BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         JAMES CLARK,
 
         
 
              Claimant,
 
                                                    File No. 774457
 
         VS.
 
         
 
         PULLEY FREIGHT LINES,                   A R B I T R A T I O N
 
         
 
              Employer,
 
                                                    D E C I S I O N
 
         and
 
         
 
         NATIONAL UNION FIRE INSURANCE,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
                                   INTRODUCTION
 
         
 
              This is a proceeding in arbitration brought by James Clark 
 
         against Pulley Freight Lines, his former employer, and National 
 
         Union Fire Insurance Company.  The case was heard in Des Moines, 
 
         Iowa on January 20, 1987 and was fully submitted upon conclusion 
 
         of the hearing.  The record in this proceeding consists of 
 
         claimant's exhibits 1, 2 and 3; defendants' exhibits A through 
 
         TT; joint exhibits 1 through 10; and testimony from Barbara J. 
 
         Clark, Denise Morrison, James R. Clark, Larry W. Larsen, Alan 
 
         Hellenthal, Marlene Smedema, Kathryn Bennett and Mark Wiederin.
 
         
 
                                      ISSUES
 
         
 
              Claimant alleges that he injured his shoulder on January 19, 
 
         1984 when he fell from the trailer of his employer's truck 
 
         following making a delivery in St. Joseph, Missouri for his 
 
         employer.  Claimant seeks compensation for healing period and 
 
         permanent disability.  Defendants deny the occurrence of any such 
 
         injury, and deny that any alleged fall was a proximate cause of 
 
         any disability.  Defendants further urge that claimant has 
 
         unreasonably refused to submit to surgery and that such should 
 
         constitute a forfeiture of any entitlement he may have.  
 
         Defendants further assert that claimant's refusal to undergo 
 
         invasive diagnostic testing should likewise forfeit or suspend 
 
         his right to benefits.  Defendants assert that the Iowa Workers' 
 
         Compensation Act does not apply to this case because the alleged 
 
         injury, if it occurred at all, occurred in Missouri and that this 
 
         case does not fall under any of the provisions of Code section 
 
         85.71 which would give Iowa subject matter jurisdiction.
 
                               
 
                               ANALYSIS
 
         
 
              The jurisdiction of the subject matter is the power to hear 
 
         and determine cases of the general class to which the proceedings 
 
         belong.  Green v. Sherman, 173 N.W.2d 843, 846 (Iowa 1970).  When 
 
         a court acts without legal authority to do so, it lacks 
 
         jurisdiction of the subject matter.  In Re Adoption of Gardiner, 
 

 
         
 
         
 
         
 
         CLARK V. PULLEY FREIGHT LINES
 
         Page   2
 
         
 
         
 
         287 N.W.2d 555, 559 (Iowa 1980).  Jurisdiction of the subject 
 
         matter cannot be conferred by waiver, estoppel or consent.  It 
 
         can therefore be raised at any time and need not be pled.  
 
         Steffens v. Proehl, 171 N.W.2d 279 (Iowa 1969).  The issue of 
 
         subject matter jurisdiction is not a typical affirmative defense.  
 
         In Federal practice, a plaintiff is required to specifically 
 
         plead the statutory basis for the court's subject matter 
 
         jurisdiction of the case.  No such rule exists in the Iowa courts 
 
         or before this agency.  The lack of a pleading requirement, 
 
         however, does not relieve the claimant from the burden of proving 
 
         that the agency has subject matter jurisdiction to determine his 
 
         claim.  The proposition that the burden of proving an entitlement 
 
         to anything rests on the proponent is so well settled that Rule 
 
         14(f)(5) of the Rules of Appellate Procedure provides that the 
 
         citation of authority for that proposition is not necessary.  The 
 
         same rule regarding burden of proof applies in administrative 
 
         proceedings.  Wonder Life Company v. Liddy, 207 N.W.2d 27 (Iowa 
 
         1973).  If the facts necessary to establish subject matter 
 
         jurisdiction are absent, an order dismissing the petition is the 
 
         only appropriate disposition.  Lloyd v. State, 251 N.W.2d 551, 
 
         558 (Iowa 1977).
 
         
 
              The Iowa Industrial Commissioner has subject matter 
 
         jurisdiction over all injuries suffered by employees within the 
 
         geographical boundaries of the state of Iowa. [Code section 
 
         85.3(2)]. Where an employee is injured outside the territorial 
 
         limits of this state, the Iowa Industrial Commissioner has 
 
         subject matter jurisdiction only if one of the four criteria 
 
         established in Code section 85.71 is present.  Those four 
 
         criteria provide as follows:
 
         
 
              1.  His employment is principally localized in this state, 
 
              that is, his employer has a place of business in this or 
 
              some other state and he regularly works in this state, or if 
 
              he is domiciled in this state, or
 
         
 
              2.  He is working under a contract of hire made in this 
 
              state in employment not principally localized in any state, 
 
              or
 
         
 
              3.  He is working under a contract of hire made in this 
 
              state in employment principally localized in another state, 
 
              whose workers' compensation law is not applicable to his 
 
              employer, or
 
         
 
         
 
         
 
              4.  He is working under a contract of hire made in this 
 
              state for employment outside the United States.
 
         
 
              Subsections 3 and 4 are clearly not applicable in this case. 
 
          Claimant's employment was not outside the United States as 
 
         provided by subsection 4.  His injury was covered by Missouri 
 
         workers' compensation and therefore subsection 3 is not 
 
         applicable.  Whether jurisdiction exists under subsections 1 or.2 
 
         turns upon a determination of where claimant's employment was 
 
         principally localized.
 
         
 
              In 1957 James Clark was hired in Des Moines, Iowa to work 
 

 
         
 
         
 
         
 
         CLARK V. PULLEY FREIGHT LINES
 
         Page   3
 
         
 
         
 
         for Pulley Freight Lines (defendants' exhibit V, exhibit SS, 
 
         pages 16 and 17).  He remained employed by Pulley until his 
 
         retirement following the alleged injury.  Claimant testified that 
 
         he resided in Des Moines, Iowa during most of the years he was 
 
         employed by Pulley, but moved to Amity, Missouri.  The date of 
 
         the move appears to have been in 1978 (defendants' exhibit SS, 
 
         pages 17 and 18).  Clark thereafter resided in the state of 
 
         Missouri continuously until moving to Centerville, Iowa after the 
 
         alleged injury.
 
         
 
              Mark Wiederin, the executive vice-president for Pulley 
 
         Freight Lines since August of 1983, testified that Pulley is an 
 
         interstate motor carrier of specified commodities over irregular 
 
         routes which operates heavily in a 15-state area, but also to 
 
         some extent in other states.  Wiederin testified that there is no 
 
         state in which 50% or more of Pulley's activities occur, but that 
 
         all of the company equipment is maintained out of the Des Moines 
 
         terminal.  Wiederin testified that several years ago the company 
 
         set up locations where drivers were hired and from where they 
 
         worked.  He referred to the location as a "domicile" and stated 
 
         that one is located at Kearney, Missouri.  Wiederin described a 
 
         domicile as a place where a driver begins and ends his work week.  
 
         He testified that claimant's official domicile was at Kearney, 
 
         Missouri and that for income tax and withholding purposes, 
 
         claimant was treated as a Missouri resident.  Wiederin testified 
 
         that a driver usually resides near his official domicile.  
 
         Wiederin testified that, when an employee is at home, he is 
 
         considered to be available for dispatch if he is eligible to 
 
         drive additional hours under the applicable administrative 
 
         regulations.  Wiederin also testified that, if an employee 
 
         desires to move to a different residence, he is required to 
 
         notify the company.
 
         
 
              Wiederin testified that in 1983 a special agreement was 
 
         entered into between the company and claimant.  In general, it 
 
         provided that claimant would always be assigned to haul bones 
 
         from the Swift plant in Des Moines to the Swift plant in St. 
 
         Joseph, Missouri rather than having the run be up for bids 
 
         according to the usual seniority system.    Wiederin felt that 
 
         the arrangement
 
         was advantageous to the company because claimant gave up or 
 
         waived three hours of pay in order to have the bone run.  He felt 
 
         that it was advantageous to claimant because it permitted him to 
 
         be home every night, to avoid working on weekends, to limit his 
 
         on-the-road expenses, to give claimant the predictability of 
 
         knowing what he would be doing from day to day, and also to have 
 
         an assignment that carried no responsibility for loading or 
 
         unloading.  Wiederin testified that some other drivers were 
 
         discontent over claimant having the regularly scheduled run, but 
 
         that it was allowed because it was convenient for both claimant 
 
         and the company.  Wiederin also testified that claimant's 
 
         seniority was high enough that, on most occasions, he would have 
 
         had a good chance of bidding the run through the regular system.
 
         
 
              Wiederin testified that in late 1983 it became apparent that 
 
         the bone runs which claimant regularly performed would be ending 
 
         in early 1984 and that they did, in fact, end in March of 1984.  
 
         A meeting was held with claimant in December, 1983 where the 
 
         topic of ending the bone runs was discussed.  Wiederin 
 

 
         
 
         
 
         
 
         CLARK V. PULLEY FREIGHT LINES
 
         Page   4
 
         
 
         
 
         acknowledged that claimant had made bone runs to Chicago shortly 
 
         before that meeting.
 
         
 
              Wiederin testified that bones were hauled on a flat rate fee 
 
         which was not based on weight.  He stated that there were 
 
         overloads on occasion, but not continuously and that a driver had 
 
         the ability to decline an overload.
 
         
 
              James Clark testified that all load assignments came out of 
 
         Des Moines and that the satellite office in Kearney, Missouri was 
 
         a place where some drivers parked their trucks but that he 
 
         usually parked his truck at his home over the weekends 
 
         (defendants' exhibit SS, pages 23 and 24).  Clark testified that 
 
         when he lived in Missouri, he came to Des Moines using Highway 6 
 
         and Interstate 35.  He testified that the normal route from Des 
 
         Moines to St. Joseph was Interstate 35 and Highway 36, but that 
 
         when overloaded, he sometimes used alternate routes in order to 
 
         avoid scales.  He stated that he was overloaded 90% of the time 
 
         (defendants' exhibit SS, pages 28-31).
 
         
 
              Claimant testified that his assigned run involved picking up 
 
         bones at the terminal in Des Moines and then hauling them to 
 
         Swift Chemical Company in St. Joseph, Missouri.  He stated that 
 
         he had done so on a consistent basis for two or three years 
 
         (defendants' exhibit SS, pages 21 and 22).
 
         
 
              Marlene Smedema, a legal assistant for the Nyemaster Law 
 
         Firm, testified concerning the number of miles which claimant 
 
         would have driven in both Iowa and Missouri on a typical run and 
 
         also on the number of hours claimant spent in the respective 
 
         states while in a duty status according to the log books.  Her 
 
         testimony with regard to the number of miles between Des Moines 
 
         and:the Iowa-Missouri state line is totally inconsistent with
 
         the mileage shown on defendants' exhibit FF, the state maps which 
 
         were received into evidence.  The evidence from the state maps is 
 
         accepted as correct over her testimony.  Defendants' exhibit L is 
 
         a copy of claimant's weekly pay cards covering the weeks of 
 
         November 14, 1983 through May 24, 1984.  The first 12 pages deal 
 
         with the times pertinent to the injury.  The pay cards show that 
 
         claimant was paid for traveling 179 miles each way between the 
 
         Des Moines terminal and the St. Joseph, Missouri Swift plant.  
 
         Exhibit L shows that claimant made 82 of such runs during the 
 
         time covered by the exhibit.  The pay card also shows him to have 
 
         been paid for 14 hours of time in St. Joseph, Missouri and 
 
         one-fourth of an hour in Des Moines, Iowa.  The exhibit further 
 
         shows that claimant was paid, on two occasions, for traveling to 
 
         Chicago, Illinois, a distance which the pay card shows to be 345 
 
         miles each way.  Reference to the Iowa map, which is in evidence 
 
         as part of exhibit FF, shows the distance from the Pulley 
 
         terminal, which exhibits show to be located at 405 SE 20th in Des 
 
         Moines, Iowa, to the Iowa-Missouri state line to be approximately 
 
         82 miles.  The Missouri portion of exhibit FF shows the distance 
 
         from the Iowa-Missouri state line to the intersection of Highway 
 
         36 and Interstate 29 at the east edge of St. Joseph, Missouri to 
 
         be approximately 90 miles.  The exhibits in evidence show the 
 
         address of the Swift plant to be 4800 Packers Avenue in St. 
 
         Joseph (exhibit 3, page 1).  Exhibit FF contains a small city map 
 
         of St. Joseph, Missouri, but the map does not show the location 
 
         of Packers Avenue.  It does show the location of the stock yards 
 

 
         
 
         
 
         
 
         CLARK V. PULLEY FREIGHT LINES
 
         Page   5
 
         
 
         
 
         and it is quite common for packing houses to be located adjacent 
 
         to stock yards.  Trucking companies typically do not pay the 
 
         drivers for more miles than what are actually traveled.  When 82 
 
         miles in Iowa and 90 miles to the east edge of St. Joseph are 
 
         added the sum is 172 miles.  The additional seven miles needed to 
 
         total 179 miles is most likely the distance from the east edge of 
 
         St. Joseph to the Swift plant.  Although the Swift plant is not 
 
         necessarily located near the stock yards, seven miles would be 
 
         approximately the distance from the east edge of St. Joseph on 
 
         Highway 36 to the stock yards.  The result would be that for each 
 
         one-way trip on the normal bone run, claimant would travel 82 
 
         miles in the state of Iowa and 97 miles in the state of Missouri.  
 
         Reference to the Iowa map portion of exhibit FF shows the 
 
         distance from the Des Moines terminal to the Iowa-Illinois state 
 
         line to be approximately 164 miles.  Such is almost precisely 
 
         one-half of the total of 345 miles paid for the runs claimant 
 
         made to Chicago.  According to exhibit L claimant was paid for 
 
         driving 82 trips between St. Joseph and Des Moines for a total of 
 
         14,678 miles and four trips between Des Moines and Chicago for a 
 
         total of 1,380 miles.  The sum of his driving during the period 
 
         covered by exhibit L is 16,058 miles.  Of those total miles 
 
         traveled 7,954 were traveled in the state of Missouri as shown by 
 
         82 trips of 97 miles each.  If it is assumed that the miles were 
 
         traveled at an average speed of 50 mph, it would provide a total 
 
         of 159 hours.  If a slower average speed were used the amount of 
 
         time would, of
 
         course, be greater.  From those same 82 runs to St. Joseph 
 
         claimant would have traveled 6,724 miles in Iowa.  The two runs 
 
         to Chicago would have provided claimant with 600 additional miles 
 
         for a total of 7,414 miles in the state of Iowa.  The runs to 
 
         Chicago provide 690 miles in the state of Illinois.  Due to the 
 
         Chicago runs, slightly less than one-half of claimant's driving 
 
         miles were driven in the state of Missouri.  Assuming the same 50 
 
         mph average speed for the miles traveled in Iowa and in Illinois, 
 
         claimant would have 162 hours of driving time in states other 
 
         than Missouri.  Exhibit L shows claimant to have spent eight 
 
         hours in Illinois for pay, one quarter of an hour in Iowa for 
 
         pay, and 14 hours in St. Joseph, Missouri for purposes of pay.  
 
         When combined with the estimated driving times, it would appear 
 
         that, by a small margin, the majority of claimant's paid, on-duty 
 
         time in the service of his employer, was spent in the state of 
 
         Missouri.
 
         
 
              The summary of claimant's expenditures of nondriving time 
 
         while on duty as allocated between Des Moines and St. Joseph, 
 
         Missouri appears correct under exhibit M.  Exhibit M does not 
 
         show any on-duty nondriving time while in the state of Illinois 
 
         or elsewhere.  If off-duty hours are considered in any fashion 
 
         whatsoever, the proportion of claimant's time allocable to the 
 
         state of Missouri is even greater than if the consideration is 
 
         limited to driving time and on-duty nondriving time as is done 
 
         for purposes of this decision.
 
         
 
              Exhibit M, claimant's driver's daily log which was made and 
 
         maintained by him, covers the entire year of 1983 and through 
 
         most of January of 1984.
 
         
 
              A review of exhibit M, claimant's daily logs, shows that his 
 
         normal work activity was in fact travel between Des Moines and 
 

 
         
 
         
 
         
 
         CLARK V. PULLEY FREIGHT LINES
 
         Page   6
 
         
 
         
 
         St. Joseph.  With regard to the issue of mileage or time in such 
 
         activity, the deviations through Amity, claimant's home, would 
 
         not have any effect on the overall number of miles traveled.  The 
 
         only other destinations to which claimant drove, according to 
 
         exhibit M, during the 13 months it covers, are six trips to East 
 
         St. Louis, Illinois and four trips to Chicago.  The trips to East 
 
         St. Louis would, if using the normal traveled routes between Des 
 
         Moines, Iowa and East St. Louis, provide an even greater amount 
 
         of miles and time in the state of Missouri than would the normal 
 
         runs to St. Joseph.  Exhibit M shows the normal travel time 
 
         between Des Moines and East St. Louis to have been seven hours, 
 
         while the time typically used to drive between Des Moines and St. 
 
         Joseph was three and one-half to four hours.
 
         
 
              The test for determining whether or not the Iowa statute 
 
         applies to an out-of-state injury is whether Iowa has sufficient 
 
         interest based upon its statutes.  George H. Wentz, Inc.  v. 
 
         Sabasta, 337 N.W.2d 495, 498 (Iowa 1982).  In that case the Iowa 
 
         Supreme Court stated, "...a state where the employment is 
 
         principally localized ... is the state where the employee spends 
 
         most of his time while on the job.O  In Iowa Beef Processors, 
 
         Inc. v. Miller, 312 N.W.2d 530 (Iowa 1981), the court seemed to 
 
         rule that the employee's performance of the primary portion of 
 
         his work in a state is the test and that the location of the 
 
         employer's place of business or the employee's domicile is of no 
 
         effect.  There is some authority to the effect that the job of an 
 
         over-the-road trucker, by its very nature, is not principally 
 
         localized in any state.  Albertson v. I-29 Country Diesel, IV 
 

 
         
 
         
 
         
 
         CLARK V. PULLEY FREIGHT LINES
 
         Page   7
 
         
 
         
 
         Iowa Industrial Commissioner Report, 5 (1984).  In this case, 
 
         however, claimant was not working as a typical over-the-road 
 
         trucker.  He traveled a regular route.  In the period of 13 
 
         months covered by defendants' exhibit M, his logs show him to 
 
         have hauled loads to locations other than St. Joseph, Missouri on 
 
         only 10 occasions.  Four of those were to Chicago, the other six 
 
         to East St. Louis, Illinois, which is a location that would be 
 
         reached primarily by driving through the state of Missouri.  It 
 
         is found that the employment of James Clark was principally 
 
         localized in the state of Missouri.  Accordingly, subsections one 
 
         and two of code section 85.71 do not give Iowa jurisdiction of 
 
         this case.
 
         
 
              IT IS THEREFORE CONCLUDED that the Iowa Industrial 
 
         Commissioner does not have subject matter jurisdiction over James 
 
         Clark's claim that he was injured in St. Joseph, Missouri on or 
 
         about January 19, 1984 as presented in this case.
 
         
 
                                 FINDINGS OF FACT
 
         
 
              1.  On January 19, 1984 James Clark was an employee of 
 
         Pulley Freight Lines and a resident and domiciliary of the state 
 
         of Missouri.
 
         
 
              2.  On January 19, 1984, and for several months prior 
 
         thereto, claimant's primary work activity had been hauling bones 
 
         between Des Moines, Iowa and St. Joseph, Missouri.
 
         
 
              3.  The distance claimant drove for the employer in making 
 
         that regular assignment was a total of 179 miles of which 
 
         approximately 82 miles were in the state of Iowa and 
 
         approximately 97 miles were in the state of Missouri.
 
         
 
              4.  The majority of claimant's on duty working time from and 
 
         after January 1, 1983 and running up to the date of the alleged 
 
         injury was spent in the state of Missouri.
 
         
 
              5.  When claimant was off duty, he spent most of his time at 
 
         his residence in the state of Missouri.
 
         
 
              6.  James Clark's employment was principally localized in 
 
         the state of Missouri on January 19, 1984.
 
         
 
                                CONCLUSIONS OF LAW
 
         
 
              1.  Where subject matter jurisdiction is an issue, the 
 
         burden of showing that the industrial commissioner has subject 
 
         matter jurisdiction rests upon claimant.
 
         
 
              2.  The Iowa Industrial Commissioner does not have subject 
 
         matter jurisdiction over an injury alleged to have occurred to 
 
         James Clark on January 19, 1984 in St. Joseph, Missouri.
 
         
 
                                      ORDER
 
         
 
              IT IS THEREFORE ORDERED that this claim is dismissed for 
 
         lack of subject matter jurisdiction.
 
         
 
              Each party is ordered to pay their own respective costs 
 

 
         
 
         
 
         
 
         CLARK V. PULLEY FREIGHT LINES
 
         Page   8
 
         
 
         
 
         incurred in prosecuting this action.
 
         
 
         
 
         
 
              Signed and filed this 9th day of July 1987.
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
                                        MICHAEL G. TRIER
 
                                        DEPUTY INDUSTRIAL COMMISSIONER
 
         
 
         Copies To:
 
         
 
         Mr. William L. Kutmus
 
         Mr. Mark S. Pennington
 
         Attorneys at Law
 
         620 Fleming Building
 
         Des Moines, Iowa 50309
 
         
 
         Ms. Sara J. Sersland
 
         Attorney at Law
 
         1900 Hub Tower
 
         699 Walnut
 
         Des Moines, Iowa 50309
 
         
 
         
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                                    1110, 1402, 2301
 
                                                    2302, 2902
 
                                                    Filed July 9, 1987
 
                                                    MICHAEL G. TRIER
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         JAMES CLARK,
 
         
 
              Claimant,
 
                                                   File No. 764457
 
         VS.
 
         
 
         PULLEY FREIGHT LINES,                  A R B I T R A T I 0 N
 
         
 
                                                   D E C I S I 0 N
 
         
 
              Employer,
 
         
 
         and
 
         
 
         NATIONAL UNION FIRE INSURANCE,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         
 
         
 
         1110, 1402, 2301, 2302, 2902
 
         
 
              Claimant is a truck  driver who was assigned a regular route 
 
         between Des Moines, Iowa and St. Joseph, Missouri.  His alleged 
 
         injury occurred in St. Joseph, Missouri.  He was a resident of 
 
         the state of Missouri at the time of injury.  It was found that 
 
         the majority of claimant's driving miles and that the majority of 
 
         his time in the service of his employer, both driving and 
 
         nondriving time, was spent in the state of Missouri, but only by 
 
         a slight margin.  It was held that where subject matter 
 
         jurisdiction is an issue, the burden of proof rests with the 
 
         claimant to show that the Iowa Industrial Commissioner has 
 
         jurisdiction of the case.  In this case, it was held that 
 
         jurisdiction was lacking and claimant's claim was dismissed for 
 
         lack of subject matter jurisdiction.
 
 
 
         
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         
 
         
 
         DAVID DOFNER,
 
         
 
              Claimant,
 
         
 
         vs.                                      File No.  764460
 
         
 
         MID-AMERICA EXPRESS                       R E V I E W -
 
         
 
              Employer,                          R E 0 P E N I N G
 
         
 
         and                                      D E C I S I 0 N
 
         
 
         GREAT WEST CASUALTY,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         
 
         
 
                                   INTRODUCTION
 
         
 
              This is a proceeding in review-reopening brought by David 
 
         Dofner, claimant, against Mid-America Express, employer, and 
 
         Great West Casualty Company, insurance carrier, defendants, for 
 
         benefits as a result of an injury which occurred on September 1, 
 
         1983.  A hearing was held in Des Moines, Iowa on August 28, 1987, 
 
         and the case was fully submitted at the close of the hearing.  
 
         The record consists of the testimony of David Dofner (claimant), 
 
         Anita Howell (vocational rehabilitation specialist), Nathan 
 
         Skjervold (claim adjuster), Claimant's Exhibits 1 through 16 and 
 
         Defendants' Exhibits A through Y.  Both attorneys submitted 
 
         excellent briefs.
 
         
 
         
 
                          FIRST HEARING AND PRIOR AWARD
 
         
 
              As a result of the original hearing, which was held in Des 
 
         Moines, Iowa on April 4, 1985, Deputy Industrial Commissioner 
 
         Judith Ann Higgs filed an arbitration decision on April 30, 1985. 
 
          This decision awarded claimant healing period benefits from 
 
         September 2, 1983 through June 7, 1984 and 150 weeks of permanent 
 
         partial disability benefits based upon a 30 percent functional 
 
         impairment of the body as a whole, as well as medical benefits.  
 
         Official notice is taken of this decision, the exhibits 
 
         introduced into evidence at that hearing and the industrial 
 
         commissioner's file of this case.  Iowa Administrative Procedure 
 
         Act 17A.14(4).
 
         
 
                                 STIPULATIONS
 
         
 
              The parties stipulated to the following matters:
 
         
 
              That an employer-employee relationship existed between 
 

 
         
 
         
 
         
 
         DOFNER V. MID-AMERICA EXPRESS
 
         PAGE   2
 
         
 
         claimant and employer at the time of the injury;
 
         
 
              That claimant sustained an injury on September 1, 1983 which 
 
         arose out of and in the course of his employment with employer;
 
         
 
              That the injury was the cause of temporary disability;
 
         
 
              That claimant was entitled to temporary disability benefits 
 
         and was paid those benefits and that temporary disability is not 
 
         an issue in this case at this time;
 
         
 
              That the type of permanent disability, if the injury is 
 
         found to be a cause of permanent disability, is industrial 
 
         disability to the body as a whole;
 
         
 
              That the rate of compensation, in the event of an award of 
 
         additional benefits, is $15.24 per week;
 
         
 
              That claimant's entitlement to medical expenses is no longer 
 
         is dispute and
 
         
 
              That defendants have paid all benefits previously awarded.
 
         
 
                                      ISSUES
 
         
 
              The parties submitted the following issues for determination 
 
         at the time of the hearing:
 
         
 
              Whether the injury of September 1, 1983, was the cause of 
 
         additional permanent disability based upon a change of 
 
         condition;
 
         
 
              Whether claimant is entitled to additional permanent 
 
         disability benefits and if so, the nature and extent of those 
 
         disability benefits and
 
         
 
              Whether claimant is an odd-lot employee.
 
         
 
                             SUMMARY OF THE EVIDENCE
 
         
 
              All of the evidence was examined and considered.  The 
 
         following is a summary of the pertinent-evidence:
 
         
 
              At the prior hearing, Maurice P. Margules, M.D., claimant's 
 
         treating physician, awarded claimant a ten percent permanent 
 
         functional impairment rating of the body as a whole.  This was 
 
         based upon an aggravation of the preexisting condition of chronic 
 
         adhesive arachnoiditis.  The arachnoiditis was believed to have 
 
         occurred at the time of an earlier back surgery in 1973.  Dr. 
 
         Margules gave claimant a 40 pound weight lifting restriction with 
 
         limitation on hyperflexion and hyperextension of his back and 
 
         acknowledged that claimant needs a job that will allow him to 
 
         move around [Dofner v. Mid-America Express, Vol. 1, No. 4 State 
 
         of Iowa Industrial Commissioner Decisions pp. 787, 794 & 795 
 
         (April 30, 1985, file no. 764460)].
 
         
 
              After the first hearing, Dr. Margules issued the following 
 
         report on July 16, 1987:
 
         
 
              Mr. David Dofner was evaluated in this office on May 
 

 
         
 
         
 
         
 
         DOFNER V. MID-AMERICA EXPRESS
 
         PAGE   3
 
         
 
              25th, 1987.
 
         
 
              The patient had been previously last evaluated on 
 
              November 30, 1984.
 
         
 
              It is our opinion at this time that the,patient's 
 
              symptomatology and complaints are the result of chronic 
 
              adhesive arachnoiditis of the cauda equina, which has 
 
              caused a progressive aggravation of the patient's 
 
              condition since our last evaluation of November 1984.
 
         
 
              The condition of arachnoiditis of the cauda equina can 
 
              be manifested clinically by progressive deterioration 
 
              of the patient's condition as well as increasing pain 
 
              in the lower extremities and sphincteric dysfunction.
 
         
 
              As a result of this injury it is our opinion that the 
 
              patient has a partial permanent disability which is 
 
              rated at 25% of the body as a whole.
 
         
 
         (Claimant's Exhibit 1)
 
         
 
              Joseph F. Gross, M.D., an orthopedic surgeon and examining 
 
         physician for defendants, testified by deposition on May 13, 
 
         1987.  He stated that claimant could do some sedentary work where 
 
         he could get up and move around.  He believed a 25 to 35 pound 
 
         weight restriction would be appropriate.  He said that auto 
 
         damage appraisal work would be within claimant's physical 
 
         capabilities.  At the time of his examination prior to the first 
 
         hearing and again at the time of his examination prior to the 
 
         second hearing, Dr. Gross did not feel that claimant was 
 
         motivated to work (Defendants; Ex. C, pp. 1 - 10 & 16 - 18).  Dr. 
 
         Gross said that claimant's neurological condition at the time of 
 
         the second examination was almost the same (Def. Ex. C, p. 11).  
 
         Dr. Gross felt that claimant's impairment would probably be 20 
 
         percent, maybe 25 percent (Def. Ex. C, p. 15).  Dr. Gross did not 
 
         award an impairment rating prior to the first hearing.  Prior to 
 
         the first hearing, Dr. Gross felt that claimant should have an 
 
         eight to ten pound weight restriction.  At the time of his 
 
         examination prior to the second hearing, he felt that claimant 
 
         had improved and that claimant could now lift up to 25 to 35 
 
         pounds (Cl. Ex. C, pp. 12 & 13).
 
              The evidence at the first hearing and the decision of Deputy 
 
         Higgs disclosed that claimant has sustained a number of injuries 
 
         in his working lifetime.  He also suffers from diabetes, otitis 
 
         media, a congenital anomaly of the right arm and a number of 
 
         other ailments (Dec., pp. 789 to 791; Transcript p. 61).  
 
         Claimant's earlier spinal fusion at L5-Sl on the right was 
 
         performed in March of 1973 by C. M. Adli, M.D., (Dec., p. 790).  
 
         Dr. Margules performed the second surgery on January ill 1984 for 
 
         a herniation at L4, L5 and the area at L5, Sl was exposed again 
 
         at that time (Dec. p. 791).
 
         
 
              At the first hearing, Anita Howell, a vocational 
 
         rehabilitation specialist, hired by defendants, testified that 
 
         she had arranged a work hardening program for claimant in body 
 
         and fender work.  Claimant had indicated to her that he had done 
 
         this work before and was interested in doing it at that time.  
 
         The job opportunity that Howell located was within Dr. MargulesO 
 
         guidelines.  At the first hearing, claimant testified that he 
 

 
         
 
         
 
         
 
         DOFNER V. MID-AMERICA EXPRESS
 
         PAGE   4
 
         
 
         felt that he was physically unable to perform these tasks.  
 
         Claimant added that he was looking for light delivery or car 
 
         jockey work.  Howell also located an opportunity for claimant to 
 
         learn to be an automobile damage appraiser (Dec. p. 789).
 
         
 
              Much controversy in the second hearing centered on two 
 
         paragraphs in the earlier decision by Deputy Higgs.  These two 
 
         paragraphs are as follows:
 
         
 
                   If claimant is unable to function in a job such as 
 
              those Howell has found, he will likely suffer a 
 
              significant reduction in actual wages.  There is also 
 
              potential for claimant's having a substantial 
 
              industrial disability.  Such an assessment would be 
 
              inappropriate at this time.
 
         
 
                                         * * *
 
         
 
         
 
                   Claimant's industrial disability is being set at 
 
              thirty percent at this time.  That award is made with 
 
              the intent that defendants will continue to offer 
 
              vocational rehabilitation and that claimant will 
 
              cooperate with such efforts and make a reasonable 
 
              attempt to return to work.  The industrial disability 
 
              assessed will give the parties some time to accomplish 
 
              the goal of workers' compensation, which is to return 
 
              the injured worker to work and this decision 
 
              contemplates that return.  Claimant has the protection 
 
              of a review-reopening at some future time.  Blacksmith 
 
              v. All-American, Inc., 290 N.W.2d 348 (Iowa 1980); 
 
              Gosek v. Garmer & Stiles Co., 158 N.W.2d 731 (Iowa 
 
              1968); Henderson v. Iles, 250 Iowa 787, 96 N.W.2d 321 
 
              (1959); Bousfield v. Sisters of Mercy, 249 Iowa 64, 86 
 
              N.W.2d 109 (1957); Stice v. Indiana Coal Co., 228 Iowa 
 
              1031, 291 N.W. 452 (1940); Meyers v. Holiday Inn, 272 
 
              N.W.2d 24 (Iowa ct. ap. 1978).
 
         
 
         (Decision p. 795)
 
         
 
              Claimant indicated at the second hearing that he wanted to 
 
         obtain his G.E.D. in order to be better qualified to perform the 
 
         auto damage appraiser job (Tr. p. 20).  The insurance carrier 
 
         agreed to reimburse claimant for the G.E.D. expenses (Tr. pp. 
 
         110-111).. Claimant began the course but discontinued it because 
 
         many of the other students were much younger than he was and 
 
         because he sometimes found it necessary to stand up in class due 
 
         to his back (Tr. p. 68).
 
         
 
              Claimant testified that his condition had worsened because 
 
         he slept less and he had a greater fear that his back would 
 
         lockup (Tr. pp. 25 & 26).  Claimant testified that he had not 
 
         worked since the time of his injury on September 1, 1983 (Tr. p. 
 
         21).  Claimant stated that lie continued to have pain in his 
 
         back, which ran down his legs, and that he had trouble bending 
 
         and stooping (Tr. p. 32).
 
         
 
              Claimant described that his typical day was to get up, drive 
 
         up to Hardees for coffee, read the newspaper, visit with friends 
 
         or relatives, play cards, watch TV and lay down and rest (Tr. pp. 
 

 
         
 
         
 
         
 
         DOFNER V. MID-AMERICA EXPRESS
 
         PAGE   5
 
         
 
         26, 44 & 45).
 
         
 
              Claimant testified that after the first hearing on April 4, 
 
         1985, that he was not contacted by defendants' vocational 
 
         rehabilitation specialist until May 28, 1986 (Tr. pp. 28, 71 & 
 
         72).  Claimant added that since they did not contact him and 
 
         based on their opinion that he could do body and fender work, 
 
         claimant contacted two body shops of his own choosing to see 
 
         about doing body and fender work with the following results:
 
         
 
              Q.  But did you on your own seek any jobs in that 
 
              field?
 
         
 
              A.  Yes, I did.  I worked for this fella's dad, Leon 
 
              Brown.  Brownie had his own body shop.  He turned it 
 
              over to his son, Mick.  I went to see him and he said, 
 
              "No way, Dof."  He said, "You're too slow."  So I went 
 
              to see a -- Tim O'Neill is a good friend of mine, grew 
 
              up with,.him, high school.  He said, "No way, Jose.  I 
 
              need somebody who can work."  He said, "We've got to 
 
              have production.  That lets you out."
 
         
 
         (Tr. p. 30)
 
         
 
              Claimant said that his attorney called McMillen Ford about a 
 
         body shop job with the following result:
 
         
 
              Q.  Was there a job available for you?
 
         
 
              A.  Not at my age and two operations, no.  I was there 
 
              when he called.  It wasn't hearsay.
 
         
 
         (Tr. p. 30)
 
         
 
              Claimant testified that he could not do body and fender work 
 
         because he cannot lift and he cannot bend (Tr. p. 32).  Claimant 
 
         also objected to the fact that during his period of training and 
 
         work hardening, he would only receive a workers' compensation 
 
         check in the amount of $157.24 whereas, a body shop would be 
 
         receiving $300.00 to $400.00 worth of work and would not be 
 
         paying anything for it (Tr. p. 48).
 
         
 
              Claimant testified that he did not take the automobile 
 
         damage appraisal job just prior to the last hearing because he 
 
         did not want to start the job and then immediately take time off 
 
         to go and testify at a workers' compensation hearing (Tr. pp. 32, 
 
         47 & 70).  Claimant testified that he did not pursue and seek out 
 
         this job opportunity after the prior hearing and decision because 
 
         no one contacted him about doing it (Tr. pp. 33, 48, 49, 51, 54, 
 
         71 & 72).  Claimant knew that this job opportunity was at Pete's 
 
         Appraisal but he did not go there and inquire about this 
 
         position.  Claimant testified that his understanding of his duty 
 
         to look for work as a result of Deputy Higgs' decision was as 
 
         follows:
 
         
 
              Q.  We had a very efficient Deputy Commissioner and we 
 
              got the decision in April.
 
         
 
              A.  Right.
 
         
 

 
         
 
         
 
         
 
         DOFNER V. MID-AMERICA EXPRESS
 
         PAGE   6
 
         
 
              Q.  I assume that you visited about the decision with 
 
              your attorney or saw a copy of it, correct?
 
         
 
              A.  One was sent to me.
 
         
 
              Q.  Wouldn't you agree with me that a part of what the 
 
              Deputy Commissioner said was that you and Great West 
 
              should work together to try to get you into a job?
 
         
 
              A.  The way I kind of read it is I was to go along with 
 
              the Crawford Rehabilitation in trying to find me some 
 
              gainful employment and to help them if they were 
 
              willing to help me which, like I said, I never heard 
 
              anything for a long, long time.  And I called Shelly 
 
              and I said, "I think they forgot about me."  He said, 
 
              "Give them a call," so I did.
 
         
 
              Q.  You're saying they didn't return your call?
 
         
 
              A.  No.  I never got no call back and I told him, I 
 
              said, "Well, I think I will try on my own," and that's 
 
              when I went to Tim O'Neill and talked to him.  I went 
 
              to school with the guy and I knew he would give me a 
 
              job or try me out.  I walked in and he seen I was all 
 
              stooped over and walking slow.  He said, "Get out of 
 
              here, fat boy."
 
         
 
              Q.  Pete's Appraisers, though, in the other body shop, 
 
              they already knew your condition when they offered you 
 
              the job, didn't they?
 
         
 
              A.  Yeah, I guess.
 
         
 
              Q.  Well, presumably they did?
 
         
 
              A.  From the rehabilitation.
 
         
 
              Q.  Because they were going to help you getting into 
 
              that job work-hardening?
 
         
 
              A.  Yes.  But can you understand how I feel about this?  
 
              They're going to get something for nothing, aren't 
 
              they?
 
         
 
              Q.  Which job?
 
         
 
              A.  Pete's Appraisers or body shop.
 
         
 
         (Tr. pp. 49 & 50)
 
         
 
              Claimant also testified that he did not want to do the 
 
         automobile damage appraisal job because he did not feel that he 
 
         was good enough at math (Tr. pp 51, 72 & 73).  He preferred to 
 
         get his G.E.D. first (Tr. p. 51).  Therefore, he made no contact 
 
         with Pete's Appraisal where the arrangement had been made (Tr. 
 
         pp. 54 & 55).  Claimant granted that Dr. Margules said that he 
 
         could try it.(Tr. p. 67).
 
         
 
              At the prior hearing, claimant's own vocational 
 
         rehabilitation specialist, Jack Rogers, testified that he did not 
 

 
         
 
         
 
         
 
         DOFNER V. MID-AMERICA EXPRESS
 
         PAGE   7
 
         
 
         believe that claimant could do body and fender work because 
 
         claimant was too slow and did not wish to be retrained (Dec. p. 
 
         790).  It had been 23 years since claimant had performed body and 
 
         fender work (Tr. p. 29).  Rogers did believe that claimant could 
 
         drive a local delivery truck, perform light warehouse work or 
 
         light auto parts work (Dec. p. 790).
 
         
 
              At this second hearing, claimant testified that the car 
 
         delivery and automobile jockey job was a one time opportunity 
 
         that did not work out.  After that he never pursued this line of 
 
         work again (Tr. pp. 62 - 65).  Claimant further testified that he 
 
         never did check out or try to find light warehouse work or light 
 
         auto parts work either one after the first hearing (Tr. p. 65).
 
         
 
              Claimant did not know of any job that he could do eight 
 
         hours a day based on his past experience or his general knowledge 
 
         (Tr. pp. 35 & 37).  Claimant testified that he was told that he 
 
         was too slow to wash dishes (Tr. pp. 37 & 38).
 
         
 
              Claimant said that his current problems are his lower back, 
 
         right leg and left hip (Tr. p. 34).  In addition to his problem 
 
         of sleeping, he also has a problem bending, stooping, walking and 
 
         sitting (Tr. pp. 38 & 43).
 
         
 
              Claimant testified that he had applied for social security 
 
         disability benefits, but he was denied benefits and he has 
 
         appealed this decision (Tr. pp. 60 & 61).
 
         
 
              Anita Howell testified that claimant is not below average in 
 
         intelligence, but rather is average to above average in 
 

 
         
 
         
 
         
 
         DOFNER V. MID-AMERICA EXPRESS
 
         PAGE   8
 
         
 
         intelligence (Tr. p. 85).  She denied that her agency did not 
 
         return claimant's telephone call (Tr. pp. 91 & 92).  Howell 
 
         testified that claimant made no contact with her agency from the 
 
         date of the first hearing on April 4, 1985, until May 28, 1986 
 
         (Tr. p. 99).  She conceded and admitted that her agency made no 
 
         contact or attempt to contact claimant after the first hearing.  
 
         This inactivity was done at the direction of the insurance 
 
         carrier (Tr. pp. 94 - 100).  Howell admitted that her agency took 
 
         no action to assist the claimant for over a year (Tr. pp. 130, 
 
         142 & 143).  She was instructed to close her file after the 
 
         hearing (Tr. p. 143).  Howell testified that she was waiting to 
 
         be contacted by claimant after the first hearing on April 4, 1985 
 
         until March 1986 (Tr. p. 144).  Howell testified that during this 
 
         period of time she did not get a call from either claimant or 
 
         from claimant's attorney (Tr. pp. 145 & 146).
 
         
 
              Nathan Skjervold testified that he is the claim adjuster for 
 
         the workers' compensation carrier on this claim.  He took over 
 
         the file in January or February of 1986.  He concluded that the 
 
         file had been inactive since April of 1985 due to a lack of 
 
         interest or noncooperation or both (Tr. pp. 150 & 151).  
 
         Skjervold testified as follows:
 
         
 
              Q.  What was the situation?
 
         
 
              A.  The situation is quite clear in the decision that 
 
              was handed down by Deputy Commissioner Higgs, I 
 
              believe, and in there it was ordered that 
 
              rehabilitation services would be -- would continue to 
 
              be offered and in the same sentence or in the same 
 
              paragraph that the employee, Mr. Dofner, would continue 
 
              to cooperate in those efforts.
 
         
 
              Q.  So the onus was really put on both sides if you 
 
              will --
 
         
 
              A.  Yes.
 
         
 
              Q.  -- to cooperate?
 
         
 
              A.  Yes.
 
         
 
              Q.  The file as far as Great West was concerned at 
 
              Crawford, was it opened or closed up to the time of my 
 
              letter?
 
         
 
              A.  It would be more accurate I think to say it was in 
 
              a holding pattern, in suspense.
 
         
 
         (Tr. p. 154)
 
         
 
                           APPLICABLE LAW AND ANALYSIS
 
         
 
              An award for payments where the amount has not been commuted 
 
         may be reviewed upon commencement of reopening proceedings within 
 
         three years from the date of the last payment of weekly benefits 
 
         under the award.  Iowa Code section 85.26(2).  Rankin v. National 
 
         Carbide Co., 254 Iowa 611, 118 N.W.2d 570 (1962) and Sanford v. 
 
         Allied Maintenance Corp., IV Iowa Industrial Commissioner Report 
 
         297 (1984).
 

 
         
 
         
 
         
 
         DOFNER V. MID-AMERICA EXPRESS
 
         PAGE   9
 
         
 
         
 
              In a proceeding to reopen an award for payments the inquiry 
 
         shall be into whether or not the condition of the employee 
 
         warrants an end to, diminishment of, or increase in compensation 
 
         so awarded.  Iowa Code section 86.14(2).
 
         
 
              The first reported Iowa case to interpret and define 
 
         "whether or not the condition of the employee warrants", after 
 
         reviewing the law in the other states, held that modification of 
 
         the award would depend upon "a change of the condition" of the 
 
         employee since the award was made.  The decision on review 
 
         depends on the condition of the employee found to exist 
 
         subsequent to the award being reviewed.  It is not to redetermine 
 
         the condition of the employee which was adjudicated by the former 
 
         award.  Stice v. Consolidated Ind. Coal Co., 228 Iowa 1031, 291 
 
         N.W. 242 (1940).  Thereafter, the operative phrase in 
 
         review-reopening became "change of condition".  Lawyer and Higgs, 
 
         Iowa Workers' Compensation -- Law and Practice, section 20-2.
 
         
 
              The burden of proof by a preponderance of the evidence is 
 
         upon the employee to show "additional consequences, facts and 
 
         circumstances" proximately caused by the original injury that 
 
         occurred subsequent to the award being reviewed.  Henderson v. 
 
         Iles, 250 Iowa 787, 96 N.W.2d 321 (1959); Deaver v. Armstrong 
 
         Rubber Co, 170 N.W.2d 455 (Iowa 1969).
 
         
 
              Wagner v. Otis Radio & Electric Co., 254 Iowa 990, 119 
 
         N.W.2d 751 (1963) required a showing of "increased incapacity"; 
 
         while Rose v. John Deere Ottumwa Works, 247 Iowa 900, 76 N.W.2d 
 
         756 (1956) referred to "substantial proof of an aggravated 
 
         condition"; and Bousfield v. Sisters of Mercy, 249 Iowa 64, 86 
 
         N.W.2d 109 (1957 found "substantial evidence of a worsening of 
 
         the claimant's condition not contemplated at the time of the 
 
         first award".  It was held that a difference in expert opinion 
 
         subsequent to the first award was not sufficient to constitute a 
 
         change of condition.
 
         
 
              The Supreme Court of Iowa expanded the narrow holding of the 
 
         Stice case in review-reopening proceedings by allowing additional 
 
         compensation where facts relative to an employment connected 
 
         injury existed but were unknown and could not have been 
 
         discovered by the exercise of reasonable diligence at the time of 
 
         the prior award or settlement.  Gosek v. Garmer and Stiles Co., 
 
         158 N.W.2d 731 (Iowa 1968).
 
         
 
              A further refinement of the interpretation of the statutory 
 
         words "whether or not the condition of the employee warrants" and 
 
         the Stice case standard of "change of condition" was added in 
 
         1978.  The Iowa Court of Appeals allowed additional permanent 
 
         partial disability where the passage of time and the claimant's 
 
         return to work revealed that the disability exceeded that 
 
         determined in the original decision due to the claimant's failure 
 
         to improve to the extent anticipated by the original decision.  
 
         Meyers v. Holiday Inn of Cedar Falls, Iowa, 272 N.W.2d 24 (Iowa 
 
         App., 1978).
 
         
 
              Then in 1980 the Supreme Court of Iowa found a change of 
 
         condition occurred and permitted an additional award where there 
 
         was a change in earning capacity without a change in physical 
 
         condition subsequent to the original award.  Blacksmith v. 
 

 
         
 
         
 
         
 
         DOFNER V. MID-AMERICA EXPRESS
 
         PAGE  10
 
         
 
         All-American, Inc., 290 N.W.2d 348 (1980); McSpadden v. Big Ben 
 
         Coal Co., 288 N.W.2d 181 (Iowa 1980).
 
         
 
              It is necessary then to examine claimant's evidence now to 
 
         see if there has been a change of condition subsequent to the 
 
         earlier hearing caused by the original injury.
 
         
 
              Dr. Margules did in fact increase claimant's impairment 
 
         rating from 10 percent to 25 percent.  However, no factual basis 
 
         is given for this substantial increase other than the bare 
 
         conclusion that claimant's condition is more aggravated now then 
 
         it was at the time of the prior rating.
 
         
 
              By contrast, Dr. Gross testified that claimant's 
 
         neurological condition at the time of his second examination was 
 
         about the same.  Dr. Gross also felt that claimant had sustained 
 
         an impairment of approximately 20 percent, maybe 25 percent.  
 
         However, Dr. Gross had not rated claimant at the time of his 
 
         prior examination.  Therefore, it cannot be said there was any 
 
         increase in impairment rating from Dr. Gross.  Dr. Gross did 
 
         testify that ten percent was a generally accepted rating for a 
 
         successful back operation at the time he ' awarded the 25 percent 
 
         impairment rating.  However, Dr. Gross did not assign how much of 
 
         his 20 percent to 25 percent determination should be allocated to 
 
         the 1973 back surgery, how much of it should be allocated to the 
 
         January 11, 1984 back surgery, or how much of it may have arisen 
 
         after the prior decision on April 30, 1985.
 
              In any event, an increase in impairment rating is only one 
 
         factor in determining industrial disability.  It is also noted 
 
         that Dr. Margules did not increase the previous 40 pound weight 
 
         lifting restriction that he had imposed earlier.  By contrast, 
 
         Dr. Gross said that claimant had improved since the post-surgical 
 
         period and Dr. Gross decreased his prior weight lifting 
 
         restriction from eight to ten pounds to 35 pounds.  A comparison 
 
         of the weight lifting restrictions would indicate that claimant's 
 
         condition has improved, rather than deteriorated.
 
         
 
              Claimant testified that he was taking no medication prior to 
 
         the second hearing, whereas, he was taking medications prior to 
 
         the first hearing (Tr. pp. 66 & 67).  There was no significant 
 
         evidence that claimant received necessary medical treatment after 
 
         the first hearing other than the evaluation examinations.  
 
         Claimant was not under treatment at the time of the second 
 
         hearing.  There was no evidence that additional treatment was 
 
         planned.  No new surgery has been recommended.  Claimant 
 
         testified basically that he slept less and that he had a greater 
 
         fear that his back would lockup as his primary change in physical 
 
         condition.  Claimant's testimony on these two points was not 
 
         substantiated by any specific medical evidence or any other 
 
         evidence.
 
         
 
              Therefore, based upon the foregoing considerations it is 
 
         determined that claimant did not sustain the burden of proof by a 
 
         preponderance of the evidence that he sustained an increase in 
 
         physical incapacity.  He has not proven a substantially 
 
         aggravated condition.  Claimant has not introduced evidence of a 
 
         substantial worsening of his physical condition that was not 
 
         contemplated by the original award.  Nor has claimant alleged or 
 
         tried to prove that he suffered from an existing, but unknown 
 
         injury that could not be discovered at the time of the first 
 

 
         
 
         
 
         
 
         DOFNER V. MID-AMERICA EXPRESS
 
         PAGE  11
 
         
 
         hearing.  Claimant has not proven that he failed to improve to 
 
         the extent anticipated by the original decision.  The evidence in 
 
         the record indicates that claimant is essentially the same.  Dr. 
 
         Margules increased his impairment rating but did not explain why.  
 
         There is some evidence that claimant is slightly improved because 
 
         he is no longer actively under medical treatment, he is no longer 
 
         taking medications and according to Dr. Gross, he can lift more 
 
         now than at the tune of the prior hearing.  Claimant has not 
 
         sustained the burden of proof by a preponderance of the evidence 
 
         that he has sustained a change in physical or medical condition 
 
         that would justify an additional award of permanent disability 
 
         benefits.
 
         
 
              Claimant has not sustained the burden of proof by a 
 
         preponderance of the evidence that he has sustained a nonmedical 
 
         or nonphysical change in condition.  He has not proven a change 
 
         in earning capacity since the prior hearing.  Claimant was 
 
         unemployed and not actively seeking employment at the time of the 
 
         first hearing.  Claimant was unemployed and not actively seeking 
 
         employment at the time of the second hearing.  There is no 
 
         substantial evidence that claimant actively sought or searched 
 
         for realistic employment in between the two hearings.
 
              
 
              It is entirely possible, even probable, that claimant was 
 
         not physically able to perform body and fender work as he 
 
         testified because of the weight of tile parts that must be lifted 
 
         and manipulated as well as the amount of stooping and bending 
 
         involved in order to perform body and fender work.  Since 
 
         claimant testified that he could not do body and fender work, 
 
         then his inquiry at the body shop of two different friends cannot 
 
         be construed as a serious attempt to find employment.  If 
 
         claimant had been serious about being retrained in body and 
 
         fender work, he could have been employed at the body shop 
 
         arranged by the vocational rehabilitation service which was aware 
 
         of his limitations but were, nevertheless, willing to work with 
 
         him and allow him to see what he was able to do with respect to 
 
         body and fender work within his limitations.  Claimant chose not 
 
         to attempt body and fender work even though the opportunity to 
 
         try to get back into it had been set up for him if he wanted to 
 
         try it.  Claimant had told the rehabilitation services that body 
 
         and fender work was his first love.
 
         
 
              Claimant admitted that he did not continue to try to find 
 
         work delivering cars or as a car jockey which was something that 
 
         he was looking into at the prior hearing.  Claimant did not apply 
 
         for any jobs in light auto parts or in light warehouse work as 
 
         suggested by Jack Rogers, his own personally retained vocational 
 
         rehabilitation specialist.
 
         
 
              Nor did claimant go to Pete's Appraisal after the last 
 
         hearing to endeavor to try to do the auto damage appraisal work 
 
         that had been arranged for him by defendants' vocational 
 
         rehabilitation service.  Dr. Margules said that he could try this 
 
         job.  Dr. Gross testified that this work was within claimant's 
 
         physical abilities.  Howell testified that in her opinion 
 
         claimant could do this work.  Nevertheless, claimant declined to 
 
         even try it to see if he could do it, or if he could not do it.
 
         
 
              As to the injunction of Deputy Higgs that the parties should 
 
         continue to work together to place claimant in some kind of 
 
         employment, it would appear that claimant and defendants entered 
 

 
         
 
         
 
         
 
         DOFNER V. MID-AMERICA EXPRESS
 
         PAGE  12
 
         
 
         into a stand off to see which one could ignore the other one the 
 
         longest.  Claimant admitted that he did not immediately contact 
 
         the vocational rehabilitation service.  Howell admitted that she 
 
         did not contact claimant for several months.  Claimant asserted 
 
         that he called the vocational rehabilitation service eventually 
 
         but he did not say how long it was after the first hearing.  
 
         Claimant asserted that the vocational rehabilitation service did 
 
         not return his call.  Howell denied that the vocational 
 
         rehabilitation service had received any calls from claimant which 
 
         were not returned.  As far as failure to obey Deputy Higgs' 
 
         injunction, it would appear that the parties are in pari 
 
         delicto.
 
         
 
              As between claimant and vocational rehabilitation services, 
 
         the primary duty is on the claimant to actively seek and search 
 
         for employment.  As to whether claimant should pursue the 
 
         vocational rehabilitation service and try to find a job that he 
 
         can do, or whether the vocational rehabilitation service should 
 
         pursue claimant and force him to take a job within his 
 
         limitations, the primary duty is on the employee to actively seek 
 
         and try to find suitable employment using the help and assistance 
 
         of the vocational rehabilitation service.
 
         
 
              Prior to the first hearing, the vocational rehabilitation 
 
         service had worked with claimant and sincerely tried to place him 
 
         in a job that he could do based on his background and the type of 
 
         work that he said that he wanted to do.  Claimant did not make 
 
         contact with either one of the two arrangements that had been set 
 
         up for him either before or after the hearing.  Nor did he 
 
         actively seek any other kind of employment on his own.
 
         
 
              Claimant stated that he wanted to obtain his G.E.D. to be 
 
         better qualified to do the auto damage appraisal job.  Defendants 
 
         offered to reimburse claimant's expenses.  Claimant started the 
 
         program, but discontinued it.  Therefore, the status of his 
 
         G.E.D. training was the same at the time of the second hearing 
 
         and it was no different than it was at the time of the first 
 
         hearing.
 
         
 
              It would appear then, that claimant's nonmedical or 
 
         nonphysical condition is the same as it was at the time of the 
 
         prior hearing.  Claimant introduced no evidence of an attempt to 
 
         be gainfully employed either with or without the help of the 
 
         vocational rehabilitation service.  Since claimant has not 
 
         demonstrated a bona fide effort to return to gainful employment 
 
         in the area of his residence, he has failed to make a prima facia 
 
         case of permanent total disability under the odd-lot doctrine.  
 
         Guyton v. Irving Jensen Co., 373 N.W.2d 101 (Iowa 1985); 
 
         Emshoff.v. Petroleum Transportation Services, Inc., file no. 
 
         753723, (App. Dec. March 31, 1987).
 
         
 
              Claimant has suffered a number of injuries in his working 
 
         career.  In addition, he suffers from a number of other health 
 
         problems.  Claimant may justifiably not feel like working and may 
 
         be suffering from a number of disincentives to work.  This is 
 
         understandable.  However, these problems did not arise out of and 
 
         in the course of his employment with this employer and they were 
 
         not caused by this injury.  In conclusion, claimant did not 
 
         sustain the burden of proof by a preponderance of the evidence 
 
         that he sustained either a medical/physical change of condition 
 

 
         
 
         
 
         
 
         DOFNER V. MID-AMERICA EXPRESS
 
         PAGE  13
 
         
 
         or a nonmedical/nonphysical change of condition in the way of 
 
         decreased earning capacity subsequent to the prior hearing that 
 
         was caused by the original injury on September 1, 1983.  A 
 
         redetermination of the condition of the claimant as it was 
 
         adjudicated by a prior award is inappropriate.  Stice, 228 Iowa 
 
         1031, 1038 291 N.W. 452, 456; Sheriff  v. Intercity Express, 
 
         Thirty-fourth Biennial Report of the Industrial Commissioner, 302 
 
         (App. Dec. 1978) (District Court Affirmed.
 
         
 
                                 FINDINGS OF FACT
 
         
 
              Wherefore, based upon the evidence presented the following 
 
         findings of fact are made:
 
         
 
              Claimant demonstrated an increase in his physical impairment 
 
         rating by his treating physician;
 
         
 
              An independent medical examiner stated that claimant had not 
 
         sustained a change in medical condition;
 
         
 
               Claimant's treating physician did not change his lifting 
 
         restriction;
 
         
 
              The independent medical examiner thought that claimant had 
 
         improved and greatly moderated his weight lifting restriction;
 
         
 
              Claimant was unemployed and not actively seeking employment 
 
         at the time of the first hearing; claimant was unemployed and not 
 
         actively seeking employment at the time of the second hearing and 
 
         claimant was unemployed and not actively seeking employment in 
 

 
         
 
         
 
         
 
         DOFNER V. MID-AMERICA EXPRESS
 
         PAGE  14
 
         
 
         between the two hearing;
 
         
 
              Defendants vocational rehabilitation service generated two 
 
         employment opportunities for claimant to try to get back into the 
 
         employment market by performing work that claimant was interested 
 
         in and which was also within the treating physician's limitations 
 
         and
 
         
 
              Claimant did not attempt to perform either one of these 
 
         retraining opportunities, nor did he apply for or seek any 
 
         employment on his own after the first hearing.
 
         
 
                                CONCLUSIONS OF LAW
 
         
 
              WHEREFORE, based upon the evidence presented and the 
 
         principles of law previously discussed, the following conclusions 
 
         of law are made:
 
         
 
             That claimant did not sustain the burden of proof by a 
 
         preponderance of the evidence that he sustained either a 
 
         medical/physical or a nonmedical/nonphysical change of 
 
         condition.subsequent to the first hearing which was caused by the 
 
         original injury;
 
         
 
              Claimant is not entitled to additional permanent disability 
 
         benefits and
 
         
 
              Claimant did not sustain the burden of proof by a 
 
         preponderance of the evidence that he is an odd lot employee.
 
         
 
         
 
         
 
                                      ORDER
 
         
 
              THEREFORE, IT IS ORDERED:
 
         
 
              That no additional amounts of permanent disability benefits 
 
         are owed by defendants to claimant;
 
         
 
              That the costs of this action are assessed against claimant 
 
         pursuant to Division of Industrial Services Rule 343-4.33 and
 
         
 
              That defendants file claim activity reports as requested by 
 
         this agency pursuant to Division of Industrial Services rule 
 
         343-3.1.
 
         
 
              Signed and filed this 9th day of August, 1988.
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
                                           WALTER R. McMANUS, JR.
 
                                           DEPUTY INDUSTRIAL COMMISSIONER
 
         
 
         
 
         
 

 
         
 
         
 
         
 
         DOFNER V. MID-AMERICA EXPRESS
 
         PAGE  15
 
         
 
         
 
         Copies to:
 
         
 
         Mr. Sheldon Gallner
 
         Attorney at Law
 
         803 3rd Ave
 
         P.O. Box 1588
 
         Council Bluffs, Iowa  51502
 
         
 
         Mr. R. Jeffrey Lewis
 
         Attorney at Law
 
         2600 Ruan Ctr
 
         Des Moines, Iowa 50309
 
         
 
 
            
 
 
 
 
 
                  
 
                                              1402.40; 1803; 2905; 3102;
 
                                              3103; 2707
 
                                              Filed August 9, 1988
 
                                              WALTER R. McMANUS, JR.
 
         
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         
 
         DAVID DOFNER,
 
         
 
              Claimant,
 
         
 
         vs.                                    File No.  764460
 
         
 
         MID-AMERICA EXPRESS                      R E V I E W -
 
         
 
              Employer,                         R E 0 P E N I N G
 
         
 
         and                                     D E C I S I 0 N
 
         
 
         GREAT WEST CASUALTY,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         
 
         
 
         1402.40, 1803, 2905
 
         
 
              Claimant failed to sustain the burden of proof by a 
 
         preponderance of the evidence that he suffered either a medical/ 
 
         physical or a nonmedical/nonphysical change of condition after 
 
         the first hearing that was caused by the original injury.
 
         
 
              As to medical or physical change of condition, claimant's 
 
         treating physician increased his permanent functional impairment 
 
         rating from ten percent to 25 percent.  Defendant's doctor said 
 
         there was no change of condition, but rather indicated claimant 
 
         had improved because he reduced claimant's weight lifting 
 
         restriction for eight to ten pounds at the first hearing to 25 to 
 
         35 pounds at the second hearing.
 
         
 
              As to nonmedical or nonphysical change of condition there 
 
         was no change of condition because claimant was not employed or 
 
         actively seeking employment at the time of the first hearing, he 
 
         was not employed or actively seeking employment at the time of 
 
         the second hearing, and he was not employed and did not actively 
 
         seek employment in between the two hearings.
 
         
 
         
 
         
 
         
 
         
 

 
         
 
         
 
         
 
         DOFNER V. MID-AMERICA EXPRESS
 
         PAGE   2
 
         
 
         
 
         3102, 3103
 
              
 
              As between claimant and vocational rehabilitation 
 
         services, the primary duty is upon the claimant to actively 
 
         seek and search for employment.  As to whether claimant should 
 
         pursue the vocational rehabilitation service and try to find a 
 
         job that he can do or whether the vocational rehabilitation 
 
         service should pursue claimant and force him to take a job 
 
         within his limitations, the primary duty is on the employee to 
 
         actively seek and try to find suitable employment using the 
 
         help of the rehabilitation service.
 
         
 
         2907
 
         
 
              Costs assessed against claimant.
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         ROGER L. BAKER,
 
         
 
              Claimant,
 
         VS.
 
                                                       File No. 764491
 
         FLOYD VALLEY PACKING,
 
                                                         A P P E A L
 
              Employer,
 
                                                       D E C I S I 0 N
 
         and
 
         
 
         ARGONAUT INSURANCE CO.,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         
 
                              STATEMENT OF THE CASE
 
         
 
              Claimant appeals from an arbitration decision denying all 
 
         compensation because he failed to establish by a preponderance of 
 
         the evidence that he sustained an injury to his left upper 
 
         extremity.
 
         
 
              The record on appeal consists of the transcript of the 
 
         arbitration hearing, claimant's exhibits 1 through 8, and 
 
         defendants' exhibits A through N.  Briefs were filed by both of 
 
         the parties on appeal.
 
         
 
                                      ISSUES
 
         
 
              The issues raised on appeal are: 1) Whether claimant 
 
         received an injury arising out of and in the course of his 
 
         employment; 2) whether there is a causal relationship between the 
 
         alleged injury and the disability; and 3) whether claimant is 
 
         entitled to permanent partial or total disability.
 
         
 
                              REVIEW OF THE EVIDENCE
 
         
 
              The arbitration decision adequately and accurately reflects 
 
         the pertinent evidence and it will not be totally reiterated 
 
         herein.  Claimant has previously been awarded benefits as a 
 
         result of an injury on April 6, 1983 (see file No. 741613).
 
         
 
              Claimant alleges he sustained a work-related injury to his 
 
         left shoulder pulling "leaf lard" on January 10, 1983.  The 
 
         hearing deputy in his decision stated:
 
                 Claimant testified that he bid onto the job of 
 
              pulling lard.  He stated that the lard weighs five to 
 
              seven pounds on regular hogs and 10 to 15 pounds on 
 
              sows.  Claimant testified that on April 6, 1983 they 
 
              were processing sows and that while he was reaching to 
 
              grab the lard, he experienced a sharp pain in his low 
 
              back.  Claimant testified that he reported the incident 
 
              to his foreman and was sent to the plant nurse who made 
 
              an appointment for him to see Joe Krigsten, M.D., on 
 

 
              the following day.  Claimant testified that Dr. 
 
              Krigsten examined him, gave him medication and advised 
 
              him to return in two weeks.  Claimant testified that he 
 
              continued working and that when he returned in two 
 
              weeks he was still having pain.  Claimant described the 
 
              pain as a sharp stabbing pain in his low back.  He 
 
              testified that he was given different medication but 
 
              not taken off work.  He stated that he was advised to 
 
              see his family doctor.
 
         
 
              Claimant has already been compensated for the days he 
 
         alleges he was off work in this claim in an arbitration decision 
 
         filed February 27, 1985.
 
         
 
              Milton D. Grossman, M.D., and F. John Kissell, M.D., have 
 
         recommended that claimant not work at a packing plant.
 
         
 
                                  APPLICABLE LAW
 
         
 
              The citations of law in the arbitration decision are 
 
         appropriate to the issues and the evidence.
 
         
 
                                     ANALYSIS
 
         
 
              Claimant argues on appeal that he sustained an injury to his 
 
         left shoulder pulling leaf lard on January 10, 1983.  Claimant's 
 
         exhibit 5 is a physician's report form completed by Milton D. 
 
         Grossman, M.D., on February 1, 1983.  Dr. Grossman made the 
 
         following responses to the questions in sections 3, 5, 6, 7, and 
 
         15 of that form:
 
         
 
              3.  History and date of injury or disease as given by 
 
              patient: Pulling lard; pain in left shoulder
 
         
 
              5.  Conclusion: Bursitis left shoulder; tendinitis left 
 
              forearm
 
         
 
              6.  Was the injury or disease caused, aggravated or 
 
              accelerated by the patient's alleged employment activity?  
 
              Yes  X   No     
 
         
 
              7.  Did this injury or disease disable patient from
 
              work?  Yes     No  X
 
         
 
              15.  What further medical care is necessary?  Recommend 
 
              rehabilitation for different type of work
 
         
 
              These responses would seem sufficient to support claimant's 
 
         assertion that he sustained a left shoulder injury on January 10, 
 
         1983.  However, Dr. Grossman does not respond to the following 
 
         questions in a questionaire prepared by Argonaut Insurance 
 
         Companies:
 
         
 
              3.  Did this patient [sic] report a history of an accident 
 
              occurring at work on or around 1/10/83?
 
         
 
              4.  In your opinion, was the patient's injury caused by this 
 
              accident?
 
         
 
         In his answer to question 9, Dr. Grossman states:
 
         
 
              9.  Additional comments: I have not seen this patient since 
 
              Jan. 18, 1983; He stated at that time that there was no 
 
              known injury but he started having pain in his left shoulder 
 
     
 
         
 
         
 
         
 
         
 
         BAKER V. FLOYD VALLEY PACKING
 
         Page   3
 
         
 
         
 
              on Jan. 10, 1983.  I recommended rehabilitation and a 
 
              different type of work.  I have no knowledge of his present 
 
              condition.
 
         
 
         (Defendants' Exhibit F)
 
         
 
         This questionaire was signed by Dr. Grossman and dated October 
 
         15, 1985.
 
         
 
              Examination of the remainder of the record in this case 
 
         reveals the following notations concerning claimant's left 
 
         shoulder:
 
         
 
              Exhibit G, page 5.
 
         
 
                 "6-14-82    stated pain left shoulder - opening hogs 
 
                 req to see Dr. Grossman - To Dr. Grossman's office at 
 
                 3:30 p.m.O
 
         
 
              Exhibit F, page 3.  Dr. Grossman states:
 
         
 
                 "DATE OF THIS REPORT 9-13-82 - Description of Injury 
 
                 Received:  Strain both shoulders"
 
         
 
              Exhibit D, page 3, paragraph 1. Albert D. Blessman, M.D., 
 
         states:
 
         
 
                 "Patient states since August 1982 he has been having 
 
                 problems with his right shoulder.  He opens sows at 
 
                 work which requires pounding them open with knife and 
 
                 a hammer.  Is having sharp pain in right shoulder 
 
                 which is making his neck ache, has trouble moving 
 
                 right arm. Left shoulder and arm bother him also but 
 
                 not as much." (Emphasis added.)
 
         
 
              Exhibit C, page 1.  D.A. Benson, D.C. states:
 
         
 
                 "I first saw this patient December 6, 1979.  He had 
 
                 been treated by Doctor Kruse some six months 
 
                 previously for dorsal pains.  He stated he had been 
 
                 on a particularly hard job November 29th, and his 
 
                 left dorsal area, shoulder and arm had been painful, 
 
                 weak, with poor control since, plus cervical pains 
 
                 and headaches." (Emphasis added.)
 
         
 
              Exhibit M, page 1, last paragraph, first sentence:
 
         
 
                 "Mr.  Baker also has a history of right shoulder 
 
                 bursitis (he receives 20% disability for this) and 
 
                 left shoulder pain and tendinitis in the left 
 
                 forearm." (Emphasis added.)
 
         
 
              Exhibit M, page 2, second paragraph, first sentence:
 
         
 
                 "Past medical history is significant for bursitis in 
 
                 both shoulders; and tendinitis in the left forearm."
 
         
 
              Exhibit K, page 8. William M. Krigsten, M.D., deposition 
 
         taken October 18, 1984.  Dr. Krigsten testifies about his 
 

 
         
 
         
 
         
 
         BAKER V. FLOYD VALLEY PACKING
 
         Page   4
 
         
 
         
 
         findings after a March 27, 1984 examination:
 
         
 
              Q.  And what findings did you make?
 
         
 
              A.  Well, first I found out he was married and has two 
 
              children, three and six years of age.  All were 
 
              healthy.  Patient is 31 years and 11 months of age, 5 
 
              foot 9 inches in height, weighed 193 pounds, well 
 
              developed and muscular.  Both arms were tattooed about 
 
              a year prior to the time I examined him.  Finished the 
 
              8th grade in school and dropped out in the 9th grade.
 
         
 
                 He walks perfectly normal, is able to walk on his 
 
              toes as well as on his heels.  He removed his stockings 
 
              while sitting with no apparent discomfort, no loss of 
 
              balance.  Cranial nerves intact, neck motions normal in 
 
              all directions, some tightness in the neck muscles on 
 
              rotation as well as in flexion.  The right shoulder is 
 
              a little bit lower than the left, but the pelvis is 
 
              level and remained so when standing on one foot.  The 
 
              right upper -- the upper arm was 13 inches; the right 
 
              forearm was 13 inches, the left was 12.  Shoulder 
 
              motions and strength were normal.  Elbow motions 
 
              normal, strength normal, circulation normal, reflexes 
 
              and sensations normal. (Emphasis added.)
 
         
 
              Exhibit J, page 2-3.  Dr. Krigsten states in his report 
 
         following the March 27, 1984 examination:
 
         
 
                 X-rays reports as follows:  AP of the cervical spine.  
 
              Lateral flexion and extension, all negative for bone or 
 
              joint injury or disease.  Right shoulder, bone and joints 
 
              all negative for disease or injury.  Right shoulder, bone 
 
              and joints all negative for disease or injury.  Left 
 
              shoulder negative for disease or injury.  Standing barefoot 
 
              shows no evidence of scoliosis.  Right side of pelvis about 
 
              1/4" higher.  Lateral shows slight increase in dorsal 
 
              kyphosis and old residual healed epiphyseal chains T-9, 
 
              10-11. slight wedging of vertebral bodies.  Right and left 
 
              knee normal.  Pelvis, no x-ray evidence of bone or joint 
 
              abnormalities or injury.  Lumbar and lumbosacral junction, 
 
              negative for abnormalities, disease, or injury.
 
         
 
                 Examination of the patient, review of recent x-rays, as 
 
              well as those taken in the past, and patient's history 
 
              during the past years, fails to reveal evidence of any 
 
              organic or objective evidence of injury or disease.  There 
 
              is no history of a single definite injury.  All complaints 
 
              have been subjective.  There has never been evidence of 
 
              objective injury either on physical examination or x-ray 
 
              review.
 
         
 
                 The history of bedwetting in the Marine Corp with 
 
              immediate recovery when discharged is extremely important.
 
         
 
                 I would hesitate labeling him as a malinger, but the 
 
              history and physical findings closely approach that 
 
              diagnosis obtained from my fifty-four years of medical 
 
              practice and from the literature I have read during those 
 

 
         
 
         
 
         
 
         BAKER V. FLOYD VALLEY PACKING
 
         Page   5
 
         
 
         
 
              years.
 
         
 
                 I can find no organic reason for his complaints and I 
 
              would strongly recommend psychiatric evaluation.
 
         
 
              The record as a whole does not establish that claimant 
 
         suffered an injury to his left shoulder on January 10, 1983.  
 
         Claimant had left shoulder pain while pulling leaf lard in 1982 
 
         and the medical evidence does not indicate that claimant suffered 
 
         a specific injury on January 10, 1983.  Claimant's physicians 
 
         have recommended that he not work in a packing plant.  However, 
 
         it is not clear whether this recommendation is made as a result 
 
         of claimant's left shoulder, his low back or his right shoulder 
 
         problems.
 
         
 
              Dr. Krigsten's statement in defendants' exhibit J and 
 
         claimant's continued bowling as evidenced by his testimony and 
 
         
 
         defendants' exhibit A place claimant's credibility in question.
 
         
 
                                 FINDINGS OF FACT
 
         
 
              1.  Claimant worked for defendant employer from May 3, 1973 
 
         until May 9, 1983.
 
         
 
              2.  Claimant has been compensated in an arbitration decision 
 
         filed February 27, 1985 for low back problems.
 
         
 
              3.  Claimant has sought compensation for a right shoulder 
 
         condition during his employment with defendant.
 
         
 
              4.  Claimant experienced left shoulder pain in 1982 while 
 
         pulling leaf lard.
 
         
 
              5.  Claimant's physicians have recommended that he not work 
 
         in a packing plant.
 
         
 
              6.  Claimant did not sustain an injury to his left shoulder 
 
         on January 10, 1983 while pulling leaf lard.
 
         
 
                                CONCLUSION OF LAW
 
         
 
              Claimant has not established by a preponderance of the 
 
         evidence that he sustained an injury arising out of and in the 
 
         course of employment on January 10, 1983.
 
         
 
              WHEREFORE, the decision of the deputy is affirmed.
 
         
 
                                      ORDER
 
         
 
              THEREFORE, it  is  ordered:
 
         
 
              That claimant take nothing from these proceedings.
 
         
 
              That claimant pay costs of the arbitration proceeding and 
 
         the costs on appeal including the transcription of the hearing 
 
         proceeding.
 
         
 
              Signed and filed this 27th day of August, 1987.
 

 
         
 
         
 
         
 
         BAKER V. FLOYD VALLEY PACKING
 
         Page   6
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
                                                  DAVID E. LINQUIST
 
                                                  INDUSTRIAL COMMISSIONER
 
         
 
         
 
         
 
         
 
         Copies To:
 
         
 
         Mr. Harry H. Smith
 
         Attorney at Law
 
         632-640 Badgerow Building
 
         P.O. Box 1194
 
         Sioux City, Iowa 51102
 
         
 
         Mr. Barry Moranville
 
         Attorney at Law
 
         974 73rd St., Suite 16
 
         Des Moines, Iowa 50312
 
         
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                                  1402.20 1402.30
 
                                                  Filed August 27, 1987
 
                                                  DAVID E. LINQUIST
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         ROGER L. BAKER,
 
         
 
              Claimant,
 
         
 
         VS.
 
                                                  File No. 764491
 
         FLOYD VALLEY PACKING,
 
                                                    A P P E A L
 
              Employer,
 
                                                  D E C I S I 0 N
 
         and
 
         
 
         ARGONAUT INSURANCE CO.,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         1402.20 - 1402.30
 
         
 
              Claimant did not establish an injury arising out of and in 
 
         the course of employment on January 10, 1983.  While one 
 
         physician's report form prepared by one treating physician 
 
         indicated that claimant sustained a left shoulder injury at work, 
 
         the other evidence presented revealed no such injury.  Affirmed.
 
 
 
         
 
 
        
 
 
 
 
 
                       BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
        
 
        
 
        EDWARD F. BERTLSHOFER,
 
        
 
           Claimant,                    File Nos. 764496
 
                                                   742752
 
        vs.
 
        
 
        FRUEHAUF CORPORATION,            A P P E A L
 
        
 
           Employer,                  D E C I S I O N
 
        
 
        and
 
        
 
        CNA INSURANCE COMPANY,
 
        
 
           Insurance Carrier,
 
        
 
        and
 
        
 
        SECOND INJURY FUND OF IOWA,
 
        
 
           Defendants.
 
        
 
        
 
                                 STATEMENT OF THE CASE
 
        
 
        Defendant employer/insurance carrier appeal from an arbitration 
 
        decision awarding healing period and permanent partial disability 
 
        benefits.
 
        
 
        The record on appeal consists of the transcript of the 
 
        arbitration proceeding; joint exhibits 1 through 50; defendants' 
 
        exhibits A and B; and Second Injury Fund of Iowa's exhibit 1. 
 
        Both defendant employer/insurance carrier (hereinafter 
 
        defendants) and claimant filed briefs.
 
        
 
                                      ISSUE
 
        
 
        Defendants state the following issue on appeal:
 
        
 
        The deputy erred in finding as a fact that claimant's 
 
        intermittent healing period included the period from October 13, 
 
        1984 to July 1, 1985, a period of general plant layoff, and 
 
        further erred in finding as a conclusion of law that claimant's 
 
        healing period included those dates.
 
        
 
                                 REVIEW OF THE EVIDENCE
 
        
 
        The arbitration decision adequately and accurately reflects
 
        
 
        BERTLSHOFER V. FRUEHAUF CORPORATION
 
        Page 2
 
        
 
        
 
        the pertinent evidence and it will not be totally set forth 
 
        herein.
 
        
 
        Briefly stated, claimant was 39 years old at the time of hearing. 
 
        Claimant worked as an assembler for defendant Fruehauf 
 
        Corporation. On August 19, 1983, claimant cut his left forearm on 
 
        a metal band. Claimant's arm was treated by Donald MacKenzie, 
 

 
        
 
 
 
 
 
        M.D., and claimant was off work from August 20, 1983 to September 
 
        25, 1983, or five weeks and four days, before returning to light 
 
        duty. However, after working for two days (September 26 and 27, 
 
        1983) claimant began to experience swelling, discoloration, and 
 
        numbness with his left arm. Dr. MacRenzie advised claimant he had 
 
        returned to work prematurely, and operated to release claimant's 
 
        ulnar nerve in November 1983. Claimant was off work from 
 
        September 28, 1983 through January 22, 1984, or 16 weeks and five 
 
        days.
 
        
 
        Claimant then worked from January 23, 1984 to February 9, 1984. 
 
        Claimant was off work due to sickness unrelated to his injury 
 
        from February 10, 1984 to February 14, 1984. Claimant worked 
 
        again from February 15, 1984 to April 1, 1984.
 
        
 
        Claimant was then referred to Barbara J. Campbell, M.D., and 
 
        William F. Blair, M.D., of the University of Iowa Hospitals and 
 
        Clinics. Dr . Campbell examined claimant on March 7, 1984, and 
 
        also examined the records and x-rays for claimant's left arm 
 
        injury. Dr. Campbell concluded that claimant developed a neuroma 
 
        in some of the cutaneous nerves near the laceration and that 
 
        further ulnar release was necessary. Surgery was again performed 
 
        on April 2, 1984. Claimant missed work from April 2, 1984 to May 
 
        20, 1984, ( seven weeks ) .
 
        
 
        Dr. Campbell also diagnosed chronic tendonitis of the right arm. 
 
        Dr. Campbell opined that claimant's right arm problem was a 
 
        result of claimant's work, and that it was possible that the 
 
        right arm problem developed from the over compensation for the 
 
        left arm. Dr. Campbell also opined that claimant had a permanent 
 
        impairment to the left arm, but a rating could not yet be given.
 
        
 
        Claimant worked from May 21, 1984 to June 12, 1984. He was off 
 
        work from June 13, 1984 to July 1, 1984, or two weeks and five 
 
        days as a result of problems with his arms.
 
        
 
        Claimant was examined by Dr. Campbell on July 18, 1984. Dr . 
 
        Campbell later denied that claimant had reached maximum recovery 
 
        at the time of this examination.
 
        
 
        Claimant was released to return to light duty work on July 2, 
 
        1984 and worked until August 20, 1984. Claimant was then off 
 
        work again from August 21, 1984 until September 9, 1984, or two 
 
        weeks and six days. Claimant worked from September 10, 1984 until 
 
        October 12, 1984.
 
        
 
        BERTLSHOFER V. FRUEHAUF CORPORATION
 
        Page 3
 
        
 
        
 
        Claimant alleged that he suffered an injury to his right arm on 
 
        September 26, 1984, due to overuse of the arm to compensate for 
 
        the injury to the left arm.
 
        
 
        On December 19, 1984, Dr. Campbell stated: "In response to your 
 
        letter of October 17, we feel that it is too early to give a 
 
        permanent impairment rating on this patient. He probably will not 
 
        reach maximum medical improvement for at least one year 
 
        post-operatively, which will be May, 1985." (Second Injury Fund 
 
        Exhibit 1, page 38)
 
        
 
        Dr. Campbell also stated an inability to opine whether claimant's 
 
        right arm was permanently impaired. Claimant was released by Dr. 
 
        Campbell for light duty work on May 2, 1984.
 
        
 
        Claimant was laid off work as part of a general economic layoff 
 

 
        
 
 
 
 
 
        from October 13, 1984 through July 1, 1985. Claimant returned to 
 
        work July 2, 1985 with a restriction of his left arm. Claimant 
 
        was assigned to do paneling work which required the use of both 
 
        his arms. Claimant testified that he relied more on his right arm 
 
        for this work because of the prior problems with his left arm. 
 
        Claimant began to experience problems with his right arm and was 
 
        referred to the company doctor, Miles Archibald, M.D. Claimant 
 
        did not miss any time off work after visiting Dr. Archibald.
 
        
 
        Claimant was also seen by his personal physician, J. S. Kaboli, 
 
        M.D., on September 25, 1985. Dr. Kaboli treated claimant for his 
 
        right arm injury only, and diagnosed tennis elbow due to abuse 
 
        and overuse of the hand. Dr. Kaboli stated that claimant's 
 
        problem would go away if the arm were rested and treated with 
 
        medication, but that heavy labor would aggravate the condition. 
 
        Dr. Kaboli stated he could not assign a rating of impairment to 
 
        claimant's right arm.
 
        
 
        William F. Blair, M.D., in a letter dated July 18, 1985,requested 
 
        the opportunity to examine claimant's range of motion and other 
 
        factors before giving a rating of permanent impairment for the 
 
        left arm.
 
        
 
        In a letter dated August 14, 1985, Dr. Blair stated:
 
        
 
        In your letter of July 8, 1985, you had requested an impairment 
 
        rating. At this time, Mr. Bertlshofer has reached his maximum 
 
        medical recovery. A copy of our last clinic note, obtained July 
 
        30, 1985 is enclosed. Our impression states that Mr. Bertlshofer 
 
        has a chronic pain syndrome, involving the left upper extremity. 
 
        This pain syndrome has 3 components:
 
        
 
        (l) Mild medial epicondylitis,
 
        (2) Post cubial tunnel syndrome neuropathy,
 
        (3) A neuroma of the medial cutaneous nerve.
 
        
 
        BERTLSHOFER V. FRUEHAUF CORPORATION
 
        Page 4
 
        
 
        
 
        These problems are equivalent to an impairment of the upper 
 
        extremity as follows:
 
        
 
        Medial epicondylitis 2%, ulnar neuropathy 5%, neuroma 3%.
 
        
 
        These impairment [sic] total a 10% impairment of the left upper 
 
        extremity.
 
        
 
        I hope these comments are helpful to you in the care of your 
 
        client.
 
        
 
        (SIF Ex. 1, p. 40)
 
        
 
        On September 18, 1985, Dr. Blair opined that claimant did not 
 
        have any permanent impairment of his right arm. (SIF EX. 1, p. 
 
        41)
 
        
 
        Claimant's last day of employment with defendant Fruehauf was 
 
        September 29, 1985. Claimant quit when he was told defendant 
 
        Fruehauf had no light duty work for him.
 
        
 
        On January 7, 1986, claimant was seen by Dr. MacKenzie, and it 
 
        was found that both his right and left arms were stable.
 
        
 
         Claimant's absences from work were summarized in exhibits 50 
 
        as follows:
 

 
        
 
 
 
 
 
        
 
        8/19/83 Accident
 
        Off work 8/20/83 through 9/25/83 5 weeks, 4 days
 
        Worked 9/26/83 and 9/27/83
 
        Off work 9/28/83 through 1/22/84 16 weeks, 5 days
 
        Worked 1/23/84 through 2/09/84
 
        Off work 2/10/84 through 2/14/84 (sick, not accident
 
        connected)
 
        Worked 2/15/84 through 4/01/84
 
        Off work 4/02/84 though 5/20/84 7 weeks
 
        Worked 5/21/84 through 6/12/84
 
        Off work 6/13/84 through 7/01/84 2 weeks, 5 days
 
        Worked 7/02/84 through 8/20/84
 
        Off work 8/21/84 through 9/09/84 2 weeks, 6 days
 
        Worked 9/10/84 through 10/12/84
 
        General layoff 10/13/84 through 7/01/85
 
        Worked 7/02/85 through 9/29/85
 
        Off work 10/01/85 through 7/25/86 9 months, 25 days
 
        
 
        
 
        (Jt. Ex. 50)
 
        
 
        BERTLSHOFER V. FRUEHAUF CORPORATION
 
        Page 5
 
        
 
        
 
        The parties stipulated that claimant's injury of August 19, 1983 
 
        arose out of and in the course of his employment; that claimant 
 
        was paid 34 weeks of healing period benefits, and weekly benefits 
 
        for 10 percent permanent partial disability for the left arm; 
 
        that claimant's rate was $229.34; that claimant's time off was 
 
        accurately reflected in exhibit 50; and that all medical expenses 
 
        were paid by the employer and were fair and reasonable.
 
        
 
                                 APPLICABLE LAW
 
        
 
        Iowa Code section 85.34(1) states:
 
        
 
        If an employee has suffered a personal injury causing permanent 
 
        partial disability for which compensation is payable as provided 
 
        in subsection 2 of this section, the employer shall pay to the 
 
        employee compensation for a healing period, as provided in 
 
        section 85.37, beginning on the date of injury, and until the 
 
        employee has returned to work or it is medically indicated that 
 
        significant improvement from the injury is not anticipated or 
 
        until the employee is medically capable of returning to 
 
        employment substantially similar to the employment in which the 
 
        employee was engaged at the time of injury, whichever occurs 
 
        first.
 
        
 
        Healing period benefits may be characterized as that period 
 
        during which there is a reasonable expectation of improvement of 
 
        a disabling condition, and ends when maximum medical improvement 
 
        is reached. Armstrong Tire & Rubber Co. v. Kubli, 312 N.W.2d 60 
 
        (Iowa App. 1981).
 
        
 
        It is only at the point at which a disability can be determined 
 
        that a workers' compensation disability award can be made. Until 
 
        such time, healing period benefits are to be awarded the insured 
 
        worker. Thomas v. William Knudson & Son, Inc., 349 N.W.2d 124 
 
        (Iowa App. 1984
 
        
 
        A healing period may be intermittent, and may be interrupted by a 
 
        return to work followed by another absence from work due to the 
 
        disability. Willis v. Lehigh Portland Cement Company, I 
 
        Industrial Commissioner Decisions 485 (1985).
 

 
        
 
 
 
 
 
        
 
        A return to light duty work does not prohibit the reinstitution 
 
        of the healing period if the employee is again to compelled to 
 
        leave work because of his injury. Steele v. Holtze Construction 
 
        Co., Review-reopening Decision filed June 27, 1986.
 
        
 
                                      ANALYSIS
 
        
 
        The sole question on appeal is whether claimant's healing
 
        
 
        BERTLSHOFER V. FRUEHAUF CORPORATION
 
        Page 6
 
        
 
        
 
        period should include the period from October 13, 1984 through 
 
        July 1, 1985, the period during which claimant was laid off. 
 
        Section 85.34(1), of the Code, states that claimant's healing 
 
        period commences with the date of injury and continues until the 
 
        earliest of three occurrences.
 
        
 
        The first occurrence contemplated by section 85.34(1) is a return 
 
        to work. Claimant did attempt to return to work several times. On 
 
        his first attempt, claimant discovered after two days that he had 
 
        tried to do so prematurely. On the other attempts, claimant was 
 
        only released for light duty work. Claimant's attempts to return 
 
        to work resulted in further pain and discomfort and more time off 
 
        work on each occasion.
 
        
 
        The second occurrence contemplated by section 85.34(1) is a 
 
        determination that the employee is medically capable of returning 
 
        to employment substantially similar to the employment in which 
 
        the employee was engaged at the time of the injury. There is no 
 
        indication in the record that claimant is capable of returning to 
 
        the same or substantially similar employment. Instead, he now 
 
        suffers a permanent impairment rating of 10 percent of the left 
 
        upper extremity, a lifting restriction, and there is testimony 
 
        that he is incapable of engaging in the type of manual labor he 
 
        performed before the injury of August 19, 1983. Claimant is 
 
        restricted to light duty work. Claimant is not medically capable 
 
        of returning to employment substantially similar to the 
 
        employment in which he was engaged at the time of the injury of 
 
        August 19, 1983.
 
        
 
        The third occurrence contemplated by section 85.34(1) is when it 
 
        is medically indicated that significant improvement from the 
 
        injury is not anticipated. When asked if claimant had reached 
 
        maximum recovery at the time of the July 18, 1984 examination, 
 
        Dr. Campbell denied that claimant had reached maximum recovery at 
 
        that point. In addition, Dr. Campbell opined that claimant would 
 
        not reach maximum recovery until one year from his surgery, or 
 
        May 1985. A rating of impairment was not given until August 14, 
 
        1985. On that date, Dr. Blair indicated that "at this time, Mr. 
 
        Bertlshofer has reached his maximum medical recovery..." (SIF Ex. 
 
        1, p. 40) This letter referred to claimant's last examination, 
 
        which occurred on July 30, 1985.
 
        
 
        Therefore, the period from October 13, 1984 through July 1, 1985, 
 
        the period of time in which claimant was laid off work, is a part 
 
        of claimant's healing period.
 
        
 
        As only the extent of claimant's healing period has been raised 
 
        as an issue on appeal, the remainder of the arbitration decision 
 
        will be affirmed.
 
        
 
        BERTLSHOFER V. FRUEHAUF CORPORATION Page 7
 
        
 

 
        
 
 
 
 
 
        
 
                                 FINDINGS OF FACT
 
        
 
        
 
        1. On August 19, 1983 claimant suffered an injury to his left arm 
 
        while at work.
 
        
 
        2. As a result of his injury, claimant suffered a permanent 
 
        partial impairment to the left arm equal to 10 percent.
 
        
 
        3. As a result of his injury, claimant underwent an intermittent 
 
        healing period over the following periods of time:
 
        
 
        August 20 through September 25, 1983     5 weeks, 4 days
 
        
 
        September 28 through January 22, 1984   16 weeks, 5 days
 
        
 
        April 2 through May 20, 1984             7 weeks
 
        
 
        June 13 through July 1, 1984             2 weeks, 5 days
 
        
 
        August 21 through September 9, 1984      2 weeks, 6 days
 
        
 
        October 13, 1984 through July 1, 1985   37 weeks, 3 days
 
        
 
        TOTAL                                   72 weeks, 2 days
 
        
 
        4. Claimant achieved maximum medical recovery from his left arm 
 
        injury on July 31, 1985; he returned to work on July 2, 1985.
 
        
 
        5. In September 1983 claimant began to experience pain in his 
 
        right arm.
 
        
 
        6. The pain in claimant's right arm was the result of repetitive 
 
        or cumulative trauma at work.
 
        
 
        7. Claimant gave notice pursuant to section 85.23, The Code, of 
 
        his injury to- his right arm on or about July 27, 1984.
 
        
 
        8. Claimant has missed no time off work because of the injury to 
 
        his right arm.
 
        
 
        9. All medical expenses concerning both of claimant's arms have 
 
        been paid.
 
        
 
        10. Claimant has suffered no permanent impairment to his right 
 
        arm.
 
        
 
        11. Claimant's rate of compensation is $229.34.
 
        
 
        12. Claimant has been paid 34 weeks of healing period and 25 
 
        weeks of permanent partial disability benefits.
 
        
 
                                 CONCLUSIONS OF LAW
 
                                                
 
        Claimant has proven by a preponderance of the evidence that
 
        
 
        BERTLSHOFER V. FRUEHAUF CORPORATION
 
        Page 8
 
        
 
        
 
        on August 19, 1983 he received an injury to his left arm arising 
 
        out of and in the course of his employment.
 
        
 
        Claimant has proven by a preponderance of the evidence that there 
 
        is a causal relationship between his injury and the disability 
 

 
        
 
 
 
 
 
        upon which this claim is based.
 
        
 
        Claimant has proven by a preponderance of the evidence that as a 
 
        result of his injury he is entitled to 72.286 weeks of healing 
 
        period benefits and 25 week of permanent partial disability 
 
        benefits.
 
        
 
        Claimant has proven by a preponderance of the evidence that 
 
        commencing about September 1983 he began to develop a cumulative 
 
        injury to his right arm which arose out of and in the course of 
 
        his employment.
 
        
 
        Defendants have proven by a preponderance of the evidence that 
 
        claimant failed to give notice of his injury to his right arm 
 
        until July 27, 1984 and thus claimant is barred from recovering 
 
        for injuries to his right arm prior to April 30, 1984.
 
        
 
        Claimant has failed to prove by a preponderance of the evidence 
 
        that he suffered temporary total or permanent partial disability 
 
        to his right arm.
 
        
 
        Claimant has failed to prove by a preponderance of the evidence 
 
        that he is entitled to recover benefits against the second 
 
        Injury Fund of Iowa.
 
        
 
        WHEREFORE, the decision of the deputy is affirmed.
 
        
 
                                                
 
                                      ORDER
 
        THEREFORE, it is ordered:
 
        
 
        That as a result of the injury of August 19, 1983, defendants 
 
        shall pay unto claimant additional healing period benefits equal 
 
        to thirty-eight point two eight six (38.286) weeks at the rate of 
 
        two hundred twenty-nine and 34/100 dollars ($229.34). All accrued 
 
        payments are to be made in a lump sum together with statutory 
 
        interest.
 
        
 
        That claimant take nothing as a result of his injury to his right 
 
        arm.
 
        
 
        That claimant take nothing from the second injury fund of Iowa.
 
        
 
        That the costs of this action are taxed to the employer.
 
        
 
        That the employer shall file a claim activity report in thirty 
 
        (30) days.
 
        
 
        BERTLSHOFER V. FRUEHAUF CORPORATION
 
        Page 9
 
        
 
        
 
        Signed and filed this 14th day of April, 1988.
 
        
 
        
 
        
 
                                           DAVID E. LINQUIST
 
                                         INDUSTRIAL COMMISSIONER
 
        
 
        
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         RANDY A. CLARK,                            File No. 764542
 
         
 
              Claimant,                               A P P E A L
 
         
 
         vs.                                        D E C I S I O N
 
         
 
         WILSON FOODS CORPORATION,                     F I L E D
 
         
 
              Employer,                               FEB 28 1988
 
              Insurance Carrier,
 
              Defendant.                    IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
                             STATEMENT OF THE CASE
 
         
 
              Defendant appeals from an arbitration decision awarding 
 
         permanent partial disability benefits based upon a 20 percent 
 
         industrial disability.
 
         
 
              The record on appeal consists of the transcript of the 
 
         arbitration hearing, claimant's exhibits 1 through 3, and 
 
         defendant's exhibits A through C.  Only defendant has filed a 
 
         brief on appeal.
 
         
 
                                    ISSUES
 
         
 
              Defendant states the following issues on appeal:
 
         
 
                   1.  Claimant has failed to prove by a preponderance of 
 
              evidence from competent medical testimony that his back 
 
              problem "arose out of" a work "injury".
 
         
 
                   2.  The Arbitration Decision, without explanation or 
 
              basis, erroneously favors the medical report of the 
 
              evaluating physician over the opinions of the treating 
 
              physician.
 
         
 
                   3.  The Arbitration Decision erroneously finds the 
 
              Claimant's injury to extend beyond the right lower 
 
              extremity.
 
         
 
                             REVIEW OF THE EVIDENCE
 
         
 
              The arbitration decision adequately and accurately reflects 
 
         the pertinent evidence and it will not be totally reiterated 
 
         herein.
 
         
 
              On May 1, 1984, while carrying a roll of film weighing 
 
         90-100 pounds, claimant slipped and twisted his body injuring his 
 
         right knee.  Claimant stated that he went to the company nurse 
 
         who sent him immediately to the hospital.  Claimant indicated 
 
         that he was examined at the hospital and was placed in a splint 
 
                                                
 
                                                         
 
         and sent home the same night.
 
         
 
              Claimant was then treated by L.C. Strathman, M.D., on May 9, 
 
         1984.  Dr. Strathman states in his examination report:
 
         
 
                   EXAMINATION:  Reveals mild puffiness about the knee, no 
 
              discreet effusion.  He states it was more swollen than this 
 
              earlier.  The collaterals and cruciates seem stable.  He 
 
              lacks a few degrees of extension and a few degrees of 
 
              flexion compared to the other side.  Tenderness is primarily 
 
              medially.  McMurray's test reveals no click.
 
         
 
                   X-ray shows this very large knee.  The joint is well 
 
              preserved.  I don't see any evidence of fracture or 
 
              dislocation.  Patellar view shows wide lateral facet but 
 
              there does not seem to be impingement.
 
         
 
                   His findings are more consistent with acute strain.  
 
              The possibility of internal derangement has to be considered 
 
              but I don't find enough change today to warrant further 
 
              studies and particularly invasive studies.
 
         
 
                   We'll have him start quad exercises, range of motion, 
 
              gradually wean off the immobilizer and we should check him 
 
              in a couple weeks.
 
         
 
         (Defendant's Exhibit A, unnumbered page 4)
 
         
 
              Dr. Strathman released claimant on May 10, 1984 for limited 
 
         work wearing the knee immobilizer.  See defendant's exhibit A, 
 
         page 4.  Claimant returned to Dr. Strathman on May 23, 1984, and 
 
         Dr. Strathman noted that claimant was experiencing continued 
 
         soreness but that claimant retained full range of motion.  See 
 
         defendant's exhibit A, page 5.  Dr. Strathman examined claimant 
 
         on June 25, 1984, and he opined:
 
         
 
                   6-25-84:  This lad's right knee feels better but he is 
 
              aware of a click in the knee.  Today on acute flexion a 
 
              palpable click is noted at the joint line medially.  This is 
 
              not particularly painful and there is no effusion.
 
         
 
                   I feel this gentleman has a torn medial meniscus and 
 
              when symptoms are bothering him sufficiently that he wishes 
 
              to be rid of it we should proceed with arthroscopy and 
 
              probably removal of this medial meniscus.
 
         
 
         (Def. Ex. A, p.  5)
 
         
 
              After his August 16, 1984 examination, Dr. Strathman 
 
         scheduled claimant for arthroscopic surgery.  In a December 9, 
 
         1985 letter, Dr. Strathman opines:
 
         
 
                   This gentleman was seen and treated by the writer from 
 
              5-9-84 through 7-10-85.  His initial history was of slipping 
 
              while at work and injuring his right knee.
 
                                                
 
                                                         
 
         
 
                   He subsequently showed evidence of a click. 
 
              Arthroscopic exam was carried out and he had a torn medial 
 
              meniscus which was subsequently removed.  He went on to 
 
              satisfactory healing.  During this time that we saw him 
 
              there were no complaints other than in respect to this 
 
              right knee.  He was rated as an estimated permanent partial 
 
              disability of 10% of the affected right lower extremity.
 
         
 
         (Def. Ex. A, p.  3)
 
         
 
              Claimant stated that the injury to his right leg has caused 
 
         him to favor his left leg.  Claimant opined that his left leg is 
 
         getting bigger.  Claimant also stated that he has been having 
 
         problems with his lower mid back.  Claimant opined that these 
 
         back problems are related to his right knee injury.
 
         
 
              Claimant was examined by John R. Walker, M.D., with regard 
 
         to claimant's back problem on October 16, 1985.  Dr. Walker 
 
         opines:
 
         
 
                   OPINION:  This patient has definite permanent 
 
              impairment of the right lower extremity.  It appears to be 
 
              affecting his low back as well and I think that he may well 
 
              have a little impairment of this as well.  As far as the 
 
              right, lower extremity is concerned, I believe that his 
 
              permanent, partial impairment is 14% of the right, lower 
 
              extremity and this is based    on all of the findings, plus 
 
              the cruciate laxity.  This translates in to 6% of the whole 
 
              man.  I believe that he has suffered another 2% permanent, 
 
              partial disability because of the low back lesion.  It does 
 
              seem reasonable that these complaints are logical and valid.  
 
              I have queried him at great extent and he tells me that he 
 
              has never had any back ache or back problems before this and 
 
              has never been to a chiropractor or osteopath and he has 
 
              never been to a doctor except for a Wilson Foods examination 
 
              by the company doctor. All-in-all this should then total up 
 
              to 8% impairment of the whole man.
 
         
 
         (Cl. Ex. 2)
 
         
 
              Claimant was examined by Dr. Strathman on July 18, 1986 with 
 
         regard to claimant's back problems.  Dr. Strathman states his 
 
         impression:
 
         
 
                   IMPRESSION:  Acute and chronic low back strain.
 
         
 
                   This gentleman should be working with a flexion 
 
              exercise program, should be wearing a garment for awhile, at 
 
              least for symptomatic relief.  I think he's going to have to 
 
              get some weight off and get on a conditioning program to 
 
              keep this from becoming more of a chronic problem.  There's 
 
              no sign of radicular pain at this time and myelography or 
 
              scanning does not seem indicated.  I'll check him in a 
 
              month.
 
                                                
 
                                                         
 
         
 
         (Def. Ex. A, p. 2)
 
         
 
              With regard to whether the back problems are related to 
 
         claimant's knee injury, Dr. Strathman opines:  "I do not feel 
 
         that the injury to his knee was contributory to his back 
 
         complaints." (Def. Ex. A, p. 2)
 
         
 
              Claimant saw Dr. Walker again on August 18, 1986.  Dr. 
 
         Walker opines after that examination:
 
         
 
                   OPINION:  This patient still has the same problems that 
 
              he had, plus a coccydynia which is painful.  I cannot 
 
              account for the coccyx pain as far as his original injury is 
 
              concerned.  It is difficult to see why he is having it other 
 
              than this may have just come on in the course of events over 
 
              these many months.  As far as his permanent impairment is 
 
              concerned, I would make no change.  I believe that he has a 
 
              permanent, partial impairment of the right knee amounting to 
 
              14% of the right, lower extremity and as far as the low back 
 
              is concerned, he has a sprain of L-4, L-5 with some 
 
              instability which is a chronic situation which I still 
 
              believe amounts to a 2% permanent, partial impairment of the 
 
              whole man.  At the present time I really have no further 
 
              suggestions for treatment except to do quadriceps exercises 
 
     
 
                             
 
                                                         
 
              which I have indicated to him and to use heat on the low 
 
              back on a PRN basis and to turn himself in to the nursing 
 
              station at work if this back ache gets worse.  I think that 
 
              the back support is a good idea and he should wear it on a 
 
              PRN basis. Probably he should be put on a back exercise 
 
              program which I will leave to Dr. Strathman, however, today 
 
              we did show him the quadriceps exercises because apparently 
 
              he has not been doing them and I think they might benefit 
 
              his right knee.  I would be very happy to see this man back 
 
              again if it is indicated.
 
         
 
         (Cl. Ex. 1)
 
         
 
              Claimant testified that his knee still bothers him but he 
 
         opined that it is improving.  Claimant stated that lifting 
 
         bothers his knee and back.  Claimant related that he lifts 
 
         between 23,000 and 25,000 pounds per night in his current job.  
 
         Claimant opined that his back pain affects his ability to work 
 
         overtime.
 
         
 
              Claimant testified that he is 27 years old and that he 
 
         dropped out of high school in the eleventh grade.  Claimant has 
 
         been employed by defendant since he was 19 years old.
 
         
 
              At the hearing the parties stipulated that claimant was off 
 
         work from May 2, 1984 through May 9, 1984 and from August 16, 
 
         1984 through October 20, 1984.
 
         
 
                                  APPLICABLE LAW
 
         
 
              The citations of law in the arbitration decision are 
 
         appropriate to the issues and evidence.
 
         
 
                                    ANALYSIS
 
         
 
              Defendant argues that claimant's injury does not extend to 
 
         the body as a whole.  The deputy analyzed this issue as follows:
 
         
 
              If a claimant contends he or she has sustained industrial 
 
              disability (loss of earning capacity), he or she has the 
 
              burden of proving that his or her injury resulted in an 
 
              ailment that extends beyond the scheduled loss.  Kellogg v. 
 
              Shute and Lewis Coal Co., 256 Iowa 1257, 130 N.W.2d 667 
 
              (1964).  Claimant herein has met his burden in this regard. 
 
              Claimant's testimony combined with Dr. Walker's persuasive 
 
              medical testimony establishes by a preponderance of the 
 
              evidence a causal link between claimant's back impairment 
 
              and the injury of May 1, 1984.  In this regard, it is noted 
 
              that a treating physician's testimony need not be given 
 
              greater weight as a matter of law than that of a physician 
 
              who later examines a workers' compensation claimant in 
 
              anticipation of litigations.  Rockwell Graphic Systems, Inc. 
 
              v. Prince, 366 N.W.2d 187, 192 (Iowa 1985).  Also, the 
 
              record in this case establishes that claimant did not have 
 
              any back problems prior to his injury of May 1, 1984.  In 
 
                                                
 
                                                         
 
                   sum, I am persuaded that claimant's back problem resulted 
 
              from the trauma to his right knee and claimant 
 
              "compensating" for this right knee injury.  The fact that 
 
              there is not substantial impairment to the back (i.e., 
 
              greater than 2% of the whole body) does mean that this is a 
 
              scheduled member case.
 
         
 
         (Arb Dec., p. 7)
 
         
 
              Claimant was examined and treated by Dr. Strathman on at 
 
         least thirteen occasions before he reported to anyone that he was 
 
         having back problems.  He finally reported that he was 
 
         experiencing back problem to Dr. Walker on October 16, 1985.  At 
 
         that time, Dr. Walker opines that the impairment of claimant's 
 
         right lower extremity "appears to be affecting his back as well" 
 
         and Dr. Walker assigns a two percent body as a whole rating based 
 
         on impairment of the back, but Dr. Walker does not suggest any 
 
         treatment for the back impairment nor does he place any 
 
         restrictions on claimant.  Claimant's next medical examination 
 
         was on July 18, 1986 by Dr. Strathman.  Dr. Strathman treated 
 
         claimant's back problem with exercise program and with a back 
 
         brace, but Dr. Strathman opines that claimant's back problems are 
 
         not related to his right knee injury.  Claimant returned to Dr. 
 
         Walker on August 18, 1986.  At that time, Dr. Walker states that 
 
         claimant had the same problems plus a painful coccydynia which 
 
         Dr. Walker opines he cannot account for as far as the original 
 
         injury is concerned.  See claimant's exhibit 1.  Dr. Walker does 
 
         not change his impairment ratings and he only suggests that 
 
         claimant use heat on his back along with the treatment prescribed 
 
         by Dr. Strathman.
 
         
 
              The following testimony by claimant concerning the onset of 
 
         his back problems is interesting.
 
         
 
              Q.  Randy, when did your back first start bothering you?
 
         
 
              A.  Well, when I went to see Dr. Walker the first time, I 
 
              told him about it.
 
         
 
              Q.  Well, when did you first feel it though?  Not when you 
 
              first sought treatment,
 
         
 
              A.  Well, it was a little ways after I had surgery on my 
 
              knee.  And I have been back to work for a while working on 
 
              it and after a while it started bothering me, but it's been 
 
              increasing more and more this last year.
 
         
 
         (Tr. p. 54)
 
         
 
              The greater weight of evidence does not support the deputy's 
 
         finding that claimant's back problems are related to his work 
 
         injury.  The undersigned gives more weight to the opinion of Dr. 
 
         Strathman who was claimant's treating physician and saw claimant 
 
         over a greater length of time.  Claimant's failure to report any 
 
         back complaints until October 16, 1985 also supports such a 
 
                                                
 
                                                         
 
         conclusion.
 
         
 
              Claimant is entitled to benefits only to the extent of the 
 
         impairment of his right lower extremity.  Dr. Strathman opines 
 
         that claimant suffers a 10 percent impairment of the right lower 
 
         extremity.  Dr. Walker opines that claimant suffers a 14 percent 
 
         impairment of the right lower extremity.  Dr. Strathman has 
 
         observed claimant's knee injury over a substantial period of 
 
         time. The greater weight of evidence establishes that claimant 
 
         suffers a 10 percent permanent partial impairment of the right 
 
         lower extremity.
 
         
 
                               FINDINGS OF FACT
 
         
 
              1.  On May 1, 1984, claimant injured his right knee while 
 
         working for defendant.
 
         
 
              2.  Claimant's back problems are not causally connected to 
 
         his injury of May 1, 1984.
 
         
 
              3.   As a result of the May 1, 1984 work injury, claimant 
 
         suffers a 10 percent permanent partial impairment of the right 
 
         lower extremity.
 
         
 
              4.  Claimant returned to work on October 21, 1984.
 
         
 
              5.   Claimant's rate of weekly compensation is stipulated to 
 
         be $206.09.
 
         
 
                                CONCLUSIONS OF LAW
 
         
 
              Claimant has established that he sustained an injury arising 
 
         out of and in the course of employment on May 1, 1984.
 
         
 
              Claimant is entitled to permanent partial disability 
 
         benefits based on a 10 percent impairment of the right lower 
 
         extremity.
 
         
 
              WHEREFORE, the decision of the deputy is affirmed and 
 
         modified.
 
         
 
                                      ORDER
 
         
 
              THEREFORE, it is ordered:
 
         
 
              That defendant pay claimant twenty-two (22) weeks of 
 
         permanent partial disability benefits at the rate of two hundred 
 
         six and 09/100 dollars ($206.09) per week commencing on October 
 
         21, 1984.
 
         
 
              That defendant pay accrued amounts in a lump sum together 
 
         with interest pursuant to Iowa Code section 85.30.
 
         
 
              That defendant be given credit for benefits already paid to 
 
         claimant.
 
                                                
 
                                                         
 
         
 
              That defendant pay the costs of this proceeding pursuant to 
 
         Division of Industrial Services Rule 343-4.33.
 
         
 
              That defendant file claim activity reports as requested by 
 
         this agency pursuant to Division of Industrial Services Rule 
 
         343-3.1.
 
         
 
         
 
              Signed and filed this 22nd day of February, 1988.
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
                                               DAVID E. LINQUIST
 
                                            INDUSTRIAL COMMISSIONER
 
         
 
         Copies To:
 
         
 
         Mr. Robert F. Wilson
 
         Attorney at Law
 
         810 Dows Building
 
         Cedar Rapids, Iowa  52401
 
         
 
         Mr. John Bickel
 
         Attorney at Law
 
         P.O. Box 2107
 
         5th Floor, MNB Building
 
         Cedar Rapids, Iowa  52401
 
 
 
         
 
 
 
 
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                                 1402.4 - 1803.1
 
                                                 Filed February 22, 1988
 
                                                 DAVID E. LINQUIST
 
         
 
                  BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         RANDY A. CLARK,
 
         
 
              Claimant,                              File No. 764542
 
         
 
         vs.
 
                                                      A P P E A L
 
         WILSON FOODS CORPORATION,
 
                                                     D E C I S I 0 N
 
              Employer,
 
              Insurance Carrier,
 
              Defendant.
 
         
 
         
 
         1402.40 - 1803.1
 
         
 
              Claimant's contention that his right knee injury had caused 
 
         impairment to his back was rejected.  The opinion of the treating 
 
         physician was given more weight in this regard.  Claimant's 
 
         failure to report any back complaints until a year after his knee 
 
         injury also supported a finding of no causal connection.