BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         DIANE RENDER,
 
         
 
              Claimant,
 
         
 
         VS.
 
         
 
         IOWA DEPARTMENT OF HUMAN                  File No. 765147
 
         SERVICES,
 
                                                A R B I T R A T I 0 N
 
              Employer,
 
                                                   D E C I S I 0 N
 
         and
 
         
 
         STATE OF IOWA,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
                                   INTRODUCTION
 
         
 
              This is a proceeding in arbitration brought by Diane Render 
 
         against the Iowa Department of Human Services, her former 
 
         employer, and the State of Iowa, insurance carrier.  The case was 
 
         heard and fully submitted on October 6, 1987 at Des Moines, Iowa.  
 
         The record in the proceeding consists of testimony from Diane 
 
         Render, Carl W. Northwall, M.D., Curtis Rich, M.S.W., Michael L. 
 
         Hopkins, Robert E. Smith, M.D., and Sally Jagnandan.  The record 
 
         also contains claimant's exhibits 1, 2 and 3 and defendants' 
 
         exhibits A, B, C, D and E.
 
         
 
                                      ISSUES
 
         
 
              Claimant alleges that she sustained a psychiatric injury 
 
         which arose out of and in the course of her employment and that 
 
         she is permanently and totally disabled as a result of that 
 
         injury.  The issues presented by the parties for determination 
 
         are whether claimant sustained an injury which arose out of and 
 
         in the course of her employment; whether any alleged injury is a 
 
         proximate cause of any disability which she has experienced; 
 
         determination of claimant's entitlement to compensation for 
 
         temporary total disability or healing period; and, determination 
 
         of claimant's entitlement to compensation for permanent partial 
 
         or permanent total disability.  Defendants assert that claimant 
 
         failed to give notice of injury as required by Iowa Code section 
 
         85.23.  Defendants seek credit under the provisions of Code 
 
         section 85.38(2) for group plan payments which have been paid.  
 
         By stipulation of the parties, any issues with regard to 
 
         claimant's entitlement to benefits under section 85.27 of The 
 
         Code were bifurcated pending a determination of the employer's 
 
         liability for the alleged injury.
 
                                        
 
                               SUMMARY OF EVIDENCE
 
         
 
              The following is a summary of evidence presented in this 
 
         case.  Only the evidence most pertinent to this decision is 
 
         discussed, but all of the evidence received at the hearing was 
 
         considered in arriving at this decision.  Conclusions about what 
 
         the evidence showed are inevitable with any summarization.  The 
 

 
         
 
         
 
         
 
         RENDER V. IOWA DEPARTMENT OF HUMAN SERVICES
 
         Page   2
 
         
 
         conclusions in the following summary should be considered to be 
 
         preliminary findings of fact.
 
         
 
              Diane Render is a 44-year-old lady who is a graduate of a 
 
         private, Omaha, Nebraska high school.  After high school, she 
 
         attended one year of pre-nursing training in Ottumwa, Iowa, one 
 
         semester of nursing at the University of Iowa and then obtained a 
 
         degree in general science from the University of Iowa in June, 
 
         1966.
 
         
 
              After a brief period of employment in a factory, she became 
 
         employed by what is now known as the Iowa Department of Human 
 
         Services on January 17, 1967.  Claimant remained continuously 
 
         employed by the state of Iowa thereafter until November, 1983 
 
         when she resigned.
 
         
 
              Render has held a variety of positions.  Initially, she was 
 
         a social worker and performed general duties, including 
 
         processing A.D.C. applications and family counseling.  In 1969, 
 
         she became a social worker II and her duties included involvement 
 
         in child abuse, foster care and juvenile court proceedings.  In 
 
         1972, claimant became a full-time intake screener and carried a 
 
         full case load.  In 1976, Render became a resource manager, where 
 
         she assisted general relief recipients in handling money.  For 
 
         approximately two months, she worked with the mental health 
 
         division.  In 1977, Render moved to the district office and was 
 
         assigned to work with the United Way, where she helped compile a 
 
         resource book used to direct needy people to appropriate service 
 
         sources.
 
         
 
              In 1979, claimant began working in the ACES program.  
 
         Initially, she was assigned to assist the director and felt that 
 
         she did well in that position.  In October, 1981, she became a 
 
         case manager.  Claimant stated that she was able to work as a 
 
         case manager.  In early 1982, claimant was hospitalized for what 
 
         she described as headaches, stomach, arm and shoulder problems.  
 
         She also recalled experiencing skin problems.  Claimant felt that 
 
         she was doing well in her case manager position until July, 1982, 
 
         when Mike Hopkins, a co-employee, changed positions.  Claimant 
 
         related that her supervisor, Donna Meyer, suggested that claimant 
 
         cease obtaining treatment from Richard E. Preston, M.D., the 
 
         psychiatrist with whom she had treated for several years.  
 
         Claimant commenced counseling with Curt Rich.
 
         
 
              Claimant testified that Meyer also became critical of
 
         claimant's work.  Claimant became frustrated, nervous and anxious 
 
         about working as a case manager.
 
         
 
              Claimant denied expressing threats towards any of the staff, 
 
         but did not deny making statements about driving dangerously.  
 
         She stated that she was angry when Mike Hopkins visited her.
 
         
 
              Involuntary commitment proceedings resulted in claimant 
 
         being placed in Broadlawns Medical Center on September 3, 1982, 
 
         where she remained until September 8, 1982.  Claimant was 
 
         evaluated and treated for job stress and a dysthymic disorder
 
         (exhibit A, tab 3A).
 
         
 
              After being off work for several months, claimant returned 
 
         to a job working in the WIN program in approximately February, 
 

 
         
 
         
 
         
 
         RENDER V. IOWA DEPARTMENT OF HUMAN SERVICES
 
         Page   3
 
         
 
         1983.  Claimant stated that her duties included individual 
 
         training plans.  Claimant testified that she was immediately 
 
         assigned a high case load.  Claimant ultimately resigned from the 
 
         position in November, 1983.
 
         
 
              Render testified that her primary problem is with 
 
         interpersonal relationships and that she becomes anxious.  She is 
 
         presently treating with Curt Rich and with Dr. Olson.  She feels 
 
         that she is improving.
 
         
 
              Claimant currently receives social security disability 
 
         benefits in the amount of $704.00 per month and long-term 
 
         disability from Bankers Life in the amount of $354.00 per month.  
 
         Claimant felt that she would have difficulty being employed.  She 
 
         has not been gainfully employed since November, 1983.  She 
 
         expressed reluctance to perform menial jobs which did not utilize 
 
         her education.
 
         
 
              Render has a long history of emotional problems.  The 
 
         record, as summarized in defendants' brief, shows seven 
 
         hospitalizations for emotional problems prior to the 
 
         hospitalization that occurred on September 3, 1982.  Tab 2E of 
 
         exhibit A shows that claimant was admitted to Iowa Methodist 
 
         Medical Center on March 7, 1982 with diagnoses that included 
 
         borderline syndrome and depression (exhibit A, page 384).  The 
 
         same diagnoses appeared upon discharge.  It was also noted that 
 
         claimant had a long history of serious mental problems, 
 
         intrapsychic conflicts, adjustment difficulties and severe 
 
         depression.  Her prognosis was characterized as "guarded" 
 
         (exhibit A, page 408).
 
         
 
              When hospitalized on September 3, 1982, claimant related the 
 
         problems to having her 15-year-old nephew staying with her, to 
 
         her friend, Mike Hopkins, having moved to a different position 
 
         and to criticism of her job performance (exhibit A, page 511).
 
         
 
              Claimant testified that there were stresses in her life, 
 
         other than from her employment.  Claimant stated that her nephew
 
         came to stay with her in January, 1982 and that it was intended 
 
         to be permanent, but that he left in June.  She felt that she had 
 
         failed him.  Claimant did not feel that the nephew unduly 
 
         interfered with her work.
 
         
 
              Curtis Rich, a clinical social worker, began counseling with 
 
         claimant in July, 1982.  He stated that claimant was 
 
         decompensating and that he diagnosed her as having a borderline 
 
         personality disorder.  He indicated that her history was one of a 
 
         number of psychiatric disorders.  Rich stated that, in view of 
 
         claimantOs underlying disorder, he was bewildered at how she 
 
         could have worked for as many years as she did.  He was unable to 
 
         explain how she could have performed as a social worker.  Rich 
 
         stated that claimant was decompensating in July, 1982, when he 
 
         initially began treating her.  He indicated that oral 
 
         presentations are something a social worker customarily 
 
         performs.
 
         
 
              Rich identified a number of sources of stress that appeared 
 
         to be affecting Render.  He declined to express an opinion as to 
 
         the cause of her symptomology.
 
         
 

 
         
 
         
 
         
 
         RENDER V. IOWA DEPARTMENT OF HUMAN SERVICES
 
         Page   4
 
         
 
              Michael Hopkins, a practicing psychologist, testified that 
 
         he had worked with claimant in the ACES program and that, 
 
         initially, he had observed no problem with claimant's work and no 
 
         unusual behavior from her.  Hopkins testified that he left the 
 
         program in the spring of 1982 in order to go back to school.  He 
 
         stated that claimant's job as a case manager involved 
 
         incorporating. a number of reports into one report and that she 
 
         had expressed anxiety about her ability to perform it 
 
         adequately.
 
         
 
              Hopkins testified that, when he came back to the office, he 
 
         found claimant to be much more anxious and that, in conversing 
 
         with her, he became concerned about her mental health.  He later 
 
         telephoned her, at which time she expressed a desire to injure 
 
         another staff member.  Hopkins stated that he participated in the 
 
         commitment proceedings.  Hopkins related that, in the spring of 
 
         1982 when Dr. Meyers became the director, claimant's job duties 
 
         changed significantly and they were understaffed in relation to 
 
         their work load.
 
         
 
              Sally Jagnandan testified that she was the director of the 
 
         Des Moines district WIN program.  Jagnandan testified that Render 
 
         was assigned to the unit in February, 1983 to work as a social 
 
         worker responsible for identifying family barriers to employment 
 
         and also for individual training programs.  Jagnandan stated 
 
         that, when claimant first moved into the position, she was 
 
         monitored closely and given a lot of positive feedback, but that, 
 
         in late July, 1983, things began to deteriorate.  Jagnandan 
 
         related that claimant had difficulty using the computer from the 
 
         beginning and that she also had communication problems with 
 
         co-workers.  Claimant had expressed a dislike for the job and 
 
         asked why she had not been fired.
 
         
 
              On approximately September 20, the WIN program changed and 
 
         claimant received new job duties.  These included making group 
 
         presentations.  During the second week of October, claimant was 
 
         given a written reprimand for failing to prepare a training 
 
         program promptly.  Claimant was also warned about using 
 
         headphones in the workplace.  Jagnandan testified that claimant 
 
         voluntarily resigned from her position after a physician had 
 
         provided a statement which indicated that claimant would be 
 
         absent from work intermittently.  Jagnandan stated that claimant 
 
         was not performing satisfactorily at the time she resigned.
 
         
 
              Carl W. Northwall, M.D., and Robert E. Smith, M.D., board 
 
         certified psychiatrists, testified at the hearing.  Dr. Northwall 
 
         expressed the opinion that claimant's employment had aggravated a 
 
         preexisting, borderline personality disorder and caused her to 
 
         become symptomatic.  He did not, however, have knowledge of her 
 
         actual employment duties or of any changes in the employment 
 
         setting (partial transcript, pages 9 and 10).  Dr. Northwall last 
 
         saw claimant in spring, 1985 and felt that she was still quite 
 
         symptomatic and incapable of being employed (partial transcript, 
 
         page 18).
 
         
 
              Dr. Smith explained that borderline personality disorder is 
 
         a quite significant illness and is characterized by tremendous 
 
         emotional instability and interpersonal difficulties.  He 
 
         described it as a chronic, lifelong condition that typically 
 
         starts when a person is a teenager and sometimes begins to wane 
 

 
         
 
         
 
         
 
         RENDER V. IOWA DEPARTMENT OF HUMAN SERVICES
 
         Page   5
 
         
 
         after age 40.  Dr. Smith related that an affected person can 
 
         appear to be symptom-free when things are very harmonious, but 
 
         that they are more vulnerable and reactive to stress than a 
 
         normal person and that symptoms correlate to stress, regardless 
 
         of whether it is real or perceived (partial transcript, pages 
 
         40-46).
 
         
 
              Dr. Smith was questioned about the relationship between 
 
         claimant's work and her illness:
 
         
 
              Q.  Do you think that in Diane's case, that her 
 
              environment or work environment aggravated her 
 
              disorder, or did it merely provide the stage for the 
 
              symptomatology to appear?
 
         
 
              A.  Well, the work environment has had stressors, but I 
 
              think we should also remember that the nonwork 
 
              environment at any point in time also has stressors.  
 
              And I think in anyone's life, both are going on at the 
 
              same time.  The work environment is the stage which 
 
              we're focusing on here, but I think that that maybe is 
 
              more of a perceived focus than a real focus.
 
         
 
              If we could go back and dissect out all the vents that 
 
              were ongoing, all the relationships that were ongoing 
 
              in O82, or in O83, we would find that there would be 
 
              significant difficulties in the work setting and there 
 
              probably would be significant difficulties in the 
 
              nonwork setting.  That's my overview of what was going 
 
              on.  But I do not--I would not quarrel with the concept 
 
              that the work was serving as a stage in which we are 
 
              looking at the dysfunction and the illness.
 
         
 
              Q.  Would a person of normal sensibilities have reacted 
 
              in the manner in which Diane reacted to her work 
 
              environment?
 
         
 
              A.  No.
 
         
 
              Q.  Would you explain that?
 
         
 
              A.  Well, I think the easiest--best place to start is 
 
              the fact that we know certain behavioral 
 
              characteristics appear with borderline personality 
 
              disorders.  And if you don't look at the specifics, but 
 
              if you look at patients with this syndrome, with this 
 
              illness, and start to generalize what is happening to 
 
              them in their lives, both at home, not at home and in 
 
              the work setting, you find repeated patterns of 
 
              behavior.  And the pattern of behavior that occurred in 
 
              the work setting that we're talking about today is 
 
              classic of what we see in a borderline personality 
 
              disorder.  So it occurs in this individual, but it has 
 
              occurred in most individuals with borderline 
 
              personality disorder by our definition of the illness. 
 
               It's part of the illness description.
 
         
 
              Q.  Doctor, do you feel that her work environment--this 
 
              may be somewhat redundant, but is it related to her 
 
              illness?  What is the relationship between the work 
 

 
         
 
         
 
         
 
         RENDER V. IOWA DEPARTMENT OF HUMAN SERVICES
 
         Page   6
 
         
 
              environment and the borderline personality disorder?
 
         
 
              A.  Well, the illness feeds into changes that are 
 
              occurring in the work environment that are both 
 
              positive and negative.  Given time, I think the 
 
              negative effects start to culminate so that the illness 
 
              is affecting the work environment.  When the work 
 
              environment starts to be negative, i.e., abandonment, 
 
              i.e., rejection, i.e., "We're going to fire you," then 
 
              that starts to become an added stress that feeds into 
 
              the illness and then you've got a vicious circle 
 
              going.
 
         
 
              Q.  Doctor, would a person of normal sensibilities have 
 
              become dysfunctional or disabled in the face of the 
 
              work environment that confronted Diane Render?
 
         
 
              A.  I believe not.
 
         
 
              Q.  Doctor, could you explain how you view the 
 
              commitment proceedings in September of 1982, and the 
 
              evolution up to that in the whole picture of Diane 
 
              Render?
 
         
 
              A.  Okay.  I'm piecing together a puzzle, and we have 
 
              to remember that a lot of the information comes from an 
 
              individual's perceived situation and story of that 
 
              situation and bits of information from people's 
 
              interpretation of what people were perceiving, so it's 
 
              not the same as being there.  But I think if you look 
 
              at the events in the context of the illness, things 
 
              make sense.
 
         
 
                   I sense that in the months before the commitment 
 
              being filed, there were perceived situations on Diane's 
 
              part that she was not doing a good job.  There were 
 
              concerns that her supervisor or someone in a position 
 
              of authority might feel that she's inadequate for the 
 
              position and indeed may need to be released or 
 
              terminated, and then obviously there was a component of 
 
              added stresses by the new job description, in which she 
 
              was doing poorly.
 
         
 
                   So we have an individual that was doing  poorly, 
 
              was perceiving that people were recognizing  her as 
 
              doing poorly, confronting her on that and saying--we 
 
              don't know what they were saying, but I think what some 
 
              of Diane's perceptions were, "You need to be fired" or 
 
              "You're going to be fired," and then the vicious circle 
 
              got going.  The more she ruminated on that, the more 
 
              anxious and distraught she became, and was feeling 
 
              rejected, was feeling abandoned.  When borderline 
 
              people start to feel rejection and abandonment, they 
 
              want to go back to the old styles, an area that they 
 
              worked in the past that they could control.  So one 
 
              thing they commonly do is slip into the suicide 
 
              ideation.
 
         
 
                   Most people, when they talk about suicide, they 
 
              stop stressing them and start nurturing them, and that 
 

 
         
 
         
 
         
 
         RENDER V. IOWA DEPARTMENT OF HUMAN SERVICES
 
         Page   7
 
         
 
              led to the switching into the suicidal ideation.  This 
 
              anger that was being projected, that people were 
 
              projecting, got to where she was verbalizing the harm, 
 
              and these were again being given to control the 
 
              environment.  "Back off.  I don't like the stressors I 
 
              am under."  So she was trying to control.
 
         
 
                   The people hearing these comments I think acted 
 
              appropriately.  When someone talks of killing 
 
              themselves, when someone talks of potentially harming 
 
              someone or wishing someone ill, when someone talks of 
 
              driving a car into a mall and potentially injuring 
 
              pedestrians, you can't ignore that, you have to 
 
              intervene.  And the intervention that was chosen, maybe 
 
              the only thing, was to seek commitment or evaluation 
 
              and care.  That's tho scenario in which I see that 
 
              occur.  So when the vicious circle got going, it just 
 
              kept going on itself.
 
         
 
         (Partial transcript, pages 51-55)
 
         
 
              Dr. Smith felt that claimant's history of long-term, 
 
         continuous employment demonstrated a nurturing, supportive 
 
         employment relationship, rather than years of excellent work 
 
         performance (partial transcript, page 64).  Dr. Northwall agreed 
 
         that claimant had apparently been employed in a protective 
 
         position (partial transcript, pages 14 and 15).
 
         
 
              Dr. Smith indicated that, at the time he examined claimant, 
 
         she was employable in a position with a level of stress that was 
 

 
         
 
         
 
         
 
         RENDER V. IOWA DEPARTMENT OF HUMAN SERVICES
 
         Page   8
 
         
 
         appropriate to her disorder (partial transcript, page 69).
 
         
 
              Claimant's exhibit 1 indicates that, on August 7, 1986, a 
 
         report was issued by Donald J. Heywood, A.C.S.W. The first 
 
         statement in the report states, "Informant for this history is 
 
         the patient's mother.  I fear that, relative to the history of 
 
         the file, the mother's information is, at best, marginal and at 
 
         worst, slanted."  The summary states that the informant would 
 
         have characterized claimant as being extremely well adjusted 
 
         until 1982.
 
         
 
                           APPLICABLE LAW AND ANALYSIS
 
         
 
              Claimant has the burden of proving by a preponderance of the 
 
         evidence that she received injuries on September 3, 1982 and 
 
         November 16, 1983 which arose out of and in the course of her 
 
         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).
 
         
 
              While a claimant is not entitled to compensation for the 
 
         results of a preexisting injury or disease, the mere existence at 
 
         the time of a subsequent injury is not a defense.  Rose v. John 
 
         Deere Ottumwa Works, 247 Iowa 900, 908, 76 N.W.2d 756, 760-761 
 
         (1956).  If the claimant had a preexisting condition or 
 
         disability that is aggravated, accelerated, worsened or lighted 
 
         up so that it results in disability, claimant is entitled to 
 
         recover.  Nicks v. Davenport Produce Co., 254 Iowa 130, 115 
 
         N.W.2d 812, 815 (1962).
 
         
 
              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 words "out of" refer to the cause or source of the 
 
         injury.  Crowe v. DeSoto Consol. Sch. Dist., 246 Iowa 402, 68 
 
         N.W.2d 63 (1955).
 
              The words Oin the course of" refer to the time and place and 
 
         circumstances of the injury.  McClure v. Union et al. Counties, 
 
         188 N.W.2d 283 (Iowa 1971); Crowe v. DeSoto Consol. Sch. Dist., 
 
         246 Iowa 402, 68 N.W.2d 63 (1955).
 
         
 
             "Arising out of" is essentially the issue of proximate cause. 
 
          Claimant must prove, by a preponderance of the evidence, the 
 
         causal connection between the employment incident or activity and 
 
         the injury upon which the claim is based.  A possibility is 
 
         insufficient; a probability is necessary.  Holmes v. Bruce Motor 
 
         Freight, Inc., 215 N.W.2d 296, 297 (Iowa 1974).  Whether a 
 
         disability has a direct causal connection with the claimant's 
 
         employment is essentially within the domain of expert testimony. 
 
         Bodish v. Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867, 870 
 
         (1965); Bradshaw v. Iowa Methodist Hospital, 251 Iowa 375, 101 
 
         N.W.2d 167 (1960).
 
         
 
              This case deals with a claim of psychological injury 
 
         resulting from emotional trauma and stress that was not 
 
         accompanied by physical trauma.  The Iowa Supreme Court has not 
 
         yet determined whether mental stimulus causing nervous injury is 
 
         compensable.  In a recent case, the Court specifically declined 
 
         to accept or reject any of the three categories of nervous 
 

 
         
 
         
 
         
 
         RENDER V. IOWA DEPARTMENT OF HUMAN SERVICES
 
         Page   9
 
         
 
         condition cases which are defined in Larson Workmen's 
 
         Compensation Law, section 42.20.  Newman v. John Deere Ottumwa 
 
         Works of Deere & Co., 372 N.W.2d 199 (1985). In Newman, the Court 
 
         reversed the commissioner's award of benefits.  The 
 
         commissioner's award, in essence, was that the mere inhaling of 
 
         welding fumes was sufficient to aggravate Newman's preexisting 
 
         psychological condition and was the proximate cause of the 
 
         disability upon which the claim was based.  In Newman, the Court 
 
         stated that if physical trauma is imaginary,it can form no basis 
 
         for recovery because such is the product of the individual's 
 
         mental condition and not of his work.  The Court stated, "We find 
 
         no cases which permit recovery when employment merely provided a 
 
         stage for the nervous injury." In a footnote, the Iowa Court also 
 
         referred to cases from other jurisdictions, including Szymanski 
 
         v. Halle's Department Store, 63 Ohio S.T.2d 195, 198, 407 N.E.2d 
 
         502, 505 (1980), for the proposition that mental stress, which 
 
         can be traced to the nature of the employee, cannot be considered 
 
         a risk arising from the employeeOs work.  The Court also cited 
 
         the case School District #1 v. Dept. of Industry, Labor and Human 
 
         Relations, 62 Wisc.2d 370, 377, 215 N.W.2d 373, 377 (1974), which 
 
         stated that non-traumatic mental injury, in order to be 
 
         compensable, must result from a situation of greater dimensions 
 
         than the day-to-day emotional strain and tension which all 
 
         employees must experience.  This is sometimes referred to as the 
 
         Wisconsin Test which is the preferable standard according to 
 
         Larson, section 42.23(b).  This agency has followed the 
 
         Wisconsin rule frequently as it is defined in the case Swiss 
 
         Colony, Inc. v. Department of Industry, Labor and Human 
 
         Relations, 72 Wisc. 46, 240 N.W.2d 128 (1976).  The standard is 
 
         similar to the one that is applied to heart attacks, strokes and 
 
         idiopathic conditions.
 
              From the record made in this case, it is clear that 
 
         claimant's emotional disorder was symptomatic when she was 
 
         hospitalized in March, 1982.  She had been under treatment for it 
 
         continuously thereafter and it cannot be fairly concluded that 
 
         she ever actually recovered from the March, 1982 flare-up of her 
 
         underlying condition.  The condition, as explained by Dr. Smith, 
 
         is one in which the onset of symptoms would be likely to produce 
 
         disharmony between the person and other individuals in general.  
 
         This would be expected to occur at her place of employment or at 
 
         any other place where she associated with other individuals.  The 
 
         fact that she had difficulties in both the ACES and WIN programs 
 
         is not unexpected.  It appears to be a classic manifestation of 
 
         the symptoms of the disorder.
 
         
 
              The only evidence in the record of this case of stress being 
 
         placed upon claimant in her employment is that which comes from 
 
         claimant herself.  The record is conspicuously devoid of evidence 
 
         regarding stress levels prior to the March, 1982 hospitalization. 
 
          The physician who made that discharge summary appears to have 
 
         been correct when it was indicated that claimant's future 
 
         prognosis was "guarded.O  The evidence from Dr. Smith is accepted 
 
         as being correct in this case, rather than that from Dr. 
 
         Northwall, even though Dr. Northwall did treat claimant.  Dr. 
 
         Northwall did not have a good grasp or understanding of what was 
 
         actually occurring in claimant's employment.  She was his only 
 
         source of information in that regard.  The vicious circle 
 
         described by Dr. Smith appears to be an accurate assessment of 
 
         what occurred in this case.
 
         
 

 
         
 
         
 
         
 
         RENDER V. IOWA DEPARTMENT OF HUMAN SERVICES
 
         Page  10
 
         
 
              It is therefore found and concluded that claimant has failed 
 
         to prove, by a preponderance of the evidence, that stress in her 
 
         employment was a substantial factor in bringing about any 
 
         emotional or psychological disability which she has experienced.
 
         
 
                                 FINDINGS OF FACT
 
         
 
              1.  During 1982 and 1983, Diane Render was a resident of the 
 
         state of Iowa, employed by the Iowa Department of Human Services 
 
         within the state of Iowa.
 
         
 
              2.  Render 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.  Render 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.  Render 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.
 
         
 
              7.  When claimant's underlying psychological disorder 
 
         becomes symptomatic, she has difficulty with interpersonal 
 
         relationships.
 
         
 
              8.  The problems and stress that Diane Render 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 Render 
 
         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.
 
         
 

 
         
 
         
 
         
 
         RENDER V. IOWA DEPARTMENT OF HUMAN SERVICES
 
         Page  11
 
         
 
         
 
                                CONCLUSIONS OF LAW
 
         
 
              1.  This agency has jurisdiction of the subject matter of 
 
         this proceeding and its parties.
 
         
 
              2.  Diane Render 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.
 
         
 
              3.  Claimant has failed to prove, by a preponderance of the 
 
         evidence, 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 psychological disability with 
 
         which she has been afflicted during the time period commencing 
 
         with January of 1982 and running up to the present time.
 
         
 
              4.  Claimant has failed to introduce evidence showing that 
 
         stress in her employment aggravated her preexisting condition.
 
         
 
                                      ORDER
 
         
 
              IT IS THEREFORE ORDERED that claimant take nothing from this 
 
         proceeding.
 
         
 
              IT IS FURTHER ORDERED that the costs of this proceeding are 
 
         assessed against defendants pursuant to Division of Industrial 
 
         Services Rule 343-4.33.
 
         
 
         
 
              Signed and filed this 29th day of April, 1988.
 
         
 
         
 
         
 
         
 
                                           MICHAEL G. TRIER
 
                                           DEPUTY INDUSTRIAL COMMISSIONER
 
         
 
         Copies To:
 
         
 
         Mr. Patrick Brick
 
         Attorney at Law
 
         550 39th Street, Suite 200
 
         Des Moines, Iowa 50312
 
         
 
         Mr. Luis Herrera
 
         Attorney at Law
 
         840 Fifth Avenue
 
         Des Moines, Iowa 50309
 
         
 
         Mr. Robert W. Pratt
 
         Attorney at Law ,
 
         1913 Ingersoll Avenue
 
         Des Moines, Iowa 50309
 
         
 
         Mr. Greg Knoploh
 
         Assistant Attorney General
 
         Hoover State Office Building
 
         Des Moines, Iowa  50319
 
 
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                              1108.20, 1402.10, 1402.30
 
                                              2204
 
                                              Filed April 29, 1988
 
                                              MICHAEL G. TRIER
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         
 
         DIANE RENDER,
 
         
 
              Claimant,
 
         
 
         VS.
 
         
 
         IOWA DEPARTMENT OF HUMAN                  File No. 765147
 
         SERVICES,
 
                                               A R B I T R A T I 0 N
 
              Employer,
 
                                                  D E C I S I 0 N
 
         and
 
         
 
         STATE OF IOWA,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         
 
         1108.20, 1402.10, 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.
 
 
 
         
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            PATRICIA L. BROWN,            :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :      File No.  765240
 
            AVON PRODUCTS, INC.,          :
 
                                          :  A R B I T R A T I O N
 
                 Employer,                :
 
                                          :      D E C I S I O N
 
            and                           :
 
                                          :
 
            AMERICAN MOTORISTS INS. CO.,  :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
                                   INTRODUCTION
 
            
 
                 This is a proceeding in arbitration brought by Patricia 
 
            L. Brown, claimant, against Avon Products, Inc., employer 
 
            and American Motorist Insurance Co., insurance carrier, 
 
            defendants for benefits as the result of an injury which 
 
            occurred on         May 14, 1984.  A hearing was held on 
 
            July 20, 1988, at Burlington, Iowa, and the case was fully 
 
            submitted at the close of the hearing.  Claimant was 
 
            represented by Robert J. Todd.  Defendants were represented 
 
            by Vicki L. Seeck.  The record consists of the testimony of 
 
            Patricia L. Brown, claimant; claimant's exhibits 2 through 9 
 
            and defendants' exhibits A through U.  Defendants ordered a 
 
            copy of the transcript and provided a copy for the 
 
            industrial commissioner's file.  Claimant's attorney 
 
            submitted a posthearing brief on the admissibility of 
 
            claimant's exhibit 1.  Defendants' attorney submitted a 
 
            posthearing brief on the admissibility of claimant's exhibit 
 
            1 and all of the other issues in this case.  
 
            
 
                                   stipulations
 
            
 
                 The parties stipulated to the following matters at the 
 
            time of the hearing:
 
            
 
                 That an employer-employee relationship existed between 
 
            claimant and employer at the time of the injury.
 
            
 
                 That claimant sustained an injury on May 14, 1984, 
 
            which arose out of and in the course of employment with 
 
            employer.
 
            
 
                 That the injury was the cause of temporary disability; 
 
            that defendants have paid claimant 34 weeks of temporary 
 
            disability benefits prior to hearing; and that further 
 
            entitlement to temporary disability benefits is not a 
 
            disputed matter in this case at this time.
 
            
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
                 That the commencement date for permanent disability 
 
            benefits, in the event such benefits are awarded, is January 
 
            8, 1985.
 
            
 
                 That the rate of compensation, in the event of an 
 
            award, is $190.60 per week.
 
            
 
                 That claimant's entitlement to medical benefits is not 
 
            a disputed matter in this case at this time even though this 
 
            was designated as an issue on the hearing assignment order.
 
            
 
                 That defendants make no claim for credit for employee 
 
            nonoccupational group health plan benefits paid to claimant 
 
            prior to hearing.
 
            
 
                 That defendants paid claimant 34 weeks of temporary 
 
            disability benefits prior to hearing and 28.6 weeks of 
 
            permanent partial disability benefits prior to hearing.
 
            
 
                 That defendants are entitled to a credit in the amount 
 
            of $58,711.70 which would apply to any future medical 
 
            benefits, temporary disability benefits, or permanent 
 
            disability benefits, which might be paid to claimant.  The 
 
            third party credit was designated as a hearing issue on the 
 
            hearing assignment order, but no decision is needed since 
 
            the parties have stipulated to this credit in favor of 
 
            defendants.
 
            
 
                 That there are no bifurcated claims.
 
            
 
                                      issues
 
            
 
                 The parties submitted the following issues for 
 
            determination at the time of the hearing:
 
            
 
                 Whether the injury was the cause of permanent 
 
            disability.
 
            
 
                 Whether claimant is entitled to permanent disability 
 
            benefits, and if so, the nature and extent of benefits to 
 
            which claimant is entitled to include whether claimant is an 
 
            odd-lot employee.
 
            
 
                               preliminary matters
 
            
 
                 Defendants objected to the admission of claimant's 
 
            exhibit 1, the deposition of Marion Jacobs, a vocational 
 
            rehabilitation consultant.  The deputy reserved ruling on 
 
            the objection until the time of this decision.  It is now 
 
            ruled that defendants' objection is sustained.  Claimant's 
 
            exhibit 1 is not admitted into evidence, but remains with 
 
            the file for appellate purposes.  Claimant did not disclose 
 
            this witness on her interrogatories and the interrogatories 
 
            were not supplemented to disclose this witness.  Defendants' 
 
            attorney has at all times, prior to hearing and at hearing, 
 
            objected to the testimony of this witness.  Marion Jacobs 
 
            did appear on claimant's witness list, exhibit R, but the 
 
            deposition of Marion Jacobs did not appear on claimant's 
 
            exhibit list (exhibit S).  Marion Jacobs was not present at 
 
            the hearing to testify in person.
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            
 
                 Claimant's exhibit and witness lists were not timely 
 
            served.  Paragraph six of the hearing assignment order 
 
            provides as follows:  
 
            
 
                 Witness and Exhibit Lists.  A list of all 
 
                 witnesses to be called at the hearing and a list 
 
                 of all proposed exhibits to be offered into the 
 
                 evidence at the hearing along with copies of all 
 
                 written exhibits not previously served shall be 
 
                 served upon opposing parties no later than fifteen 
 
                 (15) days prior to the date of hearing.  Only 
 
                 those witnesses listed will be permitted to 
 
                 testify at the hearing unless their testimony is 
 
                 clearly rebuttal or sur-rebuttal.  Medical 
 
                 records, practitioners reports and all other 
 
                 written evidence shall not be admitted as exhibits 
 
                 at the hearing unless they have been timely served 
 
                 upon an opposing party as ordered herein.
 
            
 
                 The hearing assignment order is dated February 12, 
 
            1988.  It stated the hearing shall be held on the 20th day 
 
            of July 1988.  Fifteen days prior to hearing is July 5, 
 
            1988.  Both claimant's exhibit list and witness list were 
 
            served on July 8, 1988 and were, therefore, not timely 
 
            served.
 
            
 
                 For the same reason the testimony of Raymond Hanks, 
 
            D.C., and Glen Brown, claimant's husband, were excluded from 
 
            evidence at the hearing at the objection of defendants' 
 
            counsel.  Dr. Hanks was allowed to testify as an offer of 
 
            proof, but his hearing testimony has not been considered in 
 
            the determination of the issues in this case.  
 
            
 
                 The written reports of Dr. Hanks, which had been served 
 
            on defendants prior to hearing, were admitted because 
 
            paragraph six does not specifically state that exhibits that 
 
            were previously served under Rules 343 IAC 4.17 and 4.18 
 
            should be excluded simply because they do not appear on an 
 
            exhibit list.  Defendants' attorney stated she had no 
 
            objection with this ruling (transcript page 38).
 
            
 
                 Claimant's exhibits 5 through 8 and defendants' 
 
            exhibits R through U were admitted into evidence to give 
 
            both attorneys ample opportunity to present all of the 
 
            evidence which they desired before a ruling was made on 
 
            claimant's exhibit 1.
 
            
 
                                        
 
            
 
                                 findings of fact
 
            
 
                causal connection-entitlement-permanent disability
 
            
 
                 It is determined that the injury was the cause of 
 
            permanent disability and that claimant has sustained a 35 
 
            percent industrial disability to the body as a whole for the 
 
            injury to her right hip.
 
            
 
                 Claimant was injured in an automobile accident on May 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            14, 1984.  She was treated in the emergency room of 
 
            Burlington Medical Center that day by Gary Smith, M.D., who 
 
            determined that she sustained: (1) fractures of the left 
 
            fifth and sixth ribs with minor displacement; (2) fracture 
 
            of the right acetabulum with no displacement; (3) abrasions 
 
            and contusions and superficial lacerations of the forehead, 
 
            left breast, abdomen and extremities (ex. J).  The following 
 
            day, May 15, 1984, she was referred to Koert R. Smith, M.D., 
 
            a board certified orthopedic surgeon.  He diagnosed 
 
            undisplaced right acetabular fracture and mild right ankle 
 
            sprain (ex. L).  He treated claimant until May 9, 1985.  He 
 
            determined:
 
            
 
                 Based on the A.M.A. Guides to the Evaluation of 
 
                 Permanent Impairment she rates 6% impairment for 
 
                 loss of abduction, 2% loss of adduction, 4% for 
 
                 loss of external rotation and 1% for loss of 
 
                 internal rotation.  Adding these is 13% impairment 
 
                 of the lower extremity.  Conversion table 
 
                 indicates this is 5% whole man impairment.  She 
 
                 will return on a prn basis.
 
            
 
            (exhibit K, p. 4)
 
            
 
                 Dr. Koert Smith testified by deposition that the 
 
            acetabulum is the socket side of the ball-n-socket hip joint 
 
            (ex. M., pp. 6-8 & 28).  Therefore, it is determined that 
 
            claimant has sustained an injury to the body as a whole 
 
            rather than an injury to a scheduled member.  The acetabulum 
 
            is in the pelvis which is a part of the body of the whole.
 
            
 
                 The doctor repeated that claimant sustained a whole-man 
 
            impairment of 5 percent (ex. M, p. 17).  He stated claimant 
 
            may have some limitation of walking long, long distances, 
 
            walking on rough ground and doing a lot of heavy lifting on 
 
            a repetitive basis.  He felt that she was able to lift 100 
 
            pounds, but that she would not be able to do it several 
 
            times in an 8-hour work day (ex. M, pp. 18 & 19).  
 
            
 
                 Dr. Koert Smith stated that he did not believe that 
 
            claimant sustained any permanent injuries as a result of the 
 
            rib fractures (ex. M, p. 21).  
 
            
 
                 Dr. Smith testified that at no time did claimant ever 
 
            complain about low back pain during the period of his 
 
            treatment from May 15, 1984 to May 9, 1985 (ex. M, pp. 23 & 
 
            24).  Claimant never presented any symptoms to him that 
 
            would have caused him to suspect that she was suffering from 
 
            spondylolisthesis (ex. M, pp. 25 & 26).  He felt that 
 
            claimant had reached her maximum medical improvement on May 
 
            9, 1985 and that she could return to her job as an Avon 
 
            sales manager on that date (ex. M, p. 29).  He further 
 
            testified, "My opinion would be that it would be very 
 
            unlikely that the spondylolisthesis would be causally 
 
            connected to her automobile accident." (ex. M, p. 31).  He 
 
            stated that if the accident would have aggravated this 
 
            condition that he should have received some complaint from 
 
            the patient during the one year period of time during which 
 
            he treated her (ex. M, p. 32).
 
            
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
                 Claimant had treated with Raymond Hanks, D.C., for 
 
            neck, shoulder and low back pain, as well as complaints to 
 
            her extremities from October 7, 1976 until the time of the 
 
            automobile accident on May 14, 1984.  Dr. Hanks' records 
 
            indicate that claimant saw him approximately every two or 
 
            three days or approximately three times a week during this 
 
            period of time (ex. H).  She told Dr. Hanks that she had a 
 
            whiplash injury from an amusement ride 18 years prior to 
 
            1976 (ex. H, p. 44) and on another ocassion that she was 
 
            "hit in rear" (ex. H, p. 24).  On July 7, 1980 she reported 
 
            a number of shoulder and back complaints around this period 
 
            of time (ex. H).
 
            
 
                 Dr. Hanks reported that he first examined claimant and 
 
            treated her for this injury at her home on June 3, 1984, for 
 
            headache, neck pain, neck stiffness, chest pain, midback 
 
            pain and stiffness, low back pain and stiffness, upper back 
 
            pain and stiffness, hurts all over in varying degrees, 
 
            contusions and lacerations (healed and healing), right hip 
 
            pain and limited movement, right knee pain and stiffness, 
 
            right ankle pain and stiffness, right elbow pain and 
 
            stiffness, pain ribs, pain ribs and sternum and walking on 
 
            crutches.  He also related claimant's extensive health 
 
            history which predated this injury.  He provided an 
 
            extensive 11 point diagnosis, took numerous measurements and 
 
            determined that claimant has sustained a permanent 
 
            impairment of the whole person of 65 percent based on the 
 
            Guides to the Evaluation of Permanent Impairment, copyright 
 
            1984 American Medical Association.  He imposed severe 
 
            restrictions of not lifting or carrying more than 10 pounds 
 
            occasionally, sit over one-half hour, ride in a car up to 
 
            one hour, stand in one place more than 15 minutes and walk 
 
            for only 30 minutes.  She should use a cane on uneven 
 
            ground.  Her farming would be limited to garden and yard 
 
            work for limited periods of time and should no longer 
 
            participate in other farming activities.  The implication of 
 
            Dr. Hanks' lengthy report is that all of these conditions 
 
            were caused by this injury, but at no point does he make a 
 
            specific statement on the causal connection of this injury 
 
            to this disability (ex. 9).
 
            
 
                 Dr. Hanks referred claimant to Mark E. Hines, M.D., a 
 
            board certified neurologist (ex. 4, p. 5) who first saw 
 
            claimant on June 17, 1985 for low back pain, neck pain and 
 
            headaches (ex. 4, p. 8).  He performed an EMG and nerve 
 
            conduction velocity tests and found minor misalignments at 
 
            C3 and 4, some mild foraminal encroachment at C5 and 
 
            degenerative disc disease at L5, S1 with spondylolisthesis 
 
            of L5, S1 (ex. 4, pp. 10 & 11).  He ordered a CT scan (ex. 
 
            4, p. 12).   
 
            
 
                 The CT of the lumbar spine on June 19, 1985, showed 
 
            severe degenerative disc disease at the L5-S1 level.  "There 
 
            is spondylolysis with spondylolisthesis at L5-S1 as well.  
 
            There is no CT evidence of herniation or spinal stenosis."  
 
            The radiologist concluded, "L5-S1 spondylolysis with 
 
            spondylolisthesis and severe degenerative disc disease." 
 
            (ex. P).  Dr. Hines recommended a myelogram on July 1, 1985 
 
            (ex. 4, p. 14).  A myelogram dated July 8, 1985 disclosed:
 
            
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
                 A grade 1 spondylolisthesis is demonstrated at the 
 
                 L5-S1 level.  In addition, there appears to be 
 
                 some mild disc protrusion at the L3-4 level 
 
                 centrally.  
 
            
 
                 Initially, there is minimal central protrusion at 
 
                 the C6-7 interspace.  
 
            
 
                 Otherwise, no abnormalities are demonstrated.
 
            
 
                 OPINION:  GRADE 1 SPONDYLOLISTHESIS AT L5-S1.  
 
                 MILD DISC PROTRUSION AT THE L3-4 AND C6-7 LEVELS.
 
            
 
            (exhibit Q)
 
            
 
                 Dr. Hines was of the opinion that claimant's back 
 
            condition was worsened or aggravated by the accident (ex. 4, 
 
            pp. 16 & 17), including the spondylolisthesis (ex. 4, pp. 18 
 
            & 19).  Dr. Hines felt that most of claimant's complaints 
 
            were related to the automobile accident (ex. 4, pp. 21-23).  
 
            Dr. Hines referred claimant to David W. Beck, M.D., a 
 
            neurosurgeon at the University of Iowa Hospitals and Clinics 
 
            (ex. 4, pp. 23-27).  Dr. Hines believed that the auto 
 
            accident either caused those symptoms which were not 
 
            previously existing or aggravated those which were made 
 
            worse (ex. 4, pp. 35, 42 & 43).  
 
            
 
                 Dr. Hines admitted that he was not aware of the 
 
            traumatic incidents that claimant had reported to Dr. Hanks 
 
            that predated this injury (ex. 4, p. 46) or that she had 
 
            been taking chiropractic treatments three times a week since 
 
            1976 (ex. 4, pp. 47 & 48).  Dr. Hines was surprised that 
 
            claimant had not reported any back complaints to Dr. Koert 
 
            Smith during his one year period of treatment (ex. 4, pp. 50 
 
            & 51).  Dr. Hines conceded that if her preexisting condition 
 
            were to get worse, he would have expected it to occur during 
 
            that period of time (ex. 4, pp. 51, 60 & 61).  Dr. Hines 
 
            admitted that he would be suspicious if claimant's neck and 
 
            back pains were not reported initially after the accident 
 
            (ex. 4, pp. 61 & 62).  He also conceded that if claimant 
 
            were having these difficulties, he would have expected that 
 
            they would have come up in conversation during her treatment 
 
            with Dr. Koert Smith (ex. 4, p. 64).   
 
            
 
                 Dr. Beck, said claimant's neurologic examination was 
 
            entirely normal.  The evaluation of her cervical myelogram 
 
            reveals a spondylolisthesis at L5-S1.  He recommended 
 
            surgery, but encouraged claimant to lose 20 pounds before 
 
            having surgery (exs. A & B).  In his deposition he 
 
            acknowledged that he was a board certified neurosurgeon (ex. 
 
            C, p. 4).  He said the, "Spondylolysis associated with 
 
            spondylolisthesis is a congenital abnormality." (ex. C, p. 
 
            8) that would have not been caused by the automobile 
 
            accident itself, but it could exacerbate her condition (ex. 
 
            C, p. 9), but he would expect it to occur rather soon after 
 
            the accident (ex. C, p. 10).  Dr. Beck did not believe the 
 
            hip fracture would aggravate the spondylolisthesis (ex. C, 
 
            pp. 14 & 15).  
 
            
 
                 Claimant was also examined and evaluated by Donald D. 
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
            Berg, M.D., on January 6, 1987 (exs. D; F, p. 4).  He is a 
 
            board certified orthopedic surgeon (ex. F, deposition ex. 
 
            1).  He did not detect any impairment of her hip in his 
 
            examination (ex. F, p. 10).  He stated that claimant's 
 
            preexisting spondylolisthesis and degenerative disc disease 
 
            in themselves could be the cause of back pain (ex. F, pp. 12 
 
            & 14).  She made no complaints of neck pain to Dr. Berg (ex. 
 
            F, p. 15).  Dr. Berg believed that if the accident had 
 
            aggravated claimant's low back pain, it would have occurred 
 
            shortly after the automobile accident, within four to six 
 
            weeks.  Dr. Berg stated that it was his opinion that the 
 
            automobile accident of May 14, 1984 did not aggravate 
 
            claimant's spondylolisthesis or her degenerative disc 
 
            disease (ex. F, p. 18).  Claimant admitted to him that she 
 
            usually weighed 35 pounds less than her weight of 170 pounds 
 
            at the time he examined her (ex. F, p. 19).  Dr. Berg also 
 
            stated that the acetabulum is the socket for the hip joint 
 
            (ex. F, p. 30).  
 
            
 
                 Claimant was examined by William Catalona, M.D., on 
 
            October 13, 1987.  He found that using the AMA Guides that 
 
            the patient would have a permanent impairment of her neck, 
 
            low back and right hip of about 15 percent of the whole man.  
 
            He added that regarding disability in working, she contends 
 
            that she could not do work that would require standing and 
 
            walking; however, once her litigation settled, she probably 
 
            could do some standing and walking (ex. G, pp. 2 & 3).  Dr. 
 
            Catalona's report was silent on the point of causal 
 
            connection of claimant's complaints and her current 
 
            impairment to the automobile accident of May 14, 1984 (ex. 
 
            G, pp. 1-3).  
 
            
 
                 Christopher Yep, M.S., C.R.C., C.R.I.S., opined that 
 
            claimant could probably perform light duty work, but he 
 
            recommended a more extensive evaluation (ex. O). 
 
            
 
                 Claimant was evaluated by Pam Hershberg, a vocational 
 
            rehabilitation consultant, who reported on June 26, 1987 
 
            (ex. I).  Hershberg examined the medical documents in this 
 
            case, made a list of claimant's present tolerances and 
 
            concluded that claimant could perform activities of a light 
 
            nature which are defined as lifting 20 pounds maximum with 
 
            frequent lifting or carrying of objects weighing up to 10 
 
            pounds.  Based on claimant's employment history, she found 
 
            several transferable skills.  She found that claimant was 
 
            employable in several occupations and listed a sampling of 
 
            10.  
 
            
 
                 
 
                 1.  Manager, Circulation
 
                 2.  Supervisor, Ticket Sales
 
                 3.  Automobile-Rental Clerk
 
                 4.  Telephone Solicitor
 
                 5.  Assembler, Small Products
 
                 6.  Salesperson
 
                 7.  Central-Supply Worker
 
                 8.  Personal Shopper
 
                 9.  Quality Control Checker
 
                10.  Demonstrator
 
            
 

 
            
 
            Page   8
 
            
 
            
 
            
 
            
 
                 Claimant was 46 years old at the time of the injury and 
 
            50 years old at the time of hearing.  Her disability is more 
 
            serious because the injury occurred at the peak of her 
 
            earnings career.  Becke v. Turner-Busch, Inc., Thirty-fourth 
 
            Biennial Report of the Industrial Commissioner 34 (Appeal 
 
            Decision  1979); Walton v. B & H Tank Corp., II Iowa 
 
            Industrial Commissioner Report 426 (1981); McCoy v. 
 
            Donaldson Company, Inc., file numbers 782670 & 805200 
 
            (Appeal Decision April 28, 1989).  Claimant has a high 
 
            school diploma and a varied employment background.  She was 
 
            very capable as a self-employed farmer as a partner with her 
 
            husband who performed field work as well as clerical duties 
 
            in the farming enterprise.  She has been a sales clerk and a 
 
            nurse's aide.  She was an Avon salesperson, temporary 
 
            manager and eventually became district manager in 1983.
 
            
 
                 It is difficult to determine claimant's true disability 
 
            because she has not performed any active employment since 
 
            her injury.  Schofield v. Iowa Beef Processors, Inc., II 
 
            Iowa Industrial Commissioner Report 334, 336 (1981).  
 
            Furthermore, claimant did not establish that her exceedingly 
 
            numerous bodily complaints, described in her testimony and 
 
            in the report of Dr. Hanks, were caused by this injury.  The 
 
            opinion of Dr. Koert Smith, the treating board certified 
 
            orthopedic surgeon; Dr. Beck, the University of Iowa 
 
            neurosurgeon; and Dr. Berg an orthopedic surgeon, are 
 
            preferred over the opinion of Dr. Hines, a neurologist, as 
 
            to whether the automobile accident of May 14, 1984 was the 
 
            cause of claimant's current neck, back and headache 
 
            complaints.  Dr. Hanks and Dr. Catalona gave no opinion on 
 
            causal connection of the injury to disability.  Her 
 
            spondylolisthesis was diagnosed and treated long before this 
 
            injury.  Dr. Hanks had been treating claimant for 
 
            degenerative disc disease, neck, back and extremity 
 
            complaints every two or three days from 1976 until the time 
 
            of this injury.  
 
            
 
                 Therefore, it is determined that this injury was not 
 
            the cause of claimant's current neck, back and headache 
 
            complaints or the complaints in her shoulders and upper and 
 
            lower extremities.  Dr. Koert Smith said she had no 
 
            impairment in her neck from this accident.  In fact claimant 
 
            never voiced any neck, back or headache complaints to Dr. 
 
            Koert Smith, her treating, board certified, orthopedic 
 
            surgeon at any time between the automobile accident on May 
 
            14, 1984 and the time he lasted treated her on May 9, 1985.  
 
            Claimant did not mention neck compalints to Dr. Berg.  Most 
 
            of the medical doctors, even Dr. Hines, found this to be 
 
            very unusual, if not unexplainable. 
 
            
 
                 Claimant did sustain a 5 percent impairment to the body 
 
            as a whole for the injury to her right hip which is based on 
 
            a 13 percent impairment to the lower right extremity.
 
            
 
                 Dr. Keort Smith thought she could return to her Avon 
 
            job.  Yep felt that claimant was employable in light duty 
 
            work.  Hershberg gave a number of examples of light duty 
 
            jobs that claimant could perform.  
 
            
 
                 Wherefore based on the foregoing considerations; 
 

 
            
 
            Page   9
 
            
 
            
 
            
 
            
 
            claimant's testimony at the hearing; the reports of the 
 
            doctors; and all of the factors used to determine industrial 
 
            disability, Christensen v. Hagen, Inc., vol. I, no. 3, State 
 
            of Iowa Industrial Commissioner Decisions 529 (Appeal 
 
            Decision March 26, 1985); Peterson v. Truck Haven Cafe, 
 
            Inc., vol. 1, no. 3 State of Iowa Industrial Commissioner 
 
            Decisions 654, 658 (Appeal Decision February 28, 1985) and 
 
            applying agency expertise, [Iowa Administrative Procedure 
 
            Act 17A.14(5)]; it is determined that claimant has sustained 
 
            a 35 percent industrial disability to the body as a whole 
 
            and is entitled to 175 weeks of workers' compensation 
 
            benefits at the stipulated rate of $190.60 per week for a 
 
            total entitlement of $33,355 of permanent partial 
 
            disability. 
 
            
 
                 It is determined that claimant is not an odd-lot 
 
            employee.  She only applied for one job and has not made a 
 
            bona fide search to find employment in the area of her 
 
            residence.  Guyton v. Irving Jensen Co., 373 N.W.2d 101 
 
            (Iowa 1985); Emshoff v. Petroleum Transportation Services, 
 
            Inc., file 753723 (Appeal Decision March 31, 1987);  
 
            Hingtgen v. Goodmann, file 737771 (Appeal Decision 
 
            September 30, 1988); Collins v. Friendship Village, Inc., 
 
            file 679258 (Appeal Decision October 31, 1988).
 
            
 
                 Claimant's entitlement of $33,355 of permanent partial 
 
            disability is subject to a credit for 28.6 weeks of 
 
            permanent partial disability benefits paid to claimant prior 
 
            to hearing at the rate of $190.60 per week in the total 
 
            amount of $5,451.16 and the third party credit in the amount 
 
            of $58,711.70.
 
            
 
                                conclusions of law
 
            
 
                 Wherefore, based on the evidence presented and the 
 
            foregoing and following principles of law, these conclusions 
 
            of law are made:
 
            
 
                 That the injury of May 14, 1984, was the cause of 
 
            permanent disability.  Bodish v. Fischer, Inc., 257 Iowa 
 
            516, 133 N.W.2d 867 (1965); Lindahl v. L.O. Boggs Co., 236 
 
            Iowa 296 18 N.W.2d 607 (1945).
 
            
 
                 That claimant has sustained a 35 percent industrial 
 
            disability to the body as a whole and is entitled to 175 
 
            weeks of permanent partial disability benefits.  Iowa Code 
 
            section 85.34(2)(u).  
 
            
 
                 That defendants are entitled to a credit for the 28.6 
 
            weeks of permanent partial disability benefits paid to 
 
            claimant prior to hearing at the rate of $190.60 per week in 
 
            the total amount of $5,451.16 and defendants are further 
 
            entitled to a third party credit in the amount of 
 
            $58,711.70.
 
            
 
                                      order
 
            
 
                 THEREFORE, IT IS ORDERED:
 
            
 
                 That no money is owed by defendants to claimant.
 

 
            
 
            Page  10
 
            
 
            
 
            
 
            
 
            
 
                 That defendants are entitled to a credit for claimant's 
 
            entitlement from this decision in the amount of thirty three 
 
            thousand three hundred fifty-five dollars ($33,355).
 
            
 
                 That the costs of this action are charged to claimant 
 
            pursuant to Rule 343 IAC 4.33 to include the costs requested 
 
            by defendants in paragraph D of the prehearing report, to 
 
            wit: deposition of Dr. Beck - one hundred fifty dollars 
 
            ($150); deposition of Dr. Berg - one hundred fifty dollars 
 
            ($150); the cost of the court reporter for these two 
 
            depositions and the cost of the attendance of the court 
 
            reporter at hearing.  Claimant is not liable for the 
 
            transcript, which was ordered by defendants or the copy 
 
            supplied to the industrial commissioner's file.
 
            
 
                 That defendants file claim activity reports as 
 
            requested by this agency pursuant to Rule 343 IAC 3.1.
 
            
 
                 That defendants file form 2a showing the total amount 
 
            of payments paid to claimant prior to hearing.
 
            
 
                 Signed and filed this ____ day of November, 1990.
 
            
 
            
 
            
 
            
 
                                          ______________________________
 
                                          WALTER R. McMANUS, JR.
 
                                          DEPUTY INDUSTRIAL COMMISSIONER    
 
            
 
            
 
            
 
            
 
            Copies to:
 
            
 
            Mr. Robert J. Todd
 
            Attorney at Law
 
            825 N 6th St
 
            Burlington, Iowa  52601
 
            
 
            Ms. Vicki Seeck
 
            Attorney at Law
 
            600 Union Arcade Bldg
 
            111 E 3rd ST
 
            Davenport, Iowa  52801
 
            
 
            
 
                 
 
            
 
 
         
 
         Page   1
 
         
 
                                       51401; 51402.40; 51803; 54100; 
 
                                       51703; 51704
 
                                       Filed November 30, 1990
 
                                       Walter R. McManus, Jr.
 
         
 
                           before the iowa industrial 
 
                                   commissioner
 
         ____________________________________________________________
 
                                       :
 
         PATRICIA L. BROWN,            :
 
                                       :
 
              Claimant,                :
 
                                       :
 
         vs.                           :
 
                                       :      File No.  765240
 
         AVON PRODUCTS, INC.,          :
 
                                       :  A R B I T R A T I O N
 
              Employer,                :
 
                                       :      D E C I S I O N
 
         and                           :
 
                                       :
 
         AMERICAN MOTORISTS INS. CO.,  :
 
                                       :
 
              Insurance Carrier,       :
 
              Defendants.              :
 
         ___________________________________________________________
 
         
 
         51401; 51402.40; 51803
 
         Claimant proved causal connection and entitlement to industrial 
 
         disability for impairment to her right hip from an automobile 
 
         accident.  She did not prove that her extensive complaints to her 
 
         neck, back and headaches as well as her problems in her 
 
         extremities for which she had received chiropractic treatments 
 
         very two or three days (approximately three times a week) since 
 
         1976 were caused by this injury.  She was receiving treatments 
 
         from the chiropractor during her period of recovery, but never 
 
         mentioned neck, back or headache pain to her treating orthopedic 
 
         surgeon during the approximate one year he treated her broken 
 
         hip.  Claimant awarded 25 percent permanent partial disability 
 
         based on a 5 percent permanent functional impairment rating of 
 
         the treating board certified orthopedic surgeon.  A 65 percent 
 
         functional impairment rating from the chiropractor was largely 
 
         ignored because he made no statement on causal connection and 
 
         because it included a plethora of ailments not proven to be 
 
         caused by this injury.  Vocational rehabilitation evidence said 
 
         claimant could do sedentary or light work.  Treating physician 
 
         said she could do her old job when he released claimant 
 
         essentially without restrictions.
 
         
 
         54100
 
         Claimant was determined not to be an odd-lot employee because she 
 
         had only applied for one job after her recovery.
 
         
 
         51703; 51704
 
         Defendants awarded a credit for permanent benefits paid prior to 
 
         hearing and also a third party settlement which settlement 
 
         greatly exceeded the award in this case.
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         SHARON A. STONEBURNER,
 
         
 
              Claimant,
 
         
 
         vs.                                         FILE NO. 765386
 
         
 
         MERIT BAKING COMPANY,
 
                                                 A R B I T R A T I 0 N
 
              Employer,
 
                                                     D E C I S I O N
 
         and
 
         
 
         LIBERTY MUTUAL INSURANCE
 
         COMPANY,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         
 
                                   INTRODUCTION
 
         
 
              This is a proceeding in arbitration brought by Sharon A. 
 
         Stoneburner, claimant, against Merit Baking Company, employer, 
 
         and Liberty Mutual Insurance Company, insurance carrier, 
 
         defendants, for benefits as the result of an injury which 
 
         occurred on April 9, 1984.  A hearing was held in Des Moines, 
 
         Iowa on March 2, 1987 and the case was fully submitted at the 
 
         close of the hearing.  The record consists of the testimony of 
 
         Sharon A. Stoneburner (claimant), Roger F. Marquardt (vocational 
 
         specialist), Marlene Foster (rehabilitation nurse), claimant's 
 
         exhibits 1 through 15, and defendants' exhibit A, which consists 
 
         of 97 consecutively numbered pages.  Both attorneys submitted 
 
         excellent briefs.  Defendants supplied a transcript to the 
 
         industrial commissioner file.
 
         
 
                                 STIPULATIONS
 
         
 
              The parties stipulated to the following matters:
 
         
 
              That an employer/employee relationship existed between 
 
         claimant and employer at the time of the injury.
 
         
 
              That claimant sustained an injury on April 9, 1984 which 
 
         arose out of and in the course of her employment with employer.
 
         
 
              That the injury was the cause of both temporary and 
 
         permanent disability.
 
              That the weekly rate of compensation in the event of an 
 
         award is $178.58 per week.
 
         
 
              That all requested medical benefits have been or will be 
 
         paid by defendants.
 
         
 

 
         
 
         
 
         
 
         STONEBURNER V. MERIT BAKING COMPANY
 
         Page   2
 
         
 
         
 
              That defendants are entitled to a credit for 147 1/7 weeks 
 
         of workers' compensation at the rate of $178.58 paid to claimant 
 
         prior to hearing.
 
         
 
                                      ISSUES
 
         
 
              The parties submitted the following issues for determination 
 
         at the time of the hearing:
 
         
 
              Whether claimant is entitled to temporary disability 
 
         benefits and, if so, the nature and extent of benefits.
 
         
 
              Whether claimant is entitled to permanent disability 
 
         benefits,, and, if so, the nature and extent of benefits.
 
         
 
                             SUMMARY OF THE EVIDENCE
 
         
 
              Claimant was born on April 6, 1942.  At the time of the 
 
         injury she was 42 years old, married and had three adult 
 
         children.  She completed high school but did not have any 
 
         additional education or training after that.  Past employments 
 
         include dishwasher, waitress, meat wrapper, checkout counter 
 
         clerk, computer parts handler, machine operator, and inspector.  
 
         Claimant testified that she started to work for employer in 1972 
 
         as a cookie packer.  She packed cookies for 11 years.  This job 
 
         required her to place four to six cookies onto a card that was 
 
         later wrapped and sealed by a machine.  She lifted 30, 40 or 50 
 
         pound boxes of cards approximately four times a day.  In her next 
 
         job she processed panned icebox cookies.  In this job she lifted 
 
         100 pounds maybe eight, nine or ten times a day.  At the time of 
 
         her injury on April 9, 1984, claimant testified that she was an 
 
         inspector of completed packages of cookies.  She inspected the 
 
         final product for proper labels, codes, holes in the package or 
 
         broken cookies.  In this job she lifted 20, 25 or 30 pounds but 
 
         she did not say how often she lifted these weights.
 
         
 
              At the hearing claimant testified that at the time of this 
 
         injury on April 9, 1984, she caught her hand between some boxes 
 
         and got a real bad jerk or jolt that hurt her neck and her right 
 
         shoulder (Transcript page 19).  Claimant testified that she went 
 
         to see James A. Hardinger, D.O., on April 12, 1984.  She returned 
 
         to work the following day and continued to work until May 1, 
 
         1984.  Claimant related that she experienced terrific aches in 
 
         her head, neck and right shoulder.  Dr. Hardinger took her off 
 
         work on May 1, 1984.  She has not returned to work since that 
 
         date (Tr. pp. 20 & 21).  Claimant testified that she was earning 
 
         $6.67 per hour at the time of the injury and also enjoyed 
 
         employee benefits of health insurance, profit sharing, paid 
 
         vacations, and Christmas bonuses (Tr. pp. 60 & 61).
 
         
 
              Dr. Hardinger's records reflect that he saw claimant for 
 
         neck and shoulder pain on April 12, 1984 which he called 
 
         myofascitis.  He stated that she was injured at work.  He 
 
         prescribed medications and returned her to work on the same day 
 
         (Exhibit 1-a & 1-b).  On May 1, 1984, Dr. Hardinger took her off 
 
         work until May 3, 1984, in order for her to see John A. McKee, 
 
         M.D., (Tr. p. 21; Ex. 1-c).
 
         
 
              Dr. McKee, a neurologist, diagnosed bilateral carpal tunnel 
 

 
         
 
         
 
         
 
         STONEBURNER V. MERIT BAKING COMPANY
 
         Page   3
 
         
 
         
 
         syndrome as claimant's primary condition.  He also found that she 
 
         had a cervical strain, but with no serious radiculopathy (Ex. 
 
         5-a).  It should be noted that the subject of this claim is the 
 
         cervical strain and not the carpal tunnel syndrome.  Dr. McKee 
 
         said that the cervical strain was probably caused by her work 
 
         related accident on April 9, 1984.  He understood that claimant's 
 
         hand got caught between two cookie boxes which were slammed 
 
         together by another worker and that her arm was then yanked by 
 
         the cookies passing down the assembly line so that she got a 
 
         vigorous jolt to the arm (Ex. 5-a).
 
         
 
              Dr. Stephen M. Sundberg, M.D., performed a left carpal 
 
         tunnel release on May 7, 1984 and a right carpal tunnel release 
 
         on May 17, 1984 (Ex. 2-a, 2-b, 3-a & 3-b).  Dr. Sundberg stated 
 
         that he did not treat her for her neck problems (Ex. 3-b).  
 
         Claimant then returned to Dr. Hardinger for the cervical strain.  
 
         Dr. Hardinger then sent her back to Dr. McKee again (Tr. p. 22).
 
         
 
              Dr. McKee saw claimant again on June 19, 1984 for numbness 
 
         in her right hand in her fourth and fifth finger and hypothenar 
 
         eminence and pain in her right neck and trapezius.  Dr. McKee's 
 
         neurologic examination, tests and x-rays were negative.  He 
 
         recommended conservative treatment of neck, massage and traction 
 
         (Ex. 5-b).  He stated that there might be some mild ulnar 
 
         neuropathy, but at the present time there was no clear cut 
 
         evidence of a C7 or C8 radiculopathy (Ex. 5-b, p. 2).
 
         
 
              Dr. Hardinger then sent claimant to see Robert C. Jones, 
 
         M.D., a neurosurgeon, on July 3, 1984.  He diagnosed cervical 
 
         strain with discomfort in her right neck and trapezius and upper 
 
         arm which he said was incident to the injury at work on April 9, 
 
         1984.  He commented that she was also depressed and recommended 
 
         medications for her depression.
 
         
 
              Dr. Jones said that in the absence of positive neurologic 
 
         findings, he could not make a diagnosis of cervical radicular 
 
         compression syndrome.  He continued her medication and 
 
         antidepression medication.  He also suggested additional physical 
 
         therapy.  Furthermore, Dr. Jones stated that he also suspected 
 
         bursitis in her right shoulder (Ex. 4-a through 4-d).  Dr. Jones 
 
         added a TENS unit on July 24, 1984 (Ex. 4-e).  He ordered a 
 
         myelogram on September 25, 1984 (Ex. 4-c and 6-c).  Dr. Jones 
 
         performed an anterior cervical interbody fusion at C5, C6 and 
 
         removed free disc fragments on September 28, 1984 (Ex. 6-h).  
 
         Claimant was discharged on October 3, 1984 with relief of right 
 
         shoulder and arm pain (Ex. 6-i).  On December 3, 1984, x-rays of 
 
         the fused vertebrae showed good realignment with no significant 
 
         changes (Ex. 6-k).  Nevertheless, Dr. Jones said that on December 
 
         3, 1984 and December 17, 1984, claimant still complained of neck 
 
         and right trapezius pain when she used her right arm., Dr. Jones 
 
         continued physical therapy, a TENS unit and a heating pad (Ex. 
 
         4-i).  Claimant's right shoulder and trapezius pain continued on 
 
         January 22, 1985.  Dr. Jones then recommended cervical epidural 
 
         injections (Ex. 4-j).  Two tender trigger points were injected by 
 
         M. S. Iqbal, M.D., on January 21, 1985 and again on January 29, 
 
         1985 (Ex. 7-b, 7-d).  Dr. Jones reported on February 12, 1985, 
 
         that the first injection gave claimant relief but the second 
 
         injection did not (Ex. 4-1).  After these injections claimant 
 
         began to complain of progressive pain in her mid and lower back 
 

 
         
 
         
 
         
 
         STONEBURNER V. MERIT BAKING COMPANY
 
         Page   4
 
         
 
         
 
         with some pain radiating down her right lower extremity (Ex. 
 
         11-a, p. 1 & 11-b, p. 6).  Ordinary housework hurt claimant's 
 
         right shoulder.  Therefore, Dr. Jones did not see how she could 
 
         go back to work on February 12, 1985 (Ex. 4-1).
 
         
 
              Dr. Jones last saw claimant on February 25, 1985.  Claimant 
 
         complained of tenderness and tightness in the right trapezius 
 
         muscle when raising her arm at the shoulder which she has to do 
 
         in her job.  Dr. Jones considered putting claimant back in the 
 
         hospital for a myelogram to determine the cause of her continued 
 
         problems but the workers' compensation carrier cancelled this.  
 
         On October 30, 1985, Dr. Jones wrote that if someone gave an 
 
         impairment figure of 15 percent for claimant's neck problem, then 
 
         he would not disagree with it (Ex. 4-m).  Dr. Jones, however, did 
 
         not specify an impairment rating based upon his own physical 
 
         examination given for that purpose.  Dr. Jones did report that 
 
         the problems for which he treated claimant were related to her 
 
         injury at work (Ex. 4-h).  Claimant testified that she had 
 
         approximately 45 physical therapy treatments prescribed by Dr. 
 
         Jones but before and after her surgery (Tr. pp. 25 & 26).
 
         
 
              Claimant was then examined by Thomas A. Carlstrom, M.D., a 
 
         neurosurgeon, on April 18, 1985, but he did not become a treating 
 
         physician (Tr. pp. 24 & 25).  Claimant wanted to see Dr. 
 
         Carlstrom and the insurance carrier wanted her to see Dr. 
 
         Carlstrom in order to obtain a second opinion before having a 
 
         second myelogram (Tr. pp. 91, 92 & 93).  Claimant also found Dr. 
 
         Jones was hard to communicate with (Tr. p. 105).  Dr. Carlstrom 
 
         understood that claimant was holding some boxes, the boxes 
 
         slipped to the left and she followed the boxes with the immediate 
 
         onset of pain in her right shoulder.  He related that she had no 
 
         improvement after the anterior cervical fusion.  She complained 
 
         of pain in the right shoulder with diffuse right shoulder spasm 
 
         and pain and muscle spasm in her right trapezius muscle.  On 
 
         physical examination, he found a tenderness over the right 
 
         trapezius with spasm within the muscle.  The medial scapulae was 
 
         tender.  There was mildly diminished range of motion of the neck 
 
         with tenderness in the right paravertebral muscles.  Dr. 
 
         Carlstrom did not review x-rays but he ordered a CT scan of the 
 
         upper torso to evaluate her shoulder.  This study did not show 
 
         any abnormalities of the upper thoracic or shoulder girdle 
 
         bilaterally.  Dr. Carlstrom diagnosed a myofascial injury to the 
 
         right shoulder with little evidence of cervical radiculopathy at 
 
         the present time.  The carpal tunnel syndrome seemed to be 
 
         resolved.  He recommended against a cervical myelogram at that 
 
         time.  He said that further therapeutic or diagnostic endeavors 
 
         are likely to run into dead ends.  He stated that he thought 
 
         claimant had reached maximum medical benefits at the present 
 
         time.  He felt that she should not perform heavy work in the 
 
         future.  He said permanent restrictions against heavy lifting and 
 
         heavy exertion with a 25 pound weight limit, with no pushing or 
 
         pulling to a similar degree, would be appropriate.  Dr. Carlstrom 
 
         stated that he believed claimant suffered a permanent partial 
 
         impairment of seven to eight percent of the body as a whole based 
 
         on her post-operative status and continued symptoms with 
 
         significant findings on her general examination (Ex. 8-a).  Dr. 
 
         Carlstrom did not specify whether his rating included or excluded 
 
         the carpal tunnel surgery.  Dr. Carlstrom did not specify whether 
 
         the injury of April 9, 1984 specifically caused claimant's 
 

 
         
 
         
 
         
 
         STONEBURNER V. MERIT BAKING COMPANY
 
         Page   5
 
         
 
         
 
         current tenderness and spasm but he gave the injury history set 
 
         out above and proceeds on that basis.
 
         
 
              Marlene Foster, a rehabilitation nurse for the insurance 
 
         carrier, testified that no one has ever said Dr. Jones was no 
 
         longer the treating physician.  Foster testified that no one at 
 
         the insurance company ever cancelled a myelogram as Dr. Jones 
 
         stated.  Foster testified that the insurance company only wanted 
 
         a second opinion before another myelogram was performed because 
 
         often surgery immediately follows a myelogram.  Foster said that 
 
         after claimant had seen Dr. Carlstrom for a second opinion that 
 
         claimant was free to continue with Dr. Jones if she wanted to 
 
         (Tr. pp. 91 & 107).  Claimant testified that she never did have 
 
         another myelogram (Tr. p. 29).
 
         
 
              On May 8, 1985, Donald W. Blair, M.D., a neurosurgeon, 
 
         reported that he examined Dr. Carlstrom's report.  Dr. Blair said 
 
         that claimant did not desire to have any further diagnostic 
 
         measures or specific treatment.  He thought that an impairment 
 
         rating of 10 percent could be in line with the degree of apparent 
 
         continuing symptoms (Ex. 10).
 
         
 
             Claimant received a letter from employer dated April 30, 1985 
 
         which read as follows:
 
              Effective last week, Liberty Mutual changed your status 
 
              from temporary total disability to permanent partial 
 
              disability.  We are officially terminating your Merit 
 
              Baking Company employment effective 4/30/85 .
 
         
 
              If you wish to withdraw your Profit Sharing Trust now, 
 
              come in and see me.  Your 1985 pro-rated vacation pay 
 
              is also available on request.
 
              (Ex. 15)
 
         
 
              Claimant testified that the policy of employer with respect 
 
         to injured workers was that if you are injured that they do not 
 
         want you back (Tr. p. 55)  There is evidence that Foster had 
 
         arranged for claimant to be re-employed with employer (Ex. 13). 
 
         However, this re-employment never did materialize.  There was no 
 
         evidence that claimant ever requested claimant to return to work; 
 
         and there was no evidence that employer ever requested claimant 
 
         to return to work)..
 
         
 
              Claimant ceased active medical treatment with specialists 
 
         after she saw Dr. Carlstrom on April 18, 1985.  She did see Dr. 
 
         Hardinger once each in May, June and July of 1985.  Dr. Hardinger 
 
         continued her prescription drugs and ordered some additional 
 
         physical therapy (Ex. 1-a).
 
         
 
              On May 7, 1985, the insurance carrier retained a vocational 
 
         rehabilitation agency.  Job placement activities were assigned to 
 
         Clark H. Williams, rehabilitation consultant (Ex. 12-a & 12-b).  
 
         He first saw claimant on May 22, 1985.  He understood that 
 
         claimant was carrying some boxes at the time of the injury and 
 
         the boxes shifted.  She injured her right shoulder while trying 
 
         to steady the load (Ex. 12-c, p. 1).  Williams noted that 
 
         claimant was supported by her husband and was receiving  $178.58 
 
         per week in workers' compensation benefits.  Williams stated that 
 
         claimant told him that she did not like school and that she was 
 

 
         
 
         
 
         
 
         STONEBURNER V. MERIT BAKING COMPANY
 
         Page   6
 
         
 
         
 
         concerned that someone in workers' compensation might try to 
 
         force her to return to school and be retrained.  Claimant was 
 
         earning $6.37 per hour at the time of the injury according to 
 
         Williams (Ex. 12-c, p. 3).  Claimant stated that she was at a 
 
         complete loss as to specific future vocational choices (Ex. 12-c, 
 
         P. 5). Williams began working with claimant on GATB testing and 
 
         Merit Employment on June 17, 1985 and June 27, 1985 (Ex. 12-d, 
 
         12-e).  On July 31, 1985, claimant continued to have several 
 
         severe physical complaints that made it impossible for Williams 
 
         to discuss a vocational career with claimant.  Claimant told 
 
         Williams that Dr. Carlstrom told her that she was to do "lot of 
 
         nothing" (Ex. 12-f).  On August 26, 1985, claimant did not feel 
 
         that she could work at all due to her physical condition.  It was 
 
         suggested that she look into a pain management program (Ex. 
 
         12-g).
 
         
 
              Williams involved Foster, the rehabilitation nurse for the 
 
         insurance carrier, on July 20, 1985.   Claimant insisted that she 
 
         was still having a considerable amount of pain.  Her only relief 
 
         was lying flat on her back or on her side.  Williams recommended 
 
         that his activities be placed "on hold" until Dr. Carlstrom 
 
         indicated that claimant could work from two to four hours daily 
 
         in some types of sedentary work (Ex. 12-h.).  Claimant testified 
 
         that she was next sent to the pain center by Dr. Carlstrom at the 
 
         suggestion of Foster (Tr. pp. 26 & 27).
 
         
 
              An initial pain screening evaluation was performed by Dan 
 
         Smeltzer, MA, sociologist and coordinator of Behavioral Medicine 
 

 
         
 
         
 
         
 
         STONEBURNER V. MERIT BAKING COMPANY
 
         Page   7
 
         
 
         
 
         on October 15, 1985.  Smeltzer understood that claimant reached 
 
         to get an empty box on a conveyor belt and her hand became caught 
 
         in between the boxes.  As the conveyor moved forward she was 
 
         twisted and jerked in the torso area.  She immediately 
 
         experienced pain in the right cervical neck.  He found claimant 
 
         was obtaining some spousal secondary gain from reduced conflicts 
 
         and increased attention at home.  Claimant admitted to some 
 
         intermittent depression.
 
         
 
              A Minnesota Multiphasic Personality Inventory (MMPI) 
 
         interpreted by James N. Butcher, PhD., on October 15, 1985, 
 
         stated that claimant was a self-centered and immature person with 
 
         a strong need for attention and affection.  Butcher said that she 
 
         avoids openly expressing anger or negative views, but indirectly 
 
         attempts to control others.  He said that she may avoid 
 
         responsibility by becoming ill and sometimes reacts to stress by 
 
         suddenly becoming weak or developing headaches, chest pains or 
 
         other vague and non-specific physical symptoms (Ex. 9-d).  
 
         Smeltzer said that the MMPI suggests a dependent and passive 
 
         person who relies heavily on defense mechanisms of denial and 
 
         repression.  He also added that the MMPI suggested the profile of 
 
         a person with reactive physical complaints.
 
         
 
              Since the physicians had diagnosed myofascial pain syndrome, 
 
         but claimant complained of diffuse anatomical problems, an 
 
         evaluation was arranged at the Physical Medicine and 
 
         Rehabilitation Department at Iowa Methodist Medical Center (Ex. 
 
         9-c).  Claimant was examined there by W. C. Koenig, Jr., M.D., on 
 
         October 29, 1985.  He found some tender areas in the spinous 
 
         capitous region on the right side in the rhomboids area.  
 
         Otherwise, claimant's exam was essentially normal.  His 
 
         impression was myofascial pain syndrome.  Dr. Koenig made a plan 
 
         for claimant to enter the Pain Center (Ex. 9-e).  Dr. Carlstrom 
 
         wrote a letter recommending the Pain Center on October 25, 1985 
 
         (Ex. 8-b).  Claimant postponed entering the Pain Center at first 
 
         (Ex. 9-f).  She eventually elected not to enter it at all (Ex. 
 
         9-g).  She told Foster that she wanted to see Dr. Bashara rather 
 
         than go to the Pain Center (Tr. pp. 103 & 104).  It depended on 
 
         what he said (Tr. p. 106).  Claimant never did enter the Pain 
 
         Center and receive this treatment for her complaints of pain.
 
               Claimant saw Jerome G. Bashara, M.D., on March 11, 1986 at 
 
         the request of her attorney.  Dr. Bashara examined all of the 
 
         medical evidence and exhibits previously summarized in this 
 
         decision.  He understood that claimant was reaching for a box 
 
         overhead on some rollers.  When it was shoved, she was shoved.  
 
         Her hands were caught in the box and she was thrown to the left, 
 
         twisting her neck and upper body.  Dr. Bashara noted claimant 
 
         received a whiplash injury in a car accident in 1979 and was off 
 
         work two and one-half months but apparently had no difficulties 
 
         again until this injury on April 9, 1984.  The emergency room 
 
         record from the whiplash injury is shown as Exhibit 2-c and the 
 
         x-ray report from the whiplash injury is Exhibit 2-c.  The x-ray 
 
         of the cervical spine after the whiplash injury was normal and 
 
         showed no evidence of fracture.
 
         
 
              Dr. Bashara stated that claimant's physical examination 
 
         showed some limitation of motion.  Dr. Bashara concluded that his 
 
         first diagnosis was that claimant suffered a herniated cervical 
 
         disc which was work related to the accident which occurred on 
 

 
         
 
         
 
         
 
         STONEBURNER V. MERIT BAKING COMPANY
 
         Page   8
 
         
 
         
 
         April 9, 1984.  Dr. Bashara awarded a 15 percent permanent 
 
         partial impairment rating of the body as a whole due to this 
 
         cervical disc injury (Ex. 11-a).
 
         
 
              Dr. Bashara gave a deposition on November 6, 1986.  His 
 
         curriculum vitae shows that he is a board certified orthopedic 
 
         surgeon (Ex. 11-b, Deposition Ex. 1).  His deposition generally 
 
         repeats what he said in his medical report (Ex. 11-a).  Dr. 
 
         Bashara conceded that he was not able to determine when claimant 
 
         was able to return to work after the injury (Ex. 11-b, p. 12).  
 
         Dr. Bashara said that he agreed generally with Dr. Hardinger's 
 
         restrictions, except he did not agree that claimant would have to 
 
         be employed at home (Ex. 11-b, p. 13).  Dr. Bashara acknowledged 
 
         that even though claimant complained of low back pain that none 
 
         of the previous doctors had treated claimant for low back 
 
         complaints previously as a result of this injury.  Dr. Bashara 
 
         stated that he was merely reporting that claimant told him that 
 
         after she had received the Cortisone injections that she began 
 
         having lumbar pain (Ex. 11-b, p. 16).  Dr. Bashara also brought 
 
         to light that claimant suffered from osteoporosis but that this 
 
         would not be related to the injury of April 9, 1984 (Ex. 11-b, 
 
         pp. 17 & 18).  He stated that the 15 percent permanent partial 
 
         impairment rating was strictly for claimant's cervical problem 
 
         (Ex. 11-b, p. 18).  It included the injury and the resulting 
 
         cervical fusion (Ex. 11-b, p. 19).
 
         
 
              After an absence of approximately one year Williams saw 
 
         claimant again and gave one more final report on October 31, 
 
         1986.  Like Dr. Bashara he also referred to Dr. Hardinger's 
 
         restrictions which were as follows:
 
         
 
              Mrs. Stoneburner has been plagued with neck and back 
 
              discomfort for the last several years.  She initially 
 
              had a work type injury which eventually led to a 
 
              myelogram and cervical laminectomy with anterior 
 
              interbody fusion.  Since she has had her neck surgery 
 
              she has continued to have pain in the neck and left 
 
              shoulder, as well as into the arms and her upper back.  
 
              The pain is intermittent in nature.  She has good days 
 
              and bad days, and even on her good days she lives with 
 
              some tightness and discomfort in the above mentioned 
 
              areas.  In her current state of health I do not feel 
 
              that she would be able to do any type of work that 
 
              required heavy lifting or repeated type movements with 
 
              her hands and arms, or any type of job where she would 
 
              have to keep up and meet a certain time schedule.  She 
 
              may be able to function at a job that she could do at 
 
              home on her own, or at a job where she could take her 
 
              time and be able to rest when she starts having 
 
              discomfort.  The job would not be one where she would 
 
              have to do any lifting.  Lifting under five pounds, or 
 
              even up to ten pounds occasionally during the day she 
 
              may be able to handle.  Ideally this would be a type of 
 
              home type job that she could do at her own pace.  At 
 
              this point Mrs. Stoneburner has exhausted all 
 
              therapeutic modalities to take care of her problem, so 
 
              I think that this is going to be a disability that she 
 
              will have permanently and probably have to learn to 
 
              live with. (Ex. 1-e)
 

 
         
 
         
 
         
 
         STONEBURNER V. MERIT BAKING COMPANY
 
         Page   9
 
         
 
         
 
         
 
              Williams said that claimant also added several restrictions 
 
         of her own in his interview with her on October 27, 1986. 
 
         williams concluded that claimant could perform three jobs: (1) 
 
         survey worker; (2) telephone solicitor; and, (3) companion.  
 
         These jobs ranged in general pay from $3.35 to $4.50 per hour.  
 
         Williams recommended that claimant call the State of Iowa 
 
         vocational Rehabilitation Services and Job Service.  Claimant 
 
         told him on October 29, 1986 that she had done this and was 
 
         waiting to see Mr. Tim Gracey of Rehabilitation Education 
 
         Services Bureau on November 18, 1986 (Ex. 11-i).
 
         
 
              Roger Marquardt, a qualified rehabilitation consultant (Ex. 
 
         14) examined the documents described in exhibits 1 through 13 
 
         (Tr. p. 64) and he also personally interviewed claimant for 
 
         approximately two hours about four days prior to the hearing (Tr. 
 
         p. 74).  Marquardt agreed with Williams that survey worker, 
 
         telephone solicitor, and companion would pay somewhere between 
 
         minimum wage of $3.35 and $4.50 per hour.  Marquardt added that 
 
         other jobs that claimant could perform were unskilled motel/hotel 
 
         night clerk, counter clerk at a self-service gas station, 
 
         cashier, rental company clerk and that these jobs pay 
 
         approximately $3.35 per hour to $4.00 per hour.  Marquardt did 
 
         not feel that claimant could perform any of her previous jobs 
 
         because the exertional demand and lifting requirement of her 
 
         former jobs exceeded her current restrictions (Tr. pp. 65-69).  
 
         Marquardt understood that claimant was earning $6.67 per hour at 
 
         the time of the injury.  It was Marquardt's opinion that 
 
         claimant's employee benefits would be monetarily equivalent to 25 
 
         percent of her wages.  The types of employment that she can now 
 
         qualify for do not pay these kinds of employee benefits (Tr. pp. 
 
         68 & 69).  The occupational projections published by Job Service 
 
         of Iowa for claimant's area show approximately two jobs for every 
 
         applicant in her area (Tr. pp. 69 & 70).
 
         
 
              Marquardt felt claimant was still a young worker from an age 
 
         standpoint.  He said that she could transfer into unskilled work 
 
         of a sedentary to light exertional level within restrictions (Tr. 
 
         pp. 72 & 73).  Marquardt agreed that claimant told Williams that 
 
         she did not want to be retrained for another job (Tr. p. 73; Ex. 
 
         12-c).  Marquardt agreed that claimant's age, transferability and 
 
         the fact that there are two jobs for every applicant would not 
 
         mean anything if claimant refused to be retrained or if claimant 
 
         had no motivation to work (Tr. p. 76).
 
         
 
              Claimant testified that after Williams last saw her in late 
 
         1986 she went to the employment office as he suggested.  The 
 
         employment office sent her to see Tim Gracey at the State 
 
         Rehabilitation Office.  Gracey took tests in December of 1986, 
 
         but she never heard back from him.  Claimant testified that she 
 
         was not actively looking for work.  She was still waiting to hear 
 
         from Gracey.  She was keeping in touch with the employment 
 
         office.  They told her that they would find something within her 
 
         restrictions (Tr. pp. 33-37).  She acknowledged however that she 
 
         had made no individual independent effort of going around to 
 
         prospective employers trying to find a job (Tr. p. 38).  Claimant 
 
         testified that the economic situation in Boone, Iowa was not 
 
         good.  Even if she was able-bodied she would have trouble finding 
 
         employment there (Tr. p. 42).
 

 
         
 
         
 
         
 
         STONEBURNER V. MERIT BAKING COMPANY
 
         Page  10
 
         
 
         
 
         
 
              Claimant said that her present complaints are a dull ache in 
 
         her side.  She can lift her right arm above her head but she 
 
         cannot hold it there.  She cannot grip things with her right hand 
 
         and hold on to them (Tr. p. 37).  Claimant further testified that 
 
         even after all of the doctors she had seen and all of the medical 
 
         treatment she had received, that she was worse off now than 
 
         before she received the treatment (Tr. p. 55).
 
         
 
         
 
                           APPLICABLE LAW AND ANALYSIS
 
         
 
              The claimant has the burden of proving by a preponderance of 
 
         the evidence that the injury of April 9, 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).  However, 
 
         the expert opinion may be accepted or rejected, in whole or in 
 
         part, by the trier of fact.  Id. at 907.  Further, the weight to 
 
         be given to such an opinion is for the finder of fact, and that 
 
         may be affected by the completeness of the premise given the 
 
         expert and other surrounding circumstances.  Bodish, 257 Iowa 
 
         516, 133 N.W.2d 867.  See also Musselman v. Central Telephone 
 
         Co., 261 Iowa 352, 154 N.W.2d 128 (1967).
 
         
 
              If claimant has an impairment to the body as a whole, an 
 
         industrial disability has been sustained.  Industrial disability 
 
         was defined in Diederich v. Tri-City Railway Co., 219 Iowa 587, 
 
         593, 258 N.W. 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.O
 
         
 
              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 251, 
 
         257 (1963).
 
         
 
              There are several different accounts of how this injury 
 
         occurred.  No matter which description of the injury is accepted, 
 
         it cannot be said that the injury occurred through a violent or 
 
         highly traumatic event.  At the worst, claimant had a jerk or 
 
         jolt while handling boxes.  There were no witnesses to the injury 
 

 
         
 
         
 
         
 
         STONEBURNER V. MERIT BAKING COMPANY
 
         Page  11
 
         
 
         
 
         to further clarify how it occurred.  There was no evidence as to 
 
         whether claimant reported it at the time it occurred or not.  
 
         Claimant did not go for emergency treatment when the injury 
 
         occurred.  Claimant did not seek any treatment at all for 
 
         approximately three days.  Even her own personal physician, Dr. 
 
         Hardinger did not report a serious injury.  He simply stated she 
 
         had neck and shoulder pain which he called myofascitis.  Claimant 
 
         was able to return to work the next day and continued to work for 
 
         approximately three weeks until May 1, 1984.  After claimant 
 
         received the two carpal tunnel surgeries and the cervical disc 
 
         fusion practically all of the physicians described claimant's 
 
         problem as myofascitis, myofascial strain, or myofascial pain.  
 
         Myofascial type injuries usually are worse at first.  Then they 
 
         slowly, but gradually improve over a period of time through the 
 
         natural healing process of the human body either with or without 
 
         medical treatment.  In this case claimant stated that her 
 
         condition has only worsened in spite of all of the medical 
 
         attention which she has received.
 
         
 
              The cervical myofascial problem was not claimant's first and 
 
         most immediate concern.  Rather Dr. Hardinger and Dr. McKee were 
 
         more concerned about her carpal tunnel syndrome rather than her 
 
         cervical myofascial pain problem.  Dr. Sunberg performed a left 
 
         carpal tunnel release on May 7, 1984 and a right carpal tunnel 
 
         release on May 17, 1984.  The major medical focus was on the 
 
         carpal tunnel syndrome for approximately two and one-half months 
 
         until June of 1984.  The cervical strain was not treated again 
 
         until approximately June 19, 1984.  At that time Dr. McKee could 
 

 
         
 
         
 
         
 
         STONEBURNER V. MERIT BAKING COMPANY
 
         Page  12
 
         
 
         
 
         not identify any objective, physical, medical problem to account 
 
         for claimant's right neck and trapezius pain.  He performed 
 
         several neurological tests including nerve conduction studies and 
 
         x-rays.  He concluded that there might be a mild ulnar neuropathy 
 
         but there was no clear evidence of a C7 or C8 radiculopathy that 
 
         he could find (Ex. 5-b).
 
         
 
              In July of 1984, Dr. Jones identified and removed free disc 
 
         fragments at C-5, C-6 which he said were related to this injury. 
 
          Dr. Bashara also said that the disc injury was caused by the 
 
         April 9, 1984 injury.  It is also noted that claimant had a 
 
         serious whiplash injury from an automobile accident in 1979 and 
 
         she was off work for two and one-half months at that time.  In 
 
         any event, the defendants accepted Dr. Jones' opinion and paid 
 
         for the cervical disc surgery.  Claimant indicated that the 
 
         surgery helped at first but then she reverted to generally the 
 
         same pain again in her neck and shoulder.  Dr. Jones wanted to 
 
         perform a second myelogram to see if he could determine the cause 
 
         of this pain by objective physical medical tests.  However, the 
 
         insurance company and claimant wanted a second opinion before a 
 
         second myelogram was to be performed.  Both claimant and the 
 
         insurance company wanted Dr. Carlstrom to give that second 
 
         opinion.
 
         
 
              Dr. Carlstrom diagnosed myofascial injury with little 
 
         evidence of radiculopathy.  He recommended against the myelogram.  
 
         Furthermore, he felt that further therapeutic and diagnostic 
 
         endeavors were likely to run into dead ends.  He felt that 
 
         claimant had already achieved maximum medical benefit.  Claimant 
 
         indicated in her testimony that she did not want a second 
 
         myelogram and that she took no steps to obtain one.  In fact, 
 
         after seeing Dr. Carlstrom on April 18, 1985, she saw Dr. 
 
         Hardinger three more times, once each in May, June and July, 
 
         1985, and then sought no further medical treatment for this 
 
         injury.
 
         
 
              Claimant told Williams, the vocational rehabilitation 
 
         specialist hired by defendants to help her find work, that she 
 
         suffered considerable pain.  Her only relief was lying flat on 
 
         her back or on her side (Ex. 12-h).  In this respect, claimant's 
 
         subjective symptoms of pain, although probably extremely real to 
 
         her, greatly exceeded the objective physical medical findings of 
 
         the several prominent physicians who had treated her.  Pain that 
 
         is not substantiated by clinical findings is not a substitute for 
 
         impairment.  Waller v. Chamberlain Manufacturing, II Iowa 
 
         Industrial Commissioner Report 419, 425 (1981).
 
         
 
              The restrictions imposed by Dr. Carlstrom, the neurosurgeon, 
 
         were severe enough to prohibit claimant from performing all three 
 
         of her former jobs with employer.  She testified that in all 
 
         three jobs she was required to lift more than 25 pounds.  Thus 
 
         claimant's earning capacity has been severely impaired because 
 
         the employment opportunity that she had pursued for several years 
 
         was now foreclosed to her.  Michael v. Harrison County, 
 
         Thirty-Fourth Biennial Report of the Industrial Commissioner 218, 
 
         219 (1979).  At the same time numerous employments were left open 
 
         to claimant.  Dr. Carlstrom only stated that claimant was to 
 
         avoid heavy work, heavy lifting, which he defined as 25 pounds, 
 
         and also pushing and pulling this same amount of weight.  There 
 

 
         
 
         
 
         
 
         STONEBURNER V. MERIT BAKING COMPANY
 
         Page  13
 
         
 
         
 
         are certainly a multitude of jobs within the employment market 
 
         within these restrictions for a person who sincerely wants to 
 
         work or needs to work.  Dr. Hardinger's restrictions are also 
 
         noted but Dr. Carlstrom's restrictions are accepted over Dr. 
 
         Hardinger's restrictions for the reason that Dr. Carlstrom is a 
 
         board certified neurosurgeon and a specialist in myofascial 
 
         injuries.  Rockwell Graphic Systems, Inc. v. Prince, 366 N.W.2d 
 
         187, 192 (Iowa 1985).  A doctor's expertise a d board 
 
         certification may accord his testimony greater weight.  Reiland 
 
         v. Palco, Inc., Thirty-Second Biennial Report of the Industrial 
 
         Commissioner 56 (1975).  Dickey v. IIT Continental Baking 
 
         Company, Thirty-Fourth Biennial Report of the Industrial 
 
         Commissioner 89 (1979).
 
         
 
              To employer's credit is the fact that employer paid 
 
         reasonable workers' compensation benefits and provided claimant 
 
         with professional vocational rehabilitation expertise for several 
 
         months.  Schelle v. Hygrade Food Products, Thirty-Third Biennial 
 
         Report of the Industrial Commissioner 121 (1977).  On May 7, 
 
         1985, shortly after claimant saw Dr. Carlstrom, Williams was 
 
         assigned to assist her.  Williams made numerous contacts and 
 
         attempts to assist claimant until September 30, 1985 when 
 
         claimant indicated she was having considerable pain and gained 
 
         relief only by laying flat on her back or on her side.  
 
         Claimant's cooperation with Williams consisted of completing 
 
         forms and contacting the State Vocational Rehabilitation person, 
 
         Tim Gracey, and contacting Job Service.  Otherwise, claimant made 
 
         no attempt of any kind to actively seek employment on her own 
 
         initiative.
 
         
 
              Claimant's motivation to work was probably significantly 
 
         reduced by the subjective pain that she experienced, the fact 
 
         that she was receiving workers' compensation benefits and the 
 
         fact that her husband had a full time job and supported her.  
 
         Smeltzer, the psychologist, stated that claimant derived a 
 
         secondary gain from the spousal relationship in the way of 
 
         reduced conflicts and increased attention (Ex. 9-c).  Dr. 
 
         Butcher, the psychologist who interpreted the MMPI results, 
 
         stated that claimant used illness to control other people (Ex. 
 
         9-d).  Claimant was offered the opportunity to attend the pain 
 
         clinic at the expense of the insurance company but declined to do 
 
         so.  Why a claimant would forgo that opportunity for pain relief 
 
         is not explained.
 
         
 
              Claimant said the economy and job opportunities in Boone, 
 
         Iowa were not good due to the economy, however, Marquardt, 
 
         claimant's own choice of vocational rehabilitation consultant, 
 
         testified that there were two jobs for every applicant in what 
 
         was considered to be her work area.
 
         
 
              Employer apparently agreed with Foster to make work 
 
         available for claimant, however, there is no evidence that 
 
         employer actually requested claimant to return to work.  Nor is 
 
         there any evidence that claimant requested employer to return to 
 
         work.  Claimant did testify that all three of her jobs with 
 
         employer required lifting over 25 pounds and this exceeded the 
 
         weight lifting restriction imposed by Dr. Carlstrom.
 
         
 
              Williams reported that claimant was earning $6.37 per hour 
 

 
         
 
         
 
         
 
         STONEBURNER V. MERIT BAKING COMPANY
 
         Page  14
 
         
 
         
 
         at the time of the injury.  However, claimant testified and 
 
         Marquardt testified that claimant was earning $6.67 per hour at 
 
         the time of the injury.  The parties and their attorneys seem to 
 
         agree that claimant was earning $6.67 per hour at the time of the 
 
         injury.  The better evidence then is that claimant was earning 
 
         $6.67 per hour at the time of the injury.  Both Williams and 
 
         Marquardt felt that the unskilled sedentary job for which 
 
         claimant now qualified would pay between $3.35 per hour and $4.50 
 
         per hour.  At age 45, Marquardt testified that claimant is young 
 
         enough to be retrained.  However, requested claimant to return to 
 
         work.  Nor is there any evidence that claimant requested employer 
 
         to return to work.  Claimant did testify that all three of her 
 
         jobs with employer required lifting over 25 pounds and this 
 
         exceeded the weight lifting restriction imposed by Dr. 
 
         Carlstrom.
 
         
 
              Williams reported that claimant was earning $6.37 per hour 
 
         at the time of the injury.  However, claimant testified and 
 
         Marquardt testified that claimant was earning $6.67 per hour at 
 
         the time of the injury.  The parties and their attorneys seem to 
 
         agree that claimant was earning $6.67 per hour at the time of the 
 
         injury.  The better evidence then is that claimant was earning 
 
         $6.67 per hour at the time of the injury.  Both Williams and 
 
         Marquardt felt that the unskilled sedentary job for which 
 
         claimant now qualified would pay between $3.35 per hour and $4.50 
 
         per hour.  At age 45, Marquardt testified that claimant is young 
 
         enough to be retrained.  However, claimant told Williams that she 
 
         was opposed to any retraining that might be imposed upon her by 
 
         the insurance company.  The feasibility of retraining is one of 
 
         the considerations involved in determining industrial disability. 
 
          Conrad v. Marquette School, Inc., IV Iowa Industrial 
 
         Commissioner Report 74, 78 (1984).
 
         
 
              The temporary disability issue is determined as follows: 
 
         Claimant had a cervical fusion at C-5, C-6.  Following the 
 
         cervical surgery claimant suffered from residual cervical 
 
         myofascial strain or pain.  Dr. Carlstrom said claimant reached 
 
         maximum medical improvement on April 18, 1984.  This was the best 
 
         evidence and the only medical evidence as to when claimant 
 
         attained maximum medical improvement.  Dr. Carlstrom awarded a 
 
         permanent partial impairment rating on that date.  Accordingly, 
 
         it is determined that claimant achieved maximum medical 
 
         improvement on April 18, 1985.  Iowa Code section 85.34(l). 
 
         Armstrong Tire Rubber Co. v. Kubli, Iowa App., 312 N.W.2d 60 
 
         (Iowa 1981).  Even though claimant was offered the opportunity of 
 
         attending the Pain Center later, this in itself is not evidence 
 
         that claimant had not reached maximum medical improvement on 
 
         April 18, 1985.  Moreover, based on claimant's own testimony, she 
 
         never did improve at any point in the treatment but only grew 
 
         continually worse and is now worse off then when she began 
 
         treatment.
 
         
 
              In conclusion, claimant did not positively respond to the 
 
         vocational rehabilitation efforts that were offered to her by 
 
         defendants.  Claimant stated that she did not like school and she 
 
         was very much opposed to any effort to force her into retraining 
 
         or learning a new line of work.  Claimant did not actively seek 
 
         work on her own initiative at any time.  Claimant has little or 
 
         no motivation to seek employment.  On the contrary, the 
 

 
         
 
         
 
         
 
         STONEBURNER V. MERIT BAKING COMPANY
 
         Page  15
 
         
 
         
 
         psychologist suggested that claimant is receiving a certain 
 
         amount of secondary gain from being ill and from being unable to 
 
         work.  Since claimant has made no showing of an effort to find 
 
         other employment; there is no showing of what claimant can do 
 
         within the boundaries of her disability and restrictions.  
 
         Schofield v. Iowa Beef Processors, Inc., II Iowa Industrial 
 
         Commissioner Report 334, 336 (1981).
 
         
 
              Dr. Bashara awarded a 15 percent permanent partial 
 
         impairment rating.  Dr. Jones said that he would not disagree 
 
         with a 15 percent permanent partial impairment rating.  Dr. Blair 
 
         awarded a 10 percent permanent partial impairment rating based 
 
         upon an examination of paper evidence only because he did not 
 
         examine claimant in person.  Dr. Carlstrom awarded a seven to 
 
         eight percent permanent partial impairment rating.
 
         
 
              Based on all of the foregoing discussion, it is determined 
 
         that claimant sustained an industrial disability of 30 percent of 
 
         the body as a whole.
 
         
 
                                 FINDINGS OF FACT
 
         
 
              Based upon the evidence presented, the following findings of 
 
         fact are made:
 
         
 
              That claimant was injured on April 9, 1984 in a compensable 
 
         injury that arose out of and in the course of her employment with 
 
         employer.
 
         
 
              That claimant reached the point of maximum medical 
 
         improvement on April 18, 1985 based upon the written report of 
 
         Dr. Carlstrom on that date.
 
         
 
              That claimant was 42 years of age at the time of the 
 
         injury.
 
         
 
              That claimant had a high school education but no additional 
 
         education or training.
 
         
 
              That according to Marquardt, claimant was retrainable at her 
 
         current age.
 
         
 
              That claimant was opposed to any attempt to force her into 
 
         retraining or education at this time.
 
         
 
              That claimant could not return to her former jobs with 
 
         employer due to the weight restriction of 25 pounds and 
 
         prohibition against heavy lifting and heavy work imposed by Dr. 
 
         Carlstrom.
 
         
 
              That claimant did not actively seek any new employment on 
 
         her own initiative within her restrictions.
 
         
 
              That claimant indicated to defendants' rehabilitation 
 
         specialists that she was unable to return to work due to her 
 
         subjective symptoms of pain which required her to lay down in 
 
         order to get relief.
 
         
 
              That claimant did not ask for and did not want a second 
 

 
         
 
         
 
         
 
         STONEBURNER V. MERIT BAKING COMPANY
 
         Page  16
 
         
 
         
 
         myelogram as recommended by Dr. Jones.
 
         
 
              That claimant was offered an opportunity to attend the Pain 
 
         Center but declined the opportunity to do so.
 
         
 
              That claimant ceased to seek medical treatment shortly after 
 
         she saw Dr. Carlstrom on April 18, 1985 except to contact her 
 
         personal physician, Dr. Carlstrom, who continued her prescription 
 
         drugs and ordered physical therapy.
 
         
 
              That two psychologists determined that claimant lacked 
 
         motivation to return to work and in fact was more motivated to 
 
         remain ill for a number of reasons of secondary gain.
 
         
 
              The credibility of claimant's complaints is not 
 
         established.
 
         
 
              That claimant sustained a 30 percent industrial disability 
 
         to the body as a whole.
 
         
 
                                CONCLUSIONS OF LAW
 
         
 
              Based upon the evidence presented and the principles of law 
 
         previously discussed, the following conclusions of law are made:
 
         
 
              That claimant is entitled to healing period benefits from 
 
         April 9, 1984, the date of the injury, to April 18, 1985, the 
 
         date on which Dr. Carlstrom said she had attained maximum medical 
 

 
         
 
         
 
         
 
         STONEBURNER V. MERIT BAKING COMPANY
 
         Page  17
 
         
 
         
 
         improvement.
 
         
 
              That claimant is entitled to 150 weeks of permanent partial 
 
         disability benefits based upon a 30 percent industrial disability 
 
         to the body as a whole.
 
         
 
                                      ORDER
 
         
 
              THEREFORE, IT IS ORDERED:
 
         
 
              That defendants pay to claimant fifty-three point 
 
         four-two-nine (53.429) weeks of healing period benefits at the 
 
         rate of one hundred seventy-eight and 58/00 dollars ($178.58) per 
 
         week in the total amount of nine thousand five hundred forty-one 
 
         and 36/100 dollars ($9,541.36) for the period from April 9, 1984 
 
         to April 18, 1985.
 
         
 
              That defendants pay to claimant one hundred fifty (150) 
 
         weeks of permanent partial disability at the rate of one hundred 
 
         seventy-eight and 58/100 dollars ($178.58) per week in the total 
 
         amount of twenty-six thousand seven hundred eighty-seven and 
 
         no/100 dollars ($26,787.00) commencing on April 18, 1985.
 
         
 
              That defendants are entitled to a credit of one hundred 
 
         forty-seven point one-four-three (147.143) weeks of workers' 
 
         compensation benefits at the rate of one hundred seventy-eight 
 
         and 58/100 dollars ($178.58) in the total amount of twenty-six 
 
         thousand two hundred seventy-six and 80/100 dollars ($26,276.80) 
 
         paid to claimant as stipulated to by the parties in the 
 
         prehearing report.
 
         
 
              That all accrued benefits be paid in a lump sum.
 
         
 
              That interest will accrue pursuant to Iowa Code section 
 
         85.30.
 
         
 
              That the costs of this action are charged to defendants 
 
         pursuant to Division of Industrial Services Rule 343-4.33.
 
         
 
              That defendants file claim activity reports as requested by 
 
         this.agency.
 
         
 
         
 
              Signed and filed this 14th day of January, 1988.
 
         
 
         
 
         
 
         
 
         
 
         
 
                                           WALTER R. McMANUS, JR.
 
                                           DEPUTY INDUSTRIAL COMMISSIONER
 
         
 
         Copies To:
 
         
 
         Mr. Roger P. Owens
 
         Attorney at Law
 
         840 Fifth Avenue
 
         Des Moines, Iowa 50309-1398
 

 
         
 
         
 
         
 
         STONEBURNER V. MERIT BAKING COMPANY
 
         Page  18
 
         
 
         
 
         
 
         Mr. W. C. Hoffmann
 
         Attorney at Law
 
         1000 Des Moines Bldg.
 
         Des Moines, Iowa 50309