BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
        
 
        
 
        LARRY J. BEARCE,
 
        
 
            Claimant,
 
                                                         File No. 782809
 
        vs.
 
                                                         A P P E A L
 
        FMC CORPORATION,
 
                                                         D E C I S I O N
 
            Employer,
 
            Self-Insured,                            F I L E D
 
            Defendant.
 
                                                     MAR 17 1989
 
        
 
                                           IOWA INDUSTRIAL COMMISSIONER
 
        
 
        
 
                             STATEMENT OF THE CASE
 
        
 
             Claimant appeals from an arbitration decision awarding 
 
             permanent partial disability benefits as the result of an alleged 
 
             injury on August 31, 1984. Defendant cross-appeals.
 
        
 
            The record on appeal consists of the transcript of the 
 
        arbitration hearing; joint exhibits 1 through 11; claimant's 
 
        exhibits A, B, and C; and defendant's exhibits 1 and 2. Both 
 
        parties filed briefs on appeal. Claimant filed a reply brief.
 
        
 
                                      ISSUES
 
             
 
             Claimant states the following issues on appeal:
 
             
 
              I. The Deputy erred in reducing the claimant's industrial 
 
             disability by use of apportionment relating to a 
 
             pre-existing condition.
 
             
 
              II. The Deputy was in error in establishing the claimant's 
 
             industrial disability at ten percent.
 
             
 
             III. Application of the Odd-Lot Doctrine.
 
             
 
             Defendant states the following additional issue on 
 
             cross-appeal:
 
             
 
             I. Did the deputy err in awarding healing period benefits 
 
             to October 22, 1986 when Claimant's treating doctor released 
 
             him from treatment on May 22, 1985 and issued a disability 
 
             rating?
 
             
 
             
 
                                 REVIEW OF THE EVIDENCE
 
        
 
             The arbitration decision adequately and accurately reflects 
 
             the pertinent evidence and it will not be totally set forth 
 
             herein.
 
        
 
             Briefly stated, claimant worked for defendant FMC from 1968 
 
             until October 1984, in various capacities, including overhead 
 
             crane operator and lathe operator. Claimant's duties required 
 

 
        
 
 
 
 
 
             him to perform repetitive lifting, bending, twisting, stooping, 
 
             and prolonged standing. In 1977 claimant was involved in a car 
 
             accident which resulted in physician imposed restrictions, but 
 
             these restrictions were later removed.
 
        
 
            Claimant experienced low back pain, neck, and shoulder pain 
 
        following his prior car accident, in which he was struck from the 
 
        rear. As a result of that accident, claimant was referred by his 
 
        family doctor to William J. Robb, M.D., an orthopedic surgeon, 
 
        and Earl Y. Bickel, M.D. Claimant underwent a myelogram in 
 
        December 1978, by Eugene E. Herzberger, M.D., which revealed mild 
 
        problems at the L4-5 level. When claimant continued to be unable 
 
        to return to work, he was referred to a low back institute and 
 
        was treated by Alexander Lifson, M.D., an orthopedic surgeon.
 
        
 
            Claimant then underwent a decompression laminectomy in the 
 
        low back in May of 1980. Dr. Lifson rated claimant's permanent 
 
        physical impairment after the surgery as 20 percent to the lumbar 
 
        spine as a result of the automobile accident. Claimant was also 
 
        given permanent restrictions of only occasional bending, 
 
        squatting, crawling, climbing, reaching above the shoulder, 
 
        kneeling, and lifting not more than 25 pounds.
 
        
 
            Claimant was also diagnosed in 1981 as having chronic pain 
 
        syndrome following a MMPI psychological test. In March of 1981, 
 
        claimant was placed on light duty work at FMC. In March of 1982, 
 
        claimant struck his head on a gear box at work and injured his 
 
        neck. Claimant was treated for cervical strain by James R. 
 
        LaMorgese, M.D.
 
        
 
            Claimant's position was eliminated and claimant was laid off 
 
        in June of 1982. Claimant testified that he worked on improving 
 
        his physical condition and received a release from his family 
 
        doctor stating "all previous weight lifting restrictions have 
 
        been discontinued. His activities are at his discretion." 
 
        Claimant thereafter returned to his former job as drill press 
 
        operator and worked for approximately 11 months before the injury 
 
        of August 31, 1984.
 
        
 
            On August 31, 1984, claimant was working as a drill press 
 
        operator. Claimant was walking backwards and tripped on a skid, 
 
        falling backwards. Claimant caught himself by grasping the 
 
        control box he was operating. Claimant testified he twisted his 
 
        back in doing so, and felt an immediate onset of low back pain 
 
        that persisted through the weekend, which was Labor Day weekend. 
 
        Upon returning to work, claimant again experienced pain and 
 
        reported this to the plant nurse. Claimant stated that two 
 
        supervisors witnessed the incident. However, the record showed 
 
        that one of the supervisors denied witnessing the incident and 
 
        the other characterized the incident as minor.
 
        
 
             Claimant also operated his own monument business, and on the 
 
             Monday holiday following the Friday injury, claimant used a pry 
 
             bar to lift a monument and placed planks weighing 50 to 60 pounds 
 
             to unload a small skid loader. Claimant stated in his deposition 
 
             that he did not have any pain while working on the monument, but 
 
             later stated in his deposition that he had a burning sensation 
 
             all through the weekend.
 
        
 
            Claimant was treated by William R. Basler, M.D., on 
 
        September 4, 1984. Dr. Basler diagnosed muscle strain, and 
 
        referred claimant to James R. LaMorgese, M.D., a neurosurgeon, 
 
        who had previously treated claimant for low back and neck pain. 
 
        Claimant reported low back pain radiating into his legs and feet 
 
        to Dr. LaMorgese. Claimant also told Dr. LaMorgese that he did 
 
        not have pain over the Labor Day weekend. Dr. LaMorgese placed 
 

 
        
 
 
 
 
 
        claimant on light duty, and claimant performed light duty for FMC 
 
        for five weeks until being laid off because of the lack of light 
 
        duty work.
 
        
 
            Claimant was referred to Martin Roach, M.D. Dr. Roach 
 
        recommended that claimant not return to repetitive work. Dr. 
 
        LaMorgese also referred claimant to Dr. Lifson again, and Dr. 
 
        Lifson performed surgery on claimant. Claimant's complaints at 
 
        this time were headaches, neck pain, mid-back pain and lower back 
 
        pain. CT scans revealed no new developments since 1980. 
 
        Claimant also utilized a TENS unit. On May 22, 1985, Dr. Lifson 
 
        opined that claimant's condition remained unchanged.
 
        
 
            In August of 1985, claimant consulted John R. Walker, M.D., 
 
        an orthopedic surgeon. Dr. Walker opined that claimant's low 
 
        back condition was caused by scarring from his previous injury, 
 
        and from the August 31, 1984 back strain at work. Dr. Walker 
 
        recommended fusion surgery.
 
        
 
            Claimant then sought a second opinion from Earl Bickel, 
 
        M.D., who recommended that a back brace be attempted prior to 
 
        surgery. Claimant underwent surgery by Dr. Walker in August, 
 
        1985. Claimant testified that the surgery reduced his lower back 
 
        pain but did not eliminate it. Dr. Walker stated that claimant 
 
        reached maximum healing from the surgery on October 22, 1986. 
 
        However, Dr. Walker felt that claimant still had signs of disc 
 
        rupture at the C-5 level and that claimant probably could not 
 
        return to work as a machinist. In March of 1987, Dr. Walker 
 
        stated that claimant had improved in the low back and his leg 
 
        pain had decreased, but claimant's cervical condition was still 
 
        failing to improve. A myelogram showed cervical disc problems 
 
        and claimant underwent fusion surgery in May of 1987.
 
        
 
             In April of 1986, Dr. Lifson expressed disagreement with Dr. 
 
             Walker's opinion on the need for surgery, stating that although 
 
             claimant was probably a candidate for surgery, he would have 
 
             conducted additional tests first. However, Dr. Lifson 
 
             acknowledged that claimant's surgery by Dr. Walker had improved 
 
             his condition.
 
        
 
            Dr. Walker stated that claimant reached maximum healing from 
 
        the surgery on October 22, 1986, but continued to experience low 
 
        back pain and signs of rupture at the C-5 level. Dr. Walker felt 
 
        that claimant could not return to work as a machinist.
 
        
 
            In March of 1987, Dr. Walker felt claimant was doing better 
 
        but still failed to improve in the cervical area. A myelogram 
 
        showed continuing neck problems, and Dr. Walker performed fusion 
 
        surgery on claimant's neck in May of 1987.
 
        
 
            Claimant stated that he has difficulty standing for 
 
        prolonged periods of time due to hip and lower back pain; he 
 
        cannot sit for longer than 20 to 30 minutes due to leg pain; 
 
        cannot lift more than 20 pounds without pain; cannot walk more 
 
        than two blocks without pain; and has a physician-imposed 
 
        restriction not to bend, stoop or twist. Claimant states he is 
 
        never pain free, and must lie on the floor two to three times per 
 
        day. Claimant states he can no longer work in his farm or 
 
        monument business as he did before, and cannot climb a ladder or 
 
        return to his prior work as an overhead crane operator.
 
        
 
            Dr. Lifson assigned claimant a permanent partial impairment 
 
        rating of 20 percent of the body as a whole, with 5 percent as a 
 
        result of his August 31, 1984 injury. After the surgery by Dr. 
 
        Walker, Dr. Lifson raised claimant's 20 percent rating of 
 
        impairment to 30 percent. Dr. Lifson did not rate claimant's 
 

 
        
 
 
 
 
 
        neck condition. Dr. Walker assigned claimant's neck condition a 
 
        permanent partial impairment rating of 6 percent of the body as a 
 
        whole, and claimant's lumbar spine condition 24 percent of the 
 
        body as a whole, 10 percent of which pre-existed the August 31, 
 
        1984 injury. All of claimant's doctors restrict claimant to 
 
        light duty work.
 
        
 
            Dr. Walker opined that claimant's surgery was necessary due 
 
        to additional scarring from the August 31, 1984 injury even 
 
        though the fall on that date was minor and even though claimant 
 
        had previous scarring and prior surgery.
 
        
 
            Claimant's past employment history consisted of trucking, 
 
        which involved heavy lifting and prolonged sitting, and as a 
 
        machinist at FMC, which required heavy lifting, repetitive 
 
        bending, stooping and prolonged standing. Claimant's earnings at 
 
        the time of the August 31, 1984 injury were $12.00 per hour.
 
        
 
            Claimant testified that after his 1977 auto accident, he 
 
        left the heavy labor of his farming operation to other family 
 
        members, and that the heavy labor of his monument business is 
 
        done by family members since his August 1984 injury.
 
        
 
             Claimant was 48 years of age at the time of the hearing, and 
 
             had a high school education. Claimant has not applied for work 
 
             since leaving FMC. Richard Bliss of Illinois Job Service stated 
 
             in February 1987, that claimant is not employable, and cannot be 
 
             retrained due to his chronic pain. However, Bliss did not 
 
             perform any testing of claimant but instead relied upon a brief 
 
             interview. Allen Vikdal, rehabilitation consultant, testified 
 
             that claimant has transferable skills such as machine operation, 
 
             trucking, management and planning, and supervisory skills, 
 
             especially if claimant would complete a pain management program 
 
             he was enrolled in. Vikdal acknowledged that claimant would have 
 
             to commute to find employment.
 
        
 
                                 APPLICABLE LAW
 
        
 
             The citations of law in the arbitration decision are 
 
             appropriate to the issues and the evidence.
 
        
 
                                      ANALYSIS
 
        
 
             On appeal, claimant urges that the deputy's determination of 
 
             10 percent industrial disability for his back condition is 
 
             inadequate. The deputy's determination that claimant failed to 
 
             show a causal connection between his alleged neck condition and 
 
             his injury of August 31, 1984, is not raised as an issue on 
 
             appeal.
 
        
 
            Claimant has ratings of permanent partial impairment based 
 
        on his present back condition of 24 percent of the body as a 
 
        whole by Dr. Walker, and 30 percent of the body as a whole by Dr. 
 
        Lifson. Subsequent to his injury of August 31, 1984, claimant has 
 
        restrictions against repetitive work and against bending, 
 
        stooping or twisting. Claimant stated he cannot stand for 
 
        prolonged periods of time, sit more than one-half hour, or lift 
 
        more than 20 pounds without pain. Claimant has also undergone 
 
        surgery to his back subsequent to his injury of August 31, 1984. 
 
        Claimant is restricted to light duty work.
 
        
 
            Claimant's physical impairment is only one of many factors 
 
        used to determine industrial disability. Claimant is 48 years 
 
        old with a high school education. His work experience is limited 
 
        to physical labor. Vocational rehabilitation testimony on 
 
        claimant's employability is conflicting, but shows that claimant 
 

 
        
 
 
 
 
 
        may have some transferable skills within his restrictions. 
 
        Claimant has experienced a loss of earnings as a result of his 
 
        August 31, 1984, injury.
 
        
 
            Claimant's motivation is also a relevant factor. Claimant 
 
        has not sought substitute employment. Claimant argues that he 
 
        was unable to seek employment because claimant was still healing 
 
        from his neck injury even at the time of hearing. However, there 
 
        is no showing by way of medical evidence that claimant's neck 
 
        condition prevented him from seeking employment.
 
        
 
             Based on these and all other appropriate factors for 
 
             determining industrial disability, claimant is determined to have 
 
             an industrial disability of 35 percent.
 
        
 
            Claimant also urges that the deputy's apportionment of a 
 
        portion of claimant's present disability due to his prior 1977 
 
        car accident was improper. Claimant clearly had significant 
 
        restrictions after his 1977 automobile accident. Although the 
 
        lifting restrictions were later removed by his family doctor, Dr. 
 
        Lifson, an orthopedic surgeon, did not alter his original 
 
        restrictions on claimant imposed in March of 1981. The fact that 
 
        claimant was able to return to work and perform the duties of his 
 
        job is relevant to a determination of what his disability was 
 
        prior to the present injury, but it is not in and of itself 
 
        determinative of that question.
 
        
 
            It is also noted that claimant had undergone back surgery 
 
        prior to his injury of August 31, 1984. Regardless of claimant's 
 
        ability to return to work after that surgery, his prior back 
 
        surgery undoubtedly caused some degree of permanent physical 
 
        impairment.
 
        
 
            Prior to his August 31, 1984 work injury, Dr. Lifson had 
 
        assigned claimant a rating of permanent physical impairment of 20 
 
        percent to the lumbar spine as a result of the automobile 
 
        accident and imposed a lifting restriction of not more than 25 
 
        pounds. Subsequent to the August 31, 1984 work injury, Dr. Lifson 
 
        rated claimant's permanent physical impairment as 20 percent of 
 
        the body as a whole, with 5 percent as a result of claimant's 
 
        August 31, 1984 work injury. On April 1, 1986, Dr. Lifson revised 
 
        this rating to 30 percent of the body as a whole, due to the 
 
        subsequent surgery performed by Dr. Walker.
 
        
 
            Dr. Walker rated claimant's condition as 24 percent of the 
 
        body as a whole, with 10 percent preexisting claimant's August 
 
        31, 1984 injury. Claimant thus has medical ratings of permanent 
 
        physical impairment of 5 percent and 10 percent of the body as a 
 
        whole for his back condition prior to his August 31, 1984 work 
 
        injury. Dr. Lifson did not rate claimant's neck condition and 
 
        Dr. Walker rated claimant's neck condition separately, and thus 
 
        no apportionment for that condition need be made from the 35 
 
        percent industrial disability previously determined.
 
        
 
            Claimant's preexisting back condition, however, does need to 
 
        be apportioned from his present industrial disability. Claimant 
 
        was able to perform the duties of his job, but nevertheless had 
 
        prior ratings of 5-10 percent of the body as a whole permanent 
 
        physical impairment and a prior back surgery. Claimant also had 
 
        prior restrictions which were later removed by one of his doctors 
 
        but not by another. It is determined that claimant had a 
 
        preexisting industrial disability of 25 percent.
 
        
 
             As a third issue on appeal, claimant urges that he falls 
 
             under the odd-lot category. However, as noted above claimant did 
 
             not establish the threshold requirement of showing that he had 
 

 
        
 
 
 
 
 
             sought employment in the job market. Claimant justifies this by 
 
             stating that he was unable to apply for work due to the alleged 
 
             fact that he is still recovering from his neck condition.
 
        
 
            However, even if it is assumed that claimant should not be 
 
        required to show an attempt to find employment, it is also noted 
 
        that the greater weight of the vocational rehabilitation evidence 
 
        shows that there are some jobs claimant could perform in the job 
 
        market. Claimant is not an odd-lot employee.
 
        
 
            Finally, defendants on appeal urge that the deputy 
 
        improperly determined the end of the healing period. Defendants' 
 
        argument is premised on a rejection of Dr. Walker's conclusion 
 
        that further surgery was needed. Dr. Walker clearly establishes 
 
        claimant's maximum healing as occurring on October 22, 1986. Dr. 
 
        Walker's determination that surgery was necessary is undisputed 
 
        in the record and has been shown to have improved claimant's 
 
        condition. Claimant's healing period ended October 22, 1986.
 
        
 
                                 FINDINGS OF FACT
 
        
 
             1. Claimant was an employee of defendant employer on August 
 
             31, 1984.
 
        
 
            2. On August 31, 1984, claimant received an injury arising 
 
        out of and in the course of his employment with defendant.
 
        
 
            3. Claimant injured his back in an automobile accident in 
 
        1977.
 
        
 
            4. As a result of the automobile accident, claimant 
 
        underwent back surgery and received a permanent physical 
 
        impairment rating of 20 percent of the body as a whole, as well 
 
        as restrictions on lifting, bending, stooping and twisting by Dr. 
 
        Lifson, an orthopedic surgeon.
 
        
 
            5. Claimant's lifting restriction was later removed by 
 
        claimant's family doctor.
 
        
 
            6. Subsequent to his injury, claimant again underwent back 
 
        surgery, and received a rating of permanent physical impairment 
 
        of 24 percent of the body as a whole with 10 percent attributable 
 
        to the 1977 car accident from Dr. Walker; and a rating of 
 
        permanent physical impairment of 30 percent of the body as a 
 
        whole, with 5 percent attributable to the 1977 car accident, by 
 
        Dr. Lifson.
 
        
 
             7. Claimant's surgery by Dr. Walker subsequent to his 
 
             August 31, 1984 injury was to correct scarring and aggravation of 
 
             claimant's back condition as a result of his August 31, 1984 
 
             fall.
 
        
 
            8. Claimant reached maximum healing on October 22, 1986.
 
        
 
            9. Claimant was 47 years old at the time of the hearing and 
 
        had a high school education, with work experience limited to 
 
        physical labor.
 
        
 
            10. Subsequent to his injury of August 31, 1984, claimant 
 
        has a loss of earning capacity of 35 percent.
 
        
 
            11. Prior to his injury of August 31, 1984, claimant had a 
 
        loss of earning capacity of 25 percent.
 
        
 
            12. Claimant is not an odd-lot employee.
 
        
 

 
        
 
 
 
 
 
                                 CONCLUSIONS OF LAW
 
        
 
             Subsequent to his injury of August 31, 1984, claimant has an 
 
             industrial disability of 35 percent.
 
        
 
            Prior to his injury of August 31, 1984, claimant had an 
 
        industrial disability of 25 percent.
 
        
 
            As a result of his injury of August 31, 1984, claimant has 
 
        an industrial disability of 10 percent.
 
        
 
            Claimant is not an odd-lot employee.
 
        
 
            Claimant's healing period ended October 22, 1986.
 
        
 
            THEREFORE, the decision of the deputy is affirmed and 
 
        modified.
 
        
 
                                      ORDER
 
        
 
             THEREFORE, it is ordered:
 
        
 
            That defendant is to pay unto claimant healing period 
 
        benefits from October 15, 1984 until October 22, 1986, at the 
 
        rate of three hundred twenty-one and 10/100 dollars ($321.10) per 
 
        week.
 
        
 
            That defendant is to pay unto claimant fifty (50) weeks of 
 
        permanent partial disability benefits at a rate of three hundred 
 
        twenty-one and 10/100 dollars ($321.10) per week from October 23, 
 
        1986.
 
        
 
            That defendant shall pay accrued weekly benefits in a lump 
 
        sum.
 
        
 
             That defendant shall pay interest on unpaid weekly benefits 
 
             awarded herein as set forth in Iowa Code section 85.30.
 
        
 
            That defendant is to be given credit for benefits previously 
 
        paid.
 
        
 
            That the costs of the appeal are to be shared equally.
 
        
 
            That defendant 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 17th day of March, 1989.
 
        
 
        
 
        
 
        
 
        
 
                                              DAVID E. LINQUIST
 
                                           INDUSTRIAL COMMISSIONER
 
        
 
        Copies To:
 
        
 
        Mr. Thomas M. Wertz
 
        Attorney at Law
 
        4089 21st Ave. SW, Suite 114
 
        Cedar Rapids, Iowa 52404
 
        
 
        Mr. James E. Shipman
 
        Attorney at Law
 
        1200 MNB Building
 

 
        
 
 
 
 
 
        Cedar Rapids, Iowa 52401
 
        
 
        
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                    BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         LARRY J. BEARCE,
 
         
 
              Claimant,
 
                                                  FILE NO. 782809
 
         VS.
 
                                                A R B I T R A T I 0 N
 
         FMC CORPORATION,
 
                                                   D E C I S I O N
 
              Employer,
 
              Self-Insured,
 
              Defendant.
 
         
 
         
 
         
 
                              STATEMENT OF THE CASE
 
         
 
              This is a proceeding in arbitration brought by Larry J. 
 
         Bearce, claimant, against FMC Corporation, a self-insured 
 
         employer (hereinafter referred to as FMC), for workers' 
 
         compensation benefits as a result of an alleged injury on August 
 
         31, 1984.  On September 3, 1987, a hearing was held on claimant's 
 
         petition and the matter was considered fully submitted at the 
 
         close of this hearing.
 
         
 
              The parties have submitted a prehearing report of contested 
 
         issues and stipulations which was approved and accepted as a part 
 
         of the record of this case at the time of hearing.  Oral 
 
         testimony was received during the hearing from claimant and the 
 
         following witnesses: Kathryn Bearce, Richard Bliss, William 
 
         Holtz, Allen Vikdal and Cynthia Gratias.  The exhibits received 
 
         into the evidence at the hearing are listed in the prehearing 
 
         report.
 
         
 
              The prehearing report contains the following stipulations:
 
         
 
              1.  Claimant seeks temporary total disability or healing 
 
         period benefits from october 15, 1984 and claimant has been off 
 
         work since that time;
 
         
 
              2.  If an injury is found to cause permanent disability, the 
 
         disability is an industrial disability to the body as a whole;
 
         
 
              3.  Claimant's rate of compensation in the event of an 
 
         award of weekly benefits from this proceeding shall be $321.10; 
 
         and,
 
         
 
              4.  With reference to the requested medical expenses, it 
 
         was stipulated that the provider of the services would testify 
 

 
         
 
         
 
         
 
         BEARCE V. FMC CORPORATION
 
         Page   2
 
         
 
         
 
         that the fees were reasonable and defendant is not offering 
 
         contrary evidence.  It was also stipulated that the medical 
 
         expenses are
 
         connected to treatment for a neck and back condition upon which 
 
         claimant is now basing his claim but that the causal connection 
 
         of these expenses to a work injury remains an issue to be 
 
         decided.  It was disputed that the medical treatment offered by 
 
         John Walker, M.D., was reasonable and necessary treatment of a 
 
         work injury.
 
         
 
              At hearing the defendant objected to claimant raising any 
 
         issue of entitlement to workers' compensation benefits for a 
 
         neck or cervical back condition.  Defendant argued that 
 
         claimant initially did not complain of neck problems, only low 
 
         back and leg problems and received treatment only for those 
 
         problems.  It was not until the latter part of 1986 and early 
 
         1987 that claimant began to receive anything more than 
 
         conservative treatment for the neck problem allegedly caused by 
 
         the August, 1984, work injury.  Also, claimant in his 
 
         deposition in April, 1987, denied that he was claiming benefits 
 
         for this neck condition.  Defendant stated that they are not 
 
         prepared for any issue dealing with a neck condition.
 
         
 
              Although defendant's objections may have merit, the matter 
 
         is moot as the undersigned has not found a causal connection 
 
         between the neck condition set forth in the record of this case 
 
         and anything that may have happened on August 31, 1984, the 
 
         subject of this proceeding.
 
         
 
              Claimant filed a motion to amend the prehearing report 
 
         subsequent to the hearing to submit additional travel expenses 
 
         for reimbursement under Iowa Code section 85.27.  Defendant 
 
         filed a resistance to this motion.  Division of Industrial 
 

 
         
 
         
 
         
 
         BEARCE V. FMC CORPORATION
 
         Page   3
 
         
 
         
 
         Services Rule 343-4.31 states that no evidence shall be taken 
 
         after the hearing.  In light of this rule, claimant's 
 
         application must be and is denied.
 
         
 
              Claimant's attorney stated at the start of the hearing in 
 
         this case that he questioned the assignment of this matter for 
 
         hearing at the time of the prehearing conference because 
 
         claimant is still recovering from the alleged work related back 
 
         condition and recent surgery performed on his neck.  However, 
 
         it should be noted that this matter was set for hearing at the 
 
         personal demand of claimant for action of his claim which was 
 
         expressed to this agency and also through the Iowa governor's 
 
         office.
 
         
 
                                    ISSUES
 
         
 
              The parties submitted the following issues for determination 
 
         in this proceeding:
 
         
 
              I.  Whether claimant received an injury arising out of and 
 
         in the course of his employment;
 
         
 
             II.  Whether there is a causal relationship between the
 
         work injury and the claimed disability;
 
         
 
             III.  The extent of claimant's entitlement to weekly 
 
         disability benefits;
 
         
 
              IV.  The extent of claimant's entitlement to medical 
 
         benefits under Iowa Code section 85.27; and,
 
         
 
               V.  The extent of claimant's entitlement to penalty 
 
         benefits under Iowa Code section 86.13.
 
         
 
                             SUMMARY OF THE EVIDENCE
 
         
 
              The following is a summary of evidence presented in this 
 
         case.  For the sake of brevity, only the evidence most pertinent 
 
         to this decision is discussed.  Whether or not specifically 
 
         referred to in this summary, all of the evidence received at the 
 
         hearing was considered in arriving at this decision.
 
         
 
              There was little dispute among the parties as to the nature 
 
         of claimant's employment at FMC.  Claimant testified that he was 
 
         employed by FMC from 1968 until October, 1984.  Claimant stated 
 
         that he worked at the same manufacturing facilities in Cedar 
 
         Rapids, Iowa since March, 1966.  Originally the facilities were 
 
         owned by Link Belt Speeder Corporation who sold out to FMC 
 
         Corporation in 1968.  Claimant initially was a sweeper performing 
 
         janitorial work but later became an overhead crane operator.  
 
         Eventually, claimant moved into the machine shop operating 
 
         various drill and lathe machines.  Although each job varied as to 
 

 
         
 
         
 
         
 
         BEARCE V. FMC CORPORATION
 
         Page   4
 
         
 
         
 
         physical requirements, most involved at least some repetitive 
 
         heavy lifting, bending, twisting, and stooping along with 
 
         prolonged standing.
 
         
 
              Following a car accident in 1977 which precipitated 
 
         physician imposed work restrictions, claimant returned to the 
 
         overhead crane operator job.  Claimant testified that this job 
 
         was eventually abolished in the latter part of 1983.  Claimant 
 
         then obtained a removal of his work restrictions from his family 
 
         physician allowing him to return to the machine shop.  At the 
 
         time of the alleged injury in this case, claimant was performing 
 
         a job called a radial drill operator.  Claimant said at hearing 
 
         that he was required to stand on this job and occasionally lift 
 
         up to 70 pounds.  For weights above 70 pounds or other heavy 
 
         objects, a crane operated by hand was available for his use.
 
         
 
              Claimant testified that he injured his neck and low back on 
 
         Friday, August 31, 1984, while at work.  He testified that at the 
 
         time of the injury he was performing the drill press operator job 
 
         requiring him to operate an overhead crane from floor level using 
 
         a control box suspended down from the crane.  This control box 
 
         hung approximately four feet off the floor.  Claimant stated that 
 
         while he was walking backwards at a time he was operating the 
 
         crane, he tripped on a skid and fell backwards, catching himself 
 
         by grasping the control box before hitting the floor.  Claimant 
 
         said at the hearing that he twisted his back during this fall and 
 
         immediately felt a burning sensation in his low back which 
 
         persisted not only that day but over the ensuing Labor Day 
 
         weekend.  Claimant stated that upon his arrival at work the 
 
         following Tuesday morning, he immediately experienced severe pain 
 
         in his low back after getting out of his car.  Claimant could 
 
         barely walk and reported to the nurse upon entering the plant.  
 
         Claimant then reported the events of the previous Friday to 
 
         company officials.
 
         
 
              Claimant stated at hearing that he did not report the fall 
 
         at the time because he did not think the injury was "a big deal." 
 
         However, claimant admitted that he actually attempted some sort 
 
         of self-traction after the August 31, 1984 incident using a 
 
         device attached to his back to hang off the floor to help 
 
         alleviate some of the discomfort.  Claimant testified that his 
 
         condition deteriorated on August 31, 1984 with increasing pain in 
 
         his back and legs.  Claimant states that he had to take it easy 
 
         over the weekend.
 
         
 
              Claimant testified that on Monday, upon the insistence of a 
 
         customer, he reset a grave monument that had been overturned by 
 
         vandals.  Claimant and his wife operated a monument business in 
 
         addition to his employment at FMC.  Claimant stated that he used 
 
         a skid steer, a four wheel drive self-propelled hydraulically 
 
         controlled end loader, to lift and reset the monument.  He stated 
 
         he had to initially use a pry bar to place a two-by-four under 
 
         the monument.  He then used the skid steer to push the 
 
         two-by-four under the monument in order to attach the lifting 
 
         strap.  Claimant also had to load and unload the skid steer for 
 
         this job and position the two ramps used to drive the skid steer 
 
         onto the trailer which weighed approximately 60 pounds each.
 
         
 
              Defendant contends that if he injured himself at all, 
 

 
         
 
         
 
         
 
         BEARCE V. FMC CORPORATION
 
         Page   5
 
         
 
         
 
         claimant's injury on August 31, 1984 was very minor.  Claimant 
 
         contends that two supervisors observed the fall incident.  
 
         William Holtz, the personnel director at FMC at the time of the 
 
         alleged injury testified that he talked to both supervisors.  
 
         According to Holtz, one denied observing the incident and the 
 
         other indicated that the incident did not appear to be serious 
 
         enough to cause injury.  Direct testimony was not obtained from 
 
         any of these supervisors.  Histories of claimant's complaints 
 
         contained in medical reports from treating physicians after the 
 
         incident are inconsistent.  Claimant was initially treated by 
 
         William R. Basler, M.D., on September 4, 1984.  Dr. Basler 
 
         reports that claimant said he was "okay" over the Labor Day 
 
         weekend.  Dr. Basler diagnosed muscle strain and referred 
 
         claimant to James R. LaMorgese, M.D., a neurosurgeon.  Dr. 
 
         LaMorgese had seen claimant previously for low back and neck 
 
         pain.  Dr. LaMorgese diagnosed muscle strain "in a setting of a 
 
         patient who has had previous problems with back surgery.O  Dr. 
 
         LaMorgese testified in his deposition that claimant complained to 
 
         him of low back pain radiating into his legs and feet.  Dr. 
 
         LaMorgese reports that claimant told him that he felt 
 
         "tightening" after the fall incident and experienced no 
 
         difficulty with pain over the Labor Day weekend until returning 
 
         to work on Tuesday.  In his deposition taken in December, 1985, 
 
         claimant testified while handling the ramps for the skid steer on 
 
         Labor Day weekend he could not recall any burning sensation in 
 
         his back.  Later on in the deposition claimant indicated that the 
 
         burning sensation was continuous over the weekend.  The first 
 
         reference to the term "burning sensation" in the medical reports 
 
         from physicians in the record is a report from Alexander Lifson, 
 
         M.D., an orthopedic surgeon at the Sister Kenny Institute in 
 
         Minneapolis, Minnesota dated April 15, 1985.  This was also the 
 
         first time there was any mention by claimant of chronic neck and 
 
         shoulder pain following the injury.
 
         
 
              Dr. LaMorgese placed claimant on light duty following his 
 
         first examination of claimant and claimant remained on light duty 
 
         work at FMC for five weeks.  FMC then laid claimant off stating 
 
         that there was no more light duty work available in the plant.  
 
         Claimant testified that his condition has deteriorated during 
 
         this time and since that time.
 
         
 
              There is no question from claimant's testimony and the 
 
         medical reports presented that claimant had very serious problems 
 
         with low back pain, leg pain and pain in the cervical neck and 
 
         shoulder area prior to the events of August 31, 1984.  In 
 
         December 1, 1977, claimant testified that he was involved in a 
 
         motor vehicle accident in which he was struck from the rear and 
 
         pushed off the roadway while traveling home from work.  Although 
 
         the medical records show that he was released from the hospital 
 
         emergency care after the accident without evidence of injury, 
 
         claimant experienced low back pain, neck and shoulder pain, 
 
         dizziness and nausea after he returned to work the following day.  
 
         Claimant was initially treated conservatively by his family 
 
         physician but later was referred to an orthopedic surgeon, W. J. 
 
         Robb, M.D., and Earl Bickel, M.D., who likewise treated 
 
         claimant's symptoms of low back and neck pain conservatively.
 
         
 
              After a few unsuccessful attempts to return to work over the 
 
         next several months and upon continued persistent pain 
 

 
         
 
         
 
         
 
         BEARCE V. FMC CORPORATION
 
         Page   6
 
         
 
         
 
         complaints, claimant was admitted to the hospital in December, 
 
         1978, by Eugene Hertzberger, M.D., and a myelogram was performed 
 
         which revealed only mild problems at the L4-5 level of claimant's 
 
         lower spine.
 
         
 
              Claimant briefly returned again to work but upon continued 
 
         low back pain he was eventually referred in February of 1980 by 
 
         his treating physicians to the Sister Kenny Low Back Institute in 
 
         Minneapolis, Minnesota.  At this center he was treated and
 
         underwent therapy under the direction of Alexander Lifson, M.D., 
 
         an orthopedic surgeon at the institute.  Claimant received 
 
         initial conservative care but eventually underwent surgery in 
 
         May, 1980, called a decompression laminotomy in the low back.  
 
         According to the reports of Dr. Lifson, after receiving pain 
 
         therapy treatment following the surgery, claimant responded quite 
 
         well to the surgery by the spring of 1981.  However, he still 
 
         suffered disability which Dr. Lifson opined as constituting a 20 
 
         percent disability to the lumbar spine as a result of the auto 
 
         accident.  Dr. Lifson on March 3, 1981, permanently restricted 
 
         claimant's physical activities to only occasional bending, 
 
         squatting, crawling, climbing, reaching above shoulder, kneeling, 
 
         and lifting under 24 pounds.  Claimant was to never lift or carry 
 
         over 25 pounds.
 
         
 
              It should be noted that claimant, during his recovery from 
 
         the 1980 surgery by Dr. Lifson, developed chronic pain syndrome 
 
         behavior which was diagnosed and treated in 1981 at the Sister 
 
         Kenny Institute Pain Center following a MMPI psychological test 
 
         which indicated the following:
 
         
 
              GREAT NUMBER OF CHRONIC PHYSICAL COMPLAINTS AND 
 
              PREOCCUPATION WITH BODILY FUNCTIONS.  MUCH FUNCTIONAL 
 
              PAIN, FATIGUE AND WEAKNESS LIKELY.  VERY IMMATURE, 
 
              DEMANDING AND EGOCENTRIC.  FIXED NOTIONS AS TO ORGANIC 
 
              BASIS FOR COMPLAINTS.  THESE COMPLAINTS, WHICH PROBABLY 
 
              FIT NO ORGANIC PATTERN ARE LIKELY BE PRESENTED IN A 
 
              HISTRIONIC MANNER.  LACKS INSIGHT AND IS UNLIKELY TO 
 
              ACCEPT A PSYCHOLOGICAL EXPLANATION OF SYMPTOMS.  EVEN 
 
              THOUGH PATIENTS WITH THIS TYPE OF PROFILE ARE PRONE TO 
 
              DEVELOP FUNCTIONAL COMPLAINTS THE POSSIBILITY OF 
 
              ORGANIC DISEASE CANNOT BE EXCLUDED.
 
              SEVERELY DEPRESSED, WORRYING, AND PESSIMISTIC.  
 
              PROBABLE FEELINGS OF UNREALITY.  BIZARRE OR CONFUSED 
 
              THINKING AND CONDUCT.
 
              HAVE STRANGE ATTITUDES AND FALSE BELIEFS.  PROBABLY 
 
              FEELS SEVERELY ALIENATED AND WITHDRAWN ....
 
         
 
                In March, 1981, claimant could not return to the machine 
 
         shop and drill press operator job under the restrictions imposed 
 
         by Dr. Lifson and he was placed on a light duty job as an 
 
         overhead crane operator.  Claimant testified that he also at that 
 
         time severely restricted his prior extensive farming operation as 
 
         a result of his disability following the auto accident.  Claimant 
 
         was then laid off in June, 1982, because the overhead crane 
 
         operator job was abolished and there was no other light duty 
 
         available in the plant.  Claimant then stated that he attempted 
 
         and successfully built up his physical. condition and returned to 
 
         his family physician, John Meyer, D.O., who issues the following 
 
         statement to FMC:
 

 
         
 
         
 
         
 
         BEARCE V. FMC CORPORATION
 
         Page   7
 
         
 
         
 
         
 
              To Whom It May Concern --
 
         
 
                 LARRY BEARCE WAS EXAMINED TODAY.  I HAVE ADVISED HIM 
 
              THAT ALL PREVIOUS WEIGHT LIFTING RESTRICTIONS HAVE BEEN 
 
              DISCONTINUED.  HIS ACTIVITIES ARE AT HIS DISCRETION.
 
         
 
               As a result of this medical statement by Dr. Meyer, 
 
         claimant was allowed in November of 1983 to return to his former 
 
         drill press operator job, the job that he held at the time of the 
 
         1977 auto accident.  Claimant worked approximately 11 months in 
 
         this job prior to the work injury in this case.
 
         
 
             Furthermore, in March, 1982, while attempting to climb a 
 
         ladder to change a light bulb at the FMC plant, claimant struck 
 
         his head on a gear box and injured his neck.  Claimant received 
 
         treatment consisting of medication and physical therapy from Dr. 
 
         LaMorgese for cervical strain involving neck and shoulder pain 
 
         with headache and numbness and tingling in his hands for 
 
         approximately two months prior to his layoff.  From what can be 
 
         deciphered from the evidence submitted, claimant did not miss any 
 
         work as a result of this incident.
 
         
 
               The medical records submitted show that claimant's initial 
 
         medical treatment by Dr. LaMorgese following the August 31, 1984 
 
         injury remained conservative.  However, this treatment did not 
 
         improve claimant's condition.  In February and March, 1985, 
 
         claimant was examined by Martin Roach, M.D.  Dr. Roach agreed 
 
         that claimant should not return to heavy repetitive work at the 
 
         plant. in April, 1985, Dr. LaMorgese referred claimant back to 
 
         Dr. Lifson who had performed the surgery on claimant in 1980.  
 
         According to reports from Dr. Lifson, claimant's pain complaints 
 
         were many and varied and extended from his head in the form of 
 
         headaches, to his feet.  Claimant complained of neck pain, 
 
         mid-back pain and low back pain along with upper and lower 
 
         extremity pain.  Dr. Lifson felt that claimant displayed a 
 
         continuation of his former pain behavior.  CT scans of claimant's 
 
         back indicated nothing new since 1980.  Claimant was then treated 
 
         by the Sister Kenny Institute conservatively with physical 
 
         therapy.  Claimant at this time attempted to obtain some relief 
 
         of his pain using an electric device called a TENS unit.  
 
         Claimant was discharged and returned home with a prescription for 
 
         home exercises.  On May 22, 1985, Dr. Lifson felt that claimant's 
 
         condition had remained unchanged and offered nothing further as 
 
         far as treatment for claimant's pain complaints.
 
         
 
              In August claimant began to see John R. Walker, M.D., 
 
         another orthopedic surgeon.  Dr. Walker believed that claimant's 
 
         chronic low back difficulties were due to scarring in the area of 
 
         the previous surgery and from the August 31, 1984 back strain at 
 
         work.  Dr. Walker recommended that claimant undergo exploratory 
 
         surgery and fusion of vertebras in the low back.  Claimant sought 
 
         out and received a second opinion from Earl Bickel, M.D., who 
 
         stated that claimant should try a back support first, but Dr. 
 
         Bickel stated that if a support does not relieve the pain, the 
 
         fusion may be appropriate but that he would like to see a CT scan 
 
         before surgery was performed.  Claimant then underwent the 
 
         surgery by Dr. Walker in August, 1985.  Claimant testified that 
 
         the surgery substantially reduced the pain in his lower back but 
 

 
         
 
         
 
         
 
         BEARCE V. FMC CORPORATION
 
         Page   8
 
         
 
         
 
         did not eliminate it.  Dr. Lifson in April, 1986, questions Dr. 
 
         Walker's views on scarring in the necessity of the low back 
 
         surgery.  However, Dr. Lifson concludes that claimant "probably 
 
         was a candidate for lumbosacral fusion surgery" although he would 
 
         have performed several additional tests on claimant before 
 
         actually performing the surgery.  Dr. Lifson states that if 
 
         claimant has improved he could not argue with success.
 
         
 
              According to Dr. Walker, claimant improved greatly from the 
 
         surgery and reached maximum healing from the surgery on October 
 
         22, 1986.  However, claimant continued to experience residual low 
 
         back and low lumbar pain.  Claimant also showed evidence of 
 
         mid-dorsal spine strain and it appeared to Dr. Walker that 
 
         claimant had signs of disc ruption at the C-5 level of claimant's 
 
         cervical neck.  Despite reaching maximum healing, Dr. Walker 
 
         expressed doubt that claimant would ever return to work as a 
 
         machinist.
 
         
 
              In March, 1987, Dr. Walker reported that claimant was doing 
 
         quite well with the low back and leg pain but failed to improve 
 
         in the cervical area.  Upon a diagnoses of cervical disc problems 
 
         after a myelogram, Dr. Walker surgically fused vertebras in the 
 
         area of claimant's neck in May, 1987.  At the time of hearing, 
 
         claimant was still recovering from this surgery and continuously 
 
         wore a cervical collar.
 
         
 
              Claimant admitted in his various testimonies in the record 
 
         that he operated his skid steer and a larger end loader in 
 

 
         
 
         
 
         
 
         BEARCE V. FMC CORPORATION
 
         Page   9
 
         
 
         
 
         various snow removal jobs during the winter of 1984.  Claimant 
 
         denied that he performed any heavy work in his monument business, 
 
         farm operations, gardening or snow removal operations during this 
 
         time although he admitted to performing some work in all of these 
 
         areas on a limited basis.
 
         
 
              Claimant described his current medical condition as 
 
         follows:
 
         
 
              1.  After the myelogram test for the next surgery, claimant 
 
         has had a bladder problem.
 
         
 
              2.  Claimant has difficulty standing for prolonged periods 
 
         of time due to hip and lower back pain.
 
         
 
              3.  Claimant can only comfortably sit for 20 to 30 minutes 
 
         at a time and experiences leg pain while sitting.
 
         
 
         
 
              4.  Claimant cannot lift over 20 pounds without experiencing 
 
         significant problems.
 
         
 
              5.  Upon the advice of his physicians, claimant does not 
 
         bend, stoop or twist.
 
         
 
              6.  Claimant can only walk up to two blocks before his legs 
 
         begin to bother him.
 
         
 
              Claimant states that he is never totally pain free and he 
 
         experiences occasional burning pain.  He is compelled to lie on 
 
         the floor two to three times a day and has difficulty sleeping.  
 
         Claimant stated that he can no longer mow the lawn, go fishing or 
 
         work on his car as he did before.  Claimant testified that he can 
 
         no longer farm or work in the monument business as he did before.  
 
         Claimant testified that he could not return to overhead crane 
 
         type of work as he did after the auto accident because he cannot 
 
         climb a ladder.  Claimant believes that he will eventually return 
 
         to work if he is able to build himself back up again as he did 
 
         after the auto accident.
 
         
 
              Only two physicians have rendered opinions as to the extent 
 
         of claimant's permanent impairment which may have resulted from 
 
         the August 31, 1984 incident.  Dr. Lifson opines that claimant's 
 
         disability to his spine is 20 percent, five percent of which was 
 
         attributed to the August 31, 1984 injury.  Dr. Lifson did not 
 
         rate claimant's neck problems.  Dr. Walker opines that claimant's 
 
         chronic neck difficulties consist of a six percent impairment to 
 
         the body as a whole and that claimant's lumbar spine problems 
 
         constitute a 24 percent impairment to the body as a whole, 10 
 
         percent of which preexisted the August 31, 1984 injury.  All of 
 
         claimant's physicians restrict claimant's activities to light 
 
         duty work in a manner similar to claimant's self description of 
 
         his limitations.  In his deposition, Dr. Walker believes that the 
 
         surgery was necessary due to the additional scarring from the 
 
         strain of the August, 1984, fall even though the fall was 
 
         relatively minor given claimant's past scarring in these areas 
 
         from prior injuries and surgery.  Dr. Walker stated in his 
 
         deposition that his causal connection opinions are largely based 
 
         upon the histories provided to him by claimant.  He states that 
 

 
         
 
         
 
         
 
         BEARCE V. FMC CORPORATION
 
         Page  10
 
         
 
         
 
         in order to arrive at a causal connection opinion you have to 
 
         believe claimant.
 
         
 
              Claimant testified that his past employment primarily 
 
         consists of trucking requiring heavy lifting and prolonged 
 
         sitting and machinist work at FMC requiring heavy lifting, 
 
         repetitive bending, stooping and prolonged standing.  At the time 
 
         of the alleged work injury in this case, claimant was earning 
 
         approximately $12.00 per hour.  Prior to the 1977 auto accident, 
 
         claimant was extensively involved in grain and livestock farming 
 
         operations but this activity virtually ended following the auto 
 
         accident.  Claimant states that what farming operations he is now 
 
         engaged in are performed by family members.  Claimant testified 
 
         that he and his wife have been in the grave monument business 
 
         since 1967.  Claimant states that this is a business consisting 
 
         of selling and setting the monuments.  The setting of the 
 
         monuments involves digging three and one-half foot frost footings 
 
         for each monument which is done by hand.  Claimant stated that 
 
         before the 1977 auto accident he performed this digging by 
 
         himself.  After the auto accident he could not do so but 
 
         eventually built himself back up to where he could perform this 
 
         type of digging again before the August, 1984, alleged work 
 
         injury in this case.  Claimant states that all heavy work at the 
 
         present time and subsequent to the FMC alleged injury is now 
 
         being performed by family members or he hires the work done.  
 
         Claimant admits that he occasionally drives the skid steer and 
 
         other equipment in his various activities.
 
         
 
              Claimant stated at the hearing that he is 48 years of age 
 
         and has a high school education.  Claimant appeared articulate 
 
         and intelligent at the hearing.  Claimant is currently serving a 
 
         second term as mayor of a small community in which he lives.. 
 
         Claimant testified that his current activities are quite limited 
 
         as he still is recovering from the neck surgery.  Claimant is 
 
         receiving social security disability benefits.  Claimant has not 
 
         applied for work since leaving FMC's employ.  Claimant said that 
 
         he intends to seek out rehabilitation through the state in the 
 
         future.
 
         
 
              Richard Bliss, a vocational counselor from Illinois Job 
 
         Service, opined in February, 1987, that claimant is not gainfully 
 
         employable.  He believes that claimant cannot return to his 
 
         former work due to his physical limitations.  Claimant is only 
 
         able to perform sedentary work and should be retrained.  However, 
 
         he questions claimant's ability to complete retraining due to his 
 
         chronic pain.  Bliss did not perform any testing upon claimant 
 
         and his only personal contact with claimant has been at the 
 
         hearing and a brief encounter before his deposition.
 
         
 
              Allen Vikdal, a rehabilitation consultant retained by 
 
         defendant, testified that after his examination of claimant's 
 
         background, he believes that claimant possesses a tremendous 
 
         amount of transferable skills such as machine operation, 
 
         trucking, management and planning, organization, supervisory and 
 
         the ability to manage a private small business.  Vikdal also felt 
 
         that claimant was a good communicator and still young enough to 
 
         do what he wants.  Vikdal believes that if claimant were to 
 
         complete a pain management program at Iowa Methodist Hospital 
 
         which he apparently has been accepted into, that he would be able 
 

 
         
 
         
 
         
 
         BEARCE V. FMC CORPORATION
 
         Page  11
 
         
 
         
 
         to find suitable employment at a higher level than entry level.  
 
         Vikdal admits that claimant possesses negative employment factors 
 
         such as being off work for a long period of time and that there 
 
         is a limited labor market in the Wyoming area, the place of his 
 
         residence.  However, Vikdal states that if claimant were willing 
 
         to commute as he did before when he worked for FMC, there would 
 
         be a number of opportunities for employment available to him.  
 
         Vikdal concludes that claimant is indeed employable.
 
         
 
              Finally, Cynthia Gratias, the risk management supervisor for 
 
         the defendant's adjusting company, testified that she denied 
 
         claimant's claim of a work injury based upon the fact that 
 
         claimant had failed to immediately report the injury and that he 
 
         had worked at his residence over the weekend.  She stated that 
 
         she concluded that claimant had only suffered a temporary 
 
         aggravation from reports submitted to her by Dr. Basler and Dr. 
 
         LaMorgese.
 
         
 
              Claimant's appearance and demeanor at the hearing indicated 
 
         that he was testifying truthfully.
 
         
 
                           APPLICABLE LAW AND ANALYSIS
 
         
 
              I.  Claimant has the burden of proving by a preponderance of 
 
         the evidence that claimant received an injury which arose out of 
 
         and in the course of employment.  The words "out of" refer to the 
 
         cause or source of the injury.  The words "in the course of" 
 
         refer to the time and place and circumstances of the injury.  
 
         See Cedar Rapids Community Sch. v. Cady, 278 N.W.2d 298 (Iowa 
 
         1979); Crowe v. DeSoto Consol. Sch. Dist., 246 Iowa 402, 68 
 
         N.W.2d 63 (1959).  An employer takes an employee subject to any 
 
         active of dormant health impairments, and a work connected injury 
 
         which more than slightly aggravates the condition is considered 
 
         to be a personal injury.  Ziegler v. United States Gypsum Co., 
 
         252 Iowa 613, 620, 106 N.W.2d 591 (1960) and cases cited herein.
 
         
 
              In the case sub judice, as pointed out in claimant's brief, 
 
         claimant's account of the August 31, 1984 incident has always 
 
         been consistent in histories provided to physicians.  The failure 
 
         of his supervisors to remember the incident which they supposedly 
 
         witnessed does not appear to be important.  What may be a minor 
 
         incident in the minds of his superiors was certainly not minor 
 
         given claimant's past back problems.  What was not consistent was 
 
         claimant's description of symptoms after the incident.  However, 
 
         all of the symptoms were subjective type of complaints.  
 
         Obviously, Dr. Basler and Dr. LaMorgese were reporting on what 
 
         they perceived claimant was telling them.  Differences in 
 
         discrepancies of subjective complaints in medical reports are not 
 
         that surprising to this agency.  In his deposition claimant 
 
         appeared to be inconsistent when he denied any recollection of 
 
         discomfort when asked to describe his pain complaints at the time 
 
         he was handling the ramps to load the skid steer.  However, in 
 
         response to a clear question by his attorney later in the 
 
         deposition he stated that the burning sensation was indeed 
 
         continuous.  When someone states to a doctor that he was okay or 
 
         not having difficulties with pain, this does not mean that 
 
         claimant was free of discomfort or pain.  Also, the activity of 
 
         resetting the monument does not appear to be overwhelmingly 
 
         damaging to claimant's case.  Claimant has always been an active 
 

 
         
 
         
 
         
 
         BEARCE V. FMC CORPORATION
 
         Page  12
 
         
 
         
 
         person and to do nothing but reset a monument over the weekend 
 
         was in his mind "resting."  Clearly the facts support a finding 
 
         that claimant aggravated a preexisting condition in his low back.  
 
         All of the physicians in this case diagnosed a low back strain 
 
         following the tripping incident and most of them indicate a 
 
         recurrence of chronic low back pain subsequent to the incident.
 
         
 
              With reference to claimant's neck problems, the facts are 
 
         not so clear.  Claimant's first complaints of head, neck, 
 
         shoulder and arm pain did not begin until April, 1985, seven 
 
         months after the incident.  The records of Dr. Basler and Dr. 
 
         LaMorgese who treated claimant immediately after the August, 
 
         1984, incident, do not reflect any complaints of neck or shoulder 
 
         pain.  The complaints were limited at that time to low back and 
 
         lower extremity pain.  Claimant himself did not describe any 
 
         problems with his neck immediately after the August, 1984, 
 
         incident during his testimony at the hearing.  The only doctor to 
 
         attribute claimant's neck difficulties to the August, 1984 
 
         incident is Dr. Walker.  Dr. Walker gave a detailed explanation 
 
         in his deposition as to how scarring affected his low back but no 
 
         such explanation was offered by Dr. Walker in any report or 
 
         testimony concerning the neck problems.  Also, there is no 
 
         mention of the 1982 neck injury in Dr. Walker's reports.  These 
 
         problems with Dr. Walker's reports puts a fatal flaw in his 
 
         causal connection opinion regarding the neck problems.  
 
         Therefore, Dr. Walker's opinions were not accepted in this 
 
         decision.  Therefore, claimant only established by the greater 
 
         weight of the evidence that he suffered an injury to his low back 
 
         on August 31, 1984, which constituted an aggravation of a 
 
         preexisting back condition.
 
         
 
              II.  The claimant has the burden of proving by a 
 
         preponderance of the evidence that the work injury is a cause of 
 
         the claimed disability.  A disability may be either temporary or 
 
         permanent.  In the case of a claim for temporary disability, the 
 
         claimant must establish that the work injury was a cause of 
 
         absence from work and lost earnings during a period of recovery 
 
         from the injury.  Generally, a claim of permanent disability 
 
         invokes an initial determination of whether the work injury was a 
 
         cause of permanent physical impairment or permanent limitation in 
 
         work activity.  However, in some instances, such as a job 
 
         transfer caused by a work injury, permanent disability benefits 
 
         can be awarded without a showing of a causal connection to a 
 
         physical change of condition.  Blacksmith v. All-American, Inc., 
 
         290 N.W.2d 348, 354 (Iowa 1980); McSpadden v. Big Ben Coal Co., 
 
         288 N.W.2d 181 (Iowa 1980).
 
         
 
              The question of causal connection is essentially within the 
 
         domain of expert medical opinion.  Bradshaw v. Iowa Methodist 
 
         Hospital, 251 Iowa 375, 101 N.W.2d 167 (1960).  The opinion of 
 
         experts need not be couched in definite, positive or unequivocal 
 
         language and the expert opinion may be accepted or rejected, in 
 
         whole or in part, by the trier of fact.  Sondag v. Ferris 
 
         Hardware, 220 N.W.2d 903 (Iowa 1974).  The weight to be given to 
 
         such an opinion is for the finder of fact, and that may be 
 
         affected by the completeness of the premise given the expert and 
 
         other surrounding circumstances.  Bodish v. Fischer, Inc., 257 
 
         Iowa 516, 133 N.W.2d 867 (1965).
 
         
 

 
         
 
         
 
         
 
         BEARCE V. FMC CORPORATION
 
         Page  13
 
         
 
         
 
              Furthermore, if the available expert testimony is 
 
         insufficient alone to support a finding of causal connection, 
 
         such testimony may be coupled with nonexpert testimony to show 
 
         causation and be sufficient to sustain an award.  Giere v. Aase 
 
         Haugen Homes, Inc., 259 Iowa 1065, 146 N.W.2d 911, 915 (1966).  
 
         Such evidence does not, however, compel an award as a matter of 
 
         law.  Anderson v. Oscar Mayer & Co., 217 N.W.2d 531, 536 (Iowa 
 
         1974).  To establish compensability, the injury need only be a 
 
         significant factor, not be the only factor causing the claimed 
 
         disability.  Blacksmith, 290 N.W.2d 348, 354.  In the case of a 
 
         preexisting condition, an employee is not entitled to recover for 
 
         the results of a preexisting injury or disease but can recover 
 
         for an aggravation thereof which resulted in the disability found 
 
         to exist.  Olson v. Goodyear Service Stores, 255 Iowa 1112, 125 
 
         N.W.2d 251 (1963).
 
         
 
              In the case sub judice, claimant contends that he suffered 
 
         disability as a result of a work injury in August of 1984 which 
 
         caused him additional permanent impairment to that which existed 
 
         before the work injury.  The evidence established that claimant 
 
         had significant permanent impairment prior to the 1984 work 
 
         injury as a result of the 1977 car accident.  This deputy 
 
         commissioner is quite skeptical of claimant's claim that claimant 
 
         fully recovered from this injury when he returned to the drill 
 
         press operator job in 1983.  Clearly, claimant was motivated to 
 
         return to employment because his light duty job was abolished.  
 
         Also, the restrictions were not removed by an orthopedic surgeon 
 
         but by a family physician.  However, no records were offered by 
 

 
         
 
         
 
         
 
         BEARCE V. FMC CORPORATION
 
         Page  14
 
         
 
         
 
         defendant to show that claimant sought out medical treatment for 
 
         any pain that he might have experienced while working in his 
 
         drill press operator job before August of 1984 or that he had 
 
         performed the job unsatisfactorily in the almost 11 month period 
 
         before the work injury.  The job clearly required claimant to 
 
         exceed many of the physical restrictions imposed by Dr. Lifson in 
 
         March of 1981.
 
         
 
              Both Dr. Lifson, who extensively treated claimant after the 
 
         1977 auto wreck and Dr. Walker opined that claimant suffered 
 
         additional permanent impairment following the August, 1984, work 
 
         injury.  Claimant had always described in detail what this injury 
 
         constituted.  The improvement claimant had made to overcome some 
 
         of his physical limitations after the auto accident appears to 
 
         have been nullified by this injury.  Claimant appears to be 
 
         somewhat worse than he was in March of 1981 when he returned to 
 
         light duty work at FMC.  Most physicians agree that claimant 
 
         cannot perform the same type of work that he performed in March 
 
         of 1983 and this was concluded by his physicians before claimant 
 
         received extensive surgery on his non-work related neck problems.  
 
         From the evidence presented it is found that claimant has 
 
         suffered additional significant impairment as a result of the 
 
         work injury despite the existence of an extensive prior existing 
 
         back problem.
 
         
 
              III.  Claimant must establish by a preponderance of the 
 
         evidence the extent of weekly benefits for permanent disability 
 
         to which claimant is entitled.  As the claimant has shown that 
 
         the  work injury was a cause of a permanent physical impairment 
 
         or limitation upon activity involving the body as a whole, the 
 
         degree of permanent disability must be measured pursuant to Iowa 
 
         Code section 85.34(2)(u).  However, unlike scheduled member 
 
         disabilities, the degree of disability under this provision is 
 
         not measured solely by the extent of a functional impairment or 
 
         loss of use of a body member.  A disability to the body as a 
 
         whole or an "industrial disability" is a loss of earning capacity 
 
         resulting from the work injury.  Diederich v. Tri-City Railway 
 
         Co., 219 Iowa 587, 593, 258 N.W. 899 (1935).  A physical 
 
         impairment or restriction on work activity may or may not result 
 
         in such a loss of earning capacity.  The extent to which a work 
 
         injury and a resulting medical condition has resulted ill an 
 
         industrial disability is determined from examination of several 
 
         factors.  These factors include the employee's medical condition 
 
         prior to the injury, immediately after the injury and presently; 
 
         the situs of the injury, its severity and the length of healing 
 
         period; the work experience of the employee prior to the injury, 
 
         after the injury and potential for rehabilitation; the employee's 
 
         qualifications intellectually, emotionally and physically; 
 
         earnings prior and subsequent to the injury; age; education; 
 
         motivation; functional impairment as a result of the injury; and 
 
         inability because of the injury to engage in employment for which 
 
         the employee is fitted.  Loss of earnings caused by a job 
 
         transfer for reasons related to the injury is also relevant.  
 
         Olson, 255 Iowa 1112, 1121, 125 N.W.2d 251, 257 (1963).  See 
 
         Peterson v. Truck Haven Cafe, Inc., (Appeal Decision, February 
 
         28, 1985).
 
         
 
              In the case sub judice, claimant's medical condition before 
 
         the work injury was certainly not excellent and he did have prior 
 

 
         
 
         
 
         
 
         BEARCE V. FMC CORPORATION
 
         Page  15
 
         
 
         
 
         permanent functional impairment and permanent disability.  
 
         However, claimant was able to fully perform his job as a drill 
 
         press operator involving heavy lifting, repetitive lifting, 
 
         bending, twisting and stooping and prolonged standing.  The work 
 
         injury in this case took almost two years before reaching maximum 
 
         healing.  Claimant has experienced almost continuous pain in 
 
         varying degrees since the date of injury.
 
         
 
              Due to the fact that claimant had  an  ascertainable  prior 
 
         existing disability, apportionment of this prior disability must 
 
         be made.  Apportionment also must be made to separate out any 
 
         disability caused by a neck condition which is unrelated to the 
 
         August, 1984, injury.  Apportionment of the disability between a 
 
         prior existing injury and a non-work related injury is proper 
 
         when there is some ascertainable disability which existed 
 
         independently before the work injury occurred.  Varied 
 
         Enterprises, Inc. v. Sumner, 353 N.W.2d 407 (Iowa 1984).
 
         
 
               Claimant's physicians have restricted claimant's work 
 
         activities by prohibiting tasks such as heavy lifting, repetitive 
 
         lifting, bending, twisting and stooping and prolonged sitting and 
 
         standing.  However, most of these restrictions existed well 
 
         before the August, 1984, work injury.
 
         
 
               Apart from his lost earnings during his healing period 
 
         which will be compensated by healing period benefits, claimant 
 
         has suffered a significant permanent loss in actual earnings as a 
 
         result of his disability.  Claimant has not returned to work.
 
         
 
               Claimant is 48 years old and in the middle of his working 
 
         career which should be the most productive of his life.  Claimant 
 
         has not looked for work in the past and is currently hampered 
 
         from doing so by current neck problems.  Although claimant argues 
 
         that there should be an application of the "odd-lot doctrine" and 
 
         that he should be entitled to permanent total disability benefits 
 
         under the doctrine, such a doctrine cannot be applied without 
 
         some effort to look for suitable work.  Claimant must demonstrate 
 
         a reasonable effort to secure employment in the area of his 
 
         residence as a part of his prima facie showing that he is 
 
         odd-lot.  Guyton v. Irving Jensen Company, 373 N.W.2d 101, 105 
 
         (Iowa 1985); Emshoff v. Petroleum Transportations Services, File 
 
         No. 753723, Appeal Decision by the Iowa Industrial Commissioner 
 
         filed March 31, 1987.
 
         
 
              The vocational rehabilitation consultants in this case 
 
         clearly disagree as to claimant's future employment prospects.  
 
         What was not done by either consultant was to assess the 
 
         availability of sedentary or light duty work in the area of 
 
         claimant's residence or within reasonable commuting distance.  
 
         However, the opinions from the vocational consultants demonstrate 
 
         a severe permanent disability much of which, however, existed 
 
         before August 31, 1984.
 
         
 
              After examination of all of the factors, it is found as a 
 
         matter of fact that claimant has suffered a mild or 10 percent 
 
         additional loss in earning capacity from his work injury over 
 
         that which existed before August 31, 1984.  Based on such a 
 
         finding, claimant is entitled under Iowa Code section 85.34(2)(u) 
 
         which is 10 percent of the 500 weeks allowable for an injury to 
 

 
         
 
         
 
         
 
         BEARCE V. FMC CORPORATION
 
         Page  16
 
         
 
         
 
         the body as a whole in that subsection.  As it will be found that 
 
         claimant reached maximum healing on August 22, 1987, benefits 
 
         will be awarded from that date.
 
         
 
              As claimant has established entitlement to permanent partial 
 
         disability benefits, claimant may be entitled to weekly benefits 
 
         for healing period under Iowa Code section 85.34 from the date of 
 
         injury until he returns to work; until claimant is medically 
 
         capable of returning to substantially similar work to the work he 
 
         was performing at the time of injury; or, until it is indicated 
 
         that significant improvement from the injury is not anticipated, 
 
         whichever occurs first.  The evidence shows that claimant has not 
 
         returned to work and is not able to return to similar work he was 
 
         performing at the  time of the work injury.  Claimant has been in 
 
         virtual constant  treatment from the date he left his light duty 
 
         employment at FMC which was stipulated to be August 15, 1984 and 
 
         the time Dr. Walker, the last treating physician, opined that he 
 
         reached maximum healing which is October 22, 1986.  It is 
 
         concluded that this period of time is the appropriate period of 
 
         healing from the aggravation work injury of August 31, 1984.  
 
         Although the defendant contends that the surgery by Dr. Walker 
 
         was unnecessary, no physician actually supports such a theory and 
 
         Dr. Walker has been shown to be a board certified surgeon who's 
 
         surgery actually improved claimant's condition.
 
         
 
              IV.  With reference to the medical expenses sought by 
 
         claimant, the parties stipulated that the expenses listed in the 
 
         prehearing report are related to claimant's back and neck 
 
         conditions.  None of these expenses appear to have been for 
 
         treatment only for a neck injury but for both the low back and 
 
         neck injury and such treatment cannot be really separated.  The 
 
         expenses requested by claimant were incurred before he began to 
 
         receive extensive treatment on his neck.  It is concluded that 
 
         the work injury was at least one factor although it may not be 
 
         the only factor in precipitating these expenses.  The 
 
         reasonableness and necessity of Dr. Walker's treatment is 
 
         discussed above and again Dr. Lifson does not opine that such a 
 
         treatment was unreasonable or unnecessary.
 
         
 
             V.  With reference to claimant's claim that he is entitled to 
 
         penalty benefits for an unreasonable delay in commencing 
 
         payments, the claim is denied.  The testimony of the persons 
 
         involved in the decision to deny claimant's claim established 
 
         that the denial of claim had a rationale basis considering the 
 
         extensive low back problems claimant experienced before the 
 
         alleged 1984 injury and given the views of Dr. Basler and Dr. 
 
         LaMorgese following the incident.
 
         
 
                                 FINDINGS OF FACT
 
         
 
              1.  Claimant was a credible witness.
 
         
 
              2.  Claimant was in the employ of FMC at all times material 
 
         herein.
 
         
 
              3.  On August 31, 1984, claimant suffered an injury to the 
 
         low back in the form of an aggravation of a preexisting condition 
 
         which arose out of and in the course of employment with FMC.
 
         
 

 
         
 
         
 
         
 
         BEARCE V. FMC CORPORATION
 
         Page  17
 
         
 
         
 
              4.  The work injury of August 31, 1984 was a cause of a 
 
         period of disability from work beginning on October 15, 1984 and 
 
         ending on October 22, 1986, at which time claimant reached 
 
         maximum healing.
 
         
 
              5.  The work injury of August 31, 1984 was a cause of a 
 
         significant permanent partial impairment to the body as a whole 
 
         and resulted in a reimposition of permanent restrictions upon 
 
         claimant's physical activity consisting of no lifting over 20 
 
         pounds, no prolong standing, bending, stooping, or climbing or 
 
         sitting.
 
         
 
              6.  The work injury of August 31, 1984 and the resulting 
 
         permanent partial impairment was a cause of only a 10 percent 
 
         loss of earning capacity, a much larger loss of earning capacity 
 
         had been previously caused by the 1977 auto accident.
 
         
 
              7.  The medical expenses in the amount of $629.23 and 
 
         medical travel expenses of $914.28 are fair and reasonable and 
 
         were incurred by claimant for reasonable and necessary treatment 
 
         of the work injury on August 31, 1984.
 
         
 
                                CONCLUSIONS OF LAW
 
         
 
              Claimant has established by a preponderance of the evidence 
 
         entitlement to permanent partial disability benefits and healing 
 
         period benefits as ordered below.
 
         
 
              Claimant has established by a preponderance of the evidence 
 
         entitlement to medical benefits as ordered below.
 
         
 
              Claimant is not entitled to additional penalty benefits 
 
         under Iowa Code section 86.13.
 
         
 
                                      ORDER
 
         
 
              1.  Defendant shall pay to claimant fifty (50) weeks of 
 
         permanent partial disability benefits at the rate of three 
 
         hundred twenty-one and 10/100 dollars ($321.10) per week from 
 
         October 23, 1986.
 
         
 
              2.  Defendant shall pay to claimant healing period benefits 
 
         from October 15, 1984 through October 22, 1986 at the rate of 
 
         three hundred twenty-one and 10/100 dollars ($321.10) per week.
 
         
 
              3.  Defendant shall pay to claimant the sum of one thousand 
 
         five hundred forty-three and 51/100 dollars ($1,543.51) for 
 
         medical expenses.
 
         
 
              4.  Defendant shall pay accrued weekly benefits in a lump 
 
         sum and shall receive a credit against this award for all 
 
         benefits previously paid and previous payment of benefits under a 
 
         non-occupational group insurance plan under Iowa Code section 
 
         85.38(2) as stipulated by the parties in the prehearing report.
 
         
 
              5.  Defendant shall pay interest on benefits awarded herein 
 
         as set forth in Iowa Code section 85.30.
 
         
 
              6.  Defendant shall pay the costs as set forth in Division 
 

 
         
 
         
 
         
 
         BEARCE V. FMC CORPORATION
 
         Page  18
 
         
 
         
 
         of Industrial Services Rule 343-4.33.
 
         
 
              7.  Defendant shall file activity reports on payment of this 
 
         award as requested by this agency pursuant to Division of 
 
         Industrial Services Rule 343-3.1.
 
         
 
              Signed and filed this 21st day of October, 1987.
 
         
 
         
 
         
 
         
 
         
 
                                        LARRY P. WALSHIRE
 
                                        DEPUTY INDUSTRIAL COMMISSIONER
 
         
 
         Copies To:
 
         
 
         Mr. Thomas M. Wertz
 
         Attorney at Law
 
         4089 21st Ave., S.W.
 
         Suite 114
 
         Cedar Rapids, Iowa 52404
 
         
 
         Mr. James E. Shipman
 
         Mr. James M. Peters
 
         Attorneys at Law
 
         1200 MNB Bldg.
 
         Cedar Rapids, Iowa 52401
 
 
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                                   1802; 1803; 1808
 
                                                   Filed October 21, 1987
 
                                                   LARRY P. WALSHIRE
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         LARRY J. BEARCE,
 
         
 
              Claimant,
 
                                                     FILE NO. 782809
 
         VS.
 
                                                 A R B I T R A T I 0 N
 
         FMC CORPORATION,
 
                                                    D E C I S I 0 N
 
              Employer,
 
              Self-Insured,
 
              Defendant.
 
         
 
         
 
         1802; 1803; 1808
 
         
 
              Claimant had an extensive prior existing neck and low back 
 
         problem following an auto accident which was not work related.  
 
         Claimant several years later reinjured his low back as a result 
 
         of an incident at work.  The claim of additional injury to the 
 
         neck was denied for lack of causal connection evidence to any 
 
         incident at work.  Claimant was awarded a small amount of 
 
         permanent partial disability benefits for mild injuries in his 
 
         industrial disability from that which existed as a result of the 
 
         auto accident.  Due to the fact that claimant was required to 
 
         undergo additional surgery to relieve pain following the 
 
         aggravation injury, almost two years of healing period benefits 
 
         were awarded in addition to the small amount of permanent partial 
 
         disability benefits.
 
 
 
 
        
 
 
 
 
 
        
 
        
 
                                           1702-1802-1806-4100
 
                                           Filed March 17, 1989
 
                                           DAVID E. LINQUIST
 
                                           
 
                       BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
                                           
 
                                           
 
        LARRY J. BEARCE,
 
        
 
             Claimant,
 
                                               File No. 782809
 
        vs.
 
                                                 A P P E A L
 
        FMC CORPORATION,
 
                                               D E C I S I O N
 
             Employer,
 
             Self-Insured,
 
             Defendant.
 
             
 
             
 
        1702-1806
 
        
 
             Claimant found to have industrial disability of 35 percent 
 
             subsequent to injury. Claimant found to have 25 percent 
 
             industrial disability prior to injury and apportionment made.
 
        
 
        4100
 
        
 
             Claimant did not seek other employment, but stated he was 
 
             unable to because he was still recovering from neck injury. 
 
             Medical evidence did not support his statement, and vocational 
 
             evidence showed claimant could perform sedentary work. Claimant 
 
             found not to be an odd-lot employee.
 
        
 
        1802
 
        
 
             Deputy's determination of healing period affirmed. 
 
             Defendant's argument for an earlier termination of healing period 
 
             was based on a total rejection of one doctor's surgery as 
 
             unnecessary. The record showed the surgery did relieve 
 
             claimant's symptoms, and healing period extended to date claimant 
 
             achieved maximum healing following the surgery.
 
             
 
        
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
                      :
 
            LARRY J. BEARCE,    :
 
                      :
 
                 Claimant, :      File No. 782809
 
                      :
 
            vs.       :        R E M A N D
 
                      :
 
            FMC CORPORATION,    :      D E C I S I O N
 
                      :
 
                 Employer, :
 
                 Self-Insured,  :
 
                 Defendant.     :
 
            ___________________________________________________________
 
            On January 23, 1991, the Iowa Supreme Court issued a 
 
            decision in the above-captioned case, Bearce v. FMC Corp., 
 
            465 N.W.2d 531 (Iowa 1991).  The decision at 456 N.W.2d 531, 
 
            537, stated in part:
 
            We remand to the commissioner for an order awarding Bearce 
 
            benefits based on a permanent partial disability of 
 
            thirty-five percent of the body as a whole.
 
            ACCORDINGLY, IT IS ORDERED:
 
            The order portion of the appeal decision filed March 17, 
 
            1989, is hereby amended in part as follows:
 
            Defendant is to pay unto claimant one hundred seventy-five 
 
            (175) weeks of permanent partial disability benefits at the 
 
            rate of three hundred twenty-one and 10/100 dollars 
 
            ($321.10) per week from October 23, 1986.
 
            
 
                 All other portions of the appeal decision and order 
 
            filed March 17, 1989, remain in effect except as 
 
            specifically modified by the decision of the supreme court.
 
            Signed and filed this ____ day of April, 1991.
 
            
 
            
 
            
 
                      ________________________________
 
                               CLAIR R. CRAMER
 
                       ACTING INDUSTRIAL COMMISSIONER
 
            
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            Copies To:
 
            
 
            Mr. Thomas M. Wertz
 
            Attorney at Law
 
            4089 21st Ave. S.W., Ste 114
 
            Cedar Rapids, Iowa 52404
 
            
 
            Mr. James E. Shipman
 
            Attorney at Law
 
            1200 MNB Building
 
            Cedar Rapids, Iowa 52401
 
            
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
            1806
 
            Filed April 29, 1991
 
            Clair R. Cramer
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
                      :
 
            LARRY J. BEARCE,    :
 
                      :
 
                 Claimant, :      File No. 782809
 
                      :
 
            vs.       :        R E M A N D
 
                      :
 
            FMC CORPORATION,    :      D E C I S I O N
 
                      :
 
                 Employer, :
 
                 Self-Insured,  :
 
                 Defendant.     :
 
            ___________________________________________________________
 
            
 
            1806
 
            On remand from Iowa Supreme Court, prior order was amended 
 
            to award full industrial disability to claimant, without 
 
            apportionment for prior disability.