BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         JAMES E. LOFTUS,
 
         
 
              Claimants,
 
         
 
         vs.                                   File Nos. 777678 & 748818
 
         
 
         WATERLOO COMMUNITY SCHOOL               A R B I T R A T I 0 N
 
         DISTRICT,
 
                                                    D E C I S I 0 N
 
              Employer,
 
         
 
         and
 
                                                       F I L E D
 
         
 
         ARGONAUT INSURANCE COMPANIES                 MAR 30 1989
 
         and AETNA LIFE AND CASUALTY,
 
                                             IOWA INDUSTRIAL COMMISSIONER
 
               Insurance Carriers,
 
               Defendants.
 
         
 
         
 
         
 
                          STATEMENT OF THE CASE
 
         
 
              This is a consolidated proceeding in arbitration brought by 
 
         James Loftus, claimant, against Waterloo Community School 
 
         District, employer (hereinafter referred to as Waterloo Schools), 
 
         and two insurance carriers, Argonaut and Aetna, for workers' 
 
         compensation benefits as a result of alleged injuries on October 
 
         26, 1983 and October 9, 1984.  On July 14, 1988, a hearing was 
 
         held on claimant's petition and the matter was considered fully 
 
         submitted at the close of this hearing.
 
         
 
              The parties have submitted a prehearing report of contested 
 
         issues and stipulations which was approved and accepted as a part 
 
         of the record of this case at the time of hearing.  Oral 
 
         testimony was received during the hearing from claimant and the 
 
         following witnesses:  Junior Smith and James Winegarden.  The 
 
         exhibits received into the evidence are listed in the prehearing 
 
         report.
 
         
 
              According to the prehearing report, the parties have 
 
         stipulated to the following matters:
 
         
 
              1.  Defendant Aetna agrees that claimant on October 9, 1984, 
 
         received an injury which arose out of and in the course of 
 
         employment with Waterloo Schools.
 
         
 
              2.  Entitlement to temporary total disability or healing 
 
         period benefits is not an issue as the parties stipulated to the 
 
         length of healing period for each injury and each insurer has 
 
         paid claimant weekly benefits for these periods of time.
 
                                                
 
                                                         
 
         
 
              3.  If any of the injuries are found to have caused 
 
         permanent disability, the type of disability is an industrial 
 
         disability to the body as a whole.
 
         
 
              4.  If permanent disability benefits are awarded, they shall 
 
         begin as of June 20, 1984 for the alleged October 26, 1983 injury 
 
         and February 21, 1985 for the alleged October 9, 1984 injury.
 
         
 
              5.  Claimant's rate of weekly compensation in the event of 
 
         an award of weekly benefits from this proceeding shall be $199.17 
 
         for the October 26, 1983 injury and $206.01 for the October 9, 
 
         1984 injury.
 
         
 
              6.  Both defendant insurance carriers agreed that the 
 
         medical expenses submitted by claimant at the hearing, joint 
 
         exhibit 2, were fair and reasonable or the provider would testify 
 
         that they were fair and reasonable and defendants are not 
 
         offering contrary evidence.
 
         
 
                                   ISSUES
 
         
 
              The parties submitted the following issues for determination 
 
         in this proceeding:
 
         
 
                I.  Whether claimant received injuries arising out of and 
 
         in the course of employment;
 
         
 
               II.  Whether there is a causal relationship between the 
 
         work injury and the claimed disabilities;
 
         
 
              III.  The extent of claimant's entitlement to weekly 
 
         benefits for disability; and,
 
         
 
               IV.  The extent of claimant's entitlement to.medical 
 
         benefits.
 
         
 
                          SUMMARY OF THE EVIDENCE
 
         
 
              The following is a brief summary of evidence.  Any 
 
         conclusionary statements of the following summary should be 
 
         considered as preliminary findings of fact.  This is a case of 
 
         successive insurers for the same employer and it was stipulated 
 
         at hearing that Argonaut had coverage on October 26, 1983 and 
 
         Aetna had coverage at the time of the second alleged injury on 
 
         October 9, 1984.
 
         
 
              Claimant is 56 years of age with a seventh grade formal 
 
         education.  Claimant testified that he was not a good student and 
 
         states that his writing and reading skills are very poor.  
 
         Claimant labels himself as a functional illiterate although he has 
 
         adequate oral communication skills.  Claimant has not attempted to 
 
         obtain a GED.  Claimant testified that he worked for Waterloo 
 
         Community Schools from 1976 until his last alleged work injury in 
 
         this case in October of 1984 as a custodian.  Claimant earned 
 
                                                
 
                                                         
 
         $15,535 in his last full year of work prior to the alleged 
 
         injuries in this case. Before 1976, claimant was employed almost 
 
         continuously in manual labor occupations in manufacturing and meat 
 
         packing.
 
         
 
              The facts surrounding the two alleged work injuries are not 
 
         in real dispute.  Claimant testified that on October 26, 1983, 
 
         while attempting to board up a window in a closed school 
 
         building, he fell.approximately ten feet from a ladder.  
 
         Initially, claimant was only treated for a right ankle injury, 
 
         however, over the next several weeks he began to experience low 
 
         back and right hip pain. According to claimant he finally could 
 
         no longer stand the pain and was hospitalized in January 1984.  
 
         Hospital testing at that time revealed ruptured discs in the 
 
         lower back and he was injected with chymopapain to dissolve the 
 
         protruding disc material. Claimant then returned to his regular 
 
         custodial work in July 1984 without physician imposed work 
 
         restrictions.  Claimant then proceeded with his normal custodial 
 
         duties which included heavy lifting on occasion.
 
         
 
              The extent of difficulty experienced in his return to work 
 
         was hotly contested at hearing.  Claimant testified in his 
 
         deposition that he had no pain or problems but stated at hearing 
 
         that upon further thought he recalled numerous problems 
 
         especially in September 1984 when he received injections for low 
 
         back pain.
 
         
 
              One week after the last injection in September 1984 claimant 
 
         claims that he was injured a second time on October 9, 1984, while 
 
         lifting a package of floor tiles weighing from 20 to 35 pounds. 
 
         Claimant states he was not able to return to work after this 
 
         incident because permanent work restrictions were then imposed and 
 
         his employer would not accommodate for any restrictions.  Claimant 
 
         admits that he had problems before the lifting incident but his 
 
         pain became constant with no relief after the lifting incident.  
 
         He states that his disability became much more severe in that he 
 
         was no longer able to lift over 15 pounds; he was unable to 
 
         repetitive lift, bend or stoop; he was unable to walk, stand or 
 
         sit for prolonged periods of time.  Claimant does not feel he is 
 
         capable of even sedentary office work.  Claimant is currently 
 
         unemployed and drawing social security benefits.
 
         
 
              Claimant has had a long history of upper and lower back 
 
         problems before October 1983.  Claimant first complained of muscle 
 
         back strains while working for Titus Manufacturing early in his 
 
         working life.  However, serious problems did not develop until an 
 
         automobile accident in 1963.  Soon after this accident, claimant 
 
         was diagnosed as suffering from a ruptured disc in his neck or 
 
         cervical spine and a cervical fusion was then performed to relieve 
 
         the pain.  In 1967, claimant was diagnosed as having a protruding 
 
         or ruptured disc in his lower back possibly from the earlier car 
 
         accident and a surgical laminectomy was then performed at the L4/5 
 
         level of claimant's low back.  Claimant testified that following 
 
         his recovery he had few problems with his back until the 1983 
 
         fall. Claimant's long time family physician, James Jeffries, M.D., 
 
                                                
 
                                                         
 
         testified in his deposition that he has records that indicate 
 
         claimant had some follow-up treatment in 1984 for chronic low 
 
         backache by the physician who performed the 1967 back surgery. 
 
         Claimant was also treated in early 1980 for a stiff neck.  
 
         However, on the whole, claimant had no regular treatment of either 
 
         upper or lower back problems between 1967 and 1983.
 
         
 
              In his deposition Dr. Jeffries testified that claimant 
 
         suffers from a 15 percent permanent partial impairment to the 
 
         body as a whole from the two injuries in October 1983 and October 
 
         1984 each causing one half of the permanent partial impairment.  
 
         Dr. Jeffries described the lifting incident in 1984 as the "straw 
 
         that broke the camel's back" and does not believe claimant is 
 
         currently employable in any capacity.  In his deposition William 
 
         Boulden, M.D., a board certified orthopedic surgeon, opined from 
 
         his single examination of claimant, and review of claimant's past 
 
         records, in April 1988 that claimant had a ten percent permanent 
 
         partial impairment following the 1967 back surgery and an 
 
         additional ten percent permanent partial impairment following the 
 
         chymopapain injection after the 1983 injury.  Dr. Boulden states 
 
         that the lifting incident caused an additional five percent 
 
         permanent partial impairment.  Neither Dr. Boulden or Dr. 
 
         Jeffries felt that the incident in 1986, while claimant 
 
         experienced back pain after slipping on ice, was a contributing 
 
         factor to claimant's current disability.  They also agreed that 
 
 
 
                          
 
                                                         
 
         the two work incidents in 1983 and 1984 at Waterloo Schools 
 
         contributed equally on a 50/50 basis to claimant's current 
 
         disability.
 
         
 
              In his deposition, Lawrence C. Strathman, M.D., another 
 
         board certified orthopedic surgeon, testified that claimant has 
 
         overall a 20 to 25 percent permanent partial impairment to the 
 
         body as a whole.  Only five percent of this was preexisting but 
 
         that the 1984 lifting incident was only minor in comparison and 
 
         contributed two to three percent to the final disability.  His 
 
         view regarding the 1986 ice incident is confusing.  First, he 
 
         refers to the incident as a fall which is not,the case according 
 
         to claimant. Secondly, he stated both the 1984 and 1986 incidents 
 
         contributed two to three percent to the total disability but 
 
         later contradicted himself by saying only the 1984 lifting 
 
         incident was a cause of two to three percent permanent 
 
         disability.
 
         
 
              Judy Steenhoek, a vocational rehabilitation specialist, in 
 
         her last report in September 1985 indicated that if a return to 
 
         work at Waterloo Schools is not possible, it is unlikely claimant 
 
         will find other work.
 
         
 
              Claimant's appearance and demeanor at hearing indicated that 
 
         he was testifying truthfully.
 
         
 
                       APPLICABLE LAW AND ANALYSIS
 
         
 
                I.  Claimant has the burden of proving by a preponderance 
 
         of the evidence that he received an injury which arose out of and 
 
         in the course of employment.  The words "out of" refer to the 
 
         cause or source of the injury.  The words "in the course of" 
 
         refer to the time and place and circumstances of the injury.  See 
 
         Cedar Rapids Community Sch. v. Cady, 278 N.W.2d 298 (Iowa 1979); 
 
         Crowe v. DeSoto Consol. Sch. Dist., 246 Iowa 402, 68 N.W.2d 63 
 
         (1955). An employer takes an employee subject to any active or 
 
         dormant health impairments, and a work connected injury which 
 
         more than slightly aggravates the condition is considered to be a 
 
         personal injury.  Ziegler v. United States Gypsum Co., 252 Iowa 
 
         613, 620, 106 N.W.2d 591 (1960) and cases cited therein.
 
         
 
              In this case, there is little question that claimant 
 
         suffered a work injury on October 26, 1983.
 
         
 
               II.  The claimant has the burden of proving by a 
 
         preponderance of the evidence that the work injury is a cause of 
 
         the claimed disability.  A disability may be either temporary or 
 
         permanent.  In the case of a claim for temporary disability, the 
 
         claimant must establish that the work injury was a cause of 
 
         absence from work and lost earnings during a period of recovery 
 
         from the injury.  Generally, a claim of permanent disability 
 
         invokes an initial determination of whether the work injury was a 
 
         cause of permanent physical impairment or permanent limitation in 
 
         work activity.  However, in some instances, such as a job 
 
         transfer caused by a work injury, permanent disability benefits 
 
                                                
 
                                                         
 
         can be awarded without a showing of a causal connection to a 
 
         physical change of condition.  Blacksmith v. All-American, Inc., 
 
         290 N.W.2d 348, 354 (Iowa 1980); McSpadden v. Big Ben Coal Co., 
 
         288 N.W.2d 181 (Iowa 1980).
 
         
 
              The question of causal connection is essentially within the 
 
         domain of expert medical opinion.  Bradshaw v. Iowa Methodist 
 
         Hospital, 251 Iowa 375, 101 N.W.2d 167 (1960).  The opinion of 
 
         experts need not be couched in definite, positive or unequivocal 
 
         language and the expert opinion may be accepted or rejected, in 
 
         whole or in part, by the trier of fact.  Sondag v. Ferris 
 
         Hardware, 220 N.W.2d 903 (Iowa 1974).  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 v. Fischer, Inc., 257 
 
         Iowa 516, 133 N.W.2d 867 (1965).
 
         
 
              Furthermore, if the available expert testimony is 
 
         insufficient along to support a finding of causal connection, 
 
         such testimony may be coupled with nonexpert testimony to show 
 
         causation and be sufficient to sustain an award.  Giere v. 
 
         Asse-Haugen Homes, Inc., 259 Iowa 1065, 146 N.W.2d 911, 915 
 
         (1966). Such evidence does not, however, compel an award as a 
 
         matter of law.  Anderson v. Oscar Mayer & Co., 217 N.W.2d 531, 
 
         536 (Iowa 1974).  To establish compensability, the injury need 
 
         only be a significant factor, not be the only factor causing the 
 
         claimed disability.  Blacksmith, 290 N.W.2d 348, 354.  In the 
 
         case of a preexisting condition, an employee is not entitled to 
 
         recover for the results of a preexisting injury or disease but 
 
         can recover for an aggravation thereof which resulted in the 
 
         disability found to exist.  Olson v. Goodyear Service Stores, 255 
 
         Iowa 1112, 125 N.W.2d 251 (1963).
 
         
 
              In the case sub judice, claimant claims permanent disability 
 
         and urges the undersigned not to adopt the gradual injury theory 
 
         under the industrial commissioner's decision in Babe v. Greyhound 
 
         Lines, Inc., dated February 29, 1988, file numbers 706132 and 
 
         790714.  Claimant seeks contribution on a 50/50 basis for his 
 
         current disability from each of the defendant insurance carriers 
 
         in this case.  Defendant Argonaut relies upon the rule in 
 
         McKeever Custom Cabinets v. Smith, 379 N.W.2d 368 (Iowa 1985) or 
 
         the so-called "last injurious exposure rule."  To place full 
 
         liability for claimant's current problems upon the last insurance 
 
         carrier Aetna.  Defendant Aetna argues that the lifting incident 
 
         in 1984 was relatively minor and that Argonaut should assume the 
 
         major part of the liability for the claimant's current problems.
 
         
 
              First, I believe that claimant and defendant Argonaut are 
 
         correct in that this agency in Babe has rejected the 
 
         Massachusetts/Michigan majority rule favored by Larson in 
 
         successive insurer cases at least insofar as its application to 
 
         successive accidents.  According to Larson, this rule is favored 
 
         for not only occupational diseases and gradual injury cases but 
 
         also where you have successive accidents contributing to the 
 
         claimed disability.  Larson and the majority of states prefer 
 
                                                
 
                                                         
 
         this rule as it provides the most benefits to claimant with the 
 
         least amount of potential litigation.  Most importantly, the rule 
 
         eliminates the troublesome and complicated issues of 
 
         apportionment and complicated issues of burden of proof dealing 
 
         with apportionment.  Under this majority rule, full liability for 
 
         the final disability is placed upon the insurer or employer at 
 
         the time of the "last injurious exposure" which bears a relation 
 
         to the disability even if the last injurious exposure is 
 
         relatively minor in comparison to the prior accidents.  The 
 
         harshness of this rule is tempered by a broad based application 
 
         of the rule which would spread costs among all insurance 
 
         carriers.  In McKeever at page 376, the Larson rule was stated as 
 
         follows:
 
         
 
              The "last injurious exposure" rule in successive-injury 
 
              cases places full liability upon the carrier covering the 
 
              risk at the time of the most recent injury that bears a 
 
              causal relation to the disability.  This rule--sometimes 
 
              called the "Massachusetts-Michigan rule" because of its use 
 
              in early cases in those states--is the majority rule in 
 
              successive insurer cases, either by judicial adoption or by 
 
              express statutory provisions.  Although the statutory 
 
              provisions for the use of the rule frequently refer only to 
 
              occupational disease, the rule is often applied in 
 
              accidental injury cases also....
 
              (Emphasis added)
 
         
 
              However, the industrial commissioner, in his appeal decision 
 
         in Babe, limits the application of the McKeever rule to precise 
 
         facts of McKeever by stating that the McKeever rule is 
 
         appropriate only for repetitive and gradual injuries and not 
 
         where there are successive injuries caused by trauma which 
 
         results in a loss of work for a compensable period of time.  
 
         However, this interpretation is not abundantly clear because the 
 
         Babe decision is largely based upon a factual finding that the 
 
         successive injuries at issue in that case were only temporary 
 
         aggravations and did not contribute to the final permanent 
 
         disability.  Under such a finding, even the majority rule would 
 
         not have applied.
 
         
 
              In any event, the dicta portion of the Babe decision 
 
         regarding application of the McKeever rule is binding upon the 
 
         undersigned and must be applied to the facts in this case.  As 
 
         stated above, the assessment of Argonaut's liability as a result 
 
         of the October 1983 injury is unaffected by the Babe or McKeever 
 
         decisions.  However, we have to deal with the issue of respective 
 
         assessment of liability and the propriety of apportionment of 
 
         claimant's disability among the insurers after the second injury 
 
         and the loss of his employment.
 
         
 
              In the case sub judice, the views of Dr. Jeffries as the 
 
         primary treating family physician and those of Dr. Boulden are 
 
         adopted as the most convincing.  Dr. Strathman's testimony was 
 
         confused and he did not appear to have the same command of the 
 
         historical facts as did Dr. Boulden and Dr. Jeffries.  Therefore, 
 
                                                
 
                                                         
 
         claimant has shown that he suffered a ten percent permanent 
 
         partial impairment as a result of the October 26, 1983 injury 
 
         alone and an additional five percent permanent partial impairment 
 
         as a sole result of the 1984 incident at work.  Claimant had a 
 
         prior existing ten percent permanent partial impairment before 
 
         October 26, 1983.
 
         
 
              III.  Claimant must establish by a preponderance of the 
 
         evidence the extent of weekly benefits for permanent disability 
 
         to which claimant is entitled.  As the claimant has shown that 
 
         the work injury was a cause of a permanent physical impairment or 
 
         limitation upon activity involving the body as a whole, the 
 
         degree of permanent disability must be measured pursuant to Iowa 
 
         Code section 85.34(2)(u).  However, unlike scheduled member 
 
         disabilities, the degree of disability under this provision is 
 
         not measured solely by the extent of a functional impairment or 
 
         loss of use of a body member.  A disability to the body as a 
 
         whole or an "industrial disability" is a loss of earning capacity 
 
         resulting from the work injury.  Diederich v. Tri-City Railway 
 
         Co., 219 Iowa 587, 593, 258 N.W. 899 (1935).  A physical 
 
         impairment or restriction on work activity may or may not result 
 
         in such a loss of earning capacity.  The extent to which a work 
 
         injury and a resulting medical condition has resulted in an 
 
         industrial disability is determined from examination of several 
 
         factors. These factors include the employee's medical condition 
 
         prior to the injury, immediately after the injury and presently; 
 
         the situs of the injury, its severity and the length of healing 
 
         period; the work experience of the employee prior to the injury, 
 
         after the injury and potential for rehabilitation; the employee's 
 
         qualifications intellectually, emotionally and physically; 
 
         earnings prior and subsequent to the injury; age; education; 
 
         motivation; functional impairment as a result of the injury; and 
 
         inability because of the injury to engage in employment for which 
 
 
 
                       
 
                                                         
 
         the employee is fitted.  Loss of earnings caused by a job 
 
         transfer for reasons related to the injury is also relevant.  
 
         Olson v. Goodyear Service Stores, 255 Iowa 1112, 1121, 125 
 
         N.W.2d 251, 257 (1963).  See Peterson v. Truck Haven Cafe, Inc., 
 
         (Appeal Decision, February 8, 1985).
 
         
 
              In the case at bar, two assessments of industrial disability 
 
         must be made.  One after the 1983 injury and claimant's current 
 
         disability which is the result of the 1984 injury and claimant's 
 
         prior injuries.  As the last injurious exposure rule is not 
 
         applicable, an apportionment of respective liability after the 
 
         second injury is necessary.  This, however, is not a medical 
 
         question.  Doctors can apportion an impairment but not industrial 
 
         disability as the two concepts are quite different.  Therefore, 
 
         the apportionment by Dr. Jeffries and Dr. Boulden on a 50/50 
 
         basis does not have a great deal of weight in this proceeding.
 
         
 
              Although claimant had occasional back difficulties before 
 
         1983, his medical condition at the time of the 1983 work injury 
 
         was fairly good.  Despite a small amount of functional 
 
         impairment, claimant was able to fully perform the physical tasks 
 
         required of a school custodian involving heavy lifting, 
 
         repetitive lifting, bending, twisting and stooping and prolonged 
 
         walking and standing. After the 1983 injury and his return to 
 
         work in July 1984, claimant was still able to perform the full 
 
         range of tasks but experienced bouts of severe pain with such 
 
         activity which required medical treatment.  Claimant, however, 
 
         continued to work and without physician imposed restrictions.
 
         
 
              After the 1984 injury, however, claimant's situation took a 
 
         significant turn for the worse.  Claimant was no longer able to 
 
         fully perform all of the physical tasks of his work and physician 
 
         imposed work restrictions resulted in the loss of his job.  These 
 
         work restrictions now prevent him also from returning to the type 
 
         of work for which he is best suited given his lack of formal 
 
         education and his past work experience in manual labor work.  
 
         Both Dr. Jeffries and Dr. Boulden are convinced that claimant is 
 
         physically unable to return to work.  It is quite clear that 
 
         although the prior injury was probably the most serious in terms 
 
         of physical impact, the second injury was the most serious in 
 
         terms of impact upon claimant's earning capacity.
 
         
 
              Claimant seeks an application of a so-called "odd-lot" 
 
         doctrine.  This doctrine allows the claimant to establish a prima 
 
         facie case for unemployability and permanent total disability 
 
         benefits from a factual showing of a reasonable but unsuccessful 
 
         effort to find suitable work.  If defendants then fail to go 
 
         forward with the evidence on the issue of availability of suitable 
 
         work, claimant is entitled to an award of permanent total 
 
         disability.  See Guyton v. Irving Jensen Co., 373 N.W.2d 101, 105 
 
         (Iowa 1985).  The industrial commissioner has specifically 
 
         directed that a deputy cannot apply this doctrine without a 
 
         showing of a reasonable effort to secure replacement employment. 
 
         Collins v. Friendship Village, Inc., case number 679258, appeal 
 
         decision filed October 31, 1988; Pyle v. Carstensen Freight Lines, 
 
                                                
 
                                                         
 
         Inc., case number 753661, appeal decision filed July 27,, 1987.  
 
         In this case claimant has not looked for work and has not 
 
         attempted retraining. Therefore, the doctrine cannot be applied.
 
         
 
              However, the burden shifting rule in Guyton is not the only 
 
         path to a permanent total disability award.  Looking at the facts 
 
         of this case, claimant has otherwise made a case for complete 
 
         unemployability.  Two of the most convincing physicians 
 
         testifying in this case, Dr. Jeffries and Dr. Boulden, both agree 
 
         that claimant is no longer physically able to work.  Only Dr. 
 
         Strathman states that claimant is capable of some sedentary work.  
 
         The only vocational rehabilitation specialist to submit a report 
 
         in this case indicates that alternative employment is not 
 
         likely.
 
         
 
              Claimant is 56 years of age.  His age deters from 
 
         employability in new fields and he was much to young to retire at 
 
         the time of the injury.  However, he was forced to do so.  
 
         Claimant appears well motivated and his doctors are convinced of 
 
         his motivation.  Claimant simply can no longer work.  Claimant has 
 
         a seventh grade education and limited reading and writing skills 
 
         which further indicates a lack of vocational rehabilitation.
 
         
 
              After examination of all the factors, it is found as a 
 
         matter of fact that as a sole result of the October 26, 1983 
 
         injury, claimant suffered a 15 percent loss in his earning 
 
         capacity due to his ability to return to work as a custodian 
 
         despite his impairment.  Following the October 9, 1984 injury and 
 
         as a result of the prior injuries, it is found that claimant 
 
         currently suffers from a total or 100 percent loss of his earning 
 
         capacity.  We must therefore turn to the apportionment issue.
 
         
 
              Clearly, claimant had some disability before October 1983 
 
         due to two back surgeries and resulting permanent partial 
 
         impairment. Given such a medical history, this man certainly was 
 
         significantly less employable before October 1983 than a person 
 
         without such a history.  However, this preexisting industrial 
 
         disability is probably limited to 10 percent because he had no 
 
         restrictions or difficulty performing his custodial work.  Only 
 
         Dr. Strathman believes that the ice incident in 1986 was 
 
         significant and he was misinformed as to the nature of the 
 
         incident.  Therefore, such an incident is not found to be a 
 
         significant or contributing factor to claimant's permanent 
 
         disability.
 
         
 
              Should we then deduct a total of 25 percent from the finding 
 
         of 100 percent loss of earning capacity to apportion out the 
 
         prior existing disability before October 9, 1984?  If so, should 
 
         we further apportion out the remaining 75 percent among the two 
 
         insurers since both 1983 and 1984 injuries are causally connected 
 
         in the causal chain to the resulting disability?
 
         
 
              If claimant's current disability had been less than 100 
 
         percent, such an apportionment could have been made.  But, in 
 
         this case, no apportionment will be made.  Although there has 
 
                                                
 
                                                         
 
         been no appeal decision on this point, it has been ruled on 
 
         several occasions over the last few years by deputy commissioners 
 
         that apportionment of permanent total disability is not possible 
 
         because such benefits are awarded for an indefinite period. 
 
         Generally these benefits.last a lifetime if the disability 
 
         remains unchanged.  There is no feasible or rationale method to 
 
         apportion such benefits given the structure of an award of 
 
         permanent total disability.  See Brown v. Nissen Corp., 
 
         Arbitration Decision filed June 29, 1988, case number 837608.  
 
         Therefore, when the straw breaks the camel's back, the last 
 
         employer must pay all of the remaining disability.  This is not 
 
         an application of last injurious exposure rule but a recognition 
 
         of the purposes and intent behind an award of permanent 
 
         disability.
 
         
 
              Based upon a finding of a 15 percent loss of earning 
 
         capacity as a result of the work injury of October 26, 1983, 
 
         claimant is entitled as a matter of law to 75 weeks of permanent 
 
         partial disability from defendant Argonaut beginning on June 20, 
 
         1984. Seventy-five weeks is 15 percent of 500 weeks, the.maximum 
 
         allowable number of weeks for an injury to the body as a whole 
 
         under Iowa Code section 85.34(2)(u).
 
         
 
              Based upon a finding of a 100 percent loss of earning 
 
         capacity or a permanent total disability as a result of both the 
 
         prior existing disability and the injury of October 9, 1984, 
 
         claimant is entitled as a matter of law to weekly benefits for an 
 
         indefinite period of time during the entire period of his 
 
         disability under Iowa Code section 85.34(3) beginning on October 
 
         10, 1984.
 
         
 
              There is a problem of overlapping weekly benefits with an 
 
         award of both permanent partial disability for the 1983 injury 
 
         and permanent total disability for the 1984 injury.  Given the 
 
         nature of permanent total disability, it appears improper to have 
 
         double weekly benefits.  However, Argonaut should not be relieved 
 
         of liability for the 1983 injury on the basis of a subsequent 
 
         injury. Therefore, the most appropriate solution to the problem 
 
         is to allow Aetna to take a credit against their obligation to 
 
         pay weekly benefits from October 9, 1984 for the dollar amounts 
 
         paid by Argonaut in weekly benefits after October 9, 1984.  
 
         Authority for this approach lies in the language of Iowa Code 
 
         section 85.34(3) for payments only "during the period of 
 
         disability."  In other words, Aetna will only have to supplement 
 
         Argonaut's weekly payment to the extent of the difference between 
 
         the respective rates of compensation until the Argonaut award is 
 
         fully paid out. At that time, Aetna's full weekly payment will 
 
         begin.
 
         
 
               IV.  Pursuant to Iowa Code section 85.27, claimant is 
 
         entitled to payment of reasonable medical expenses incurred for 
 
         treatment of a work injury.  However, claimant is entitled to an 
 
         order of reimbursement only if claimant has paid those expenses. 
 
         Otherwise, claimant is entitled only to an order directing the 
 
         responsible defendants to make such payments.  See Krohn v. 
 
                                                
 
                                                         
 
         State, 420 N.W.2d 463 (Iowa 1988).  For the same reasons that 
 
         permanent total disability is not apportioned, the expenses after 
 
         the 1984 injury will not be apportioned.  As all the requested 
 
         benefits are subsequent to the 1984 injury, all of the requested 
 
         expenses are the responsibility of defendant Aetna.  The 
 
         defendant Aetna also has no authority to control the medical 
 
         expenses or to choose the care because they have denied in this 
 
         proceeding the causal connection of claimant's permanent 
 
         disability to the work injury of October 9, 1984.  Kindhart v. 
 
         Fort Des Moines Hotel, I Iowa Industrial Commissioner Report 3, 
 
         611 (Appeal Decision 1985); Barnhardt v. MAQ, Inc., I Iowa 
 
         Industrial Commissioner Report 16 (Appeal Decision 1981).
 
         
 
                                 FINDINGS OF FACT
 
         
 
              1.  Claimant was a credible witness.
 
         
 
              2.  On October 26, 1983, claimant suffered an injury to the 
 
         low back which arose out of and in the course of his employment 
 
         with Waterloo Schools.  This injury was the result of a fall at 
 
         work which ruptured vertebral discs at the L3/4 and L4/5 level of 
 
         claimant's spine.
 
         
 
              3.  The work injury of October 26, 1983, was a cause of a 
 
         period of disability from work from October 27, 1983 through June 
 
         19, 1984 do to the necessity of chymopapain injection surgery and 
 
         recovery from this surgery.
 
         
 
              4.  The work injury of October 26, 1983, was a cause of a 10 
 
         percent permanent partial impairment to the body as a whole but 
 
         did not result in the imposition of work restrictions.
 
         
 
              5.  The work injury of October 26, 1983 and the resulting 
 
 
 
                       
 
                                                         
 
         permanent partial impairment was a cause of a 15 percent loss of 
 
         earning capacity.  Despite permanent partial impairment, claimant 
 
         was able to return to work following his recovery from the 
 
         October 26, 1983 injury and to the same job he had at the time of 
 
         the injury.  Claimant did not suffer a loss of earnings but did 
 
         have difficulties with heavy lifting at work which gave him 
 
         periodic pain requiring medical treatment.
 
         
 
              6.  On October 9, 1984, claimant suffered an injury to the 
 
         low back which arose out of and in the course of his employment 
 
         with Waterloo Schools.  His injury was the result of a lifting 
 
         incident at work which further strained his back.
 
         
 
              7.  The work injury of October 7, 1984, was a cause of a 
 
         five percent permanent partial impairment to the body as a whole 
 
         but, unlike before, this injury was also a cause of permanent 
 
         work restrictions against heavy lifting; repetitive lifting, 
 
         bending, twisting and stooping; and, prolonged sitting, standing 
 
         and walking.
 
         
 
              8.  The work injury of October 9, 1984, and the resulting 
 
         permanent partial impairment and work restrictions along with the 
 
         effects of claimant's prior injuries were a cause of a 100 
 
         percent loss of earning capacity.  As a result of work 
 
         restrictions, claimant was not able to return to work or to most 
 
         other manual labor jobs claimant has held in the past.  Claimant 
 
         has a seventh grade education which limited reading and writing 
 
         skills.  Given his past education and past work experience as a 
 
         manual laborer, claimant is unable to return to any work for 
 
         which he is best suited.  Claimant is physically unable to 
 
         utilize any of his transferable work skills and it is not likely 
 
         that he will ever be gainfully employed in any capacity.  
 
         Claimant's potential for vocational rehabilitation given his age 
 
         and lack of education is very low.  A slip incident on ice in 
 
         1986 was not considered a contributing cause to claimant's 
 
         permanent partial impairment or industrial disability.  Prior to 
 
         October 9, 1984, claimant had a 25 percent industrial disability 
 
         but no apportionment is possible in this award.
 
         
 
              9.  The medical expenses totaling $5,907.26 requested by 
 
         claimant in joint exhibit 2 are fair and reasonable and causally 
 
         related to the injury of October 9, 1984.
 
         
 
                             CONCLUSIONS OF LAW
 
         
 
              Claimant has established under law entitlement to the 
 
         disability and medical benefits awarded below.
 
         
 
                                  ORDER
 
         
 
              1.  Defendant Argonaut and Waterloo Community School 
 
         District shall pay to claimant healing period benefits from 
 
         October 27, 1983 through June 19, 1983 and in addition 
 
         seventy-five (75) weeks of permanent partial disability benefits 
 
         from June 20, 1983 at the rate of one hundred ninety-nine and 
 
                                                
 
                                                         
 
         17/100 dollars ($199.17) per week.
 
         
 
              2.  Defendant Aetna and Waterloo Community School District 
 
         shall pay to claimant permanent total disability benefits during 
 
         the period of his disability beginning on October 10, 1984 at the 
 
         rate of two hundred six and 01/100 dollars ($206.01) per week but 
 
         Aetna is allowed to take a credit against this award for weekly 
 
         benefits paid by Argonaut after October 9, 1984.
 
         
 
              3.  Defendant Aetna and Waterloo Community School District 
 
         shall pay claimant the medical expenses set forth in their 
 
         exhibit 2 which totals five thousand nine hundred seven and 
 
         26/100 dollars ($5,907.26) if claimant has paid those expenses, 
 
         otherwise these expenses will be paid directly to the provider.
 
         
 
              4.  All defendants shall pay accrued weekly benefits in a 
 
         lump sum and shall receive credit against this award for all 
 
         benefits previously paid and permitted by law.
 
         
 
              5.  All defendants shall pay interest on weekly benefits 
 
         awarded herein as set forth in Iowa Code section 85.30.
 
         
 
              6.  Defendants Aetna and Waterloo Community School District 
 
         shall pay the entire cost of this action pursuant to Division of 
 
         Industrial Services Rule 343-4.33.
 
         
 
              7.  Defendants shall file activity reports on the payment of 
 
         this award as requested by this agency pursuant to Division of 
 
         Industrial Services 343-3.1.
 
         
 
              8.  This matter shall be set back into assignment for 
 
         prehearing and hearing on the extent of additional benefits to 
 
         which claimant is entitled due to an alleged unreasonable denial 
 
         or withholding of payment of benefits in this case.
 
         
 
         
 
              Signed and filed this 30th day of March, 1989.
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
                                            LARRY P.WALSHIRE
 
                                            DEPUTY INDUSTRIAL 
 
                                            COMMISSIONER
 
         
 
         Copies To:
 
         
 
         Mr. David D. Drake
 
         Attorney at Law
 
         West Towers Office
 
         1200 35th St., STE 500.
 
         West Des Moines, Iowa  50265
 
                                                
 
                                                         
 
         
 
         Mr. James E. Walsh, Jr.
 
         Mr. Bruce L. Gettman
 
         Attorneys at Law
 
         P. 0. Box 596
 
         Waterloo, Iowa  50704
 
         
 
                                  
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
                                                
 
 
            
 
 
 
 
 
              
 
 
 
                                            1806; 2209
 
                                            Filed March 30,  1989
 
                                            LARRY P. WALSHIRE
 
         
 
                  BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         JAMES E. LOFTUS,
 
         
 
              Claimant,
 
         
 
         vs.                                  File Nos. 777678 & 748818
 
         
 
         WATERLOO COMMUNITY SCHOOL              A R B I T R A T I 0 N
 
         DISTRICT,
 
                                                   D E C I S I 0 N
 
              Employer,
 
         
 
         and
 
         
 
         ARGONAUT INSURANCE COMPANIES
 
         and AETNA LIFE AND CASUALTY,
 
         
 
              Insurance Carriers,
 
              Defendants.
 
         
 
         
 
         
 
         1806; 2209
 
         
 
              Apportionment of disability on the application of the 
 
         gradual injury of the last injurious exposure rule in McKeever.  
 
         It was held that this agency has rejected the majority rule 
 
         otherwise known as the Massachusetts/Michigan rule favored by 
 
         Larson which places full liability upon the employer at the time 
 
         of the last injurious exposure for successive injury cases.  It 
 
         was held that the industrial commissioner in the decision Babe v. 
 
         Greyhound Lines, Inc., has limited the application of the last 
 
         injurious exposure rule to gradual injuries and the facts of 
 
         McKeever. However, an apportionment of permanent total 
 
         disability was not made in this case although it was the result 
 
         of successive injuries because it was held that there was no 
 
         practical or feasible way to apportion a permanent total 
 
         disability award.  A separate award of 15 percent was made for a 
 
         prior injury but the second carrier was allowed to take a credit 
 
         for amounts paid by the first carrier after the second injury to 
 
         avoid double weekly benefits.
 
         
 
         
 
         
 
 
 
 
 
 
 
 
 
                                                
 
 
            
 
                       
 
 
 
              
 
                  BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         JAMES E. LOFTUS,
 
                                             File Nos. 777678 & 748818
 
              Claimant,
 
                                                      N U N C
 
         vs.
 
                                                       P.R 0
 
         WATERLOO COMMUNITY SCHOOL
 
         DISTRICT,                                    T U N C
 
         
 
              Employer,                              0 R D E R
 
         
 
         and                                         F I L E D
 
         
 
         ARGONAUT INSURANCE COMPANIES               APR 03 1989
 
         and AETNA LIFE AND CASUALTY,
 
                                            IOWA INDUSTRIAL COMMISSIONER
 
              Insurance Carriers,
 
              Defendants.
 
         
 
         
 
         
 
              Due to typographical error, paragraph one of the order in 
 
         the decision filed March 30, 1989 is amended as follows:
 
         
 
              1.  Defendant Argonaut and Waterloo Community School 
 
         District shall pay to claimant healing period benefits from 
 
         October 27, 1983 through June 19, 1984 and in addition 
 
         seventy-five (75) weeks of permanent partial disability benefits 
 
         from June 20, 1984 at the rate of one hundred ninety-nine and 
 
         17/100 dollars ($199.17) per week.
 
         
 
              Signed and filed this 3rd day of April, 1989.
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
                                            LARRY P. WALSHIRE
 
                                            DEPUTY INDUSTRIAL 
 
                                            COMMISSIONER
 
         
 
         Copies To:
 
         
 
         Mr. David D. Drake
 
         Attorney at Law
 
         West Towers Office
 
         1200 35th St., STE 500
 
         West Des Moines, Iowa  50265
 
         
 
         Mr. Barry Moranville
 
                                                
 
                                                         
 
         Attorney at Law
 
         974 73rd St., Suite 16
 
         Des Moines, Iowa  50312
 
         
 
         
 
         
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
                                                
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                    BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         _________________________________________________________________
 
         
 
         ELDON L. LUNDY,
 
         
 
              Claimant,
 
                                                 File No. 777760
 
         VS.
 
         
 
         MID-SEVEN TRANSPORTATION
 
         COMPANY,                              A R B I T R A T I 0 N
 
        
 
                                                 D E C I S I 0 N
 
              Employer,
 
         
 
         and
 
         
 
         LIBERTY MUTUAL INSURANCE
 
         COMPANY,
 
         
 
              Insurance Company,
 
              Defendants.
 
         _________________________________________________________________
 
         
 
                                   INTRODUCTION
 
         
 
              This is a proceeding in arbitration brought by the claimant, 
 
         Eldon L. Lundy, against his employer, Mid-Seven Transportation 
 
         Company, and its insurance carrier, Liberty Mutual Insurance 
 
         Company, to recover benefits under the Iowa Workers' Compensation 
 
         Act as a result of an injury allegedly sustained October 16, 
 
         1985.  This matter came on for hearing before the undersigned 
 
         deputy industrial commissioner, in Des Moines, Iowa, on March 31, 
 
         1987.  A first report of injury was filed October 22, 1984.  A 
 
         final report filed October 15, 1985 indicates that claimant was 
 
         paid 46 weeks of benefits with those benefits ending September 
 
         24, 1985.
 
         
 
              The record in this proceeding consists of the testimony of 
 
         claimant, and of David Thomas Sterr, as well as of joint exhibits 
 
         1 through 4. Joint exhibit 1 is medical records relative to 
 
         claimant; Joint exhibit 2 is medical bills relative to claimant; 
 
         joint exhibit 3 is the deposition of Philip Kohler, M.D.; and 
 
         joint exhibit 4 is the rate calculation sheet and wage 
 
         itemization.
 
         
 
                                   ISSUES
 
         
 
              Pursuant to the prehearing report, the parties stipulated 
 
         that claimant's rate of compensation is $338.96 per week; that 
 
         the provider of medical bills will testify that those bills were 
 
         fair and reasonable; that claimant received an injury which arose 
 
         out of and in the course of his employment on October 16, 1984; 
 
         and that a causal relationship exists between that injury and 
 
         temporary total disability.  The issue remaining to be decided is 
 
         whether claimant is entitled to further temporary total or 
 
         healing period benefits, as well as the issue of whether claimant 
 

 
         is entitled to payment of certain medical costs under section 
 
         85.27 as causally connected to his injury and as reasonable, 
 
         necessary, and authorized medical care.
 
         
 
                         REVIEW OF THE EVIDENCE
 
         
 
              Claimant sustained a ruptured hernia on October 16, 1984 
 
         while lifting in the course of his employment as a truck driver.  
 
         James Caterine, M.D., a general surgeon, performed hernia repair 
 
         surgery on November 15, 1984.  At hearing, claimant testified 
 
         that he returned to Dr. Caterine approximately a month following 
 
         the surgery and reported back, groin, and side pain.  Claimant 
 
         reported that Dr. Caterine referred him to Dr. Kohler, Dr. Misol, 
 
         and Dr. Clemens.  Claimant, himself, returned to Dr. Frahm, the 
 
         company doctor.  Dr. Frahm subsequently referred him to Dr. 
 
         Hoffmann and Dr. Kohler.  Claimant initially saw Dr. Kohler in 
 
         December 1985 and treated with him through March 16, 1987 when 
 
         claimant was released for work.  R. W. Hoffmann, M.D., examined 
 
         claimant on June 3, 1985 and noted that his right testis was 
 
         swollen approximately one and one-half times that of the left.  
 
         His impression was of a possible venus return blockage, that is 
 
         surgical constriction of the veins, or possible nerve entrapment.  
 
         On June 24, 1985, Dr. Hoffmann surgically explored the right 
 
         inguinal area and found marked scarring of the [spermatic] cord 
 
         on the inferior surface of the cord down from the internal ring 
 
         to the pubic bone with vein congestion about the cord.  Claimant 
 
         testified that the Hoffmann surgery relieved his testicle 
 
         swelling, but did not relieve the pain in his groin, side or 
 
         back.
 
         
 
              J.A. Frahm, M.D., released claimant for work on September 
 
         25, 1985.  Claimant reported that he called his employer and was 
 
         told his job was terminated.  Claimant agreed that he had had two 
 
         accidents on November 5 and November 6, 1984, and that he was 
 
         told these were basis for his termination.  He agreed that he had 
 
         had a ninety day loss of license for being a habitual speed 
 
         violator.  Claimant stated that he applied for jobs with trucking 
 
         firms throughout the Des Moines area, but denied that his license 
 
         loss impacted on his ability to find work.  He reported that he 
 
         never completed applications at firms to which he applied as no 
 
         jobs were available.  Claimant worked subsequently for 
 
         approximately four hours per week delivering papers for the Metro 
 
         Shopper with his grandson.  Claimant also attempted to work for 
 
         Super Valu in the summer of 1986, working from June 20, 1986 to 
 
         prior to July 26, 1986.  Total earnings were $815.94. Claimant 
 
         testified that he worked only a total of five days, three being 
 
         during the first week of work and two being during the second 
 
         week of work and that he left work on account of pain.  Claimant 
 
         stated that he had no new injury at Super Valu and that while his 
 
         symptoms temporarily changed while working, his physical 
 
         complaints remained the same before and after the Super Valu 
 
         employment.  Claimant has a history of angina and asthma and had 
 
         a myocardial infarction in 1982.  He denied that those medical 
 
         conditions ever affected his ability to work but for six weeks 
 
         off for "angina."  Claimant was able to pass the DOT physicals.
 
         
 
              James L. Blessman, M.D., saw claimant in May 1985.  In his 
 
         report of May 21, 1985, Dr. Blessman stated that he felt 
 
         secondary gain factors significantly contributed to the 
 
         perpetuation of claimant's right inguinal pain.  He stated 
 
         claimant's wife should ultimately be involved in comprehensive 
 
         pain management therapy for claimant as claimant was not going to 
 
         get well without his wife's permission.  Claimant testified that 
 
         he rejected the possibility of pain center therapy as he 
 
         continued to have swelling in his testicle and, therefore, 
 

 
         
 
         
 
         
 
         LUNDY V. MID-SEVEN TRANSPORTATION COMPANY
 
         Page   3
 
         
 
         
 
         believed that he had a physical and not a psychological 
 
         condition.
 
         
 
              James Caterine, M.D., reported claimant's external genitalia 
 
         was normal when claimant's hernia repair surgery was performed on 
 
         November 15, 1984.
 
         
 
              On February 7, 1985, Dr. Frahm diagnosed right epididymtis 
 
         and possible prostatitis.
 
         
 
              Philip H. Kohler , M.D., a board certified urologist, 
 
         initially saw claimant on February 21, 1985.  Claimant then had 
 
         aching in the right testes and severe right inguinal pain.  
 
         Examination revealed of very well healed, but very tender, hernia 
 
         incision.
 
         
 
              Sinesio Misol, M.D., an orthopedic surgeon, examined 
 
         claimant on April 4, 1985.  He found pain, numbness, and 
 
         hypoesthesia extending from claimant's surgical scar down into 
 
         the front of the thigh.  On physical examination, claimant had 
 
         anesthesia in an area extending from the surgical scar parallel 
 
         to the right groin flexion crease.  He had a positive Tinel sign 
 
         approximately 3 cm lateral to the start of the scar.  Dr. Misol's 
 
         diagnosis was of a painful herniorrhaphy scar with hypoesthesia 
 
         distal to the scar, secondary to ilioinguinal nerve entrapment.  
 
         Dr. Misol referred claimant to Albert L. Clemens, M.D., a general 
 
         surgeon.  Following physical examination of April 12, 1985, Dr. 
 
         Clemens opined that claimant could well have nerve entrapment 
 
         syndrome and suggested that surgical exploration of the area be 
 
         considered.
 
         
 
              Glen D. Hanson, M.D., examined claimant on May 2, 1985.  He 
 
         stated that claimant reported that he had had discomfort in the 
 
         right scrotum from approximately a month to six weeks following 
 
         his herniorrhaphy.  Claimant then was reporting tenderness and 
 
         swelling at the epididymis in the right groin and down to the 
 
         right testicle without tenderness in the testicle itself.  On May 
 
         9, 1985, claimant was reporting only tenderness in the internal 
 
         ring.  Dr. Hanson's assessment then was a probable residual 
 
         epididymitis. on April 22, 1985, J. R. Ritzman, M.D., performed 
 
         ilioinguinal and iliohypogastric nerve blocks.  Claimant 
 
         developed numbness over the distribution of both blocks, but had 
 
         no change in the nature or distribution of the pain.
 
         
 
              Donald W. Blair, M.D., stated in a medical report of May 8, 
 
         1985, that claimant had subjective complaints of discomfort, 
 
         apparently as a result of nerve entrapment at the hernia repair 
 
         site.  Dr. Blair indicated that general treatment of nerve 
 
         entrapment would be to allow time to pass with the symptoms 
 
         gradually diminishing.  He reported that claimant could consider 
 
         a work return with some discomfort tolerated and that his 
 
         symptoms would likely decrease as he became accustomed to work.
 
         
 
              On July 11, 1986, Dr. Kohler opined that claimant had 
 
         chronic epididymitis with an onset after his November 15, 1984 
 
         hernia repair.  He performed a right epididymectomy on July 15, 
 
         1986.  Greenish purulent material was found in the vas during 
 
         that surgery.  Hyunchul Chem, M.D., a pathologist, apparently 
 
         supported Dr. Kohler's postoperative diagnosis of chronic 
 

 
         
 
         
 
         
 
         LUNDY V. MID-SEVEN TRANSPORTATION COMPANY
 
         Page   4
 
         
 
         
 
         epididymitis and facitis with epididymal abscess cavities.
 
         
 
              In his deposition of November 13, 1986, Dr. Kohler 
 
         characterized epididymitis as an inflammation of the epididymis, 
 
         which is located behind and attached to the testicle and 
 
         connected to the vas.  He reported that epididymectomies have a 
 
         25 percent failure rate and that continuing pain is a well-known 
 
         aftereffect of an epididymectomy with additional surgery by way 
 
         of removal of the testicle itself often required.  On January 26, 
 
         1987, Dr. Kohler performed a right inguinal orchiectomy on 
 
         claimant.
 
         
 
              At hearing, claimant testified that he has had no pain since 
 
         his January 1987 orchiectomy and can now do yard work.  Claimant 
 
         was released for work March 16, 1987 and, at hearing time, was on 
 
         standby for Super Valu.  Claimant testified that his wife's Blue 
 
         Cross/Blue Shield health insurance coverage paid his medical 
 
         costs for the July 1986 epididymectomy, but that medical bills 
 
         remained outstanding for the January 1987 surgery.
 
         
 
              David Thomas Sterr, a claims adjuster for Liberty Mutual, 
 
         testified that on March 11, 1987, defendants paid $2,420.34 for 
 
         claimant's surgery of January 27, 1987, and that defendants have 
 
         also paid a medical center anesthesiologist bill for $330.  He 
 
         further testified that a medical payment for $705.60 was made on 
 
         October 15, 1985.  Claimant was not paid temporary total or 
 
         healing period benefits for those time periods during which this 
 
         medical treatment was rendered.  Medical costs in evidence were 
 
         reviewed and will be further discussed and considered in the law 
 
         and analysis below.
 
         
 
              In his deposition, Dr. Kohler opined that epidimytis most 
 
         commonly occurs spontaneously and is often accompanied by urinary 
 
         tract infections.  He further testified that post-surgical and 
 
         traumatic causation is also possible.  If a heavy object is 
 
         lifted, urine can flow backwards down the vas into the 
 
         epididymis, thereby creating a sterile inflammation.  The doctor 
 
         opined that claimant's surgical repair was the likely cause of 
 
         his epididymis and it is unlikely that claimant would have 
 
         developed the condition without the hernia and surgical repair.  
 
         Dr,.  Kohler stated that his first indication that claimant had 
 
         epididymis occurred in December 1985, approximately eight months 
 
         after he initially had seen claimant and approximately six months 
 
         after the Hoffmann exploratory surgery.  He reported that 
 
         medically he did not know why claimant did not have the condition 
 
         until Dr. Hanson diagnosed it on May 2, 1985 as the condition can 
 
         occur spontaneously.  Dr. Kohler stated that the history of right 
 
         scrotum pain within a month to six weeks following hernia surgery 
 
         was not necessarily more consistent for epididymis following 
 
         surgery and that problems with the testicle after hernia repair 
 
         most often occur in the immediate postoperative course.  Dr. 
 
         Kohler stated that a six week recovery period could be 
 
         anticipated from the exploratory surgery Dr. Hoffmann performed 
 
         in June 1985, and that four months was the general recuperative 
 
         period following an epididymectomy with five months as definitely 
 
         a sufficient period.  He then stated, however, that claimant had 
 
         been unable to return to work since he had initially seen 
 
         claimant in December 1985.
 
         
 

 
         
 
         
 
         
 
         LUNDY V. MID-SEVEN TRANSPORTATION COMPANY
 
         Page   5
 
         
 
         
 
              The balance of the evidence was reviewed and considered in 
 
         the disposition of this matter.
 
         
 
                          APPLICABLE LAW AND ANALYSIS
 
         
 
              We consider whether claimant is entitled to temporary total 
 
         disability or healing period benefits.
 
         
 
              Section 85.34 (1) provides:
 
         
 
              Healing period.  If an employee has suffered a personal 
 
              injury causing permanent partial disability for which 
 
              compensation is payable as provided in subsection 2 of 
 
              this section, the employer shall pay to the employee 
 
              compensation for a healing period, as provided in 
 
              section 85.37, beginning on the date of injury, and 
 
              until the employee has returned to work or it is 
 
              medically indicated that significant improvement from 
 
              the injury is not anticipated or until the employee is 
 
              medically capable of returning to employment 
 
              substantially similar to the employment in which the 
 
              employee was engaged at the time of injury, whichever 
 
              occurs first.
 
         
 
              Section 8 5. 33 (1) provides:
 
         
 
              Temporary total and temporary partial disability.  
 
              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 in which the employee was 
 
              engaged at the time of injury, whichever occurs first.
 
         
 
              Section 85.34(l), 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 Company, Vol. 2-1, State of Iowa industrial 
 
         Commissioner Decisions, 485 (1984).
 
         
 
              The healing period generally terminates at the time the 
 
         attending physician determines that the employee has recovered as 
 
         far as possible from the effects of the injury.  Armstrong Tire & 
 
         Rubber Co. v. Kubli, Iowa App., 312 N.W.2d 60, 65 (Iowa 1981).  
 
         Stated another way, it is only at the point at which a disability 
 
         can be determined that the disability award can be made.  Until 
 
         such time, healing benefits are awarded the injured worker.  
 
         Thomas v. William Knudson & Sons, Inc., 349 N.W.2d 124, 126 
 
         (Iowa App. 1984).
 
         
 
              Dr. Frahm apparently released claimant for work in August 
 
         1985.  Claimant's temporary total disability or healing period 
 
         benefits were terminated after September 24, 1985.  Dr. Frahm had 
 
         diagnosed claimant's right epididymitis February 7, 1985.  
 

 
         
 
         
 
         
 
         LUNDY V. MID-SEVEN TRANSPORTATION COMPANY
 
         Page   6
 
         
 
         
 
         Claimant's continuing problems ultimately were traced to that 
 
         condition.  The parties agreed by stipulation and Dr. Kohler's 
 
         testimony supports a finding that the condition and claimant's 
 
         treatment for it relate to his work injury.  Dr. Kohler has 
 
         opined claimant had been unable to return to work since Dr. 
 
         Kohler initially treated claimant in December 1985.  No evidence 
 
         was presented suggesting claimant's condition changed 
 
         significantly from August 1985 to December 1985.  Evidence was 
 
         presented showing claimant had voiced complaints consistent with 
 
         the ultimate diagnosis of epididymitis from within four to six 
 
         weeks of his hernia repair.  Claimant-was unable to continue work 
 
         for Super Valu undertaken in July 1986 on account of his pain.  
 
         We find no medical basis for defendants' argument that claimant 
 
         was not entitled to healing period or temporary total disability 
 
         benefits from September 25, 1985 to his March 16, 1987 work 
 
         release.  Likewise, we find the reason for the employer's 
 
         termination of claimant following his September 1985 work release 
 
         and attempted work return irrelevant given claimant's continuing 
 
         medical problems which precluded any finding that claimant had 
 
         reached either maximum medical recovery or was medically capable 
 
         of engaging in substantially similar work.  Claimant is entitled 
 
         to temporary total disability or healing period benefits from 
 
         September 25, 1985 to his March 16, 1987 work release.  The issue 
 
         of any permanent disability, of course, remains for decision.
 
         
 
              Section 85.27 provides that the employer shall provide 
 
         claimant reasonable and necessary medical care for treatment of 
 
         his work injury.  Claimant is entitled to payment of still unpaid 
 
         medical costs as follows:
 
         
 
                   Philip Kohler, M.D.                $1,448.00
 
                   J. Song Pathologists                  220.00
 
                   Mercy Hospital Medical Center       2,930.54
 
                   Fontanelle Drug                       147.00
 
         
 
                              FINDINGS OF FACT
 
         
 
              WHEREFORE, IT IS FOUND:
 
         
 
              Claimant sustained a right inguinal hernia while lifting in 
 
         the course of his employment as a truck driver on October 16, 
 
         1984.
 
         
 
              Claimant underwent hernia repair surgery on November 15, 
 
         1985.
 
         
 
              Within four to six weeks of his surgery claimant voiced 
 
         complaints of back, groin, and side pain.
 
         
 
              Dr. Frahm diagnosed right epididymtis on February 7, 1985.
 
         
 
              Claimant had various procedures to overcome his continuing 
 
         pain through Spring and Summer 1985.
 
         
 
              Dr. Frahm released claimant for work in August or September 
 
         1985.
 
         
 
              Claimant saw Dr. Kohler in December 1985.
 
         
 

 
         
 
         
 
         
 
         LUNDY V. MID-SEVEN TRANSPORTATION COMPANY
 
         Page   7
 
         
 
         
 
              Dr. Kohler performed an epididymectomy on July 15, 1986 and 
 
         an orchiectomy in January 1987.
 
         
 
              Claimant was unable to work from the time Dr. Kohler first 
 
         saw him in December 1985 until Dr. Kohler released claimant to 
 
         work on March 16, 1987.
 
         
 
              Claimant's condition was not significantly different in 
 
         December 1985 than on September 24, 1985.
 
         
 
              Claimant's medical costs with Dr. Kohler, J. Song 
 
         Pathologists, Mercy Hospital Medical Center, and Fontanelle Drug 
 
         are costs for reasonable and necessary treatment of his work 
 
         injury related condition.
 
                                  
 
                                  CONCLUSIONS OF LAW
 
         
 
              THEREFORE, IT IS CONCLUDED:
 
         
 
              Claimant is entitled to additional healing period benefits 
 
         from September 25, 1985 to March 16, 1987.
 
         
 
              Claimant is entitled to payment of medical costs with Dr. 
 
         Kohler, J. Song Pathologists, Mercy Medical Center, and 
 
         Fontanelle Drug as set forth in the above law and analysis.
 
         
 
                                         ORDER
 
         
 
              THEREFORE, IT IS ORDERED
 

 
         
 
         
 
         
 
         LUNDY V. MID-SEVEN TRANSPORTATION COMPANY
 
         Page   8
 
         
 
         
 
         
 
              Defendants pay claimant additional healing period benefits 
 
         or temporary total disability benefits at the rate of three 
 
         hundred thirty-eight and 96/100 dollars'($338-96) per week from 
 
         September 25, 1985 to March 16, 1987.
 
         
 
              Defendants pay claimant medical costs with Dr. Kohler, J. 
 
         Song Pathologists, Mercy Medical Center, and Fontanelle Drug, as 
 
         set forth in the above law and analysis.
 
         
 
              Defendants pay accrued amounts in a lump sum.
 
         
 
              Defendants pay interest pursuant to section 85.30
 
         
 
              Defendants pay costs pursuant to Division of Industrial 
 
         Services Rule 343-4.33.
 
         
 
              Defendants file claim activity reports as required by the 
 
         agency.
 
         
 
              Signed and filed this 23rd day of June, 1987.
 
         
 
         
 
         
 
                                       HELEN JEAN WALLESER
 
                                       DEPUTY INDUSTRIAL COMMISSIONER
 
         
 
         
 
         Copies to:
 
         
 
         Mr. David Drake
 
         Attorney at Law
 
         P.O. Box 367
 
         2141 Grand Avenue
 
         Des Moines, Iowa 50302
 
         
 
         Mr. W. C. Hoffmann
 
         Attorney at Law
 
         1000 Des Moines Building
 
         Des Moines, Iowa 50309
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                                 1802
 
                                                 Filed 6-23-87
 
                                                 Helen Jean Walleser
 
         
 
                    BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         _________________________________________________________________
 
         
 
         ELDON L. LUNDY,
 
         
 
              Claimant,
 
                                                 File No. 777760
 
         VS.
 
         
 
         MID-SEVEN TRANSPORTATION
 
                                               A R B I T R A T I 0 N
 
         COMPANY,
 
                                                 D E C I S I 0 N
 
              Employer,
 
         
 
         and
 
         
 
         LIBERTY MUTUAL INSURANCE COMPANY,
 
         
 
              Insurance Company,
 
              Defendants.
 
         _________________________________________________________________
 
         
 
         1802
 
         
 
              Claimant awarded additional healing period benefits for time 
 
         off work after company physician's medical release where evidence 
 
         showed claimant was not capable of working until subsequent to 
 
         several additional surgeries and second medical release.
 
 
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                      BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         _________________________________________________________________
 
         
 
         ELDON L. LUNDY,
 
         
 
              Claimant,
 
                                                 File No. 777760
 
         VS.
 
                                                     N U N C
 
         MID-SEVEN TRANSPORTATION
 
         COMPANY,
 
                                                      P R O
 
              Employer,
 
                                                     T U N C
 
         and
 
                                                    0 R D E R
 
         LIBERTY MUTUAL INSURANCE
 
         COMPANY,
 
         
 
              Insurance Company,
 
              Defendants.
 
         _________________________________________________________________
 
         
 
              Upon examination of the arbitration decision filed June 23, 
 
         1987, it is ascertained that line 6 of the first unnumbered 
 
         paragraph of the introduction should read:
 
         
 
              1984.  This matter came on for hearing before the 
 
              undersigned
 
         
 
              It is further ascertained that line two of the 2nd finding 
 
         of fact should read:
 
         
 
                       1984.
 
         
 
              Signed and filed this 13th day of July, 1987.
 
         
 
         
 
         
 
                                           HELEN JEAN WALLESER
 
                                           DEPUTY INDUSTRIAL COMMISSIONER
 
         Copies to:
 
         
 
         Mr. David Drake
 
         Attorney at Law
 
         P.O. Box 367
 
         2141 Grand Ave
 
         Des Moines, Iowa 50302
 
         
 
         Mr. W.C. Hoffmann
 
         Attorney at Law
 
         1000 Des Moines Bldg.
 
         Des Moines, Iowa 50309
 
 
 
 
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                   BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         VICKI J. TRUITT,
 
         
 
              Claimant,
 
                                                 File No. 807806
 
         vs.                                              777781
 
         
 
         DUBUQUE PACK,                       A R B I T R A T I O N
 
         
 
              Employer,                          D E C I S I O N
 
         
 
         and
 
         
 
         SENTRY INSURANCE,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         
 
                              STATEMENT OF THE CASE
 
         
 
              This is a proceeding in arbitration brought by Vicki Truitt, 
 
         claimant, against Dubuque Pack, employer, and Sentry Insurance, 
 
         insurance carrier, to recover benefits under the Iowa Workers' 
 
         Compensation Act for an alleged injury of October 23, 1985.  This 
 
         matter was to come on for hearing August 31, 1988 at 1:00 p.m. in 
 
         the county courthouse located in Sioux City, Iowa.
 
         
 
              The undersigned was present.  Neither claimant nor 
 
         defendants appeared.
 
         
 
              Claimant failed to present any evidence in support of the 
 
         allegations found in her original notice and petition.  Neither 
 
         an agreement for settlement, an application for settlement, nor a 
 
         request for continuance are on file with the industrial 
 
         commissioner.
 
         
 
              Claimant has the burden of proving by a preponderance of the 
 
         evidence that she received an injury which arose out of and in 
 
         the course of her employment.  McDowell v. Town of Clarksville, 
 
         241 N.W.2d 904 (Iowa 1976).
 
         
 
              WHEREFORE, it is found:
 
         
 
              1.  Neither claimant nor defendants appeared at the 
 
         scheduled time and place of hearing.
 
         
 
              2.  The undersigned deputy industrial commissioner was 
 
         present and prepared to proceed to hearing.
 
         
 
              3.  Neither an agreement for settlement, an application for 
 
         settlement, nor a request for continuance are on file with the 
 
         industrial commissioner.
 
         
 
              4.  Claimant failed to present any evidence to support 
 
         allegations of a compensable work injury.
 
         
 
              WHEREFORE, it is concluded:
 
         
 

 
         
 
         
 
         
 
         TRUITT V. DUBUQUE PACK
 
         PAGE   2
 
         
 
         
 
              Claimant has failed to meet her burden of proof that she 
 
         sustained an injury which arose out of and in the course of her 
 
         employment.
 
         
 
              THEREFORE, it is ordered:
 
         
 
              Claimant take nothing from this proceeding.
 
         
 
              Costs are taxed to the claimant pursuant to Division of 
 
         Industrial Services Rule 343-4.33.
 
         
 
              Signed and filed this 7th day of September, 1988.
 
         
 
         
 
         
 
         
 
                                        DEBORAH A. DUBIK
 
                                        DEPUTY INDUSTRIAL COMMISSIONER
 
         
 
         Copies to:
 
         
 
         Mr. Harry H. Smith
 
         Attorney at Law
 
         P. O. Box 1194
 
         Sioux City, IA 51102
 
         
 
         Mr. John M. Bickel
 
         Attorney at Law
 
         500 MNB bldg
 
         P. O. Box 2107
 
         Cedar Rapids, IA 52406
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                             1400; 1402
 
                                             Filed September 17, 1988
 
                                             Deborah A. Dubik
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         VICKI J. TRUITT,
 
         
 
              Claimant,
 
                                                  File Nos. 807806
 
                                                            777781
 
         
 
         DUBUQUE PACK,                         A R B I T R A T I O N
 
         
 
              Employer,                           D E C I S I O N
 
         
 
         and
 
         
 
         SENTRY INSURANCE,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         1400; 1402
 
         
 
              Neither claimant nor defendants appeared at the hearing.  No 
 
         evidence in support of a compensable work injury was presented 
 
         and claimant therefore failed to meet her burden of proof.
 
         
 
 
         
 
         Page   1
 
         
 
         
 
         
 
         
 
         
 
         
 
                     before the iowa industrial commissioner
 
         ____________________________________________________________
 
                                       :
 
         DONALD LEWISTON,              :
 
                                       :
 
              Claimant,                :
 
                                       :
 
         vs.                           :
 
                                       :         File No. 778071
 
         NEUMANN BROTHERS, INC.,       :
 
                                       :      A R B I T R A T I O N
 
              Employer,                :
 
                                       :         D E C I S I O N
 
         and                           :
 
                                       :
 
         THE HARTFORD,                 :
 
                                       :
 
              Insurance Carrier,       :
 
                                       :
 
         and                           :
 
                                       :
 
         SECOND INJURY FUND OF IOWA,   :
 
                                       :
 
              Defendants.              :
 
         ___________________________________________________________
 
         
 
         
 
                              STATEMENT OF THE CASE
 
         
 
              This is a proceeding in arbitration brought by the claimant, 
 
         Donald Lewiston, against employer, Neumann Brothers, Inc., and 
 
         its insurance carrier, The Hartford, as well as against the 
 
         Second Injury Fund of Iowa to recover benefits under the Iowa 
 
         Workers' Compensation Act as the result of an injury sustained on 
 
         October 20, 1984.  The record consists of claimant's testimony 
 
         and the testimony of Larry Tuttle and joint exhibits 1-10.
 
         
 
                                      issues
 
         
 
              Pursuant to the prehearing report and order signed by the 
 
         parties on March 28, 1991, the parties have stipulated as 
 
         follows:
 
         
 
              1.  That an employer-employee relationship existed between 
 
         claimant and employer at the time of the alleged injury;
 
         
 
              2.  That claimant sustained an injury on October 20, 1984, 
 
         which arose out of and in the course of his employment with 
 
         employer;
 
         
 
              3.  That claimant sustained an injury to his right foot as a 
 
         result of an incident on October 20, 1984, and such injury is a 
 
         cause of temporary and permanent disability;
 
         
 
              4.  That defendants have paid claimant 36 weeks of healing 
 
         period benefits from October 22, 1984 through June 30, 1985, at 
 
         the stipulated rate of $329.14;
 
         
 

 
         
 
         Page   2
 
         
 
         
 
         
 
         
 
         
 
              5.  That defendants have paid claimant two weeks of 
 
         temporary partial disability from July 1, 1985 through July 14, 
 
         1985; and,
 
         
 
              6.  That defendants have paid claimant 52.5 weeks of 
 
         permanent partial disability benefits from July 15, 1985 through 
 
         July 16, 1986.
 
         
 
              The issues to be resolved are as follows:
 
         
 
              1.  Whether there exists a causal relationship between the 
 
         claimant's injury of October 20, 1984 and the alleged disability 
 
         on which he now bases his claim;
 
         
 
              2.  The nature and extent of any entitlement to benefits, 
 
         either against the employer or against the Second Injury Fund of 
 
         Iowa; and,
 
         
 
              3.  Whether claimant is entitled to Second Injury Fund 
 
         benefits.
 
         
 
                                 findings of fact
 
         
 
              The undersigned has carefully considered all the testimony 
 
         given at the hearing, the arguments made, and the medical evi
 
         dence contained in the list of exhibits, and makes the following 
 
         findings:
 
         
 
              The evidence reveals that on April 21, 1980, claimant was 
 
         involved in a motorcycle accident and was treated by Alan Lang, 
 
         M.D.  Dr. Lang diagnosed open bimalleolar fracture of the left 
 
         ankle, open non-displayed fracture of the left tibial shaft and 
 
         laceration of the left hand.  Wound debridement and fixation of 
 
         the left ankle was performed and a long leg cast applied.  The 
 
         fracture healed satisfactorily but claimant had persistent pain 
 
         in his ankle after cast removal.  This was treated with 
 
         anti-inflammatory medications and a heel wedge, but he had 
 
         gradual increase in symptoms.  Claimant was rehospitalized on 
 
         February 28, 1982, after x-rays showed progressive loss of joint 
 
         space and development of severe degenerative changes in the left 
 
         ankle.  Clinical examination revealed diffuse tenderness and 
 
         swelling around the entire joint line and marked limitation of 
 
         flexion and extension.  On February 29, 1982, claimant underwent 
 
         a Charnley compression arthrodesis of the ankle.  He was placed 
 
         in a Rapid Jones post-operative leave for several days.  Swelling 
 
         was only mild and a short leg cast was applied on March 5, 1982.  
 
         He was then ambulated on crutches and was nonweight bearing on 
 
         the operated leg.  His condition improved satisfactorily and he 
 
         was discharged on March 6, 1982 (Exhibit 1, sections 1 and 2).
 
         
 
              Claimant testified that he was off work for about three 
 
         months after the motorcycle accident.  He was able to return to 
 
         his usual occupation as an iron worker with no restrictions as a 
 
         result of his left ankle problems.  He stated he was able to per
 
         form his ordinary job duties which consisted of heavy lifting and 
 
         frequent bending, stooping, climbing, walking and carrying.  He 
 
         stated that after his ankle was fused his pain was virtually 
 
         eliminated and he had no difficulty performing his usual job or 
 
         daily activities.
 

 
         
 
         Page   3
 
         
 
         
 
         
 
         
 
         
 
         
 
              Claimant also testified that he has been employed through 
 
         the Iron Worker's Union Local 67 in Des Moines, Iowa for the past 
 
         20 years.  He has worked for many employers on union-related 
 
         jobs.  He stated that on October 20, 1984, while employed with 
 
         Neumann Brothers, Inc., a steel-I beam fell from a truck and 
 
         landed on his right foot and leg.  He testified that his right 
 
         foot, toes, ankle, leg, back and hand were injured and a rib 
 
         broken.  He was off work for about nine months and released for 
 
         part-time work on July 1, 1985.  He worked part-time for two 
 
         weeks and returned to full time work on July 15, 1985.  He stated 
 
         he has worked consistently as an iron worker since July 15, 1985, 
 
         but his condition has gotten progressively worse.  He alleged 
 
         difficulty working on beams, climbing ladders and performing 
 
         other strenuous movements required in his job.  He stated that he 
 
         has not worked for Neumann Brothers since August 13, 1985.  Since 
 
         that time, he has worked for at least eleven other employers in 
 
         his usual occupation as an iron worker.
 
         
 
              Claimant's wife testified and stated that claimant walked 
 
         without any problems after treatment of his left foot injury and 
 
         had no back problems prior to the October 20, 1984 accident.  
 
         Since 1984, he has had significant back complaints and lower 
 
         extremity problems.
 
         
 
              The pertinent medical evidence of record reveals that 
 
         claimant was admitted to Lutheran Hospital in Des Moines, Iowa on 
 
         October 20, 1984, with a crush injury sustained at work.  An 
 
         orthopedic evaluation revealed fractures and lacerations of the 
 
         right foot secondary to a crush injury and fracture of the right 
 
         middle finger and left tenth rib.  Claimant received IV antibi
 
         otics and was repaired in the emergency room.  He was discharged 
 
         on October 23, 1984 (Ex. l, sec. 6).
 
         
 
              Claimant was subsequently treated by Scott B. Neff, D.O., 
 
         orthopedic surgeon.  Dr. Neff first saw claimant on November 14, 
 
         1984.  He noted that claimant had suffered fractures of the 
 
         first, second, and third toes and had a granulating area in the 
 
         nail bed of the right great toe with abnormal growth of the toe 
 
         nail.  He performed debridement on the great toe and open reduc
 
         tion and Kirschner wiring of the second toe.  Unrelated to the 
 
         1984 accident, he noted hammer toes on the left second and third 
 
         toes for which he performed simple tendon releases.  He reported 
 
         that "obviously, the left foot is unrelated to his recent indus
 
         trial accident."  (Ex. 1, sec. 4, page 55)  A follow-up examina
 
         tion with Dr. Neff on January 30, 1985, showed healing of the 
 
         second toe and great toe nail bed.  Claimant complained of pain 
 
         in his foot from his shoes and, because of problems with both 
 
         feet, had an abnormal gait.  Dr. Neff recommended steel toed, 
 
         high topped, working surface, molded space shoes, to adequately 
 
         conform to his feet.  At this time, claimant also complained of 
 
         residual pain in his right long finger which was fractured at the 
 
         time of the accident.  On examination, he had full motion and 
 
         swelling at the knuckle, at the PIP joint.  He also complained of 
 
         low back pain without radiculopathy and a CT scan was recom
 
         mended.  This was taken at Iowa Lutheran Hospital on January 31, 
 
         1985, and showed no evidence of herniated disc (Ex. l, sec. 6, p. 
 
         75).
 
         
 

 
         
 
         Page   4
 
         
 
         
 
         
 
         
 
         
 
              Progress notes from Dr. Neff dated February ll, 1985, indi
 
         cated that while the CT scan did not show a herniated disc, it 
 
         did show some facet disease consistent with wear and tear and 
 
         age.  Dr. Neff observed that claimant was limping, protecting his 
 
         left foot, and having subtalar pain secondary to left ankle 
 
         fusion.  Dr. Neff noted that the limping contributed to 
 
         claimant's backache and he was started on Motrin and conservative 
 
         therapy.  On May 1, 1985, an examination revealed a protruded 
 
         second toe and a Morton's neuroma between the second and third 
 
         toe.  Outpatient surgery was performed on May 9, 1985, to excise 
 
         the neuroma and release the tendon of the second toe.  Dr. Neff 
 
         released claimant to return to half time activity beginning July 
 
         1, 1985, but no disability rating was given (Ex. 1, sec. 4, 
 
         p. 58).
 
         
 
              As noted previously, claimant testified that he returned to 
 
         full time work activity on July 15, 1985.  Claimant saw Dr. Neff 
 
         for a follow-up examination on November 11, 1985.  He presented 
 
         with complaints of forefoot pain.  X-rays and bone scan were 
 
         taken.  The x-rays did not show significant damage to the first 
 
         metatarsal-phalangeal joint, but the bone scan showed significant 
 
         increase in the joint consistent with previous trauma or gouty 
 
         degenerative changes.  Second toe was healing in an imperfect 
 
         position but caused no pain.  The third toe fracture was healing 
 
         nicely.  The bone scan showed marked increase uptake in the left 
 
         ankle with had been present for some time and increased uptake in 
 
         the first metatarsal-phalangeal joint in the right foot correlat
 
         ing with his complaints of pain (Ex. 1, sec. 4, p. 59).  Claimant 
 
         was treated by Dr. Neff through July of 1986 for complaints 
 
         related to his lower extremity.  He received no medical treatment 
 
         thereafter until he saw Dr. Neff for a follow-up evaluation on 
 
         September 28, 1987.  At that time, he complained of aching and 
 
         soreness in his right ankle and calf, back pain and tingling and 
 
         numbness in both legs.  MRI studies taken on November 5, 1987, 
 
         showed degenerative disc disease at L5-Sl and L3-L4.  Progress 
 
         notes from Dr. Neff state that:
 
         
 
              I believe the bone scan and treatment for his foot are 
 
              a direct result of the crush injury.  The back is 
 
              degenerating.  I think that has been worsened by sev
 
              eral months of limping.  Certainly, he has a history of 
 
              heavy activity.  He does not have a ruptured disc but 
 
              degenerative wear and tear changes in his back.
 
         
 
          (Ex. 1, sec. 4, p. 63).
 
         
 
              On June 3, 1988, claimant saw Dr. Neff for follow-up evalua
 
         tion.  He presented with multiple complaints to his back, knees, 
 
         feet and calves.  A repeat MRI lumbar spine series was taken on 
 
         October 4, 1988.  It showed moderate degeneration of the L5-Sl 
 
         discs and early mild degeneration of the L3-4 disc. (Ex. 1, sec. 
 
         7, p. 86).
 
         
 
              On September 19, 1988, Dr. Neff reported as follows:
 
         
 
              I believe that the foot and leg injury are directly 
 
              related to a work related injury of 1984 when the heavy 
 
              beam fell on his foot.  Apparently there was also an 
 
              injury to his back, from review of my reocrds, [sic] 
 

 
         
 
         Page   5
 
         
 
         
 
         
 
         
 
         
 
              when the beam apparently hit his back also.
 
         
 
              The limping that is a result of chronic soreness in the 
 
              foot can cause degenerative disease of the lumbar 
 
              spine.
 
         
 
              I believe he has some work restrictions although those 
 
              might be best detailed after the performance of a func
 
              tional capacities evaluation under the supervision 
 
              [sic] of Mr. Tom Bower.  I do not believe he will be 
 
              able to continue with heavy construction work without 
 
              increasing his back symptoms.
 
         
 
         (Ex. l, sec. 4, pp. 50-51)
 
         
 
              On January 22, 1990, claimant was seen by Thomas W. Bower, 
 
         L.P.T., for a functional capacity evaluation and a disability 
 
         rating.  Mr. Bower had previously on November 14, 1985, given the 
 
         claimant a 35 percent impairment of his right foot based on the 
 
         difficulties and loss of range of motion as found in the orthope
 
         dic guides rather than the AMA Guides.  At this time, a normal 
 
         range of motion of the lumbar spine and essential normal range of 
 
         motion throughout resulted in a seven percent impairment to the 
 
         body as a whole rating.  Mr. Bower reported on October 16, 1990, 
 
         that "there is no way we can establish any causal relationship 
 
         between claimant's complaints and injuries sustained in October 
 
         1984" (Ex. l, sec. 9, p. 90).  Dr. Neff followed up with a letter 
 
         dated November 30, 1990 in which he stated that "there is no way 
 
         to establish any causal relationship between Mr. Lewiston's 
 
         orthopaedic problems of 1984 and his current situation." (Ex. 1, 
 
         sec. 4, p. 53)
 
         
 
                                conclusions of law
 
         
 
              The first issue to be resolved is whether claimant is enti
 
         tled to second injury fund benefits.
 
         
 
              Before the second injury fund is triggered three require
 
         ments must be met.  First, the employee must have lost or lost 
 
         the use of a hand, foot, leg or eye.  Second, the employee must 
 
         sustain another loss or loss of use of another member or organ 
 
         through a compensable injury.  Third, permanent disability must 
 
         exist as to both the initial injury and second injury.  See Allen 
 
         v. The Second Injury Fund, State of Iowa, Thirty-Fourth Biennial 
 
         Report, Iowa Industrial Commissioner 15 (1980); Ross v. Service 
 
         Master-Story Co., Inc., Thirty-Fourth Biennial Rep., Iowa Indus. 
 
         Comm'r 273 (1979).
 
         
 
              The fund is responsible for the difference between total 
 
         disability and disability for which the employer at the time of 
 
         the second injury is responsible.  Section 85.64.  Second Injury 
 
         Fund v. Mich. Coal Company, 274 N.W.2d 300 (Iowa 1970), Second 
 
         Injury Fund v. John Deere Component Works, Iowa Supreme Court 
 
         Case No. 88-399, filed February 22, 1989.
 
         
 
              The record clearly shows that claimant sustained a left tib
 
         ial fracture on April 21, 1980, in a motorcycle accident.  He 
 
         developed severe post-traumatic degenerative arthritis in his 
 
         left ankle and on March 1, 1982, he underwent fusion.  However, 
 

 
         
 
         Page   6
 
         
 
         
 
         
 
         
 
         
 
         claimant has failed to prove by a preponderance of the evidence 
 
         that he sustained permanent disability as a result.  Lacking in 
 
         this case is an impairment rating assigned to the fusion of 
 
         claimant's left ankle.  For the undersigned to assign a permanent 
 
         partial disability rating, in the absence of corroborating medi
 
         cal evidence, is unduly speculative.  Without such rating, the 
 
         undersigned cannot determine the extent of loss of use of the 
 
         left lower extremity.  While claimant alleged range of motion 
 
         limitations at the hearing, he also testified that after fusion, 
 
         he was able to continue as an iron worker without limitation or 
 
         restriction.  No permanency rating was given at the time of or 
 
         after surgery nor presently.  To involve the second injury fund, 
 
         permanent disability must exist as to both the initial injury and 
 
         second injury.  Claimant has not established a permanent impair
 
         ment as to his first injury, therefore he has not established any 
 
         entitlement to second injury fund benefits on this record.
 
         
 
              The parties agree that claimant sustained an injury on 
 
         October 20, 1984, which arose out of and in the course of his 
 
         employment.  In dispute is whether there is a causal relationship 
 
         between the injury of October 20, 1984 and claimant's complaints 
 
         on which he now bases his claim for disability.  If claimant 
 
         meets his burden of medical causation, the issue is then the 
 
         nature and extent of his disability.
 
         
 
              The claimant has the burden of proving by a preponderance of 
 
         the evidence that the injury of October 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). 
 
         
 
              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).
 
         
 
              The claimant alleges that as a result of the October 20, 
 
         1984 work-related injury with Neumann Brothers, he sustained 
 
         impairments to his right lower extremity (foot and ankle), left 
 
         leg, rib, and back.
 
         
 
              The medical evidence indicates that on October 20, 1984, a 
 
         heavy beam fell off a truck and landed on claimant's right foot.  
 
         He suffered fractures of the first, second, third toes, and had a 
 
         granulating area in the nail bed of the right great toe with 
 
         abnormal growth of the toenail.  Unrelated to the accident, he 
 

 
         
 
         Page   7
 
         
 
         
 
         
 
         
 
         
 
         was observed to have hammer toes on the left second and third 
 
         toes which were treated with simple tendon releases.  Debridement 
 
         on the right great toe and open reduction with Kirschner wiring 
 
         of the second toe was performed.  In addition, claimant fractured 
 
         his right long finger and left tenth rib.  Lutheran Hospital 
 
         records dated October 23, 1984, make no mention of back com
 
         plaints.  Claimant's treatment was undertaken by Dr. Neff.  On 
 
         June 12, 1985, he released claimant to half time activity begin
 
         ning July 1, 1985.  Dr. Neff gave no disability rating at this 
 
         time (Ex. 1, sec. 4, p. 39).  On November 14, 1985, Thomas W. 
 
         Bower, L.P.T., gave the claimant a 35 percent impairment of his 
 
         right foot based on the difficulties and loss of range of motion 
 
         (Ex. 1, sec. 9, p. 94).
 
         
 
              As previously noted, defendants have paid 36 weeks of heal
 
         ing period benefits from October 22, 1984 through June 30, 1985, 
 
         two weeks of temporary partial disability benefits from July 1, 
 
         1985 through July 14, 1985, and 52.5 weeks of permanent partial 
 
         disability benefits based on Mr. Bower's 35 percent impairment 
 
         rating to claimant's right foot.
 
         
 
              Claimant alleges that he sustained a back injury when the 
 
         steel-I beam fell on him on October 20, 1984.  Claimant alleges 
 
         that his back condition is causally related to the October 20, 
 
         1984 incident.  Claimant has the burden of proof in this regard.  
 
         A possibility is insufficient; a probability is necessary.  Burt 
 
         247 Iowa 691, 73 N.W.2d 732 (1955).  The question of causal con
 
         nection is essentially within the domain of expert testimony.  
 
         Bradshaw, 251 Iowa 375, 101 N.W.2d 167 (1960).  Dr. Neff, the 
 
         claimant's treating physician, reported on March 12, 1985, that 
 
         claimant has a backache secondary to limping and secondary to his 
 
         abnormal gait as a result of his foot surgery and foot pain.  
 
         This he said, is a self limiting situation and will not require 
 
         treatment.  He opined that "[h]e may require treatment to his 
 
         back in the future, but, in my opinion, the basic condition of 
 
         his back is unrelated to the foot injury."  (Ex. 1, sec. 4, p. 
 
         35)  A CT scan of claimant's lumbar spine taken on January 31, 
 
         1985, revealed no evidence of a herniated disc or stenosis (Ex. 
 
         1, sec. 6, p. 75).  Claimant returned to part-time employment on 
 
         July 1, 1985.  He resumed full time work as an iron worker on 
 
         July 15, 1985.  He last worked for Neumann Brothers on August 12, 
 
         1985.
 
         
 
              Subsequently, claimant worked for 11 different employers, 
 
         some of them on more than one occasion, all in the iron work 
 
         industry.  His work for each subsequent employer was heavy physi
 
         cal labor which included bending, pushing, pulling, climbing, 
 
         carrying and lifting.  Claimant testified that there is no light 
 
         duty work in the iron work trade and that iron work is very 
 
         difficult and strenuous physical labor.  He also testified that 
 
         after leaving Neumann Brothers, the work he performed substan
 
         tially aggravated, accelerated and worsened his physical condi
 
         tion and continues to do so today.  He stated that during the 
 
         ensuing years, he missed about 20 days of work because of his 
 
         gradually worsening physical condition.  Claimant testified that 
 
         he now works as an iron worker foreman and earns about $19.00 per 
 
         hour, with benefits.
 
         
 
              Because of claimant's complaints of back pain, Dr. Neff 
 

 
         
 
         Page   8
 
         
 
         
 
         
 
         
 
         
 
         ordered an MRI evaluation.  It showed degenerating disc disease 
 
         at L5-Sl and L3-L4 without frank disrupture (Ex. 1, sec. 4, p. 
 
         47).  On September 19, 1988, Dr. Neff reported that "[t]he limp
 
         ing that is a result of chronic soreness in the foot can cause 
 
         degenerative disease of the lumbar spine" and that 
 
         "[d]egenerative disease of the spine is directly related to the 
 
         combination of all activity at work, at play, and at home, and of 
 
         genetic predisposition."  (Ex. 1, sec. 4, p. 50).  At this time, 
 
         Mr. Neff did not directly relate claimant's back problems to his 
 
         1984 injury.  Dr. Neff last saw claimant on November 5, 1987, but 
 
         referred him to William Boulden, M.D., for follow-up and treat
 
         ment of his back symptoms (Ex. l, sec. 4, p. 52A).  There is no 
 
         impairment rating in the record by either Dr. Neff or Dr. Boulden 
 
         regarding claimant's back impairment nor any statement as to 
 
         whether such impairment is causally related to his injury of 
 
         October 20, 1984 (Ex. 1, sec. 7, p. 86).
 
         
 
              On January 22, 1990, claimant was seen by Thomas W. Bower, 
 
         L.P.T., for a functional capacity evaluation and a disability 
 
         rating.  At the time of the examination, claimant was registering 
 
         some relatively high pain levels which, according to Mr. Bower, 
 
         had an impact on the examination.  On examination, normal range 
 
         of motion of the lumbar spine and essentially normal range of 
 
         motion throughout was noted.  Nevertheless, based on medically 
 
         documented pain, recurrent muscle spasm and an unoperated herni
 
         ated nucleus pulposus with or without radiculopathy, a seven per
 
         cent impairment rating to the body as a whole was assigned (Ex. 
 
         1, sec. 9, pp. 95-96).  On October 15, 1990, Mr. Bower reported 
 
         that a causal relationship cannot be established between 
 
         claimant's back complaints and his October 1984 injury (Ex. 1, 
 
         sec. 9, p. 90).
 
         
 
              Based upon the total evidence in this case, the undersigned 
 
         concludes that claimant has not established by a preponderance of 
 
         the evidence that his back condition is causally related to the 
 
         October 20, 1984 injury.  Certainly, Dr. Neff, claimant's treat
 
         ing orthopedic surgeon, succinctly stated that "[i]n my opinion, 
 
         there is no way to establish any causal relationship between Mr. 
 
         Lewiston's orthopaedic problems in 1984 and his current situa
 
         tion." (Ex. l, sec. 4, p. 53)  Furthermore, Mr. Bower, claimant's 
 
         physical therapist, reported on October 16, 1990, that he cannot 
 
         causally relate claimant's orthopedic situation to the incident 
 
         in 1984.  Mr. Bower notes that "[h]e has continued to do heavy 
 
         manual labor and has continued to have difficulties.  Therefore, 
 
         I would believe it difficult to casually [sic] relate any of 
 
         these current complaints to those injuries sustained in the 
 
         past."  (Ex. 1, sec. 9, p. 90)  Claimant establishes no link 
 
         between his October 20, 1984 injury and his current complaints.  
 
         The opinions of Dr. Neff and Mr. Bower are uncontroverted.  
 
         Claimant last worked for defendant on August 12, 1985.  He worked 
 
         for at least 11 other employers performing heavy labor as an iron 
 
         worker.  Claimant testified that his condition worsened with time 
 
         due to the nature of his employment activities.
 
         
 
              Claimant has been fully compensated by defendants for the 
 
         permanent disability to his right foot.  A 35 percent impairment 
 
         rating was made as to the loss of use of that extremity and 
 
         claimant was paid permanent partial disability benefits from July 
 

 
         
 
         Page   9
 
         
 
         
 
         
 
         
 
         
 
         15, 1985 through July 16, 1986, to compensate him for his foot 
 
         injury.  This is a scheduled member loss case.  Claimant has been 
 
         compensated for the permanent disability to his foot and there
 
         fore takes nothing further from this proceeding.
 
         
 
                                      order
 
         
 
              THEREFORE, IT IS ORDERED:
 
         
 
              Claimant takes nothing from this proceeding.
 
         
 
              The parties shall pay their own costs in this action pur
 
         suant to rule 343 IAC 4.33.
 
         
 
         
 
         
 
         
 
         
 
         
 
              Signed and filed this ____ day of May, 1991.
 
         
 
         
 
         
 
         
 
         
 
                                       ______________________________               
 
         JEAN M. INGRASSIA
 
                                       DEPUTY INDUSTRIAL COMMISSIONER
 
         
 
         Copies To:
 
         
 
         Mr. Jacques D. Schira
 
         Attorney at Law
 
         500 First Interstate Bank Bldg
 
         Des Moines  IA  50309
 
         
 
         Mr. E. J. Kelly
 
         Attorney at Law
 
         Terrace Center  STE 111
 
         2700 Grand
 
         Des Moines  IA  50312
 
         
 
         Mr. Craig Kelinson
 
         Assistant Attorney General
 
         Hoover State Office Bldg
 
         Des Moines  IA  50319
 
         
 
 
         
 
 
 
 
 
                        5-1108; 5-3200
 
                        Filed May 7, 1991
 
                        JEAN M. INGRASSIA
 
         
 
                     before the iowa industrial commissioner
 
         ____________________________________________________________
 
                                       :
 
         DONALD LEWISTON,              :
 
                                       :
 
              Claimant,                :
 
                                       :
 
         vs.                           :
 
                                       :         File No. 778071
 
         NEUMANN BROTHERS, INC.,       :
 
                                       :      A R B I T R A T I O N
 
              Employer,                :
 
                                       :         D E C I S I O N
 
         and                           :
 
                                       :
 
         THE HARTFORD,                 :
 
                                       :
 
              Insurance Carrier,       :
 
                                       :
 
         and                           :
 
                                       :
 
         SECOND INJURY FUND OF IOWA,   :
 
                                       :
 
              Defendants.              :
 
         ___________________________________________________________
 
         
 
         
 
         5-1108
 
         Claimant, an iron worker, was injured on October 20, 1984, when a 
 
         steel beam fell from a truck and landed on his right foot and 
 
         leg.  He received 36 weeks of healing period benefits, 2 weeks of 
 
         temporary partial benefits and 52.5 weeks of permanent partial 
 
         disability benefits based on a 35 percent impairment rating to 
 
         the right foot.  He now seeks additional benefits due to 
 
         impairments of his right foot and ankle, left leg, rib and back.
 
         Claimant returned to full time work activity as an iron worker on 
 
         July 15, 1985.  Causation not established between claimant's 
 
         current alleged impairments and his October 1984 injury.  No 
 
         additional benefits awarded.
 
         
 
         
 
         
 
         5-3200
 
         Claimant sought to involve second injury fund.  He was involved 
 
         in a motorcycle accident in April 1980 and sustained a left 
 
         tibial fracture.  He underwent fusion in March 1982.  No 
 
         impairment rating assigned to left lower extremity and in the 
 
         absence of corroborating medical evidence, it would be unduly 
 
         speculative to assign one.  No permanency rating or restrictions 
 
         given at any time regarding left lower extremity.  Since 
 
         permanent disability not established as to the initial injury, 
 
         claimant not entitled to second injury fund benefits.
 
         
 
 
        
 
 
 
 
 
                       BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
        
 
        
 
        WAYNE MILBRODT,
 
        
 
            Claimant,
 
        
 
        vs.                              File No. 778256
 
        
 
        ROBERTS DAIRY, INC.,                A P P E A L
 
        
 
            Employer,                    D E C I S I O N
 
        
 
        and
 
        
 
        NATIONAL UNION FIRE
 
        INSURANCE,
 
        
 
            Insurance Carrier,
 
            Defendants.
 
        
 
        
 
                                 STATEMENT OF THE CASE
 
        
 
        Defendants appeal from an arbitration decision awarding permanent 
 
        partial disability benefits as the result of an alleged injury on 
 
        October 22, 1984.
 
        
 
        The record on appeal consists of the transcript of the 
 
        arbitration proceeding and joint exhibits 1 through 22. Both 
 
        parties filed briefs on appeal. Defendants filed a reply brief.
 
        
 
                                      ISSUES
 
        
 
        1. Can speculation as to whether the claimant will lose his job 
 
        with his employed at some time in the future be used as a factor 
 
        in determining industrial disability?
 
        
 
        2. If speculation as to whether the claimant will lose his job 
 
        with the employer is considered, is there sufficient evidence to 
 
        support an award of twenty-five percent permanent partial 
 
        disability to the body as a whole?
 
        
 
                                 REVIEW OF THE EVIDENCE
 
        
 
        The arbitration decision adequately and accurately reflects the 
 
        pertinent evidence and it will not be set forth herein.
 
        
 
        MILBRODT v. ROBERTS DAIRY, INC.
 
        Page 2
 
        
 
        
 
                                 APPLICABLE LAW
 
        
 
        The citations of law in the arbitration decision are appropriate 
 
        to the issues and the evidence.
 
        
 
                                      ANALYSIS
 
        
 
        The analysis of the evidence in conjunction with the law is 
 
        adopted. Defendants urge on appeal that the deputy industrial 
 
        commissioner based the decision in part on speculation as to 
 
        claimant's future employment situation.
 

 
        
 
 
 
 
 
        
 
        In making a determination of industrial disability, a distinction 
 
        must be made between a loss of earnings and a loss of earning 
 
        capacity. The fact that claimant's present job may be less than 
 
        secure involves speculation as to a possible future loss of 
 
        earnings. A determination of industrial disability must be made 
 
        based on claimant's condition at the time of the hearing and not 
 
        on future events.
 
        
 
        A determination of industrial disability is based on a loss of 
 
        earning capacity. in this regard, consideration is properly given 
 
        to what effect claimant's condition has on jobs he might perform. 
 
        This is not speculation, as the focus is on the effects of 
 
        claimant's present condition. Claimant's condition after the 
 
        injury, as compared to his condition before the injury, is 
 
        ascertainable at the time of the hearing and does not require 
 
        speculation. The deputy industrial commissioner's decision 
 
        properly considered the effect of claimant's present condition on 
 
        his earning capacity.
 
        
 
        Defendants also urge that the award of 25 percent industrial 
 
        disability is not supported by the evidence. The deputy 
 
        industrial commissioner's analysis in regard to this issue is 
 
        adopted.
 
        
 
                                 FINDINGS OF FACT
 
        
 
        1. Claimant received an injury on October 20, 1984 arising out of 
 
        and in the course of his employment when he was crushed in the 
 
        pelvic area when his truck rolled and he was caught for 
 
        approximately 40 minutes.
 
        
 
        2. Claimant was initially off work from the date of injury to 
 
        December 2, 1985 and then from March 26, 1986 to May 1, 1986 and 
 
        then from June 16, 1986 to June 23, 1986 for medical treatment 
 
        and recuperation on account of his work injury.
 
        
 
        3. As a result of the work injury, claimant has a healed fracture 
 
        of the pelvis, a urethral tear, a bleeding duodenal ulcer and 
 
        ileus.
 
        
 
        MILBRODT v. ROBERTS DAIRY, INC.
 
        Page 3
 
        
 
        
 
        4. As a result of the urethral tear, claimant suffers from 
 
        impotence, incontinence and urethral stricture.
 
        
 
        5. As a result of the urethral stricture, claimant needs 
 
        intermittent dilation of his urethra and will likely require such 
 
        throughout his lifetime.
 
        
 
        6. As a result of his urethral stricture, claimant is likely to 
 
        be more subject to urinary tract infection than would
 
        the general population.
 
        
 
        7. As a result of his urethral stricture, claimant has problems 
 
        with frequency of urination, often needing to urinate as many as 
 
        12 to 15 times per day.
 
        
 
        8. Claimant was 55 years old at the time of the hearing and a 
 
        high school graduate.
 
        
 
        9. Claimant has no formal education beyond high school and no 
 
        training other than work experience.
 
        
 

 
        
 
 
 
 
 
        10. Claimant has worked predominantly in the dairy industry, 
 
        working in jobs ranging from night cleanup to pasteurizing room 
 
        operator to route and contract salesperson.
 
        
 
        11. Claimant worked as a supervisor for approximately one year 
 
        before leaving such work.
 
        
 
        12. Claimant's earnings have increased slightly subsequent to his 
 
        injury.
 
        
 
        13. Claimant returned to work at Roberts Dairy and continued to 
 
        work after the dairy's reorganization, an event which required 
 
        him to work longer hours.
 
        
 
        14. Claimant has stiffness and fatigue following his longer work 
 
        hours.
 
        
 
        15. Claimant discontinued his part-time job at the greyhound 
 
        track subsequent to his work injury.
 
        
 
        16. Claimant's choice at the time of reorganization was either to 
 
        accept the larger route or to take a layoff.
 
        
 
        17. Claimant's age, work experience and problems related to his 
 
        work injury decrease his job mobility.
 
        
 
        18. Claimant is unlikely to be able to secure or obtain 
 
        employment at or near his present wage, should his job at Roberts 
 
        Dairy cease.
 
        
 
        MILBRODT v. ROBERTS DAIRY, INC.
 
        Page 4
 
        
 
        
 
        19. Claimant has not shown that his impotence is a factor which 
 
        affects his earning capacity, either physically or 
 
        psychologically.
 
        
 
        20. Claimant has sustained a loss of earning capacity on account 
 
        of his work injury of 25 percent.
 
        
 
                                 CONCLUSIONS OF LAW
 
        
 
        Claimant has established a causal relationship between his work 
 
        injury of October 20, 1984 and his claimed permanent partial 
 
        disability.
 
        
 
        The arbitration decision filed May 27, 1988, did not improperly 
 
        rely on speculation.
 
        
 
        Claimant has sustained a permanent partial disability of 25 
 
        percent on account of his October 20, 1984 work injury.
 
        
 
        WHEREFORE, the decision of the deputy is affirmed.
 
        
 
                                      ORDER
 
                                                
 
        THEREFORE, it is ordered:
 
        
 
        That defendants pay claimant one hundred twenty-five (125) weeks 
 
        of permanent partial disability benefits with those benefits to 
 
        commence on December 2, 1985 and to be paid at the applicable 
 
        rate of three hundred twenty-five and 40/100 dollars ($325.40). 
 
        Permanent partial disability benefits shall not be payable during 
 
        those periods following December 2, 1985 during which claimant 
 
        received healing period benefits. Permanent partial disability 
 

 
        
 
 
 
 
 
        benefits shall again commence on the first date subsequent to 
 
        each period during which claimant received healing period 
 
        benefits following December 2, 1985.
 
        
 
        That defendants pay accrued amounts in a lump sum.
 
        
 
        That defendants pay interest pursuant to section 85.30.
 
        
 
        That defendants pay the costs of this action including the costs 
 
        of the transcription of the hearing proceeding.
 
        
 
        That defendants file claim activity reports as required by 
 
        Division of Industrial Services Rule 343-3.1.
 
        
 
        Signed and filed this 31st day of October, 1988.
 
        
 
        
 
        
 
                                          DAVID E. LINQUIST
 
                                       INDUSTRIAL COMMISSIONER