5-1108.50; 5-1401;
 
                                            5-1402.60; 5-1403.10;
 
                                            5-1403.20; 5-2501; 5-2700
 
                                            Filed March 21, 1990
 
                                            WALTER.R. McMANUS, JR.
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         BELINDA LAFRANCE,
 
         
 
              Claimant,
 
                                                 File No. 775090
 
         VS.
 
                                                 M E D I C A L
 
         GLENWOOD STATE HOSPITAL SCHOOL,
 
                                                 B E N E F I T S
 
              Employer,
 
                                                 D E C I S I 0 N
 
         and
 
         
 
         STATE OF IOWA,
 
         
 
              Insurance Carrier,
 
              Defendant.
 
         
 
         
 
         
 
         5-1108.50; 5-1401; 5-1402.60; 5-1403.10; 5-1403.20; 5-2501;
 
         5-2700
 
         
 
              Claimant and defendant (State of Iowa) made a section 86.13 
 
         settlement leaving the medical open because claimant was having 
 
         trouble at the time of the settlement and further trouble was 
 
         anticipated by claimant.  The physician anticipated more medical 
 
         also.  Claimant moved out of state and incurred a number of 
 
         chiropractic bills without prior written authorization which 
 
         defendant denied.  Defendant not only denied these chiropractic 
 
         bills but refused to designate alternate care even though 
 
         claimant's attorney requested it in writing twice.  Held: 
 
         Defendant's denial of liability and concurrent denial of 
 
         designating an authorized physician constituted a total denial of 
 
         any further liability for medical expenses.  Therefore, claimant 
 
         was entitled to choose her own care limited only by the standards 
 
         of (1) reasonable care (2) casually connected to this injury.  
 
         Defendant was ordered to designate authorized care within 30  
 
         days of the decision or be liable for all care selected by 
 
         claimant that was reasonable and caused by this injury.  The  
 
         medical bills could not be entirely discerned with total 
 
         accuracy.  It  appeared to the deputy that claimant was entitled 
 
         to one-half of the medical expenses sought and defendant was not 
 
         liable for one half of the expenses sought.
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            LARENA GARNJOBST,             :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :         File No. 775099
 
            EXIDE CORPORATION,            :
 
                                          :      A R B I T R A T I O N
 
                 Employer,                :
 
                                          :         D E C I S I O N
 
            and                           :
 
                                          :
 
            WAUSAU INSURANCE CO.,         :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
            
 
                              statement of the case
 
            
 
                 This is a proceeding in arbitration upon the petition 
 
            of claimant, Larena Garnjobst, against her employer, Exide 
 
            Corporation, and its insurance carrier, Wausau Insurance 
 
            Companies, defendants.  The case was heard on June 28, 1990, 
 
            in Burlington, Iowa at the Des Moines County Courthouse.  
 
            The record consists of the testimony of claimant and the 
 
            testimonies of Becky Garnjobst and Hannah Garnjobst, 
 
            daughters of claimant.  Additionally, the record consists of 
 
            joint exhibits 1 and 2 and claimant's list of medical bills 
 
            1-30.
 
            
 
                                      issues
 
            
 
                 The issues to be determined are:  1) whether there is a 
 
            causal relationship between the alleged injury and 
 
            disability;
 
            2) whether claimant is entitled to temporary 
 
            disability/healing period benefits or permanent partial 
 
            disability benefits; and,
 
            3) whether claimant is entitled to medical benefits pursuant 
 
            to section 85.27.
 
            
 
                                 findings of fact
 
            
 
                 The deputy, having heard the testimony and considered 
 
            all the evidence, finds:
 
            
 
                 Claimant was injured on the job on August 29, 1984.  
 
            She was operating a plate wrapper when she felt something 
 
            snap in her right knee.  Claimant fell to the floor.  Later 
 
            she reported her injury to her supervisor.
 
            
 
                 Claimant sought medical treatment from the company 
 
            physician Dr. Carrillo (first name unknown).  He, in turn, 
 
            referred claimant to Duane K. Nelson, M.D.  On October 15, 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            1984, Dr. Nelson performed a partial lateral meniscectomy on 
 
            the right knee.  Claimant progressed for two weeks and then 
 
            an incident occurred while claimant was getting out of bed.  
 
            She encountered problems and was referred to D. Mackenzie, 
 
            M.D., an orthopedic surgeon.
 
            
 
                 Dr. Mackenzie rendered a second opinion.  He opined 
 
            claimant had sustained another tear of the injured meniscus, 
 
            but he was unable to determine whether the tear was an 
 
            extension of the partial meniscectomy procedure or whether a 
 
            portion of the meniscus was also partially damaged at the 
 
            time of the first injury and then subsequently extended.
 
            
 
                 Dr. Mackenzie performed a second arthroscopic surgery 
 
            on February 28, 1985.  He carried out a partial meniscectomy 
 
            of the right lateral meniscus.  Claimant complained of 
 
            swelling and an associate of Dr. MacKenzie's, Glenn 
 
            Gabrielson, M.D., referred her to Iowa City.  A venogram was 
 
            performed which was negative.  Dr. Mackenzie wanted to refer 
 
            claimant to a pain clinic but the insurance carrier 
 
            declined.  The physician opined there was a psychological 
 
            element underlying claimant's condition.
 
            
 
                 Eventually claimant sought treatment at the University 
 
            of Iowa.  From June 3, 1985 onward, claimant involved 
 
            herself in a variety of treatments for her right knee.  
 
            During this period, she sought treatment from John P. 
 
            Albright, M.D., of the Department of Orthopaedic Surgery.  
 
            He served as the primary treating physician who directed 
 
            claimant's treatment.  Initially, conservative treatment was 
 
            prescribed, including physical therapy and nerve blocks 
 
            above the knee.  Claimant continued to experience right 
 
            knee, then low back problems.  Testing was conducted.  Dr. 
 
            Albright found evidence of an old cartilage or meniscus tear 
 
            as well as some thinning of the joint surface.
 
            
 
                 Surgery was scheduled for December 12, 1986.  Dr. 
 
            Albright, in his deposition, described the surgical 
 
            procedure as:
 
            
 
                 A.  Um, she had some -- the mal-tracking of her 
 
                 kneecap with softening of the joint surface 
 
                 underneath the kneecap, which is named medically 
 
                 diagnosed chondromalacia, and she had also more 
 
                 severe chondromalacia in between the thigh and the 
 
                 lower leg, in other words, the true knee joint on 
 
                 both the tibia and the femur, and we actually 
 
                 looked and then we also surgically treated those 
 
                 with drilling of a -- the defects and the -- on 
 
                 both the femoral condyle and on the kneecap and 
 
                 also did what's known as a lateral release where 
 
                 the soft tissues to the side -- outside of the 
 
                 kneecap are split apart to allow the tissues which 
 
                 were too tight to spread apart.
 
            
 
                 Claimant continued to treat at the University of Iowa.  
 
            On April 22, 1987, claimant had a patellar tendon transfer, 
 
            which involved moving the insertion of the tendon on the 
 
            bone of the tibia.  Claimant had follow up care.  Eventually 
 
            she developed overuse syndrome and persistent pain around 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            the kneecap.
 
            
 
                 Dr. Albright diagnosed claimant as having moderate 
 
            kneecap degenerative joint disease with significant pain.  
 
            On September 22, 1988, claimant had a patellectomy where the 
 
            kneecap on the right was removed, as well as the tibial 
 
            screw was removed.  Claimant had follow up care for her 
 
            knee.  Additionally, claimant had back complaints which she 
 
            reported to Dr. Found, M.D. (first name unknown).  Claimant 
 
            continued physical therapy.  On January 5, 1989, claimant's 
 
            knee was manipulated while she was placed under anesthetic.  
 
            Claimant was scheduled for follow up care.  She also treated 
 
            with Dr. Found for low back problems.  Six months post 
 
            surgery, claimant was still experiencing chronic knee pain.
 
            
 
                 As of May 21, 1990, J. L. Marsh, M.D., Assistant 
 
            Professor of Orthopaedics, evaluated claimant as having a 40 
 
            percent impairment to the right lower extremity.  He 
 
            assessed claimant's options as:  1)  continue living with 
 
            her right knee pain and possibly wearing a brace; 2) having 
 
            a leg fusion; or, 3) knee replacement.
 
            
 
                 Because claimant's former surgeon, Dr. Mackenzie, 
 
            opined there was a possible psychological element in 
 
            claimant's condition, claimant was sent to Michael J. 
 
            Taylor, M.D., a psychiatrist.  He opined:
 
            
 
                 Based upon all the information currently available 
 
                 to me, I can offer the following opinions, all 
 
                 with a reasonable degree of medical certainty.  It 
 
                 is my opinion that, at the present time, Mrs. 
 
                 Garnjobst is suffering from no diagnosable 
 
                 psychiatric disorder.  I find no indication of 
 
                 current psychiatric functional limitations.  I 
 
                 find no indication of any need for any type of 
 
                 either inpatient or outpatient psychiatric treat
 
                 ment.
 
            
 
                 I have, quite obviously, only summarized my 
 
                 findings and recommendations herein.  At such time 
 
                 as you
 
            
 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            require further elaboration, please feel free to 
 
            contact me.
 
            
 
                 Claimant later went to see Craig Blaine Rypma, Ph.D., a 
 
            clinical psychologist.  He examined her on 11 occasions.  He 
 
            determined she had stress associated with her treatment.
 
            
 
                 At the time of the hearing, claimant had not returned 
 
            to any gainful employment.  Nor had she attempted vocational 
 
            rehabilitation.
 
            
 
                                CONCLUSIONS OF LAW
 
            
 
                 Having considered all the evidence received, together 
 
            with the appearance and demeanor of the witnesses, the 
 
            following determinations are made:
 
            
 
                 This agency has jurisdiction of the subject matter of 
 
            this proceeding and its parties.
 
            
 
                 The claimant has the burden of proving by a 
 
            preponderance of the evidence that the injury of August 29, 
 
            1984, is causally related to the disability on which she now 
 
            bases her claim.  Bodish v. Fischer, Inc., 257 Iowa 516, 133 
 
            N.W.2d 867 (1965).  Lindahl v. L. O. Boggs, 236 Iowa 296, 18 
 
            N.W.2d 607 (1945).  A possibility is insufficient; a 
 
            probability is necessary.  Burt v. John Deere Waterloo 
 
            Tractor Works, 247 Iowa 691, 73 N.W.2d 732 (1955).  The 
 
            question of causal connection is essentially within the 
 
            domain of expert testimony.  Bradshaw v. Iowa Methodist 
 
            Hospital, 251 Iowa 375, 101 N.W.2d 167 (1960). 
 
            
 
                 However, expert medical evidence must be considered 
 
            with all other evidence introduced bearing on the causal 
 
            connection.  Burt, 247 Iowa 691, 73 N.W.2d 732.  The opinion 
 
            of experts need not be couched in definite, positive or 
 
            unequivocal language.  Sondag v. Ferris Hardware, 220 N.W.2d 
 
            903 (Iowa 1974).  However, the expert opinion may be 
 
            accepted or rejected, in whole or in part, by the trier of 
 
            fact.  Id. at 907.  Further, the weight to be given to such 
 
            an opinion is for the finder of fact, and that may be 
 
            affected by the completeness of the premise given the expert 
 
            and other surrounding circumstances.  Bodish, 257 Iowa 516, 
 
            133 N.W.2d 867.  See also Musselman v. Central Telephone 
 
            Co., 261 Iowa 352, 154 N.W.2d 128 (1967).
 
            
 
                 Iowa recognizes the odd-lot doctrine, under which a 
 
            worker becomes an odd-lot employee when an injury makes the 
 
            worker incapable of obtaining employment in any well-known 
 
            branch of the labor market.  An odd-lot worker has no 
 
            reasonable prospect of steady employment and, therefore, has 
 
            no material earning capacity.
 
            
 
                 The burden of persuasion on issue of industrial 
 
            disability always remains with the worker.  However, when a 
 
            worker makes a prima facie case of total disability by 
 
            producing substantial evidence that worker is not employable 
 
            in the competitive labor market, burden to produce evidence 
 
            of suitable employment shifts to the employer.  If the 
 
            employer fails to produce such evidence and the trier of 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            fact finds the worker does fall in the odd-lot category, the 
 
            worker is entitled to a finding of total disability.  Guyton 
 
            v. Irving Jensen Co., 373 N.W.2d 101 (Iowa 1985).
 
            
 
                 While a claimant is not entitled to compensation for 
 
            the results of a preexisting injury or disease, the mere 
 
            existence at the time of a subsequent injury is not a 
 
            defense.  Rose v. John Deere Ottumwa Works, 247 Iowa 900, 
 
            908, 76 N.W.2d 756, 760-61 (1956).  If the claimant had a 
 
            preexisting condition or disability that is aggravated, 
 
            accelerated, worsened or lighted up so that it results in 
 
            disability, claimant is entitled to recover.  Nicks v. 
 
            Davenport Produce Co., 254 Iowa 130, 115 N.W.2d 812, 815 
 
            (1962).
 
            
 
                 When an aggravation occurs in the performance of an 
 
            employer's work and a causal connection is established, 
 
            claimant may recover to the extent of the impairment.  
 
            Ziegler v. United States Gypsum Co., 252 Iowa 613, 620, 106 
 
            N.W.2d 591, 595 (1960).
 
            
 
                 The Iowa Supreme Court cites, apparently with approval, 
 
            the C.J.S. statement that the aggravation should be material 
 
            if it is to be compensable.  Yeager v. Firestone Tire & 
 
            Rubber Co., 253 Iowa 369, 112 N.W.2d 299 (1961); 100 C.J.S. 
 
            Workmen's Compensation sec. 555(17)a.
 
            
 
                 Our supreme court has stated many times that a claimant 
 
            may recover for a work connected aggravation of a 
 
            preexisting condition.  Almquist v. Shenandoah Nurseries, 
 
            218 Iowa 724, 254 N.W. 35 (1934).  See also Auxier v. 
 
            Woodward State Hosp. Sch., 266 N.W.2d 139 (Iowa 1978); Gosek 
 
            v. Garmer and Stiles Co., 158 N.W.2d 731 (Iowa 1968); Barz 
 
            v. Oler, 257 Iowa 508, 133 N.W.2d 704 (1965); Olson v. 
 
            Goodyear Service Stores, 255 Iowa 1112, 125 N.W.2d 251 
 
            (1963); Yeager, 253 Iowa 369, 112 N.W.2d 299 (1961); 
 
            Ziegler, 252 Iowa 613, 106 N.W.2d 591 (1960).
 
            
 
                 An employer takes an employee subject to any active or 
 
            dormant health impairments, and a work connected injury 
 
            which more than slightly aggravates the condition is 
 
            considered to be a personal injury.  Ziegler, 252 Iowa 613, 
 
            620, 106 N.W.2d 591 (1960), and cases cited.
 
            
 
                 The right of a worker to receive compensation for 
 
            injuries sustained which arose out of and in the course of 
 
            employment is statutory. The statute conferring this right 
 
            can also fix the amount of compensation to be paid for 
 
            different specific injuries, and the employee is not 
 
            entitled to compensation except as provided by the statute.  
 
            Soukup v. Shores Co., 222 Iowa 272, 268 N.W. 598 (1936).
 
            
 
                 An injury to a scheduled member may, because of after 
 
            effects (or compensatory change), result in permanent 
 
            impairment of the body as a whole.  Such impairment may in 
 
            turn form the basis for a rating of industrial disability.  
 
            Dailey v. Pooley Lumber Co., 233 Iowa 758, 10 N.W.2d 569 
 
            (1943).  Soukup, 222 Iowa 272, 268 N.W. 598 (1936).
 
            
 
                 An injury to a scheduled member which, because of 
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            after-effects (or compensatory change), creates impairment 
 
            to the body as a whole entitles claimant to industrial 
 
            disability.  Barton v. Nevada Poultry Co., 253 Iowa 285, 110 
 
            N.W.2d 660 (1961).  Daily, 233 Iowa 758, 10 N.W.2d 569 
 
            (1943).
 
            
 
                 If a claimant contends he has industrial disability he 
 
            has the burden of proving his injury results in an ailment 
 
            extending beyond the scheduled loss.  Kellogg v. Shute and 
 
            Lewis Coal Co., 256 Iowa 1257, 130 N.W.2d 667 (1964).
 
            
 
                 With respect to this case, claimant has proven by a 
 
            preponderance of the evidence that she has sustained a 
 
            permanent partial disability pursuant to section 
 
            85.34(2)(o).  That section provides:
 
            
 
                 The loss of two-thirds of that part of a leg 
 
                 between the hip joint and the knee joint shall 
 
                 equal the loss of a leg, and the compensation 
 
                 therefor shall be weekly compensation during two 
 
                 hundred twenty weeks.
 
            
 
                 This is an injury to a scheduled member.  There can be 
 
            no recovery of benefits for industrial disability unless it 
 
            is shown that a part of the body other than the scheduled 
 
            member is impaired.  Lauhoff Grain v. McIntosh, 395 N.W.2d 
 
            834 (Iowa 1986).
 
            
 
                 The benefits under section 85.34 contemplate 
 
            compensation for any effect on the claimant's earning 
 
            capacity caused by psychological problems stemming from an 
 
            injury to a scheduled member.  Pilcher v. Penick & Ford, 
 
            File number 618597 (Appeal Decision, October 1987).  While 
 
            psychological problems affect a loss of earning capacity, 
 
            the scheduled loss system which has been created by the 
 
            legislature is presumed to include compensation for reduced 
 
            capacity to labor and to earn.  Schell v. Central 
 
            Engineering Co., 232 Iowa 421, 4 N.W.2d 399 (1942).  In 
 
            other words, the psychological aspect is built into the 
 
            scheduled member loss system.  
 
            
 
                 Claimant argues that her disability should be 
 
            calculated according to the industrial method because she 
 
            has sustained a psychological injury.  Such an argument is 
 
            unfounded in light of the Pilcher case and in light of 
 
            Cannon v. Keokuk Steel Casting, File No. 795331 (Appeal 
 
            Decision January 1988).
 
            
 
                 Claimant also argues that her disability should be 
 
            calculated according to the industrial method because there 
 
            is a causal relationship between claimant's knee injury of 
 
            August 29, 1984 and claimant's alleged back condition.  
 
            However, claimant has failed to prove that her alleged back 
 
            condition is causally related to her August 29, 1984 work 
 
            injury.  Claimant had encountered previous back complaints.  
 
            The record indicates as early as the 1960's, claimant had 
 
            experienced low back pain.  On numerous prior occasions she 
 
            had reported problems to her physicians relative to her 
 
            back.  Around 1982, claimant had her tailbone removed 
 
            because of complications.  Claimant is overweight and her 
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
            weight impacts on her back condition.  Even Dr. Found at the 
 
            University of Iowa has diagnosed claimant's condition as 
 
            "low back complaints of uncertain etiology."  Therefore, in 
 
            light of the above, it is the determination of the 
 
            undersigned that claimant's back condition is not related to 
 
            her work injury of August 29, 1984.  Claimant has not 
 
            established that her disability is to be evaluated by the 
 
            industrial method.
 
            
 
                 Claimant has proven that her knee condition is the 
 
            result of her August 29, 1984 work injury.  It is 
 
            acknowledged claimant had a problem in 1978 with her right 
 
            leg.  However, after that one incident, claimant had no 
 
            other right leg or knee complaints and she was able to work 
 
            until her injury of August 29, 1984.  After her work injury, 
 
            claimant had one complication after another with her knee.  
 
            She testified she had eight surgical procedures on her knee.  
 
            Dr. Albright, after reviewing the radiographic report of 
 
            November 24, 1986, opined there was an old tear of the 
 
            lateral meniscus.  He related that tear to the 1984 work 
 
            injury.  While Dr. Albright acknowledged there were 
 
            potential multiple causes for a knee condition, he did not 
 
            rule out claimant's work injury as the cause of her 
 
            condition.  Additionally, there is the history provided by 
 
            claimant throughout the course of her treatment.  Her 
 
            history, at all times was consistent.  Claimant never 
 
            reported any incidents other than her work injury as a 
 
            possible cause of her condition.  It was only after her work 
 
            injury that she developed her condition.  It is the 
 
            determination of the undersigned that claimant's condition 
 
            is causally related to her work injury of August 29, 1984.
 
            
 
                 The next issue to address is the nature and extent of 
 
            claimant's disability.  Dr. Marsh of the University of Iowa 
 
            has rated claimant as having a 40 percent impairment to the 
 
            lower extremity.  Physicians at the University of Iowa had 
 
            treated claimant for nearly five years prior to the date the 
 
            impairment rating was provided.  The record is filled with 
 
            nearly 500 pages of medical records from the University of 
 
            Iowa.
 
            
 
                 Dr. Mackenzie, one of the initial treating physicians, 
 
            rated claimant as having a 15 percent permanent partial 
 
            impairment.  The rating was provided in September of 1985.  
 
            After that time frame, Dr. Mackenzie had no other contact 
 
            with claimant.  It was not until May of 1990 that Dr. 
 
            Mackenzie again reviewed claimant's records.  However, Dr. 
 
            Mackenzie did not again examine claimant for any possible 
 
            changes.  His rating was too remote in time to be given much 
 
            weight.
 
            
 
                 Finally, claimant was examined by Peter D. Wirtz, M.D.  
 
            He opined:
 
            
 
                 This patient's injury occurring 8/28/84 by medical 
 
                 record had reached its medical benefit as of 
 
                 4/9/85 with a diagnostic functional impairment of 
 
                 5% impairment of the right lower extremity 
 
                 relating to the meniscectomy.
 
            
 

 
            
 
            Page   8
 
            
 
            
 
            
 
            
 
                 Conditions that developed in the right knee 
 
                 following 4/9/85 evaluation are unrelated to the 
 
                 injury of 8/28/84 and are related to the 
 
                 congenital positioning of the patella.
 
            
 
                 This patient sought multiple physician advice as 
 
                 to continued symptoms of the knee which have 
 
                 resulted in eventual patellectomy.  This patient's 
 
                 history reveals that she required a manipulation 
 
                 in January, 1989 for knee motion which would have 
 
                 a postoperative rehab of approximately six weeks 
 
                 indicating that as of the end of February, 1989 
 
                 she had reached her maximum medical benefit.
 
            
 
                 Presently this patient exhibits loss of motion and 
 
                 atrophy with a patellectomy on the right.  She has 
 
                 lost 40 degrees of motion which would relate to an 
 
                 8% impairment of the lower extremity in 
 
                 association with patellectomy which would be a 20% 
 
                 impairment of the lower extremity and the loss of 
 
                 musculature which would be a further 5% impairment 
 
                 of the lower extremity.  The previous lateral 
 
                 meniscectomy would likewise relate to a 5% 
 
                 impairment of the right lower extremity.  The 
 
                 total impairment would relate to 38% impairment of 
 
                 the right lower extremity.  A resulting impairment 
 
                 of patellectomy, thigh atrophy, and loss of motion 
 
                 relate to the patella congenital condition and not 
 
                 to the condition of injury 8/28/84 and need for 
 
                 meniscectomy.
 
            
 
                 Dr. Wirtz only examined claimant on one occasion.  Dr. 
 
            Wirtz did not examine claimant until five years after the 
 
            work injury.  He did not treat claimant.
 
            
 
                 Therefore, the greatest weight of the evidence is 
 
            accorded to Dr. Marsh and the physicians at the University 
 
            of Iowa.  It is the determination of the undersigned that 
 
            claimant has a 40 percent permanent partial disability.  She 
 
            is entitled to 88 weeks of benefits at the stipulated rate 
 
            of $255.78 per week.  The commencement date for those 
 
            benefits is May 22, 1990.  Prior to that date, claimant was 
 
            recovering from one of her eight surgeries.  Dr. Albright 
 
            testified claimant was in the recovery period following each 
 
            of her surgical procedures.  Dr. Albright testified claimant 
 
            engaged in physical therapy subsequent to each surgery.  
 
            Claimant testified she was unable to work.
 
            
 
                 Section 85.34(1), Code of Iowa, provides that healing 
 
            period benefits are payable to an injured worker who has 
 
            suffered permanent partial disability until (1) he has 
 
            returned to work; (2) is medically capable of returning to 
 
            substantially similar employment; or (3) has achieved 
 
            maximum medical recovery.  The industrial commissioner has 
 
            recognized that healing period benefits can be interrupted 
 
            or intermittent.  Willis v. Lehigh Portland Cement Co., Vol. 
 
            2-1, State of Iowa Industrial Commissioner Decisions 485 
 
            (1984).
 
            
 
                 Claimant did not achieve maximum medical recovery until 
 

 
            
 
            Page   9
 
            
 
            
 
            
 
            
 
            Dr. Marsh had provided his impairment rating.  Therefore, it 
 
            is the determination of the undersigned that claimant is 
 
            entitled to healing period benefits for:
 
            
 
                 
 
                               9-13-84 to 12-16-84
 
                               1-15-85 to 03-10-85
 
                               3-15-85 to 05-12-85
 
                               5-24-85 to 05-22-90
 
            
 
                 The final issue to address is whether claimant is 
 
            entitled to certain medical benefits.
 
            
 
                 Iowa Code section 85.27 provides, in part:
 
            
 
                    For purposes of this section, the employer is 
 
                 obliged to furnish reasonable services and 
 
                 supplies to treat an injured employee, and has the 
 
                 right to choose the care.  The treatment must be 
 
                 offered promptly and be reasonably suited to treat 
 
                 the injury without undue inconvenience to the 
 
                 employee.  If the employee has reason to be 
 
                 dissatisfied with the care offered, the employee 
 
                 should communicate the basis of such dissatis
 
                 faction to the employer, in writing if requested, 
 
                 following which the employer and the employee may 
 
                 agree to alternate care reasonably suited to treat 
 
                 the injury.  If the employer and employee cannot 
 
                 agree on such alternate care, the commissioner 
 
                 may, upon application and reasonable proofs of the 
 
                 necessity therefor, allow and order other care.  
 
                 In an emergency, the employee may choose the 
 
                 employee's care at the employer's expense, 
 
                 provided the employer or the employer's agent 
 
                 cannot be reached immediately.
 
            
 
                 Unauthorized treatment which improves an employee's 
 
            condition and which ultimately may mitigate the employer's 
 
            liability may subsequently be found reasonable and necessary 
 
            for treatment of an injury.  Butcher v. Valley Sheet Metal, 
 
            IV Iowa Industrial Commissioner Reports 49 (Appeal Decision 
 
            1983); Rittgers v. United Parcel Service, III Iowa 
 
            Industrial Commissioner Reports 210 (Appeal Decision 1982).  
 
            Hutchinson v. American Freight Systems, Inc., I-l Iowa 
 
            Industrial Commissioner Decision 94 (Appeal Decision 1984).  
 
            The evidence is overwhelming.  Claimant's condition has 
 
            improved since she began treating at the University of Iowa 
 
            Hospitals and Clinics.  Expenses relating only to claimant's 
 
            right knee are payable by defendants.  Expenses relating to 
 
            the back, colon, or psychological expenses are not causally 
 
            related, nor are they authorized.  Only physical therapy 
 
            expenses related to the knee are due from defendants.  The 
 
            expenses due include bills owed to:
 
            
 
                 
 
                        Iowa Department of Human Services
 
                        Hawkeye Rehabilitation (pt)
 
                        Nelson's Medical Equipment
 
                        Hawkeye Rehabilitation
 
                        Miller Medical Service
 

 
            
 
            Page  10
 
            
 
            
 
            
 
            
 
                        Hawkeye Rehabilitation (physical therapy)
 
                        Apothecary 24
 
                        Grimms Orthopaedic Supply
 
                        Hawkeye Rehabilitation (physical therapy)
 
                        University of Iowa Hospital
 
                        American Prosthetics, Inc.
 
                        Brown's Shoe Fit Co.
 
            
 
                 Mileage as follows is due to claimant:
 
            
 
                               Statement of Mileage
 
            
 
                 Total miles:              6,025.2
 
            
 
                 Dr. Mackenzie - Ft. Madison, Iowa - 1985
 
            
 
                 April 22                      44.2 miles
 
                 May 6                         44.2
 
                 May 21                        44.2
 
                 May 28                        44.2    x  .24 = $ 63.65
 
                 May 29                        44.2
 
                 July 15                       44.2
 
            
 
                 Dr. Albright - Iowa City, Iowa - 1985
 
            
 
                 August 29                     180 miles
 
                 September 5                   180
 
                 September 30                  180     x  .24 = $216.00
 
                 November 4                    180
 
                 December 16                   180
 
            
 
                 Dr. Albright - Iowa City, Iowa - 1986
 
            
 
                 January 14                    180 miles
 
                 January 24                    180
 
                 March 10                      180
 
                 March 13                      180
 
                 April 10                      180
 
                 November 10                   180     x  .21 = $415.80
 
                 November 13                   180
 
                 November 24                   180
 
                 December 10                   180
 
                 December 12                   180
 
                 December 22                   180
 
            
 
                 January 29, 1987              180 miles
 
                 February 27                   180
 
                 March 16                      180
 
                 April 21                      180
 
                 April 22                      180     x  .21 = $302.40
 
                 May 11                        180
 
                 June 8                        180
 
                 July 6                        180
 
            
 
                 October 1                     180 miles
 
                 October 19                    180
 
                 October 22                    180     x  .21 = $189.00
 
                 November 9                    180
 
                 December 7                    180
 
            
 

 
            
 
            Page  11
 
            
 
            
 
            
 
            
 
                 January 25, 1988              180 miles
 
                 March 7                       180     x  .21 = $113.40
 
                 May 2                         180
 
            
 
                                Total   $1,300.25
 
            
 
                                      order
 
            
 
                 Defendants are to pay eighty-eight (88) weeks of 
 
            permanent partial disability benefits at the rate of two 
 
            hundred fifty-five and 78/l00 dollars ($255.78) per week 
 
            commencing on May 22, 1990.
 
            
 
                 Defendants are to also pay two hundred ninety point 
 
            five-seven-one (290.571) weeks of healing period benefits at 
 
            the rate of two hundred fifty-five and 78/l00 dollars 
 
            ($255.78) per week for the following periods:
 
            
 
                               9-13-84 to 12-16-84
 
                                 1-15-85 to  3-10-85
 
                                 3-15-85 to  5-12-85
 
                                 5-24-85 to  5-22-90
 
            
 
                 Defendants are to also pay medical expenses and mileage 
 
            as stated above which also includes reimbursing the State of 
 
            Iowa for Title XIX benefits which are causally related to 
 
            this injury.
 
            
 
                 Defendants shall receive credit for all benefits 
 
            previously paid and not credited.
 
            
 
                 Interest shall be paid pursuant to Iowa Code section 
 
            85.30.
 
            
 
                 Costs of the action shall be assessed to defendants 
 
            pursuant to rule 343 IAC 4.33.
 
            
 
                 Defendants shall file a claim activity report as 
 
            requested by this division pursuant to rule 343 IAC 3.1.
 
            
 
            
 
            
 
                 Signed and filed this ____ day of March, 1991.
 
            
 
            
 
            
 
            
 
            
 
                                          ______________________________               
 
            MICHELLE A. McGOVERN
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr. James P. Hoffman
 
            Attorney at Law
 
            Middle Rd
 
            Box 1087
 
            Keokuk  IA  52632
 
            
 

 
            
 
            Page  12
 
            
 
            
 
            
 
            
 
            Mr. E. J. Kelly
 
            Attorney at Law
 
            Terrace Center  STE 111
 
            2700 Grand
 
            Des Moines  IA  50312
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                           1803.1
 
                           Filed March 28, 1991
 
                           MICHELLE A. McGOVERN
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            LARENA GARNJOBST,             :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :         File No. 775099
 
            EXIDE CORPORATION,            :
 
                                          :      A R B I T R A T I O N
 
                 Employer,                :
 
                                          :         D E C I S I O N
 
            and                           :
 
                                          :
 
            WAUSAU INSURANCE CO.,         :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
            
 
            
 
            1803.1
 
            Claimant sustained an injury to her right knee while at 
 
            work.  This was a scheduled member case.  Psychological 
 
            aspects were included in the scheduled member loss system.  
 
            Claimant could not establish that her alleged back condition 
 
            was causally connected to her work injury involving her 
 
            knee.
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         CHARLES H. HANNAM,
 
         
 
              Claimant,
 
         
 
         VS.
 
                                                       FILE  NO. 775310
 
         
 
         MEREDITH/BURDA CORPORATION
 
                                                    A R B I T R A T I 0 N
 
              Employer,
 
                                                        D E C I S I 0 N
 
         and
 
         
 
         TRAVELERS INSURANCE CO.,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
                                   INTRODUCTION
 
         
 
              This is a proceeding in arbitration brought by Charles H. 
 
         Hannam against Meredith/Burda Corporation, his employer, and 
 
         Travelers Insurance Company, the insurance carrier.  Hannam 
 
         alleges that he sustained an injury to his back on July 25, 1984 
 
         and seeks compensation for temporary total disability.  The 
 
         issues identified by the parties for determination are whether 
 
         Hannam sustained an injury that arose out of and in the course of 
 
         his employment; whether any alleged injury is a proximate cause 
 
         of any disability; and, ultimately, determination of his 
 
         entitlement to compensation for temporary total disability.  The 
 
         existence of an employer/employee relationship, the appropriate 
 
         rate of compensation and the amount of time that Hannam was off 
 
         work commencing with July 26, 1984 and running through September 
 
         13, 1984 were established by stipulation of the parties.
 
         
 
                               SUMMARY OF EVIDENCE
 
         
 
              Charles H. Hannam has been employed by Meredith/Burda for 
 
         approximately 10 years.  His present job consists primarily of 
 
         loading mail sacks--and bundles of printed materials onto trucks. 
 
          The sacks and bundles vary in weight up to as much as 70 pounds 
 
         each.  On a typical work day he handles as many as 1000 of the 
 
         articles.  The lifting that he performs generally consists of 
 
         moving the articles from waist level to a position which ranges 
 
         from the floor to approximately head high.  It involves picking 
 
         up sacks and swinging them around.  Hannam was performing this 
 
         same job on July 25, 1984 and had been doing so for slightly more 
 
         than a month prior thereto.
 
              
 
              Hannam had been a forklift and tow operator prior to mid 
 
         June of 1984 when a reorganization of staffing levels in the 
 
         plant resulted in a reduction in the number of those positions. 
 

 
         
 
         
 
         
 
         HANNAM V. MEREDITH/BURDA CORPORATION
 
         Page   2
 
         
 
         
 
          Hannam did not have enough seniority to remain in the 
 
         equipment operator position.  The company also disqualified him 
 
         from operating the equipment in the future due to what company 
 
         officials perceive as an unacceptable accident and safety 
 
         record.  During the intervening time between June of 1984 and 
 
         the date of hearing Hannam had returned to an equipment 
 
         operator position but had another accident and was again 
 
         disqualified by the employer from the equipment operator 
 
         position.
 
         
 
              In 1980, while working as a forklift operator, the 
 
         forklift which claimant was operating was rear ended by another 
 
         forklift resulting in injury to claimant's spinal column and 
 
         other parts of his body.  Following that accident he was off 
 
         work for a period of time and eventually returned.  Hannam 
 
         complained of continuing pain and discomfort with his back and 
 
         neck ever since that accident.
 
         
 
              Hannam testified that following his placement in the mail 
 
         handling position, he had increased problems with his back and 
 
         that the problems worsened as he continued to perform the job. 
 
          He stated that when he went to bed at the end of the day on 
 
         July 25, 1984, he took a muscle relaxer pain pill that had been 
 
         previously prescribed for his back by Stuart R. Winston, M.D., 
 
         one of the physicians who has treated his back condition.  
 
         Hannam testified that he overslept on the following morning, 
 
         phoned in to the plant and was told by Jess Rynearson, his 
 
         foreman, that he should not come in to work that day.  Hannam 
 
         phoned the company a second time later on the 26th after making 
 
         a doctor's appointment and requested that his absence from work 
 
         be listed as the result of a work related accident rather than 
 
         an unauthorized absence.  At that time Hannam had previously 
 
         been given a written warning for excessive unauthorized 
 

 
         
 
         
 
         
 
         HANNAM V. MEREDITH/BURDA CORPORATION
 
         Page   3
 
         
 
         
 
         absences and was subject to a three day suspension as a penalty 
 
         for additional unauthorized absences.  Jess Rynearson, 
 
         claimant's foreman, acknowledged that claimant had phoned in on 
 
         the two occasions on July 26, 1984.  He testified, however, 
 
         that at the first call claimant advised him that his 
 
         electricity had gone off and his alarm had not sounded.  He 
 
         also testified that claimant had indicated that he wanted to 
 
         come to work but Rynearson stated that he told claimant not to 
 
         come in because a replacement worker.,had already been 
 
         obtained.  Rynearson testified that claimant made no mention of 
 
         any health problems during the first call but that at the 
 
         second call claimant informed him that the absence should be 
 
         treated as related to an on-the-job injury and that a doctor's 
 
         appointment had been scheduled.  Rynearson identified exhibit N 
 
         as a memorandum of those calls.
 
         
 
         
 
              Hannam was seen by Dr. Winston on August 6, 1984.  The 
 
         neurological examination was reported as negative.  Dr. Winston 
 
         indicated that claimant would likely have chronic recurrent 
 
         myofascial strain for so long as he continues to work as 
 
         laborer.  Dr. Winston recommended that claimant change 
 
         occupations but stated that he saw no indication that further 
 
         treatment was necessary (Exhibit G).  In a report of September 
 
         18, 1984, Dr. Winston, when discussing the August 6, 1984 
 
         examination, stated: "...I certainly see no reason why he could 
 
         not return to work but did not advise him one way or the other 
 
         with respect to that fact." (Ex. J)
 
         
 
              On August 17, 1984, claimant was seen by Jerome G. 
 
         Bashara, M.D.  Dr. Bashara scheduled claimant for x-rays and 
 
         other diagnostic tests which were interpreted as normal.  He 
 
         diagnosed claimant as having a musculoligamentous strain of the 
 

 
         
 
         
 
         
 
         HANNAM V. MEREDITH/BURDA CORPORATION
 
         Page   4
 
         
 
         
 
         cervical spine, secondary to the forklift accident.  When Dr. 
 
         Bashara examined Hannam on August 17 and September 25, 1984, he 
 
         noted the existence of spasms in claimant's cervical spine 
 
         region (Ex. H).  The notes from August 17, 1984 contain the 
 
         following statement: O ... he will be rechecked in one week.  
 
         He should not work in the meantime."  A similar indication 
 
         appears at exhibit M.
 
         
 
              Claimant was subsequently evaluated by Joshua V. 
 
         Kimmelman, M.D., on August 29, 1984.  Dr. Kimmelman concluded 
 
         that claimant had a chronic lumbrosacral strain with subjective 
 
         complaints that were out of proportion to the objective 
 
         findings.  He felt that claimant should be encouraged to return 
 
         to work and that he would not harm his physical condition by 
 
         working (Ex. I).
 
         
 
                      APPLICABLE LAW AND ANALYSIS
 
         
 
              Claimant has the burden of proving by a preponderance of the 
 
         evidence that he received an injury on July 25, 1984 which arose 
 
         out of and in the course of his employment.  McDowell v. Town of 
 
         Clarksville, 241 N.W.2d 904 (Iowa 1976); Musselman v. Central 
 
         Telephone Co., 261 Iowa 352, 154 N.W.2d 128 (1967).
 
         
 
              While a claimant is not entitled to compensation for the 
 
         results of a preexisting injury or disease, the mere existence at 
 
         the time of a subsequent injury is not a defense.  Rose v. John 
 
         Deere Ottumwa Works, 247 Iowa 900, 908, 76 N.W.2d 756, 760-761 
 
         (1956).  If the claimant had a preexisting condition or 
 
         disability that is aggravated, accelerated, worsened or lighted 
 
         up so that it results in disability, claimant is entitled to 
 
         recover.  Nicks v.Davenport Produce Co., 254 Iowa 130, 115 N.W.2d 
 
         812, 815 (1962) .
 
         
 
              Claimant injured his back in 1980 and it appears that he has 
 
         continuing difficulties as a result of that injury.  It would not 
 
         be unusual or unexpected for work of the type that Hannam 
 
         performs to cause him difficulties.  Hannam's testimony with 
 
         regard to experiencing back pain leading up to and following July 
 
         25, 1984 is accepted as correct.
 
         
 
             Hannam seeks compensation for temporary  total  disability.
 
         Section 85.33(l) states:
 
         
 
              Except as provided in subsection 2 of this section, the 
 
              employer shall pay to an employee for injury producing 
 
              temporary total disability weekly compensation benefits, as 
 
              provided in section 85.32, until the employee has returned 
 
              to work or is medically capable of returning to employment 
 
              substantially similar to the employment in which the 
 
     
 
         
 
         
 
         
 
         
 
         HANNAM V. MEREDITH/BURDA CORPORATION
 
         Page   5
 
         
 
         
 
              employee was engaged at the time of injury, whichever occurs 
 
              first. (Emphasis added)
 
         
 
              For Hannam to receive compensation for temporary total 
 
         disability he must prove by a preponderance of the evidence that 
 
         his absence from work was due to medical incapacity to perform 
 
         his usual work.
 
         
 
              Dr. Winston, in exhibits G and J, makes no indication that 
 
         claimant was medically incapable of performing his normal work at 
 
         any time during the period for which benefits are sought.  Dr. 
 
         Kimmelman likewise (Ex. I) indicates that claimant should return 
 
         to work and makes no statement regarding medical inability to 
 
         perform the duties of his normal work.  Dr. BasharaOs notes 
 
         indicate that claimant should not work between August 17, 1984 
 
         and August 24, 1984 (Ex. H & M).  Dr. Bashara does not, however, 
 
         indicate that claimant was physically unable to work.  It appears 
 
         that the absence from work was as much for purposes of allowing 
 
         evaluations to be performed and an opportunity for complaints to 
 
         resolve as for any actual disability.  The only objective 
 
         indication of injury found by any of the three physicians is the 
 
         spasm noted by Dr. Bashara.  None of the diagnostic tests 
 
         conducted showed any abnormality.  Drs. Winston and Kimmelman 
 
         indicated that there was no reason for claimant to be off work.  
 
         Dr. Bashara recommended that claimant remain off work for 
 
         approximately a week but at no point provided the reason for that 
 
         recommendation.  Under the record made the evidence from Drs.  
 
         Winston and Kimmelman is found to be more persuasive than that 
 
         from Dr. Bashara.  The evidence from Dr. Bashara in this regard 
 
         is not found to be persuasive and it is found that claimant has 
 
         failed to establish by a preponderance of the evidence that he 
 
         was medically incapable of engaging in employment substantially 
 
         similar to that he performed on July 25, 1984 during the time for 
 
         which benefits are sought, namely from July 26, 1984 through 
 
         September 13, 1984.
 
         
 
              While Hannam did, in all likelihood, aggravate his 
 
         preexisting back condition, he has failed to prove that the 
 
         aggravation was of sufficient severity to be disabling.  The 
 
         employer's contentions that claimant's seeking of medical care 
 
         was something in the nature of an after thought in an attempt to 
 
         avoid disciplinary action is supported by substantial evidence.  
 
         When all the evidence is viewed as a whole it is found that 
 
         claimant did have discomfort, but the evidence fails to establish 
 
         that claimant was medically incapable of performing employment 
 
         substantially similar to that in which he had been engaged.on and 
 
         immediately prior to July 25, 1984.
 
         
 
                                 FINDINGS OF FACT
 
         
 
              1. Charles H. Hannam was a resident of the State of Iowa 
 
         employed by Meredith/Burda in Des Moines, Iowa on July 25, 1984 
 
         when he aggravated a preexisting condition in his back by 
 
         handling sacks and bales of printed materials.
 
         
 
              2.  At the time of injury Hannam was subject to disciplinary 
 
         action if he incurred any further unauthorized absences from 
 
         work.
 
         
 

 
         
 
         
 
         
 
         HANNAM V. MEREDITH/BURDA CORPORATION
 
         Page   6
 
         
 
         
 
              3.  The evidence introduced fails to establish that, between 
 
         the dates of July 26, 1984 and September 13, 1984, Hannam was 
 
         medically incapable of performing work in employment 
 
         substantially similar to that in which he had been engaged on and 
 
         prior to July 25, 1984.
 
         
 
                                CONCLUSIONS OF LAW
 
         
 
              1.  This agency has jurisdiction of the subject matter of 
 
         this proceeding and its parties.
 
         
 
              2.  Charles H. Hannam sustained an injury in the nature of 
 
         an aggravation of a preexisting condition on July 25, 1984 which 
 
         injury arose out of and in the course of his employment with 
 
         Meredith/Burda.
 
         
 
              3.  Claimant has failed to establish, by a preponderance of 
 
         the evidence, that he was temporarily totally disabled within the 
 
         meaning of section 85.33 of the Code at any time between the 
 
         dates of July 26, 1984 and September 13, 1984, the period for 
 
         which temporary total disability benefits are sought.
 
         
 
              4.  Where claimant established that he did sustain an injury 
 
         which arose out of and in the course of his employment, even 
 
         though benefits for weekly compensation were not awarded, he is 
 
         nevertheless entitled to recover medical benefits under Code 
 
         section 85.27 and costs under Division of Industrial Services 
 
         343-4.33.
 
         
 
                                      ORDER
 
         
 
              IT IS THEREFORE ORDERED that claimant take nothing from this 
 
         proceeding except costs which are assessed against defendants 
 
         pursuant to Division of Industrial Services 343-4.33.
 
         
 
              IT IS FURTHER ORDERED that defendants file a claim activity 
 
         report as requested by this agency pursuant to Division of 
 
         Industrial Services Rule 343-3.1.
 
         
 
             Signed and filed this 14th day of May, 1987.
 
         
 
         
 
                                                     
 
                                           MICHAEL G. TRIER
 
                                           DEPUTY INDUSTRIAL COMMISSIONER
 
         
 
         
 
         Copies To:
 
         
 
         Mr. Steven C. Jayne
 
         Attorney at Law
 
         102 East Grand Ave.
 
         Des Moines, Iowa 50309
 
         
 
         Mr. Terry L. Monson
 
         Attorney at Law
 
         300 Liberty Building
 
         Des Moines, Iowa 50309
 
 
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                                   1402.40; 1801
 
                                                   Filed May 14, 1987
 
                                                   MICHAEL G. TRIER
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         CHARLES H. HANNAM,
 
         
 
              Claimant,
 
         
 
         vs.                                          FILE NO. 775310
 
         
 
         MEREDITH/BURDA CORPORATION,               A R B I T R A T I O N
 
         
 
              Employer,                               D E C I S I O N
 
         
 
         and
 
         
 
         TRAVELERS INSURANCE CO.,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         1402.40; 1801
 
         
 
              Claimant was subject to disciplinary action for excessive 
 
         absenteeism from work and overslept on the day following the 
 
         alleged date of injury.  He then sought medical care and 
 
         attempted to establish that his absence from work was due to 
 
         disability resulting from an aggravation of a preexisting 
 
         condition in his back, which condition was work related.  
 
         ClaimantOs evidence failed to show that he was medically 
 
         incapable of performing the normal duties of his employment and 
 
         he was denied benefits, even though it was found that the work 
 
         did, in all likelihood, aggravate his back.
 
 
 
         
 
 
            
 
 
 
 
 
                                
 
 
 
                    BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         MERLE KILLINGER,
 
         
 
              Claimant                              File Nos. 775851
 
                                                              808991
 
         vs.
 
                                                 A R B I T R A T I O N
 
         MARK WELLS DISTRIBUTING CO.,
 
                                                    D E C I S I O N
 
              Employer,
 
                                                       F I L E D
 
         TRAVELERS INSURANCE CO. and
 
         LIBERTY MUTUAL INSURANCE CO.,                OCT 27 1989
 
         
 
              Insurance Carriers,                 INDUSTRIAL SERVICES
 
              Defendants.
 
         
 
         
 
                                   INTRODUCTION
 
         
 
              This is a proceeding in arbitration brought by Merle 
 
         Killinger, claimant, against Mark Wells Distributing Company, 
 
         employer, and Travelers Insurance Company and Liberty Mutual 
 
         Insurance Company, insurance carriers, defendants, for benefits 
 
         as the result of an injury that occurred on September 24, 1984, 
 
         and a second alleged injury that occurred on November 13, 1985.  
 
         A hearing was held in Des Moines, Iowa, on August 26, 1988, and 
 
         the case was fully submitted at the close of the hearing.  
 
         Claimant was represented by Robert Pratt.  Employer and the 
 
         Travelers were represented by William D. Scherle.  Employer and 
 
         Liberty Mutual were represented b y Richard Book.  The record 
 
         consists of the testimony of Merle Killinger, claimant, and Joint 
 
         Exhibits I through VIII.  Defendant insurance carriers equally 
 
         paid the cost and supplied a transcript to the Industrial 
 
         Commissioner's file pending the final determination of costs in 
 
         this decision.  All three attorneys submitted excellent 
 
         posthearing briefs.  Claimant and defendant employer and Liberty 
 
         Mutual submitted a brief description of disputes at the beginning 
 
         of the hearing.
 
         
 
                                     STIPULATIONS
 
         
 
              The parties stipulated to the following matters as to both 
 
         the injury which occurred on September 24, 1984 and the alleged 
 
         injury that occurred on November 13, 1985.
 
         
 
              That an employer-employee relationship existed at the time 
 
         of both injuries.
 
         
 
              That the type of permanent disability, if either injury is 
 
         found to be a cause of permanent disability, is industrial 
 
         disability to the body as a whole.
 
         
 
              That all medical benefits with respect to either injury are 
 
                                                
 
                                                         
 
         no longer in dispute.
 
         
 
              That none of the defendants claim a credit for any benefits 
 
         paid prior to hearing under an employer nonoccupational group 
 
         health plan.
 
         
 
              That there are no bifurcated claims to either injury.
 
         
 
                             INJURY OF SEPTEMBER 24, 1984
 
         
 
                                   STIPULATIONS
 
         
 
              Claimant, employer and Travelers Insurance stipulated to the 
 
         following:
 
         
 
              That claimant sustained an injury on September 24, 1984, 
 
         which arose out of and in the course of employment with 
 
         employer.
 
         
 
              That the injury was the cause of temporary disability and 
 
         that claimant is entitled to and has been paid temporary 
 
         disability benefits from September 25, 1984 to November 11, 1984, 
 
         and that temporary disability benefits are no longer a dispute as 
 
         to this injury at this time.
 
         
 
              That the commencement date for permanent partial disability 
 
         benefits, in the event such benefits are awarded, is November 11, 
 
         1984.
 
         
 
              That the rate of compensation, in the event of an award of 
 
         benefits, for this injury is $345.44 per week.
 
         
 
              That defendant employer and Travelers Insurance are not 
 
         entitled to a credit for any workers' compensation permanent 
 
         partial disability benefits paid prior to hearing.
 
         
 
                                        ISSUES
 
         
 
              Claimant, employer and Travelers Insurance submitted the 
 
         following issues for determination:
 
         
 
              Whether the injury was the cause of any permanent 
 
         disability.
 
         
 
              Whether claimant is entitled to any permanent partial 
 
         disability benefits, and if so, the extent of his entitlement.
 
         
 
                          ALLEGED INJURY OF NOVEMBER 13, 1985
 
         
 
                                   STIPULATIONS
 
         
 
              Claimant, employer and Liberty Mutual stipulated to the 
 
         following matters:
 
         
 
              That the time off work for which claimant now seeks 
 
                                                
 
                                                         
 
         temporary disability benefits is from November 13, 1985 until 
 
         July 1987.
 
         
 
              That the rate of compensation, in the event of an award of 
 
         benefits for this injury, is $326.95 per week.
 
         
 
              That defendant employer and Liberty Mutual are entitled to a 
 
         credit for 74 weeks of workers' compensation benefits, paid prior 
 
         to hearing, at the rate of $326.95 per week.
 
         
 
                                        ISSUES
 
         
 
              Claimant, employer and Liberty Mutual submitted the 
 
         following issues for determination.
 
         
 
              Whether claimant sustained an injury on November 13, 1985, 
 
         which arose out of and in the course of employment.
 
         
 
              Whether the injury was the cause of temporary disability.
 
         
 
              Whether the injury was the cause of permanent disability.
 
         
 
              Whether claimant is entitled to temporary disability 
 
         benefits.
 
         
 
              Whether claimant is entitled to permanent disability 
 
         benefits.
 
         
 
                                SUMMARY OF THE EVIDENCE
 
         
 
              Claimant was born October 16, 1945.  He was 42 years old at 
 
         the time of the hearing.  He dropped out of high school in the 
 
         middle of ninth grade and has had no formal education or training 
 
         since then.  His limited education has not severely hindered his 
 
         working career or earning capacity when compared to high school 
 
         graduates (joint exhibit VI, pages 70-73).  His past employments 
 
         are multiple and varied.  They include:  machine operator and 
 
         welder, body and fender repairman, general farm worker, 
 
         electrician, operator of a small repair shop, circulation manager 
 
         for a newspaper, maintenance worker and maintenance supervisor 
 
         for a shopping mall, manager of service stations, highway 
 
         maintenance operator of heavy equipment and buildings and grounds 
 
         maintenance (JE II pp. 200, 206, 207 & 243; transcript pp. 82-91; 
 
         JE VI, deposition exhibit 1; JE VI pp. 14-18, 32-46).  Claimant 
 
         has also worked for a detective agency (JE VI p. 5).
 
         
 
              Claimant started to work for this employer in September of 
 
         1982.  He drove a truck delivering bakery products to several 
 
         states throughout the midwest (JE VI, p. 18-28).  Claimant was 
 
         paid by the hour with time and one-half for overtime.  His 
 
         earnings in 1983 were $24,384 (JE III, p. 274).  In 1984 his 
 
         earnings were $27,260E(JE VIII, p. 276).  In 1985 his earnings 
 
         were $29,310 (JE VIII, p. 278; tr. pp. 21-35).  Claimant did not 
 
         have enough earnings to file a tax return in 1986 (tr. p. 68).  
 
         He returned to work again in June 1987.  His earnings in 1987 
 
                                                
 
                                                         
 
         totalled $9,857 (tr. p. 70; JE VIII, p. 283).  He has been 
 
         earning $300 to 400 per week in 1988 (tr. p. 70).
 
         
 
              On September 24, 1984, claimant was injured when he fell out 
 
         of a truck with a wet floor and landed on his head and back (JE 
 
         VI, pp. 64-65).  He was treated at Mercer County Hospital in 
 
         Illinois and Skiff Memorial Hospital in Newton (JE I, pp. 1-3). 
 
         He was treated conservatively with bed rest, medications and hot 
 
         packs for neck and low back pain (tr. pp. 35-38).  Dr. William R. 
 
         Boulden released him to return to work on November 12, 1984.  The 
 
         only restrictions were:  (1) to be careful when he lifted and (2) 
 
         don't do a lot of heavy lifting.  He was also cautioned to use 
 
         the proper body mechanics when he lifted (tr. pp. 103 & 104; JE 
 
         VI, p. 93; JE IV, pp. 237 & 238).  He was not restricted from 
 
         loading and unloading.
 
         
 
              After the injury he performed the job he performed before 
 
         the injury.  Claimant stated he did not see a doctor between 
 
         November 5, 1984 and November 13, 1985, but his low back bothered 
 
         him after driving long hours and he took Tylenol for it (tr. pp. 
 
         39-43; JE VI, p. 66).  It never really healed or got completely 
 
         better (JE VI, pp. 50 & 51).
 
         
 
              Claimant hired Danny Johnson to help him unload prior to his 
 
         September 24, 1986 injury (tr. pp. 44, 45, 81 & 82; JE VI, pp. 
 
 
 
                
 
                                                         
 
         30-32, 65 & 74-78).
 
         
 
              On November 13, 1985, claimant was pulling on a pallet jack. 
 
         The aluminum floor of the trailer was slick because it had flour 
 
         on it.  His feet slid out from underneath him and he fell down on 
 
         his back and tailbone flat on his back (tr. pp. 46 & 47; JE VI, 
 
         pp. 47-50).  Claimant did not see a doctor until November 25, 
 
         1985, at home in Newton, Iowa, after returning from this trip to 
 
         North Dakota.  He complained of severe pains in his low back when 
 
         he saw Angel S. Martin, M.D., at Skiff Memorial Hospital.  He was 
 
         taken off work that day, November 25, 1985 (tr. pp. 48-50; JE I, 
 
         p. 17, JE VI, pp. 48-54).
 
         
 
              Claimant then saw Robert A. Hayne, M.D., a neurosurgeon, on 
 
         December 16, 1985 (tr. pp. 51 & 52; JE I, p. 27).  Claimant was 
 
         treated conservatively with medications and physical therapy. 
 
         Claimant testified that Dr. Hayne told him that he was not to 
 
         perform lifting or strenuous activity (tr. p. 53).  Claimant 
 
         wanted to return to work, asked to return to work and tried to 
 
         return to work on January 20, 1986, doing light deliveries in 
 
         town, but did not work a full day.  He started unloading a truck 
 
         and experienced so much pain that he could not do it.  He 
 
         returned to see Dr. Haynes that day.  Sometime later he received 
 
         a call from the lady in charge of the office warehouse who was 
 
         calling on behalf of employer.  She told him that employer was 
 
         letting him go because he could not do the job anymore; claimant 
 
         was an unwanted liability; employer did not want to cover his 
 
         hospital insurance (tr. pp. 53-61).  Claimant received a letter 
 
         dated February 7, 1986, which stated, "...as of February 5, 1986 
 
         your employment with Mark Wells Distributing Co. has been 
 
         terminated.  This employment was terminated because you are 
 
         physically unable to handle the job requirements."  (JE p. 273).
 
         
 
              Claimant agreed that on January 20, 1986, he was physically 
 
         unable to do the work.  He could not do the lifting and bending 
 
         (tr. p. 75).  A vocational rehabilitation firm was hired in mid 
 
         1986 to assist claimant in finding employment.  Also, Dr. Hayne 
 
         referred claimant to see Joe R. Fellows, M.D., on June 27, 1986.
 
         
 
              On November 11, 1986, after a normal result from a magnetic 
 
         resonance imaging test, Dr. Hayne said he had nothing more to 
 
         offer claimant other than continued conservative treatment, but 
 
         because of his persistence of pain that his maximum healing 
 
         should be extended.  Dr. Hayne recommended:  (1) another 
 
         examination by Dr. Fellows or the University of Iowa Hospitals 
 
         and (3) that claimant is probably a candidate for a pain clinic 
 
         (JE p. 40). This was the last time claimant saw Dr. Hayne (tr. 
 
         pp. 61, 62 & 81).
 
         
 
              Claimant was unable to find employment again until June of 
 
         1987.  He is currently driving a truck coast-to-coast.  In this 
 
         job he only makes one or two stops rather than 20 or 30 stops all 
 
         over the midwest, but basically he is doing the same kind of 
 
         work, except that he does not have to unload the truck.  He is 
 
         actually self-employed.  He is paid by the mile and pays his own 
 
                                                
 
                                                         
 
         road expenses, loading and unloading, and health insurance.  
 
         Previously he had company employee benefits when employed by 
 
         employer such as two weeks vacation and profit sharing (tr. pp. 
 
         64-68).  Claimant said he made several job applications between 
 
         February 5, 1986, when he was discharged by employer, and June of 
 
         1987 when he found employment again (tr. pp. 72 & 73; JE VI, pp. 
 
         54-60).
 
         
 
              Claimant said that he can no longer do a lot of lifting.  
 
         More specifically, he is able to lift, but it gives him a lot of 
 
         pain (JE VI, pp. 58, 82, 84).  He can lift 90 to 100 pounds, but 
 
         he tries not to do it (tr. p. 105).  He cannot ride his motorcycle 
 
         anymore (JE VI, pp. 81, 94 & 95).  He cannot walk or be on his 
 
         feet for long periods of time.  Bending is a problem, sometimes he 
 
         gets catches when he bends (JE VI, p. 82).  Sitting in a hardback 
 
         chair is difficult.  Sitting and driving a truck is causing more 
 
         and more problems (JE VI, pp. 86, 87 & 96).  He had problems 
 
         before the injury of November 13, 1985, but they were not this 
 
         severe.  He does not play golf as before the injury of November 
 
         13, 1985.  He can climb if he is careful.  He no longer jumps off 
 
         the tailgate of a truck (tr. pp. 70-74).  He takes Tylenol #3 if 
 
         he has to drive for a long time or has to unload a truck (JE VI, 
 
         p. 67).  He was advised to change jobs, but keeps trucking to earn 
 
         good money (JE VI, pp. 68, 91 & 93).
 
         
 
              Claimant added that in his current job as a self-employed 
 
         driver for an owner-operator, he makes $900 a round from Iowa to 
 
         California and return.  His wife drives with him.  It takes five 
 
         or six days to make a round.  He averages three runs a month for 
 
         $2700 a month which he splits with his wife.  This job was 
 
         temporarily suspended at the time of the hearing due to a dispute 
 
         with the owner-operator.  He did do some loading and unloading in 
 
         this job (tr. pp. 74-78 & 99).
 
         
 
              Claimant conceded that he did not tell the truth when he put 
 
         on his job application with employer that he had completed high 
 
         school.  Claimant also admitted he lied in completing the job 
 
         application by stating that he has not had a back injury (tr. pp. 
 
         91 & 92; JE VI p. 13).  He admitted that he falsified his log 
 
         books (JE VI p. 24).  He granted he left one employment due to a 
 
         heart condition and did not work for two years and he did not 
 
         list this employment on his application with employer (tr. pp. 93 
 
         & 92; JE VI pp. 35-39, 45, 46 & 69).  Claimant granted that he 
 
         might unload the truck 25 percent of the time since his second 
 
         injury. This amounts to stacking the items in the load onto 
 
         pallets.  Then he or someone else would take it with a pallet 
 
         jack or a fork lift.  He tries to hire lumpers as much as 
 
         possible.  His wife might unload light items (tr. pp. 94-98).
 
         
 
              Claimant repeated that even though his workers' compensation 
 
         terminated in April of 1987, he did not feel that he was getting 
 
         better until later in the year (tr. p. 106).
 
         
 
              Claimant said that he first injured his low back several 
 
         years ago while working for the State of Iowa when a tractor 
 
                                                
 
                                                         
 
         slipped off of a pickup truck (JE VI, p. 60).  Claimant injured 
 
         his left leg in a motorcycle accident in 1967 and also injured 
 
         his right knee in a motorcycle accident in 1981 (JE VI, p. 61).  
 
         In 1983, claimant slipped and fell on his rear end carrying a 100 
 
         pound bag on his shoulder and bruised his cheeks in his rear end 
 
         (JE VI, pp. 61 & 62).  X-rays were normal (JE I, p. 4; & JE V, p. 
 
         244).
 
         
 
              The medical evidence follows.
 
         
 
              As to the injury of September 24, 1984, x-rays at Mercer 
 
         County Hospital in Illinois showed only hypertrophic spurring and 
 
         degenerative changes, but no bone or joint pathology of the 
 
         lumbar spine or sacrum.  The disc spaces were well maintained and 
 
         the vertebra were normally aligned (JE I, p. 3).  He was 
 
         diagnosed as having a soft tissue injury of the neck and low back 
 
         at Skiff Memorial Hospital on September 24, 1984 (JE I, p. 7).  
 
         On September 24, 1984, physician's assistant G. Randolph assess 
 
         severe cervical and lumbosacral strain with soft tissue injuries. 
 
         X-rays were within normal limits.  Physical therapy, muscle 
 
         relaxants and pain medications were prescribed (JE I, p. 8).  On 
 
         November 5, 1984, Dr. Boulden diagnosed lumbar strain (JE I, p. 
 
         13) and also lumbar contusion with tightness (JE I, p. 14 & 41).
 
         
 
              As to the injury of September 24, 1984, Angel S. Martin, 
 
         M.D., who saw claimant after this injury, said claimant's first 
 
         back problem was diagnosed on February 13, 1983 and was 
 
         reaggravated on September 24, 1984 and November 13, 1985 (JE I, 
 
         p. 24).
 
         
 
              On December 16, 1985, Dr. Hayne began seeing claimant (JE I, 
 
         p. 24).  He said the injury was related to the incident at work 
 
         on November 13, 1985, when he was pulling on a pallet jack and 
 
         strained his back (JE p. 33).  On March 14, 1986, Dr. Hayne said 
 
         a lumbar spine x-ray and a myelogram were normal and he felt 
 
         claimant's symptoms were myofascial in nature (JE I, p. 34).  On 
 
         July 18, 1986, his neurological examination showed no new 
 
         findings.  He stated that a CAT scan was also normal.  A back 
 
         brace was ordered.  He referred claimant to Dr. Fellows for an 
 
         evaluation.  He said claimant had attained maximum medical 
 
         improvement.  He felt that claimant's disability was no greater 
 
         than 3 percent of the body as a whole (JE I, p. 36).  However, on 
 
         September 30, 1986, Dr. Hayne's nurse wrote that claimant had not 
 
         been able to work due to persistent back pain and a repeat CAT 
 
         scan was ordered on September 24, 1986 (JE I, p. 37).  On October 
 
         1, 1986, Dr. Hayne said that the period of maximum healing should 
 
         be extended.  The repeat CAT scan showed only minimal 
 
         degenerative changes of the articular facets on the right side at 
 
         the L5, S1 interspace.  Dr. Fellows' x-rays showed the same 
 
         thing.  No neural encroachments had been demonstrated.  There was 
 
         no nerve root compression.  An MRI was scheduled.  Claimant was 
 
         advised to lose weight and reduce his protuberant abdomen (JE I, 
 
         p. 38).
 
         
 
              On November 6, 1986, Dr. Hayne reported that the MRI done on 
 
                                                
 
                                                         
 
         October 10, 1986, was normal.  The doctor said he had nothing 
 
         further to offer other than conservative treatment.  He added 
 
         however, that because of hie persistence of pain that his period 
 
         of maximum medical healing should be extended.  He advised 
 
         claimant to be seen again by either Dr. Fellows or the University 
 
         of Iowa.  He further stated that claimant was a candidate for a 
 
         pain clinic (JE I, p. 40).  Claimant testified that he did not 
 
         see Dr. Hayne after this, but Dr. Hayne did prescribe medication 
 
         for him.
 
         
 
              Dr. Fellows reported on June 27, 1986 that prior x-rays, 
 
         myelograms, CT scan, and MRI tests were normal.  X-rays in his 
 
         office demonstrated mild instability at the L5, S1 disc space, 
 
         but otherwise were negative.  His impression was, "History of 
 
         back injury times two, most recent in November 1985 with 
 
         persistent back complaints.  There is no objective evidence of 
 
         ruptured disc or nerve root impingement.  He may have some mild 
 
         ligamentus instability at the L5-S1 interspace."  Claimant was 
 
         wearing the back brace prescribed by Dr. Hayne and was improved.  
 
         Dr. Fellows recommended further use of the back brace and then a 
 
         good back exercise program (JE I, p. 53).
 
         
 
              Claimant returned to Dr. Fellows at the recommendation of 
 
         Dr. Hayne on November 7, 1986, for pain in the lower back with 
 
         pain radiating down his right leg.  The doctor's office tests 
 
         produced normal results.  Dr. Fellows concluded that, "My 
 
         impression is persistent back and right leg discomfort."  (JE I, 
 
         p. 54).  Dr. Fellows concluded as follows:
 
         
 
                "I am not certain why he is continuing to have back 
 
              discomfort and back pain.  I can't identify an obvious 
 
              etiology and I think if Dr. Hayne is in agreeance it might 
 
              be helpful to have him referred to Iowa City to be seen in 
 
     
 
                
 
                                                         
 
              the back clinic.  The patient seems to be fairly a 
 
              reasonable individual and I think he is having real pain but 
 
              I am unable to document or identify a specific cause of the 
 
              discomfort and pain at the present time."  (JE I, pp. 54 & 
 
              55).
 
         
 
              On February 29, 1987, Dr. Fellows said he concurred with Dr. 
 
         Hayne's assessment of 3 percent impairment.  He saw no evidence 
 
         of ruptured disc, but did find some mild instability of the L5, 
 
         S1 disc space due to muscle and ligament injury at this level.  
 
         He did not recommend surgery, but rather he recommended exercise, 
 
         weight loss and medication (JE I, p. 56).
 
         
 
              Clark H. Williams, M.S., Q.R.C., C.I.R.S., worked with 
 
         claimant from June 27, 1986, until May 4, 1987.  Williams found 
 
         that he could do little to help claimant because claimant was 
 
         undecided about whether he wanted to work in Iowa or Colorado, he 
 
         was under a great deal of stress due to his divorce and child 
 
         support obligation, and claimant was uncertain of the medical 
 
         status of his back and leg pain (JE II, pp. 202-225).
 
         
 
              Claimant saw Scott Neff, D.O., at the request of the 
 
         insurance carrier on February 15, 1988.  Dr. Neff said claimant 
 
         gave the accident of November 13, 1985, as the history of this 
 
         injury.  Since that accident he has not been able to load and 
 
         unload.  The doctor reviewed Dr. Hayne's tests of a normal CT 
 
         scan and MRI, but stated that claimant had not been given a 
 
         complete diagnostic workup because he had not been given a 
 
         diagnostic discography or diagnostic facet blocks.
 
         
 
              Dr. Neff said claimant's two injuries were muscular injuries 
 
         to his low back and ligamentus injuries which have healed.  He 
 
         said claimant also had degenerative disease which may be 
 
         accounting for the numbness, tingling and other symptoms in his 
 
         right leg.  He said claimant had a 5 percent impairment to his 
 
         body as a whole with reference to his lumbar spine.  Dr. Neff 
 
         said, "His current condition is the result of long exposure to 
 
         vibration and bouncing in the work place, lifting during loading 
 
         and unloading, genetic predisposition for degenerative disease, 
 
         and repeated injury."  (JE I, pp. 42 & 43).
 
         
 
              In response to a letter from claimant's counsel dated March 
 
         2, 1988, Dr. Neff replied on March 21, 1988 and June 3, 1988, 
 
         that the 5 percent impairment to the body as a whole was a direct 
 
         result of the injury of November 13, 1985, and this rating did 
 
         not include the degenerative disease (JE I, pp. 45, 49 & 50).
 
         
 
              Then on July 14, 1988, in response to a letter from 
 
         defendant employer and Liberty Mutual, he gave claimant a 6 
 
         percent impairment rating and prorated it 2 percent to 
 
         degenerative changes, 2 percent to the injury of September 24, 
 
         1984, and 2 percent to the injury of November 13, 1985 (JE I, p. 
 
         51).
 
         
 
              In a deposition dated August 24, 1988, Dr. Neff admitted to 
 
                                                
 
                                                         
 
         the contradictory statements he had made.  He attributed it 
 
         partially to the fact his office had two charts on claimant.  Dr. 
 
         Neff then testified that since claimant was able to work for a 
 
         year after the September 24, 1984 injury that he would 
 
         arbitrarily feel that claimant has a 5, 6, or 7 percent 
 
         impairment to his body as a whole and 5 percent impairment was 
 
         due to the injury of November of 1985 (JE I, E, p. 14).  Dr. Neff 
 
         said he would amend the information that he gave in the letter of 
 
         July 14, 1988, where he prorated the impairment there was (JE I, 
 
         E, pp. 21 & 22).
 
         
 
                              APPLICABLE LAW AND ANALYSIS
 
         
 
              An employee is entitled to compensation for any and all 
 
         personal injuries which arise out of and in the course of the 
 
         employment.  (Section 85.3(1).
 
         
 
              Claimant has the burden of proving by a preponderance of the 
 
         evidence that he received injuries on September 24, 1984 and 
 
         November 13, 1985, which arose out of and in the course of his 
 
         employment.  McDowell v. Town of Clarksville, 241 N.W.2d 904 
 
         (Iowa 1976); Musselman v. Central Telephone Co., 261 Iowa 352, 
 
         154 N.W.2d 128 (1967).
 
         
 
              The claimant has the burden of proving by a preponderance of 
 
         the evidence that the injuries of September 24, 1984 and November 
 
         13, 1985, are causally related to the disability on which he now 
 
         bases his claim.  Bodish v. Fischer, Inc., 257 Iowa 516, 133 
 
         N.W.2d 867 (1965).  Lindahl v. L.O. Boggs, 236 Iowa 296, 18 
 
         N.W.2d 607 (1945).  A possibility is insufficient; a probability 
 
         is necessary.  Burt v. John Deere Waterloo Tractor Works, 247 
 
         Iowa 691, 73 N.W.2d 732 (1955).  The question of causal 
 
         connection is essentially within the domain of expert testimony.  
 
         Bradshaw v. Iowa Methodist Hospital, 251 Iowa 375, 101 N.W.2d 167 
 
         (1960).
 
         
 
              While a claimant is not entitled to compensation for the 
 
         results of a preexisting injury or disease, the mere existence at 
 
         the time of a subsequent injury is not a defense.  Rose v. John 
 
         Deere Ottumwa Works, 247 Iowa 900, 908, 76 N.W.2nd 756, 760-761 
 
         (1956).  If the claimant had a preexisting condition or 
 
         disability that is aggravated, accelerated, worsened or lighted 
 
         up so that it results in disability, claimant is entitled to 
 
         recover.  Nicks v. Davenport Produce Co., 254 Iowa 130, 115 
 
         N.W.2d 812, 815 (1962).
 
         
 
              As claimant has an impairment to the body as a whole, an 
 
         industrial disability has been sustained.  Industrial disability 
 
         was defined in Diederich v. Tri-City Railway Co., 219 Iowa 587, 
 
         593, 258 N.W. 899, 902 (1935) as follows:  "It is therefore plain 
 
         that the legislature intended the term 'disability' to mean 
 
         'industrial disability' or loss of earning capacity and not a 
 
         mere 'functional disability' to be computed in the terms of 
 
         percentages of the total physical and mental ability of a normal 
 
         man."
 
                                                
 
                                                         
 
         
 
              Functional impairment is an element to be considered in 
 
         determining industrial disability which is the reduction of 
 
         earning capacity, but consideration must also be given to the 
 
         injured employee's age, education, qualifications, experience and 
 
         inability to engage in employment for which he is fitted.  Olson 
 
         v. Goodyear Service Stores, 255 Iowa 1112, 1121 125 N.W.2d 251, 
 
         257 (1963).
 
         
 
              With respect to the injury of September 24, 1984, claimant 
 
         did not sustain the burden of proof by a preponderance that this 
 
         back injury was the cause of any permanent disability.  The brief 
 
         of the attorney for defendant employer and Travelers covers this 
 
         issue well.  Unfortunately, due to the length of his brief it 
 
         cannot be published here in its entirety.  His summarized points 
 
         are as follows:  The evidence in this case establishes only a 
 
         brief period of temporary total disability from September 24, 
 
         1984 to November 12, 1984.  Neither Dr. Martin or Dr. Boulden 
 
         assessed any permanent impairment or stated anything to suggest 
 
         that any permanent impairment might exist.  Claimant testified 
 
         that he did not see Dr. Boulden or any other doctor for his back 
 
         after November of 1984 until after the injury on November 13, 
 
         1985.
 
         
 
              Although claimant testified that his back still bothered him 
 
         after the first injury and before the second injury and that he 
 
         took Tylenol for pain, he did not seek any medical care.  Dr. 
 
         Neff commented, "One would assume if someone was really miserable 
 
         and really having problems that they would seek medical care 
 
         somewhere."  (JE I, E, p. 25).  Reviewing the medical records of 
 
         Dr. Martin, Skiff Hospital, and Dr. Boulden, claimant did not 
 
         seek any medical attention for his back at any time after 
 
         November of 1984 until approximately two weeks after the injury 
 
         of November 13, 1985 on November 25, 1985.  At the same time, 
 
         claimant earned more money in 1984 than he did in 1983 inspite of 
 
         his time off from September 24, 1984 to November 12, 1984.  He 
 
         also earned more money in 1984 than he did in 1985 and he earned 
 
         all of it prior to the injury on November 13, 1985.  Claimant 
 
         performed the same job after the injury of September 24, 1984 
 
         that he had performed before this injury (tr. p. 39).  His job 
 
         duties remained unchanged.  Claimant's first loss of income 
 
         occurred after the November 13, 1985 injury.  Although claimant 
 
         hires an assistant to help with the unloading he had done this 
 
         prior to the injury of September 24, 1984.  Dr. Hayne and Dr. 
 
         Neff attributed claimant's impairment to the injury of November 
 
         13, 1985 (JE I, pp. 33, 49 & 50; JE I, E, pp. 13 & 14).  Dr. 
 
         Fellows also stated, "His original injury of the back was 
 
         November 13, 1985..."  (JE I, p. 54). Therefore, it is determined 
 
         that claimant did not sustain the burden of proof by a 
 
         preponderance of the evidence that the injury of September 24, 
 
         1984, was the cause of permanent disability. Claimant then is not 
 
         entitled to permanent disability benefits as a result of this 
 
         injury.  Furthermore, defendant employer and Liberty Mutual did 
 
         not prove that the injury of September 24, 1984, was the cause of 
 
         any permanent impairment or disability.
 
                                                
 
                                                         
 
         
 
              Claimant did sustain the burden of proof by a preponderance 
 
         of the evidence that he sustained an injury to his low back on 
 
         November 13, 1985, which arose out of and in the course of 
 
         employment with employer.  It is true that the injury was not 
 
         witnessed.  Many injuries are not witnessed.  Neither party chose 
 
         to introduce any evidence from Danny Johnson, who was in the 
 
         vicinity at the time the injury occurred and rode home from North 
 
         Dakota with claimant, to shed any light on whether claimant did 
 
         or did not injure his back as described.  Claimant's description 
 
         of the incident then stands as his evidence of the occurrence of 
 
         the event and his testimony is not controverted, contradicted, 
 
         disputed or refuted by any other evidence.  Claimant admitted 
 
         that he lied on employment applications that he was a high school 
 
         graduate and that he did not have prior back injuries in order to 
 
         get a job.  He admitted he falsified the mileage in his log book 
 
         in order to meet the requirements of his job.  There was no 
 
         evidence however to suggest that he lied about either of these 
 
         injuries.  Danny Johnson possibly could have given evidence to 
 
         dispute claimant's testimony, but there is no evidence from Danny 
 
         Johnson in the record.  It is not unusual for truckers who are 
 
         injured on the road to return home before seeking care in 
 
         nonemergency situations.  It is not unusual for medical providers 
 
         to record slight variations on how an injury occurred.  Dr. 
 
         Martin and the personnel at Skiff Hospital accepted claimant's 
 
         account of the accident and treated him on the basis of that 
 
         history.
 
         
 
              Dr. Hayne accepted claimant's version of how the accident 
 
         occurred without any suspicion and stated on January 20, 1986, 
 
         that, "Merle C. Killinger's injury was related to the incident at 
 
         work on November 13, 1985, when he was pulling on a pallet jack 
 
         and strained his back."  (JE I, p. 33).  Dr. Neff did not 
 
 
 
                
 
                                                         
 
         question this history when he first saw claimant on February 15, 
 
         1988. Based on this history, a mild reduction in motion and x-ray 
 
         studies he awarded claimant a 5 percent impairment of the body as 
 
         a whole (JE I, pp. 42 & 43).  In a letter dated March 21, 1988, 
 
         he said this rating was exclusive of the degenerative disease (JE 
 
         I, pp. 49 & 50).  On June 3, 1988, Dr. Neff wrote, "I believe 
 
         that his 5% current impairment is directly the result of the work 
 
         related injury that occurred in November of 1985."  (JE I, p. 
 
         50). In his deposition, Dr. Neff stated:
 
         
 
              So I would again arbitrarily feel that he has a 5 or a 6 or 
 
              a 7 percent impairment to his entire body based on the total 
 
              situation of his back and that 5 percent of that should be 
 
              due to the November of '85 injury and whatever portion 
 
              remains should be due to the normal wear and tear changes 
 
              and degeneration that have occurred as a part of all of his 
 
              lifelong activities.
 
         
 
         (JE I, E, p. 14)
 
         
 
              From this evidence it is determined that claimant did 
 
         sustain an injury on November 13, 1985, that arose out of and in 
 
         the course of employment with employer and that the injury was 
 
         the cause of both temporary and permanent disability.
 
         
 
              Claimant is entitled to healing period benefits from 
 
         November 25, 1985 to November 6, 1986.  Dr. Martin took claimant 
 
         off work on November 25, 1985.  Claimant reached maximum medical 
 
         improvement on November 7, 1986.  Defendant employer and Liberty 
 
         Mutual agree to these dates in their excellent posthearing brief. 
 
         The same defendants concur that although Dr. Hayne said that 
 
         claimant had reached maximum medical improvement on July 18, 1986 
 
         (JE I, p. 36), he changed his mind on October 1, 1986, and 
 
         because of claimant's persistent complaints he felt the period of 
 
         maximum healing should be extended.  Dr. Hayne then ordered an 
 
         MRI (JE I, p. 38).  On November 6, 1986, the MRI was reported as 
 
         normal, but because of his persistence of pain, Dr. Hayne said 
 
         the period of maximum healing should be extended until claimant 
 
         could be seen by Dr. Fellows again or at the University of Iowa 
 
         (JE I, p. 40). Claimant was seen on November 7, 1986 by Dr. 
 
         Fellows, who like Dr. Hayne, had nothing further to offer (JE I, 
 
         p. 54).  This was the end of claimant's medical treatment.  
 
         Neither claimant or employer pursued any further medical 
 
         treatment after this date. Consequently, it is determined that 
 
         claimant is entitled to healing period benefits from November 25, 
 
         1985 to November 7, 1986.
 
         
 
              As previously mentioned, Dr. Hayne found a 3 percent 
 
         impairment of the body as a whole.  Dr. Fellows had no 
 
         disagreement with the rating of 3 percent impairment of the body 
 
         as a whole (JE I, p. 45).  Dr. Neff found a 5 percent impairment 
 
         to the body as a whole directly caused by the injury of November 
 
         13, 1985.
 
         
 
              Claimant is 44 years old at this time.  He was 40 years old 
 
                                                
 
                                                         
 
         at the time of the injury on November 13, 1985.  This period of 
 
         time is when claimant is at the peak of his earning capacity.  
 
         This is demonstrated by claimant's increasing actual earnings in 
 
         1983, 1984 and 1985 as set forth above.  This makes claimant's 
 
         loss more severe than it would be in the case of an older or 
 
         younger employee.  Becke vs. Tuner-Busch, Thirty-fourth Biennial 
 
         Report of the Industrial Commissioner 34 (Appeal Decision 1979); 
 
         Walton vs. B & H Tank Corp., II Iowa Industrial Commissioner 
 
         Report 246 (1981); McCoy vs. Donaldson Company, Inc., file number 
 
         752670 & 805300 (Appeal Decision April 28, 1989).
 
         
 
              At age 44 claimant is young enough to be retrained.  The 
 
         feasibility of retraining is one of the considerations involved 
 
         in determining industrial disability.  However, retraining would 
 
         be costly and difficult at age 44.  Conrad vs. Marquette School 
 
         Inc., IV Iowa Industrial Commissioner Report 74, 78 (1984)
 
         
 
              Claimant has a partial ninth grade education.  Nevertheless, 
 
         his wide variety of employments and his multiple abilities and 
 
         experiences in past employments make him more educated than most 
 
         persons who have completed high school.  Frankly, he has so many 
 
         abilities that he can call upon from past employments that 
 
         retraining would not be required in his case.  At the same time, 
 
         claimant has found it difficult to find employment with employers 
 
         because of a lack of a formal education on paper.  He has also 
 
         found it difficult to find employment as a person who has 
 
         sustained a job injury and received workers' compensation 
 
         benefits.  A back injury is definitely a liability in the 
 
         trucking industry.  He has chosen at the present time to continue 
 
         working as an over-the-road trucker as his best opportunity to 
 
         support himself, his wife, and meet his child support 
 
         obligations.  His employment opportunities are limited as a 
 
         trucker because he is advised:  (1) to be careful lifting and (2) 
 
         not to do a lot of heavy lifting.  In this respect, a large 
 
         portion of the over-the-road trucker jobs are foreclosed to him.  
 
         Michael v. Harrison County, Thirty-fourth Biennial Report of the 
 
         Industrial Commissioner, 218, 220 (Appeal Decision January 30, 
 
         1979); Rohrberg v. Griffin Pipe Products Co., I Iowa Industrial 
 
         Commissioner Report, 282 (1984).
 
         
 
              At the time of hearing claimant was working in self-employed 
 
         status without workers' compensation insurance.  Therefore, as 
 
         claimant pointed out, his chances of obtaining a job with company 
 
         employee benefits in the future is reduced.
 
         
 
              Claimant's restrictions are not entirely attributable to the 
 
         injury of November 13, 1985, because they were recommended by Dr. 
 
         Boulden after the injury of September 24, 1984 and prior to the 
 
         injury of November 13, 1985.  Claimant had hired a helper before 
 
         either of these injuries.  However, since the injury of November 
 
         13, 1985, it is much more imperative that claimant abide by these 
 
         restrictions.
 
         
 
              To the credit of defendant insurance carrier Liberty Mutual, 
 
         is that they did retain a very competent vocational 
 
                                                
 
                                                         
 
         rehabilitation consultant to assist claimant in finding work.  
 
         Claimant was not ready for assistance at that time because of 
 
         personal problems and because his medical status was not yet 
 
         determined by the doctors at that period of time.
 
         
 
              Also the data gathered by the vocational rehabilitation 
 
         consultant in this case was helpful in determining industrial 
 
         disability.  The resume prepared by the consultant for claimant 
 
         should have been and still is a helpful tool to assist him in 
 
         finding employment.  Webb vs. Lovejoy Construction Company, II 
 
         Iowa Industrial Commissioner Reports 430, 435 (Appeal Decision 
 
         1981).
 
         
 
              As stated above, industrial disability has been defined as 
 
         reduction in earning capacity.  Olson, 255 Iowa 1112, 1120, 125 
 
         N.W.2d 251, 256 (1963); McSpadden vs. Big Ben Coal Co., 288 
 
         N.W.2d 181, 192 (Iowa 1980).  One of the criteria to be used to 
 
         determine industrial disability is "....inability, because of 
 
         injury, to engage in employment for which he is fitted."  
 
         McSpadden, 288 N.W.2d at 192 quoting Olson 255 Iowa at 1120, 125 
 
         N.W.2d at 257. Change of job condition, such as being asked to 
 
         take a lower paying job, can justify an increase of industrial 
 
         disability without a change in physical condition.  Blacksmith 
 
         vs. All-American, Inc., 290 N.W.2d 348, 350 (Iowa 1980).  The 
 
         idea is that it is not so much the injury, but rather the 
 
         economic loss of work that causes industrial disability.  The 
 
         Iowa Supreme Court has stated that an employer's refusal to 
 
         provide any work for an injured employee is a factor to be taken 
 
         into consideration in the determination of industrial disability 
 
         irrespective and independent of functional impairment.  
 
         McSpadden, 288 N.W.2d 181, 192 (Iowa 1980).
 
         
 
              In this particular case, employer involuntarily discharged 
 
         claimant because he was unable to perform the physical 
 
         requirements of his job of driving a truck which included loading 
 
         and unloading, primarily unloading.  Refusal of an employer to 
 
         employ an injured employee is strong evidence of lack of 
 
         employability.  Professor Larson makes a point which applies to 
 
         this particular case, "At the outset, one might suppose that the 
 
         refusal of defendant-employer himself to employ the claimant 
 
         would be the strongest kind of evidence against that employer."  
 
         Then he asserts what as a practical matter ought to be obvious, 
 
         "It is hardly necessary to labor the inconsistency of permitting 
 
         an employer to fire a man for physical defects caused by his own 
 
         employment conditions, and then to disclaim compensation 
 
         liability by presenting medical evidence that the man is not 
 
         really disabled after all."  2 Larson, Workmen's Compensation 
 
         Law, section 57.61(b) at pages 10-173 and 10-176.
 
         
 
              Postinjury earnings are not the measure of industrial 
 
         disability, but do create an inference of earning capacity.  The 
 
         inference is rebuttable by evidence showing them to be 
 
         unreliable. 2 Larson, section 85.21(c)(d).  Claimant was earning 
 
         close to $30,000 at the time of the injury.  Based on his 1987 
 
         earnings of approximately $10,000 in one-half a year, and 
 
                                                
 
                                                         
 
         projecting that his earnings might be approximately $20,000 in a 
 
         complete year, then claimant has sustained a loss of actual 
 
         earnings of approximately one-third of what he was earning at the 
 
         time of the injury on November 13, 1985, provided his earnings 
 
         continue at the present rate.
 
         
 
              The award in this case takes into consideration:  (1) that 
 
         claimant has a degenerative back condition; (2) that he had a 
 
         fall in 1983; (3) that he sustained a back injury on September 
 
         24, 1984; (4) that he hired a helper to unload before both of 
 
         these injuries; (5) that objective medical tests did not pinpoint 
 
         a serious diagnosable physical injury; and (6) that claimant is 
 
         overweight and his back condition is exacerbated by a protuberant 
 
         abdomen. Nevertheless, Dr. Hayne, Dr. Fellows and Dr. Neff 
 
         believed and stated that his pain and disability were real and 
 
         caused by the injury of November 13, 1985.  Medical science has 
 
         not developed to the point where every injury or illness can be 
 
         established by objective evidence and be given a perfect 
 
         diagnosis.  A large percentage of the medical treatment proceeds 
 
         on the subjective complaints of the patient and the doctor's best 
 
         guess on how to treat the symptoms and complaints.  Furthermore, 
 
         Dr. Neff, defendants' own doctor, said claimant had not received 
 
         a complete workup because he did not have diagnostic discography 
 
         or diagnostic facet blocks.
 
         
 
              Claimant admitted that he has lied in the past to obtain his 
 
         objectives, but there was no evidence presented to show that any 
 
         false statements of claimant affected the outcome of this case in 
 
         this decision.
 
         
 
              None of the doctors imposed any formal written restrictions, 
 
         but the fact remains that claimant was involuntarily terminated 
 
         because of his physical inability to do his job as a trucker. 
 
 
 
                
 
                                                         
 
         Claimant admitted he could not do it because of the bending and 
 
         lifting involved unloading trucks.  In his current truck driving 
 
         job, claimant hires others to perform loading and unloading 
 
         tasks. This enables claimant to perform the job of over-the-road 
 
         truck driving, but in turn reduces his earnings.  Claimant has 
 
         demonstrated an active loss of earnings of approximately 
 
         one-third of his preinjury income.
 
         
 
              Wherefore, based on the foregoing considerations and all of 
 
         the considerations used to determine industrial disability, and 
 
         agency expertise [Iowa Administrative Procedure Act Section 
 
         17A.14(5)], it is determined that claimant has sustained an 
 
         industrial disability of 25 percent of the body as a whole.
 
         
 
              Defendants are not entitled to apportionment.  Dr. Neff 
 
         excluded the degenerative condition from his impairment rating.  
 
         He said  the entire 5 percent he awarded was due to the injury of 
 
         November 13, 1985.  Therefore, there is no medical evidence to 
 
         support an apportionment.  Varied Industries vs. Sumner, 353 
 
         N.W.2d 407 (Iowa 1984).
 
         
 
                              FINDINGS OF FACT
 
         
 
              Wherefore, based upon the evidence presented the following 
 
         findings of fact are made.
 
         
 
              That claimant did not seek medical care for his low back 
 
         after the injury of September 24, 1984 and before the injury of 
 
         November 13, 1985; that his earnings increased in 1984 and 1985 
 
         inspite of his time off work for both injuries; and no doctor 
 
         indicated that claimant sustained a permanent physical impairment 
 
         as a result of this injury.
 
         
 
              That the injury of September 24, 1984, was not the cause of 
 
         permanent disability.
 
         
 
              That claimant injured his back on November 13, 1985 while 
 
         operating a pallet jack unloading a truck.
 
         
 
              The claimant sustained an injury on November 13, 1985 which 
 
         arose out of and in the course of employment with employer while 
 
         unloading a truck with a pallet jack.
 
         
 
              That Dr. Hayne, Dr. Fellows and Dr. Neff said that this 
 
         injury was the cause of claimant's temporary and permanent 
 
         disability.
 
         
 
              That claimant was off work from November 25, 1985 to 
 
         November 7, 1986 for medical treatment caused by this injury.
 
         
 
              That claimant sought no further medical treatment for the 
 
         injury of November 13, 1985 after November 7, 1986.
 
         
 
              That Dr. Hayne assessed a 3 percent permanent impairment; 
 
         that Dr. Fellows concurred in a 3 percent permanent impairment; 
 
                                                
 
                                                         
 
         that Dr. Neff assessed a 5 percent permanent impairment; and that 
 
         each doctor said that these impairments were due to the injury of 
 
         November 13, 1985.
 
         
 
              That claimant was involuntarily discharged by employer 
 
         because he was not able to meet the physical requirements of an 
 
         over-the-road truck driver with duties that included loading and 
 
         unloading of the truck.
 
         
 
              That claimant is age 44, has a ninth grade education, and 
 
         cannot return to over-the-road trucking that involves loading and 
 
         unloading of trucks, except on a very limited basis.
 
         
 
              That claimant's actual earnings have been reduced 
 
         approximately one-third in the short time he has been employed 
 
         after returning to work following the injury of November 13, 
 
         1985.
 
         
 
              That claimant has sustained an industrial disability of 25 
 
         percent of the body as a whole.
 
         
 
                                  CONCLUSIONS OF LAW
 
         
 
              WHEREFORE, based upon the evidence presented and the 
 
         foregoing principles of law, the following conclusions of law are 
 
         made.
 
         
 
              That claimant did not sustain the burden of proof by a 
 
         preponderance of the evidence that the injury of September 24, 
 
         1984, was the cause of permanent disability.
 
         
 
              That claimant is not entitled to permanent disability 
 
         benefits as a result of the injury of September 24, 1984.
 
         
 
              That claimant did sustain an injury on November 13, 1985, 
 
         that arose out of and in the course of employment when he injured 
 
         his back while pulling on a pallet jack.
 
         
 
              That the injury of November 13, 1985, was the cause of both 
 
         temporary and permanent disability.
 
         
 
              That claimant is entitled to 49.714 weeks of healing period 
 
         benefits from November 25, 1985 to November 7, 1986.
 
         
 
              That claimant is entitled to 125 weeks of permanent partial 
 
         disability benefits based upon a 25 percent industrial disability 
 
         to the body as a whole.
 
         
 
              That defendant employer and Liberty Mutual are not entitled 
 
         to an apportionment of benefits.
 
         
 
                                         ORDER
 
         
 
              THEREFORE, IT IS ORDERED:
 
         
 
                                                
 
                                                         
 
              That no amounts are due to claimant from defendant employer 
 
         and Travelers as a result of the injury of September 24, 1984.
 
         
 
              That defendant employer and Liberty Mutual Insurance Company 
 
         pay to claimant forty-nine point seven one four (49.714) weeks of 
 
         healing period benefits at the rate of three hundred twenty-six 
 
         and 95/100 dollars ($326.95) per week in the total amount of 
 
         sixteen thousand two hundred fifty three and 99/100 dollars 
 
         ($16,253.99) commencing on November 25, 1985, as a result of the 
 
         injury which occurred on November 13, 1985.
 
         
 
              That defendant employer and Liberty Mutual Insurance Company 
 
         pay to claimant one hundred twenty-five (125) weeks of workers' 
 
         compensation permanent partial disability benefits at the rate of 
 
         three hundred twenty-six and 95/100 dollars ($326.95) per week in 
 
         the total amount of forty thousand eight hundred sixty-eight and 
 
         75/100 dollars ($40,868.75) commencing on November 25, 1985 as a 
 
         result of the injury which occurred on November 13, 1985.
 
         
 
              That defendant employer and Liberty Mutual Insurance Company 
 
         are entitled to a credit for seventy-four (74) weeks of workers' 
 
         compensation benefits paid prior to hearing at the rate of three 
 
         hundred twenty-six and 95/100 dollars ($326.95) per week in the 
 
         total amount of twenty-four thousand one hundred ninety-four and 
 
         30/100 dollars ($24,194.30).
 
         
 
              That these benefits are to be paid in a lump sum.
 
         
 
              That interest will accrue pursuant to Iowa Code section 
 
         85.30.
 
         
 
              That the costs of this action are charged to employer and 
 
         Liberty Mutual Insurance Company pursuant to Division of 
 
         Industrial Services Rule 343-4.33, including the cost of the 
 
         attendance of the court reporter at hearing and the cost of the 
 
         transcript of the hearing.
 
         
 
              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 27th day of October, 1989.
 
         
 
         
 
         
 
         
 
         
 
         
 
                                            WALTER R. McMANUS, JR.
 
                                            DEPUTY INDUSTRIAL 
 
                                            COMMISSIONER
 
         
 
         Copies to:
 
         
 
         Mr. Robert Pratt
 
                                                
 
                                                         
 
         Attorney at Law
 
         1913 Ingersoll Ave.
 
         Des Moines, IA  50309
 
         
 
         Mr. Richard G. Book
 
         Attorney at Law
 
         500 Liberty Bldg.
 
         Des Moines, IA  50309
 
         
 
         Mr. William Scherle
 
         Attorney at Law
 
         8th Floor Fleming Bldg.
 
         Des Moines, IA  50309
 
         
 
         
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
                                                
 
 
            
 
 
 
 
 
                            
 
 
 
                                       1108.50; 1401; 1402.20; 1402.30 
 
                                       1402.40; 1403.40; 1802; 1803;
 
                                       Filed October 27, 1989
 
                                       WALTER R. McMANUS, JR.
 
         
 
                   BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         MERLE KILLINGER,
 
         
 
              Claimant,
 
         
 
         vs.                                       File Nos. 775851
 
                                                             808991
 
         MARK WELLS DISTRIBUTING CO.,
 
                                                A R B I T R A T I 0 N
 
              Employer,
 
                                                   D E C I S I 0 N
 
         and
 
         
 
         TRAVELERS INSURANCE CO. and
 
         LIBERTY MUTUAL INSURANCE CO.,
 
         
 
              Insurance Carriers,
 
              Defendants.
 
         
 
         
 
         
 
         1108.50; 1401; 1402.20; 1402.30; 1402.40; 1403.40
 
         
 
              Claimant did sustain an injury arising out of and in the 
 
         course of employment with employer when he slipped on some flour 
 
         on the floor of the truck while pulling on a pallet jack and 
 
         injured his low back even though the injury was not witnessed and 
 
         claimant did not seek medical care until after he got home. 
 
         Claimant was working with a companion and defendants produced no 
 
         statement from the companion to controvert claimant's testimony. 
 
         The fact various medical reports give variances on the exact 
 
         manner of how the injury occurred is not unusual.
 
         
 
         1802; 1803
 
         
 
              Claimant sustained two back injuries.  It was determined 
 
         that the first one was not the cause of permanent disability.  
 
         All of claimant's permanent disability arose from the second 
 
         injury and that the second carrier was liable for all of the 
 
         permanent disability.  Claimant did not seek medical treatment in 
 
         between the two injuries, there was no impairment rating given 
 
         after the first injury and claimant performed his regular job 
 
         after the first injury.
 
         
 
              Impairment ratings were 3 percent, 3 percent and 5 percent. 
 
         All standard tests failed to disclose a definitive problem other 
 
         than muscle and ligament instability at L5, S1.  Restrictions 
 
         were to be careful lifting and don't do a lot of heavy lifting. 
 
                                                
 
                                                         
 
         Employer fired claimant because he could not meet the physical 
 
         requirements of the job.  Claimant proved earnings loss of 
 
         one-third and was unemployed for about a year and one-half, most 
 
         of which the doctor said was valid healing period.  Claimant was 
 
         awarded 25 percent industrial disability.
 
         
 
         
 
         
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
                                                
 
 
         
 
         Page   1
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
         before the iowa industrial commissioner
 
         ____________________________________________________________
 
                   :
 
         BARBARA J. WOLFE,   :
 
                   :
 
              Claimant, :
 
                   :
 
         vs.       :
 
                   :   File Nos. 730638/775865
 
         IOWA MEAT PROCESSING,    :
 
                   :         A P P E A L
 
              Employer, :
 
                   :       D E C I S I O N
 
         and       :
 
                   :
 
         CHUBB GROUP OF INSURANCE CO.  :
 
         and ARGONAUT INSURANCE CO.,   :
 
                   :
 
              Insurance Carriers, :
 
                   :
 
         and       :
 
                   :
 
         SECOND INJURY FUND, :
 
         
 
              Defendants.    :
 
         ___________________________________________________________
 
         The record, including the transcript of the hearing before the 
 
         deputy and all exhibits admitted into the record, has been 
 
         reviewed de novo on appeal.  The decision of the deputy filed 
 
         November 3, 1989 is affirmed and is adopted as the final agency 
 
         action in this case, with the following additional analysis:
 
         Claimant's cross-appeal in this case is not considered as it was 
 
         dismissed by an appeal ruling filed February 14, 1990.  The 
 
         defendant insurance company, Argonaut, states that one of the 
 
         issues on appeal is that "[c]laimant is not entitled to any 
 
         additional benefits from Argonaut Insurance Companies."  The 
 
         parties entered into a stipulation prior to the hearing which 
 
         stated that claimant had been paid compensation for healing 
 
         period of 40 3/7 weeks and permanent partial disability benefits 
 
         of 37.5 weeks.  Defendant Argonaut contends that the stipulations 
 
         are binding upon the parties.  A recent appeal decision states:
 
              A stipulation is an agreement by the parties that certain 
 
         facts are true and need not be litigated.  Claimant acknowledges 
 
         error and now seeks to reduce the amount of credit defendants are 
 
         entitled to.  Claimant should not benefit from lack of 
 
         preparation before entering into the stipulation.  On the other 
 
         hand, defendants should not enjoy a windfall as a result of a 
 
         computation error.  The amount of benefits previously paid to 
 
         claimant should be readily verifiable.  The parties will be 
 
         ordered to apply credit for any amounts actually paid against any 
 
         award of benefits below.
 

 
         
 
         Page   2
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
         Weishaar v. Snap-On Tools Corporation, File #847903, 848681, 
 
         848682, Appeal Decision, June 28, 1991.
 
         In accordance with the deputy's order, defendants shall file a 
 
         claimant activity report within thirty (30) days of the filing 
 
         date of this decision.  Defendants shall receive credit for any 
 
         or all voluntary payments paid.  If the amount of benefits paid 
 
         by the defendants exceeds the amount of claimant's award, 
 
         claimant shall take nothing.  Claimant is not entitled to the 
 
         full amount of the stipulated benefits which have not been paid 
 
         if those benefits exceed the amount of claimant's award.  
 
         Argonaut Insurance Company shall pay the costs of the appeal, 
 
         including the preparation of the hearing transcript.
 
         Signed and filed this ____ day of August, 1991.
 
         
 
         
 
         
 
         
 
                   ________________________________
 
                            BYRON K. ORTON
 
                       INDUSTRIAL COMMISSIONER
 
         
 
         Copies To:
 
         
 
         Mr. Harry H. Smith
 
         Attorney at Law
 
         P.O. Box 1194
 
         Sioux City, Iowa 51102
 
         
 
         Ms. Judith Ann Higgs
 
         Attorney at Law
 
         701 Pierce St., Ste 200
 
         P.O. Box 3086
 
         Sioux City, Iowa 51102
 
         
 
         Mr. Harry W. Dahl
 
         Attorney at Law
 
         974 73rd St., Ste 16
 
         Des Moines, Iowa 50312
 
         
 
         Ms. Joanne Moeller
 
         Assistant Attorney General
 
         Tort Claims Division
 
         Hoover State Office Bldg.
 
         Des Moines, Iowa 50319