BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
        __________________________________________________________________
 
          
 
          MICHAEL R. STULL by
 
          VIOLETTE K. STULL,
 
          his Guardian and Conservator,
 
          RANDAL L. STULL, Deceased,
 
                                                  File No. 780309
 
               Claimant,
 
                                                   A P P E A L
 
          VS.
 
                                                  D E C I S I 0 N
 
          TRUESDALE COOP ELEVATOR COMPANY,
 
 
 
               Employer,
 
          and
 
 
 
          FARMLAND MUTUAL INSURANCE COMPANY,
 
 
 
               Insurance Carrier,
 
               Defendants.
 
 
 
          
 
          __________________________________________________________________
 
                         
 
                               STATEMENT OF THE CASE
 
 
 
               Defendants appeal from an arbitration decision awarding 
 
          death benefits and funeral expenses.
 
 
 
               The record on appeal consists of the transcript of the 
 
          arbitration hearing; claimant's exhibits 1 through 7; and 
 
          defendants' exhibits A through E. Both parties filed briefs on 
 
          appeal.
 
 
 
                                   ISSUES
 
 
 
               The issues on appeal are whether decedent's intoxication was 
 
          a substantial factor in causing his death and whether benefits 
 
          should be awarded for the lifetime of the claimant.
 
 
 
                           REVIEW OF THE EVIDENCE
 
 
 
               The arbitration decision adequately and accurately reflects 
 
          the pertinent evidence and it will not be totally reiterated 
 
          herein.
 
 
 
               Decedent, Randal L. Stull, was killed when he was driving a 
 
          pickup owned by Truesdale Elevator and it struck a train on or 
 
          about November 14, 1984.  There were no witnesses to the 
 
          accident.
 
 
 
 
 
 
 
          He was a part-time worker for Truesdale Elevator where he 
 
          performed maintenance on equipment and a variety of other tasks.
 
 
 

 
               Wilbert Hersom, the fertilizer manager for Truesdale 
 
          Elevator, and decedent quit working at approximately 5:00 p.m. on 
 
          November 13, 1984.  They were to travel to Fort Dodge to deliver 
 
          soybean samples and attend a dinner.  They did not attend the 
 
          dinner.  Hersom and decedent journeyed from Fonda where Hersom 
 
          lived to Fort Dodge where they had one or two beers at each of 
 
          two bars.  They left Fort Dodge at approximately 9:45 p.m. and 
 
          returned to Fonda, and went to another bar arriving at that bar 
 
          approximately 11:00 p.m. The time that elapsed for these journeys 
 
          was from approximately 6:00 p.m. to 11:30 p.m. Decedent did not 
 
          consume any alcoholic beverages at the bar in Fonda but did eat a 
 
          candy bar while there.  He talked with and was observed by three 
 
          people at that bar.  All three of these people including Hersom 
 
          testified that claimant did not show signs of intoxication.  
 
          Hersom did the driving in the pickup until they left the bar in 
 
          Fonda at approximately 11:30 p.m. There was no drinking in the 
 
          pickup while traveling in the course of the evening.  Decedent 
 
          drove from the bar in Fonda to Hersom's home, a distance of 
 
          approximately five blocks.  Decedent left Hersom's home to drive 
 
          alone to decedent's home in Truesdale.
 
 
 
               On his way to Truesdale the pickup decedent was driving 
 
          struck the 48th car of an 88 car train.  The time of the accident 
 
          was about midnight.  The train had been traveling 20 to 25 miles 
 
          per hour.  The topography surrounding the accident scene was flat 
 
          and the road approaching the railroad crossing was straight and 
 
          level.  The weather was partly cloudy and cool but it was not 
 
          raining, snowing or foggy.  The roadway was damp from dew but 
 
          there were no conditions which would have obscured vision.
 
 
 
               The railroad crossing is marked by crossbars, which were 
 
          intact, and a railroad warning was painted on the road surface 
 
          approximately 747 feet from the crossing.  A separate railroad 
 
          warning sign was also in place approximately 747 feet from the 
 
          crossing.  The crossbars were made of some reflective material 
 
          and did reflect light on the evening in question.  There were 372 
 
          feet of skid marks running south from the point of impact.  The 
 
          skid marks began in the right-hand lane.  The pickup was 
 
          extensively damaged.
 
 
 
               A local funeral director drew a blood sample from the body 
 
          of decedent in the funeral home preparation room.  The sample was 
 
          given to the Buena Vista County Sheriff's Department which in 
 
          turn forwarded it to the state criminalistics laboratory.  That 
 
          laboratory analyzed the sample several times and found it to 
 
          contain from .149 to .157 grams of alcohol per 100 milliliters of 
 
          blood.  These readings are equivalent within the normal range of 
 
          scientific certainty.
 
 
 
 
 
               Decedent had a son, Michael, who was born January 8, 1979 
 
          and was six years old at the time of the hearing.  Decedent and 
 
          Violette Stull were married but divorced in 1983.  Decedent had 
 
          supported his son after the divorce.
 
 
 
                                APPLICABLE LAW
 
 
 
               Section 85.16, Code Supplement 1983, provides in relevant 
 
          part:
 
 
 
                    No compensation under this chapter shall be allowed for 
 
               an injury caused:
 
 
 
 
 

 
 
 
 
 
 
 
             STULL V. TRUESDALE COOP ELEVATOR COMPANY
 
             Page   3
 
 
 
 
 
 
 
                    2.  By the employee's intoxication, which did not arise 
 
               out of and in the course of employment but which was due to 
 
               the effects of alcohol or another narcotic, depressant, 
 
               stimulant, hallucinogenic, or hypnotic drug not prescribed 
 
               by an authorized medical practitioner, if the intoxication 
 
               was a substantial factor in causing the injury.
 
 
 
               Intoxication is a defense which places the burden of proof 
 
          on defendants.  Reddick v. Grand Union Tea Co., 230 Iowa 108, 296 
 
          N.W. 800 (19 1).
 
 
 
               "A person is drunk in legal sense when he is so far under 
 
          the influence of intoxicating liquors that his passions are 
 
          visibly excited or his judgment impaired by the liquor." State v. 
 
          Pierce, 65 Iowa 85, 21 N.W. 195 (1884).
 
 
 
               "When a person, from the use of intoxicating liquors, has 
 
          affected his reason or his faculties, or has rendered him 
 
          incoherent of speech or has caused him to lose control in any 
 
          manner, or to any extent of the action or motion of his person or 
 
          body, such person, in contemplation of law, is intoxicated." 
 
          State v. Baughn, 162 Iowa 308, 143 N.W. 1100 (1913). ...or when 
 
          "his judgment [is] impaired by the liquor." State v. Wheelock, 
 
          218 Iowa 178, 24 N.W. 313 (1934).
 
 
 
               The term "under the influence of an alcoholic beverage" is 
 
          synonymous with the term "in an intoxicated condition." State v. 
 
          Berch, 222 N.W.2d 741, 747 (Iowa 1974).  Under Code section 125.2 
 
          an intoxicated person means a person whose mental or physical 
 
          functioning is substantially impaired as a result of the use of a 
 
          chemical substance.  While a precise line is not easily drawn 
 
          regarding whether or not a person is intoxicated, it is certain 
 
          that a person need not be staggering drunk before they are 
 
          legally intoxicated.  State v. Stout, 247 Iowa 453, 74 N.W.2d 208 
 
          (Iowa 1956).
 
 
 
 
 
               The issuance of an opinion regarding intoxication based upon 
 
          a blood alcohol test is competent.  State v. Werling, 234 Iowa 
 
          1109, 13 N.W.2d 318 (Iowa 1944).  State v. Haner, 231 Iowa 348, 1 
 
          N.W.2d 91 (1942).  Iowa Code subsection 321.281(8) provides that 
 
          if a person has a blood alcohol concentration of more than ten 
 
          one hundredths of one percent, such is presumptive evidence that 
 
          the person was under the influence of an alcoholic beverage.  The 
 
          subsection, however, starts with the words, "in any prosecution 
 
          under this section."  This section of the Code does not, 
 
          necessarily, apply to civil cases.  Assuming, arguendo, that it 
 
          is applicable, it must be noted that the statute provides an 
 
          inference only.  The use of the term "presumption" is not a true 
 
          presumption under the eyes of the law.  State v. Hansen, 203 
 
          N.W.2d 216, 218 (Iowa 1972).
 
 
 
               The employer must also show that the intoxication was a 
 
          substantial factor in bringing about the accident.  The term "a 
 
          substantial factor" is the common term used to define proximate 
 
          cause.  Blacksmith v. All-American, Inc., 290 N.W.2d 348 (Iowa 
 
          1980).  For a cause to be proximate it must be substantial.  It 
 
          must exist to the degree that the event, in this case the 
 

 
 
 
 
 
 
 
         STULL V. TRUESDALE COOP ELEVATOR COMPANY
 
         Page   4
 
 
 
 
 
          accident, would not have occurred in its absence.  A cause, in 
 
          order to be proximate, cannot be insignificant or trivial.
 
 
 
               There are a number of cases that have dealt with workers' 
 
          compensation and accidents where consumption of alcoholic 
 
          beverages was involved.  The case of Lamb v. Standard Oil Co., 
 
          250 Iowa 911, 96 N.W.2d 730 (1959), involved another person who 
 
          was involved in a fatal accident after drinking at the Top Hat in 
 
          Fort Dodge.  The case involved a blood alcohol level of .196 and 
 
          medical expert testimony that Lamb was intoxicated at the time of 
 
          the accident.  Lamb's car crashed into a tree after going out of 
 
          control on an icy road.  Other cases include Farmers Elevator 
 
          Co., Kingsley v. Manning, 286 N.W.2d 174 (Iowa 1979); Hawk v. Jim 
 
          Hawk Chevrolet-Buick, Inc., 282 N.W.2d 84 (Iowa 1979); and other 
 
          cases previously cited in this decision.  These cases were prior 
 
          to the 1983 statutory change which changed the law from "sole 
 
          proximate cause to a substantial factor."
 
 
 
               Iowa Code section 85.31 (1983) provides in relevant part:
 
 
 
                    1.  When death results from the injury, the employer 
 
               shall pay the dependents who were wholly dependent on the 
 
               earnings of the employee for support at the time of his 
 
               injury, during their lifetime, compensation upon the basis 
 
               of eighty percent per week of the employee's average weekly 
 
               spendable earnings, commencing from the date of his death as 
 
               follows:
 
 
 
 
 
 
 
 
 
 
 
                    b.  To any child of the deceased until the child 
 
               shall reach the age of eighteen, provided that a child 
 
               beyond eighteen years of age shall receive benefits to 
 
               the age of twenty-five if actually dependent, and the 
 
               fact that a child is under twenty-five years of age and 
 
               is enrolled as a full-time student in any accredited 
 
               educational institution shall be a prima facie showing 
 
               of actual dependency.
 
 
 
                                    ANALYSIS
 
 
 
               Decedent had a blood alcohol of approximately .150. He was 
 
          intoxicated at the time of the accident that resulted in his 
 
          death.  Defendants have met the first criteria of the 
 
          intoxication defense.  They must also show that the intoxication 
 
          was a substantial factor in bringing about the accident.  The 
 
          intoxication defense is an affirmative defense and defendants 
 
          must prove that intoxication was a probable substantial factor in 
 
          the accident.
 
 
 
               Decedent did observe the train and did take action to avoid 
 
          striking it.  The vehicle left skid marks of 372 feet.  Those 
 
          skid marks began in the right hand lane.  The vehicle struck the 
 
          train with sufficient force to damage the pickup beyond repair 
 
          and to fatally injure the decedent.  The accident occurred at or 
 
          near midnight on a rural blacktop road at an unlighted crossing 
 
          with no mechanical warning devices.  There is no expert testimony 
 

 
 
 
 
 
 
 
         STULL V. TRUESDALE COOP ELEVATOR COMPANY
 
         Page   5
 
 
 
 
 
          in the record regarding the vehicle's speed before the accident 
 
          or the speed upon impact.  It is clear from the evidence 
 
          presented that the speed of defendants' truck was a substantial 
 
          factor in the accident.  Also, the inability of claimant to 
 
          detect the presence of a train earlier was a factor.  But the 
 
          evidence reveals that claimant reacted in a normal manner once he 
 
          observed the train.  Defendants did not show that if claimant's 
 
          reaction time had been quicker the accident would have been 
 
          avoided.  Persons who observed decedent shortly before the 
 
          accident indicated that he did not show signs of intoxication.  
 
          This is very important in that it shows that claimant did not 
 
          appear to be impaired.  If intoxication was a factor it would 
 
          have had to impair claimant's reaction and behavior 
 
          substantially.  There is no showing in the record that decedent 
 
          could have avoided the accident had he not been intoxicated.  
 
          While it is possible that intoxication may have been a factor in 
 
          the accident, the evidence fails to show that it was probable.  
 
          Briefly stated, there are too many other possible causes of this 
 
          accident to conclude that intoxication was a substantial factor.
 
 
 
               The only opinion concerning the cause of the accident came 
 
          from Michael Rehberg, a forensic toxicologist.  He testified only 
 
          to the general effects of different levels of intoxication and 
 
          not to any other factors that were facts related to the
 
               accident.
 
               Defendants also argue on appeal that the deputy erred in 
 
          benefits for the lifetime of decedent's son.  This argument can 
 
          be easily addressed.  The deputy awarded benefits for the 
 
          lifetime of the son "so long as weekly benefits are payable under 
 
          section 85.31 of the Code."  The deputy did not did not award 
 
          benefits to the son for his entire lifetime but awarded benefits 
 
          so long as the son is alive for the time specified in section 
 
          85.31.  The deputy's award in in fact consistent with defendants' 
 
          arguments.
 
 
 
                                   FINDINGS OF FACT
 
 
 
               1.  Decedent was minimally intoxicated and minimally 
 
          impaired at the time of the accident which produced his death.  
 
          He had a blood alcohol level of approximately .150 grams of 
 
          alcohol per 100 milliliters of blood alcohol level, but did not 
 
          exhibit the appearance of being intoxicated to persons who 
 
          observed him shortly before the accident occurred.
 
 
 
               2.  The alcohol may have played some part in producing the 
 
          accident which resulted in decedent's death, but it is equally 
 
          possible that the accident may have occurred event if decedent 
 
          had not  consumed any alcoholic beverages whatsoever.  The 
 
          evidence does not exclude other reasonable causes which are 
 
          unrelated to alcohol consumption.
 
 
 
               3.  It is possible, but not probable, that decedent's 
 
          intoxication was a substantial factor in causing the accident 
 
          that produced his death.
 
 
 
                                   CONCLUSIONS OF LAW
 
 
 
               Defendants have failed to prove by a preponderance of the 
 
          evidence that decedent's intoxication was a substantial factor in 
 

 
 
 
 
 
 
 
         STULL V. TRUESDALE COOP ELEVATOR COMPANY
 
         Page   6
 
 
 
 
 
          causing the accident which resulted in his death.
 
 
 
               The death of decedent arose out of and in the course of his 
 
          employment and compensation therefore is payable to his son, 
 
          Michael L. Stull, in accordance with the provisions of section
 
          85.31.
 
           
 
           WHEREFORE, the decision of the deputy is affirmed.
 
 
 
                                 ORDER
 
 
 
                    IT IS THEREFORE ORDERED:
 
 
 
               That defendants pay to the Clerk of Court for Buena Vista 
 
               County, Iowa, as Trustee for Michael R. Stull, pursuant to 
 
               section 85.49, the sum of one hundred ten and 99/100 dollars 
 
               ($110.99) per week commencing November 14, 1984 and 
 
               continuing each week thereafter for the time specified and 
 
               payable under
 
 
 
          section 85.31 of the Code.  Any accrued but unpaid amounts shall 
 
          be paid in a lump sum together with interest pursuant to section 
 
          85.30.
 
 
 
               That defendants pay Randal L. Stull's burial expenses in an 
 
          amount not to exceed one thousand and 00/100 dollars 
 
          ($1,000.00).
 
 
 
               That costs are assessed against defendants.
 
 
 
               That defendants shall file claim activity reports as 
 
          requested by the agency pursuant to rule 343-3.1.
 
 
 
               Signed and filed this 14th day of December, 1987.
 
 
 
 
 
 
 
 
 
                                                   DAVID E. LINQUIST
 
                                                   INDUSTRIAL COMMISSIONER
 
 
 
 
 
          Copies To:
 
 
 
 
 
          Mr. Mark T. Cornish
 
          Attorney at Law
 
          533 Erie Street
 
          Storm Lake, Iowa  50588
 
 
 
          Mr. Willis J.  Hamilton
 
          Mr. James R. Hamilton
 
          Attorneys at Law
 
          606 Ontario Street
 
          Storm Lake, Iowa  50588
 
 
 
          Mr. Cecil L. Goettsch
 
          Attorney at Law
 
          1100 Des Moines Building
 

 
 
 
 
 
 
 
         STULL V. TRUESDALE COOP ELEVATOR COMPANY
 
         Page   7
 
 
 
 
 
          Des Moines, Iowa  50307
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                                1403.30 - 1601 - 1901
 
                                                Filed December 14, 1987
 
                                                DAVID E. LINQUIST
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         _________________________________________________________________
 
         
 
         MICHAEL R. STULL by
 
         VIOLETTE K. STULL,
 
         his Guardian and Conservator, 
 
         RANDAL L. STULL, Deceased,
 
         
 
         
 
              Claimant,
 
         VS.
 
         
 
         TRUESDALE COOP ELEVATOR COMPANY,
 
                                                 File No. 780309
 
              Employer,
 
                                                  A P P E A L
 
         and
 
                                                 D E C I S I 0 N
 
         
 
         FARMLAND MUTUAL INSURANCE COMPANY,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
       _________________________________________________________________
 
         
 
         
 
         1403.30 - 1601
 
         
 
              Defendants had not proved that intoxication of decedent was 
 
         a substantial factor in causing the injury which resulted in his 
 
         death.
 
         
 
         1901
 
         
 
              Claimant, decedent's son, was entitled to benefits for the 
 
         time specified in subsection 85.31(l)(b).
 
 
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                      BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         BONNIE L. LOTERBAUER,
 
         
 
              Claimant,
 
                                                    File No. 780519
 
         VS.
 
         
 
         CON AGRA, INC./ARMOUR FOOD                   A P P E A L
 
         COMPANY,
 
                                                    D E C I S I 0 N
 
         
 
              Employer,
 
         
 
         and
 
         
 
         THE TRAVELERS,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
                              STATEMENT OF THE CASE
 
         
 
              Claimant appeals from an arbitration decision denying all 
 
         compensation because she did not establish a causal connection 
 
         between her injury and her claimed permanent disability.
 
         
 
              The record on appeal consists of the transcript of the 
 
         arbitration hearing and joint exhibits 1 through 37.  Both 
 
         parties filed briefs on appeal.
 
         
 
                                      ISSUE
 
         
 
              The issue on appeal can be stated as whether claimant has 
 
         established a causal connection between her injury and her 
 
         claimed disability.
 
         
 
                              REVIEW OF THE EVIDENCE
 
         
 
              The arbitration decision adequately and accurately reflects 
 
         the pertinent evidence and it will not be set forth herein.
 
         
 
                                  APPLICABLE LAW
 
         
 
              The citations of law in the arbitration decision are 
 
         appropriate to the issues and evidence.
 
         
 
                                     ANALYSIS
 
         
 
              The deputy's analysis is adequate and accurate and will not
 
         be expanded herein.
 
         
 
                                 FINDINGS OF FACT
 
         
 
              1.  Claimant had preexisting problems with depression prior 
 
         to October 27, 1984 and has had problems with depression since 
 
         that date.
 

 
         
 
         
 
         
 
         LOTERBAUER V. CON AGRA, INC./ARMOUR FOOD COMPANY
 
         Page   2
 
         
 
         
 
         
 
              2.  Claimant had treatment for back conditions in 1973 and 
 
         1975 and had recurrent back complaints prior to October 27, 1984 
 
         which she did not remember at deposition and of which she 
 
         generally did not inform her physicians.
 
         
 
              3.  Claimant gave her physicians varying medical histories 
 
         concerning her stated work injury.
 
         
 
              4.  It is uncertain whether claimant experienced a specific 
 
         work incident with onset of pain or, if so, the exact nature of 
 
         any specific work incident or how any such work incident or 
 
         claimant's normal work conditions might have produced her back 
 
         complaints.
 
         
 
              5.  Claimant has thoracic kyphosis and lumbar lordosis which 
 
         preexisted October 27, 1984.
 
         
 
              6.  Claimant has osteoporosis and mild osteoarthritis.
 
         
 
              7.  Claimant's physicians have found little organic basis 
 
         for her back complaints.
 
         
 
              8.  Claimant's back complaints relate to her lumbar 
 
         lordosis, thoracic kyphosis, osteoporosis, and mild 
 
         osteoarthritis.
 
         
 
              9.  Claimant's back complaints in part relate to her 
 
         depressive disorder.
 
         
 
             10.  Claimant's depressive disorder is not related to her 
 
         work injury.
 
         
 
             11.  Claimant was not a credible witness.
 
         
 
             12.  Claimant's work injury is not a cause of her stated back 
 
         complaints.
 
         
 
                                CONCLUSIONS OF LAW
 
         
 
              Claimant has not established that the injury she sustained 
 
         on October 27, 1984 is the cause of her claimed permanent 
 
         disability.
 
         
 
              WHEREFORE, the decision of the deputy is affirmed.
 
         
 
                                      ORDER
 
         
 
              THEREFORE, it is ordered:
 
         
 
              That claimant take nothing further from this proceeding.
 
         
 
              That claimant pay the costs of this proceeding pursuant to 
 
         Industrial Services Rule 343-4.33.
 
         
 
         
 
              Signed and filed this 20th day of May, 1988
 
         
 
         
 

 
         
 
         
 
         
 
         LOTERBAUER V. CON AGRA, INC./ARMOUR FOOD COMPANY
 
         Page   3
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
                                              DAVID E. LINQUIST
 
                                              INDUSTRIAL COMMISSIONER
 
         
 
         Copies To:
 
         
 
         Mr. Andrew H. Torgerson
 
         Attorney at Law
 
         15 lst St, NE, Suite 302
 
         Mason City, Iowa 50401
 
         
 
         Mr. Mark Wilson
 
         Attorney at Law
 
         30 4th St, NW
 
         Mason City, Iowa 50401
 
 
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                                     1402.40
 
                                                     Filed May 20, 1988
 
                                                     David E. Linquist
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         BONNIE L. LOTERBAUER,
 
         
 
              Claimant,
 
                                                   File No. 780519
 
         VS.
 
         
 
         CON AGRA, INC./ARMOUR FOOD                  A P P E A L
 
         COMPANY,
 
                                                   D E C I S I 0 N
 
              Employer,
 
         
 
         and
 
         
 
         THE TRAVELERS,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         
 
         1402.40
 
         
 
              Claimant failed to establish that the work injury she 
 
         sustained was the cause of her claimed permanent disability.  The 
 
         record revealed that claimant's back complaints were related to 
 
         her lumbar lordosis, thoracic kyphosis, osteoporosis, and mild 
 
         osteoarthritis.  Claimant's depressive disorder was not related 
 
         to her work injury.
 
 
 
         
 
         
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                      BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         _________________________________________________________________
 
        
 
         BONNIE L. LOTERBAUER,
 
         
 
              Claimant,
 
                                                 File No. 780519
 
         VS.
 
         
 
         CON AGRA, INC./ARMOUR
 
                                               A R B I T R A T I 0 N
 
         FOOD COMPANY,
 
                                                 D E C I S I 0 N
 
              Employer,
 
         
 
         and
 
         
 
         THE TRAVELERS,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         _________________________________________________________________
 
         
 
                                   INTRODUCTION
 
         
 
              This is a proceeding in arbitration brought by the claimant, 
 
         Bonnie L. Loterbauer, against her employer, Con Agra, Inc./Armour 
 
         Food Company, and its insurance carrier, The Travelers, to 
 
         recover benefits under the Iowa Workers' Compensation Act as a 
 
         result of an injury sustained October 27, 1984.  This matter came 
 
         on for hearing before the undersigned deputy industrial 
 
         commissioner in Mason City, Iowa, on January 22, 1987.  But for 
 
         briefs, the record was considered fully submitted at close of 
 
         hearing.
 
         
 
              The record in this proceeding consists of the testimony of 
 
         claimant, of Richard Rauzi, and of Richard K. Choate, as well as 
 
         of joint exhibits 1 through 37.  Joint exhibit 1 is progress 
 
         notes of Dr. Miller.  Joint 2 is a radiographic report of July 
 
         11, 1975.  Joint exhibit 3 is a report of Dr. Miller of August 4, 
 
         1975.  Joint exhibit 4 is a hospital admission and discharge 
 
         summary for August 1975.  Joint exhibit 5 is a report of Dr. 
 
         Miller of August 22, 1975.  Joint exhibit 6 is notes of Dr. 
 
         Harlan with progress notes of Dr. Wolbrink from January 1984 to 
 
         November 1,985.  Joint exhibit 7 is a pain drawing of January 3, 
 
         1985.  Joint exhibit 8 is a report of Dr. Wolbrink of May 7, 
 
         1985.  Joint exhibit 9 is report of Dr. Wolbrink of June 10, 
 
         1985.  Joint exhibit 10 is progress notes of Dr. Hachfeld of June 
 
         13, 1985.  Joint exhibit 11 is otherwise unidentified medical 
 
         notes of July 3, 1985.  Joint exhibit 12 is a report of Dr. 
 
         McKenna to Dr. Wolbrink of July 11, 1985.  Joint exhibit 13 is a 
 
         history and physical report of Dr. Blessman of July 29, 1985.  
 
         Joint exhibits 14 and 15 are discharge summaries of Dr. Blessman 
 
         dated July 29, 1985 and July 30, 1985, respectively.  Joint 
 
         exhibits 16 and 17 are reports of Dr. Wolbrink of August 8, 1985 
 
         and September 18, 1985, respectively.  Joint exhibit 18 is a 
 
         report of Dr. McKenna of November 14, 1985.  Joint exhibit 19 is 
 
         a report of Dr. McCoy of January 3, 1986.  Joint exhibit 20 is a 
 

 
         report of Rehabilitation Education & Services Branch, State of 
 
         Iowa, of February 18, 1986.  Joint exhibit 21 is a letter from 
 
         Joseph R. Lapointe to Dr. McCoy of March 28, 1986.  Joint exhibit 
 
         22 is a report of Dr. McCoy of April 14, 1986.  Joint exhibit 23 
 
         is progress report #14 of Maggie Covey, R.N., of April 29, 1986.  
 
         Joint exhibit 24 is a report of Dr. Wolbrink of May 23, 1986 with 
 
         attached progress notes.  Joint exhibit 25 is a closure report of 
 
         Maggie Covey of May 30, 1985.  Joint exhibit 26 is progress notes 
 
         of Dr. Wolbrink of July 23, 1986.  Joint exhibit 27 is a report 
 
         from Dr. Groff of August 18, 1986.  Joint exhibit 28 is progress 
 
         notes from the Manly Clinic from August 11, 1981 through March 7, 
 
         1986.  Joint exhibit 29 is a radiographic report of August 17, 
 
         1981.  Joint exhibit 30 is a radiographic report of February 21, 
 
         1982.  Joint exhibit 31 is radiographic report of March 29, 1983.  
 
         Joint exhibit 32 is a Medical Occupational Evaluation report of 
 
         December 2, 1986.  Joint exhibits 33 and 34 duplicate exhibit 23 
 
         and exhibit 25.  Joint exhibit 35 is the deposition of of 
 
         claimant.  Joint exhibit 36 is a report of Richard Rauzi of April 
 
         10, 1986.  Joint exhibit 37 is vocational rehabilitation file 
 
         notes from the Vocational Rehabilitation Center from October 8, 
 
         1985 through April 4, 1986.
 
         
 
                                  ISSUES
 
         
 
              Pursuant to the prehearing report, the parties stipulated 
 
         that claimant's rate of weekly compensation is $172.54, and that 
 
         she was entitled to and was paid healing period benefits from 
 
         October 27, 1984 through November 26, 1985 with any permanent 
 
         partial disability to commence on November 27, 1985.  They 
 
         further stipulated that claimant received an injury which arose 
 
         out of and in the course of her employment, and that claimant is 
 
         not an odd-lot employee.  Claimant has been paid 35 weeks of 
 
         permanent partial disability benefits representing a permanent 
 
         partial disability of seven percent of the body as a whole.  The 
 
         issues remaining for resolution are:
 
         
 
              1)  Whether a causal relationship exists between claimant's 
 
         claimed injury and any permanent partial disability; and
 
         
 
              2)  Whether claimant is entitled to permanent partial 
 
         disability benefits.
 
         
 
                            REVIEW OF THE EVIDENCE
 
         
 
              Fifty year old claimant gave a work history as a bartender, 
 
         a nurse's aide, and of factory assembler before beginning work at 
 
         Con Agra, Inc./Armour Food Co. within one year of her October 27, 
 
         1984 injury date.  Claimant earned approximately $274 per week at 
 
         Con Agra.  Claimant worked in sausage pepperoni.  Her chief job 
 
         was to lift pepperoni racks containing seven or eight sticks of 
 
         pepperoni each, approximately 36 inches long, and place them on a 
 
         scale until 125 pounds of pepperoni were on the scale.  Claimant 
 
         stated that approximately five or six pepperoni racks are needed 
 
         to reach that weight.  Apparently, the pepperoni are then removed 
 
         individually from the scale and skinned.
 
         
 
              Claimant initially reported that on her injury date she was 
 
         lifting boxes when she felt a sharp pain in her low back which 
 
         increased in severity throughout the day such that she saw A. J. 
 
         Wolbrink, M.D. after leaving work.  Richard K. Choate, division 
 
         superintendent at the Mason City Armour Foods plant, reported 
 
         that time cards kept for employees reflect work done each day.  
 
         Time cards reflect that on October 27, 1984, claimant was packing 
 
         Christmas boxes with two and one-half pound pieces of meat.  An 
 

 
         
 
         
 
         
 
         LOTERBAUER V. CON AGRA, INC./ARMOUR FOOD COMPANY
 
         Page   3
 
         
 
         
 
         employee would remove a two and one-half pound piece from a vat 
 
         to the packing station on a tractor and there placed in the gift 
 
         box.  The gift box was then folded, labeled and placed in a 
 
         twelve unit master box, which master box was then slid and lifted 
 
         from the table to pallet level.  Pallet level is approximately 
 
         eight inches to forty-eight inches from the floor with each 
 
         master box being approximately twelve inches high.  Choate opined 
 
         that the master boxes weighed slightly more than thirty pounds.  
 
         Claimant stated that her injury occurred while lifting boxes 
 
         weighing approximately 50 pounds.
 
         
 
              Claimant also gave varying histories of her injury to her 
 
         physicians, apparently reporting to Dr. Wolbrink on November 5, 
 
         1984 that she developed sudden pain in her back on October 27, 
 
         1984 while lifting boxes which weighed about 25 pounds at work.  
 
         Dr. Wolbrink's note further indicates that that incident occurred 
 
         at approximately 1:00 or 2:00 in the afternoon, but that claimant 
 
         continued to work until her shift ended at about 3:30 and had 
 
         worked regularly since that date, but on October 31, while 
 
         lifting the same boxes developed a pain in her neck which had 
 
         progressively worsened.  Claimant told Wolbrink that she had no 
 
         previous problems with her back.  Claimant apparently reported to 
 
         James Blessman, M.D., when examined on July 29, 1985 that she 
 
         developed low back pain from lifting 250 pound groups of sausage.  
 
         Claimant also reported to Blessman that there was no specific one 
 
         time injury.  Claimant's medical history with Dr. McCoy of 
 
         January 3, 1986 is that she injured her back while lifting about 
 
         100 pounds of meat over her head to put on a scale.  The doctor's 
 
         note is that [she related] she didn't have immediate pain but 
 
         later in the day had severe pain in her low back and in her 
 
         dorsal spine.  At hearing, claimant denied having ever lifted 250 
 
         pounds at once.  She stated that she started hurting while 
 
         working on the pepperoni racks but ignored it and went to the 
 
         boxes where she told a coworker she was hurting.
 
         
 
              Claimant related that she was injured while lifting a 
 
         patient at a nursing home approximately fifteen years ago.  She 
 
         made a claim for and received workers' compensation benefits at 
 
         that time.  Claimant agreed that she had had back pain at other 
 
         times, but stated she had not missed work and had not been 
 
         restricted in her activities on account of these injuries.  She 
 
         stated that she told Dr. Wolbrink that she had had no further 
 
         back pain because she has just forgotten about it.  She also 
 
         could not remember reporting back complaints to her regular 
 
         Manley, Iowa, clinic physicians.
 
         
 
              Claimant explained that she had denied prior back problems 
 
         when asked about those in her deposition because the question was 
 
         asked very late in the deposition and she was in such pain that 
 
         she forgot her prior complaints and only remembered them after 
 
         the deposition was completed.  Claimant's deposition commenced at 
 
         2:05 on August 8, 1986 and ended at 3:02 on that date.  Review of 
 
         the deposition reflects that claimant was asked questions 
 
         concerning prior back problems and prior work injuries throughout 
 
         the deposition and that she consistently denied any such 
 
         problems.
 
         
 
              On January 3, 1986, Robert E. McCoy, M.D., examined 
 
         claimant.  She then denied having had prior back problems.  Dr. 
 

 
         
 
         
 
         
 
         LOTERBAUER V. CON AGRA, INC./ARMOUR FOOD COMPANY
 
         Page   4
 
         
 
         
 
         McCoy reminded her of her low back pain in July 1975.  Claimant 
 
         did not know whether she had ever told Dr. Wolbrink of her prior 
 
         low back problems once Dr. McCoy "reminded her of them."
 
         
 
              Records of Ray F. Miller, M.D., concerning claimant's 1975 
 
         injury report a history of previous low back injury two years 
 
         earlier which claimant reported took four months to improve.  
 
         Claimant did not remember that history.  Neither did she remember 
 
         being hospitalized on August 18, 1975 and checking herself out of 
 
         the hospital against medical advice on August 19, 1975 because of 
 
         a dispute with her compensation carrier concerning
 
         the origin of her low back pain.
 
         
 
              Physical examination on July 11, 1975 revealed fairly good 
 
         back motion with pain on full extension and lateral flexion to 
 
         either side.  Straight leg raising was normal as were hip, knee 
 
         and ankle motion.  Sensation, strength and circulation were 
 
         intact in both legs.  Claimant had a mild thoracic kyphosis and 
 
         considerable tenderness to palpation over the thoracic and lumbar 
 
         spine.   She had no significant sciatic nerve nor notch 
 
         tenderness.  X-rays of the lumbosacral spine showed a mild 
 
         narrowing of the L3-4 disc space with mild vertebral margin 
 
         lipping and a minimal spina bifida occulta at S1.  Dr. Miller's 
 
         impression then was that claimant had a chronic low back strain 
 
         with no evidence of a ruptured disc or other significant back 
 
         ailment.  He characterized claimant's prognosis as somewhat 
 
         guarded in that claimant believed she was unable to return to 
 
         work.
 
         
 
              Claimant also saw Helene K. Graff, D.C., in 1975 for dorsal 
 
         lumbar pain.
 
         
 
              Claimant has a history of significant depressive symptoms.  
 
         Prior to her work, the depressive symptoms had related primarily 
 
         to problems claimant had with her three sons.  She stated that 
 
         her pre-injury depression had never interfered with her work and 
 
         that her problems with her son had not affected her daily living; 
 
         she stated she now worries a lot about paying her bills and being 
 
         able to work again.  Claimant agreed that pain clinic treatment 
 
         had been recommended to her and stated that she was unwilling to 
 
         undergo such treatment because she doesn't like it.  She 
 
         apparently stayed one day in the pain center in Des Moines and 
 
         then checked herself out of the program.  Claimant is currently 
 
         not taking antidepressant medication.  She has been treated with 
 
         antidepressants in the past and was treated with them prior to 
 
         her injury.  She could not remember such treatment, however.
 
         
 
              Claimant denied that any physician had ever discussed either 
 
         kyphosis or lordosis as significant congenital defects which were 
 
         primary factors in her low back pain.
 
         
 
              A Manly clinic note of August 14, 1981 states that claimant 
 
         had long standing complaints of numbness in the left arm and low 
 
         back pain increasing in severity.  A September 29, 1981 note of 
 
         the clinic states claimant had a history of back trouble, quiet 
 
         at the present.  On January 25, 1982, claimant had discomfort 
 
         around her midback on both sides with a probable urinary 
 
         infection with some cystitis.  Claimant was also reported with 
 
         low back pain on February 8, 1982 with her examining doctor 
 

 
         
 
         
 
         
 
         LOTERBAUER V. CON AGRA, INC./ARMOUR FOOD COMPANY
 
         Page   5
 
         
 
         
 
         believing that vaginitis was the main cause of her symptoms.  
 
         Clinic notes from December 14, 1982 through October 3, 1983 
 
         indicate that claimant was having serious difficulties with legal 
 
         problems with one son and with her stepmother and was treated for 
 
         depression and anxiety.
 
         
 
              Dr. Wolbrink treated claimant for acute tunnel syndrome 
 
         secondary to tendonitis in her hands, work-related, from April 
 
         11, 1984 through June 13, 1984.  When Dr. Wolbrink saw claimant 
 
         on November 5, 1984, initially following her work injury, he 
 
         reported that her pain was predominantly in the paraspinal 
 
         muscles of the lumbar spine and the cervical spine but without 
 
         specific radiation into the arms or legs.  On physical 
 
         examination, claimant had somewhat diffused tenderness, 
 
         especially in the left trapezius.  Left bending and left rotation 
 
         increased pain in the cervical spine.  Claimant was limited about 
 
         Grade II in all directions of motion.  Claimant had tenderness 
 
         diffusely through the lumbar spine and only fair bending to 
 
         forward flexion or sideways.  She had fairly good extension.  
 
         Reflexes and strength were normal in the lower extremities with 
 
         straight leg raising negative, both sitting and supine.  X-rays 
 
         of the cervical spine showed slight narrowing.  X-rays of the 
 
         lumbar spine showed some narrowing of the L5 disc, but were 
 
         otherwise normal.  T. C. Mead, M.D., an associate of Dr. 
 
         Wolbrink, saw claimant on January 2, 1985.  Low back examination 
 
         showed quite a large amount of lumbar lordosis present.  Claimant 
 
         had tenderness along the spinus processes in the thoracolumbar 
 
         and lumbosacral junction.  Straight leg raising sitting was to 90 
 
         degrees against resistance without pain.  Supine straight leg 
 
         raising caused low back pain bilaterally but with no radicular 
 
         symptoms.  Claimant appeared to have an anxiety component in her 
 
         perception of her disease and was very weepy and nervous.  On 
 
         January 4, 1985, Dr. Wolbrink noted that claimant had had an 
 
         acute flareup as noted by Dr. Mead and that he was still not able 
 
         to really find an incident which caused the increase, but it 
 
         seemed to be more of a gradual thing.  On February 11, 1985, 
 
         Wolbrink stated that claimant seemed to be very fragile and 
 
         subject to recurrent episodes.  He said, "This may be just her 
 
         kyphosis, small frame and so forth .... She may have an 
 
         underlying form of 'fibrositis.'" After examining claimant on 
 
         February 15, 1985, R.,B. Trimble,M.D., stated the following:
 
         
 
              Although I cannot be absolutely positive she doesn't 
 
              have a small midline disc protrusion or other soft 
 
              tissue injury, the discomfort and tenderness are 
 
              clearly disproportionate to objective findings.  I 
 
              think this is probably more than just fibrositis, and 
 
              probably is a full blown depression.  Discussed this 
 
              with her, and I was really quite flat in stating I 
 
              thought this was depression....although there is a 
 
              small possibility that some of the discomfort was on an 
 
              organic basis, but the symptoms and findings were far 
 
              disproportionate to any imaginable objective lesion.  I 
 
              emphasized the medical model of depression and pointed 
 
              out that if this were depression she'd respond to 
 
              medication by definitely feeling better.  I encouraged 
 
              the idea that she definitely did want to go back to 
 
              work and that the depression was probably more 
 
              treatable than a serious arthritis.
 

 
         
 
         
 
         
 
         LOTERBAUER V. CON AGRA, INC./ARMOUR FOOD COMPANY
 
         Page   6
 
         
 
         
 
         
 
              On February 19, 1985, Dr. Trimble prescribed antidepressant 
 
         medication.
 
         
 
              On March 6, 1985, Dr. Wolbrink stated that he thought the 
 
         problem was more kyphosis and lordosis and not a significant 
 
         disc.  On March 8, 1985, Dr. Trimble indicated that claimant was 
 
         clearly depressed and under a lot of personal stress.  On June 
 
         10, 1985, Dr. Wolbrink stated that claimant had come in early 
 
         because of increasing problems and had had considerable 
 
         significant pain since June 5. Claimant was unaware of any change 
 
         in activities, although she had noticed she was quite weepy as 
 
         well during that time.  Pain was in the trapezius muscles as well 
 
         as in the lower back.
 
         
 
              On June 10, 1985, Dr. Wolbrink advised Maggie Covey, a 
 
         rehabilitation consultant, that pain clinic treatment would 
 
         probably be advantageous for claimant.  On July 17, 1985, Dr. 
 
         Wolbrink stated that he had advised Ms. Covey that claimant could 
 
         not handle work at Armour.  On September 16, 1985, Dr. Wolbrink 
 
         stated claimant should avoid lifting, excessive bending, and so 
 
         forth, and stated that claimant would likely need social security 
 
         class sedentary work with opportunity to change position from 
 
         continual sitting or standing.  On September 18, 1985, Dr. 
 
         Wolbrink indicated that claimant had a permanent impairment of 
 
         seven percent of the whole person due to her back injury and 
 
         subsequent problems.  On November 18, 1985, Dr. Wolbrink stated 
 
         that claimant still had some apparent discomfort with flexion and 
 
         extension in the lumbar spine and that this was also related to 
 
         her significant thoracic kyphosis.   On May 23, 1986, he opined 
 
         that claimant's healing period did not extend beyond November 27, 
 
         1985.  Dr. Wolbrink's notes through July 1986 are consistent with 
 
         his other medical notations.
 
         
 
              A Dr. Hachfield, a psychiatrist, examined claimant on June 
 
         13, 1985.  He described claimant as very upset, anxious, angry, 
 
         and frustrated that she cannot do things she loves to do such as 
 
         ride a motorcycle, go dancing, and other physical activities 
 
         which she stated her back pain prevented her from doing.  His 
 
         diagnosis was of a major depression, neurotic type, secondary to 
 
         stress from change in life style and chronic back pain.
 
         
 
              Charles S. McKenna, M.D., examined claimant at the Mayo 
 
         Clinic on July 11, 1985.  He noted that claimant closed her eyes 
 
         and sighed frequently during the examination.  She gave away 
 
         grossly and made no effort to exert force on muscle testing.  She 
 
         expressed equal indications of pain when her back was being 
 
         examined, when her pelvic area was being examined, and when her 
 
         abdomen was palpated.  Claimant had no abnormality in her 
 
         neurological examination, but had a slightly increased lumbar 
 
         lordosis. osteoporosis was noted and calcium supplements 
 
         suggested.  Electromyographic examination with nerve conduction 
 
         studies revealed no radiculopathy.  The overall clinic diagnosis 
 
         was of chronic back pain disorder with central pain amplification 
 
         and symptomatic gain with minimal osteoarthritis and with 
 
         osteoporosis.  In a letter of November 14, 1985, Dr. McKenna 
 
         indicated that claimant had no objective evidence of organic back 
 
         disease and, therefore, psychiatric consultation was indicated 
 
         for an understanding of the cause, nature, and impact of her back 
 

 
         
 
         
 
         
 
         LOTERBAUER V. CON AGRA, INC./ARMOUR FOOD COMPANY
 
         Page   7
 
         
 
         
 
         problem.
 
         
 
              Robert E. McCoy, M.D., examined claimant on January 3, 1986.  
 
         He noted that while walking on that date, claimant had tripped on 
 
         an object and fallen forward with a bruise on her right knee and 
 
         increased back pain.  Examination findings were consistent with 
 
         those on other examinations with Dr. McCoy noting that claimant 
 
         had quite prominent dorsal kyphosis and lumbar lordosis and 
 
         osteoporosis.  Dr. McCoy opined that claimant had a chronic 
 
         structural problem in her back with the dorsal kyphosis and 
 
         lumbar lordosis which was probably related to a chronic postural 
 
         problem and slightly to her osteoporosis.  He opined both would 
 
         cause back discomfort and that claimant's prior back,episodes in 
 
         1975 and 1973 would indicate considerable difficulty with her 
 
         back through the years.  In an April 14, 1986 report, Dr. McCoy 
 
         stated that he believed claimant was being dishonest with him 
 
         regarding her failure to recall her prior back condition.  He 
 
         further stated that with her considerable back deformity from the 
 
         kyphosis and lordosis, it would be expected that she would have a 
 
         high likelihood of symptomatic back (pain].  Hence, it was very 
 
         difficult for him to believe that her underlying back condition, 
 
         which also included the osteoporosis, was aggravated only by her 
 
         described work condition.
 
         
 
              James Blessman, M.D., examined claimant at the Mercy 
 
         Hospital Pain Clinic on July 29, 1985 and diagnosed chronic 
 
         myofascial low back strain with mild osteoarthritis and mild 
 
         osteoporosis and depression in association with chronic pain 
 

 
         
 
         
 
         
 
         LOTERBAUER V. CON AGRA, INC./ARMOUR FOOD COMPANY
 
         Page   8
 
         
 
         
 
         syndrome.  In a discharge summary of July 30, 1985, he noted that 
 
         after admission to the pain center, claimant had checked herself 
 
         out of the center on the first evening after deciding on her own 
 
         that she was not emotionally ready for comprehensive pain 
 
         management although he opined claimant could be helped by the 
 
         program.
 
         
 
              Joshua Kimelman, M.D., an orthopedist, examined claimant on 
 
         November 5, 1986.  His impression was chronic lumbosacral strain 
 
         without evidence of neurologic deficit.  He opined that claimant 
 
         had really done quite well as regards her back in that she was 
 
         currently working and performing work activity not requiring 
 
         bending, twisting, or lifting which activity was appropriate for 
 
         a five foot, fifty year old woman.  He was unwilling to assign a 
 
         permanency rating.
 
         
 
              Claimant testified that she continues to have real sharp
 
         
 
         pain which shoots down her low back and interferes with her 
 
         concentration.
 
         
 
              Claimant has completed the eleventh grade and has a nurse's 
 
         aide certification.  Both Maggie Covey and Richard Rauzi have 
 
         advised claimant that she should get her GED.  Claimant stated 
 
         that she attempted to work on the GED but that sitting to study 
 
         caused her such back pain that she had to quit classes and that 
 
         she, therefore, now studies at home.  Claimant opined that she 
 
         could not now do nurse's aide or factory work.  She is currently 
 
         employed as a companion for an elderly lady.  Claimant runs 
 
         errands, talks with the lady, and transports her different 
 
         places.  Claimant receives $5.00 per hour and works approximately 
 
         twenty hours per week at that job.  Claimant also tends bar on 
 
         Monday nights for a total of nine and one-half hours.  She agreed 
 
         that this involves some lifting and stated that on some Tuesdays 
 
         she cannot work her regular job on account of pain.  Claimant 
 
         nets approximately $100 per week on those two employments.
 
         
 
              Richard Rauzi, who holds a Masters Degree in rehabilitation 
 
         counseling and works for the Iowa Division of Vocational 
 
         Rehabilitation in its Mason City branch office, testified that he 
 
         worked with claimant from November 1985 through May 1986.  He 
 
         reported that claimant was found eligible for vocational 
 
         rehabilitation assistance as a result of three disabilities.  He 
 
         reported that a low back syndrome limits claimant to positions 
 
         where she would do no repeated bending, twisting, or lifting, 
 
         primarily sedentary occupations where she could change positions 
 
         as needed.  Carpal tunnel syndrome restricted claimant to 
 
         sedentary work involving very minimal movements of her wrists.  
 
         Major depression restricted claimant from work that involves 
 
         frequent contacts with the public.  He reported that Elworth 
 
         Karayusuf, M.D., a psychiatrist, evaluated claimant's medical 
 
         reports from Dr. Wolbrink and Dr. Hachfield  and opined claimant 
 
         was restricted to very simple work involving minimal contacts 
 
         with fellow workers and supervisors and somewhat simple in nature 
 
         that did not put emotional stress on her.  Claimant also needed a 
 
         job which required no decision making but rather following 
 
         instructions from others.  Rauzi opined that claimant could not 
 
         again do nurse's aide or factory work, but stated she could do 
 
         telemarketing and personal attendant work as she is doing now.  
 

 
         
 
         
 
         
 
         LOTERBAUER V. CON AGRA, INC./ARMOUR FOOD COMPANY
 
         Page   9
 
         
 
         
 
         He opined that jobs in which claimant could work would pay from 
 
         $3.35 to $5.00 per hour.  He agreed that claimant's bartending 
 
         activity was inconsistent with Dr. Karayusuf's occupational 
 
         recommendations for claimant.  Mr. Rauzi stated that he heard of 
 
         claimant's current job through a lead from his own secretary, 
 
         that claimant enthusiastically pursued that job and that he knew 
 
         of no other such jobs available.  In a report of April 10, 1986, 
 
         Mr. Rauzi opined that claimant's major depression had been more 
 
         vocationally limiting to her than her low back syndrome.  He 
 
         further stated that claimant's physical limitations would not 
 
         enable her to return to manual labor positions.
 
         
 
              Claimant testified that Maggie Covey, a rehabilitation 
 
         counselor with ConServ Company, advised her of a telemarketing 
 
         job.  Claimant reported she did not pursue that option in that 
 
         she did not feel that she would like that work.  Claimant has not 
 
         looked for worked other than her present employment.
 
         
 
              The balance of the evidence was reviewed and considered in 
 
         the disposition of this matter.
 
         
 
                        APPLICABLE LAW AND ANALYSIS
 
         
 
              Our first concern is whether a causal relationship exists 
 
         between claimant's claimed injury and any permanent partial 
 
         disability.
 
         
 
              The claimant has the burden of proving by a preponderance of 
 
         the evidence that the injury of October 27, 1984 is causally 
 
         related to the disability on which she now bases her claim. 
 
         Bodish v. Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867 (1965).  
 
         Lindahl v. L. 0. Boggs, 236 Iowa 296, 18 N.W.2d 607 (1945).  A 
 
         possibility is insufficient; a probability is necessary.  Burt v. 
 
         John Deere Waterloo Tractor Works, 247 Iowa 691, 73 N.W.2d 732 
 
         (1955).  The question of causal connection is essentially within 
 
         the domain of expert testimony.  Bradshaw v. Iowa Methodist 
 
         Hospital, 251 Iowa 375, 101 N.W.2d 167 (1960).
 
         
 
              However, expert medical evidence must be considered with all 
 
         other evidence introduced bearing on the causal connection.  
 
         Burt, 247 Iowa 691, 73 N.W.2d 732.  The opinion of experts need 
 
         not be couched in definite, positive or unequivocal language.  
 
         Sondag v. Ferris Hardware, 220 N.W.2d 903 (Iowa 1974).  However, 
 
         the expert opinion may be accepted or rejected, in whole or in 
 
         part, by the trier of fact.  Id. at 907.  Further, the weight to 
 
         be given to such an opinion is for the finder of fact, and that 
 
         may be affected by the completeness of the premise given the 
 
         expert and other surrounding circumstances.  Bodish, 257 Iowa 
 
         516, 133 N.W.2d 867.  See also Musselman v. Central Telephone 
 
         Co., 261 Iowa 352, 154 N. W, 2d 128 (1967).
 
         
 
              While a claimant is not entitled to compensation for the 
 
         results of a preexisting injury or disease, the mere existence at 
 
         the time of a subsequent injury is not a defense.  Rose v. John 
 
         Deere Ottumwa Works, 247 Iowa 900, 908, 76 N.W.2d 756, 760-761 
 
         (1956).  If the claimant had a preexisting condition or 
 
         disability that is aggravated, accelerated, worsened or lighted 
 
         up so that it results in disability, claimant is entitled to 
 
         recover.  Nicks v. Davenport Produce Co., 254 Iowa 130, 115 
 

 
         
 
         
 
         
 
         LOTERBAUER V. CON AGRA, INC./ARMOUR FOOD COMPANY
 
         Page  10
 
         
 
         
 
         N.W.2d 812, 815 (1962).
 
         
 
              Preponderance of the evidence means greater weight of 
 
         evidence; that is, the evidence of superior influence or 
 
         efficacy. Bauer v. Reavell, 219 Iowa 1212, 260 N.W. 39 (1935).
 
         
 
              Claimant has not shown a permanent disability resulting from 
 
         her work injury.  Initially, claimant's description of her 
 
         alleged work injury to her physicians are so varied that it is 
 
         difficult to ascertain whether a specific work incident actually 
 
         occurred or, if one did occur, the exact nature of that incident 
 
         and whether the incident was such that it could have produced 
 
         claimant's alleged problems.  Further, claimant had had 
 
         preexisting low back problems which she denied.  Claimant 
 
         apparently never revealed those problems to Dr. Wolbrink, the 
 
         only physician expressly relating her current problems with her 
 
         alleged work injury.  Without knowledge of claimant's prior 
 
         condition, Dr. Wolbrink could not properly assess whether 
 
         claimant's complaints related to her preexisting problems or to 
 
         the work injury or whether the work injury in some way aggravated 
 
         the preexisting problems revealed in claimant's pre-injury 
 
         medical records.  His opinion as to to causation is suspect for 
 
         that reason.  Furthermore, Dr. Wolbrink referred claimant to Dr. 
 
         Trimble, an arthritic specialist, because Dr. Wolbrink felt 
 
         little objective basis for claimant's symptoms existed and that, 
 
         therefore, evaluation for an arthritic condition was in order.  
 
         Dr. Trimble opined that claimant's condition resulted from a 
 
         "full blown depression." He initiated treatment with 
 
         antidepressant medication and not conventional low back 
 
         treatment.  Dr. McKenna, of the Mayo Clinic, noted, as had Dr. 
 
         Trimble, that claimant's problems had no apparent organic basis 
 
         and that, therefore, psychological evaluation was in order.  
 
         Claimant denied having had serious problems with depression in 
 
         the past.  Numerous medical notations from the Manly Clinic 
 
         suggests that that characterization is inaccurate, however.  
 
         Therefore, we accept Dr. McKenna's and Dr. Trimble's opinions 
 
         that claimant's psychiatric condition plays a significant role in 
 
         her back pain and that that condition and not her alleged work 
 
         injury is a basis for her current complaints.  Furthermore, in 
 
         1975, Dr. Miller had noted that claimant had mild thoracic 
 
         kyphosis.  Dr. Wolbrink again noted claimant's kyphosis when she 
 
         had an acute flare-up in January 1985 and in March 1985 stated 
 
         that her problem was perhaps her kyphosis and lordosis and not 
 
         any significant disc.  Dr. McCoy opined claimant had a chronic 
 
         structural problem in her back with a dorsal kyphosis and lumbar 
 
         lordosis and that given those problems it would be expected she 
 
         would have a high likelihood of symptomatic back pain.  He stated 
 
         that given those underlying back conditions including claimant's 
 
         osteoporosis, which was also documented at the Mayo Clinic, he 
 
         found it very difficult to believe that claimant's back was 
 
         aggravated only by her described work condition.  The above 
 
         physicians' references to claimant's osteoporosis, mild 
 
         osteoarthritis, depression, and kyphosis and lordosis further 
 
         undermine claimant's claim that any current disability relates to 
 
         her alleged work injury. (we note that Dr. McCoy used the phrase 
 
         "was aggravated only" by claimant's work condition.  While that 
 
         phrase might suggest that the work could have been a proximate 
 
         cause of any claimed current permanent disability, we do not 
 
         believe that the evidence as a whole supports that conclusion.) 
 

 
         
 
         
 
         
 
         LOTERBAUER V. CON AGRA, INC./ARMOUR FOOD COMPANY
 
         Page  11
 
         
 
         
 
         Dr. Kimelman declined to assign claimant a permanency rating on 
 
         her back because she was functioning at a fairly high level given 
 
         her age -and height.  We note that Dr. Wolbrink described 
 
         claimant as fragile, and as having a small frame, and as having 
 
         flare-ups without specific causation.  Those flareups generally 
 
         occurred at times of increased emotional stress or increased 
 
         emotional affect on claimant's part.  That fact would further 
 
         suggest that claimant's mental state together with her structural 
 
         back problems and her mild osteoarthritis and osteoporosis 
 
         creates her back complaints.  The greater weight of medical 
 
         evidence does not support claimant's claim of a causal 
 
         relationship between her alleged permanent back condition and her 
 
         stated work injury.
 
         
 
              Because claimant has not established the necessary causal 
 
         connection between her work injury and any current disability, we 
 
         do not reach the issue of benefit entitlement.  We note, however, 
 
         that claimant's own vocational expert testified that he believed 
 
         claimant's depressive disorder was a greater handicap to her 
 
         employability than was her back condition.  That expert testimony 
 
         suggests that given claimant's current employment as as companion 
 
         and a bartender, her industrial disability related to her back 
 
         condition would be modest.
 
         
 
                               FINDINGS OF FACT
 
         
 
              WHEREFORE, IT IS FOUND:
 
         
 
              Claimant had preexisting problems with depression prior to 
 
         October 27, 1984 and has had problems with depression since that 
 
         date.
 
         
 
              Claimant had treatment for back conditions in 1973 and 1975 
 
         and had recurrent back complaints prior to October 27, 1984 which 
 
         she did not remember at deposition and of which she generally did 
 
         not inform her physicians.
 
         
 
              Claimant gave her physicians varying medical histories 
 
         concerning her stated work injury.
 
         
 
              It is uncertain whether claimant experienced a specific work 
 
         incident with onset of pain or, if so, the exact nature of any 
 
         specific work incident or how any such work incident or 
 
         claimant's normal work conditions might have produced her back 
 
         complaints.
 
         
 
              Claimant has thoracic kyphosis and lumbar lordosis which 
 
         preexisted October 27, 1984.
 
         
 
              Claimant has osteoporosis and mild osteoarthritis.
 
         
 
              Claimant's physicians have found little organic basis for 
 
         her back complaints.
 
         
 
              Claimant's back complaints relate to her lumbar lordosis, 
 
         thoracic kyphosis, osteoporosis, and mild osteoarthritis.
 
         
 
              Claimant's back complaints apparently flare up at times with 
 
         emotional stress or at times when claimant's emotional affect is 
 
         high.
 

 
         
 
         
 
         
 
         LOTERBAUER V. CON AGRA, INC./ARMOUR FOOD COMPANY
 
         Page  12
 
         
 
         
 
         
 
              Claimant's back complains relate to her depressive 
 
              disorder.
 
         
 
              Claimant was not a credible witness.
 
         
 
              Claimant's alleged work injury is not a cause of her stated 
 
         back complaints.
 
         
 
                               CONCLUSIONS OF LAW
 
         
 
              THEREFORE, IT IS CONCLUDED:
 
         
 
              Claimant has not established that any injury sustained 
 
         October 27, 1984 is the cause of her claimed permanent 
 
         disability.
 
         
 
                                  ORDER
 
         
 
              THEREFORE, IT IS ORDERED:
 
              
 
              Claimant take nothing further from this proceeding.
 
         
 
              Claimant and defendants share equally the costs of this 
 
         proceeding pursuant to Industrial Services Rule 343-4.33, 
 
         formerly Industrial Commissioner Rule 500-4.33.
 
         
 
         
 
              Signed and filed this 16th day of February, 1987.
 

 
         
 
         
 
         
 
         LOTERBAUER V. CON AGRA, INC./ARMOUR FOOD COMPANY
 
         Page  13
 
         
 
         
 
         
 
         
 
         
 
         
 
                                           HELEN JEAN WALLESER
 
                                           DEPUTY INDUSTRIAL COMMISSIONER
 
         
 
         
 
         Copies to:
 
         
 
         Mr. Andrew H. Torgerson
 
         Attorney at Law
 
         608 Brick & Tile Bldg.
 
         Mason City, Iowa 50401
 
         
 
         Mr. Mark Wilson
 
         Attorney at Law
 
         30 4th St NW
 
         Mason City, Iowa 50401
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                                      1108.50
 
                                                      Helen Jean Walleser
 
                                                      Filed 2-16-87
 
         
 
                   BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         _________________________________________________________________
 
         
 
         BONNIE L. LOTERBAUER,
 
         
 
              Claimant,
 
                                                 File No. 780519
 
         VS.
 
         
 
         CON AGRA, INC./ARMOUR
 
                                               A R B I T R A T I 0 N
 
         FOOD COMPANY,
 
                                                 D E C I S I 0 N
 
              Employer,
 
         
 
         and
 
         
 
         THE TRAVELERS,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         _________________________________________________________________
 
         
 
         1108.50
 
         
 
              Claimant who was not found to be a credible witness did not 
 
         establish that back complaints resulted from stated work injury.  
 
         Claimant had preexisting kyphosis and lordosis, osteoarthritis 
 
         and osteoporosis and preexisting depression.  Physicians found 
 
         little organic basis for her complaints.
 
 
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            MICHAEL L. PICKETT,           :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :      File No. 780565
 
            WILSON FOODS CORPORATION,     :
 
                                          :     A R B I T R A T I O N
 
                 Employer,                :
 
                 Self-Insured,            :       D E C I S I O N
 
                 Defendant.               :
 
                                          :
 
            ___________________________________________________________
 
            
 
                              statement of the case
 
            
 
                 This case came on for hearing on February 20, 1991, at 
 
            Storm Lake, Iowa.  This is a proceeding in arbitration 
 
            wherein claimant seeks compensation for additional permanent 
 
            partial disability benefits as a result of an injury 
 
            occurring on November 8, 1984.  The record in the proceeding 
 
            consists of the testimony of claimant and Mark Nehring; 
 
            joint exhibits 1 through 37; and defendant's exhibit A.
 
            
 
                                      issue
 
            
 
                 The issue for resolution is the extent of claimant's 
 
            industrial disability.
 
            
 
                                 findings of fact
 
            
 
                 The undersigned deputy having heard the testimony and 
 
            considered all the evidence, finds that:
 
            
 
                 Claimant is a 40-year-old high school graduate who also 
 
            attended a six week course at the law enforcement academy 
 
            and, additionally, obtained an associate science degree in 
 
            criminal justice at a community college.
 
            
 
                 Claimant related his work history prior to becoming an 
 
            employee with defendant employer on May 7, 1979.  This prior 
 
            history involves several jobs including, but not necessarily 
 
            limited to, cooking at a supper club, working in a cannery, 
 
            working in a factory assembling air conditioners, working in 
 
            a machine shop, doing bookkeeping, serving as a police 
 
            officer or deputy sheriff in various towns, being a 
 
            salesman, doing electrical work and doing maintenance work.
 
            
 
                 Claimant related he had no physical problems before May 
 
            7, 1979, and took a physical upon beginning employment with 
 
            defendant employer.  Claimant described his job with 
 
            defendant employer which involved various departments, all 
 
            requiring use of his hands, arms and body.  Claimant related 
 
            his medical problems and said his back condition became so 
 
            bad in late 1987 that he could hardly walk.  He then had 
 
            back surgery on December 16, 1987.  When he returned to 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            work, claimant continued in his sanitation job.  Claimant 
 
            finally had to leave this job due to his physical problems 
 
            and bid into the pork cure department-press room.  He said 
 
            this job was easier than his former sanitation job.  At this 
 
            particular job, he worked in the smokehouse.
 
            
 
                 Claimant acknowledged his current job pays 40 cents per 
 
            hour more but he contends he is, in fact, making 25 percent 
 
            less income as he does not get any overtime or weekend work.  
 
            He indicated he still has problems with numbness in his legs 
 
            and pain in the small of his back.
 
            
 
                 Claimant testified he is unable to do the things he 
 
            could do prior to his February 8, 1984 injury, such as:  
 
            plumbing, electrical and car maintenance work, or helping 
 
            neighbors.  He said he now hires it done.  Claimant said he 
 
            purchased a better riding and balanced motorcycle than he 
 
            had due to his medical condition.  He rides to and from work 
 
            on the motorcycle.
 
            
 
                 Claimant said he compared his salary to the salary of 
 
            Mark Nehring to determine the 25 percent income differential 
 
            he previously referred to.  He admitted his current job has 
 
            ten brackets, five of which claimant has reached which is an 
 
            additional 5 cents per hour for each bracket.  He said he 
 
            had only two brackets in his former sanitation job.
 
            
 
                 Claimant acknowledged his 1987 income was $26,883 for 
 
            48 weeks of work as he was off some during this time due to 
 
            his injury.  Claimant's 1990 income was $26,366 for 52 weeks 
 
            work for a gross weekly wage of $507.04.  He indicated Mr. 
 
            Nehring's income for the same period was $29,729.33.  When 
 
            claimant was asked where the 25 percent less income is 
 
            shown, he replied he could have made $36,000 that year in 
 
            the sanitation department but doesn't have a W-2 to show.
 
            
 
                 Mark Nehring testified he has worked eight years in the 
 
            sanitation department of defendant employer.  He was present 
 
            when claimant testified.  He said overtime was very frequent 
 
            along with working Saturdays and Sundays on a regular basis 
 
            in 1990.  He indicated he had regular weeks of 55 hours per 
 
            week.  Nehring admitted that his 1990 income was the most he 
 
            has ever made while working for defendant employer.  Nehring 
 
            acknowledged his job is similar to claimant's as to pay and 
 
            that 1990 was an exceptional year for being able to work 
 
            overtime.  Nehring indicated that defendant employer evens 
 
            up the overtime hours.  A person cannot elect to work more 
 
            than another if the employee already has more than his share 
 
            of hours compared to other employees.  A senior person does 
 
            not get all the overtime hours.
 
            
 
                 Claimant's wife testified that claimant cannot move 
 
            furniture or do repair work and cannot bowl now due to his 
 
            injury.
 
            
 
                 Joint Exhibit 36 and Defendant's Exhibit A give income 
 
            W-2 information that claimant was using to compare his wages 
 
            with that of Mr. Nehring.
 
            
 
                 Claimant's medical records on December 16, 1987 (Jt. 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            Ex. 10), show claimant had a laminectomy and diskectomy at 
 
            L4-5 left.
 
            
 
                 On November 17, 1988, Walter O. Carlson, M.D., an 
 
            orthopedic surgeon, gave claimant a 10 percent permanent 
 
            partial impairment to his body as a whole based on 
 
            claimant's range of motion and the fact he had a disc 
 
            removed (Jt. Ex. 20 and 22).
 
            
 
                 It appears claimant was sent by his attorney to Pat 
 
            Luse, D.C., for an evaluation on December 10, 1990.  Dr. 
 
            Luse opined claimant had a 15 percent permanent partial 
 
            impairment to his body as whole and reasons his 5 percent 
 
            impairment increase over Dr. Carlson, who performed 
 
            claimant's back surgery, was due to his contention that the 
 
            residuals were not rated by Dr. Carlson (Jt. Ex. 27).  Dr. 
 
            Luse opined claimant should be restricted to no more than 25 
 
            pounds or less and no twisting.
 
            
 
                 All healing period and medical benefits have been paid.  
 
            The only issue is the extent of claimant's industrial 
 
            disability.  Defendant acknowledges it owed claimant a 10 
 
            percent industrial disability and, in fact, have paid the 50 
 
            weeks of permanent partial disability benefits.
 
            
 
                 Claimant appears to be basing his main thrust for 
 
            greater industrial disability benefits by contending he has 
 
            a 25 percent greater loss of income after his injury than he 
 
            had at his job before his injury.  Loss of income is one 
 
            criteria in determining industrial disability.  After the 
 
            close of the hearing, claimant's attorney was asked where 
 
            the evidence shows a 25 percent decrease in income.  
 
            Claimant's attorney backed off and said it would be 
 
            approximately 10 percent.  The undersigned cannot determine 
 
            from where claimant is coming regarding the 10 percent when 
 
            all the circumstances and proper comparisons are made.  
 
            There appears to be various factors that can cause one's 
 
            income to fluctuate from year to year.  In comparing the 
 
            sanitation department income opportunity with claimant's 
 
            current smokehouse department income, after considering all 
 
            the unusual and out of the ordinary factors in the equation 
 
            that may or may not occur in a particular year, the evidence 
 
            indicates that claimant's November 8, 1984 job in the 
 
            sanitation department and his current job are in the same or 
 
            similar income category.
 
            
 
                 Claimant does have a permanent impairment to his body 
 
            as a whole.  Claimant had a laminectomy and diskectomy L4-5 
 
            left.  Claimant does have closed to him, because of this 
 
            injury        and surgery, certain job opportunities with 
 
            defendant employer or with some other employer.
 
            
 
                 Taking into consideration claimant's age, medical 
 
            history, impairment, nature of his injury, education and all 
 
            those other criteria in determining a person's industrial 
 
            disability, the undersigned finds claimant has a 15 percent 
 
            industrial disability.
 
            
 
                 There are no other issues to be determined as both 
 
            parties agreed claimant has been paid all healing period and 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            medical benefits to date.
 
            
 
                                conclusions of law
 
            
 
                 If claimant has an impairment to the body as a whole, 
 
            an industrial disability has been sustained.  Industrial 
 
            disability was defined in Diederich v. Tri-City Railway Co., 
 
            219 Iowa 587, 593, 258 N.W.2d 899, 902 (1935) as follows: 
 
            "It is therefore plain that the legislature intended the 
 
            term `disability' to mean `industrial disability' or loss of 
 
            earning capacity and not a mere `functional disability' to 
 
            be computed in the terms of percentages of the total 
 
            physical and mental ability of a normal man."
 
            
 
                 The opinion of the supreme court in Olson v. Goodyear 
 
            Service Stores, 255 Iowa 1112, 1121, 125 N.W.2d 251 (1963), 
 
            cited with approval a decision of the industrial 
 
            commissioner for the following proposition:
 
            
 
                    Disability * * * as defined by the Compensation 
 
                 Act means industrial disability, although 
 
                 functional disability is an element to be 
 
                 considered....In determining industrial 
 
                 disability, consideration may be given to the 
 
                 injured employee's age, education, qualifications, 
 
                 experience and his inability, because of the 
 
                 injury, to engage in employment for which he is 
 
                 fitted. * * * *
 
            
 
                                      order
 
            
 
                 THEREFORE, it is ordered:
 
            
 
                 That defendant shall pay unto claimant seventy-five 
 
            (75) weeks of permanent partial disability benefits at the 
 
            rate of two hundred fifty-nine and 79/100 dollars ($259.79), 
 
            beginning December 10, 1988.
 
            
 
                 That defendants shall pay accrued weekly benefits in a 
 
            lump sum and shall receive credit against the award for 
 
            weekly benefits previously paid.  The parties stipulated 
 
            that defendant has already paid all healing period benefits 
 
            and fifty (50) weeks of permanent partial disability 
 
            benefits at the rate of two hundred fifty-nine and 79/100 
 
            dollars ($259.79).
 
            
 
                 That defendant shall pay interest on benefits awarded 
 
            herein as set forth in Iowa Code section 85.30.
 
            
 
                 That defendant shall pay the costs of this action, 
 
            pursuant to rule 343 IAC 4.33.
 
            
 
                 That defendant shall file an activity report upon 
 
            payment of this award as required by this agency, pursuant 
 
            to rule 343 IAC 3.1.
 
            
 
                 Signed and filed this ____ day of March, 1991.
 
            
 
            
 
            
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
                                          ______________________________
 
                                          BERNARD J. O'MALLEY
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies to:
 
            
 
            Mr Harry H Smith
 
            Attorney at Law
 
            P O Box 1194
 
            Sioux City IA 51102
 
            
 
            Mr David L Sayre
 
            Attorney at Law
 
            223 Pine St
 
            P O Box 535
 
            Cherokee IA 51012
 
            
 
            
 
                 
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                      5-1803
 
                      Filed March 8, 1991
 
                      Bernard J. O'Malley
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            MICHAEL L. PICKETT,           :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :      File No. 780565
 
            WILSON FOODS CORPORATION,     :
 
                                          :     A R B I T R A T I O N
 
                 Employer,                :
 
                 Self-Insured,            :       D E C I S I O N
 
                 Defendant.               :
 
                                          :
 
            _______________________________________________________
 
            
 
            5-1803
 
            Claimant awarded 15% industrial disability.
 
            
 
            
 
 
        
 
 
 
 
 
                       BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
        
 
        
 
        WILLIAM LLOYD TUTTLE,
 
        
 
            Claimant,
 
        
 
        vs.                               File No. 780967
 
        
 
        STANNARDS, INC.,                    A P P E A L
 
        
 
            Employer,                    D E C I S I O N
 
        
 
        and
 
        
 
        FARMERS INSURANCE GROUP,
 
        
 
            Insurance Carrier,
 
            Defendants.
 
        
 
        
 
        
 
                                 STATEMENT OF THE CASE
 
        
 
        Claimant appeals from an arbitration decision awarding permanent 
 
        partial disability benefits.
 
        
 
        The record on appeal consists of the transcript of the 
 
        arbitration proceeding; joint exhibit l; and claimant's exhibits 
 
        2 through 6. Both parties filed briefs on appeal.
 
        
 
                                      ISSUES
 
        
 
        Claimant states the following issues on appeal: 
 
        
 
        I. Whether the deputy commissioner erred in computing the rate of 
 
        compensation due the claimant through the computation of gross 
 
        earnings and spendable earnings.
 
        
 
        II. Whether the deputy commissioner erred in failing to make a 
 
        finding as to the claimant's rate for healing period benefits.
 
        
 
        III. Whether the deputy commissioner erred in its conclusions of 
 
        law that claimant is entitled to permanent partial disability 
 
        benefits in the amount of 25%.
 
        
 
                                 REVIEW OF THE EVIDENCE
 
        
 
        The arbitration decision adequately and accurately reflects the 
 
        pertinent evidence and it will not be set forth herein. In 
 
        addition to the deputy's review of the evidence, the following 
 
        evidence is noted:
 
        
 
        TUTTLE V. STANNARDS, INC.
 
        Page 2
 
        
 
        
 
        William R. Pontarelli, M.D., recommended that claimant not return 
 
        to his employment as a truck driver, stated that claimant's prior 
 
        motorcycle accident did not contribute to his present impairment, 
 
        and that claimant's weight gain affected the amount of pain 
 
        claimant experienced but did not affect his impairment. Claimant 
 
        testified that his manic-depressive disorder did not affect his 
 

 
        
 
 
 
 
 
        school or work, but did make him nervous. David E. Booth, Jr., 
 
        an accountant for Stannards, Inc., indicated that claimant was no 
 
        longer working for defendant Stannards, Inc., because of his 
 
        injury.
 
        
 
                                 APPLICABLE LAW
 
        
 
        If claimant has an impairment to the body as a whole, an 
 
        industrial disability has been sustained. Industrial disability 
 
        was defined in Diederich v. Tri-City Railway Co., 219 Iowa 587, 
 
        593, 258 N.W. 899, 902 (1935) as follows: "It is therefore plain 
 
        that the legislature intended the term 'disability' to mean 
 
        'industrial disability' or loss of earning capacity and not a 
 
        mere 'functional disability' to be computed in the terms of 
 
        percentages of the total physical and mental ability of a normal 
 
        man."
 
        
 
        The opinion of the supreme court in Olson v. Goodyear Service 
 
        Stores, 255 Iowa 1112, 125 N.W.2d 251 (1963) at 1121, cited with 
 
        approval a decision of the industrial commissioner for the 
 
        following proposition:
 
        
 
        Disability * * * as defined by the Compensation Act means 
 
        industrial disability, although functional disability is an 
 
        element to be considered . . . In determining industrial 
 
        disability, consideration may be given to the injured employee's 
 
        age, education, qualifications, experience and his inability, 
 
        because of the injury, to engage in employment for which he is 
 
        fitted. * * * *
 
        
 
        
 
        In Parr v. Nash Finch Co., (Appeal Decision, October 31, 1980) 
 
        the industrial commissioner, after analyzing the decisions of 
 
        McSpadden v. Big Ben Coal Co., 288 N.W.2d 181 (Iowa 1980) and 
 
        Blacksmith v. All-American, Inc., 290 N.W.2d 348 (Iowa 1980), 
 
        stated:
 
        
 
        Although the court stated that they were looking for the 
 
        reduction in earning capacity it is undeniable that it was the 
 
        "loss of earnings" caused by the job transfer for reasons related 
 
        to the injury that the court was indicating justified a finding 
 
        of "industrial disability." Therefore, if a worker is placed in a 
 
        position by his employer after an injury to the body as a whole 
 
        and because of the injury which results
 
        
 
        TUTTLE V. STANNARDS, INC.
 
        Page 3
 
        
 
        
 
        in an actual reduction in earning, it would appear this would 
 
        justify an award of industrial disability. This would appear to 
 
        be so even if the worker's "capacity" to earn has not been 
 
        diminished.
 
        
 
        For example, a defendant employer's refusal to give any sort of 
 
        work to a claimant after he suffers his affliction may justify an 
 
        award of disability. McSpadden, 288 N.W.2d 181.
 
        
 
        Similarly, a claimant's inability to find other suitable work 
 
        after making bona fide efforts to find such work may indicate 
 
        that relief would be granted. McSpadden, 288 N.W.2d 181.
 
        
 
        Functional disability is an element to be considered in 
 
        determining industrial disability which is the reduction of 
 
        earning capacity, but consideration must also be given to the 
 
        injured employee's age, education, qualifications, experience and 
 

 
        
 
 
 
 
 
        inability to engage in employment for which he is fitted. Olson 
 
        v. Goodyear Service Stores, 255 Iowa 1112, 125 N.W.2d 251 (1963) 
 
        Barton v. Nevada Poultry, 253 Iowa 285, 110 N.W.2d
 
        
 
        
 
        A finding of impairment to the body as a whole found by a medical 
 
        evaluator does not equate to industrial disability. This is so as 
 
        impairment and disability are not synonymous. Degree of 
 
        industrial disability can in fact be much different than the 
 
        degree of impairment because in the first instance reference is 
 
        to loss of earning capacity and in the later to anatomical or 
 
        functional abnormality or loss. Although loss of function is to 
 
        be considered and disability can rarely be found without it, it 
 
        is not so that a degree of industrial disability is 
 
        proportionally related to a degree of impairment of bodily 
 
        function.
 
        
 
        Factors to be considered in determining industrial disability 
 
        include the employee's medical condition prior to the injury, 
 
        immediately after the injury, and presently; the situs of the 
 
        injury, its severity and the length of healing period; the work 
 
        experience of the employee prior to the injury, after the injury 
 
        and potential for rehabilitation; the employee's qualifications 
 
        intellectually, emotionally and physically: earnings prior and 
 
        subsequent to the injury; age; education; motivation; functional 
 
        impairment as a result of the injury; and inability because of 
 
        the injury to engage in employment for which the employee is 
 
        fitted. Loss of earnings caused by a job transfer for reasons 
 
        related to the injury is also relevant. These are matters which 
 
        the finder of fact considers collectively in arriving at the 
 
        determination of the degree of industrial disability.
 
        
 
        There are no weighting guidelines that indicate how each of the 
 
        factors are to be considered. There are no guidelines
 
        
 
        TUTTLE V. STANNARDS, INC.
 
        Page 4
 
        
 
        
 
        which give, for example, age a weighted value of ten percent of 
 
        the total value, education a value of fifteen percent of total, 
 
        motivation - five percent; work experience - thirty percent, etc. 
 
        Neither does a rating of functional impairment directly correlate 
 
        to a degree of industrial disability to the body as a whole. In 
 
        other words, there are no formulae which can be applied and then 
 
        added up to determine the degree of industrial disability. It 
 
        therefore becomes necessary for the deputy or commissioner to 
 
        draw upon prior experience, general and specialized knowledge to 
 
        make the finding with regard to degree of industrial disability. 
 
        See Peterson v. Truck Haven Cafe, Inc., (Appeal Decision, 
 
        February 28, 1985); Christensen v. Hagen, Inc., (Appeal Decision, 
 
        March 26, 1985).
 
        
 
        Iowa Code section 85.36 (1983) states in part:
 
        
 
        The basis of compensation shall be the weekly earnings of the 
 
        injured employee at the time of the injury. Weekly earnings means 
 
        gross salary, wages, or earnings of an employee to which such 
 
        employee would have been entitled had he worked the customary 
 
        hours for the full pay period in which he was injured, as 
 
        regularly required by his employer for the work or employment for 
 
        which he was employed, computed or determined as follows and then 
 
        rounded to the nearest dollar:
 
        
 
        . . . .
 
        
 

 
        
 
 
 
 
 
        6. In the case of an employee who is paid on a daily, or hourly 
 
        basis, or by the output of the employee, the weekly earnings 
 
        shall be computed by dividing by thirteen the earnings, not 
 
        including overtime or premium pay, of said employee earned in the 
 
        employ of the employer in the last completed period of thirteen 
 
        consecutive calendar weeks immediately preceding the injury.
 
        
 
        Iowa Code section 85.61(12) (1983) states:
 
        
 
        "Gross earnings" means recurring payments by employer to the 
 
        employee for employment, before any authorized or lawfully 
 
        required deduction or withholding of funds by the employer, 
 
        excluding irregular bonuses, retroactive pay, overtime, penalty 
 
        pay, reimbursement of expenses, expense allowances, and the 
 
        employer's contribution for welfare benefits.
 
        
 
        Iowa Code section 85.34(1) (1983) states:
 
        
 
        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
 
        
 
        TUTTLE V. STANNARDS, INC.
 
        Page 5
 
        
 
        
 
        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.
 
        
 
                                      ANALYSIS
 
        
 
        The analysis of the evidence in regards to the rate issue by the 
 
        deputy industrial commissioner is adopted. The arbitration 
 
        decision determined the rate based on a gross earnings of 
 
        $9,863.15 for the 13 weeks prior to claimant's injury. Claimant 
 
        on appeal asserts that the proper gross earnings amount for this 
 
        period is $10,742.13, pursuant to Exhibit 5. The discrepancy is 
 
        in the amount of $878.98, which is the corrected accrual income 
 
        amount for the week of May 16, 1984 to May 22, 1984. It appears 
 
        that this amount was omitted from the calculation of rate, and 
 
        therefore claimant's income for the 13 weeks prior to the date of 
 
        injury is determined to be $10,742.13. All other provisions of 
 
        the deputy's analysis in regards to rate are adopted herein, and 
 
        claimant's rate of compensation is determined to be $417.15.
 
        
 
        Claimant's second issue on appeal concerns the rate for the 
 
        healing period, which was stipulated to be from June 12, 1984 
 
        until August 16, 1985. Claimant maintains the deputy erred in not 
 
        setting forth the rate of compensation for the healing period. 
 
        Section 85.34(1) provides that the employer shall pay 
 
        compensation during the healing period and makes reference to 
 
        section 85.37. Neither section states that a separate or 
 
        different rate of compensation will be used during the healing 
 
        period. Claimant's rate of compensation for the healing period 
 
        is $417.15 per week.
 
        
 
        The analysis of the evidence in conjunction with the law by the 
 
        deputy in regards to claimant's third issue, the extent of 
 
        industrial disability, is adopted.
 

 
        
 
 
 
 
 
        
 
                                 FINDINGS OF FACT
 
        
 
        1. Claimant received an injury to his back on June 12, 1984 
 
        arising out of and in the course of his employment with 
 
        defendant.
 
        
 
        2. Claimant underwent surgery for his back and has received two 
 
        ratings of impairment of 20 percent of the body as a whole.
 
        
 
        3. Claimant has a lifting restriction of 20 pounds.
 
        
 
        4. Claimant's healing period is from June 12, 1984 until August 
 
        16, 1985.
 
        
 
        TUTTLE V. STANNARDS, INC.
 
        Page 6
 
        
 
        
 
        5. Claimant was 33 years old at the time of the hearing and has a 
 
        high school education.
 
        
 
        6. Claimant cannot return to his duties as a truck driver due to 
 
        his impairment.
 
        
 
        7. Claimant's employer did not rehire claimant due to his 
 
        impairment.
 
        
 
        8. Claimant's prior motorcycle accident did not result in 
 
        impairment.
 
        
 
        9. Claimant's manic-depressive disorder does not contribute to 
 
        his industrial disability.
 
        
 
        10. Claimant is enrolled in a course of college study designed to 
 
        prepare him for a career in food service work as a chef or 
 
        restaurant manager.
 
        
 
        11. Claimant has experienced a loss of earnings as a result of 
 
        his injury of June 12, 1984.
 
        
 
        12. Claimant's expected earnings as a chef or restaurant manager 
 
        are less than claimant earned as a truck driver.
 
        
 
        13. Claimant was paid according to his output.
 
        
 
        14. Claimant's gross earnings for the 13 weeks prior to his 
 
        injury was $10,742.13.
 
        
 
        15. Claimant paid his own expenses for food, motels and labor out 
 
        of his gross earnings and was not compensated for these items by 
 
        his employer.
 
        
 
        16. Claimant was single and without born children on the date of 
 
        his injury.
 
        
 
        17. Claimant's rate of weekly compensation is $417.15.
 
        
 
        18. As a result of his injury on June 12, 1984, claimant has an 
 
        industrial disability of 25 percent.
 
        
 
                                 CONCLUSIONS OF LAW
 
        
 
        Claimant's rate of weekly compensation is $417.15.
 
        
 
        As a result of his injury on June 12, 1984, claimant has an 
 

 
        
 
 
 
 
 
        industrial disability of 25 percent.
 
        
 
        WHEREFORE, the decision of the deputy is affirmed and modified.
 
        
 
        TUTTLE V. STANNARDS, INC.
 
        Page 7
 
        
 
        
 
                                      ORDER
 
        
 
        THEREFORE, it is ordered:
 
        
 
        That defendants are to pay unto claimant healing period benefits 
 
        from June 12, 1984 until August 16, 1985 at the rate of four 
 
        hundred seventeen and 15/100 dollars ($417.15) per week.
 
        
 
        That defendants are to pay unto claimant one hundred twenty-five 
 
        (125) weeks of permanent partial disability benefits at a rate of 
 
        four hundred seventeen and 15/100 dollars ($417.15) per week from 
 
        August 17, 1985.
 
        
 
        That defendants shall pay accrued weekly benefits in a lump sum.
 
        
 
        That defendants shall be given credit for any benefits previously 
 
        paid.
 
        
 
        That defendants shall pay interest on weekly benefits awarded 
 
        herein as set forth in Iowa Code section 85.30.
 
        
 
        That defendants are to pay the costs of this action.
 
        
 
        That defendants shall file claim activity reports as required by 
 
        this agency pursuant to Division of Industrial Services Rule 
 
        343-3.1(2).
 
        
 
        Signed and filed this 19th day of August, 1988.
 
        
 
        
 
        
 
                                            DAVID E. LINQUIST
 
                                         INDUSTRIAL COMMISSIONER