BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         RONALD WEST,
 
         
 
              Claimant,
 
         
 
         vs.
 
                                                     File  No.  769431
 
         L. H. SOWLES,
 
                                                  A R B I T R A T I O N
 
              Employer,
 
                                                     D E C I S I O N
 
         and
 
         
 
         AMERICAN MUTUAL INSURANCE CO.,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
                              STATEMENT OF THE CASE
 
         
 
              This is a proceeding in arbitration brought by claimant 
 
         Ronald West against defendant employer L. H. Sowles and defendant 
 
         insurance carrier American Mutual Insurance Company to recover 
 
         benefits under the Iowa Workers' Compensation Act as the result 
 
         of an alleged injury of June 11, 1984.  This matter came on for 
 
         hearing before Deputy Industrial Commissioner Garry Woodward in 
 
         Des Moines, Iowa on March 10, 1988.  The matter was considered 
 
         fully submitted at the close of hearing.  The record in the 
 
         proceeding consists of joint exhibits A through I, inclusive and 
 
         claimant's exhibits 1, 2, 3, 5 and 6 along with the testimony of 
 
         claimant and Robert W. Jones.  At the conclusion of evidence, 
 
         Deputy Commissioner Woodward refused a motion to amend the 
 
         petition to conform with the proof (by specifying the date of 
 
         alleged injury as June 6, 1984) but did permit amending the 
 
         pre-hearing report to that effect.
 
         
 
              After the record was closed, Deputy Woodward discontinued 
 
         his employment with the Office of the Industrial Commissioner.  
 
         By Order of July 22, 1988, jurisdiction for the purpose of 
 
         preparing and filing a proposed agency decision was transferred 
 
         to the undersigned by the industrial commissioner.  A transcript 
 
         of proceedings was prepared and received.  All of the record 
 
         evidence has been reviewed.
 
         
 
              The record in this case shows that a pre-hearing report was 
 
         executed by the parties and duly submitted.  However, the record 
 
         does not reflect whether the same was accepted into the record by 
 
         Deputy Woodward.  It is hereby ruled that the pre-hearing report 
 
         is approved and accepted into the record.
 
         
 
                                      ISSUES
 
         
 
              Pursuant to the pre-hearing report submitted by the parties 
 
         the issues that remain to be resolved include: Whether claimant 
 
         sustained an injury on June 6, 1984 arising out of and in the 
 
         course of his employment; whether the alleged injury is a cause 
 
         of temporary or permanent disability; the extent of claimant's 
 
         entitlement, if any, to temporary total, healing period or 
 
         permanent partial disability, including the commencement date for 
 

 
         
 
         WEST V. L. H. SOWLES
 
         PAGE 2
 
         
 
         
 
         permanent partial disability if awarded (however, it was 
 
         stipulated that if the injury be found to be a cause of permanent 
 
         disability, it is an industrial disability to the body as a 
 
         whole); rehabilitation benefits; taxation of costs.
 
         
 
              It was stipulated that claimant's rate of weekly 
 
         compensation in the event of an award should be $257.52 and that 
 
         defendants paid 175.429 weeks of compensation at that rate prior 
 
         to hearing for which credit should be allowed.  It was further 
 
         stipulated that all requested medical benefits have been or will 
 
         be paid by defendants.
 
         
 
                              REVIEW OF THE EVIDENCE
 
         
 
              Claimant was single, without dependents, and just short of 
 
         his 40th birthday at the time of hearing.  He graduated from high 
 
         school in 1966 and thereafter attended a junior or community 
 
         college for one semester, taking such general courses as English 
 
         and algebra.  He began working as an ironworker following high 
 
         school and went through an apprenticeship program from 1969 until 
 
         1971.  He was primarily employed as an ironworker until his 
 
         alleged injury of June 6, 1984.  Claimant testified that he was a 
 
         journeyman ironworker with skills in many areas and that he had 
 
         finally reached a point at the time of injury where he was 
 
         qualified for foreman's jobs, all recognized ironworking jobs, 
 
         and any welding jobs (being certified in four or five different 
 
         types of welding).
 
         
 
              Claimant testified that he also ran his own welding shop as 
 
         a part-time endeavor from 1981 until his injury and has also been 
 
         employed in the past as a bakery delivery person, truck driver, 
 
         cement finisher, lifeguard, service station worker, and as an 
 
         electrician's and plumber's helper, mostly when in high school.
 
         
 
              Claimant attended the American Institute of Taxidermy 
 
         following his alleged injury in approximately March through June, 
 
         1985 and received a certification in taxidermy.  He attended the 
 
         American Institute of Taxidermy for 11-12 weeks and paid his own 
 
         tuition ($3,900), although the Iowa State Vocational 
 
         Rehabilitation Services assisted with his living expenses.  In 
 
         furtherance of this alternative career, he has moved to the state 
 
         of Montana and has opened his own taxidermy shop.
 
         
 
              Claimant further testified that due to a 25-pound lifting 
 
         restriction, along with restrictions against repetitive stress 
 
         imposed by his treating physician, Kirby R. Hotchner, D.O., he is 
 
         physically unable to perform the farmwork, plumbing and 
 
         electrical work, service station work and other such work in 
 
         which he has experience, except for light bakery delivery and 
 
         life saving.  Claimant was clear in testifying that light-duty 
 
         work does not exist in the ironworking trade, which is very 
 
         physically demanding in all respects.
 
         
 
              Claimant testified that he sustained his injury of June 6, 
 
         1984 while installing rerods and concrete on a muddy day; because 
 
         of the necessity to complete work before concrete sets, work must 
 
         be performed at a hurried pace.
 
         
 
              Claimant fist sought attention from Dr. McMillan of Decatur 
 
         County Hospital, and was hospitalized for several days.  
 
         Thereafter he sought treatment from Kirby R. Hotchner, M.D., the 
 
         primary treating physician.
 
         
 
              When claimant first saw Dr. Hotchner he suffered from 
 
         numbness in both legs.  He was treated with manipulation and a 
 
         regimen of exercises and stretching after x-rays were taken.  Dr. 
 
         Hotchner did not immediately release claimant to return to work.
 
         
 

 
         
 
         
 
         
 
         WEST V. L.H. SOWLES
 
         PAGE   3
 
         
 
         
 
              Claimant testified that he gradually improved while under 
 
         Dr. Hotchner's care and was eventually released to return to work 
 
         with light duty restrictions in December, 1984.  Claimant did 
 
         return to work and continued until January 17, 1985.  He 
 
         testified that during the last week of that work numbness began 
 
         returning to his legs along with more back pain.  Claimant was 
 
         paid weekly benefits while attempting to return to work.
 
         
 
              Claimant continued to see Dr. Hotchner after January 17, 
 
         1985, when he was again taken off work.  Claimant was again 
 
         treated with an exercise regimen, manipulation and pain 
 
         medication.  Claimant saw no other physicians from January, 1985 
 
         through September, 1985, when he was referred to Iowa Methodist 
 
         Medical Center for a CT scan.  Claimant believed that he slowly 
 
         improved during calendar year 1985 up to the point when he saw 
 
         William Boulden, M.D., for evaluation on December 23, 1985.  He 
 
         discontinued seeing Dr. Hotchner when he moved to Montana (in 
 
         pursuit of his new taxidermy business) in late 1985.  Dr. 
 
         Hotchner was unable to refer him to a Montana physician for 
 
         follow-up treatment.  Claimant believed that he had reached a 
 
         plateau by the time he saw Dr. Boulden.  In fact, claimant 
 
         believes that he has failed to improve since that time; when he 
 
         works too hard or reaches the wrong way, his condition 
 
         deteriorates from that plateau, but then slowly improves back to 
 
         that point.
 
         
 
              Claimant testified that he currently suffers front back pain 
 
         all the time, although numbness does not now radiate to either 
 
         leg.  He testified that his current problems include an inability 
 
         to ride long distances in a car, change flat tires or move 
 
         furniture.  He indicated that he continues to suffer a great deal 
 
         of lower back pain and must take frequent breaks during the day 
 
         along with pain medication.
 
         
 
              Claimant testified that he elected training in the taxidermy 
 
         field because he believed he was physically unable to perform 
 
         most other jobs listed by his vocational rehabilitation 
 
         counselor.  In self-employment, claimant believed that he would 
 
         have the option of sitting down periodically during the day or 
 
         even lying down Lo use a heat pad if necessary.  Although he 
 
         carefully researched to find an area in which he might be 
 
         successful in the taxidermy trade, there are 25 licensed 
 
         taxidermists in the valley where he now resides and competition 
 
         is described as "very stiff.  Claimant believes that it will take 
 
         him several years to build up his taxidermy business, and 
 
         indicative of that was a business loss of $9,660 for calendar 
 
         year 1986.  Even though claimant believes it will take four or 
 
         five years to know whether the business will be successful, he 
 
         does not anticipate that the trade will ever pay as much as 
 
         ironwork, even if it is successful.  Of course, the 
 
         self-employment does not include fringe benefits such as 
 
         insurance, paid vacations and the like.
 
         
 
              Testimony was also taken from Robert Wayne Jones, vocational 
 
         evaluator with the Occupational Medicine Department of Mercy 
 
         Hospital Medical Center in Des Moines, Iowa.  Mr. Jones testified 
 
         that claimant was evaluated on November 6 and 7, 1984, and that 
 
         he participated in that vocational evaluation by administering 
 
         the vocational aptitude, interest testing and vocational 
 
         dexterity tests.  Mr. Jones had at that time received a report 
 
         from Marvin Dubansky, M.D., indicating that claimant might be 
 
         unable to return to his previous employment as an ironworker.
 
         
 

 
         
 
         
 
         
 
         WEST V. L.H. SOWLES
 
         PAGE   4
 
         
 
         
 
              Mr. Jones testified that claimant's aptitudes are very high 
 
         as opposed to adults in the general population, and that all 
 
         aptitudes were at least average and into the superior range.  
 
         Claimant is also highly motivated.  In matching an individual to 
 
         a vocation, a vocational rehabilitation expert also takes into 
 
         account an individual's interests.
 
         
 
              By using the Dictionary of Occupational Titles published by 
 
         the United States Department of Labor, Mr. Jones opined that if 
 
         claimant were physically able to work as an ironworker prior to 
 
         his injury, he would be physically able to do almost any of the 
 
         jobs listed in that dictionary.
 
         
 
              Mr. Jones indicated that he had reviewed the report of Dr. 
 
         Boulden dated December 23, 1985, and considered the physical 
 
         limitations that were placed upon claimant by Dr. Boulden and by 
 
         Dr. Hotchner, including a lifting limitation of 25 pounds.  A 
 
         lifting restriction of 25 pounds would limit claimant to jobs 
 
         which are classified as being either sedentary or light in 
 
         physical requirements.  Of the 12,106 job descriptions in the 
 
         Dictionary of Occupational Titles, 7,429 are classified as 
 
         either sedentary or light.  However, Mr. Jones indicated that 
 
         many of those jobs also require climbing, balancing, bending, 
 
         stooping, kneeling, crouching, crawling or other similar 
 
         activities.  Therefore, Mr. Jones also excluded those positions 
 
         due to claimant's physical restrictions.
 
         
 
              Considering claimant's restrictions, interests and 
 
         aptitudes, Mr. Jones was able to consider a representative list 
 
         of positions that would require no more than two years of 
 
         retraining.  Those included positions such as mechanical 
 
         draftsman, electronics technician, janitor, retail store manager, 
 
         printing press operator, production machine operator, television 
 
         and radio repair person, tool and dye maker and combination 
 
         welder.  In each case, entry level or even median wages we're 
 
         well below those paid to ironworkers.  In Polk County, Iowa, 
 
         structural steelworkers are paid an average wage of $14.13 per 
 
         hour.
 
         
 
              Mr. Jones testified that generally it would be very 
 
         difficult to place claimant in a vocation at the present time 
 
         that would pay the same as a structural steelworker (ironworker) 
 
         considering his age, education and physical limitations, along 
 
         with his interests and aptitudes.  Mr. Jones also testified that 
 
         claimant scored high in both interest and aptitude in numerous 
 
         other positions, but these were excluded from consideration 
 
         because of claimant's physical limitations.
 
         
 
              Claimant was seen by Dr. McMillan on June 11, 1984.  Dr. 
 
         McMillan's notes reflect claimant complained of an accident 
 
         lifting steel on June 6, 1984.  Claimant at that time was 
 
         complaining of his back and left leg.  An x-ray report dated June 
 
         11, 1984 notes that the lumbar spine shows satisfactory alignment 
 
         and minimal joint space narrowing of the lumbosacral junction.  
 
         Dr. McMillan prepared an insurance report on September 13, 1984 
 
         in which he agreed that the accident reported by claimant was the 
 
         only cause of claimant's condition, described as severe lumbar 
 
         muscle strain.  Further notes of the Decatur County Hospital show 
 
         that Dr. McMillan found x-ray and diagnostic findings to be 
 
         nondiagnostic and that physical findings were unremarkable except 
 
         for marked muscle spasm, left side of the spine.  Dr. McMillan's 
 
         notes further show that "there is no neurological loss and 
 
         patient states that he has no radiation of the low back pain down 
 

 
         
 
         
 
         
 
         WEST V. L.H. SOWLES
 
         PAGE   5
 
         
 
         
 
         either leg."
 
         
 
              Kirby R. Hotchner, D.O., is an assistant professor at the 
 
         University of Osteopathic Medicine and Health Sciences in Des 
 
         Moines, Iowa.  As noted above, he was claimant's treating 
 
         physician for this ailment.  Dr. Hotchner prepared a surgeon's 
 
         report for insurance purposes on September 10, 1984.  While he 
 
         believed at that time that claimant's injury would not result in 
 
         permanent defect, it is also significant that he agreed that the 
 
         accident reported by claimant was the only cause of his 
 
         condition.  In a letter of July 8, 1985, Dr. Hotchner indicated 
 
         that claimant was continuing to heal, but had not reached maximum 
 
         recuperation.  In a letter of August 27, 1984, Dr. Hotchner 
 
         reports that claimant's initial visit was on June 22, 1984, at 
 
         which time he found muscle contractures with tenderness over the 
 
         left sacroiliac junction.  He noted that orthopaedic and 
 
         neurological tests were normal, although claimant complained of 
 
         numbness in his right foot.  Dr. Hotchner's initial diagnosis was 
 
         lumbar myosotis with lumbosacral spine somatic dysfunction.  Dr. 
 
         Hotchner noted that claimant had been and would be treated with 
 
         manipulative therapy.
 
         
 
              On October 25, 1984, Dr. Hotchner wrote that claimant was 
 
         continuing to make progress and might be able to return to work 
 
         in about two weeks.  His future prognosis was seen as good.
 
         
 
              On November 5, 1984, Dr. Hotchner reported that claimant was 
 
         almost totally recovered and that he anticipated releasing him to 
 
         return to work after treatment in two weeks.
 
         
 
              On November 21, 1984, Dr. Hotchner reported that claimant 
 
         was released to return to work with light-duty restrictions, 
 
         including lifting over 15 pounds.
 
         
 
              On January 8, 1985, the doctor reported that claimant had 
 
         last been seen on December 20, at which time he still had a 
 
         nagging pain in the left buttocks region due to a chronic 
 
         piriformis contracture.  He indicated that claimant should have 
 
         no permanent disability.
 
         
 
              Dr. Hotchner wrote again on January 29, 1985.  This was 
 
         after claimant had again been seen on January 17, 1985, following 
 
         further pain while at work.  Claimant at that time complained of 
 
         low back pain radiating to the right buttocks region.  Further, 
 
         the chronic complaint of pain in the right hip region was 
 
         exacerbated.  Claimant demonstrated a right rotation of L4 and L5 
 
         with a tight left piriformis along with some muscle spasm in the 
 
         lower back.  Dr. Hotchner opined that claimant's injury would 
 
         only set him back a few weeks, but imposed a lifting restriction 
 
         of 25 pounds and suggested that claimant change jobs so he would 
 
         not have to lift so much; otherwise, claimant's back might never 
 
         permanently heal.  This lifting restriction has never been 
 
         removed.
 
         
 
              Dr. Hotchner wrote again on May 17, 1985, indicating 
 
         claimant had received osteopathic manipulation on five occasions 
 
         since January 17, 1985.  At that time, the January injury was 
 
         resolved, but the doctor noted chronic pain in the left hip area 
 
         continuing to gradually improve but aggravated by prolonged 
 
         driving, sitting and lifting.  Although Dr. Hotchner did not know 
 
         if claimant would have any permanent partial impairment, he did 
 
         feel that claimant should not go back to a job requiring heavy 
 
         lifting so as to avoid a relapse.
 

 
         
 
         
 
         
 
         WEST V. L.H. SOWLES
 
         PAGE   6
 
         
 
         
 
         
 
              Dr. Hotchner's last contribution was a letter of August 20, 
 
         1985 to claimant's attorney.  He noted that claimant continued to 
 
         receive treatments about once a month, still complained of lumbar 
 
         pain, and was at that time still unable to do heavy lifting (over 
 
         25 pounds), to drive long distance or to subject his back to any 
 
         kind of repetitive stress.  Dr. Hotchner at this time assessed 
 
         claimant's impairment at five percent of the whole body and noted 
 
         that the prognosis was guarded.  He estimated that claimant would 
 
         reach maximum healing in three to six months' time.
 
         
 
              Following a return to work assessment at Mercy Hospital 
 
         Medical Center Medical occupational Evaluation Center on November 
 
         6 and 7, 1984, an orthopaedic report was prepared by Marvin 
 
         Dubansky, M.D., on November 7, 1984.  Dr. Dubansky noted that 
 
         claimant's history referred to the June 6, 1984 incident while he 
 
         spent the day bent over tying rerods, but further noted that 
 
         claimant indicated a strain of his low back picking up some 
 
         things on the job two weeks previously, and that he had been off 
 
         work one day.  Claimant reported to Dr. Dubansky that he 
 
         consulted a physician in Osceola, Iowa, was given some pain 
 
         pills, and then went to Canada for about a week on a fishing 
 
         vacation before returning to work.  Claimant worked only three 
 
         days before June 6, 1984.  Claimant indicated that he developed 
 
         "pulsations" about 10:00 p.m. after working on the reinforcing 
 
         rods.  Such,pulsations occurred in both legs and were accompanied 
 
         by numbness in the left leg down to and including all toes.  As 
 
         of the evaluation, claimant no longer had pulsations or 
 
         numbness.
 
         
 
              In reviewing the x-rays taken June 11, 1984, Dr. Dubansky 
 
         noted that the lumbosacral spine showed good preservation of all 
 
         the intervertebral disc spaces and that there was no evidence of 
 
         fracture or bony abnormality except for a transitional facet 
 
         joint at the lumbosacral area on the left.
 
         
 
              Dr. Dubansky felt that claimant had reached a state of 
 
         maximum recuperation, but was concerned that if claimant returned 
 
         to his regular ironwork, "he is not going to last; he's going to 
 
         be right back again."  Dr. Dubansky felt that claimant showed 
 
         evidence of nerve root impingement on the left and opined that 
 
         heavy manual labor would continue to give claimant further 
 
         troubles.  Dr. Dubansky assigned a five percent permanent 
 
         impairment of the body as a whole rating at that time.
 
         
 
              Claimant also saw William R. Boulden, M.D., on December 23, 
 
         1985 for evaluation.  Dr. Boulden is an orthopaedic surgeon.  
 
         After reviewing claimant's history, Dr. Boulden noted that 
 
         claimant had only 20 degrees of left and right lateral bending 
 
         and that extension caused more pain.  Straight leg raising on 
 
         each side caused low back pain but not radicular symptoms.  Dr. 
 
         Boulden took flexion-extension views of the spine showing 
 
         claimant to have some retrolisthesis at L4-5, with disc space 
 
         narrowing at L5-S1.
 
         
 
              Dr. Boulden had an impression of low back pain, probably 
 
         secondary to spinal instability and associated internal disc 
 
         disruption.  He felt that claimant could not return to his 
 
         previous position as an ironworker and would require a position 
 
         where he would not be required to do "any bending, stooping or 
 
         lifting with his back.  As far as weight restrictions go, 
 
         whatever he can lift by his arms, while using proper biomechanics 
 
         of the spine, would be in order."
 

 
         
 
         
 
         
 
         WEST V. L.H. SOWLES
 
         PAGE   7
 
         
 
         
 
         
 
              Dr. Boulden further opined that claimant had reached his 
 
         maximum recuperation approximately 12 weeks from the date of his 
 
         last time off from work and that he should have plateaued at that 
 
         time.  Dr. Boulden assigned a permanent impairment rating of five 
 
         percent of the lumbar spine based on the fact of spinal 
 
         instability and disc space narrowing, probably representing 
 
         internal disc disruption.
 
         
 
              A CT scan was done by Joseph D. Hall, M.D., on September 12, 
 
         1985.  His findings:
 
         
 
              9-12-85 CT of the lumbar spine:  Contiguous sections 
 
              were made from the L3 to the L5-Sl level.  There is no 
 
              evidence of a protruded intervertebral disc at any of 
 
              the demonstrated levels nor is there evidence of 
 
              compression or entrapment of the neural elements at any 
 
              of the demonstrated.  There is some minimal 
 
              degenerative change noted about the articular facets at 
 
              the L3-4 and the L4-5 levels.
 
         
 
         
 
                        APPLICABLE LAW AND ANALYSIS
 
         
 
              An employee is entitled to compensation for any and all 
 
         personal injuries which arise out of and in the course of the 
 
         employment.  Section 85.3(l).
 
         
 

 
         
 
         
 
         
 
         WEST V. L.H. SOWLES
 
         PAGE   8
 
         
 
         
 
              The injury must both arise out of and be in the course of 
 
         the employment.  Crowe v. DeSoto Consol. Sch. Dist., 246 Iowa 
 
         402, 68 N.W.2d 63 (1955) and cases cited at pp. 405-406 of the 
 
         Iowa Report.  See also Sister Mary Benedict v. St. Mary's Corp., 
 
         255 Iowa 847, 124 N.W.2d 548 (1963) and Hansen v. State of Iowa, 
 
         249 Iowa 1147, 91 N.W.2d 555 (1958).
 
         
 
              The 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 "in 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).
 
         
 
              The supreme court of Iowa in Almquist v. Shenandoah 
 
         Nurseries, 218 Iowa 724, 254 N.W. 35 (1934) at 731-32, discussed 
 
         the definition of personal injury in workers' compensation cases 
 
         as follows:
 
         
 
              While a personal injury does not include an 
 
              occupational disease under the workmen's Compensation 
 
              Act, yet an injury to the health may be a personal 
 
              injury [Citations omitted.]  Likewise a personal injury 
 
              includes a disease resulting from an injury .... The 
 
              result of changes in the human body incident to the 
 
              general processes of nature do not amount to a personal 
 
              injury.  This must follow, even though such natural 
 
              change may come about because the life has been devoted 
 
              to labor and hard work.  Such result of those natural 
 
              changes does not constitute a personal injury even 
 
              though the same brings about impairment of health or 
 
              the total or partial incapacity of the functions of the 
 
              human body.
 
         
 
                 ....
 
         
 
              A personal injury, contemplated by the Workmens 
 
              Compensation Law, obviously means an injury to the 
 
              body, the impairment of health, or a disease, not 
 
              excluded by the act, which comes about, not through the 
 
              natural building up and tearing down of the human body, 
 
              but because of a traumatic or other hurt or damage to 
 
              the health or body of an employee. [Citations omitted.]  
 
              The injury to the human body here contemplated must be 
 
              something, whether an accident or not, that acts 
 
              extraneously to the natural processes of nature and 
 
              thereby impairs the health, overcomes, injures, 
 
              interrupts, or destroys some function of the body, or 
 
              otherwise damages or injures a part or all of the 
 
              body.
 
         
 
              The claimant has the burden of proving by a preponderance of 
 
         the evidence that the injury of June 6, 1984 is causally related 
 
         to the disability on which he now bases his claim.  Bodish v. 
 
         Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867 (1965).  Lindahl v. 
 
         L.O. Boggs, 236 Iowa 296, 18 N.W.2d 607 (1945).  A possibility is 
 
         insufficient; a probability is necessary.  Burt v. John Deere 
 
         Waterloo Tractor Works, 247 Iowa 691, 73 N.W.2d 732 (1955).  The 
 
         question of causal connection is essentially within the domain of 
 
         expert testimony.  Bradshaw v. Iowa Methodist Hospital, 251 Iowa 
 
         375, 101 N.W.2d 167 (1960).
 

 
         
 
         
 
         
 
         WEST V. L.H. SOWLES
 
         PAGE   9
 
         
 
         
 
         
 
              However, expert medical evidence must be considered with all 
 
         other evidence introduced bearing on the causal connection.  
 
         Burt, 247 Iowa 691, 73 N.W.2d 732.  The opinion of experts need 
 
         not be couched in definite, positive or unequivocal language.  
 
         Sondag v. Ferris Hardware, 220 N.W.2d 903 (Iowa 1974).  However, 
 
         the expert opinion may be accepted or rejected, in whole or in 
 
         part, by the trier of fact.  Id. at 907.  Further, the weight to 
 
         be given to such an opinion is for the finder of fact, and that 
 
         may be affected by the completeness of the premise given the 
 
         expert and other surrounding circumstances.  Bodish, 257 Iowa 
 
         516, 133 N.W.2d 867.  See also Musselman v. Central Telephone 
 
         Co., 261 Iowa 352, 154 N.W.2d 128 (1967).
 
         
 
              While 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, (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, (1962).
 
         
 
              Our supreme court has stated many times that a claimant may 
 
         recover for a work connected aggravation of a preexisting 
 
         condition.  Almquist v. Shenandoah Nurseries, 218 Iowa 724, 254 
 
         N.W. 35 (1934).  See also Auxier v. Woodward State Hospital Sch., 
 
         266 N.W.2d 139 (Iowa 1978); Gosek v. Garmer and Stiles Co., 158 
 
         N.W.2d 731 (Iowa 1968); Barz v. Oler, 257 Iowa 508, 133 N.W.2d 
 
         704 (1965); Olson v. Goodyear Service Stores, 255 Iowa 1112, 125 
 
         N.W.2d 251 (1963); Yeager v. Firestone Tire & Rubber Co., 253 
 
         Iowa 369, 112 N.W.2d 299 (1961); Ziegler v. United States Gypsum 
 
         Co., 252 Iowa 613, 106 N.W.2d 591 (1960).
 
         
 
              Although the concept of arising out of and in the course of 
 
         employment and causal connection were identified as hearing 
 
         issues, the parties did not extensively brief those questions.
 
         
 
              Claimant's uncontradicted testimony shows that he developed 
 
         acute distress shortly after working in an unusual, bent over 
 
         position for an extended period while tying reinforcing rods.  He 
 
         did not have a history of prior back problems causing him to lose 
 
         time from work.  There is no indication that claimant was not in 
 
         the course of his employment while actually tying the rerods.  
 
         Whether the aggravation or "lighting up" of a previous weakness 
 
         or an entirely new injury, the deputy accepts it as establishes 
 
         that the incident of June 6, 1984 both arose out of and in the 
 
         course of claimant's employment.
 
         
 
              Causal connection to claimant's injury is a closer issue.  
 
         As has been seen, this is primarily an issue for medical opinion. 
 
          While not wholly satisfactory, the evidence does show that two 
 
         physicians have causally linked the injury to claimant's work.  
 
         Dr. Hotchner prepared an insurance form on September 10, 1984 and 
 
         Dr. McMillan did likewise on September 13, 1984.  Each checked a 
 
         preprinted box to indicate that causal connection existed.  While 
 
         this evidence is perhaps not overwhelming, it stands 
 
         uncontradicted and establishes causation.  While Dr. Dubansky 
 
         notes that claimant's history referred to an earlier incident, 
 
         this also occurred at work and apparently did not lead to lost 
 
         time or other problems.
 
         
 
              The parties are very much at odds as to the extent of 
 

 
         
 
         
 
         
 
         WEST V. L.H. SOWLES
 
         PAGE  10
 
         
 
         
 
         claimant's entitlement to healing period benefits.  The medical 
 
         evidence is in disarray as to when claimant reached maximum 
 
         recuperation.  The treating physician, Dr. Hotchner, expressed an 
 
         opinion that claimant would reach maximum healing three to six 
 
         months from August 20, 1985.  Of course, this was a prediction 
 
         and not a direct finding that claimant at any point did reach 
 
         maximum recuperation.  Dr. Dubansky felt that claimant was healed 
 
         as early as November 7, 1984, but this was before claimant 
 
         returned to work and exacerbated his injury, then leaving work 
 
         again on January 17, 1985.  Dr. Dubansky did not see claimant 
 
         after this exacerbation, and it is clear from the evidence of Dr. 
 
         Hotchner that claimant was again disabled following his 
 
         unsuccessful return to work.  Dr. Boulden expressed the opinion 
 
         that claimant had reached his healing period approximately 12 
 
         weeks from the date of his last time at work.  This would be in 
 
         mid-April, 1985.  Of course, Dr. Boulden did not see claimant at 
 
         any time near April, 1985, but only on December 23, 1985.
 
         
 
              It is hereby found that claimant reached maximum 
 
         recuperation and the end of his healing period on December 23, 
 
         1985.  As of that date, Dr. Boulden's testimony established that 
 
         he had reached maximum recuperation.  He had not reached maximum 
 
         recuperation as per Dr. Hotchner's opinion as of August 20, 1985, 
 
         but would do so in three to six months from that date.  Of 
 
         course, December 23 is within that time frame.  Even though Dr. 
 
         Boulden was of the view that claimant had reached maximum 
 
         recuperation much earlier, this opinion is based upon 
 
         speculation.  Therefore, claimant shall be awarded 80 5/7 
 
         (80.714) weeks of healing period benefits.
 
         
 
              The medical evidence shows that claimant has a permanent 
 
         impairment resulting from his injuries.  While the record is 
 
         unclear as to exactly the nature of claimant's continued problem, 
 
         the medical evidence establishes that a problem in his back 
 
         continues to exist.  Dr. McMillan did not express an opinion as 
 
         to permanency.  Dr. Hotchner initially diagnosed lumbar myosotis 
 
         with lumbosacral spine somatic dysfunction, but never 
 
         particularly changed that diagnosis or established a final 
 
         diagnosis beyond chronic pain and muscle spasm.  However, Dr. 
 
         Hotchner imposed a permanent lifting restriction, felt that 
 
         claimant should not return to his position, and assessed 
 
         claimant's impairment at five percent of the body as a whole, 
 
         with a guarded prognosis.  Dr. Dubansky felt that claimant showed 
 
         evidence of nerve root impingement on the left, noted that heavy 
 
         manual labor would continue to give him further trouble, in 
 
         particular his position as an ironworker, and also assigned a 
 
         five percent permanent impairment rating.  Dr. Boulden had an 
 
         impression of low back pain, probably secondary to spinal 
 
         instability and associated internal disc disruption.  He also 
 
         felt that claimant could not return to his previous position and 
 
         also assigned a permanent impairment rating of five percent of 
 
         the lumbar spine.  Thus, it is established that claimant does 
 
         suffer from a permanent partial impairment.
 
         
 
              As claimant has an impairment to the body as a whole, and is 
 
         thereby disabled from returning to his work, 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 
 

 
         
 
         
 
         
 
         WEST V. L.H. SOWLES
 
         PAGE  11
 
         
 
         
 
         man."
 
         
 
              Functional disability is an element to be considered in 
 
         determining industrial disability which is the reduction of 
 
         earning capacity, but consideration must also be given to the 
 
         injured employee's age, education, qualifications, experience and 
 
         inability to engage in employment for which he is fitted.  Olson 
 
         v. Goodyear Service Stores, 255 Iowa 1112, 125 N.W.2d 251 (1963).  
 
         Barton v. Nevada Poultry, 253 Iowa 285, 110 N.W.2d 660 (1961).
 
         
 
              A finding of impairment to the body as a whole found by a 
 
         medical evaluator does not equate to industrial disability.  This 
 
         is so as impairment and disability are not synonymous.  Degree of 
 
         industrial disability can in fact be much different than the 
 
         degree of impairment because in the first instance reference is 
 
         to loss of earning capacity and in the later to anatomical or 
 
         functional abnormality or loss.  Although loss of function is to 
 
         be considered and disability can rarely be found without it, it 
 
         is not so that a degree of industrial disability is 
 
         proportionally related to d degree of impairment. of bodily 
 
         function.
 
         
 
              Factors to be considered in determining industrial 
 
         disability include the employee's medical condition prior to the 
 
         injury, immediately after the injury, and presently; the situs of 
 
         the injury, its severity and the length of healing period; the 
 
         work experience of the employee prior to the injury, after the 
 
         injury and potential for rehabilitation; the employee's 
 
         qualifications intellectually, emotionally and physically; 
 
         earnings prior and subsequent to the injury; age; education; 
 
         motivation; functional impairment as a result of the injury; and 
 
         inability because of the injury to engage in employment for which 
 
         the employee is fitted.  Loss of earnings caused by a job 
 
         transfer for reasons related to the injury is also relevant.  
 
         These are matters which the finder of fact considers collectively 
 
         in arriving at the determination of the degree of industrial 
 
         disability.
 
         
 
              There are no weighting guidelines that indicate how each of 
 
         the factors are to be considered.  There are no guidelines which 
 
         give, for example, age a weighted value of ten percent of the 
 
         total value, education a value of fifteen percent of total, 
 
         motivation - five percent; work experience - thirty percent, etc. 
 
          Neither does a rating of functional impairment directly 
 
         correlate to a degree of industrial disability to the body as a 
 
         whole.  In other words, there are no formulae which can be 
 
         applied and then added up to determine the degree of industrial 
 
         disability.  It therefore becomes necessary for the deputy or 
 
         commissioner to draw upon prior experience, general and 
 
         specialized knowledge to make the finding with regard to degree 
 
         of industrial disability.  See Peterson v. Truck Haven Cafe, 
 
         Inc., (Appeal Decision, February 28, 1985); Christensen v. Hagen, 
 
         Inc., (Appeal Decision, March 26, 1985).
 
         
 
              The evidence is undisputed that claimant had reached the top 
 
         of his profession at the time of his injury.  Before the injury, 
 
         he was a competent and qualified ironworker, while now he is 
 
         unable to return to that profession.  There is no doubt that he 
 
         has suffered an industrial disability.
 
         
 
              However, claimant's future is not entirely dark.  The 
 
         evidence shows that he is highly motivated, intelligent and 
 
         gifted with aptitudes and talents in a large variety of areas.  
 

 
         
 
         
 
         
 
         WEST V. L.H. SOWLES
 
         PAGE  12
 
         
 
         
 
         Claimant was 35 years old at the time of his injury, and while it 
 
         is unfortunate that he devoted so many years to developing his 
 
         expertise as an ironworker, it is unrealistic to suppose that a 
 
         talented and able 35-year-old is unable to retrain and reach 
 
         success in a new profession.  In fact, claimant has undertaken a 
 
         retraining program and has commendably set out to make his way in 
 
         a wholly different field, that of taxidermy.
 
         
 
              The evidence shows that it may be several years before 
 
         claimant knows to what degree he will be successful in the 
 
         taxidermy field.  While he suffered a business loss during 
 
         calendar year 1986, this can hardly be considered unusual or 
 
         unexpected for an individual setting up a new business, 
 
         particularly one as competitive as appears to be taxidermy in 
 
         western Montana.  And after all, business losses during a 
 
         start-up stage can be misleading, because they are calculated for 
 
         tax purposes.
 
         
 
              Also to be considered is that claimant appears to have a 
 
         fairly wide variety of options available to him, some of which 
 
         might be more remunerative than taxidermy, or at least more 
 
         remunerative than taxidermy has been thus far.  After all, it is 
 
         not merely a loss of earnings that is to be considered, but a 
 
         loss of earning capacity.  The testimony of Robert Jones shows 
 
         that claimant, either with retraining or with selective 
 
         placement,might well be successful in a variety of different 
 
         positions.  However, since none of those positions appear to pay 
 
         remuneration equivalent to that of a skilled ironworker, it is 
 

 
         
 
         
 
         
 
         WEST V. L.H. SOWLES
 
         PAGE  13
 
         
 
         
 
         clear that claimant's earning capacity, along with his actual 
 
         earnings, has been reduced.
 
         
 
              Given the above considerations, this deputy finds and 
 
         concludes that claimant has, by reason of his work-related 
 
         injury, suffered an industrial disability of 20% of the body as a 
 
         whole, the commencement date for permanent partial disability 
 
         being December 24, 1985.
 
         
 
              Also at issue are vocational rehabilitation benefits under 
 
         Iowa Code section 85.70.  Claimant has sustained an injury 
 
         resulting in permanent partial disability for which compensation 
 
         is payable under this Chapter and apparently cannot return to 
 
         reasonable gainful employment due to the disability.  Claimant 
 
         was unable to prove the precise amount of time he spent in 
 
         vocational rehabilitation training (11 or 12 weeks), but did 
 
         establish at least 11 weeks.  This shall be at the statutory 
 
         amount of $20.00 per week.  The fact that claimant received some 
 
         assistance from the state of Iowa for his housing expenses does 
 
         not operate to relieve defendants of this statutory burden.
 
         
 
                                 FINDINGS OF FACT
 
         
 
              THEREFORE, based on the evidence presented, the following 
 
         ultimate facts are found:
 
         
 
              1.  Claimant was employed by defendant L. H. Sowles Company 
 
         as an ironworker on June 6, 1984.
 
         
 
              2.  On that date, claimant spent substantial time during a 
 
         concrete pour in an unusual and stressful position, bent over 
 
         tying reinforcing rods; thereafter, he suffered distress and pain 
 
         to his back and sought medical attention.
 
         
 
              3.  Claimant's back pains are caused by physical problems of 
 
         unclear diagnosis, but related to spinal instability and 
 
         associated internal disc disruption and were either caused, 
 
         aggravated or "lighted up" by the employment.
 
         
 
              4.  Claimant was off work for healing period purposes from 
 
         June 7, 1984 through mid-December, 1984, at which time he 
 
         returned to work for approximately five weeks until January 17, 
 
         1985.
 
         
 
              5.  Claimant's attempted return to work was unsuccessful and 
 
         exacerbated his injury, which had to some degree healed as of his 
 
         attempted return to work.
 
         
 
              6.  Claimant continued off work for healing purposes through 
 
         December 23, 1985, at which time he had reached maximum 
 
         recovery.
 
         
 
              7.  Claimant's injury of June 6, 1984 resulted in the loss 
 
         of his job with defendant L. H. Sowles and disability to the 
 
         extent that claimant is no longer able to perform his 
 
         professional duties as an ironworker, due to lifting and movement 
 
         restrictions.
 
         
 
              8.  At the time of claimant's injury, he was a 
 
         well-qualified journeyman ironworker.
 
         
 
              9.  Claimant is a talented, able and highly motivated 
 

 
         
 
         
 
         
 
         WEST V. L.H. SOWLES
 
         PAGE  14
 
         
 
         
 
         individual who has successfully completed retraining in the 
 
         taxidermy field since his injury and has set up a self-employment 
 
         business in the state of Montana.
 
         
 
             10.  Claimant's loss of ability to continue his professional 
 
         duties as an ironworker has caused a diminution both in his 
 
         earnings and in his earning capacity.
 
         
 
             11.  Claimant's rate of compensation has been stipulated to 
 
         be $257.52 per week.
 
         
 
             12.  Claimant has established that he undertook 11 weeks of 
 
         vocational rehabilitation training.
 
         
 
             13.  Defendants have voluntarily paid to claimant 175.429 
 
         weeks of compensation at the stipulated rate.
 
         
 
                                CONCLUSIONS OF LAW
 
         
 
              WHEREFORE, based on the principles of law previously stated, 
 
         the following conclusions of law are made:
 
         
 
              1.  Claimant suffered an injury arising out of and in the 
 
         course of his employment on June 6, 1984.
 
         
 
              2.  Claimant's injury was an injury to the body as a whole.
 
         
 
              3.  Claimant's injury directly caused a healing period from 
 
         June 7, 1984 through December 23, 1985 (80.714 weeks) and 
 
         permanent partial disability.
 
         
 
              4.  Claimant has established a permanent partial disability 
 
         of 20% of the body as a whole, the commencement date being 
 
         December 24, 1985.
 
         
 
              5.  Claimant is entitled to 11 weeks of vocational 
 
         rehabilitation benefits under Iowa Code section 85.70 at $20.00 
 
         per week.
 
         
 
                                      ORDER
 
         
 
              THEREFORE, IT IS ORDERED:
 
         
 
              Defendants are to pay unto claimant eighty point seven one 
 
         four (80.714) weeks of healing period benefits at the stipulated 
 
         rate of two hundred fifty-seven and 52/100 dollars ($257.52) per 
 
         week totalling twenty thousand seven hundred eighty-five and 
 
         47/100 dollars ($20,785.47).
 
         
 
              Defendants are to pay unto claimant one hundred (100) weeks 
 
         [twenty percent (20%) of five hundred (500) weeks] permanent 
 
         partial disability at the stipulated rate of two hundred 
 
         fifty-seven and 52/100 dollars ($257.52) per week totalling 
 
         twenty-five thousand seven hundred fifty-two and 00/100 dollars 
 
         ($25,752.00).
 
         
 
              Defendants are to pay unto claimant eleven (11) weeks of 
 
         vocational rehabilitation benefits at twenty and 00/100 dollars 
 
         ($20.00) per week totalling two hundred twenty and 00/100 dollars 
 
         ($220.00).
 
         
 
              Defendants shall be entitled to credit for one hundred 
 
         seventy-five point four two nine (175.429) weeks of compensation 
 

 
         
 
         
 
         
 
         WEST V. L.H. SOWLES
 
         PAGE  15
 
         
 
         
 
         at the rate of two hundred fifty-seven and 52/100 dollars 
 
         ($257.52) which were paid prior to hearing, totalling forty-five 
 
         thousand one hundred seventy-six and 48/100 dollars 
 
         ($45,176.48).
 
         
 
              Since the commencement date for permanent partial disability 
 
         is December 24, 1985, and all permanent partial disability 
 
         benefits to which claimant is entitled have accrued, the award 
 
         shall be paid in a lump sum together with statutory interest 
 
         pursuant to Iowa Code section 85.30.
 
         
 
              Costs of this action are assessed against defendants 
 
         pursuant to Division of Industrial Services Rule 343-4.33.
 
         
 
              Defendants shall file a Claim Activity Report upon payment 
 
         of this award pursuant to Division of Industrial Services Rule 
 
         343-3.1.
 
         
 
              Signed and filed this 30th day of December, 1988.
 
         
 
         
 
         
 
         
 
                                         DAVID RASEY
 
                                         DEPUTY INDUSTRIAL COMMISSIONER
 
         
 
         
 
         
 
         Copies To:
 
         
 
         Mr. Dennis L. Hanssen
 
         Attorney at Law
 
         Suite 111, Terrace Center
 
         2700 Grand Avenue
 
         Des Moines, Iowa 50312
 
         
 
         Mr. Ross H. Sidney
 
         Ms. Iris J. Post
 
         Attorneys at Law
 
         2222 Grand Avenue
 
         P.O. Box 10434
 
         Des Moines, Iowa 50306
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                              1802, 1803
 
                                              Filed December 30, 1988
 
                                              DAVID RASEY
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         RONALD WEST,
 
         
 
              Claimant,
 
         
 
         vs.
 
                                                      File No. 769431
 
         L. H. SOWLES,
 
                                                  A R B I T R A T I O N
 
              Employer,
 
                                                     D E C I S I O N
 
         and
 
         
 
         AMERICAN MUTUAL INSURANCE CO.,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         1802, 1803
 
         
 
              Healing period ended when examining physician agreed that 
 
         claimant had reached maximum recovery (although physician 
 
         speculated that recovery had been attained much earlier), and 
 
         where treating physician predicted that recovery would be reached 
 
         within the time frame in which claimant was seen by examining 
 
         physician.
 
         
 
              Claimant awarded 20% permanent partial disability where back 
 
         injury forced him to leave work as ironworker, and limitations 
 
         did not fit him for equally remunerative work.
 
         
 
 
         
 
 
 
 
 
 
 
 
 
 
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         MARTIN L. ZAUHAR,
 
         
 
              Claimant,
 
                                               File No. 769652
 
         
 
         VS.
 
                                            A R B I T R A T I 0 N
 
         
 
         WILSON FOODS, INC.,
 
                                              D E C I S I O N
 
         
 
              Employer,
 
              Self-Insured,
 
              Defendant.
 
         
 
         
 
         
 
                                   INTRODUCTION
 
                                        
 
              This is a proceeding in arbitration.  The case is brought by 
 
         Martin L. Zauhar, claimant, against Wilson Foods, Inc., 
 
         self-insured employer.  The case was heard by the undersigned on 
 
         June 2, 1989, in Storm Lake, Iowa.
 
         
 
              The record consists of joint exhibits 1-34.  The record also 
 
         consists of the testimony of claimant and the testimony of Sheila 
 
         Zauhar, wife of claimant.
 
         
 
                                      ISSUE
 
         
 
              As a result of the prehearing report and order submitted on 
 
         June 2, 1989, the issue presented by the parties is:
 
         
 
              The extent of entitlement to weekly compensation for 
 
         permanent disability, if defendant is liable for the injuries.
 
         
 
                                   STIPULATIONS
 
         
 
              Prior to the hearing, the parties have entered into a number 
 
         of stipulations.  The stipulations are as follows:
 
         
 
              1. The existence of an employer-employee relationship 
 
         between claimant and employer at the time of the alleged injury;
 
         
 
              2. That claimant sustained an injury on July 6, 1984, which 
 
         arose out of and in the course of employment with employer as to 
 
         his right shoulder;
 
         
 
              3. That the alleged injury is a cause of temporary 
 
         disability during a period of recovery is stipulated.  That the 
 
         work injury is a cause of permanent disability;
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         
 
         ZAUHAR V. WILSON FOODS, INC.
 
         Page 2
 
         
 
         
 
              4. That the extent of entitlement to weekly compensation for 
 
         temporary total disability or healing period, if defendant is 
 
         liable for the injury, is stipulated to be from July 7, 1984 to 
 
         November 4, 1984, from August 23, 1985 to August 29, 1985, and 
 
         from September 7, 1985 to March 9, 1986.
 
         
 
              5. The type of permanent disability, if the injury is found 
 
         to be a cause of permanent disability, is stipulated to be an 
 
         industrial disability to the body as a whole.  The commencement 
 
         date for permanent partial disability, in the event such benefits 
 
         are awarded, is stipulated to be the 10th day of March, 1986.
 
         
 
              6. In the event of an award of weekly benefits, the rate of 
 
         weekly compensation is stipulated to be $212.54 per week.
 
         
 
              7. Defendant paid claimant 44.571 weeks of healing period 
 
         benefits ($9;499.05) and 50 weeks of permanent partial disability 
 
         benefits ($10,627.00).
 
         
 
                                 FACTS PRESENTED
 
         
 
              Claimant is 53-years-old and married.  He has completed high 
 
         school.  In 1969, claimant commenced his employment with 
 
         defendant.  Claimant worked in a number of departments prior to 
 
         the date of his work injury.  Primarily, claimant was involved 
 
         with hog kill work, including extracting the pancreatic gland 
 
         from the gut.
 
         
 
              On the day in question, claimant injured his lower back 
 
         while he was pulling heavy buckets onto a work table.  He filed 
 
         an accident report with the company subsequent to the injury.
 
         
 
              Claimant testified that defendant referred him to Keith 
 
         Garner, M.D. Therapy was ordered by Dr. Garner.  Dr. Garner, in 
 
         turn, referred claimant to Mark Wheeler, M.D. Dr. Wheeler saw 
 
         claimant on several occasions.  In his office notes for August 
 
         20, 1984, the physician wrote:
 
         
 
              Impression: Probable L5-Sl herniated disc which is making 
 
              progress in terms of healing.
 
              
 
              Disposition: I have recommended he stay off work until 
 
              09/04/84; he could then return if it was on a limited basis 
 
              calling for lifting no more than 15 lbs., repetitive 
 
              bending, twisting or standing ....
 
         
 
              Dr. Garner also referred claimant to John Connolly, M.D., 
 
         Professor and Chairman, orthopaedics, University of Nebraska 
 
         Medical Center.  Dr. Connolly became the primary treating 
 
         physician.  He diagnosed claimant as follows:
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         
 
         
 
         ZAUHAR V. WILSON FOODS, INC.
 
         Page 3
 
         
 
         
 
              My impression is that he does have an L-5/S-1 disc 
 
              protrusion, however, I think this is resolving and should 
 
              continue to improve over the next 4-6 weeks.  I would 
 
              certainly give it that period of time before recommending 
 
              any further treatment.  He has not been sufficiently 
 
              disabled to stop working, and I certainly would not 
 
              recommend that he stay off work.  I think the problem should 
 
              resolve, but if he is not better in six weeks, I would like 
 
              to know about it and we might consider further evaluation 
 
              and disc removal, either by injection or by a surgical 
 
              approach.
 
         
 
              Claimant, in September of 1985, was then hospitalized for an 
 
         intradiskal injection of Chymopapain.  Dr. Connolly later 
 
         examined claimant as of July 17, 1986, he opined:
 
         
 
              Martin Zauhar was in the Orthopaedic Followup Clinic on June 
 
              19.  He gave a history of having some pain with twisting of 
 
              back.  He said he went to a chiropractor who twisted his 
 
              back and relieved his symptoms.  He continues to work at the 
 
              meat packing house, but still can't lift anything very 
 
              heavy.  When I examined him, he was nontender and full range 
 
              of motion in the lumbar spine, being able to get his 
 
              fingertips to about two inches from the floor.  There were 
 
              no motor nor sensory deficits.  I felt he was still doing 
 
              reasonably well, and needed to continue on his exercise 
 
              program.  At this time, he needs no further therapy.  He 
 
              apparently has been going occasionally to a chiropractor, 
 
              but I would not recommend long-term treatment of this 
 
              nature, since he could do most of the exercises himself.
 
              
 
              We will see him back here if he has any further difficulty.  
 
              He is to continue aspirin and the exercise program we have 
 
              discussed with him....
 
         
 
              Dr. Connolly also provided a functional impairment rating.  
 
         He rated claimant as having a "10% loss of back function."
 
         
 
              Other than the physicians listed above, claimant was also 
 
         treated by M. A. Kennedy, D.C. Dr. Kennedy initially saw claimant 
 
         on the date of the work injury.  Dr. Kennedy continued treatment 
 
         through January of 1989.  He opined claimant's condition was as 
 
         follows:
 
         
 
              Basically, Mr. Zauhar's problem has centered around pain in 
 
              his lower back and pain in the buttocks [sic] and into the 
 
              left leg.  This particular condition has centered itself in 
 
              the entirety of the time of his care.  As of the present 
 
              time, we still have
 

 
              
 
 
 
 
 
 
 
 
 
 
 
         
 
         
 
         
 
         ZAUHAR V. WILSON FOODS, INC.
 
         Page 4
 
         
 
         
 
              a marked residual into the right hip and leg accompanying 
 
              our pre-existing pain.
 
              
 
              This particular individual has been awarded many diagnoses.  
 
              The 7/15/85 diagnosis of adhesive capsulitis was given by 
 
              myself.  That particular diagnosis I will maintain, in 
 
              conjunction [sic] with a 5L disc degeneration.
 
              
 
              The above-captioned patient's back problem has without a 
 
              doubt left him with a permanent impairment.  This impairment 
 
              is very difficult to put an impairment rating on due to the 
 
              fact that we have never done such in our office.  Looking 
 
              back through the notes, however brief they may appear to 
 
              yourself, they definitely substantiate the case that has 
 
              been needed for this individual [sic]
 
              
 
              With approximately 24 years of clinical experience, I feel 
 
              without a doubt that his permanent back involvement was 
 
              substantially caused by his employment at Wilson Foods.  The 
 
              jolts and jars which an individual undergoes through normal 
 
              "being man of the house" had just a fraction of any 
 
              disabling percentage.
 
              
 
              Mr. Zauhar's need for further care will vary with his type 
 
              of employment, fatigue, and weather conditions.  Proper 
 
              exercising will aid his condition.
 
         
 
              Claimant was released to return to work on March 10, 1986.  
 
         He testified he was under no lifting restrictions.  However, 
 
         claimant indicated the hog kill floor was closed upon his return 
 
         to work.  He was thus placed in the recipe ready room where he 
 
         worked on the McDonald line for four months.
 
         
 
              Claimant testified that defendant has engaged in 
 
         reorganization.  Some departments within the plant have been 
 
         closed.  As a result of the reorganization, claimant has been 
 
         unable to hold a permanent position.  Laid off workers, including 
 
         claimant, have been placed in a labor pool where they are 
 
         required to report for possible duty every Monday morning.  
 
         According to claimant's testimony, he has "worked pretty 
 
         consistently" since the labor pool has been instituted.
 
         
 
              During his hearing, claimant reported that as of April of 
 
         1988, he has been bumped into the sausage department where he 
 
         inspects wieners.  Claimant testified the wiener inspection job 
 
         is tedious, it requires standing, but no lifting is involved, and 
 
         the job is better than if claimant is required to bend.
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
              Ms. Zauhar testified on behalf of claimant.  She stated 
 
         claimant does his exercises every morning, and when claimant
 
         
 
         
 
         
 
         ZAUHAR V. WILSON FOODS, INC.
 
         Page 5
 
         
 
         
 
         is experiencing pain, he takes aspirin to relieve the situation.  
 
         She also indicated claimant cannot assist with the housework.
 
         
 
                                  APPLICABLE LAW
 
         
 
              An employee is entitled to compensation for any and all 
 
         personal injuries which arise out of and in the course of the 
 
         employment.  Section 85.3(l).
 
         
 
              Claimant has the burden of proving by a preponderance of the 
 
         evidence that he received an injury on July 6, 1984, which arose 
 
         out of and in the course of his employment.  McDowell v.Town of 
 
         Clarksville, 241 N.W.2d 904 (Iowa 1976); Musselman v. Central 
 
         Telephone Co., 261 Iowa 352, 154 N.W.2d 128 (1967).
 
         
 
              The claimant has the burden of proving by a preponderance of 
 
         the evidence that the injury of July 6, 1984, is causally related 
 
         to the disability on which he now bases his claim.  Bodish v. 
 
         Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867 (1965).  Lindahl v. 
 
         L.O. Boggs, 236 Iowa 296, 18 N.W.2d 607 (1945).  A possibility is 
 
         insufficient; a probability is necessary.  Burt v. John Deere 
 
         Waterloo Tractor Works, 247 Iowa 691,.73 N.W.2d 73 (1955).  The 
 
         question of causal connection is essentially within the domain of 
 
         expert testimony.  Bradshaw v. Iowa Methodist Hospital, 251 Iowa 
 
         375, 101 N.W.2d 167 (1960).
 
         
 
              However, expert medical evidence must be considered with all 
 
         other evidence introduced bearing on the causal connection.  
 
         Burt, 247 Iowa 691, 73 N.W.2d 732.  The opinion of experts need 
 
         not be couched in definite, positive or unequivocal language. 
 
         Sondag v. Ferris Hardware, 220 N.W.2d 903 (Iowa 1974).  However, 
 
         the expert opinion may be accepted or rejected, in whole or in 
 
         part, by the trier of fact.  Id. at 907.  Further, the weight to 
 
         be given to such an opinion is for the finder of fact, and that 
 
         may be affected by the completeness of the premise given the 
 
         expert and other surrounding circumstances.  Bodish, 257 Iowa 
 
         516, 133 N.W.2d 867.  See also Musselman, 261 Iowa 352, 154 
 
         N.W.2d 128 (1967).
 
         
 
              The right of a worker to receive compensation for injuries 
 
         sustained which arose out of and in the course of employment is 
 
         statutory.  The statute conferring this right can also fix the 
 
         amount of compensation to be paid for different specific 
 
         injuries, and the employee is not entitled to compensation except 
 
         as provided by the statute.  Soukup v. Shores Co., 222 Iowa 272, 
 
         268 N.W. 598 (1936).
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              If a claimant contends he has industrial disability he has 
 
         the burden of proving his injury results in an ailment extending 
 
         beyond the scheduled loss.  Kellogg v. Shute and Lewis Coal Co., 
 
         256 Iowa 1257, 130 N.W.2d 667 (1964).
 
         
 
         
 
         
 
         ZAUHAR V. WILSON FOODS, INC.
 
         Page 6
 
         
 
         
 
              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, 125 N.W.2d 251 (1963).  
 
         Barton v. Nevada Poultry, 253 Iowa 285, 110 N.W.2d 660 (1961).
 
         
 
              A finding of impairment to the body as a whole found by a 
 
         medical evaluator does not equate to industrial disability.  This 
 
         is so as impairment and disability are not synonymous.  Degree of 
 
         industrial disability can in fact be much different than the 
 
         degree of impairment because in the first instance reference is 
 
         to loss of earning capacity and in the latter to anatomical or 
 
         functional abnormality or loss.  Although loss of function is to 
 
         be considered and disability can rarely be found without it, it 
 
         is not so that a degree of industrial disability is 
 
         proportionally related to a degree of impairment of bodily 
 
         function.
 
         
 
              Factors to be considered in determining industrial 
 
         disability include the employee's medical condition prior to the 
 
         injury, immediately after the injury, and presently; the situs of 
 
         the injury, its severity and the length of healing period; the 
 
         work experience of the employee prior to the injury, after the 
 
         injury and potential for rehabilitation; the employee's 
 
         qualifications intellectually, emotionally and physically; 
 
         earnings prior and subsequent to the injury; age; education; 
 
         motivation; functional impairment as a result of the injury; and 
 
         inability because of the injury to engage in employment for which 
 
         the employee is fitted.  Loss of earnings caused by a job 
 
         transfer for reasons related to the injury is also relevant.  
 
         These are matters which the finder of fact considers collectively 
 
         in arriving at the determination of the degree of industrial 
 
         disability.
 
         
 
              There are no weighting guidelines that indicate how each of 
 
         the factors are to be considered.  There are no guidelines which 
 
         give, for example, age a weighted value of ten percent of the 
 
         total value, education a value of fifteen percent of total, 
 
         motivation - five percent; work experience - thirty percent, etc.  
 
         Neither does a rating of functional impairment directly correlate 
 
         to a degree of industrial disability to the body as a whole.  In 
 
         other words, there are no formulae which can be applied and then 
 
         added up to determine the degree of industrial disability.  It 
 
         therefore becomes necessary for the deputy or commissioner to 
 
         draw upon prior experience, general and specialized knowledge to 
 
         make the finding with regard to degree of industrial disability.  
 
         See Peterson v. Truck Haven Cafe, Inc., (Appeal Decision, 
 
         February 28, 1985); Christensen v.Hagen, Inc., (Appeal Decision, 
 
         March 26, 1985).
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         
 
         
 
         ZAUHAR V. WILSON FOODS, INC.
 
         Page 7
 
         
 
         
 
              For example, a defendant employer's refusal to give any sort 
 
         of work to a claimant after he suffers his affliction may justify 
 
         an award of disability.  McSpadden v. Big Ben Coal Co., 288 
 
         N.W.2d 181 (Iowa 1980).
 
         
 
              Similarly, a claimant's inability to find other suitable 
 
         work after making bona fide efforts to find such work may 
 
         indicate that relief would be granted.  McSpadden, 288 N.W.2d 181 
 
         (Iowa 1980)
 
         
 
                                     ANALYSIS
 
         
 
              The sole issue to address is the nature and extent of 
 
         claimant's permanent disability.  It is noted the only functional 
 
         impairment rating is the 10 percent figure provided by Dr. 
 
         Connolly.  While Dr. Kennedy states there is a functional 
 
         impairment, his opinion cannot be given much weight since Dr. 
 
         Kennedy admits he has never provided a functional impairment 
 
         rating in his 24 years of practice.  In light of the foregoing, 
 
         the undersigned finds that claimant has a functional impairment 
 
         of 10 percent as a result of claimant's work injury on July 6, 
 
         1984.
 
         
 
              Claimant argues he has an industrial disability.  He 
 
         maintains he has a loss of earning capacity and a loss of 
 
         earnings.  Defendant supports the position that claimant's 
 
         permanent partial disability is no greater than the 10 percent 
 
         functional impairment rating.
 
         
 
              Claimant has been able to work since he has returned to the 
 
         plant on March 9, 1986.  He has returned to work without any 
 
         restrictions placed upon him by a medical practitioner.  Any 
 
         restrictions have been self-imposed.  Such was the case when 
 
         claimant chose not to bump into the pace boning department.  
 
         Since April, claimant has bumped into the sausage room.  By his 
 
         own admission, claimant is better able to handle this position 
 
         rather than a position where he is required to bend and twist.  
 
         Claimant's present position involves minimal lifting.
 
         
 
              Claimant has not proven by a preponderance of the evidence 
 
         that he has reduced his earning capacity as a result of his back 
 
         injury.  Claimant is under no physical restrictions.  No 
 
         limitations have been placed upon him.  He is capable of handling 
 
         the jobs within the plant.
 
         
 
              Likewise, claimant has not established that he has a loss of 
 
         earnings as a result of his back injury.  There is no question 
 
         claimant's present hourly wages are less than the wages he has 
 
         earned in previous years.  However, the wage reduction is not 
 
         attributable to claimant's back condition.  Rather, the wage 
 
         reduction is one which affects all employees.  Across the board,
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         
 
         
 
         ZAUHAR V. WILSON FOODS, INC.
 
         Page 8
 
         
 
         
 
         defendant's employees have sustained wage cuts.  Claimant has not 
 
         established his back injury has resulted in a loss of earnings to 
 
         him.
 
         
 
              It is the determination of the undersigned that claimant has 
 
         a permanent partial disability of 10 percent.  This finding is 
 
         based on: 1) the aforementioned considerations; 2) based upon the 
 
         permanent functional impairment rating assigned by Dr. Connolly; 
 
         3) based upon personal observation of claimant; 4) based upon 
 
         claimant's testimony at the hearing; and, 5) based upon agency 
 
         expertise, (Iowa Administrative Procedures Act 17A.14(s).
 
         
 
                     FINDINGS OF FACT AND CONCLUSIONS OF LAW
 
         
 
              WHEREFORE, based on the evidence presented and the 
 
         principles of law previously stated, the following findings of 
 
         fact and conclusions of law are made:
 
         
 
              FINDING 1. Claimant sustained a back injury arising out of 
 
         and in the course of his employment on July 6, 1984.
 
         
 
              FINDING 2. As a result of his injury on July 6, 1984, 
 
         claimant has an attributable functional impairment of 10 percent 
 
         of the body as a whole.
 
         
 
              FINDING 3. Claimant's loss of earnings is not attributable 
 
         to his back injury of July 6, 1984.
 
         
 
              FINDING 4. Claimant has not reduced his earning capacity as 
 
         a result of his back injury on July 6, 1984.
 
         
 
              FINDING 5. Claimant has no medical restrictions on the job.
 
         
 
              CONCLUSION A. Claimant has met his burden of proving he has 
 
         a 10 percent permanent partial disability as a result of his 
 
         injury on July 6, 1984.
 
         
 
              CONCLUSION B. Claimant is entitled to 44.571 weeks of 
 
         healing period benefits.
 
         
 
                                      ORDER
 
         
 
              THEREFORE, defendant is to pay unto claimant fifty (50) 
 
         weeks of permanent partial disability benefits at the rate of two 
 
         hundred twelve and 54/100 dollars ($212.54) per week as a result 
 
         of the injury on July 6, 1984.
 
         
 
              Defendant is to also pay unto claimant forty-four and 
 
         five-seven-one (44.571) weeks of healing period benefits at
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         
 
         
 
         ZAUHAR V. WILSON FOODS, INC.
 
         Page 9
 
         
 
         
 
         the rate of two hundred twelve and 54/100 dollars ($212.54) per 
 
         week as a result of the injury on July 6, 1984.
 
         
 
              Payments that have accrued shall be paid in a lump sum 
 
         together with statutory interest thereon pursuant to Iowa Code 
 
         section 85.30
 
         
 
              Defendant is to be given credit for all benefits previously 
 
         paid to claimant.
 
         
 
              Costs of this action are assessed against the defendant 
 
         pursuant to Division of Industrial Services Rule 343-4.33.
 
         
 
              Defendant shall file a claim activity report upon payment of 
 
         this award.
 
         
 
         
 
              Signed and filed this 31st day of August, 1989.
 
         
 
         
 
         
 
         
 
         
 
         
 
                                         MICHELLE A. McGOVERN
 
                                         DEPUTY INDUSTRIAL COMMISSIONER
 
         
 
         
 
         Copies To:
 
         
 
         Mr. Harry H. Smith 
 
         Mr. Dennis M. McElwain 
 
         Attorneys at Law 
 
         632-640 Badgerow Bldg.
 
         P. 0. Box 1194
 
         Sioux City, Iowa  51102
 
         
 
         Mr. David L. Sayre
 
         Attorney at Law
 
         223 Pine St.
 
         P. 0. Box 535
 
         Cherokee, Iowa  51012
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
 
         
 
 
 
 
 
 
 
 
 
 
 
                                         5-1803
 
                                         Filed August 31, 1989
 
                                         MICHELLE A. McGOVERN
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         MARTIN L. ZAUHAR,
 
         
 
              Claimant,
 
                                         File No. 769652
 
         
 
         VS.
 
                                         A R B I T R A T I 0 N
 
         WILSON FOODS, INC.,
 
                                         D E C I S I 0 N
 
         
 
              Employer,
 
              Self-Insured,
 
              Defendant.
 
         
 
         
 
         
 
         5-1803
 
         
 
              Claimant was awarded a 10 percent permanent partial 
 
         disability after he injured his back at work.  Claimant was given 
 
         a 10 percent functional impairment rating by his treating 
 
         physician.  Claimant was placed under no restrictions upon his 
 
         return to work.  Claimant's loss of earnings determined to be 
 
         unrelated to claimant's back injury.
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         _________________________________________________________________
 
         
 
         THERESE STUMP,
 
         
 
             Claimant,
 
         
 
         VS.
 
                                                 File No. 769748
 
         HAWKEYE BANCORP,
 
                                                    A P P E A L
 
              Employer,
 
                                                 D E C I S I 0 N
 
         and
 
         
 
         CIGNA INA,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         _________________________________________________________________
 
         
 
                              STATEMENT OF THE CASE
 
         
 
              Claimant appeals from an arbitration decision denying all 
 
         compensation because she did not establish that she sustained an 
 
         injury arising out of and in the course of employment.
 
         
 
              The record on appeal consists of the transcript of the 
 
         arbitration hearing and joint exhibits A through X. Both parties 
 
         filed briefs on appeal.
 
         
 
                                   ISSUE
 
         
 
              The issue on appeal is whether claimant sustained an injury 
 
         arising out of and in the course of employment at Hawkeye 
 
         Bancorp.
 
         
 
                           REVIEW OF THE EVIDENCE
 
         
 
              The arbitration decision adequately and accurately reflects 
 
         the pertinent evidence and it will not be totally reiterated 
 
         herein.
 
         
 
              Claimant alleges that she sustained a work injury to her 
 
         neck.  The hearing deputy in the arbitration decision stated:
 
         
 
                   Claimant described her work station as having a 
 
              chair with castors and a computer screen immediately in 
 
              front of the chair.  She reported that she had a phone 
 
              to the left of the chair and that the computer keyboard 
 
              was to the right of the chair.  Claimant indicated that 
 
              while talking on the telephone, she
 
         
 
              had to hold the phone with her left shoulder while 
 
              punching the the [sic] customer's credit card number 
 
              into the keyboard and looking to the left of the 
 
              keyboard at the computer screen.  Claimant indicated 
 
              that she was bent over the keyboard while turned to the 
 

 
              left to view the computer screen while composing 
 
              letters.
 
         
 
              Claimant's supervisor, Kathryn Layton, testified that 
 
         claimant spent approximately 75 to 80 percent of her time doing 
 
         paper work.  She also stated that a special phone was purchased 
 
         for claimant which she could rest on her shoulder.  Claimant's 
 
         job required her to handle a large volume of work and sometimes 
 
         handle irate customers.  Layton opined that claimant was 
 
         distressed by her father's sudden death in June 1983 and by her 
 
         family financial situation because her husband was laid off from 
 
         work and underwent back surgery in early 1983.
 
         
 
              Claimant testified she first began experiencing neck 
 
         problems in late spring or summer 1983.  First she only noticed a 
 
         slight shaking of her neck, however, this shaking soon became 
 
         constant and pain developed on the right side of her neck.  
 
         Claimant resigned in January 1984.  She has not worked since that 
 
         time.
 
         
 
              Claimant has sought treatment from a number of physicians 
 
         and chiropractors.  Eric A. Ravitz, D.O., states the following in 
 
         a letter to claimant's attorney dated December 16, 1985:
 
         
 
                   I first came to know Therese in March 1985 at 
 
              which time it was obvious to me that she had chronic 
 
              torticollis.  Medical therapy and referral to Iowa City 
 
              was initiated then.  Therese has had minimal response 
 
              to all therapeutic modalities so far.  Because of the 
 
              disappointing response I referred her to Dr. Steve 
 
              Adelman, neurologist, who suggested biofeedback.  He 
 
              said if that wasn't successful, consideration to have a 
 
              surgical procedure done might be effective.  To answer 
 
              your specific questions:
 
         
 
                   1.)  Therese's diagnosis remains chronic spasmodic 
 
              torticollis with a guarded prognosis.
 
         
 
                   2.)  With a reasonable degree of medical certainty 
 
              I can say her condition was aggravated and possibly 
 
              accelerated by her work at the Credit Card Center.
 
         
 
                   3.)  Therese still has the possibility of her 
 
              condition improving through physical or surgical 
 
              means.
 
         
 
                   4.)  At this point I cannot say to what degree 
 
              Therese is disabled or if it is permanent.
 
         
 
         (Joint Exhibit E)
 
              In their report the examining physicians at University of 
 
         Iowa Hospitals state:
 
         
 
              Impression: Torticollis, etiology unknown.  There are 
 
              no obvious or palpable masses in her neck or 
 
              tenderness.  No evidence of enlarged cervical nodes no 
 
              superclavicular nodes.  Her thyroid did not feel 
 
              enlarged.  We are not exactly sure what the cause of 
 
              this problem is, however, it is our impression that the 
 
              torticollis, while not having a directly related 
 
              organic cause can be treated reasonably well in this 
 
              patient with a course of physical therapy including 
 
              isometric exercises, working on her range of motion and 
 
              using a TENS unit.  Hopefully this will resolve the 
 
     
 
         
 
         
 
         
 
         
 
         STUMP V. HAWKEYE BANCORP
 
         Page   3
 
         
 
         
 
              problem.  We will see her back in three months time for 
 
              further follow-up.
 
         
 
         (Joint Ex.  C)
 
         
 
         Claimant's follow-up examination at University of Iowa Hospitals 
 
         did not result in any change in this impression.
 
         
 
              Claimant has also seen Robert A. Hayne, M.D., a 
 
         neurosurgeon.  Dr. Hayne disagrees with the diagnosis of 
 
         torticollis.  He opines the following in a letter to defense 
 
         counsel dated May 9, 1985:
 
         
 
              I do not feel she has chronic torticollis and she does 
 
              not exhibit symptoms that are associated with this 
 
              problem.  I feel that her prognosis should be good for 
 
              spontaneous subsidence of symptoms.  At this time it is 
 
              my opinion she has not sustained any permanent 
 
              impairment.  I would feel the healing period would end 
 
              about four to six weeks post-injury.  The shaking that 
 
              she described had been a problem to her and her pain 
 
              had practically diminished at the time of my 
 
              examination.  She seemed to feel her work running the 
 
              computer required her to turn her head frequently and 
 
              therefore aggravated her symptoms and I felt if this 
 
              were the case, she should not return to this type of 
 
              job which does require her to turn her head on a 
 
              prolonged daily basis.  I feel she should be able to 
 
              perform almost any other task which would require head 
 
              movement occasionally.  I do not feel there is any need 
 
              for continue chiropractic treatments.
 
         
 
         (Joint Ex.  A)
 
         
 
         
 
         
 
         
 
         
 
         
 
              In his deposition Dr. Hayne explains that he does not agree 
 
         that claimant has torticollis because the degree of deviation of 
 
         her head was less what he has seen in previous cases and claimant 
 
         does not have intermittent movement of the head to the side.  He 
 
         states that his opinion would not change if claimant had a 
 
         history of working in a position which required her to keep her 
 
         head in a position to the left and down for long periods of 
 
         time.
 
         
 
              Claimant has seen Robert C. Jones, M.D., a neurosurgeon.  
 
         Dr. Jones states:
 
         
 
              I felt that she had some type of cervical stress 
 
              syndrome.  I suggested physical therapy to the neck but 
 
              she has a financial problem and she had to forego this.  
 
              I prescribed Equagesic as a muscle relaxant-pain killer 
 
              and she was no better when I last saw her on February 
 
              20, 1984.  As she has probably told you, she has been 
 
              under a great deal of stress both on the job and 
 
              financially.  It could be that the position of her head 
 

 
         
 
         
 
         
 
         STUMP V. HAWKEYE BANCORP
 
         Page   4
 
         
 
         
 
              while working at the computer had a bearing on her neck 
 
              problem but it is my feeling that stress kept the 
 
              problem going.
 
         
 
         (Joint Ex.  D)
 
         
 
              John S. Barakat, D.C., has opined that claimant's condition 
 
         was related to her employment.
 
         
 
                               APPLICABLE LAW
 
         
 
              The citations of law in the arbitration decision are 
 
         appropriate to the issues and evidence.
 
         
 
                                 ANALYSIS
 
         
 
              In her appeal brief claimant argues that the deputy placed 
 
         undue reliance on the opinions of Dr. Hayne since Dr. Hayne only 
 
         examined claimant one time.  In Rockwell Graphics Systems, Inc. 
 
         v. Prince, 366 N.W.2d 187, 192 (Iowa 1985) the Iowa Supreme Court 
 
         stated:
 
         
 
                   We think a rule of law would be unwise that a 
 
              treating physician's testimony should be given greater 
 
              weight than that of a later physician who examines the 
 
              patient in anticipation of litigation.  The employer 
 
              should and does have the right to develop the facts as 
 
              to a latter physician's employment in connection with 
 
              litigation, his examination at a later date and not 
 
              when the injuries were fresh, his arrangement as to 
 
              compensation, the extent and nature of his examination, 
 
              his
 
         
 
         
 
              education, experience, training, and practice, and all 
 
              other factors which bear upon the weight and value of 
 
              his testimony.  The claimant may similarly develop such 
 
              information as to the treating physician.  Both parties 
 
              may press all of this information to the attention of 
 
              the fact finder, as either supporting or weakening the 
 
              physician's testimony and opinion.  All these factors, 
 
              however, go to the value of the physician's testimony 
 
              as a matter of fact, not as a matter of law. (Emphasis 
 
              by the Court)
 
         
 
              In the decision the deputy set out several reasons for 
 
         rejecting the diagnosis of torticollis related to claimant's 
 
         work.  First, the deputy noted that the length of time claimant 
 
         spent in the position which she alleges caused her condition was 
 
         not extensive.
 
         
 
                   Claimant contends she developed a permanent 
 
              distortion of her neck position as a result of working 
 
              with her head down and turned to the left.  We concede 
 
              that claimant has a physical problem.  We reject its 
 
              work-relatedness for several reasons.  The record does 
 
              not establish that claimant worked extensively with her 
 
              head in the position which she alleges produced her 
 
              condition., Hence, it does not appear the physical 
 

 
         
 
         
 
         
 
         STUMP V. HAWKEYE BANCORP
 
         Page   5
 
         
 
         
 
              maneuver could have created or sustained her continuing 
 
              problems.
 
         
 
              Second, the deputy noted that claimant's symptoms have 
 
         persisted long after she left her employment with defendant.  
 
         This, the deputy reasoned, supports a finding that the problem is 
 
         related to stress and noted that claimant was experiencing 
 
         personal stress.  Finally the deputy examined the qualifications 
 
         of the testifying doctors noting that Drs. Hayne and Jones 
 
         specialized in neurosurgery.  Dr. Ravitz' speciality was family 
 
         practice.  The qualifications and expertise of a witness is very 
 
         germane in a determination of the weight to be given testimony.  
 
         The deputy concluded that claimant did not meet her burden in 
 
         proving she sustained an injury arising out of and in the course 
 
         of employment.  The undersigned comes to the same conclusion.
 
         
 
              The findings of fact, conclusions of law and order of the 
 
         deputy are adopted herein.
 
         
 
                              FINDINGS OF FACT
 
         
 
              1.  Claimant worked full-time as a customer service 
 
         representative at the credit card center from September 27, 1982 
 
         to December 12, 1983.
 
         
 
              2.  Claimant spent approximately 20 to 25 percent of her 
 
         time on the telephone and approximately 75 to 80 percent of her
 
         time in paperwork.
 
         
 
              3.  Claimant's employer purchased a special phone for her 
 
         which claimant rested on her left shoulder.
 
         
 
              4.  Claimant's work station consisted of a telephone to the 
 
         left, a computer screen in the center, and computer keyboard to 
 
         the right.
 
         
 
              5.  Claimant had to look left at the screen while using the 
 
         keyboard.
 
         
 
              6.  Claimant also used the computer screen and keyboard to 
 
         compose letters.
 
         
 
              7.  Claimant first experienced symptoms in spring and summer 
 
         1983.
 
         
 
              8.   Claimant was having personal and financial stresses at 
 
         that time.
 
         
 
              9.  Claimant had problems with her work supervisor and a 
 
         heavy workload.
 
         
 
              10.  Claimant's neck condition has persisted long after she 
 
         has left both the physical conditions and the emotional stresses 
 
         related to her work.
 
         
 
              11.  Dr. Hayne is a neurosurgeon who has practiced since the 
 
         early 1950's.
 
         
 
              12.  Dr. Ravitz is a family practice specialist.
 

 
         
 
         
 
         
 
         STUMP V. HAWKEYE BANCORP
 
         Page   6
 
         
 
         
 
         
 
              13.  Dr. Jones is a neurologist.
 
         
 
              14.  Claimant's condition more likely than not relates to 
 
         her personal stresses and not to her work.
 
         
 
                             CONCLUSION OF LAW
 
         
 
              Claimant failed to meet her burden in proving she received 
 
         an injury arising out of and in the course of her employment with 
 
         defendants.
 
         
 
              WHEREFORE, the decision of the deputy is affirmed.
 
         
 
                                      ORDER
 
         
 
              THEREFORE, it is ordered:
 
         
 
              That claimant take nothing from this proceeding.
 
         
 
         
 
              That claimant pay the costs of the appeal.
 
         
 
         
 
              Signed and filed this 31st day of August, 1987.
 
         
 
         
 
         
 
         
 
         
 
                                            DAVID E. LINQUIST
 
                                            ACTING INDUSTRIAL COMMISSIONER
 
         
 
         Copies TO:
 
         
 
         Mr. David D. Drake
 
         Attorney at Law
 
         2141 Grand Avenue
 
         P.O. Box 367
 
         Des Moines, Iowa 50302
 
         
 
         Mr. Marvin E. Duckworth
 
         Attorney at Law
 
         2700 Grand Ave., Suite 111
 
         Des Moines, Iowa 50312
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                            1402.20-1402.30-2602
 
                                            Filed August 31, 1987
 
                                            DAVID E. LINQUIST
 
         
 
                   BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         _________________________________________________________________
 
         
 
         THERESE STUMP,
 
         
 
             Claimant,
 
         
 
         VS.
 
                                                 File No. 769748
 
         HAWKEYE BANCORP,
 
                                                    A P P E A L
 
              Employer,
 
                                                 D E C I S I 0 N
 
         and
 
         
 
         CIGNA INA,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         _________________________________________________________________
 
         
 
         1402.20 - 1402.30 - 2602
 
         
 
              Claimant alleged that she suffers chronic torticollis as a 
 
         result of her work which she maintained required that she hold a 
 
         phone with her left shoulder while operating a keyboard and 
 
         looking to the left at a computer screen.  Medical evidence was 
 
         in conflict, however, the opinions of Drs. Hayne and Jones were 
 
         adopted in light of their specialization in neurosurgery.  No 
 
         injury arising out of and in the course of employment found.  
 
         Affirmed.