BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
        
 
        
 
        MARK BURKART,
 
        
 
            Claimant,
 
                                              File No. 776033
 
        JELD-WEN FIBER PRODUCTS OF
 
        IOWA                               A R B I T R A T I O N
 
        
 
            Employer                         D E C I S I O N
 
        
 
        and                                      F I L E D
 
        
 
        WAUSAU INSURANCE COMPANIES,            MAY 10 1989
 
        
 
            Insurance Carrier,       IOWA INDUSTRIAL COMMISSIONER
 
             Defendants.
 
             
 
             
 
                                      INTRODUCTION
 
        
 
             This is a proceeding in arbitration brought by claimant, 
 
             Mark Burkart, against Jeld-Wen Fiber Products of Iowa, employer, 
 
             and Wausau Insurance Companies, insurance carrier to recover 
 
             benefits as a result of an injury sustained on September 21, 
 
             1984. This matter comes on for hearing before the undersigned 
 
             deputy industrial commissioner in Dubuque, Iowa, on February 8, 
 
             1989. The record consists of the testimony of claimant, 
 
             claimant's wife, Mary Burkart; Richard Deckert; Mark DeMuth; 
 
             Steve Wolf; joint exhibits 1 through 4; and defendants' exhibit 
 
             A. There was an objection to defendants' exhibit A, which 
 
             objection was deferred until this time. Claimant's objection to 
 
             defendants' exhibit A is hereby overruled.
 
        
 
                     ,                ISSUES
 
        
 
             The issues for resolution are:
 
        
 
             1. Whether claimant's injury arose out of and in the course 
 
             of his employment on September 21, 1984;
 
        
 
             2. Whether claimant's disability is causally connected to 
 
             his injury of September 21, 1984;
 
        
 
             3. The nature and extent of claimant's disability.
 
        
 
             4. Whether claimant's medical benefits under 85.27 are 
 
             authorized; and
 
        
 
              5. To whom should costs be taxed.
 
        
 
                                 REVIEW OF THE EVIDENCE
 
        
 
             Claimant testified that he injured his right shoulder on 
 
             September 21, 1984 while separating door skins for defendant 
 
             employer . Claimant stated that he started working for defendant 
 
             employer full time in March 1984 at $6.74 per hour. Claimant 
 
             indicated that the employer added two openings to his door skin 
 
             machine and he was having a hard time keeping up with the flow of 
 
             skins. Claimant testified that his right shoulder began hurting 
 

 
        
 
 
 
 
 
             for approximately two weeks and sought medical attention, and on 
 
             September 21, 1984 claimant's right shoulder tightened up so that 
 
             claimant had to take off work. Claimant said that he was off 
 
             work one month plus with his right arm in a sling. Claimant 
 
             testified he returned to work but his right shoulder was 
 
             bothering him.
 
        
 
            On January 22, 1985, David Field, M.D., performed a shoulder 
 
        staple type procedure on claimant's right shoulder. Claimant 
 
        testified that he returned to light duty work in March 1985 with 
 
        a 50-75 pound weight restriction and no overhead lifting with his 
 
        right arm. Claimant said that he did this job until he was 
 
        terminated November 8, 1985 due to a company layoff. Claimant 
 
        acknowledged that he was examined on January 30, 1986 by Dr. 
 
        Field in the claimant's attempt to enter the U.S. Navy. Dr. Field 
 
        at that time found claimant lacked 10 degrees of external 
 
        rotation of his shoulder. Claimant testified that he found a job 
 
        in July 1986 at Miracle Car Wash making minimum wage. Claimant 
 
        said that he was working for this company four or five months and 
 
        was having shoulder problems. Claimant testified that he 
 
        underwent additional therapy and medical treatment and in April 
 
        1987 again had surgery on his left shoulder. Claimant stated 
 
        that he was released to go to work in June 1987 and applied for a 
 
        job at FDL Food Service Packing Company but was not hired. 
 
        Claimant indicated that this company asked for a physical 
 
        examination but claimant did not think that the results of this 
 
        physical examination had anything to do with claimant's not 
 
        getting the job. Claimant stated that after working six weeks at 
 
        Arby's he began working part-time in approximately September 1987 
 
        at Sears Automotive Department as a mechanic and also part-time 
 
        for a realty company doing general maintenance work, such as 
 
        fixing broken windows, unclogging sinks and minor plumbing. 
 
        Claimant contended that he was unable during this time to do 
 
        certain types of work due to his 50-75 pound weight limit and 
 
        overhead work limit. Claimant acknowledged that he filed a 
 
        workers' compensation claim notice with Sears claiming an injury 
 
        to his right shoulder when changing an oil filter on a car while 
 
        reaching over head. Claimant testified that he left Sears in 
 
        September 1988 after approximately one year and went to work for 
 
        IOCO, a convenience gas station, as a cashier which involved no 
 
        heavy lifting. Claimant acknowledged that he filed a workers' 
 
        compensation claim against IOCO after having slipped December 20, 
 
        1988 on ice and hitting a garbage dumpster, hurting his right 
 
        elbow. Claimant contended he did not hurt his right shoulder. 
 
        Claimant stated he was laid off from this job in January 1989 and 
 
        is not currently employed. Claimant acknowledged that Dr. 
 
        Starrett, neurosurgeon in Iowa City, discussed with claimant in 
 
        1985 or 1986 that the claimant's problem was in claimant's head 
 
        rather than being physical. Claimant emphasized that he did not 
 
        believe this doctor.
 
        
 
             David Field, M.D., testified that he had first seen claimant 
 
             for medical care in 1982. At that time, Dr. Field testified that 
 
             claimant complained of pain in his right shoulder. Dr. Field 
 
             testified that after several appointments with claimant, he 
 
             injected an anti-inflammatory medicine on July 21, 1982 in 
 
             claimant's shoulder. Medical records indicate that Dr. Field did 
 
             not see claimant again until October 1984. Dr. Field testified 
 
             that upon his examination of claimant on October 22, 1984, 
 
             claimant had a history of looseness to the shoulder described as 
 
             subluxation. Dr. Field described a shoulder subluxation as: "A 
 
             shoulder subluxation has a feeling of instability to the person's 
 
             shoulder; in other words, it feels like it will fall in and out 
 
             of joint partially." (Jt. Ex. 2, Field Deposition, p. 7) Dr. 
 
             Field testified that he decided to proceed on January 22, 1985 
 
             with a shoulder staple type procedure to staple the shoulder back 
 

 
        
 
 
 
 
 
             together. Dr. Field testified that normally when a staple is put 
 
             in, he hopes it is going to stay there but that it can be excised 
 
             10 to 20 percent of the time. Dr. Field stated that claimant 
 
             progressed satisfactorily and claimant was able to return to work 
 
             on March 31, 1985 with lifting limitations of 30 pounds and no 
 
             over head lifting for at least another month. Dr. Field 
 
             testified that in April 1987 he performed surgery on claimant's 
 
             shoulder again by removing a staple which had come lose in 
 
             claimant's shoulder. At that time, Dr. Field stated that he used 
 
             a procedure called a "Putti-Platt" procedure. Dr. Field 
 
             described this procedure as: "It involves a tighten of the 
 
             subscapularis muscles in front of the shoulder to also reduce the 
 
             displacement of the shoulder joint; in other words, it's a 
 
             different form of tightening the shoulder joint." (Jt. Ex. 2, 
 
             Field Dep., p. 13) Dr. Field further stated: "Since stapling did 
 
             not seem successful in him, the Putti-Platt procedure is an 
 
             alternative type of surgery that can be performed in this type of 
 
             condition." (Jt. Ex. 2, Field Dep., p. 13) Dr. Field testified 
 
             pursuant to additional questions as follows:
 
        
 
             Q. So you didn't see any major change in the degree of 
 
             disability through the end of 1987?
 
             
 
             A. Correct.
 
             
 
             Q. In June of 1988, he again had surgery. I understand this 
 
             to be arthroscopy surgery; is that correct?
 
             
 
             A. Yes.
 
        
 
             Q. And what was the purpose of the surgery at that time?
 
             
 
             A. Well, he presented back to see us again in approximately 
 
             March of '88 again complaining of shoulder pain. In between 
 
             all of this he had mentioned several episodes of complaints 
 
             of arm pain and complaints that had been evaluated by other 
 
             physicians and also in Iowa City.
 
        
 
               ....
 
        
 
             Q. When you did the arthroscopic surgery, what, if 
 
             anything, did you find?
 
             
 
             A. What we basically expected to see in a sense. We found 
 
             that there was an area of injury to the shoulder which had 
 
             been present from his original surgery, the type of injury.
 
             
 
                  We removed one of his sutures from inside the shoulder, 
 
                      which after a certain time the sutures have done their job, 
 
                      so it was sitting there and we decided to remove it because 
 
                      it was there. But we did not do anything differently to the 
 
                      shoulder. We looked inside and diagnosed it and did not 
 
                      find any new problem in the shoulder.
 
             
 
             Q. What was the purpose of the sutures?
 
             
 
             A. Well, the sutures are the sutures that tie the shoulder 
 
             together when we do the surgeries originally.
 
             
 
        (Jt. Ex. 2, Field Dep., pp. 14-16)
 
        
 
             Dr. Field further testified:
 
             
 
             Q. You stated earlier that you relate the arthroscopic 
 
             surgery done back to the jeld-Wen employment . What's your 
 
             basis for that?
 

 
        
 
 
 
 
 
             
 
             A. Well, the reason is that I think all of the specific 
 
             shoulder problems that he's had, okay, are all interrelated 
 
             to the first problem that he experienced; in other words, I 
 
             based that on the fact that his shoulder staple procedure, 
 
             when that original surgery was performed, indeed had 
 
             evidence of injury to the front of the shoulder, that was a 
 
             positive thing.
 
             
 
                  So his removal of the staple was directly related to the 
 
                      original shoulder surgery. His persistent shoulder pain was 
 
                      part of his original problem as I could see it, a continuum 
 
                      if you like.
 
             
 
             Q. Is part of your 10 percent impairment rating for pain 
 
             other than relating to the staple and subsequent
 
             --
 
             
 
             A. No, it's based on a criteria of having a shoulder 
 
             problem to reoccur again.
 
             
 
             Q. It doesn't relate to any of the pain described as being 
 
             in his head or other possible causes?
 
             
 
             A. No. right.
 
             
 
        (Jt. Ex. 2, Field Dep. pp. 26-27)
 
        
 
             Dr. Field was questioned as to any psychogenic component of 
 
             claimant's pain as follows:
 
        
 
             Q. I guess on your letter dated October 27, 1988, you 
 
             mention a psychogenic component to his pain. What do you 
 
             mean by that term?
 
             
 
             A. I just mean that he has been over the years very 
 
             difficult to evaluate from the degree of pain that he 
 
             experiences and what we can correlate with it clinically; in 
 
             other words, he's not the easiest patient to evaluate in 
 
             terms of how much pain that he really is experiencing.
 
             
 
                  In other words, pain is on the basis of an organic cause, 
 
                      of something specifically wrong, like obviously you have a 
 
                      broken leg, or the pain is on the psychogenic basis; in 
 
                      other words, it's in his mind.
 
             
 
             Q. And you have a basis or you feel then that at least part 
 
             of his problem is based on a problem in his brain rather 
 
             than an organic problem?
 
             
 
             A. Yes.
 
             
 
             Q. Do you have any idea what percentage that would be?
 
             
 
             A. No, I don't know if I could put a percentage on that.
 
        
 
        (Jt. Ex. 2, Field Dep., pp. 23-24)
 
        
 
             On September 11, 1985, Dr. Field wrote: "Therefore, based 
 
             on his clinical examination at this time, his past history of 
 
             recurrent subluxation and recent repair of the shoulder, I do 
 
             feel he merits a 10% of whole person impairment." (Jt.
 
         Ex. 1, p. 91)
 
        
 
             Dr. Field wrote on January 30, 1986 pursuant to a letter 
 
             from the U.S. Navy inquiring as to claimant's present condition 
 

 
        
 
 
 
 
 
             concerning his right shoulder:
 
        
 
                  On a recent clinical examination, he had excellent range 
 
                      of motion, but still lacks approximately the last, at the 
 
                      most, 10 degrees of external rotation of his shoulder. This 
 
                      is appropriate for the surgery that he underwent.
 
             
 
                  Based on his recent examination and x-rays of the right 
 
                      shoulder, I would feel that there are no other specific 
 
                      limitations that we have noted in his evaluations.
 
             
 
        (Jt. Ex. 1, p. 93)
 
        
 
             On December 7, 1987, Dr. Field wrote:
 
                  
 
                  As you know, he underwent surgery on April 14, 1987. 
 
                      That surgery involved removal of the staple placed in his 
 
                      shoulder in January of 1985. It was apparent that the 
 
                      staple was causing him shoulder irritation. The staple was 
 
                      removed.
 
             
 
                  Based on his recent examination, his range of motion of 
 
                      the right shoulder is such that he still has a slight loss 
 
                      of external rotation between 5 and 10 degrees and a loss of 
 
                      internal rotation also of 10 degrees. The purpose of the 
 
                      surgery performed was to limit the shoulder range of motion 
 
                      to prevent any further episodes of recurrent subluxation or 
 
                      dislocation of the shoulder.
 
                  
 
                  I do feel that the second surgery was, indeed, related 
 
                      to the original one in a sense that the staple had to be 
 
                      removed to allow him more comfort. In addition, I do feel 
 
                      that the degree of permanent impairment that he now has is 
 
                      exactly the same as was previously noted, i.e. 10% whole 
 
                      body impairment based on his examination at this time.
 
             
 
        (Jt. Ex. 1, p. 95)
 
        
 
             Dr. Field responded to an inquiry concerning claimant's 
 
             alleged accident that occurred at Sears on April 18, 1988 in 
 
             which he had filed a workers' compensation claim. On June 28, 
 
             1988, Dr. Field responded:
 
        
 
                  I agree also that his recent shoulder problem is an old 
 
                      problem that has stemmed from previous old injuries and 
 
                      difficulties with his right shoulder. The patient, however, 
 
                      may well decide to pursue compensation coverage relative to 
 
                      this particular shoulder problem.
 
             
 
                  I feel, however, that the circumstances prior to his 
 
                      onset of working at the Sears Company had a lot to do with 
 
                      his shoulder problems at this time.
 
             
 
        (Jt. Ex. 1, p. 98)
 
        
 
             Mark DeMuth testified that he had asked claimant at work 
 
             about claimant's shoulder after he had had surgery in January 
 
             1985. DeMuth indicated that claimant told him he injured his 
 
             shoulder at claimant's father's farm. DeMuth testified that he 
 
             had another conversation with claimant at work at which time 
 
             DeMuth had commented that claimant was getting a reputation at 
 
             defendant employer's place of business as to his injuries and 
 
             claimant told him that his shoulder injury was farm related and 
 
             that he was blaming it on defendant employer.
 
        
 
            Richard Deckert testified that he saw claimant have a 
 

 
        
 
 
 
 
 
        motorcycle accident in the fall of 1984 outside of defendant 
 
        employer's place of business. Deckert stated that claimant told 
 
        him at lunch how fast his motorcycle could go. Deckert related 
 
        that claimant went down the street and crashed onto the ground 
 
        and spilled sideways. Deckert testified that one month later, 
 
        approximately October 1984, on a Friday night in the area of 
 
        defendant employer's place of business, claimant was riding his 
 
        motorcycle and turned the corner and claimant's motorcycle slid 
 
        sideways and claimant went down on his right side. Deckert 
 
        admitted in both instances that claimant got up and took off on 
 
        his motorcycle and he did not know if claimant hurt himself.
 
        
 
                                 LAW AND ANALYSIS
 
        
 
             The injury must both arise out of and be in the course of 
 
             the employment. Crowe v. DeSoto Consol. Sch. Dist., 246 Iowa 
 
             402, 68 N.W.2d 63 (1955) and cases cited at pp. 405-406 of the 
 
             Iowa Report. See also Sister Mary Benedict v. St. Mary's Corp., 
 
             255 Iowa 847, 124 N.W.2d 548 (1963) and Hansen v. State of Iowa, 
 
             249 Iowa 1147, 91 N.W.2d 555 (1958).
 
        
 
            The claimant has the burden of proving by a preponderance of 
 
        the evidence that the injury of September 21, 1984 is causally 
 
        related to the disability on which he now bases his claim. 
 
        Bodish v. Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867 (1965). 
 
        Lindahl v. L.O. Boggs, 236 Iowa 296, 18 N.W.2d 607 (1945). A 
 
        possibility is insufficient; a probability is necessary. Burt v. 
 
        John Deere Waterloo Tractor Works, 247 Iowa 691, 73 N.W.2d 732 
 
        (1955). The question of causal connection is essentially within 
 
        the domain of expert testimony. Bradshaw v. Iowa Methodist 
 
        Hospital, 251 Iowa 375, 101 N.W.2d 167 (1960).
 
        
 
             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).
 
        
 
            This 25-year-old claimant was injured on September 21, 1984, 
 
        when his shoulder tightened while separating door skins and 
 
        claimant had to discontinue working. Claimant was off for 
 
        approximately two months most of which time his right arm was in 
 
        a sling. Claimant has had a history of shoulder pain and 
 
        subluxation. Claimant's medical records indicate that he 
 
        apparently had no reoccurrence of shoulder problems since 1982 
 
        until his September 21, 1984 injury, but claimant told Mr. DeMuth 
 
        on two separate occasions, once before and once after claimant's 
 
        1985 surgery, that his shoulder injury resulted from an injury on 
 
        his father's farm and that the claimant was blaming it on the 
 
        employer. The claimant was recalled to testify and he denied any 
 
        such conversations with DeMuth. There is no testimony when 
 
        claimant incurred the farm injury, but claimant did testify that 
 
        he worked on his father's farm in the past. There is nothing in 
 
        the record to indicate why DeMuth would make such a statement if 
 
        it were not true. He has no apparent financial or personal gain 
 
        and, in fact, was not on the witness list to testify since the 
 
        defendants only discovered by chance his knowledge of the events 
 
        within a few days before the hearing. Claimant strongly resisted 
 
        his testimony as a rebuttal witness. DeMuth is a credible 
 

 
        
 
 
 
 
 
        witness.
 
        
 
            Dr. Field opined that the surgery of January 22, 1985 
 
        involving stapling in claimant's shoulder was causally connected 
 
        to claimant's injury of September 21, 1984. On April 13, 1987, 
 
        additional surgery was required to remove the staple which became 
 
        loosened. Dr. Field testified that this loosening of a staple 
 
        occurs approximately up to 20 percent of the time in such 
 
        operations. On or around June 3, 1988, claimant again had to 
 
        have arthroscopy surgery involving the removal of sutures that 
 
        were placed in the right shoulder area at the time of the prior 
 
        referred to surgery. It appears Dr. Field knew nothing of 
 
        claimant's farm injury. Therefore, Dr. Field could not draw a 
 
        proper conclusion with substantial facts withheld. There is 
 
        evidence concerning certain other instances or accidents that 
 
        claimant incurred that may have in some way contributed to some 
 
        of claimant's condition. There is evidence that claimant's 
 
        complaints may be psychogenic. Claimant is very 
 
        litigious-minded, having filed subsequent notices of injury and 
 
        now apparently contending that he didn't injure his right 
 
        shoulder even though he filed the notice.
 
        
 
             The undersigned finds that claimant's alleged injury on 
 
             September 21, 1984 did not arise out of and in the course his 
 
             employment, and that there is no causal connection between 
 
             claimant's disability and his alleged injury on September 21, 
 
             1984.
 
        
 
            As to the dispute of costs involving the $300 bill of Dr. 
 
        Field for his deposition, as provided in chapter 622.72 of the 
 
        Iowa Code, the maximum amount for an expert witness fee is $150. 
 
        Therefore, defendants are responsible for $150 of the $300 bill 
 
        and claimant is responsible for the balance.
 
        
 
                                 FINDINGS OF FACT
 
        
 
             WHEREFORE, it is found:
 
        
 
            1. Claimant is not a credible witness.
 
        
 
            2. Claimant failed to prove that he received an injury on 
 
        September 21, 1984, while at work separating door skins.
 
        
 
            3. Claimant failed to prove that his disability was the 
 
        result of his work injury received on September 21, 1984.
 
        
 
            4. Claimant's surgery on his right shoulder on January 22, 
 
        1985 was not a result of his alleged September 21, 1984 injury.
 
        
 
            5. Claimant's second surgery on April 17, 1987, removing a 
 
        staple previously installed on his January 22, 1985 surgery, was 
 
        not a result of his alleged September 21, 1984 injury.
 
        
 
            6. Claimant's third surgery, arthroscopy, on June 3, 1988, 
 
        removing sutures as a result of his prior surgery, was not the 
 
        result of his alleged September 21, 1984 injury.
 
        
 
            7. Claimant does not have an impairment to his right 
 
        shoulder as a result of his alleged September 21, 1984 injury.
 
        
 
            8. Claimant has no reduction in earning capacity as a 
 
        result of his alleged September 21, 1984 injury.
 
        
 
            9. Claimant shall pay his medical expenses.
 
        
 
            10. Defendants are responsible for $150 of the $300 
 

 
        
 
 
 
 
 
        deposition bill of Dr. Field, as provided in chapter 622.72 of 
 
        the Iowa Code.
 
        
 
                                      CONCLUSIONS
 
        
 
             Claimant failed to prove that his alleged injury on 
 
             September 21, 1984 arose out of and in the course of his 
 
             employment with defendant employer.
 
        
 
            Claimant failed to prove that his disability is causally 
 
        connected to his alleged work injury of September 21, 1984.
 
        
 
                                      ORDER
 
        
 
             THEREFORE, it is ordered:
 
        
 
            That claimant take nothing from these proceedings.
 
        
 
            That defendants are responsible for one hundred fifty 
 
        dollars ($150.00) of the three hundred dollars ($300.00) 
 
        deposition bill of Dr. Field.
 
        
 
            That defendants and claimant shall pay the costs of this 
 
        action, one-half each, pursuant to Division of Industrial 
 
        Services Rule 343-4.33.
 
        
 
             Signed and filed this 10th day of May, 1989.
 
        
 
        
 
        
 
        
 
        
 
                                       BERNARD J. O'MALLEY
 
                                       DEPUTY INDUSTRIAL COMMISSIONER
 
        
 
        Copies to:
 
        
 
        Mr. David Lemanski
 
        Attorney at Law
 
        200 Security Bldg
 
        Dubuque, IA 52001
 
        
 
        Mr. Donald R. Breitbach
 
        Attorney at Law
 
        222 Fischer Bldg.
 
        P.O. Box 239
 
        Dubuque, IA 52004
 
        
 
        
 
 
        
 
 
 
 
 
        
 
        
 
        
 
                                              51100; 51402.30
 
                                              Filed May 10, 1989
 
                                              Bernard J. O'Malley
 
        
 
                      BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
        
 
        
 
        MARK BURKART,
 
        
 
             Claimant,
 
                                                  File No. 776033
 
        vs.
 
                  
 
        JELD-WEN FIBER PRODUCTS OF            A R B I T R A T I O N
 
        IOWA,
 
                                                  D E C I S I O N
 
            Employer,
 
        
 
        and
 
        
 
        WAUSAU INSURANCE COMPANIES,
 
        
 
            Insurance Carrier,
 
            Defendants.
 
        
 
        
 
        51100; 51402.30
 
        
 
             Claimant found not to be credible.
 
             
 
             Claimant failed to prove that his alleged injury arose out 
 
             of and in the course of his employment.
 
             
 
                  
 
                  
 
        
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            RONALD E. McINTIRE,           :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :         File No. 776428
 
            SUPER VALU STORES, INC.,      :
 
                                          :           A P P E A L
 
                 Employer,                :
 
                                          :         D E C I S I O N
 
            and                           :
 
                                          :
 
            LIBERTY MUTUAL INSURANCE CO., :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
            
 
                              statement of the case
 
            
 
                 Claimant appeals from an arbitration decision awarding 
 
            claimant permanent partial disability benefits based on a 10 
 
            percent industrial disability.
 
            
 
                 The record on appeal consists of the transcript of the 
 
            arbitration hearing, joint exhibits A through Y, claimant's 
 
            exhibits AA and BB, and defendants' exhibit 1.  Both parties 
 
            filed briefs on appeal.
 
            
 
                                      issues
 
            
 
                 The issues on appeal are:  
 
            
 
                   I.  Whether the denial of the motion for continuance 
 
            was an abuse of discretion; and
 
            
 
                  II.  Whether the deputy industrial commissioner was 
 
            correct in finding that the claimant has an industrial 
 
            disability of 10 percent of the body as a whole.
 
            
 
                              review of the evidence
 
            
 
                 The arbitration decision dated April 17, 1989, 
 
            adequately and accurately reflect the pertinent evidence and 
 
            it will not be reiterated herein.
 
            
 
                                  applicable law
 
            
 
                 Rule 343 IAC 2.1 states:
 
            
 
                    For good cause the industrial commissioner or 
 
                 the commissioner's designee may modify the time to 
 
                 comply with any rule.
 
            
 
                 Rule 343 IAC 4.23 provides in pertinent part that:
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            
 
                 Continuances of hearings in contested cases shall 
 
                 be granted only by the industrial commissioner or 
 
                 the commissioner's designee.  Requests for 
 
                 continuance shall state in detail the reasons for 
 
                 the request and whether the opposing party accedes 
 
                 to the request.
 
            
 
                 Iowa Rule of Civil Procedure 183(a) provides:
 
            
 
                    A continuance may be allowed for any cause not 
 
                 growing out of the fault or negligence of the 
 
                 applicant, which satisfies the court that 
 
                 substantial justice will be more nearly obtained.  
 
                 It shall be allowed if all parties so agree and 
 
                 the court approves.
 
            
 
                 Iowa Rules of Civil Procedure 183(b) provides in part 
 
            that:
 
            
 
                    All such motions based on absence of evidence 
 
                 must be supported by affidavit of the party, his 
 
                 agent or attorney,...
 
            
 
                 If claimant has an impairment to the body as a whole, 
 
            an industrial disability has been sustained.  Industrial 
 
            disability was defined in Diederich v. Tri-City Railway Co., 
 
            219 Iowa 587, 593, 258 N.W.2d 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."
 
            
 
                 The opinion of the supreme court in Olson v. Goodyear 
 
            Service Stores, 255 Iowa 1112, 1121, 125 N.W.2d 251 (1963), 
 
            cited with approval a decision of the industrial 
 
            commissioner for the following proposition:
 
            
 
                    Disability * * * as defined by the Compensation 
 
                 Act means industrial disability, although 
 
                 functional disability is an element to be 
 
                 considered....In determining industrial 
 
                 disability, consideration may be given to the 
 
                 injured employee's age, education, qualifications, 
 
                 experience and his inability, because of the 
 
                 injury, to engage in employment for which he is 
 
                 fitted. * * * *
 
            
 
                 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, 255 Iowa 1112, 1121, 125 N.W.2d 251, 
 
            257.
 
            
 
                                     analysis
 
            
 
                 The first issue to be resolved in this case is whether 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            the deputy industrial commissioner abused his discretion by 
 
            denying claimant's motion for continuance.
 
            
 
                 The Iowa courts in interpreting rule 183 consistently 
 
            stated that the granting of or refusal of a motion for 
 
            continuance rests largely in the sound discretion of the 
 
            trial court and such discretion is very broad.  The 
 
            reviewing court on appeal will interfere with the action of 
 
            the trial court in passing on a motion for continuance only 
 
            where there has been a clear abuse of judicial discretion 
 
            and injustice was thereby done.  State v. Kyle, 271 N.W.2d 
 
            689 (Iowa 1978).
 
            
 
                 The hearing in this matter was scheduled to begin at 
 
            1:00 p.m. on March 1, 1989.  At l:30 p.m. the claimant's 
 
            attorney appeared and moved for a continuance of the hearing 
 
            because his client was not present.  The motion was heard by 
 
            the industrial commissioner's designee, Helen Jean Walleser, 
 
            who, after listening to arguments of counsel, denied the 
 
            motion.  As part of his motion, the claimant's attorney 
 
            offered into evidence a letter he had written to his client 
 
            dated December 16, 1988, wherein he had informed his client 
 
            of the hearing date.  The letter was admitted into evidence 
 
            as exhibit "AA."  No affidavits or other sworn testimony was 
 
            offered by claimant's attorney in support of his motion.  
 
            Claimant's attorney stated that after talking with 
 
            claimant's wife it was his understanding that claimant was 
 
            working as a truck driver for the employer and was making a 
 
            delivery in Nebraska at the time of the hearing.  Claimant's 
 
            attorney further stated that claimant was apparently 
 
            confused about whether there was to be a hearing or not and 
 
            that the employer, by sending him on a delivery, contributed 
 
            to the confusion.  The claimant's attorney also implied that 
 
            the employer may have done this to prevent claimant from 
 
            attending the hearing.  Claimant's attorney argued that 
 
            claimant could not have a fair hearing without the evidence 
 
            that the claimant, by his testimony, would offer.
 
            
 
                 The decision denying the continuance was the correct 
 
            one under the circumstances.  Rule 183 of the Rules of Civil 
 
            Procedure requires that a motion for continuance based on 
 
            absence of evidence must be supported by affidavit.  No such 
 
            affidavit was offered.  Furthermore, it was not an abuse of 
 
            discretion for the deputy commissioner to deny the motion.  
 
            Under rule 183 a motion for continuance may be granted for 
 
            good cause not growing out of the fault or negligence of the 
 
            applicant, which satisfies the court that substantial 
 
            justice will be more nearly obtained.  No good cause was 
 
            advanced for the continuance other than the supposed 
 
            confusion of the claimant.  There is no showing that the 
 
            actions of the employer prevented the claimant's attendance 
 
            at the hearing.  The claimant has only himself to blame for 
 
            his failure to be at the hearing.  There was no abuse of 
 
            discretion by the deputy industrial commissioner and the 
 
            denial of the motion for continuance is affirmed.
 
            
 
                 The second issue to be resolved is whether the deputy 
 
            industrial commissioner was correct in finding that the 
 
            claimant has an industrial disability of 10 percent of the 
 
            body as a whole.
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            
 
                 Claimant is 43 years old and has a high school 
 
            education.  He has a good work history at the Super Valu 
 
            warehouse and has served as a union steward.  He underwent 
 
            an operation for the removal of a lumbar disc in his back 
 
            but has been released to return to work without any 
 
            restrictions.  Thomas A. Carlstrom, M.D., the surgeon who 
 
            operated on the claimant's back, has expressed the opinion 
 
            that claimant has a permanent partial impairment of eight 
 
            percent of the body as a whole.  John T. Bakody, M.D., 
 
            examined the claimant and expressed the opinion that the 
 
            claimant has a permanent partial impairment of 15 percent of 
 
            the body as a whole.  Medical records indicate that claimant 
 
            was able to return to regular duties on May 10, 1988.
 
            
 
                 At the time of his injury claimant worked as a towman.  
 
            A towman operates a pallet jack in order to move pallets of 
 
            merchandise from one part of the warehouse to the other.  
 
            The job involves minimal lifting.  The yearly compensation 
 
            of a towman averages between $30,000.00 to $32,000.00 per 
 
            year.  When claimant returned to work after recovery from 
 
            the surgery on his back he bid into the position of country 
 
            truck driver.  In this position the claimant drives 
 
            semi-trailer trucks and makes deliveries to Super Valu 
 
            affiliated stores in other cities.  Depending upon the 
 
            store, the claimant may or may not have to unload the truck 
 
            and lift the merchandise in the process.  Drivers are 
 
            assigned a certain route by seniority and, generally 
 
            speaking, the easier routes with minimal or no lifting go to 
 
            drivers with more seniority than claimant's.  Although the 
 
            job of country truck driver is more physically demanding 
 
            than the towman job, the claimant has not missed any work 
 
            because of his back condition since being released to return 
 
            to work after the surgery.  The claimant is doing a good job 
 
            for the employer and is meeting the requirements of the job.  
 
            Country truck drivers are paid between $35,000.00 to 
 
            $52,000.00.  For the last four weeks prior to the hearing 
 
            the claimant averaged $761.00 per week during a time of the 
 
            year when business usually slows down for Super Valu.
 
            
 
                 Claimant has not sustained an actual reduction in 
 
            earnings.  In fact he is making more money than before the 
 
            injury because he has bid into a new job.  Dr. Carlstrom did 
 
            not place any specific restrictions on the claimant.  He is 
 
            now working in a job which is more physically demanding than 
 
            the job he held at the time of his injury without any 
 
            problems.  The employer is happy with the claimant's work 
 
            performance.  
 
            
 
                 Functional impairment is only one factor in determining 
 
            industrial disability.  Industrial disability may be less 
 
            than, equal to, or exceed the amount of the functional 
 
            impairment.  Based upon claimant's education, age, 
 
            qualifications, experience and ability to engage in 
 
            employment for which he is fitted, the fact that claimant 
 
            has increased earnings after the injury and the fact that 
 
            claimant has not been restricted from those jobs for which 
 
            he was previously fitted, claimant has an industrial 
 
            disability of 10 percent.
 
            
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
                                 findings of fact
 
            
 
                 1.  Claimant is a 43 year old truck driver and 
 
            graduated from high school in 1963.  He has been employed by 
 
            Super Valu Stores since 1968.
 
            
 
                 2.  Claimant injured his back on September 20, 1984, 
 
            while unloading 50-60 pound bags of carrots from a produce 
 
            bin within a semi-trailer.
 
            
 
                 3.  His condition was diagnosed as a herniated/ruptured 
 
            disc with nerve root compression and an L-5/S1 laminectomy 
 
            disc excision was performed.
 
            
 
                 4.  Claimant has a permanent impairment as a result of 
 
            his September 20, 1984 injury.
 
            
 
                 5.  Claimant was able to return to his employment on 
 
            February 10, 1988.
 
            
 
                 6.  Dr. Carlstrom, the surgeon who performed the 
 
            laminectomy on claimant, indicated that claimant did not 
 
            have physical restrictions when he returned to work.
 
            
 
     
 
            
 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            7.  Claimant has not had an actual loss of earnings.
 
            
 
                 8.  Claimant has incurred a 10 percent loss of earning 
 
            capacity as a result of his injury of September 20, 1984.
 
            
 
                                conclusions of law
 
            
 
                  Claimant's motion for continuance was properly denied.
 
            
 
                 As a result of the injury of September 20, 1984, 
 
            claimant has an industrial disability of 10 percent.
 
            
 
                 WHEREFORE, the decision of the deputy is affirmed.
 
            
 
                                      order
 
            
 
                 THEREFORE, IT IS ORDERED:
 
            
 
                 That claimant is entitled to fifty (50) weeks of 
 
            permanent partial disability benefits at the rate of three 
 
            hundred eleven and 87/l00 dollars ($311.87) per week, with 
 
            payments commencing May 10, 1988.
 
            
 
                 That defendants shall pay the accrued weekly benefits 
 
            in a lump sum and shall receive credit against the award for 
 
            weekly benefits previously paid.
 
            
 
                 That defendants shall pay interest on benefits awarded 
 
            herein as set forth in Iowa Code section 85.30.
 
            
 
                 That defendants shall pay the costs of this action 
 
            including the costs of preparation of the hearing transcript 
 
            pursuant to rule 343 IAC 4.33.
 
            
 
                 That defendants shall file an activity report upon 
 
            payment of this award as required by this agency pursuant to 
 
            rule 343 IAC 3.1.
 
            
 
            
 
                 Signed and filed this ____ day of January, 1991.
 
            
 
            
 
            
 
            
 
                                          ______________________________
 
                                                   CLAIR CRAMER
 
                                          ACTING INDUSTRIAL COMMISSIONER
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
            
 
            Copies To:
 
            
 
            Mr. Thomas R. Isaac
 
            Attorney at Law
 
            3213 E 14th St
 
            Des Moines  IA  50316
 
            
 
            Mr. W. C. Hoffmann
 
            Mr. Richard G. Book
 
            Attorneys at Law
 
            500 Liberty Bldg
 
            Des Moines  IA  50309
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                           1803; 2900; 2906
 
                           Filed January 31, 1991
 
                           BJO
 
                           CLAIR R. CRAMER
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            RONALD E. McINTIRE,           :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :         File No. 776428
 
            SUPER VALU STORES, INC.,      :
 
                                          :           A P P E A L
 
                 Employer,                :
 
                                          :         D E C I S I O N
 
            and                           :
 
                                          :
 
            LIBERTY MUTUAL INSURANCE CO., :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
            
 
            
 
            2900; 2906
 
            Claimant's motion for continuance was properly denied.  
 
            Pursuant to Rule 183, claimant failed to show good cause for 
 
            granting a continuance in this case.
 
            
 
            1803
 
            Deputy was correct on finding that claimant has an 
 
            industrial disability of 10 percent of the body as a whole.  
 
            Claimant, 43 years old, high school education and good work 
 
            history at Super Value Warehouse.  He had back surgery for 
 
            removal of lumbar disc and released to return to work 
 
            without restrictions.  Claimant returned to work with Super 
 
            Valu and earns more now than prior to his injury.
 
            
 
 
            
 
 
 
                          
 
 
 
 
 
                  BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         RONALD E. McINTIRE,
 
         
 
              Claimant,                            File No. 776428
 
         
 
         vs.                                    A R B I T R A T I O N
 
         
 
         SUPER VALU STORES, INC.,                  D E C I S I O N
 
         
 
              Employer,                               F I L E D
 
         
 
         and                                         APR 17 1989
 
         
 
         LIBERTY MUTUAL INSURANCE CO.,       IOWA INDUSTRIAL COMMISSIONER
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
                                INTRODUCTION
 
         
 
              This is a proceeding in arbitration brought by the claimant, 
 
         Ron McIntire, against Super Value Stores, Inc., employer, and 
 
         Liberty Mutual Insurance Co., insurance carrier, to recover 
 
         benefits as a result of an injury sustained on September 20, 
 
         1984. This matter came on for hearing before the deputy 
 
         industrial commissioner in Des Moines, Iowa, on March 1, 1989.  
 
         The record consists of the testimony of Kelly M. O'Neill and 
 
         William A. Hart; joint exhibits A through Y; claimant's exhibit 
 
         AA and BB; and defendants' exhibit 1.
 
         
 
                                 ISSUES
 
         
 
              The only, issues to be decided in this matter are:
 
         
 
              1.  Whether claimant's alleged disability is causally 
 
         connected to his injury of September 20, 1984; and
 
         
 
              2.  The nature and extent of claimant's disability.
 
         
 
                        REVIEW OF THE EVIDENCE
 
         
 
              Claimant did not appear for his hearing.  Kelly M. O'Neill, 
 
         defendant employer's personnel director, testified that claimant 
 
         is 43 years old and began employment with defendant employer on 
 
         February 25, 1968.  O'Neill testified that he had no evidence of 
 
         claimant's post-high school education but understood claimant 
 
         graduated from high school in 1963.  O'Neill testified that he 
 
         understood that claimant had a rotator cuff injury to his 
 
         shoulder.  O'Neill understood that claimant had been off work due 
 
         to back injury on several occasions.  O'Neill indicated that 
 
         claimant never talked or complained to him regarding his 
 
         injuries. O'Neill stated that claimant was a union steward until 
 
                                                
 
                                                         
 
         November 28, 1988, when claimant bid into the employer's truck 
 
         driver job. O'Neill indicated his conversation with claimant was 
 
         usually involving union business, shop floor talk, claimant's 
 
         riding his horses, or claimant's horse business.  O'Neill said 
 
         that claimant was a towman before he became a country truck 
 
         driver, which latter job is more physical than the warehouse job 
 
         as a towman.  O'Neill said that the towman's pay is $13.26 to 
 
         $13.41 per hour and involves 40 to 45 hours per week and that 
 
         with overtime an employee could make from $30,000 to $32,000 per 
 
         year.  O'Neill emphasized that a country truck driver, a job to 
 
         which claimant voluntarily switched upon his return to work, 
 
         makes from $35,000 to $52,000 per year.  O'Neill indicated that 
 
         claimant's work records indicate that claimant averaged $750 
 
         gross wages for the last four weeks.  O'Neill indicated that 
 
         claimant has not missed a day of work, been late, or missed a 
 
         trip since becoming a truck driver upon his release to work and 
 
         that defendants are happy with claimant's work.  O'Neill 
 
         indicated that the country truck driving is a much harder job and 
 
         that claimant is low in seniority as a country truck driver.  
 
         This means he would take the less desirable loads, which would 
 
         require in many instances to unload the shipment at the point of 
 
         delivery, and that the truck would be loaded with merchandise 
 
         weighing from 26,000 to 40,000 pounds with individual items 
 
         weighing from 35 to 100 pounds.  O'Neill indicated that in the 
 
         towman job claimant would not have lifting to any extent as the 
 
         merchandise would be on pallets or skids and that claimant would 
 
         have machinery to lift the merchandise. O'Neill testified that 
 
         claimant has outside interests and is active with painting, 
 
         horses, western riding shows, and that claimant shows horses and 
 
         rides them.  He also indicated that claimant has been active in 
 
         the Iowa Tough Man contest in the last few years.
 
         
 
              William A. Hart, the loss prevention manager for defendant 
 
         employer, testified that he has known claimant since December 30, 
 
         1985 and that the only injury he knows claimant has had is the 
 
         injury involved in this lawsuit.  Hart testified that claimant 
 
         never told him that his back hurt, but that he only knows of 
 
         claimant's back problems from the medical reports.  Hart 
 
         testified that claimant could do the job as a towman and that the 
 
         employer currently has employees with bad backs doing this job.  
 
         Hart testified that as a country truck driver claimant has done a 
 
         good job and that claimant must pick up boxes and put them on a 
 
         conveyor belt.  Hart indicated that these individual boxes would 
 
         weigh 35 to 100 pounds as an average, that there were individual 
 
         items that could weigh from 1 to 100 pounds, and that claimant 
 
         would have to manually unload his truck due to the nature of his 
 
         truck driving job and loads that he had with the employer.  Hart 
 
         also testified that the country truck driver must arrange the 
 
         pallets under the products and also lift the pallets and stand 
 
         them on edge in the truck.  He indicated these pallets weigh from 
 
         40 to 80 pounds each and there are up to sixteen of these pallets 
 
         on a truckload.  Hart also testified that every person who bids 
 
         for a job must meet the specifications of the job and that 
 
         claimant had a full release to be a truck driver and that the 
 
         employer had tests run on claimant by Iowa Methodist Health 
 
                                                
 
                                                         
 
         Center before claimant was allowed to have the job.  He indicated 
 
         that claimant exceeded the requirements of lifting.  Hart 
 
         indicated that he thought claimant bid in and switched to the 
 
         truck driving job because of more money since all the warehouse 
 
         full-time workers get the same rate.  Hart testified that 
 
         claimant would be driving an 18-wheel truck.
 
         
 
              The medical records of claimant from Marvin H. Dubansky, 
 
         M.D., indicated on April 23, 1985, the following:  "IMPRESSION: 
 
         Probable herniated disc, L5/S1 on the right."  (joint Exhibit B) 
 
         On May 16, 1985, said records reflect:  "I feel Mr. McIntire may 
 
         go back to work on May 20th but told him to be careful and if he 
 
         has troubles, to let me know right away as the absence of the 
 
         reflex means that he has or has had a ruptured disc."  (Jt. Ex. 
 
         D) Footnotes on June 25, 1985 reflect:  "I feel he has a 
 
         herniated disc with nerve root compression but as he does not 
 
         have definite weakness and wants to continue with his job, I 
 
         think he should." (Jt. Ex. F)
 
         
 
              On September 24,1986, Thomas A. Carlstrom, M.D., performed 
 
         an L-5/S1 laminectomy, excision of disc.  On November 6, 1986, 
 
         Dr. Carlstrom wrote:
 
         
 
                   His wound has healed well and his neurologic 
 
              examination was normal.
 
         
 
                   I would think that Mr. McIntire could return to work 
 
              within the next week or so, but will need to have some 
 
              restrictions placed upon his activity.  I would recommend no 
 
              lifting greater than 25 pounds, no forward bending, and 
 
              avoidance of sitting or standing for greater than an hour at 
 
              a time.
 
         
 
         (Jt. Ex. H)
 
         
 
              On December 9, 1986, Raymond L Webster, M.D., wrote:
 
         
 
              As of today, he has a release to return to his full duties 
 
              at Super Valu.  This is done on my clinical evaluation and 
 
              after my consulting with Dr. Carlstrom on the phone.  I do 
 
              not anticipate any functional rating on Ron and anticipate 
 
              that he will be able to do his full duties without any 
 
              difficulty for the foreseeable future.
 
         
 
         (Jt. Ex. I)
 
         
 
              On January 12, 1987, Dr. Carlstrom wrote:  "I think maybe he 
 
              has reached maximum benefits of healing.  I believe he has 
 
              experienced a permanent partial impairment, and would rate 
 
              that at about 6% of the body as a whole based upon his 
 
              postoperative status."  (Jt. Ex. J)  On February 23, 1987, 
 
              John T. Bakody, M.D., a neurosurgeon, wrote:  "It is now 
 
              about 5 months post operatively and Mr. McIntire continues 
 
              to have discomfort in the low back and right leg with what I 
 
              feel is compression of the S 1 nerve root on the right on 
 
                                                
 
                                                         
 
                   the CAT scan and it is my opinion that lumbar myelography 
 
              should be carried out here."  (Jt. Ex. K)  On March 9, 1987, 
 
              Dr. Bakody wrote:
 
         
 
                   It is my opinion that as a result of the work incident 
 
              of about 3 years ago that Mr. McIntire sustained an injury to 
 
              the low back which resulted in the surgery carried out by 
 
              Thomas Carlstrom, M.D., Neurosurgeon, in September of 1986.  
 
              I reviewed the post operative computerized scan of the low 
 
              back carried out at Iowa Methodist Medical Center in January 
 
              of 1987 and in my opinion shows a compressive lesion at the 
 
              lumbosacral level on the right and it is my opinion that 
 
              lumbar myelography should be carried out here.  In view of 
 
              his continuing discomfort it is difficult to place a number 
 
              on him; but Mr. McIntire does have a permanent physical 
 
              impairment of the low back as related to the body as a whole. 
 
              According to the Manual for Orthopaedic Surgeons in 
 
              Evaluating Permanent Physical Impairment as published by the 
 
              American Academy of Orthopaedic Surgeons, this number is in 
 
              the neighborhood of 15 percent which in turn must be related 
 
              to his industrial capacity or lack thereof.  I trust that 
 
              this will suffice for your purpose here;
 
         
 
         (Jt. Ex. L)
 
         
 
                        
 
                                                         
 
              On April 18, 1988, Dr. Carlstrom wrote:
 
         
 
                   I haven't seen Ronald McIntire since he finished his 
 
              exercise program at the Low-Back Institute.  However, the 
 
              reports indicate that he completed that exercise program 
 
              with no significant problems and perhaps mild success.  He 
 
              apparently returned to work a month ago.
 
         
 
                   I see no reason to place any specific restrictions on 
 
              him except for symptomatic restrictions.  He currently has a 
 
              diagnosis of status post low-back surgery with back and leg 
 
              pain.
 
         
 
                   I think he has an impairment and would rate that about 
 
              8% based upon his surgical procedure and continued 
 
              discomfort and diminished range of motion.
 
         
 
         (Jt. Ex. V)
 
         
 
              On May 4, 1988, Dr. Carlstrom wrote:  "I do not suggest any 
 
         physical restrictions at present.  However, please understand 
 
         that it would not surprise me if he is unable to perform heavy 
 
         physical exertion, and therefore, restrictions may be required."  
 
         (Jt. Ex. W)
 
         
 
                            LAW AND ANALYSIS
 
         
 
              The claimant has the burden of proving by a preponderance of 
 
         the evidence that the injury of September 20, 1984 is causally 
 
         related to the disability on which he now bases his claim.  
 
         Bodish v. Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867 (1965).  
 
         Lindahl v. L.O. Boggs, 236 Iowa 296, 18 N.W.2d 607 (1945).  A 
 
         possibility is insufficient; a probability is necessary.  Burt v. 
 
         John Deere Waterloo Tractor Works, 247 Iowa 691, 73 N.W.2d 732 
 
         (1955).  The question of causal connection is essentially within 
 
         the domain of expert testimony.  Bradshaw v. Iowa Methodist 
 
         Hospital, 251 Iowa 375, 101 N.W.2d 167 (1960).
 
         
 
              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).
 
         
 
              As a 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."
 
         
 
              The opinion of the supreme court in Olson v. Goodyear 
 
         Service Stores, 255 Iowa 1112, 125 N.W.2d 251 (1963) at 1121, 
 
         cited with approval a decision of the industrial commissioner for 
 
         the following proposition:
 
         
 
              Disability * * * as defined by the Compensation Act means 
 
              industrial disability, although functional disability is an 
 
              element to be considered . . . In determining industrial 
 
              disability, consideration may be given to the injured 
 
              employee's age, education, qualifications, experience and 
 
              his inability, because of the injury, to engage in 
 
              employment for which he is fitted.   * * * *
 
         
 
              Functional impairment is an element to be considered in 
 
         determining industrial disability which is the reduction of 
 
         earning capacity, but consideration must also be given to the 
 
         injured employee's age, education, qualifications, experience and 
 
         inability to engage in employment for which he is fitted.  Olson 
 
         v. Goodyear Service Stores, 255 Iowa 1112, 1121 125 N.W.2d 251, 
 
         257 (1963).
 
         
 
              There is no question in this matter that claimant's injury 
 
         arose out of and in the course of his employment; that claimant 
 
         was off work and had a laminectomy at L5-S1 as a result of his 
 
         work-related injury.  The parties stipulated that the 
 
         determination of the healing period or any benefits to which 
 
         claimant is entitled, have been paid in full by defendants.
 
         
 
              This 43-year-old claimant did not appear at his hearing and 
 
         there was no sworn testimony as to why he did.not appear.  
 
         Medical evidence shows that as a result of claimant's injury on 
 
         September 20, 1984, claimant has an impairment to the body as a 
 
         whole.  Dr. Carlstrom opined an 8 percent impairment to the body 
 
         as a whole and Dr. Bakody opined a 15 percent impairment to the 
 
         body as a whole.  Dr. Carlstrom is the surgeon that performed the 
 
         L-5/S1 laminotomy, excision of disc on September 24, 1986.  
 
         Medical records indicate claimant was able to return to regular 
 
         duties on May 10, 1988.  The medical testimony causally connected 
 
         claimant's impairment and need for surgery to his injury on 
 
         September 20, 1984.
 
         
 
              The evidence shows that this claimant is a hard worker, a 
 
         good worker, and had been employed with defendant employer for 
 
         over twenty years.  Claimant had high seniority at his towman job 
 
         which enabled him to make up to $32,000 per year and was working 
 
         at this job in the warehouse on the day of his injury.  Because 
 
         of his seniority, he was able to bid in on a truck driving job 
 
         and began his country truck driving job for defendant employer on 
 
         November 28, 1988.  The evidence is undisputed that this job was 
 
                                                
 
                                                         
 
         more strenuous and required more lifting than claimant's previous 
 
         job as towman.  The evidence shows that claimant can make up to 
 
         $52,000 per year as a truck driver depending on the loads and his 
 
         hours.  It is undisputed that claimant can make considerably more 
 
         as a country truck driver than as a towman.  Claimant appears 
 
         highly motivated, from the testimony of defendant employer's 
 
         personnel director and loss prevention manager.  The testimony 
 
         shows that claimant also had outside activities involving 
 
         painting, riding horses, and raising horses.  At age 43, it is 
 
         obvious claimant is quite resilient and has bounced back very 
 
         well after his injury and surgery.  The medical evidence shows 
 
         claimant has an impairment to the body as a whole from 8 to 15 
 
         percent. Claimant does not have a loss of earnings, which 
 
         circumstance was largely effected by his seniority and long 
 
         tenure with the employer.  This seniority and tenure have enabled 
 
         him to maintain or increase his earning capacity.  The employer's 
 
         personnel director and loss prevention manager were reluctant to 
 
         state whether they would hire this claimant if he came to work 
 
         for them had he not had the seniority or prior work experience.  
 
         They avoided the question by answering that they were not 
 
         qualified nor was one of their duties in the company to hire or 
 
         fire.  Claimant does have a loss of earning capacity and with the 
 
         surgery he had and back condition, he would not be as employable 
 
         in the labor market at the jobs he has had with the employer and 
 
         would be unable to earn the money he is presently earning.  
 
         Claimant's failure to be present has greatly hampered any 
 
         determination the undersigned could make as to claimant's 
 
         demeanor, motivation, and any testimony claimant may have 
 
         personally offered that might have been important in determining 
 
         the other factors which are important in arriving at the nature 
 
         and extent of claimant's permanent disability.  Claimant has a 10 
 
         percent impairment to his body as a whole and a 10 percent 
 
         industrial disability.
 
         
 
                             FINDINGS OF FACT
 
         
 
              WHEREFORE, it is found:
 
         
 
              1.  Claimant injured his back on September 20, 1984 while 
 
         unloading a load for his employer.
 
         
 
              2.  Claimant has a permanent impairment as a result of his 
 
         September 20, 1984 injury.
 
         
 
              3.  Claimant was able to return to his employment on 
 
         February 10, 1988.
 
         
 
              4.  Claimant has incurred a 10 percent loss of earning 
 
         capacity as a result of his injury of September 20, 1984.
 
         
 
              5.  Claimant had an L-5/S1 laminotomy, excision of a disc, 
 
         on September 24, 1986 as a result of his September 20, 1984 
 
         injury.
 
         
 
                           CONCLUSIONS OF LAW
 
                                                
 
                                                         
 
         
 
              THEREFORE, it is concluded:
 
         
 
              Claimant's injury arose out of and in the course of his 
 
         employment on September 20, 1984.
 
         
 
              Claimant's disability is causally connected to his injury of 
 
         September 20, 1984.
 
         
 
              Claimant has incurred a 10 percent loss of earning capacity 
 
         as a result of his September 20, 1984 injury.
 
         
 
              Claimant has incurred a 10 percent industrial disability.
 
         
 
                                      ORDER
 
         
 
              THEREFORE, it is ordered:
 
         
 
              That claimant is entitled to fifty (50) weeks of permanent 
 
         partial disability benefits at the rate of three hundred eleven 
 
         and 87/100 dollars ($311.87) per week, with payments commencing 
 
         May 10, 1988.
 
         
 
              That defendants shall pay the accrued weekly benefits in a 
 
         lump sum, and shall receive credit against the award for weekly 
 
         benefits previously paid.
 
         
 
              That defendants shall pay interest on benefits awarded 
 
         herein as set forth in Iowa Code section 85.30.
 
         
 
              That defendants shall pay the costs of this action pursuant 
 
         to Division of Industrial Services 343-4.33.
 
         
 
                           
 
                                                         
 
              That defendants shall file an activity report upon payment 
 
         of this award as required by this agency pursuant to Division of 
 
         Industrial Services Rule 343-3.1.
 
         
 
              Signed and filed this 17th day of April, 1989.
 
         
 
                           
 
                           
 
         
 
                                            BERNARD J. O'MALLEY
 
                                            DEPUTY INDUSTRIAL 
 
                                            COMMISSIONER
 
         
 
         Copies to:
 
         
 
         Mr. Thomas R. Isaac
 
         Attorney at Law
 
         3213 E. 14th St
 
         Des Moines, IA  50316
 
         
 
         Mr. W. C. Hoffmann
 
         Mr. Richard G. Book
 
         Attorneys at Law
 
         500 Liberty Bldg
 
         Des Moines, IA  50309
 
         
 
         
 
         
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
                                                
 
 
            
 
               
 
 
 
                  
 
                                            1803; 51400; 1401
 
                                            1402.40
 
                                            Filed April 17, 1989
 
                                            Bernard J. O'Malley
 
         
 
                   BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         RONALD E. McINTIRE,
 
         
 
              Claimant,
 
                                                 File No. 776428
 
         vs.
 
         
 
         SUPER VALU STORES, INC.,              A R B I T R A T I 0 N
 
         
 
              Employer,
 
                                                 D E C I S I 0 N
 
         and
 
         
 
         LIBERTY MUTUAL INSURANCE CO.,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         51400
 
         
 
              Claimant had an L-5/S1 laminectomy resulting in two medical 
 
         opinions of 8 and 15 percent impairment to the body as a whole.
 
         
 
              Claimant used his seniority as a towman and bid for a truck 
 
         driving job with employer resulting in substantially heavier 
 
         lifting and strenuous work than what he was doing at the time of 
 
         his work injury.
 
         
 
         1401; 1402.40
 
         
 
              Claimant failed to personally appear for his hearing. 
 
         Claimant's attorney proceeded to put on testimony through 
 
         defendants' witnesses whom he called.  Failure of claimant to 
 
         show for his hearing resulted in lack of claimant's personal 
 
         testimony as to those elements that are considered in helping the 
 
         deputy to determine the full extent of industrial disability.
 
         
 
         1803
 
         
 
              Ten percent industrial disability awarded.