File Nos. 773001
         vs.                                                    853642
         FLEETGUARD, INC.,                         A R B I T R A T I 0 N
              Employer,                              D E C I S I 0 N
                                                        F I L E D
         COMPANY,                                      JUN 07 1989
              Insurance Carrier,                   INDUSTRIAL SERVICES
                              STATEMENT OF THE CASE
              This is a proceeding in arbitration brought by claimant Orla 
         Jane Smith against defendant employer Fleetguard, Inc., and 
         defendant insurance carrier Liberty Mutual Insurance Company to 
         recover benefits under the Iowa Workers' Compensation Act as the 
         result of injuries sustained on August 21, 1984 (773001:  right 
         leg) and January 28, 1987 (853642:  back).  This matter came on 
         for hearing before the undersigned in Fort Dodge, Iowa, on August 
         23, 1988, and was deemed fully submitted at the close of hearing.
              The record in this proceeding consists of claimant's 
         exhibits 1 through 40, defendants' exhibits 1 through 62, both 
         inclusive, and the testimony of claimant, Arlo Smith and Dolores 
         Hayworth.  It should be pointed out that a large number of the 
         exhibits were duplicates, although the hearing assignment order 
         specified that every reasonable effort should be made to avoid 
              Pursuant to the prehearing report submitted by the parties 
         and approved at hearing, the following issues have been 
         stipulated in file number 773001:  That an employment 
         relationship existed at the time of the injury; that claimant 
         sustained an injury on August 21, 1984, arising out of and in the 
         course of that employment; that the injury caused both temporary 
         and permanent disability; that claimant is entitled to 
         compensation for healing period from August 20, 1984 through 
         October 9, 1986; that claimant is entitled to compensation for 66 
         weeks of permanent partial disability based upon a 30% loss of 
         the use of the right leg, which is a scheduled member disability; 
         that the commencement date for permanent partial disability is in 
         October, 1986; that the appropriate rate of weekly benefits is 
         $185.88; that affirmative defenses are waived; that all requested 
         medical benefits have been or will be paid by defendants (except 
         as to 1988 expenses); that defendants are entitled to credit 
         under Iowa Code section 85.38(2) of $2,044.00 from February 29, 
         1988 through June 8, 1988; that defendants are entitled to credit 
         for benefits voluntarily paid at the stipulated rate from 
         September 3, 1985 through October 21, 1986 as healing period 
         benefits (except for claimant's temporary partial disability from 
         June 11, 1986 through July 14, 1986) and for 66 weeks of 
         permanent partial disability voluntarily paid.
              Presented for determination are issues as to whether 
         claimant is entitled to medical expenses and temporary total 
         disability resulting from a fall sustained in 1988 and whether 
         the same is attributable to claimant's 1984 injury.  Defendants 
         have taken the position that the 1988 fall is not properly at 
         issue with respect to claimant's 1984 injury; ruling was 
         reserved.  Defendants' objection is at this time overruled.  The 
         1988 fall is properly at issue.
              Pursuant to the prehearing report submitted by the parties 
         and approved at hearing with respect to file number 853642, the 
         following issues have been stipulated:  The existence of an 
         employment relationship at the time of the alleged injury; that 
         if the injury is found to be a cause of permanent disability, it 
         is an industrial disability to the body as a whole; that the 
         appropriate rate of weekly benefits is $193.82; that affirmative 
         defenses are waived; that the provider of medical services, 
         supplies and treatment would testify that the treatment was 
         reasonable and necessary, that the fees were reasonable, and 
         defendants are not offering contrary evidence; that the expenses 
         were authorized by defendants.
              Issues presented for determination in case number 853642 
         include:  Whether claimant sustained an injury on January 28, 
         1987, arising out of and in the course of her employment; whether 
         the alleged injury caused temporary or permanent disability; the 
         extent of claimant's entitlement to healing period or temporary 
         total disability benefits; the extent of claimant's entitlement 
         to compensation for permanent disability; claimant's entitlement 
         to medical benefits; whether claimant is entitled to benefits 
         pursuant to the odd-lot theory of permanent disability; whether 
         penalty benefits should be awarded under Iowa Code section 86.13.
                              REVIEW OF THE EVIDENCE
              Claimant testified that she was 47 years old at the time of 
         hearing and that she is a high school graduate with no further 
         education beyond various on-the-job training.  Her work history 
         includes a stint from June, 1960 to June, 1961 with a bank as a 
         clerical employee who acted as a head poster, file clerk and 
         operated business machines.  She worked for approximately six 
         months as a receptionist/clerk with Valley Clinic, which duties 
         included answering the telephone, operating a postal machine and 
         some bookkeeping.  She worked for approximately one year with 
         Sheller-Globe as an office employee, operating business machines, 
         typing, filing and answering the telephone.  Claimant was then 
         out of the labor market for approximately ten years while she 
         raised her family.  She next accepted a position with Breck 
         Company in which she acted as inspector, box maker, bottle feeder 
         and packer. Claimant held this position for approximately one 
         year. Thereafter, she worked on two occasions with the Sheaffer 
         Pen Company working in the mail room and in plastic fabrication.  
         She took a position for only a few months putting decals on 
         semi-tractor trucks, worked for approximately one year in a 
         soldering job with E. J. Johnson, and then worked fewer than six 
         months as a telephone solicitor for a sales business.
              Claimant began her work with Fleetguard,in September, 1983, 
         and this has been her only employment since that date.
              Claimant testified to an extensive medical history, 
         particularly as regards her right knee.  She was involved in an 
         automobile accident in 1966 and suffered neck injuries, still 
         having some problems secondary to that.  She injured her right 
         knee in a fall at home on January 6, 1977, undergoing her first 
         knee surgery on March 15, 1977.  Claimant fell while employed 
         with a different business in February, 1979, and underwent her 
         second right knee surgery on September 27, 1979.  Thereafter, 
         claimant underwent a patellectomy on May 27, 1980.
              In 1980, claimant moved to Garner, Iowa, and has since been 
         under the care of Sterling Laaveg, M.D.  Previous surgery was 
         undertaken through the office of Koert R. Smith, M.D., in 
         Burlington, Iowa.
              After another fall in 1980, claimant underwent a fourth 
         surgical procedure to the right knee, arthroscopy on January 
         12, 1981.
              Claimant described her stipulated work injury of August 21, 
         1984, as occurring when a fork lift struck a line, which struck a 
         basket that hit claimant in the right knee.  After various 
         treatments with physical therapy, casts, and the like, claimant 
         underwent surgery on March 12, 1985, described as right knee 
         arthroscopic excision of adhesions; arthroscopic excision of 
         suprapatellar plica and lateral retinacular release.  Claimant 
         then remained off work until her sixth surgery, which was 
         undertaken on September 10, 1985, in hopes of relieving her 
         persistent pain.  This operation involved fusing the right knee 
         with external fixation, which of course resulted in claimant 
         being permanently unable to bend the right knee.  The external 
         fixation was removed on November 21, 1985, the seventh surgical 
         procedure to the right knee.
              Claimant attempted to return to work on a part-time basis on 
         June 16, 1986, but was then taken off work by Dr. Laaveg on June 
         20.  In a letter to a claims adjustor, Dr.Laaveg opined on 
         October 9, 1986, that claimant had reached maximum healing of the 
         right knee, that her final impairment rating for the lower 
         extremity was 60% based on dysesthetic, paresthetic sensory 
         changes, pain pattern in and around the knee, and the fusion.  
         Dr. Laaveg also imposed work restrictions:  Claimant should not 
         be in a job in which she had to stand for over two hours at any 
         one time, should not have to lift off the floor or carry over 25 
         pounds, and should avoid having to do frequent bending or 
         twisting since this would put undue stress on the opposite knee.  
         Dr. Laaveg further stated that these restrictions effectively 
         eliminated claimant from any mechanical work.
              Claimant testified that she worked on a part-time basis 
         after returned to work on January 12, 1987.  She began working a 
         full-time job on January 19, 1987, suffered pain to the back and 
         left leg and was taken off work by Dr. Laaveg, and then returned 
         on a half-day basis January 26, 1987.  She worked four hours on 
         Monday, Tuesday and Wednesday, (January 28, 1987), but suffered a 
         great deal of pain from stooping and climbing.  She at that time 
         was working as an inspector, but had been given an additional 
         department to check, which involved additional walking.  She also 
         was required to use a testing device that she referred to as the 
         "thing," that required essentially all of her strength to 
         operate, exacerbating the symptoms.  In the evening of January 
         28, 1987, claimant's entire leg went numb (for the first time 
         ever) following which she undertook diagnostic tests resulting in 
         surgery for a herniated intervertebral disc L5-S1 on the right 
         with marked S1 radicular malfunction from compression neuropathy 
         on February 4, 1987.
              Claimant was released to return to work effective January 
         29, 1988, but defendant temporarily had no position available for 
         her at that time.  She was scheduled to return to work on 
         February 29, 1988, but suffered a fall down stairs at home on 
         February 18, 1988, which involved a fractured ankle.
              Claimant described her fall as occurring while she was 
         walking down stairs with nothing previously wrong.  She stepped 
         and suffered pain to the ankle, hearing an audible "crack," 
         following which she blacked out and awakened at the bottom of the 
         stairs.  Claimant denied tripping, and testified on 
         cross-examination to her belief that the ankle fracture was the 
         cause of her fall.
              Claimant returned to work on a part-time basis on June 9, 
         1988 in her previous job as inspector.  She last worked in 
         mid-July, 1988, being taken off work by her physician due to 
         pelvic and back problems.  She testified that at time of hearing, 
         her physician and employer were negotiating a return to work at 
         an appropriate position.  In a meeting of July 30, 1988 with 
         claimant, her employer and Dr. Laaveg, it was decided that 
         claimant would undergo continuing physical therapy and a work 
         hardening program.  Claimant's last physical therapy session may 
         have been the day before hearing, as she anticipated finishing 
         physical therapy later that week.
              Claimant was unsure whether she could return to her previous 
         position as inspector, because the position did require 
         substantial stooping and climbing and physical strength (to check 
         welds with the "thing," an arbor press).  Claimant believes that 
         the stooping and climbing is injurious to her hip.  She indicated 
         that Dr. Laaveg would make the determination as to whether she 
         could return to that position.
              Claimant forthrightly testified that she believes she is 
         capable of performing office type work, or at least is willing to 
         attempt such work.
              Claimant's current complaints are of pain in the back, 
         pelvis, right hip, and buttocks down the right leg.  This affects 
         her approximately three-fourths of the time.  She is unable to 
         walk as much as two miles (although this is also in part due to 
         the fractured ankle).  Of course, the right knee is still fused 
         and cannot be bent.  Claimant indicated that since the back 
         injury of January, 1987, she has had to further limit her 
         activities due to an inability to sit for long periods.
              An examination of claimant's medical history shows that she 
         has long been subject to falls.  Dr. Laaveg's notes of November 
         6, 1980 (claimant's exhibit 5, page 3) reflect that claimant has 
         complained of her knee giving out on occasion and on one occasion 
         she almost fell down the basement stairs except for catching 
         herself at the railing.  Dr. Laaveg's note of August 23, 1983 
         shows claimant complaining that her knee "wants to give away at 
         times."  Dr. Laaveg's note of November 26, 1984, reflects that 
         "the patient recently fell when her knee gave out on her, inspite 
         of being in the knee immobilizer."  As noted, claimant first hurt 
         her knee in a fall at home in January, 1977, and fell at work in 
         February, 1979.  Claimant also fell in a parking lot owned by 
         another employer on June 23, 1983.
              Dr. Laaveg's notes of February 19, 1988, shortly after her 
         ankle fracture, reflect a history of:
              This woman with previous major back surgery and a fusion of 
              the right knee tripped going down 4 steps in her home 
              twisting her ankle.
              Dr. Laaveg testified by deposition taken June 17, 1988.  
         With respect to the 1988 fall at home, he stated:
              Q.  In February of 1988 this incident occurred at home where 
              she tripped, I believe, and injured her is it right ankle or 
              left ankle?
              A.  Right.
              Q.  I think there was something in the notes about left, so 
              that would be incorrect, it would be the right ankle, would 
              it not?
              A.  Right ankle is the one that she injured.
              Q.  All right.  Now I guess what I need to know if I can is 
              although this incident occurred at home in February of 1988, 
              and although you had indicated approximately two weeks or so 
              prior that she had reached maximum recuperation with respect 
              to her back condition, did the fact that she had a 
              substantially impaired right lower extremity and the impact 
              that that had on her gait and her walking, did that 
              significantly contribute in your opinion to the incident 
              that occurred at home in mid-February of 1988?
              MR. TREVINO; Excuse me before you answer.  I'm going to 
              object to that question for the reason that there isn't any 
              proper foundation as to the precise manner in which the fall 
              at home occurred on February 19th, 1988.  And without such 
              information and foundation it becomes speculative on the 
              part of Dr. Laaveg to express a causal connection between 
              the two.
              Q.  First of all, preparatory to answering my question, do 
              your records reflect, in fact, how the fall occurred?
              A.  The patient, according to Dr. Fisher's note of 2-19-88 
              tripped going down four steps in her home twisting her ankle 
              on the day prior to Dr. Fisher's examination.
              Q.  With that history in mind, are you able to answer the 
              question that I asked?
              A.  There's no doubt that when somebody has a knee fusion in 
              specific that you do not move in the normal way, the way a 
              person normally would to go up and down stairs and it's far 
              more difficult to go up and down stairs with a fused knee 
              than it is without one and probably the most difficult part 
              of having a fused knee and certainly would contribute to 
              anybody's falling who has a fused knee going up and down 
              Specifically relating to her back, we have no history that 
              states she had sudden pain in her back or sudden feelings of 
              giving, so I have no reason to believe that her back 
              contributed at all to the fall.  In actual fact, I have not 
              discussed with her whether she felt that the fused knee 
              contributed or not, but I would suspect it probably did.
         (Claimant's exhibit 35, page 71, line 11 through page 73, line 
              Further in the deposition, Dr. Laaveg testified:
              Q.  To the extent that you've indicated her fused knee may 
              have contributed to the fall she had when she broke her 
              ankle in February falling down some steps, wouldn't one 
              expect if, indeed, the fused knee was a major contributing 
              factor or contributing factor to some extent in that fall 
              that she would fall every time she went down some steps or 
              up some steps?
              A.  Not necessarily, really.  I mean you and I don't fall 
              every time we go up and down stairs, but we do occasionally 
              fall going up or downstairs because we miss a step.  She has 
              a greater risk because of her fused knee of falling going up 
              and down steps than if she did not have it.
              Q.  But you don't know the specific circumstances of that 
              A.  No.  The record states she fell four steps.
         (Claimant's exhibit 35, page 85, line 20 through page 86, line 
              Claimant had a history of some back pains preexisting her 
         alleged work injury.  Dr. Laaveg's notes of December 3, 1984 
         indicate that claimant had called complaining of "terrible back 
         pain" with radiation into the right leg to the foot, although 
         denying numbness.  Claimant also continued to complain of knee 
         pain.  Claimant testified that by radiation her history was that 
         of relating to the leg cast only.  Dr. Laaveg's note of December 
         17, 1984 refers to claimant's "significant" back pain as 
         improved, although claimant was still somewhat tender in the low 
         back area, having no neurologic symptoms.
              The notes of Lyle Fuller, M.D., of October 26, 1983 indicate 
         that claimant was "having a great deal of pain in her right lower 
         back area.  Does alot [sic] of lifting at work."  Claimant does 
         not recall reporting this pain to Dr. Fuller, and further 
         testified that the pain went away and that she had no history of 
         back pain prior to October, 1983.  Claimant also complained to 
         Dr. Fuller of pain in the left sciatic notch, although claimant 
         does not recall that complaint and further testified that this 
         pain had also gone away.
              Claimant also does not recall telling Dr. Laaveg in June, 
         1986, that she had suffered intermittent numbness of the right 
              Dr. Laaveg's office notes of January 23, 1987 state:
              Orla Jane comes today for evaluation of back pain.  The 
              patient, a week ago, went to work 4 hours a day.  On Monday 
              she worked 8 hours a day.  She has to do quite a bit of 
              walking.  She's had some aching discomfort in her knee 
              that's unchanged from previously.  Her back has been 
              bothering her, especially on the left side radiating to the 
              left buttocks. She denies any neurological symptoms.  It 
              became severe enough that she was unable to go to work on 
              Exam of the patient reveals that she is tender at the 
              lumbosacral area and over the left posterior iliac crest. 
              Straight leg raises are negative.  Knee jerk is absen due to 
              effusion over +2, ankle jerk +2/+2.  She can toe walk and 
              heel walk.  Her neurosensory exam is intact.
              I think the patient is causing irritation of her back due to 
              slight overuse while walking with her effused knee, 
              especially since she's not used to being up this length of 
              time.  She'll go down to total bed rest this week, except 
              for bathroom or eating.  I started her on FELDENE as an 
              anti-inflammatory drug.  She was warned against GI toxicity.  
              She was given samples, 20 mg, 30 tablets, 2 refills.  She'll 
              go back to using her corset.  She was fitted with a 
              Warm-n-Form corset today, and she'll use it when she's up 
              and walking and when she's beginning to work.  On Monday she 
              can return to work at a four hour day.  I talked to her 
              supervisor who was with her in the office today.  We will 
              have her go to a slightly different job, and the second week 
              she can begin at 6 1/2 hours a day, and then go to an 8 hour 
              day as tolerated. This does not require any lifting.  It 
              falls within the guidelines of her previous restrictions.
         (Claimant's exhibit 5, page 20)
              Claimant testified that she advised Dr. Laaveg of pains on 
         her left side on January 23, 1987, and that the pain shifted to 
         her right side later.  She further indicated that when she 
         returned to work from January 26-28, 1987.  Claimant had been off 
         work from January 20-23, 1987, because of feeling weak and faint. 
         She cannot now "pinpoint" the spot where she hurt her back in 
         this incident.
              Claimant testified that she worked in department 6, a 
         different department, on her last three days.  Claimant recalls 
         nothing unusual by way of a precipitating event on January 28.  
         She worked four hours per day on those three days.  Claimant 
         conceded that her testimony at her deposition was that she 
         noticed that pain came on her while working a testing machine.
              Claimant testified that her leg felt "asleep" on January 29, 
         1987.  She differentiated this sensation from the following 
         Monday, February 2, 1987, when her leg felt numb, such that it 
         could not be felt at all.  Claimant had stayed in bed the entire 
         weekend from the prior Thursday before February 2, 1987.
              Dr. Laaveg's letter to a claims adjustor employed by 
         defendant insurance carrier on January 27, 1987, indicated that 
         claimant had returned that day with increased aching in her back. 
         He specified that claimant had moved from a four-hour day to an 
         eight-hour day on Monday (January 26, 1987 was a Monday) and that 
         she had begun having increasing discomfort.  Dr. Laaveg stated 
         that he believed it was due to an overuse syndrome as claimant 
         had just been getting up and doing regular work.
              Dr. Laaveg wrote a "To Whom It May Concern" letter on 
         January 29, 1987, indicating that claimant was having significant 
         pain in her back with numbness in the right leg and advised that 
         claimant stay at bedrest until returning to work on February 2, 
              R. McCoy, M.D., an associate of Dr. Laaveg, saw claimant on 
         February 2, 1987 with complaints of pain down the right lower 
         extremity.  He caused a myelogram and x-rays to be taken showing 
         herniated nucleus pulposis at L5-S1 on the right.  Dr. McCoy then 
         performed surgery on February 4, 1987.  Dr. McCoy noted that 
         claimant was unable to rise to her tiptoes on the right side and 
         that she had been capable of walking on tiptoes when she saw Dr. 
         Laaveg; his notes mused that this might represent neurologic 
         deficit coining on in the last week and one-half.
              Dr. Laaveg carried on a correspondence during 1987 with Gary 
         and William Walljasper, Liberty Mutual claims adjusters.  On 
         March 6, he reported:
              Orla J. Smith has returned after her lumbosacral dis [sic] 
              surgery for a workmans' [sic] compensation injury.  She was 
              seen by my partner, Dr.McCoy, in by (sic] absence for a work 
              injury in which she bent over and had sudden pain in her 
              back with increasing pain in the right buttock and down the 
              right leg.  A myelogram confirmed that she had a ruptured 
              disc.  Dr. McCoy did surgery on 2/4/87, with removal of a 
              herniated L5-S1 disc on the right with removal of 4 free 
              fragments and exploration at the L4-5 interspace as well.
         (Claimant's exhibit 32, page 1)
              On June 3, 1987, he wrote:
              Orla J. Smith has asked that I clarify for you again what I 
              stated in my March 6 letter.  On 1-23-87 after the patient 
              had been at work approximately one week I saw the patient 
              with her complaining of significant increased back ache as 
              she had been walking and doing the minor twisting and 
              bending required in her supervisory job at work.  There was 
              no specific episode.  She was having pain radiating into the 
              left side and into the left buttock.  The pain became severe 
              enough at that time that she had not been able to go to work 
              for one day that week.  Her neurological exam was completely 
              intact and we treated her conservatively.  She returned to 
              work and on 1-29-87 I received a phone call that her entire 
              right leg had been numb.  I asked her to go to bed rest over 
              the weekend to see how her symptoms would respond and they 
              did not.  On 2-2-87 the patient was seen by Dr. McCoy, my 
              partner.  At that time she had definite neurological deficit 
              and she was unable to walk on her tip toes on her right 
              side. She was admitted to the hospital where a myelogram 
              showed a herniated right L5 S1 disc.  Therefore, on 2-4-87 
              the patient underwent a right L5 S1 disc excision with 
              exploration of the L4-5 interspace with the removal of four 
              free fragments of disc material that were in the spinal 
              The patient has been slow in her recovery period 
              postoperatively.  She is hampered somewhat by the fact that 
              she has a fusion of the right knee.  She is responding to 
              conservative measures at this time.  Our history would 
              indicate that this is definitely a work related condition. 
              The patient began having increasing back pain with her 
              return to work, her standing and her walking.  She developed 
              sciatica while at work and eventually weakness.  This 
              directly lead [sic] to her surgical exploration.  It is my 
              opinion that this is definitely work related.
         (Claimant's exhibit 32, page 4)
              Dr. Laaveg wrote again on September 9, 1987:
              The patient tells me there is hesitation again on the part 
              of the Workman's Compensation company that this is a work 
              related problem and a separate incident from her knee 
              problem.  Please review my previous letters to your company. 
              I have also talked by phone to both Walljasper brothers who 
              have handled Mrs. 0. J. Smith's claim.  I have expressed 
              explicitly to both of them that this is a separate incident 
              which I believe is work related and as such should be 
              covered under Workman's Compensation.  If for some reason 
              your company needs further clarification on this issue, I 
              would be happy to respond.
         (Claimant's exhibit 32, page 8)
              Finally, Dr. Laaveg wrote again on September 22, 1987:
              I have reviewed the tape of the light duty position at 
              Fleetguard that reportedly is the light duty position that 
              Orla [sic] Jane Smith was working at at the time of her 
              injury.  The tape is of an elderly woman who is standing at 
              what appears to be a light duty position.  She works at 
              different stations, sometimes flexing forward approximately 
              25-30 [degrees] but other times flexing forward to 45 
              (degrees].  She is not lifting anything heavy, she is not 
              doing a great deal of bending or twisting.  She is wearing a 
              cranberry pair of pants with a blue top and has gray hair.
              The job appears to be light duty.  It is unclear by the film 
              if this video truly represents the entire job description. 
              However, even a light duty job such as this can cause a 
              significant back injury.  Office workers bending over to 
              pickup [sic] a paper clip on the floor or stretching 
              slightly to file something in the back of a cabinet can all 
              twist enough to put significant force through their back 
              such that they can rupture a disc or herniate a disc.
              Orla Jane Smith had had back pain intermittently prior to 
              the work incident.  She however, had not had significant 
              sciatica.  The sciatica comes with extrusion of a disc 
              fragment.  At the time of surgery, several free disc 
              fragments were seen by my partner, Dr. Robert McCoy.  In 
              fact there were four free fragments, indicating a ruptured 
              Even the light duty job seen in the video tape, reportedly 
              the one that Mrs. Orla Jane Smith was working at, could put 
              enough force through the patient's back that she could 
              herniate a disc.  The patient's right knee fusion is not 
              directly related to the patient's back problem.  The back 
              incident is a separate incident and should be considered a 
              separate Workman's Compensation claim.  Having a knee fusion 
              does change slightly how a person bends and twists through 
              the lumbosacral spine during activity.  However, it does not 
              automatically predispose the patient to back injury and it 
              does not change the fact that this, by history, is a 
              separate incident.
              I cannot be more explicit. once again, after reviewing this 
              tape of a light duty position, it is my opinion that Mrs. 
              Orla Jane Smith's back problem is a separate Workman's 
              Compensation incident.
         (Claimant's exhibit 32, pages 9-10)
              Claimant was seen for evaluation by David J. Boarini, M.D.  
         He wrote William Walljasper of Liberty Mutual on November 16, 
              Upon examinations, the patient has an abnormal gait due to 
              her fused right knee.  The range of motion in the back is 
              normal. Her back incision is nicely healed.  Straight leg 
              raising is negative bilaterally.  There was some break away 
              weakness in both legs but I could not detect any significant 
              abnormality. The patient complained about decreased 
              sensation over the lateral right foot and calf in a rather 
              vague and inconsistent manner, certainly not radicular.  
              Ankle reflexes were absent bilaterally while the knee reflex 
              was absent on the right and normal on the left.  Plantar 
              reflexes are downgoing bilaterally.
              I've not reviewed the video tape which you sent me because 
              of the patient's quite adamant denial that this is the work 
              which she was actually doing when her current problem began. 
              I would say that historically, despite the relatively light 
              activity the patient was involved in in January of 1987, it 
              does appear to have aggravated her symptoms and been the 
              immediate cause of her subsequent surgery.  I would also say 
              that the patient has a history of chronic pain without 
              significant underlying causes being identified.  I think 
              presently she has two difficulties.  The first is her knee 
              pain and any disability and restrictions which that 
              requires. The second is chronic myofascial back pain, status 
              post laminectomy.  I don't think she has a significant 
              neurological deficit nor can I find any objective evidence 
              of a persistent radiculopathy.  I think because of her back, 
              she is entitled to a 5-6% permanent partial impairment, 
              being status post laminectomy.  I would put her on no 
              specific work restrictions related to that, but I would have 
              no disagreement with any restrictions which her orthopedic 
              surgeons feel her previous knee surgery requires.
         (Claimant's exhibit 33)
              Dr. Laaveg then wrote Liberty Mutual on January 29, 1988:
              Orla Jane Smith has reached maximum healing concerning her 
              back injury and subsequent surgery.  The patient continues 
              to have low back pain radiating into the right leg.  She 
              intermittently has numbness in her right leg.  There is no 
              weakness and neurologically she is intact.  She has, at this 
              time, a significant right trochanteric bursitis which we 
              injected today.
              The patient has forward flexion of her back to 45-50 
              [degrees].  She is tender at L4-5 and L5 S1 and over her 
              right and left iliac crests.
              The patient has reached maximum healing concerning her back. 
              A final physical impairment has been given of 20%.  
              One-fourth or 5% of this impairment is due to her previous 
              condition and three-fourths or 15% is due to her injury, 
              subsequent surgery and related to her present condition.  A 
              final work restriction has been given as follows:  The 
              patient should not be in a job in which she would lift over 
              10 pounds off the floor or carry over 15-20 pounds.  She 
              should avoid any repetitious bending or twisting.  She 
              should not sit or stand for longer than 30-60 minutes at any 
              one time without being able to change her positions.
         (Claimant's exhibit 34, page 2)
              In his deposition, Dr. Laaveg testified to restrictions 
         imposed in connection with claimant's right knee:  That claimant 
         should not stand for over two hours at any one time, should not 
         lift off the floor or carry over 25 pounds, and should avoid 
         frequent bending or twisting.  After claimant's back injury and 
         return to work release, claimant's restrictions were against 
         lifting over 10 pounds off the floor, carrying over 15-20 pounds, 
         and avoidance of repetitious bending and twisting.
              Dr. Laaveg further testified that claimant's final physical 
         impairment rating was 60% of the lower extremity, which he 
         indicated was a final "whole person" physical impairment of 24% 
         pursuant to American Medical Association guidelines; one-half of 
         that 60% was attributable to the preexisting condition.  A review 
         of the American Medical Association's Guides to the Evaluation of 
         Permanent Impairment reflects that this equivalency is accurate.
              When asked as to causation, Dr. Laaveg testified:
              Q.  Where does the herniation, the actual herniation come 
              from then?  I mean you described how it takes place, but 
              what causes it?
              A.  Well, that's a more difficult issue to talk to, because 
              it can happen as simply as reaching over to pick up a 
              Kleenex off the floor or sometimes it's very obvious, you 
              have somebody weighing 200 pounds and he twists and turns 
              and now he's got terrible sciatica.  It can come from 
              repetitious activity and it gradually bulges and squeezes 
              out, it can come from lying in one position too long.  We 
              have common laborers who lift a hundred pounds all day and 
              they come home and they are feeling fine and their wife asks 
              them to reach the tea cup on the first shelf up and bam, 
              they have bad sciatica.  The amount of force in terms of 
              twisting and turning is variable and a lot of it has to do 
              with the position of the back at that particular time.
              Q.  So you really can't attribute the herniation to any 
              specific episode?
              A.  No. According to our history and according to what I 
              remember when Mrs. Smith was talking to us about this, I do 
              not recall that she gave a specific episode.  She as she 
              went back to work and was standing and doing the minor 
              bending and twisting at her job or inspecting required at 
              that time began having increasing pain and discomfort down 
              her leg that she had not experienced before to speak of.
              Q.  Why would that -- she was doing light duty work at that 
              A.  Yes.
              Q.  Why would that have been any different than her doing 
              the vacuuming or washing dishes at home?
              A.  It potentially would not have been, except her symptoms 
              came on at that time.  The other difference is she is now 
              standing from four to six to eight hours a day as opposed to 
              being at home where she can sit down more frequently.  It 
              could just as well have happened at home, but it didn't 
              according to our history.
              Q.  In other words, you don't have a history of anything 
              else, of any specific episode at home?
              A.  No.
              Q.  Or at play?
              A.  No, I don't.
              Q.  And your history is that she was standing for 
              substantial periods at work?
              A.  Well, she was working a length of time in the day and I 
              assume that they were following the guidelines that she was 
              not standing any longer than two hours at any one time.  I 
              have no reason to believe that Fleetguard is not having the 
              patient in a job as described.
              Q.  I guess what I'm wondering is what's any different that 
              she was doing at work that she physically would be doing at 
              A.  Well, she was standing more of the time, she was moving 
              about, she was on her feet much longer than she was at home 
              and she was doing some bending and twisting associated with 
              her work as a light-duty job.
              Q.  But we do bending and twisting when we go to wash the 
              dishes or put things away or pick up the vacuum cleaner or 
              move a lamp.
              A.  Yes, that's right.
              Q.  Right?
              A.  Correct.
              Q.  Is that the same type of activity that she would have 
              been doing at work?
              A.  Some of it would have been, I'm sure.  But now she's 
              doing it on a regular basis, where in the past she had not 
              been doing it on a regular basis.
              Q.  She had not been doing what on a regular basis?
              A.  Okay, let me be more clear.  She had been doing some of 
              her own housework, not all of it perhaps.  It's true that 
              when we're at home you're bending and twisting and doing 
              things.  There really is no difference between bending and 
              twisting at home or the length of time.  I'm not telling you 
              that this could not have happened at home; in fact, I just 
              told you it often does.  All I have is the patient's history 
              that when she returned to work with increased activity of 
              being at work, with increasing hours she began having more 
              buttock pain, more leg pain.
              Q.  And it is to that then that you attribute the herniation 
              which was subsequently triggered?
              A.  That's right.
         (Claimant's exhibit 35, page 24, line 13 through page 28, line 3)
              Dr. Laaveg also testified that the fact of claimant's knee 
         fusion tended to put greater load through the spine because of 
         awkward movements, but was unable to conclude that the knee was a 
         contributing factor of a significant amount to claimant's disc 
              With respect to Dr. Laaveg's notes concerning the 1984 
         complaint of pain, he testified:
              Q.  Now you made that impairment determination I trust with 
              full knowledge of the fact that indeed, at least as 
              reflected to some extent by your notes, you had periodically 
              seen her with some back complaints on an intermittent basis 
              in the past?
              A.  Yes.
              Q.  For example, in reviewing your notes, it appears to me 
              that in December of 1984 she had related at least as you 
              have reflected, quote, terrible back pain, end of quote, 
              with some right leg complaints and right foot complaints?
              A.  Uh-huh.
              Q.  And that apparently was improved, at least according to 
              your notes, on December 17th of 1984?
              A.  I remember having that problem.
              Q.  In any event, do you think that she extruded or ruptured 
              or herniated her disc back in December of 1984 and was able 
              to get along in spite of that with a ruptured or herniated 
              disc resulting in four free fragments from that time?
              A.  No.
              Q.  And also you may not have these notes, but Dr. Fuller in 
              his records that we have been provided indicates that as far 
              back as October 28th of 1983 she was having some complaints 
              of pain in her right lower back area.  And the next time he 
              sees her on October 28th of 1983 he says her back is 
              improved and I don't see any more back complaints then until 
              January of 1986.  Do you have an opinion as to whether or 
              not she had a ruptured or herniated or extruded disc back in 
              October of 1983?
              A.  She was not having significant enough symptoms or 
              significant enough sciatica to think that she would have had 
              any ruptured disc at that time.
              Q.  I ask you to assume also that Dr. Fuller's notes reflect 
              that in January of 1986 she had he says lower bad, b-a-d, 
              period, pain, that may be lower back pain, I assume, on the 
              left, and that she was tender in the left sciatic notch.  
              Now would the sciatic notch indicate some back pain?
              A.  It often is tender if patients are having back pain, 
              mainly because your gluteus maximus is tender.  And many 
              times the sciatic nerve may be tender to put pressure on, 
              which is where it comes out.
              Q.  Now I have attempted to recount what I see as back pain 
              history from your notes and from Dr. Fuller's notes for the 
              period prior to January of 1987.  Is there anything from my 
              recounting of that record which would cause you to change 
              your opinion that her impairment is approximately 15 percent 
              related to what occurred in January of 1987 and five percent 
              for the period prior to that time?
              A.  No.
         (Claimant's exhibit 35, page 68, line 7 through page 70, line 11)
              Dr. Laaveg was also questioned concerning claimant's fall at 
         home in 1988.  He suspected that claimant's fused knee may have 
         contributed to the fall, but the opinion was clearly based on Dr. 
         Fischer's note of February 19, 1988, to the effect that claimant 
         "tripped going down four steps in her home twisting her ankle."  
         No additional limitations were placed on claimant by Dr. Laaveg 
         or his associates by virtue of the right ankle fracture.  Dr. 
         Laaveg also testified concerning the opinions expressed by Dr. 
              Q.  Now Dr. Boarini indicates that there is no evidence of 
              persistent radiculopathy and I see from your records that 
              you have indicated at least on some occasions since the 
              surgery that she continues to have back to right leg pain 
              with numbness on at least an intermittent basis.  Is that 
              A.  That's accurate.  Now we're getting to subtle 
              differences between the difference between what is 
              considered a radiculitis or inflammation in the nerve roots 
              so they have pain in a dermatome distribution or numbness in 
              that distribution and what people call radiculopathy.  All 
              of us agree that a radiculopathy means weakness.  Many of us 
              will not use that term radiculopathy if it is some numbness 
              in that distribution or an ankle jerk or a knee jerk that is 
              less.  So you are getting into some subtleties here, but I 
              don't think we are disagreeing in terms of our findings.
              Q.  I think what I'm hearing you say is you can agree with 
              Dr. Boarini that she has no persistent radiculopathy, but 
              that does not mean she does not have intermittent back pain 
              to the leg with numbness, is that essentially what you are 
              A.  I agree.  The patient is still having symptoms of pain 
              in her back and pain into her leg.
         (Claimant's exhibit 35, page 77, line 7 through page 78, line 6)
              Claimant's deposition was taken on February 11, 1988.  When 
         asked about the work incident, she testified:
              Q.  As I understand what you're saying, when you came back 
              to work in January of '87 --
              A.  Yes.
              Q.  -- you really can't pinpoint any specific incident that 
              caused the back pain; it just started coming on?
              A.  Yeah.  I was having trouble, and eventually as I worked 
              it got worse.  Well, then they took me out of five and 
              fifteen and put me in four because it was a smaller area.  I 
              wouldn't have so far to walk.  And it wasn't as bad, but I 
              had one -- one test I had to do, and I don't know what it's 
              called, it's got a big lever and you have to pull it down 
              and it tests to see how tight the things are, and it takes a 
              lot of power, and that's when I think that it hit 
              everything.  I mean, that's when I really -- final --
              Q.  Did something occur while you were doing that that 
              caused you pain?
              A.  I had a terrible pain.  It was in my hip.  And then when 
              I went home, then my leg went all completely numb on that 
              Wednesday night.  I remember that.  Cuz it really scared me 
              cuz --
         (Defendants' exhibit 62, page 25, line 22 through page 26, line 
              When asked as to her restrictions, claimant testified:
              Q.  Okay.  I just have a couple of questions about that.  He 
              says a final work restriction has been given as follows:  
              the patient should not be in a job in which she would lift 
              over ten pounds off the floor or carry over fifteen to 
              twenty pounds.  Okay?
              A.  Uh-huh.
              Q.  Do you have any -- do you feel you'd be able to do that?
              A.  Well, I asked Doctor Laaveg what that meant.  I mean 
              that didn't mean a whole lot to me, givin' me those 
              restrictions. I says what is there for me to do?  And he 
              said office work. That's what he said that I could do.
         (Defendants' exhibit 62, page 33, lines 6-18)
              Claimant also testified as to the possibility of returning 
         to office work:
              Q.  Have you worked in an office before?
              A.  Yes.
              Q.  What kind of secretarial skills do you have?
              A.  I've been a file clerk.  I've been a bookkeeper.  I've 
              been a receptionist.  A little bit of everything.
              Q.  Can you type?
              A.  Yes.
              Q.  Have you had any reason to use any of those skills in 
              the last year or two?
              A.  No, I haven't.  I have typed at home, but I haven't -- 
              You know, just for my own benefit.  I go type once in a 
              while just to -- like type a letter for ourselves, you know, 
              but I don't --
              Q.  Would you be willing to return to a job at Fleetguard 
              that allowed you to do the type of work that you just 
              A.  Oh, yes.
         (Defendants' exhibit 62, page 36, line 25 through page 37, line 
              Arlo Smith testified that he is claimant's husband and that 
         they have been married for some 29 years.  He testified that, 
         prior to claimant's back injury, she could go to games and dance, 
         whereas now she is unable to sit or stoop.  He agreed that the 
         last few days claimant worked, she complained of her back and 
         that when she returned on January 28, 1987, she turned off the 
         car engine but was unable to immediately come in because of her 
         complaints of back pain.
              On cross-examination, Mr. Smith testified that he does not 
         recall total and sudden numbness coming on claimant on February 
         2, 1987, but that he felt the problem became progressively worse 
         during the preceding long weekend, in which claimant did stay in 
         bed pursuant to Dr. Laaveg's order.
              Dolores Hayworth testified that she has been a friend of 
         claimant's for four years and that claimant was active in school 
         activities before the claimed work injury.  She agreed that 
         claimant no longer participates in attending games, going on 
         picnics or walks, and also specified that claimant stayed in bed 
         on the Sunday before February 2, 1987, so that she did not have 
         her usual Sunday morning coffee with Ms. Hayworth.
                           APPLICABLE LAW AND ANALYSIS
              In file number 773001, the only issues presented relate to 
         claimant's fall down stairs before returning to work on February 
         19, 1988.  The undersigned will not reach the legal issue of 
         whether disability caused by a nonwork injury is compensable if 
         the nonwork injury is caused in part by a previous compensated 
         injury.  That is so because claimant has not established that her 
         1988 fall was caused by her right leg injury of August 22, 1984.
              As has been seen, Dr. Laaveg testified to his suspicion that 
         the fused knee probably contributed to the fall.  However, it is 
         also clear that Dr. Laaveg's opinion on that matter was based 
         upon Dr. Fisher's note of February 19, 1988, reflecting that 
         claimant "tripped going down 4 steps in her home twisting her 
         ankle."  Based on claimant's credible testimony, this history is 
         inaccurate. Claimant testified that she did not trip and that she 
         heard an audible "crack" when she stepped down; she testified to 
         her belief that the fractured ankle itself caused the fall.  
         Given that the victim of this accident herself believes that the 
         fracture caused the fall rather than the other way around, and 
         given that this belief is clearly consistent with the observable 
         evidence (the "crack"), it is held that the fracture to 
         claimant's ankle caused her to fall and suffer additional 
         disability.  There is no evidence in the record whatsoever 
         suggesting that claimant's previous right knee injuries caused 
         her ankle to be more subject to fracture. Since the injury was 
         caused by the fracture rather than by tripping, it cannot be said 
         that any causal connection has been established between the 1984 
         knee injury and claimant's 1988 fall. Claimant has been fully 
         compensated for the 1984 injury.
              In file number 853642, the parties dispute whether claimant 
         sustained a back injury on January 28, 1987.
              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(1).
              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 
              A personal injury, contemplated by the Workmen's 
              Compensation Law, obviously means an injury to the body, the 
              impairment of health, or a disease, not excluded by the act, 
              which comes about, not through the natural building up and 
              tearing down of the human body, but because of a traumatic 
              or other hurt or damage to the health or body of an 
              employee.  [Citations omitted.]  The injury to the human 
              body here contemplated must be something, whether an 
              accident or not, that acts extraneously to the natural 
              processes of nature and thereby impairs the health, 
              overcomes, injures, interrupts, or destroys some function of 
              the body, or otherwise damages or injures a part or all of 
              the body.
              The claimant has the burden of proving by a preponderance of 
         the evidence that the injury on or about January 28, 1987 is 
         causally related to the disability on which she now bases her 
         claim.  Bodish v. Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867 
         (1965).  Lindahl v. L.O. Boggs,.236 Iowa 296, 18 N.W.2d 607 
         (1945).  A possibility is insufficient; a probability is 
         necessary.  Burt v. John Deere Waterloo Tractor Works, 247 Iowa 
         691, 73 N.W.2d 732 (1955).  The question of causal connection is 
         essentially within the domain of expert testimony.  Bradshaw v. 
         Iowa Methodist Hospital, 251 Iowa 375, 101 N.W.2d 167 (1960).
              However, expert medical evidence must be considered with all 
         other evidence introduced bearing on the causal connection.  
         Burt, 247 Iowa 691, 73 N.W.2d 732.  The opinion of experts need 
         not be couched in definite, positive or unequivocal language.  
         Sondag v. Ferris Hardware, 220 N.W.2d 903 (Iowa 1974).  However, 
         the expert opinion may be accepted or rejected, in whole or in 
         part, by the trier of fact.  Id. at 907.  Further, the weight to 
         be given to such an opinion is for the finder of fact, and that 
         may be affected by the completeness of the premise given the 
         expert and other surrounding circumstances.  Bodish, 257 Iowa 
         516, 133 N.W.2d 867.  See also Musselman v. Central Telephone 
         Co., 261 Iowa 352, 154 N.W.2d 128 (1967).
              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.2nd 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).
              When an aggravation occurs in the performance of an 
         employer's work and a causal connection is established, claimant 
         may recover to the extent of the impairment.  Ziegler v. United 
         States Gypsum Co., 252 Iowa 613, 620, 106 N.W.2d 591 (1960).
              An employer takes an employee subject to any active or 
         dormant health impairments, and a work connected injury which 
         more than slightly aggravates the condition is considered to be a 
         personal injury.  Ziegler v. United States Gypsum Co., 252 Iowa 
         613, 620, 106 N.W.2d 591 (1960), and cases cited.
              Claimant has herself testified inconsistently as to whether 
         there was a specific work incident giving rise to this injury.  
         At hearing, she indicated that pain developed at night when she 
         went on full days working as an inspector in two departments.  
         The question of causation is essentially within the domain of 
         expert testimony.  Dr. Laaveg has made entirely clear that he 
         believes this was "definitely a work related condition."  Dr. 
         Boarini saw claimant for evaluation and agreed that claimant's 
         "relatively light activity" of January, 1987 appeared to have 
         aggravated her symptoms and been the immediate cause of her 
         subsequent surgery. While claimant might well have developed 
         similar problems working at home, the fact remains that she had 
         just returned to work, and then on a full-day basis when her back 
         problems erupted.  While claimant had complained of pain in the 
         past, Dr. Laaveg has also opined that she could not have 
         continued working since 1986 had she suffered the ruptured disc 
         at the time of the "terrible" back pain she complained of then.
              There is no evidence, expert or otherwise, indicating that 
         this at least aggravation or "lighting up" of claimant's 
         condition was caused away from the job.  It is held that claimant 
         has met her burden of proof in establishing that the cumulative 
         injury of January 28, 1987 to her back arose out of and in the 
         course of her employment, and that the injury caused healing 
         period and permanent disability.
              Dr. Laaveg's letter of January 29, 1988 indicated that 
         claimant had then reached maximum healing for her back.  This 
         operated to end the healing period.
              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 
              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 
              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).
              Claimant is 47 years old, a time when she might normally be 
         expected to be in her peak earning years.  While it is not 
         impossible for her to be retrained at this age, extensive 
         retraining would not appear especially feasible.  Claimant's 
         final work restrictions include not lifting over 10 pounds off 
         the floor or carrying over 15-20 pounds, avoidance of repetitious 
         bending or twisting and not sitting or standing for longer than 
         30-60 minutes at any one time without being able to change 
         positions.  Dr. Laaveg also instructed claimant that she would 
         essentially be limited to office-type work.  While Dr. Boarini 
         did not specify restrictions himself, he did find that claimant 
         had suffered a 5-6 percent permanent partial impairment relative 
         her back injury.  Dr. Laaveg found that claimant had a permanent 
         physical impairment of 20 percent based on her back problems.
              Claimant has raised the issue of whether she should be 
         entitled to permanent total disability under the odd-lot theory. 
         See Guyton v. Irving Jensen Co., 373 N.W.2d 101 (Iowa 1985).  
         That case held that a worker is an odd-lot employee when injury 
         makes her incapable of work in any well-known branch of 
         employment; when the only services she can perform are so limited 
         in quality, dependability or quantity that a reasonably stable 
         market for those services does not exist.  Claimant bears the 
         burden of establishing a prima facie case by showing that she is 
         not employable in the competitive labor market.  Id.  Claimant 
         testified forthrightly that she believes she is capable of 
         returning to office work.  While her experience in that area is 
         from some years ago, it is nonetheless true that she does have 
         some experience in the clerical field.  Along with telephone 
         solicitation, claimant has worked as a receptionist/clerk, 
         answered the telephone, operated a postal machine, performed 
         bookkeeping, operated business machines, typed, and filed.  It is 
         held that claimant has not established that the odd-lot theory 
         applies to her.
              One factor tending to mitigate defendants' liability is that 
         they have attempted to bring claimant back to work, although she 
         proved unable to return because.of her subsequent fall in 1988.
              Perhaps the most significant limitation placed on claimant 
         is that she is not to remain in one position for more than 30-60 
         minutes without being able to move about.  Claimant appears to be 
         foreclosed from a great deal of production work because of her 
         restrictions against lifting, bending and twisting on a 
         repetitive basis, and may also find herself foreclosed from many 
         clerical positions by reason of this limitation.  While, for 
         example, claimant might be able to work as a cashier or 
         salesperson, it is unreasonable to believe that she would be a 
         competitive candidate for a position in word processing or data 
              Based upon the evidence in general and these factors in 
         particular, the undersigned concludes that claimant currently has 
         sustained an industrial disability of 60 percent by reason of her 
         back condition, measured when her healing period ended and before 
         her unfortunate fall at home.
              Of course, claimant also had preexisting industrial 
         disability.  Even before her back injury, she had been restricted 
         against standing for over two hours at any one time, frequent 
         bending or twisting and lifting or carrying over 25 pounds.  
         While a scheduled member injury is to be compensated per the 
         schedule, it is also clear that scheduled member injuries may 
         also cause restrictions or limitations that might properly be 
         considered indices of industrial disability.  The back injury did 
         not cause the previous industrial disability, and claimant should 
         not be compensated for preexisting disability.  It is appropriate 
         to deduct from claimant's total industrial disability the amount 
         of industrial disability that preexisted the injury.  Bearce v. 
         FMC Corp., file number 782809 (App. Decn., March 17, 1989); 
         Brittian v. Fisher Controls, file number 1669180 (App. Decn., 
         February 28, 1989).
              The restrictions placed upon claimant as the result of her 
         back injury are similar to the preexisting restrictions in some 
         respects, but are substantially more onerous by reason of the 
         restriction against remaining in one place for more than 30-60 
         minutes without the opportunity of changing position.  It is held 
         that claimant's preexisting industrial disability was 25 percent, 
         therefore claimant shall be awarded 35 percent industrial 
              It might be argued that as claimant's knee injury was a 
         scheduled member disability, any credit to defendants should be 
         on the basis of a scheduled member, even though industrial 
         disability was caused by that injury.  The evidence in this case 
         shows that claimant had a 60 percent impairment of her right leg, 
         of which half was attributable to the injury in file number 
         773001. Pursuant to Iowa Code section 85.34(2)(o), the loss of a 
         leg is compensated on the basis of 220 weeks.  Sixty percent of 
         220 weeks is 132 weeks.  Calculated industrially, the credit is 
         125 weeks. While the result is very close with respect to these 
         two approaches, the undersigned believes he is bound by decisions 
         of the industrial commissioner to the effect that preexisting 
         condition is to be evaluated industrially.  To a small degree, 
         that works in claimant's favor in this instance.
              The next issue to be considered is the question of 
         claimant's entitlement to medical benefits under Iowa Code 
         section 85.27. These are set forth in claimant's exhibit 36.  The 
         parties have stipulated that all requested benefits relating to 
         the 1984 injury have been paid, except for expenses relative to 
         claimant's 1988 fall.  Because that has been found to be not work 
         connected, further medical benefits shall not be awarded in file 
         number 773001.  In file number 853642, the Mercy Hospital bill 
         shall be paid by defendants in the sum of $5,832.24; Internal 
         Medicine in the sum of $14.00; Radiologists of Mason City in the 
         sum of $356.00; Ntron in the sum of $42.75; Surgical Associates 
         in the sum of $2,156.00.  These expenses appear to be caused by 
         claimant's back injury.
              The final issue to be determined is whether penalty benefits 
         should be awarded under Iowa Code section 86.13.  Defendants have 
         at all times denied liability based on claimant's back injury.
              Dr. Laaveg expressed his clear opinion to defendant Liberty 
         Mutual on June 3, 1987, that claimant had suffered a work-related 
         injury.  His letter of September 9, 1987 reiterated that point 
         and noted that he had also talked by phone to both Walljasper 
         brothers who had handled the claim.  In his letter of September 
         22, 1987, Dr. Laaveg stated that he could not be more explicit in 
         making clear that the claim was a work injury.  Dr. Boarini, who 
         saw claimant for evaluation, wrote to Liberty Mutual on November 
         16, 1987, further indicating that the back injury was work 
         related. There is no indication that any physician has at any 
         time advised defendants that claimant's injury was not work 
              Generally speaking, penalties are not imposed where there 
         are legitimate disputes on causation or extent of impairment.  
         Just v. Hygrade Food Products Corporation, IV Iowa Industrial 
         Commissioner Report, 190 (App. Decn., January 30, 1984).  It has 
         been held that a legitimate dispute over causation would appear 
         to exist only when there are differing medical opinions as to 
         causation.  Conrad v. Matt Parrott & Sons, file number 827150 
         (Arb. Decn., March 28, 1988; Affirmed October 28, 1988).  The 
         issue of causation is essentially within the domain of expert 
         testimony.  Both of the experts who have expressed an opinion 
         indicated to defendants that the injury was work related.  
         Defendants' actions have caused claimant to go without income 
         during her healing period and to resort to the necessity of 
         retaining counsel to secure what was rightfully due her.  Penalty 
         benefits shall be assessed as to the healing period.  The penalty 
         shall be in the amount of 35 percent. This percentage is chosen 
         essentially because of the belief of the undersigned that the 
         maximum 50 percent penalty should more appropriately be imposed 
         in extreme situations or under truly egregious facts.  After all, 
         there was no specific incident at work giving rise to this 
         injury, so even though the expert testimony is unanimous, the 
         failure to pay healing period benefits is not so extreme a lapse 
         as might well be the case under different facts.
              No penalty benefits shall be awarded as to claimant's 
         permanent partial disability.  Because claimant already had 
         serious industrial disability preexisting the work injury, it is 
         certainly reasonable for defendants to question the degree to 
         which industrial disability resulted from this injury.  Liability 
         here is not nearly so clear as is the case with healing period 
                                 FINDINGS OF FACT
              THEREFORE, based on the evidence presented, the following 
         ultimate facts are found:
              1.  At all times relevant, claimant was employed by 
         defendant Fleetguard, Inc.
              2.  As stipulated, claimant suffered an injury arising out 
         of and in the course of that employment to the right leg (773001) 
         on August 21,.1984.
              3.  As stipulated, claimant has received all benefits to 
         which she is entitled with respect to her right leg injury, 
         except as to disability created by her fall at home in February, 
              4.  Claimant's fall in 1988 was caused by.the fracture of 
         her right ankle while descending stairs.
              5.  There is no evidence showing that the fracture of 
         claimant's ankle was in any way caused by the injury to 
         claimant's right leg (knee) sustained on August 21, 1984.
              6.  Following substantial time off work, claimant worked 
         half days, then full days, from January 23 to January 28, 1987.
              7.  After working on January 28, 1987, claimant began 
         suffering pain and her entire leg developed numbness, following 
         which claimant underwent surgery for a herniated intervertebral 
         disc at L5-S1 on the right with marked S1 radicular malfunction 
         from compression neuropathy on February 4, 1987.
              8.  The medical evidence establishes that claimant's back 
         injury was caused by her employment, which involved stooping, 
         climbing, substantial walking and the use of a testing device 
         known as an arbor press, which required all of claimant's 
         strength to operate.
              9.  Claimant was totally disabled from work from January 29, 
         1987 until her release to return to work effective January 29, 
              10.  Although advised by two physicians that claimant's 
         injury was work related, defendants did not voluntarily pay 
         temporary total disability or healing period benefits, and have 
         not done so through the date of hearing.
              11.  As stipulated, claimant's rate of compensation in file 
         number 853642 is $193.82 per week.
              12.  As stipulated, claimant's back injury is an injury to 
         the body as a whole.
              13.  Claimant's work injury has caused her permanent 
         disability and a diminution of her earning capacity.
              14.  Claimant has been given physical limitations by reason 
         of her back injury that include not lifting over 10 pounds from 
         the floor or carrying over 15-20 pounds, avoiding repetitious 
         bending or twisting and avoiding sitting or standing for longer 
         than 30-60 minutes at any one time without being able to change 
              15.  Claimant's physician assigned her a 20 percent physical 
         impairment, of which 15 percent was attributable to this back 
         injury and 5 percent was preexisting.
              16.  Claimant had preexisting industrial disability 
         including restrictions placed on her activity by reason of the 
         1984 knee injury, although the knee injury was compensated as a 
         scheduled member disability and not industrially.
              17.  Claimant was a credible witness.
              18.  With respect to claimant's back injury, the following 
         portions of medical bills are causally connected to the injury:
              Mercy Hospital                         $5,832.24
              Internal- Medicine                         14.00
              Radiologists of Mason City                356.00
              Ntron                                      42.75
              Surgical Associates                     2,156.00
                               CONCLUSIONS OF LAW
              WHEREFORE, based on the principles of law previously stated, 
         the following conclusions of law are made:
              1.  Claimant has failed to establish that injuries resulting 
         from her fall at home in 1988 are causally connected to the knee 
         injury of 1984 (773001).
              2.  Claimant sustained an injury to her back arising out of 
         and in the course of her employment on January 28, 1987 (853642).
              3.  Claimant's back injury was an injury to the body as a 
              4.  Claimant's back injury directly caused a healing period 
         from January 29, 1987 through January 28, 1988 (52 weeks).
              5.  Claimant has established a permanent partial disability 
         of 60 percent of the body as a whole with respect to her back 
         condition; however, claimant had a preexisting permanent partial 
         disability of 25 percent of the body as a whole with respect to 
         her back for which defendants should be entitled to credit. 
         Claimant shall be awarded permanent partial disability of 35 
         percent of the body as a whole.
              6.  Claimant is entitled to medical expenses under Iowa Code 
         section 85.27 as set forth above.
              7.  Claimant is entitled to penalty benefits under Iowa Code 
         section 86.13 in the amount of 35 percent of the healing period 
         benefits, all of which were unreasonably delayed; she is not 
         entitled to penalty benefits with respect to her permanent 
         partial disability award.
              Claimant shall take nothing from this proceeding with 
         respect to file number 773001.
              Defendants are to pay to claimant fifty-two (52) weeks 
         healing period benefits at the stipulated rate of one hundred 
         ninety-three and 82/100 dollars ($193.82) per week, totalling ten 
         thousand seventy-eight and 64/100 dollars ($10,078.64).
              Defendants are to pay unto claimant penalty benefits under 
         Iowa Code section 86.13 in the sum of thirty-five percent (35%) 
         of the fifty-two (52) weeks of healing period benefits 
         unreasonably delayed or eighteen point two (18.2) weeks, 
         totalling three thousand five hundred twenty-seven and 52/100 
         dollars ($3,527.52).
              Defendants are to pay one hundred seventy-five (175) weeks 
         permanent partial disability benefits [thirty-five percent (35%) 
         of the body as a whole, after deducting twenty-five percent (25%) 
         prior disability from claimant's current sixty percent (60%) 
         permanent partial disability of the body as a whole] at the 
         stipulated rate of one hundred ninety-three and 82/100 dollars 
         ($193.82) per week, totalling thirty-three thousand nine hundred 
         eighteen and 50/100 dollars ($33,918.50).
              Defendants shall pay the following medical expenses:
              Mercy Hospital                             $5,832.24
              Internal Medicine                              14.00
              Radiologists of Mason City                    356.00
              Ntron                                          42.75
              Surgical Associates                         2,156.00
              The unpaid healing period benefits have all accrued and 
         shall be paid in a lump sum together with statutory interest 
         thereon pursuant to Iowa Code section 85.30.
              The commencement date of permanent partial disability is 
         January 29, 1988; all unpaid benefits which have accrued as of 
         the date of this decision shall be paid in a lump sum together 
         with statutory interest thereon pursuant to Iowa Code section 
              The penalty benefits awarded herein shall be paid in a lump 
         sum, but interest shall accrue only from the date of this 
              The costs of each action shall be assessed to defendants 
         pursuant to Division of Industrial Services Rule 343-4.33.
              Defendants shall file claim activity reports in file number 
         853642 as requested by this agency pursuant to Division of 
         Industrial Services Rule 343-3.1.
              Signed and filed this 7th day of January, 1989.
                                            DAVID RASEY
                                            DEPUTY INDUSTRIAL COMMISSIONER
         Copies To:
         Mr. Robert S. Kinsey III
         Attorney at Law
         214 North Adams
         P.O. Box 679
         Mason City, Iowa  50401
         Mr. Tito Trevino
         Attorney at Law
         503 Snell Building
         P.O. Box 1680
         Fort Dodge, Iowa  50501
                                            1402.30, 51402.30, 51702
                                            Filed June 7, 1989
                                            DAVID RASEY
                                                   File Nos. 773001
         vs.                                                 853642
         FLEETGUARD, INC.,                      A R B I T R A T I 0 N
              Employer,                            D E C I S I 0 N
              Insurance Carrier,
         File Number 773001
              Claimant failed to prove that 1988 fall from ankle fracture 
         was causally related to 1984 knee injury.
         File Number 853642
              Evidence showed back injury arose out of and in the course 
         of employment, causing disability.
              Claimant having 60% permanent partial disability was awarded 
         35% permanent partial disability after deducting 25% prior 
         permanent partial disability.
              Claimant awarded 35% penalty benefits on unreasonably 
         delayed healing period award, where two physicians advised 
         defendants that injury was work related.