
         appealed to the Iowa Supreme Court, and thus the decision is the 
 
         law of the case.  The sole issue on remand, therefore, is the 
 
         extent of claimant's industrial disability.  
 
         
 
                                 FINDINGS OF FACT
 
         
 
              The review of the evidence set forth in the arbitration 
 
         decision filed November 3, 1989 is adopted herein.
 
         conclusions of law
 
         
 
              Claimant has suffered a shoulder injury.  Dr. Brodersen 
 
         rated claimant's impairment as five percent of the upper 
 
         extremity or three percent of the body as a whole.  Although Dr. 
 
         Brodersen indicated these ratings might decrease over time, the 
 
         state of the record at the time of the hearing was that claimant 
 
         suffered this degree of physical impairment.
 
         
 
              Claimant earned, depending on claimant's testimony or 
 
         records of the employer, either $7.15 or $6.50 per hour at IBP.  
 
         After leaving IBP, claimant tried to work in other fields, 
 
         including construction and fiberglass work.  Claimant found he 
 
         was unable to perform at these jobs because of pain from his 
 
         shoulder injury.  Claimant has suffered a loss of earnings as a 
 
         result of his work injury.
 
         
 
              Claimant was exactly 26-years-old at the time of the 
 
         hearing.  Claimant has a high school diploma.  Claimant's prior 
 
         work experience included farm labor.  
 

 
         
 
         Page   2
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
              Based on these and all other appropriate factors for 
 
         determining industrial disability, claimant is determined to have 
 
         an industrial disability of 40 percent.  
 
         
 
                                      ORDER
 
         
 
              THEREFORE, IT IS ORDERED:
 
         
 
              That defendant is to pay unto claimant two hundred (200) 
 
         weeks of permanent partial disability benefits at the rate of one 
 
         hundred fifty-eight and 96/100 dollars ($158.96) from July 21, 
 
         1987.
 
         
 
              That defendant shall pay accrued weekly benefits in a lump 
 
         sum.
 
         
 
              That defendant shall pay interest on unpaid weekly benefits 
 
         awarded herein as set forth in Iowa Code section 85.30.
 
         
 
              That defendant shall pay the costs of this matter including 
 
         the transcription of the hearing.
 
         
 
              
 
              Signed and filed this ____ day of May, 1993.
 
         
 
         
 
         
 
         
 
                                       ________________________________
 
                                                BYRON K. ORTON
 
                                           INDUSTRIAL COMMISSIONER
 
         
 
         Copies To:
 
         
 
         Mr. Dennis L. Hanssen
 
         Attorney at Law
 
         Terrace Center  STE 111
 
         2700 Grand Avenue
 
         Des Moines, Iowa  50312
 
         
 
         Mr. John M. Comer
 
         Attorney at Law
 
         P O Box 515
 
         Dakota City, Nebraska  68731
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                               5-1803
 
                                               Filed May 24, 1993
 
                                               BYRON K. ORTON
 
            
 
            
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                                          :
 
            PAUL HIKE,                    :
 
                                          :        File No. 764571
 
                 Claimant,                :
 
                                          :          R E M A N D
 
            vs.                           :
 
                                          :        D E C I S I O N
 
            IBP, INC.,                    :
 
                                          :
 
                 Employer,                :
 
                 Self-Insured,            :
 
                 Defendant.               :
 
            ___________________________________________________________
 
            
 
            
 
            
 
            5-1803
 
            
 
            On remand from district court, claimant's industrial 
 
            disability was determined to be 40 percent.  Claimant was 26 
 
            years old, with a shoulder injury, high school education, 
 
            lost earnings, and a rating of 3 percent body as a whole 
 
            impairment.
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         _________________________________________________________________
 
         
 
         THOMAS H. KLAREN,
 
                                                 File No. 764821
 
              Claimant,
 
         VS.
 
                                               A R B I T R A T I 0 N
 
         QUAKER OATS COMPANY,
 
                                                 D E C I S I 0 N
 
              Employer,
 
              Defendant.
 
         _________________________________________________________________
 
         
 
                                   INTRODUCTION
 
         
 
              This is a proceeding in arbitration brought by the claimant, 
 
         Thomas H. Klaren, against his employer, Quaker Oats Company, to 
 
         recover benefits under the Iowa Workers' Compensation Act as a 
 
         result of an injury sustained May 9, 1984.  This matter came on 
 
         for hearing before the undersigned deputy industrial commissioner 
 
         at Cedar Rapids, Iowa, on June 17, 1987.  A first report of 
 
         injury was filed May 16, 1984.  The parties stipulated that 
 
         claimant has received all temporary total or healing period 
 
         benefits to which he is entitled and that such benefits are not 
 
         at issue.
 
         
 
              The record in this case consists of testimony of claimant, 
 
         of Julie Ann Klaren, of James Klima, and of Larry Van Lancher as 
 
         well as of claimant's exhibits one through four, six and eight 
 
         and defendant's exhibits A, B and C. Mr. Van Lancher was called 
 
         as a rebuttal witness.
 
         
 
                                   ISSUES
 
         
 
              Pursuant to the pre-hearing report, the parties stipulated 
 
         that claimant's rate of weekly compensation is $279.08, that 
 
         claimant received an injury on May 9, 1984 which arose out of and 
 
         in the course of his employment, and that the injury was causally 
 
         related to temporary and permanent disability.  The issues 
 
         remaining for resolution are:
 
         
 
              1.  The extent of claimant's permanent partial disability 
 
         entitlement; and,
 
         
 
              2.  Whether claimant is entitled to payment of mileage 
 
         expenses enumerated under section 85.27.
 
         
 
              The parties indicated that the permanent partial disability 
 
         entitlement issue may include a sub-issue as to interest due 
 
         claimant.  The parties also dispute the commencement date for 
 
         permanent partial disability.  Defendant's counsel recommended 
 
         payment of a charge of $21.96 which is apparently the outstanding 
 
         section 85.27 issue.  The issues presented in claimant's motion 
 
         in limine appear moot at this time.
 
         
 

 
         
 
         
 
         
 
         KLAREN V. QUAKER OATS COMPANY
 
         Page   2
 
         
 
         
 
                           REVIEW OF THE EVIDENCE
 
         
 
              Claimant was born on September 26, 1956, is married and was 
 
         graduated from high school in 1974.  He began work with Quaker 
 
         Oats on August 11, 1975 and has worked for the company 
 
         continuously since then.  On May 9, 1984, claimant was loading 
 
         oats in the LCL dock.  He reported that he felt a pain in his 
 
         back.  Claimant subsequently saw the company nurse who referred 
 
         him to William R. Basler, M.D., the company doctor.  Dr. Basler 
 
         referred claimant to Martin Roach, M.D., an orthopaedic 
 
         specialist who prescribed physical therapy and referred claimant 
 
         to Warren N. Verdeck, M.D. Dr. Roach subsequently again 
 
         prescribed physical therapy and released claimant for work.  
 
         Claimant reported that he was then referred to James R. 
 
         LaMorgese, M.D., who ordered a CT scan and myelogram which 
 
         studies revealed a herniated disc.  Claimant underwent a 
 
         laminectomy at L5-Sl on June 24, 1985, and was off for 13 weeks.  
 
         On September 23, 1985, he returned to his LCL job with a 40-pound 
 
         weight restriction.
 
         
 
              Claimant continues to hold that job.  He described his job 
 
         as involving loading and unloading case goods, relieving the 
 
         cereal checker, moving bulkhead doors, changing truck batteries 
 
         and helping (clean up) dumped loads.  He indicated that he also 
 
         drives a forklift.  On cross-examination, claimant agreed that 
 
         the LCL job primarily involves forklift driving.  He had stated 
 
         that forklift driving is a problem in that it "jolts" his entire 
 
         body.  Claimant agreed that his job is currently easier than it 
 
         was when he was injured or on his work return.  He reported that 
 
         he has, on occasion, back stiffness and also pain in his right 
 
         leg.
 
         
 
              Claimant agreed that, since his injury, he has received 
 
         raises as the result of union/management collective bargaining 
 
         agreements.  He has received annual bonuses and anticipates an 
 
         annual bonus for 1987; he has health and accident insurance.  
 
         Claimant characterized the LCL job as in the second highest pay 
 
         bracket within the company.  He reported he has not bid on other 
 
         jobs since the LCL job is "all right" when compared with other 
 
         jobs.  He reported that he intends to stay with Quaker Oats and 
 
         feels his job is secure.  He testified that he has had 
 
         disciplinary problems with the company in the past, but has none 
 
         now.  He reported that he feels his foreman has unjustifiably 
 
         expressed dissatisfaction with his work in the past.
 
         
 
              Julie Ann Klaren testified that claimant's physical 
 
         condition bothers him at times, but that, at other times, it does 
 
         not bother him.  She characterized claimant as a noncomplainer.
 
         
 
              James Klima, a co-worker of claimant's who has known 
 
         claimant for approximately ten years, testified that he is a 
 
         checker in the shipping department, but previously held an LCL 
 
         job.  He reported that he has observed claimant at work since his 
 
         work return and that claimant has trouble lifting heavy sacks and 
 
         is bothered by riding on the forklift.  He reported that the 
 
         forklift is driven on a rough, uneven surface and that holes in 
 
         the floor are repaired by cutting the holes out and refilling 
 
         them with cement.  He described the checker job as involving 
 
         taking a product off a roller and loading it in a designated 
 

 
         
 
         
 
         
 
         KLAREN V. QUAKER OATS COMPANY
 
         Page   3
 
         
 
         
 
         trailer.  He reported the bulkhead doors are moved by releasing 
 
         the door pin and then (apparently sliding) the door to the 
 
         opposite end (apparently of the trailer).  Klima stated that the 
 
         forklift battery must be changed each day.  He agreed that the 
 
         battery itself was lifted with a hoist, but reported that the 
 
         battery changer must lean forward approximately two or three feet 
 
         to remove the seat and the metal platform above the battery.  He 
 
         characterized the plate as extremely heavy.  Klima characterized 
 
         the LCL job as a good job in that an individual just loads a 
 
         trailer "straight in, straight out" with no left or right 
 
         maneuvering and with no rollers to which to attend.
 
         
 
              Larry Van Lancher is the LCL second shift supervisor and has 
 
         been claimant's supervisor since November, 1985.  He reported 
 
         that claimant's job as an LCL trucker basically involves forklift 
 
         truck operation, that is, hauling a load of product to the dock 
 
         and unloading it onto the truck.  He reported that occasionally a 
 
         load must be hand finished and that hand loading 40-50 pound bags 
 
         is required for fifteen to twenty minutes once on each shift.  He 
 
         indicated that two people are usually available if 100 pounds 
 
         need to be handled.  He stated that the forklift is operated on a 
 
         cement floor which is "fairly good" but for a few places where 
 
         16-inch steel plates have been placed over cracks.  He agreed 
 
         that the battery of the forklift must be changed each shift, but 
 
         reported that he has observed claimant doing so with no apparent 
 
         difficulties.  He indicated that claimant has replaced the 
 
         wrapper roll in the wrapper machine approximately twice in the 
 
         last 12 months.  The plastic wrapper roll weighs about 40 pounds.  
 
         He testified that he has observed claimant reloading weights of 
 
         greater than 50 pounds, but that, when he has done so, claimant 
 
         has always been assisted.  Van Lancher agreed that the LCL 
 
         trucker relieves the checker department and that the trucker must 
 
         then load and unload product onto the trailer.  He indicated that 
 
         bags of field grain generally weigh approximately 50 pounds; that 
 
         rice weighs 100 pounds; and, that drums of peanut butter or 
 
         soybean oil weigh approximately 500 pounds.  He reported, 
 
         however, that incoming ingredients are generally palletized and 
 
         that they are unloaded with the lifter.  He agreed that those 
 
         which fall off need to be hand reloaded and. that one will 
 
         hand-load to fill out a trailer.  Mr. Van Lancher characterized 
 
         claimant as a good worker who is able to carry out all assigned 
 
         job duties.
 
         
 
              Dr. LaMorgese has assigned claimant a 10% permanent partial 
 
         "disability" rating of the body as a whole.  In a letter of March 
 
         18, 1987 to claimant's counsel, Dr. LaMorgese noted that claimant 
 
         was released from any lifting restrictions on April 22, 1986.  
 
         Additionally, he stated the following:
 
         
 
              Usually I instruct patients to restrict their lifting 
 
              to approximately 70 lbs. after a lumbar laminectomy 
 
              event with an excellent to good result.  I feel that 
 
              patients after low back surgery from a herniated disk 
 
              are at increased risk of having a recurrent back injury 
 
              and that is why I usually have them restrict the amount 
 
              of weight that they lift.  Mr. Klaren indicated to me 
 
              on April 22, 1986, that if I continued to have a weight 
 
              restriction on his lifting ability, that he would lose 
 
              his job.  I reluctantly lifted any restriction on his 
 

 
         
 
         
 
         
 
         KLAREN V. QUAKER OATS COMPANY
 
         Page   4
 
         
 
         
 
              weight in order to try to save him any trouble with his 
 
              employer.  I usually also instruct patients with a low 
 
              back injury to refrain from doing repetitive [sic] 
 
              pushing, pulling, or straining and would recommend that 
 
              they not do this with more than 60 to 70 lbs. of weight 
 
              also.
 
         
 
              Dr. LaMorgese had made the following notes on April 22, 
 
              1986:
 
         
 
              April 22, 1986 - patient was late for his appointment this 
 
              morning because he thought it was 15 minutes later; Dr. had 
 
              left already.  Patient wanted to know if his weight 
 
              restriction could be lifted and Dr. said to 60 lbs.- Patient 
 
              was concerned his Foreman wouldn't be too pleased but said 
 
              he rarely needs to lift over 60 lbs. anyway.  Dr. said no 
 
              100 lb. weights should be lifted yet.
 
         
 
              April 22, 1986 - telephone conversation
 
              I spoke to Mr. Klaren on the phone today.  The foreman 
 
              at Quaker Oats would like to have Mr. Klaren released 
 
              from all weight lifting restrictions at this point.  I 
 
              am reluctantly doing this so that Mr. Klaren can 
 
              continue working at Quaker Oats.  I feel that in all 
 
              probability that the patient will do well without a 
 
              weight restriction.  The patient will be seen again in 
 
              May.
 
         
 
              On May 15, 1986, Dr. LaMorgese indicated that claimant 
 
         appeared to be fully healed and had no neurologic deficits.  He 
 
         reported that claimant had good bilateral ankle reflexes and was 
 
         not having significant back problems.  He discharged claimant 
 
         from his care.
 
         
 
              The description of an LCL trucker contained in claimant's 
 
         personnel file is that that individual iS responsible for 
 
         assembly and marking of LCL orders, the correct count of items 
 
         received in shipments, and the recording of information as to 
 
         code dates, condition, inspection and identification.  The LCL 
 
         trucker also inspects and loads trailers and performs other 
 
         duties as assigned or required for effective plant operation.
 
         
 
              Computerized job descriptions in records indicate that the 
 
         LCL trucker would stand approximately 15% of his time and sit 
 
         approximately 85% of his time with no walking involved.  He or 
 
         she might lift or carry 25 pounds four times per hour, but would 
 
         not be required to push or pull.  The individual would 
 
         occasionally climb, balance, stoop or crouch.  The individual 
 
         would constantly reach, handle, finger or kick, but would not be 
 
         required to kneel, crawl, lie down or feel.  Strength factors for 
 
         a cereal checker are essentially identical.  A pallet repair and 
 
         sanitation worker would need to stand approximately 90% of his 
 
         time and walk approximately 10% of the time with no sitting 
 
         required.  The individual would need to lift or carry 
 
         approximately 50 pounds approximately 100 times per hour, but 
 
         would not be required to push or pull.  That individual would 
 
         frequently balance, stoop, kneel and crouch, would occasionally 
 
         reach, and would constantly handle and finger.  That individual 
 
         would not need to climb, crawl, lie down, feel or pick.
 

 
         
 
         
 
         
 
         KLAREN V. QUAKER OATS COMPANY
 
         Page   5
 
         
 
         
 
         
 
         Claimant's exhibit 3 contains the following:
 
         
 
              DR. JAMES LAMORGESE
 
         
 
                  11 @ 6.5 miles per trip = 71.5 miles
 
         
 
                    1984 - 8-22, 8-30, 9-28, 11-13
 
                    1985 - 2-5, 5-7, 7-18, 8-20, 10-22
 
                    1986 - 4-22, 5-15
 
         
 
              ORTHOPEDIC SURGEONS
 
         
 
                  4 trips @ 4 miles per trip = 16 miles 
 
                    1984 -
 
         
 
              MERCY HOSPITAL
 
         
 
                  One trip @ 4 miles = 4 miles
 
                    1985 -
 
         
 
              TOTAL MILES = 91.5
 
         
 
              TOTAL EXPENSE = $21.96
 
         
 
              The balance of the evidence was reviewed and considered in 
 
         the disposition of this matter.
 
         
 
                       APPLICABLE LAW AND ANALYSIS
 
         
 
              Of first concern is the extent of claimant's permanent 
 
         partial disability entitlement.
 
         
 
              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).
 
         
 
              If claimant has an impairment to the body as a whole, an 
 
         industrial disability has been sustained.  Industrial disability 
 
         was defined in Diederich v. Tri-City Railway Co., 219 Iowa 587, 
 
         593, 258 N.W. 899, 902 (1935) as follows: "It is therefore plain 
 
         that the legislature intended the term 'disability' to mean 
 
         'industrial disability' or loss of earning capacity and not a 
 
         mere 'functional disability' to be computed in the terms of 
 
         percentages of the total physical and mental ability of a normal 
 
         man."
 
         
 
              Functional impairment is an element to be considered in 
 
         determining industrial disability which is the reduction of 
 
         earning capacity, but consideration must also be given to the 
 
         injured employee's age, education, qualifications, experience and 
 
         inability to engage in employment for which he is fitted.  Olson 
 
         v. Goodyear Service Stores, 255 Iowa 1112, 1121, 125 N.W.2d 25 
 
         257 (1963).
 
         
 
              Claimant has a 10% permanent partial impairment.  He has 
 
         returned to the job he held at the time of his injury.  He 
 

 
         
 
         
 
         
 
         KLAREN V. QUAKER OATS COMPANY
 
         Page   6
 
         
 
         
 
         himself agreed that the job is now easier than it was either at 
 
         the time of the injury or at the time of the September, 1985 work 
 
         return.  He can perform that job albeit with some occasional back 
 
         and leg pain.  It appears to be a secure job.  Claimant 
 
         apparently does not intend to seek other employment and has not 
 
         bid on other jobs within the company as he feels that this job is 
 
         "all right." Claimant's job is at the second highest wage bracket 
 
         in the company.  He has received increased wages as a result of 
 
         collective bargaining agreements since his injury.  Claimant has, 
 
         at best, a 70-pound lifting restriction.  He himself indicated to 
 
         his physician that he rarely needs to lift over 60 pounds in his 
 
         present job.  The overall security that claimant has in his 
 
         present position and his satisfaction with that position indicate 
 
         that claimant is not likely to be seeking the heavy industrial 
 
         jobs from which a 70-pound restriction could well preclude him.  
 
         In any event, should that circumstance change, claimant's claim 
 
         would be subject to review-reopening.  Additionally, claimant is 
 
         a younger worker and a high school graduate.  His overall 
 
         demeanor at hearing suggested that he is of at least average 
 
         intelligence.  Consequently, he is in a far better position for 
 
         retraining for lighter duty, non-industrial employment within any 
 
         lifting restrictions if he so desired than would be an older 
 
         worker.  Claimant did not testify as to any life activity 
 
         restrictions outside of his employment.  That fact would suggest 
 
         that claimant's work injury has not been severely disabling.  We 
 
         find that claimant has demonstrated a permanent partial 
 
         disability of 15%.
 
         
 

 
         
 
         
 
         
 
         KLAREN V. QUAKER OATS COMPANY
 
         Page   7
 
         
 
         
 
              At hearing, counsel for claimant indicated that the 
 
         permanent partial disability question would include a sub-issue 
 
         as to interest due claimant.  No evidence relative to that issue 
 
         was presented at hearing and that issue was not addressed in 
 
         briefs submitted by either party.  Claimant, of course, is 
 
         entitled to interest pursuant to section 85.30 on accrued 
 
         amounts.  Likewise, little evidence concerning the commencement 
 
         date for permanent partial disability benefits was presented.  
 
         Pursuant to section 85.34(l), those benefits commence upon 
 
         claimant's work return on September 23, 1985.
 
         
 
              Claimant seeks payment of mileage expenses in the amount of 
 
         $21.96. Section 85.27 permits recovery of mileage expenses 
 
         related to compensable medical expenses.  Defense counsel has 
 
         recommended payment of such expenses.  The expenses are ordered 
 
         paid.
 
         
 
                               FINDINGS OF FACT
 
         
 
              WHEREFORE, IT IS FOUND:
 
         
 
              Claimant was born on September 26, 1956 and was graduated 
 
         from high school in 1974.
 
         
 
              Claimant has worked for Quaker Oats since August 11, 1975 
 
         and continues to work for the company.
 
         
 
              Claimant sustained an injury which arose out of and in the 
 
         course of his employment on May 9, 1984 while working in the LCL 
 
         dock.
 
         
 
              Claimant subsequently underwent a laminectomy at L5-Sl on 
 
         June 24, 1985.
 
         
 
              Claimant returned to his LCL job on September 23, 1985 with 
 
         a 40-pound weight lifting restriction.
 
         
 
              On April 22, 1986, Dr. LaMorgese lifted all weight 
 
         restrictions in order that claimant might continue to work at 
 
         Quaker Oats.
 
         
 
              Dr. LaMorgese generally would prescribe a 70-pound  weight 
 
         lifting restriction following a laminectomy at L5-Sl.
 
         
 
              Claimant generally would not lift over 60 pounds in his 
 
         current position.
 
         
 
              Claimant is not having significant difficulty carrying out 
 
         his LCL job.
 
         
 
              Claimant has received several raises since his injury as the 
 
         result of union-negotiated collective bargaining agreements.
 
         
 
              Claimant's LCL job is easier now than it was at the time of 
 
         his injury or at the time of his work return.
 
         
 
              Claimant's LCL job with Quaker Oats is secure and claimant 
 
         is satisfied with the position.
 
         
 

 
         
 
         
 
         
 
         KLAREN V. QUAKER OATS COMPANY
 
         Page   8
 
         
 
         
 
              Claimant is in a better position to seek retraining for a be 
 
         less physically demanding job should he so desire than would an 
 
         older worker.
 
         
 
              Claimant has had mileage expenses of $21.96 associated with 
 
         medical treatment related to his compensable injury.
 
         
 
                                CONCLUSIONS OF LAW
 
         
 
              THEREFORE, IT IS CONCLUDED:
 
         
 
              Claimant is entitled to permanent partial disability of 15% 
 
         resulting from his May 9, 1984 injury with benefits to commence 
 
         upon his September 23, 1985 work return.
 
         
 
              Claimant is entitled to payment of medical mileage expenses 
 
         of $21.96.
 
         
 
                                    ORDER
 
         
 
              THEREFORE, IT IS ORDERED:
 
         
 
              Defendant pay claimant permanent partial disability benefits 
 
         for seventy-five (75) weeks at the rate of two hundred 
 
         seventy-nine and 08/100 dollars ($279.08) with those payments to 
 
         commence on September 23, 1985.
 
         
 
              Defendant pay accrued amounts in a lump sum.
 
         
 
              Defendant pay claimant mileage expenses as set forth in 
 
         claimant's exhibit 3 and totalling twenty-one and 96/100 dollars 
 
         ($21.96).
 
         
 
              Defendant pay interest pursuant to section 85.30.
 
         
 
              Defendant pay costs pursuant to Division of Industrial 
 
         Services' Rule 343-4.33.
 
         
 
         
 
              Defendant file a Final Payment Report when this award is 
 
         paid.
 
         
 
              This case be returned to docket for consideration of the 
 
         section 86.13 issue.
 
         
 
                Signed and filed this 22nd day of September, 1987.
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
                                          HELEN JEAN WALLESER
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
         Copies To:
 
         
 
         Mr. Robert R. Rush
 
         Attorney at Law
 

 
         
 
         
 
         
 
         KLAREN V. QUAKER OATS COMPANY
 
         Page   9
 
         
 
         
 
         526 Second Avenue SE
 
         P.O. Box 2457
 
         Cedar Rapids, Iowa 52406-2457
 
         
 
         Mr. John M. Bickel
 
         Attorney at Law
 
         500 MNB Building
 
         P.O. Box 2107
 
         Cedar Rapids, Iowa 52406-2107
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                                 1803
 
                                                 Filed September 22, 1987
 
                                                 HELEN JEAN WALLESER
 
         
 
                  BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         _________________________________________________________________
 
         
 
         THOMAS H. KLAREN,
 
                                                 File No. 764821
 
              Claimant,
 
         
 
         VS.
 
                                               A R B I T R A T I 0 N
 
         QUAKER OATS COMPANY,
 
                                                 D E C I S I 0 N
 
              Employer,
 
              Defendant.
 
         _________________________________________________________________
 
         
 
         1803
 
         
 
              Claimant awarded 15% industrial disability.  Claimant was a 
 
         31-year-old high school graduate who had a 10% permanent partial 
 
         impairment rating.  Claimant was employed at the same job as he 
 
         had held prior to his injury and testified that his work was 
 
         easier than at the time of his injury or at the time of his work 
 
         return.  Claimant was satisfied with the employment and the 
 
         employment was secure.  Claimant's treating physician had advised 
 
         claimant's counsel that the physician generally would have 
 
         imposed a 60-70 pound weight restriction, but had removed all 
 
         restrictions as claimant believed he needed all restrictions 
 
         removed to continue his employment.  Claimant had self-reported 
 
         to his physician that he is rarely required to lift over 60 
 
         pounds in his job.
 
 
 
         
 
 
        
 
 
 
 
 
                       BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
        
 
        
 
        DIANE RENDER,
 
        
 
            Claimant,
 
        
 
        vs.                               File No. 765147
 
        
 
        IOWA DEPARTMENT OF HUMAN            A P P E A L
 
        SERVICES,
 
        
 
            Employer,                    D E C I S I O N
 
        
 
        and
 
        
 
        STATE OF IOWA,
 
        
 
            Insurance Carrier,
 
            Defendants.
 
        
 
        
 
                                 STATEMENT OF THE CASE
 
        
 
        Claimant appeals from an arbitration decision denying claimant 
 
        any benefits.
 
        
 
        The record on appeal consists of the transcript or the 
 
        arbitration hearing; claimant's exhibits 1 through 3; and 
 
        defendants' exhibits A through E. Both parties filed briefs on 
 
        appeal.
 
        
 
                                      ISSUE
 
        
 
        The issue on appeal is whether claimant sustained an injury 
 
        arising out of and in the course of her employment.
 
        
 
                                 REVIEW OF THE EVIDENCE
 
        
 
        The arbitration decision adequately and accurately reflects the 
 
        pertinent evidence and it will not be reiterated herein.
 
        
 
                                 APPLICABLE LAW
 
        
 
        The citations of law in the arbitration decision are appropriate 
 
        to the issues and evidence.
 
        
 
                                      ANALYSIS
 
        
 
        The analysis of the evidence in conjunction with the law in the 
 
        arbitration decision is adopted.
 
        
 
        RENDER V. IOWA DEPARTMENT OF HUMAN SERVICES
 
        Page 2
 
        
 
        
 
        The following additional comments are made to augment the 
 
        analysis by the deputy which is adopted. Claimant argues in her 
 
        appeal brief her hospitalization upon a petition of her 
 
        supervisor was a physical injury that aggravated her emotional 
 
        disorder. Claimant's argument is not convincing for several 
 
        reasons. Claimant cites no authority on point for the argument. 
 
        The tort law principle that confinement against one's will is 
 

 
        
 
 
 
 
 
        actionable has not been extended in Iowa workers' compensation 
 
        law to mean that such action constitutes a physical injury. There 
 
        is no indication in the record that claimant was physically 
 
        injured during the process. Furthermore, there is no indication 
 
        that the legal procedure for an involuntary hospitalization was 
 
        not followed in this case. Also, Robert E. Smith, M.D., board 
 
        certified psychiatrist, testified that the people who sought the 
 
        commitment acted appropriately. Last, no specific authority need 
 
        be cited in this decision for the conclusion that merely because 
 
        a person happens to be hospitalized while at work for a nonwork 
 
        condition does not mean that the nonwork condition is a result of 
 
        the employment. Claimant has not proved that she sustained an 
 
        injury that arose out of and in the course of her employment.
 
        
 
                                 FINDINGS OF FACT
 
        
 
        1. During 1982 and 1983, Diane Render, claimant, was a resident 
 
        of the state of Iowa, employed by the Iowa Department of human 
 
        Services within the State of Iowa.
 
        
 
        2. Claimant has a long history of psychological problems dating 
 
        at least as far back as 1974. She was hospitalized at least six 
 
        different times for emotional problems prior to the commencement 
 
        of calendar year 1982.
 
        
 
        3. Claimant was hospitalized for an emotional disturbance in 
 
        March 1982, where she was diagnosed as having depression and as 
 
        having a borderline personality disorder.
 
        
 
        4. The March 1982 hospitalization occurred at a time when 
 
        claimant's employment was relatively harmonious and free from 
 
        stress.
 
        
 
        5. Claimant did not completely recover from the March 1982 
 
        episode.
 
        
 
        6. The nature of claimant's preexisting, underlying psychological 
 
        disorder is that it can become symptomatic, based upon stress, 
 
        regardless of whether the stress is real or perceived.
 
        
 
        RENDER V. IOWA DEPARTMENT OF HUMAN SERVICES
 
        Page 3
 
        
 
        
 
        7. When claimant's underlying psychological disorder becomes 
 
        symptomatic, she has difficulty with interpersonal relationships.
 
        
 
        8. The problems and stress that claimant encountered in her 
 
        employment in 1982 and 1983 were a result of the manifestation of 
 
        the symptoms of her underlying psychological disorder.
 
        
 
        9. The evidence in the case fails to establish, by a 
 
        preponderance of the evidence, that stress in claimant's 
 
        employment was a substantial factor in bringing about the 
 
        psychological disability which affected her commencing in 1982 
 
        and continuing up to the present time.
 
        
 
        10. The evidence in the case fails to establish, by a 
 
        preponderance of the evidence, that the stress to which claimant 
 
        was subjected in her employment was unusual or was out of the 
 
        ordinary when compared with the day-to-day stresses which are 
 
        inherent in being gainfully employed.
 
        
 
        11. Claimant's employment merely provided the setting in which 
 
        claimant's psychological disabilities manifested themselves.
 
        
 

 
        
 
 
 
 
 
        12. The assessment of this case made by Dr. Smith is correct.
 
        
 
                                 CONCLUSIONS OF LAW
 
        
 
        Claimant has failed to prove, by a preponderance of the evidence, 
 
        that she sustained an injury which arose out of and in the course 
 
        of her empLoyment with the Iowa Department of Human Services.
 
        
 
        Claimant has failed to prove that stress to which she was 
 
        subjected in her employment with the Iowa Department of Human 
 
        Services was a proximate cause of any emotional or psycho logical 
 
        disability with which she has been afflicted during the time 
 
        period commencing January of 1982 and running up to the present 
 
        time.
 
        
 
        Claimant has failed to prove that stress in her employment 
 
        aggravated her preexisting condition.
 
        
 
        WHEREFORE, the decision of the deputy is affirmed.
 
        
 
                                      ORDER
 
        
 
        THEREFORE, it is ordered:
 
        
 
        That claimant take nothing from this proceeding.
 
        
 
        That claimant pay the costs of this appeal including 
 
        transcription of the arbitration hearing.
 
        
 
        RENDER V. IOWA DEPARTMENT OF HUMAN SERVICES
 
        Page 4
 
        
 
        
 
        That all other costs of this proceeding are assessed against 
 
        defendants pursuant to Division of Industrial Services Rule 
 
        343-4.33.
 
        
 
        Signed and filed this 15th day of May, 1989.
 
        
 
        
 
        
 
                                             DAVID E. LINQUIST
 
                                        INDUSTRIAL COMMISSIONER
 
        
 
        Copies To:
 
        
 
        Mr. Steven C. Jayne
 
        Attorney at Law
 
        5835 Grand Avenue
 
        Suite 201
 
        Des Moines, Iowa 50312
 
        
 
        Mr. Luis Herrera
 
        Attorney at Law
 
        840 5th Avenue
 
        Des Moines, Iowa 50309
 
        
 
        Mr. Robert W. Pratt
 
        Attorney at Law
 
        1913 Ingersoll Avenue
 
        Des Moines, Iowa 50309
 
        
 
        Mr. Patrick L. Brick
 
        Attorney at Law
 
        550 39th Street
 
        Des Moines, Iowa 50312
 

 
        
 
 
 
 
 
        
 
        Mr. Greg Knoploh
 
        Assistant Attorney General
 
        Tort Claims Division
 
        Hoover State Office Bldg.
 
        Des Moines, Iowa 50319
 
        
 
        
 
 
            
 
 
 
             
 
               
 
                                            1108.20 - 1402.30 - 2204
 
                                            Filed May 15, 1989
 
                                            DAVID E. LINQUIST
 
         
 
                   BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         DIANE RENDER,
 
         
 
              Claimant,
 
                                                    File  No. 765147
 
         vs.
 
         
 
         IOWA DEPARTMENT OF HUMAN                     A P P E A L
 
         SERVICES,
 
         
 
              Employer,                             D E C I S I 0 N
 
         
 
         and
 
         
 
         STATE OF IOWA,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         
 
         1108.20, 1402.30, 2204
 
         
 
         
 
              Claimant, a 44-year-old woman with a long history of 
 
         psychological disturbances, had been employed by the Iowa 
 
         Department of Human Services for approximately 17 years despite a 
 
         number of hospitalizations for psychological difficulties and a 
 
         medical history that included almost constant psychological 
 
         treatment.  In March of 1982, at a time when claimant's 
 
         employment relationship appeared to be quite harmonious, her 
 
         condition deteriorated and she was hospitalized.  She did not 
 
         fully recover from that episode and the subsequent stresses that 
 
         she experienced in her employment were due to her underlying 
 
         personality disorder and did not arise out of and in the course 
 
         of her employment.  The Wisconsin Rule was cited with approval, 
 
         but this case was determined based upon the facts which were 
 
         found to be similar to those in Newman v. John Deere Ottumwa 
 
         Works.  Deputy's decision affirmed on appeal.