BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         DAVID S. STOBER,
 
         
 
              Claimant,
 
         
 
         VS.
 
                                                 File No. 792635
 
         CLEAR LAKE BAKERY,
 
                                                   A P P E A L
 
              Employer,
 
                                                 D E C I S I 0 N
 
         and
 
         
 
         WAUSAU INSURANCE COMPANIES,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
                              STATEMENT OF THE CASE
 
                                        
 
              Defendants appeal from an arbitration decision awarding 
 
         permanent partial disability benefits as the result of an alleged 
 
         injury on April 12, 1985.  The record on appeal consists of the 
 
         transcript of the arbitration proceeding; joint exhibits 1 
 
         through 14 and 16 through 33; and defendants' exhibits A, B and 
 
         C.  Both parties filed briefs on appeal.
 
                                        
 
                                      ISSUES
 
                                        
 
              Defendants state the following issues on appeal:
 
              
 
              1.  Whether the Deputy Industrial Commissioner erred in 
 
              awarding permanent total disability.
 
              
 
              2.  Whether the Deputy Industrial Commissioner erred in 
 
              finding that claimant's decision not to continue light duty 
 
              work with his employer, coupled with claimant's admission 
 
              that he had not sought other employment in any form after 
 
              leaving the employer was sufficient to cause the burden of 
 
              proof to shift to the employer.
 
              
 
              3.  Whether the Deputy Industrial Commissioner erred in 
 
              giving greater weight to the testimony of Katherine Schrot, 
 
              due to her "increased level of familiarity with the labor 
 
              market in North Central Iowa."
 
         
 
         
 
         STOBER V. CLEAR LAKE BAKERY
 
         Page 2
 
         
 
                              REVIEW OF THE EVIDENCE
 
                                        
 
              The arbitration decision adequately and accurately reflects 
 
         the pertinent evidence and it will not be set forth herein.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
                                  APPLICABLE LAW
 
                                        
 
              The citations of law in the arbitration decision are 
 
         appropriate to the issues and the evidence.
 
         
 
                                     ANALYSIS
 
                                        
 
              Defendants' three issues on appeal all deal with the 
 
         question of whether claimant is permanently totally disabled.  
 
         The deputy's decision finds the claimant to be an "odd-lot" 
 
         employee.  In order to establish that he is an "odd-lot" 
 
         employee, claimant is required to show that he has made a 
 
         reasonable effort to obtain substitute employment.  In this case, 
 
         claimant has not sought other employment.  Claimant has shown a 
 
         pattern of seeking rehiring by his old employer.
 
         
 
              The deputy relied on the case of, Pyle v. Carstensen Freight 
 
         Lines, Inc., (Appeal Decision, July 24, 1987).  That case 
 
         involved a claimant who sought to retrain himself by attending a 
 
         community college.  Claimant in that case was unable to complete 
 
         the training because of his impairment.  It was held that 
 
         claimant's attempt to obtain retraining constituted a reasonable 
 
         effort to find substitute employment, and claimant was found to 
 
         be "odd-lot".
 
         
 
              In the present case, however, claimant has not attempted any 
 
         such retraining.  Claimant has confined his attempts to regain 
 
         employment to his employer at the time of his injury. claimant 
 
         has not applied for a job with any other employer.  He has not 
 
         enrolled in any college or technical training programs.  Thus, 
 
         the doctrine espoused in Pyle is not applicable to this case.  
 
         Although claimant may be motivated to return to work, and 
 
         motivation is a factor of industrial disability, mere motivation 
 
         is not the equivalent of the bona fide attempt to seek other 
 
         employment required by Guyton and Pyle.  Since claimant has not 
 
         made a bona fide attempt to find substitute employment after his 
 
         injury, claimant has failed to establish that he is an "odd-lot" 
 
         employee.  Claimant's industrial disability will therefore be 
 
         determined without shifting to the defendants the burden of going 
 
         forward with evidence of claimant's employability.
 
         
 
              Claimant is 53 years old and lacks a high school education.  
 
         Claimant is unable to return to the job he held at the time of 
 
         his injury. Claimant has ratings of physical impairment of 16.5 
 
         percent of the body as a whole and 22 percent of the body as a 
 
         whole as a result of his cervical condition.  Claimant has
 
         
 
         
 
         STOBER V. CLEAR LAKE BAKERY
 
         Page 3
 
         
 
         
 
         undergone two surgeries, including fusion surgery.  Claimant has 
 
         a lifting restriction of 15 pounds, and cannot stand or sit for 
 
         any extended periods of time.  Claimant must frequently lie down 
 
         and rest.  Claimant's work history has been exclusively in the 
 
         bakery business.  Defendant employer has stated that it cannot 
 
         rehire claimant in light of his condition.  Although claimant 
 
         went back to work for defendant employer sporadically following 
 
         his injury, claimant has been off work for some time and without 
 
         wages.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              Claimant has held sedentary supervisory positions in the 
 
         bakery business in the past.  Although defendant employer did 
 
         accommodate claimant initially by assigning him to a sedentary 
 
         position, the record shows that this was a temporary position and 
 
         is no longer available to claimant.  The record also shows that 
 
         there are no similar baking businesses similar to defendant 
 
         employer's in claimant's locale, although similar operations do 
 
         exist in other cities in other parts of Iowa.
 
         
 
              Vocational rehabilitation testimony in this case conflicts 
 
         as to whether claimant is employable.  However, both vocational 
 
         rehabilitation experts agree claimant is not presently employable 
 
         without professional assistance.  Clark Williams testified that 
 
         jobs meeting claimant's restrictions exist, such as baking 
 
         instructor at a school or supervisor at a larger bakery,, but did 
 
         not identify any such jobs as being available to claimant.  
 
         Williams also acknowledged that if claimant would find work 
 
         outside the baking business, his income would be at or near 
 
         minimum wages.
 
         
 
              Kathryn Schrot concluded that claimant was unemployable in 
 
         light of his restrictions.  Although challenged by defendants, 
 
         the record shows that Kathryn Schrot is familiar with employment 
 
         conditions and availability in the north central Iowa area.
 
         
 
              Based on these and all other appropriate factors for 
 
         determining industrial disability, claimant is determined to be 
 
         permanently and totally disabled.
 
                                        
 
                                 FINDINGS OF FACT
 
                                        
 
              1.  On April 12, 1985 and continuing up to the time of 
 
         hearing, David Stober was a resident of Clear Lake, Iowa.
 
         
 
              2.   Claimant was injured on April 12, 1985 at his place of 
 
         employment with Clear Lake Bakery in Clear Lake, Iowa while 
 
         attempting to pull a rack.
 
         
 
              3.   At the time of injury, Stober was employed by Clear 
 
         Lake Bakery as a production superintendent, a position in which 
 
         he performed a substantial amount of physical labor.
 
         
 
         STOBER V. CLEAR LAKE BAKERY
 
         Page 4
 
         
 
         
 
              4.  During 1986 and 1987, claimant resumed employment with 
 
         Clear Lake Bakery in a job that was intended by the employer to 
 
         be a temporary, work hardening type of position.  The job would 
 
         not have been available on a permanent basis, even if claimant 
 
         had been physically capable of performing it indefinitely.
 
         
 
              5.  Claimant is 53 years of age but it appears that the 
 
         physiological aging process affecting him is 10-15 years ahead of 
 
         his actual chronological age.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              6.  At the time of injury, claimant was earning 
 
         approximately $550 per week.
 
         
 
              7.  The charge of $23.00 incurred with Radiologists of Mason 
 
         City on November 10, 1987 represents reasonable treatment for the 
 
         April 12, 1985 injury, but the other expenses.contained in 
 
         exhibit 28 are not shown to be related to that injury.
 
         
 
              8.  At the present time, claimant experiences frequent 
 
         headaches and neck pain.  He experiences numbness and weakness 
 
         regarding his left upper extremity and hand.  Claimant's pain is 
 
         aggravated by sitting and working at a desk where his neck is 
 
         extended forward.  Claimant has an impairment in the range of 20 
 
         percent of the whole person based upon the condition of his 
 
         cervical spine.  All the foregoing physical problems resulted 
 
         from the April 12, 1985 injury.  Claimant also has low back 
 
         problems which are not shown to have been a result of the April 
 
         12, 1985 injury.
 
         
 
              9.  Claimant.has a tenth grade education.  His entire work 
 
         life has been spent in the baking industry.  He has not 
 
         demonstrated aptitudes for academic achievement.  He has not 
 
         demonstrated capabilities which would enable him to work in a 
 
         supervisory capacity in any other industry.
 
         
 
              10.  As a result of his injury on April 12, 1985 claimant 
 
         has no earning capacity.
 
                                        
 
                                CONCLUSIONS OF LAW
 
                                        
 
              1.  Claimant sustained an injury to his cervical spine on 
 
         April 12, 1985 which arose out of and in the course of his 
 
         employment with Clear Lake Bakery.
 
         
 
              2.  Claimant is permanently and totally disabled under the 
 
         provisions of code section 85.34(3) as a result of the injuries 
 
         he sustained on April 12, 1985.
 
         
 
         STOBER V. CLEAR LAKE BAKERY
 
         Page 5
 
         
 
         
 
              3.  Claimant is entitled to receive weekly compensation at 
 
         the stipulated rate of $329.05 per week payable commencing April 
 
         14, 1985 and continuing for so long as he remains totally 
 
         disabled.
 
         
 
              4.  Defendants are entitled to credit for the wages paid 
 
         during claimant's attempt to resume gainful employment.
 
         
 
              5.  Claimant is not an odd-lot employee.
 
         
 
                                      ORDER
 
                                        
 

 
         
 
 
 
 
 
 
 
 
 
 
 
              THEREFORE, it is ordered:
 
         
 
              That defendants pay claimant weekly compensation for 
 
         permanent total disability at the stipulated rate of three 
 
         hundred twenty-nine and 05/100 dollars ($329.05) per week payable 
 
         commencing April 14, 1985 and continuing each week thereafter for 
 
         so long as claimant remains totally disabled under the provisions 
 
         of Iowa Code section 85.34(3).
 
         
 
              That defendants are entitled to credit against this award 
 
         for all amounts of weekly compensation previously paid and also, 
 
         on a week-to-week basis, for wages paid during claimant's periods 
 
         of attempts to return to work in accordance with Division of 
 
         Industrial Services Rule 343-8.4.
 
         
 
              That defendants pay all remaining past due amounts in a lump 
 
         sum together with interest pursuant to Iowa Code section 85.30.
 
         
 
              That defendants pay claimant's medical expense with 
 
         Radiologists of Mason City in the amount of twenty-three and 
 
         00/100 dollars ($23.00).
 
         
 
              That defendants pay the,costs of this action pursuant to 
 
         Division of Industrial Services Rule 343-4.33 including 
 
         seventy-five and 00/100 dollars ($75.00) to reimburse claimant 
 
         for the costs of reports from Dr. Walker and one hundred fifty 
 
         and 00/100 dollars ($150.00) as an expert witness fee for Kathryn 
 
         Schrot.
 
         
 
              That defendants file claim activity reports as requested by 
 
         this agency pursuant to Division of Industrial Services Rule 
 
         343-3.1.
 
         
 
         
 
         STOBER V. CLEAR LAKE BAKERY
 
         Page 6
 
         
 
         
 
         Signed and filed this 29th day of December, 1989.
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
                                         DAVID E. LINQUIST
 
                                         INDUSTRIAL COMMISSIONER
 
         
 
         
 
         Copies To:
 
         
 
         Mr. Robert S. Kinsey III
 
         Attorney at Law
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         214 North Adams
 
         P.O. Box 679
 
         Mason City, Iowa  50401
 
         
 
         Mr. Mark A. Wilson
 
         Attorney at Law
 
         30 Fourth Street NW
 
         P.O. Box 1953
 
         Mason City, Iowa 50401
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
 
         
 
 
 
 
 
 
 
 
 
 
 
                                     1804 - 4100
 
                                       Filed December 29, 1989
 
                                       David E. Linguist
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         DAVID S. STOBER,
 
         
 
              Claimant,
 
         
 
         VS.
 
                                                      File No. 792635
 
         CLEAR LAKE BAKERY,
 
                                                       A P P E A L
 
              Employer,
 
                                                     D E C I S I 0 N
 
         and
 
         
 
         WAUSAU INSURANCE COMPANIES,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         4100
 
                                         
 
              Deputy's determination of odd-lot reversed.  Pyle v. 
 
         Carstensen Freight Lines, Inc., (Appeal Decision, July 24, 1987) 
 
         improperly relied on by deputy.  Carstensen found odd-lot where 
 
         claimant enrolled in college courses designed to train him for 
 
         new job.  Claimant's efforts at education held to constitute 
 
         effort to find substitute employment in that case.  Here, 
 
         claimant did not apply for any other jobs, but merely made 
 
         several attempts to return to employment with defendant employer.  
 
         Good motivation to return to work, although a factor in 
 
         industrial disability, does not by itself constitute a good faith 
 
         effort to find substitute employment sufficient to establish 
 
         claimant as odd-lot and shift the burden to defendants.
 
         
 
         1804
 
         
 
              Claimant, 53 years old, lacking a high school education, 
 
         ratings of physical impairment of 16.5 percent and 22 percent of 
 
         the body as a whole, two surgeries, including fusion surgery, a 
 
         lifting restriction of 15 pounds and a medical need to rest often 
 
         found to be permanently totally disabled without reliance on 
 
         Guyton.
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
                        BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         DAVID S. STOBER,
 
         
 
              Claimant,                               File No. 792635
 
         
 
         vs.                                       A R B I T R A T I O N
 
         
 
         CLEAR LAKE BAKERY,                           D E C I S I O N
 
         
 
              Employer,
 
                                                         F I L E D
 
         and
 
                                                        MAR 15 1989
 
         WAUSAU INSURANCE COMPANIES,
 
                                                    INDUSTRIAL SERVICES
 
              Insurance Carrier,
 
              Defendants.
 
         
 
                                   INTRODUCTION
 
         
 
              This is a proceeding in arbitration brought by David S. 
 
         Stober against Clear Lake Bakery, his former employer, and its 
 
         insurance carrier, Wausau Insurance Companies.  The case was 
 
         heard and fully submitted at Fort Dodge, Iowa on June 14, 1988.  
 
         The record in this proceeding consists of testimony from David S. 
 
         Stober, Charlotte Stober, Kathryn Schrot, James E. McQuaid and 
 
         Clark H. Williams.  The record also contains jointly offered 
 
         exhibits 1 through 14 and 16 through 32.  The record contains. 
 
         defendants' exhibits A, B and C.
 
         
 
                                      ISSUES
 
         
 
              Claimant seeks compensation for healing period, permanent 
 
         disability and payment of medical expenses under Code section 
 
         85.27.
 
         
 
                               SUMMARY OF EVIDENCE
 
         
 
              The following is a summary of evidence presented in this 
 
         case.  Of all the evidence received at the hearing, only that 
 
         considered most pertinent to this decision is discussed. 
 
         Conclusions about what the evidence showed are inevitable with 
 
         any summarization.  The conclusions in the following summary 
 
         should be considered to be preliminary findings of fact.
 
         
 
              David S. Stober is a 53-year-old married man who lives at 
 
         Clear Lake, Iowa.  Stober did not graduate from high school.  He 
 
         has worked in the baking industry all his adult life.  He 
 
         commenced working at Lowenberg Bakery in Ottumwa, Iowa while he 
 
         was still in school and then dropped out of school to work at the 
 
         bakery full time.  Stober was employed at Lowenberg Bakery for 27 
 
         years.  He started greasing pans for boxed bread in 1950.  By 
 
         1952 he had moved up through a number of positions in the bakery 
 
         to become a part-time foreman.  Eventually he became a full-time 
 
         foreman.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              In 1962, with the employer's support, he completed a 
 
         six-month course in Chicago, Illinois which dealt with the 
 
         ingredients, formulations and chemical reactions pertinent to the 
 
         baking industry.  In 1963, he became an assistant superintendent 
 
         at the Lowenberg Bakery.  In 1973 he was made superintendent 
 
         where he was in charge of everything, a position similar to a 
 
         plant manager.
 
         
 
              On January 1, 1977, Stober left Lowenberg to accept a better 
 
         paying job as plant manager for the Bonnie Baking Company at 
 
         LaPorte, Indiana.  Stober stated that he was unable to get along 
 
         with the general manager and returned to the Lowenberg Bakery in 
 
         Ottumwa where he remained for one year.
 
         
 
              On September 1, 1978, Stober again left the Lowenberg Bakery 
 
         to accept a better paying position as production superintendent 
 
         for bread and buns at the Clear Lake Bakery.  Stober testified 
 
         that the job turned out to be more physical than the 
 
         superintendent jobs he had held at Lowenberg and Bonnie Bakery 
 
         where his work was primarily supervisory and he performed 
 
         physical work only during major breakdowns.
 
         
 
              Stober testified that the job at Clear Lake Bakery involved 
 
         running the oven, checking bread and various other physical 
 
         activities.  Claimant stated that Bud Madsen, the plant 
 
         superintendent, told him that he had to perform those physical 
 
         activities.  Claimant testified that his duties turned out to be 
 
         more physical than they were supervisory.  Claimant agreed that 
 
         the job duties listed in defendants' exhibit A were generally 
 
         accurate except that he generally only worked 50 hours per week 
 
         at the Clear Lake Bakery and 10 hours per day at the Bonnie 
 
         Bakery.
 
         
 
              Stober testified that, prior to April, 1985, he had not 
 
         experienced any pain or difficulties with his neck, low back or 
 
         right leg and had not sought treatment for his neck, back or legs 
 
         from any doctor, physician or chiropractor.  Claimant stated 
 
         that, prior to April, 1985, he was not physically restricted.
 
         
 
              Stober testified that, on April 12, 1985, he was pulling a 
 
         rack out of a proof box while standing on a wet floor.  He stated 
 
         that he had his right arm around a post and that, while pulling 
 
         on the rack with his left, his feet slipped and he caught 
 
         himself. Stober stated that he felt no immediate pain and kept 
 
         working for the remainder of that day.  The rack was described as 
 
         containing ten shelves with five pans per shelf and that a loaded 
 
         rack weighs approximately 2,000 pounds.
 
         
 
              Stober testified that his pain started late that night with 
 
         a stiff neck.  He indicated that he was unable to move his head, 
 
         but did nothing about it and went to work the following day.  
 
         Stober testified that it worsened and that he took aspirin.  
 
         Stober testified that he lifted a board weighing 130-150 pounds.
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
              Stober testified that on Saturday he took the place of a 
 
         foreman who was on vacation.  Claimant stated that on Sunday, 
 
         while doing orders, his left arm and his entire left side became 
 
         numb and hurt so much that he thought he was having a stroke. 
 
         Claimant phoned Larry Hogland and then went home.  His wife took 
 
         him to the emergency room at St. Joseph Mercy Hospital in Mason 
 
         City, Iowa.  X-rays were taken.  Claimant's exhibit 1, the 
 
         emergency room record, shows that claimant was advised to remain 
 
         at bed rest with heat for three days, to remain off work for five 
 
         days and that he was also prescribed medication.  The x-rays 
 
         taken showed degenerative changes of claimant's cervical spine 
 
         with narrowing at the C5-6 and C6-7 disc spaces and some reversal 
 
         of the normal lordotic curvature.
 
         
 
              When claimant's symptoms did not resolve, he sought 
 
         treatment from W. K. Dankle, M.D., a Clear Lake physician.  After 
 
         medication did not help, claimant was referred to Sant M. S. 
 
         Hayreh, M.D., a neurologist, who examined him and then referred 
 
         him on to Mayo Clinic at Rochester, Minnesota (exhibit 3).
 
         
 
              A myelogram conducted at the Mayo Clinic showed a defect in 
 
         claimant's cervical spine at the C-6 level.  A left partial 
 
         hemilaminectomy of claimant's C-6 disc space was performed with 
 
         removal of a large extruded disc fragment.  Following the 
 
         surgery, claimant showed marked resolution of his arm pain and 
 
         some improvement of the dysfunction in his wrist and digit 
 
         extensor muscles (exhibit 4).  It was initially indicated that 
 
         claimant would be "on disability" for six months following the 
 
         date of surgery (exhibit 5).  Claimant was released to return to 
 
         work on a part-time basis effective November 4, 1985, but 
 
         conforming work was not made available and claimant did not 
 
         resume employment (exhibit 6).  Claimant's last evaluation prior 
 
         to the partial release to return to work showed that he still had 
 
         mild to moderate weakness in his left hand muscles (exhibit 7).
 
         
 
              On December 9, 1985, claimant reported a recent worsening of 
 
         the pain in his neck and right upper extremity.  A myelogram and 
 
         CT scan which were performed showed a large bony hypertrophic 
 
         ridge at the C6-7 interspace and treatment with a neck 
 
         immobilizer brace was employed (exhibit 8).  On December 27, 
 
         1986, anterior cervical disc removal and fusion surgery was 
 
         performed at the C5-6 and C6-7 levels of claimant's cervical 
 
         spine.  The medical report indicates that claimant's initial 
 
         response from the surgery was excellent with significant relief 
 
         of many of his preoperative symptoms. Claimant was directed to 
 
         wear a rigid cervical brace for three to six months following the 
 
         surgery and it was indicated that he should be considered totally 
 
         disabled from work indefinitely (exhibit 9).  On April 30, 1986, 
 
         it was noted that claimant's fusion was completely healed and 
 
         that he would be able to return to work part-time (exhibit 11).  
 
         He was released by his orthopaedic surgeon, David G. Lewallen, 
 
         M.D., to return to work on a part-time basis commencing May 12, 
 
         1986 (exhibit 12).
 
         
 
              On August 14, 1986, claimant was again taken off work for 
 
         further evaluation (exhibit 13).  A report of August 15, 1986 
 
         indicates that Dr. Lewallen authorized claimant to perform 
 
         sedentary, light-duty activities which did not involve handling 
 
         weights of more than 20-25 pounds with his upper extremities or 
 
         repetitive use of his upper extremities above shoulder level 
 
         (exhibit 14).  On August 29, 1986, Dr. Lewallen rated claimant as 
 
         having a 16.5% permanent impairment of the whole person, 
 
         apparently under the Minnesota rating system (exhibit 16).
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              Claimant testified that he resumed work September 30, 1986 
 
         with restrictions and, after meeting with the general manager and 
 
         Bud Madsen, he was assigned to making out bread and bun orders 
 
         (exhibit 31).  Claimant stated that he was paid $9.00 per hour 
 
         which provided him a reduction in earnings of $195.00 per week. 
 
         Claimant stated that he started working full-time doing the 
 
         orders, but that on some days, he worked less than eight hours 
 
         and some weeks actually worked less than 30 hours.
 
         
 
              Claimant testified that he experienced pain for which he 
 
         took Tylenol III and that his pain limited his work hours.  
 
         Claimant stated that he worked for approximately 13 months.  He 
 
         stated that, in March, 1987, he was off work for approximately 
 
         one week to obtain an MRI scan at the Mayo Clinic.  He stated 
 
         that, on August 20, 1987, he slipped on grease at the bakery and 
 
         that the incident flared the pain in his neck and resulted in him 
 
         being sent back to the Mayo Clinic.  Claimant stated that x-rays 
 
         were taken, but that no other treatment was provided (exhibit 
 
         22).
 
         
 
              Stober testified that he worked until November, 1987 doing 
 
         the ordering.  He stated that he took order slips from the 
 
         salesmen and transferred them onto a main sheet.  He stated that 
 
         orders came in all day and that he worked from 12:00 noon until 
 
         8:00 p.m.  Stober characterized the job as being light and 
 
         sedentary and meeting the doctor's restrictions.  He stated that 
 
         the problem was that sitting aggravated his neck and that, at 
 
         times, it was so bad he was unable to work.  Claimant testified 
 
         that he ceased working on November 5, 1987 at the recommendation 
 
         of Dr. Dankle and was sent back to the Mayo Clinic.  Stober 
 
         testified that, while at the clinic, he requested and received a 
 
         release to return to work, but that when he contacted his 
 
         employer, he was told that if he were unable to return to 
 
         full-time work, there was no work available for him.  Claimant 
 
         stated that he was informed that the ordering job was only a 
 
         temporary position and that claimant needed to be productive if 
 
         he were to be employed at the bakery.
 
         
 
              In April, 1988, claimant was evaluated at the St. Joseph 
 
         Mercy Hospital in Mason City under the direction of D. E. Fisher, 
 
         M.D., an orthopaedic surgeon.  The majority of the treatment and 
 
         evaluation was centered on claimant's lumbar spine, not his 
 
         cervical spine.  Dr. Fisher expressed the opinion that claimant 
 
         would never be 100% recovered and that he would be at 
 
         considerable risk if he performed employment involving heavy 
 
         straining, lifting, bending and stooping as he did at the bakery.  
 
         Dr. Fisher also recommended that claimant not sit for more than 
 
         30 minutes (exhibits 24 and 25).  On May 26, 1986, Dr. Fisher 
 
         stated that he was unable to relate claimant's back problems to 
 
         the 1985 work injury (exhibit 32).
 
         
 
              Dr. Dankle's early treatment notes of June 20, 1985 and June 
 
         29, 1985 note leg weakness and leg pain respectively (exhibit 2, 
 
         page 3).  Nothing in Dr. Dankle's notes prior to November 5, 1987 
 
         contains any indication that he recommended claimant to 
 
         discontinue working (exhibit 2, page 9).  On May 2, 1988, Dr. 
 
         Dankle indicated that he assumed claimant would be unable to work 
 
         at any significant occupation for so long as his current level of 
 
         disability persists (exhibit 26).
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              Claimant was evaluated by John R. Walker, M.D., on November 
 
         7, 1986.  Dr. Walker's report, exhibit 17, contains a very 
 
         comprehensive summary of claimant's medical treatment.  At page 
 
         6, the report notes that claimant had returned to work in 
 
         September and was working six to seven hours per day without 
 
         performing heavy lifting.  Dr. Walker rated claimant as having a 
 
         22% permanent impairment of the body as a result of his cervical 
 
         spine and a 7% impairment of the body as a whole due to a chronic 
 
         lumbosacral sprain (exhibit 17, page 9).  Dr. Walker indicated 
 
         that claimant's condition could possibly regress (exhibit 17, 
 
         page 9).  In a subsequent report dated May 20, 1988, Dr. Walker 
 
         opined that claimant's low back condition was related to the 
 
         April, 1985 injury (exhibit 27).
 
         
 
              Claimant testified that he currently experiences pain in his 
 
         neck that goes up the left side to the back of his head and down 
 
         to his shoulder.  He stated that his left shoulder has pain from 
 
         the top of the shoulder running into his arm and that his left 
 
         arm gives him a lot of trouble on the lower side (little finger 
 
         side) of the arm.  Claimant testified that his left hand is 
 
         swollen and tingles all the time.  At hearing, claimant's left 
 
         hand was observed in comparison to his right and it did appear to 
 
         be somewhat swollen.  Claimant testified that his left leg hurts 
 
         in the area of the ankle, heel and kneecap and that, at times, it 
 
         feels as if it is red hot.  He stated that the calf hurts, 
 
         especially when he walks.  Claimant denied having any problems 
 
         with his right leg at the time of hearing.  He stated that his 
 
         low back is painful from just above the tailbone.  Claimant 
 
         stated that, at times, the entire back of his neck and both 
 
         shoulders are affected.  Claimant complained of headaches which 
 
         at one time occurred almost daily, but that are now somewhat less 
 
         frequent.  He complained of lost strength in his right arm.  He 
 
         stated that he does not carry with it or use it much because it 
 
         hurts if he lifts something.  Claimant stated that he has the 
 
         same complaints every day, that they are not bad when he gets up 
 
         in the morning, but that they worsen as the day progresses.  He 
 
         stated that he lies down to relieve the pain.  Claimant stated 
 
         that he takes prescription medication.  He stated that he has 
 
         discontinued activities such as fishing and taking vacations.  He 
 
         stated that he is unable to sit to fish in a boat and has sold 
 
         his boat.  He stated that he rode to the hearing lying in the 
 
         back of his van with his wife driving.
 
         
 
              Claimant testified that, in the ordering job, he worked with 
 
         a time deadline and did not have time in which to lie down or get 
 
         up and move around.  He stated that the position could not be 
 
         performed from a standing position.  Claimant stated that he does 
 
         not know of any job at the Clear Lake Bakery which he could 
 
         perform.  He stated that he did not feel capable of performing a 
 
         supervisory job as he had performed at the Lowenberg Bakery 
 
         unless it would allow him to lie down and rest as he needed, but 
 
         that he would certainly be willing to try.
 
         
 
              Claimant testified that payments made on his medical 
 
         expenses by Blue Cross/Blue Shield were the result of a group 
 
         plan which was paid by his employer, but that the other bills for 
 
         which he seeks payment, as contained in exhibit 28, are unpaid.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              Claimant testified that he has not turned down the 
 
         suggestion of pain clinic treatment which was made by Dr. 
 
         Lewallen, but that they would not make the program available to 
 
         him until this litigation was resolved.
 
         
 
              Claimant testified that the doctors at the Mayo Clinic did 
 
         not treat his low back and leg.  He stated that they were told 
 
         about his complaints, but that they did not pay any attention to 
 
         them.
 
         
 
              Claimant testified that he has not sought employment.  He 
 
         stated that he would like to stay in the same industry.  He 
 
         stated that he would have to travel to look for work as there are 
 
         no other bakeries located in the Mason City-Clear Lake area.  He 
 
         stated that his wife is employed at Mercy Hospital in Mason City 
 
         and that he would be reluctant to move, although he would do so 
 
         for the right job.
 
         
 
              Charlotte Stober, claimant's wife of ten years, testified 
 
         that, prior to David's injury, he was active.  She stated that 
 
         they traveled and that he had a boat and fished.  She testified 
 
         that he had no neck, arm, leg or back complaints prior to 
 
         mid-April of 1985.
 
         
 
              Charlotte testified that, when she arrives home from work, 
 
         David is usually in bed, and that the things she does are 
 
         generally done by herself.  She testified that she performs all 
 
         the manual labor around the home and confirmed that David's 
 
         fishing boat had been sold.
 
         
 
              Charlotte testified that claimant's low back and left leg 
 
         complaints all started at the same time a couple of months after 
 
         the 1985 incident.
 
         
 
              Charlotte testified that since the 1986 fusion surgery, 
 
         David's complaints seem to have worsened and that he seems to be 
 
         in pain all the time.  Charlotte's testimony agreed with David's 
 
         regarding Dr. Lewallen's January, 1988 release to return to work. 
 
         Both testified that Dr. Lewallen verbally stated that the return 
 
         to work would be for a few hours at the start despite the fact 
 
         that the written release slip indicates full-time employment.
 
         
 
              Charlotte stated that she does not know of any employment 
 
         skills which David would have other than within the baking 
 
         industry.
 
         
 
              James E. McQuaid, the president of Clear Lake Bakery, 
 
         testified that in approximately March, 1988, he met with claimant 
 
         regarding a possible resumption of employment activities.  
 
         McQuaid stated that claimant reported that he was unable to stand 
 
         or sit for more than 15 minutes at a time due to pain and that 
 
         the only relief was from lying down.  McQuaid stated that, under 
 
         those conditions, claimant was unable to return to work.  McQuaid 
 
         stated that the Clear Lake Bakery is a small commercial bakery 
 
         with approximately 110 employees at Clear Lake and that it also 
 
         has a wholly owned subsidiary bakery in Waterloo, Iowa which 
 
         employs approximately 60 individuals.  McQuaid testified that the 
 
         bakery serves the state of Iowa.  McQuaid testified that he spoke 
 
         over the telephone with Dr. Lewallen and was verbally given 
 
         restrictions compatible with those contained in exhibit 21. 
 
         McQuaid testified that no positions are currently available 
 
         within those restrictions and that they have no job which permits 
 
         lying down.  He stated that the ordering job was created as part 
 
         of a work hardening effort and that, on a long-term basis, it 
 
         would have to be combined with something more physically 
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         demanding. McQuaid stated that all supervisors at the Clear Lake 
 
         Bakery are working supervisors, but that most union bakeries do 
 
         not have working supervisors.  He stated that union bakeries are 
 
         located in Cedar Rapids, Waterloo, Des Moines and Dubuque, Iowa.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              Kathryn Schrot, a qualified vocational consultant, testified 
 
         that 80% of her work is involved with returning injured 
 
         individuals back to the workplace and that 5%-10% of her working 
 
         time is involved with giving testimony.  Schrot testified that 
 
         she works in southern Minnesota and northern Iowa and is familiar 
 
         with employment opportunities in that area.
 
         
 
              Schrot evaluated claimant and found him to have no 
 
         transferable skills in view of his mechanical (physical) 
 
         restrictions, despite the fact that he does have many skills 
 
         compatible with a production supervisor type of position.  She 
 
         stated that for him to move into another industry, he would have 
 
         to learn that new industry.
 
         
 
              Schrot expressed the opinion that claimant is not employable 
 
         in any well-known branch of the labor market and that there was 
 
         no expectation of him obtaining steady, stable employment.
 
         
 
              Schrot testified that at the age of 53 years, claimant was 
 
         rather old for making a change to a different industry and that 
 
         he was severely limited by his education, physical restrictions 
 
         and the unsuccessful attempt to return to work which had been 
 
         made. Schrot testified that employers are generally reluctant to 
 
         hire a person whom they feel is someone else's problem.  She 
 
         stated that it was unlikely for claimant to obtain a production 
 
         planner type of light or sedentary job because individual jobs 
 
         vary considerably from one employer to another, and many 
 
         supervisory positions also involve manual labor.  She also stated 
 
         that promotion in a business is usually from within the plant and 
 
         that it is often difficult to move into a high level supervisory 
 
         position from the outside.
 
         
 
              Schrot testified that she was not employed to find 
 
         employment for claimant, but that in order to get him back to 
 
         work, it would be necessary for him to work with a vocational 
 
         consultant, to have his physical restrictions clarified and that 
 
         a work hardening program be followed.  Schrot agreed that light 
 
         and sedentary employment is available in the Mason City-Clear 
 
         Lake area and that claimant's work at the bakery was classified 
 
         as skilled employment.  Schrot felt that teaching was not a 
 
         viable employment alternative for claimant due to his lack of 
 
         prior teaching experience and also due to his need to take rests.
 
         
 
              Clark Williams, a qualified vocational consultant, testified 
 
         that, in his opinion, David Stober is employable if sufficient 
 
         effort and assistance are supplied, but that claimant believes 
 
         himself to be totally disabled.  Williams felt that claimant 
 
         could work as a bakery instructor at a school or at a larger 
 
         bakery or other industries where nonworking supervisors are 
 
         employed. Williams stated that the earning level for such could 
 
         range from $18,000-$47,000 per year.  Williams also stated that 
 
         if claimant moved outside the baking industry, he would start at 
 
         entry level wages of $3.35-$4.84 per hour.
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
              Williams testified that he was hired to give an opinion in 
 
         this case and formed his opinion on June 8, 1988.  He stated that 
 
         he was also hired to get claimant back to work and would continue 
 
         to work toward that end until he was taken off the case.  He 
 
         stated that he has not done any work toward placing claimant in a 
 
         job.  Williams agreed that most planners and supervisors are 
 
         hired from within rather than from outside the company.  Williams 
 
         agreed that Clear Lake Bakery would have to create a job in order 
 
         to provide employment for claimant.
 
         
 
              Defendants' exhibit A is the report prepared by Williams.  
 
         At page 8 of the report, Williams lists job classifications that 
 
         would be contained within claimant's work history.  At page 9 of 
 
         the report, Williams lists wage rates as reported by the Iowa 
 
         Department of Job Service.  At pages 10 and 11, Williams listed a 
 
         number of occupations which he felt claimant could possibly 
 
         enter. He also indicated that such positions would pay in the 
 
         range of minimum wage to $1.50 per hour above minimum wage at the 
 
         entry level.  At the bottom of page 11 and top of page 12, 
 
         Williams listed jobs for which there have been openings in the 
 
         areas of Cerro Gordo, Floyd, Franklin, Hancock, Kossuth, 
 
         Mitchell, Winnebago and Worth counties during 1987.  It is noted 
 
         that of those listed, only telephone solicitor and security guard 
 
         appear on both the list of potential jobs and the list of jobs in 
 
         which there had been openings.  Williams also stated in his 
 
         report that the demands of any particular job could vary from 
 
         those typically seen in the job as listed in his reference 
 
         materials.
 
         
 
              Williams stated that in order to return claimant to work, it 
 
         would be necessary to clarify the physical restrictions imposed 
 
         by the physicians, to have claimant select an area of work which 
 
         he would like to enter, to provide job seeking skills, counseling 
 
         and other vocational guidance type of services.
 
         
 
                           APPLICABLE LAW AND ANALYSIS'
 
         
 
              Claimant has the burden of proving by a preponderance. of 
 
         the evidence that he received an injury on April 12, 1985 which 
 
         arose out of and in the course of his employment.  McDowell v. 
 
         Town of Clarksville, 241 N.W.2d 904 (Iowa 1976); Musselman v. 
 
         Central Telephone Co., 261 Iowa 352, 154 N.W.2d 128 (1967).
 
         
 
              The supreme court of Iowa in Almquist v. Shenandoah 
 
         Nurseries, 218 Iowa 724, 254 N.W. 35 (1934) at 731-32, discussed 
 
         the definition of personal injury in workers' compensation cases 
 
         as follows:
 
         
 
              While a personal injury does not include an occupational 
 
              disease under the workmen's Compensation Act, yet an injury 
 
              to the health may be a personal injury [Citations omitted.] 
 
              Likewise a personal injury includes a disease resulting from 
 
              an injury....The result of changes in the human body 
 
              incident to the general processes of nature do not amount to 
 
              a personal injury.  This must follow, even though such 
 
              natural change may come about because the life has been 
 
              devoted to labor and hard work.  Such result of those 
 
              natural changes does not constitute a personal injury even 
 
              though the same brings about impairment of health or the 
 
              total or partial incapacity of the functions of the human 
 
              body.
 

 
              
 
 
 
 
 
 
 
 
 
 
 
         
 
                   ....
 
         
 
              A personal injury, contemplated by the Workmen's 
 
              Compensation Law, obviously means an injury to the body, the 
 
              impairment of health, or a disease, not excluded by the act, 
 
              which comes about, not through the natural building up and 
 
              tearing down of the human body, but because of a traumatic 
 
              or other hurt or damage to the health or body of an 
 
              employee.  (Citations omitted.]  The injury to the human 
 
              body here contemplated must be something, whether an 
 
              accident or not, that acts extraneously to the natural 
 
              processes of nature and thereby impairs the health, 
 
              overcomes, injures, interrupts, or destroys some function of 
 
              the body, or otherwise damages or injures a part or all of 
 
              the body.
 
         
 
              Claimant's appearance and demeanor as he testified at 
 
         hearing was considered in connection with the other evidence in 
 
         the case. His testimony regarding the incidents of injury is 
 
         corroborated by the records of his initial medical treatment.  
 
         Accordingly, it is determined that David Stober was injured on 
 
         April 12, 1985 while pulling on a rack as he testified and that 
 
         he further aggravated the condition by lifting a pressure board.
 
         
 
              The injury that Stober sustained consists of herniated discs 
 
         in his cervical spine.  Stober also contends that the injury 
 
         includes his low back.  The records of treatment show some 
 
         complaints regarding claimant's low back or legs having been made 
 
         during the time he was receiving active treatment for his 
 
         cervical injury.  Claimant testified that he reported the low 
 
         back and leg complaints to his physicians, but they ignored them.  
 
         It is not uncommon for what appear to be relatively minor 
 
         complaints to be essentially ignored when a known serious 
 
         condition is being treated.  Dr. Walker relates claimant's low 
 
         back complaints to the April, 1985 trauma, but none of the other 
 
         physicians have done so. This case presents a factor that is 
 
         somewhat unusual.  In exhibit 24, Dr. Fisher noted that he 
 
         believed that claimant's physiological aging process was far 
 
         advanced ahead of his chronological age.  Having observed 
 
         claimant at hearing, it is certainly true that he presented the 
 
         appearance of someone who was approximately 65 years of age, 
 
         rather than someone in his early 50's.  The degenerative changes 
 
         that have been identified in the radiographic reports which are 
 
         in evidence are consistent with claimant having an accelerated 
 
         aging process.  Dr. Fisher did not make any precise diagnosis 
 
         regarding claimant's low back.  Dr. Walker found some 
 
         osteoarthritic changes in the lumbar spine and diagnosed a 
 
         lumbosacral sprain.  Under the evidence that exists in this case, 
 
         it is certainly possible that claimant may have injured his low 
 
         back in the events of April, 1985, but the evidence fails to show 
 
         that such an injury is probable, or in other words, more likely 
 
         than not.  Accordingly, it is determined that claimant's injury 
 
         of April 12, 1985 is limited to his cervical spine region and 
 
         that it does not include the lumbar spine region.  This 
 
         determination recognizes that some trauma was applied in 
 
         claimant's pelvic region when harvesting the bone from which the 
 
         cervical grafts were formed, but there is no indication that the 
 
         procedure caused any permanent disability or any temporary 
 
         disability that does not coincide with the disability resulting 
 
         from the treatment of the cervical injury.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              Claimant first sought medical treatment on April 14, 1985 
 
         (exhibit 1).  Following that date, he did not return to work 
 
         until May 12, 1986 (exhibit 12).  There was one occasion when he 
 
         was authorized by his treating physician to resume employment 
 
         under restrictions, but the employer did not make employment 
 
         available. The restrictions were quite significant and the 
 
         release was not to employment which was substantially similar to 
 
         that which claimant had performed at the time of injury.
 
         
 
              Claimant worked commencing May 13, 1986 through August 12, 
 
         1986.  He was then off work until Dr. Lewallen provided an 
 
         impairment rating on August 29, 1986 (exhibit 16).  It also 
 
         appears from claimant's testimony that he resumed working on 
 
         September 1, 1986 which is consistent with the rating provided on 
 
         August 29, 1986.  The evidence does not show any particular 
 
         treatment, recovery or healing process to have been anticipated 
 
         or to have occurred subsequent to claimant's November 7, 1987 
 
         departure from the Clear Lake Bakery workforce.
 
         
 
              An employer takes an employee subject to any active or 
 
         dormant health impairments, and a work connected injury which 
 
         more than slightly aggravates the condition is considered to be a 
 
         personal injury.  Ziegler v. United States Gypsum Co., 252 Iowa 
 
         613, 620, 106 N.W.2d 591 (1960), and cases cited.
 
         
 
              Aggravation of a preexisting condition is simply one form of 
 
         compensable injury.  Stober likely had an ongoing degenerative 
 
         process affecting his cervical spine prior to the April 12, 1985 
 
         injury, but it had not previously been disabling.  Stober has now 
 
         undergone two surgeries which have fused two levels of his 
 
         cervical spine.  He has residual complaints and weakness 
 
         regarding his neck, shoulders and particularly his left upper 
 
         extremity.  His treating surgeon, Dr. Lewallen, rated him as 
 
         having a 16.5% permanent impairment while Dr. Walker assigned a 
 
         22% permanent impairment rating.  This case is complicated by the 
 
         fact that claimant has developed low back problems which the 
 
         evidence has not shown to be work-related.  While an employer is 
 
         responsible for aggravation of a preexisting condition, an 
 
         employer is not responsible for conditions which arise subsequent 
 
         to the compensable injury, unless those subsequently arising 
 
         conditions were proximately caused by the compensable injury.  
 
         The evidence does not make such a showing in this case.
 
         
 
              As claimant has an impairment to the body as a whole, an 
 
         industrial disability has been sustained.  Industrial disability 
 
         was defined in Diederich v. Tri-City Railway Co., 219 Iowa 587, 
 
         593, 258 N.W. 899, 902 (1935) as follows:  "It is therefore plain 
 
         that the legislatures intended the term 'disability' to mean 
 
         'industrial disability' or loss of earning capacity and not a 
 
         mere 'functional disability' to be computed in the terms of 
 
         percentages of the total physical and mental ability of a normal 
 
         man."
 
         
 
              Functional impairment is an element to be considered in 
 
         determining industrial disability which is the reduction of 
 
         earning capacity, but consideration must also be given to the 
 
         injured employee's age, education, qualifications, experience and 
 
         inability to engage in employment for which he is fitted.  Olson 
 
         v. Goodyear Service Stores, 255 Iowa 1112, 1121 125 N.W.2d 251, 
 
         257 (1963).
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              Industrial disability or loss of earning capacity is a 
 
         concept that is quite similar to impairment of earning capacity, 
 
         an element of damage in a tort case.  Impairment of physical 
 
         capacity creates an inference of lessened earning capacity.  The 
 
         basic element to be determined, however, is the reduction in 
 
         value of the general earning capacity of the person, rather than 
 
         the loss of wages or earnings in a specific occupation.  
 
         Post-injury earnings create a presumption of earning capacity.  
 
         The earnings are not synonymous with earning capacity and the 
 
         presumption may be rebutted by evidence showing the earnings to 
 
         be an unreliable indicator.  Carradus v. Lange, 203 N.W.2d 565 
 
         (Iowa 1973); Holmquist v. Volkswagon of America, Inc., 261 N.W.2d 
 
         516 (Iowa App. 1977) A.L.R.3d 143; Michael v. Harrison County, 
 
         34th Biennial Report, 218 (1979): 2 Larson Workmen's Compensation 
 
         Law, sections 57.21 and 57.31.
 
         
 
              Claimant seeks compensation for permanent total disability 
 
         and application of the odd-lot doctrine as adopted by the Iowa 
 
         Supreme Court in the case Guyton v. Irving Jensen Co., 373 N.W.2d 
 
         101, 103 (Iowa 1985).  Total disability exists when the 
 
         combination of factors considered in determining industrial 
 
         disability precludes the worker from obtaining regular, stable 
 
         employment in which he can earn a living for himself.  Guyton v. 
 
         Irving Jensen Co., supra; McSpadden v. Big Ben Coal Co., 282 
 
         N.W.2d 181, 192 (Iowa 1980); Diederich v. Tri-City R. Co., 219 
 
         Iowa 587, 594, 258 N.W. 899, 902 (1935).  This agency has adopted 
 
         a precedent that making a bona fide effort to secure employment 
 
         is the only manner in which an injured employee can establish a 
 
         prima facie case of total disability, as a member of the odd-lot 
 
         category, in order to cause the burden of proof to shift to the 
 
         employer.  Collins v. Friendship Village, Inc., file number 
 
         679258 (App. Decn., October 31, 1988); Emshoff v. Petroleum 
 
         Transportation Services, file number 753723 (App. Decn., March 
 
         31, 1987).  Claimant testified that he has not sought other 
 
         employment.  Normally, this would prevent the burden of proof 
 
         from shifting to the employer, however, claimant did, in this 
 
         case, make a substantial long-term effort to resume employment.  
 
         The circumstances are similar to those present in the case Pyle 
 
         v. Carstensen Freight Lines, Inc., file number 753661 (App. 
 
         Decn., July 24, 1987) wherein it was held that the employee's 
 
         unsuccessful attempt to retrain through the community college was 
 
         sufficient to cause the burden of proof to shift to the employer.
 
         
 
              According to James McQuaid, the ordering job that claimant 
 
         performed was only a temporary work hardening effort.  It was not 
 
         something which would have been available to claimant on a 
 
         permanent basis.  The evidence fails to show that any solely 
 
         supervisory positions were available to claimant in the baking 
 
         industry or any other industry, in the geographical area of Clear 
 
         Lake, Iowa.
 
         
 
              The evidence from Kathryn Schrot is accepted as being 
 
         correct where it conflicts with the evidence from Clark Williams 
 
         in view of her increased level of familiarity with the labor 
 
         market in north central Iowa.  Further, while Williams identified 
 
         a number of potential positions that he felt might fall within 
 
         claimant's physical capabilities, no evidence was presented that 
 
         any of those positions, which did in fact meet the claimant's 
 
         physical restrictions, actually existed in the geographical area 
 
         of claimant's residence.  Williams did not introduce evidence 
 
         that claimant would have a reasonable chance of obtaining any 
 
         such positions in a competitive employment setting.  Williams did 
 
         not introduce evidence that the jobs were full-time positions 
 
         which were available on a steady, continuing basis or that the 
 
         jobs would provide a sufficient amount of income to enable 
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         claimant to be self-supporting.  Both consultants agreed that 
 
         claimant would need professional assistance in order to resume 
 
         any employment. That fact alone may be sufficient to establish 
 
         that claimant is not competitively employable.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              When considering all the evidence in the record, including 
 
         the fact that claimant's low back problems and sitting 
 
         restriction are not a result of the April 12, 1985 injury, it is 
 
         nevertheless determined that, as a result of the April 12, 1985 
 
         injury, David Stober does not have sufficient residual earning 
 
         capacity to enable him to be self-supporting.  It is further 
 
         determined that it is unlikely that David Stober will be able to 
 
         find stable, gainful employment in a competitive employment 
 
         setting in any well-recognized faction of the labor market in the 
 
         area of Clear Lake, Iowa.  It is therefore concluded that David 
 
         Stober is permanently and totally disabled within the provisions 
 
         of Code section 85.34(3).
 
         
 
              Exhibit 28 contains the medical expenses which claimant 
 
         seeks to recover.  Only the $23.00 charge incurred on November 
 
         10, 1987 with Radiologists of Mason City is shown to have 
 
         involved claimant's cervical spine.  The other expenses appear to 
 
         have been primarily related to claimant's lumbar spine, a 
 
         noncompensable condition.  Accordingly, defendants' liability is 
 
         limited to that one $23.00 charge from Radiologists of Mason 
 
         City.
 
         
 
                                 FINDINGS OF FACT
 
         
 
              1.  On April 12, 1985 and continuing up to the time of 
 
         hearing, David Stober was a resident of Clear Lake, Iowa.
 
         
 
              2.  Stober was injured on April 12, 1985 at his place of 
 
         employment with Clear Lake Bakery in Clear Lake, Iowa while 
 
         attempting to pull a rack.  He subsequently sustained further 
 
         injury while lifting at his place of employment.
 
         
 
              3.  At the time of injury, Stober was employed by Clear Lake 
 
         Bakery as a production superintendent, a position in which he 
 
         performed a substantial amount of physical labor.
 
         
 
              4.  During 1986 and 1987, claimant resumed employment with 
 
         Clear Lake Bakery in a job that was intended by the employer to 
 
         be a temporary, work hardening type of position.  The job would 
 
         not have been available on a permanent basis, even if claimant 
 
         had been physically capable of performing it indefinitely.
 
         
 
              5.  Claimant is 53 years of age, but it appears that the 
 
         physiological aging process affecting him is 10-15 years ahead of 
 
         his actual chronological age.
 
         
 
              6.  At the time of injury, claimant was earning 
 
         approximately $550 per week.
 
         
 
              7.  The charge of $23.00 incurred with Radiologists of Mason 
 
         City on November 10, 1987 represents reasonable treatment for the 
 
         April 12, 1985 injury, but the other expenses contained in 
 
         exhibit 28 are not shown to be related to that injury.
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
              8.  At the present time, Stober experiences frequent 
 
         headaches and neck pain.  He experiences numbness and weakness 
 
         regarding his left upper extremity and hand.  Stober's pain is 
 
         aggravated by sitting and working at a desk where his neck is 
 
         extended forward.  Claimant has an impairment in the range of 20% 
 
         of the whole person based upon the condition of his cervical 
 
         spine.  All the foregoing physical problems resulted from the 
 
         April 12, 1985 injury.  Claimant also has low back problems which 
 
         are not shown to have been a result of the April 12, 1985 injury.
 
         
 
              9.  Stober has a tenth grade education.  His entire work 
 
         life has been spent in the baking industry.  He has no 
 
         demonstrated aptitudes for academic achievement.  He has no 
 
         demonstrated capabilities which would enable him to work in a 
 
         supervisory capacity in any other industry.
 
         
 
              10.  The assessment of claimant's employability as made by 
 
         Kathryn Schrot is accepted as being more correct than the 
 
         assessment made by Clark Williams.
 
         
 
              11.  It is unlikely that David Stober can obtain steady, 
 
         stable employment in any well-recognized faction of the labor 
 
         market as a result of the injuries that he sustained on April 12, 
 
         1985.
 
                                CONCLUSIONS OF LAW
 
          
 
              1.  This agency has jurisdiction of the subject matter of 
 
         this proceeding and its parties.
 
              
 
              2.  Claimant sustained an injury to his cervical spine on 
 
         April 12, 1985 which arose out of and in the course of his 
 
         employment with Clear Lake Bakery.
 
         
 
              3.  David Stober is permanently and totally disabled under 
 
         the provisions of Code section 85.34(3) as a result of the 
 
         injuries he sustained on April 12, 1985.
 
         
 
              4.  Stober is entitled to receive weekly compensation at the 
 
         stipulated rate of $329.05 per week payable commencing June 14, 
 
         1988 and continuing for so long as he remains totally disabled.
 
         
 
              5.  Defendants are entitled to credit for the wages paid 
 
         during claimant's attempt to resume gainful employment.
 
         
 
              6.  Claimant's attempt to resume employment with his 
 
         employer is a sufficient effort to return to work that, when 
 
         coupled with the expert testimony from Kathryn Schrot, makes a 
 
         prima facie showing of total disability and causes the burden of 
 
         proof to shift to the defendants to establish that claimant is 
 
         not totally disabled.
 
         
 
                                      ORDER
 
         
 
              IT IS THEREFORE ORDERED that defendants pay claimant weekly 
 
         compensation for permanent total disability at the stipulated 
 
         rate of three hundred twenty-nine and 05/100 dollars ($329.05) 
 
         per week payable commencing June 14, 1988 and continuing each 
 
         week thereafter for so long as Stober remains totally disabled 
 
         under the provisions of Code section 85.34(3).
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              IT IS FURTHER ORDERED that defendants are entitled to credit 
 
         against this award for all amounts of weekly compensation 
 
         previously paid and also, on a week-to-week basis, for wages paid 
 
         during claimant's periods of attempts to return to.work in 
 
         accordance with Division of Industrial Services Rule 343-8.4.
 
         
 
              IT IS FURTHER ORDERED that defendants pay all remaining past 
 
         due amounts in a lump sum together with interest pursuant to Code 
 
         section 85.30.
 
         
 
              IT IS FURTHER ORDERED that defendants pay claimant's medical 
 
         expense with Radiologists of Mason City in the amount of 
 
         twenty-three and 00/100 dollars ($23.00).
 
         
 
              IT IS FURTHER ORDERED that defendants pay the costs of this 
 
         action pursuant to Division of Industrial Services Rule 343-4.33 
 
         including seventy-five and 00/100 dollars ($75.00) to reimburse 
 
         claimant for the costs of reports from Dr. Walker and one hundred 
 
         fifty and 00/100 dollars ($150.00) as an expert witness fee for 
 
         Kathryn Schrot.
 
         
 
              IT IS FURTHER ORDERED that defendants file Claim Activity 
 
         Reports as requested by this agency pursuant to Division of 
 
         Industrial Services Rule 343-3.1.
 
         
 
              Signed and filed this 15th day of March, 1989.
 
         
 
         
 
         
 
         
 
         
 
         
 
                                            MICHAEL G. TRIER
 
                                            DEPUTY INDUSTRIAL COMMISSIONER
 
         
 
         Copies To:
 
         
 
         Mr. Robert S. Kinsey III
 
         Attorney at Law
 
         214 North AdamS
 
         P.O. Box 679
 
         Mason City, Iowa  50401
 
         
 
         Mr. Mark A. Wilson
 
         Attorney at Law
 
         30 Fourth Street NW
 
         P.O. Box 1953
 
         Mason City, Iowa  50401
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
 
                                            
 
 
 
 
 
 
 
 
 
 
 
                                            1402.40, 1704, 1804, 4100
 
                                            Filed March 15, 1989
 
                                            MICHAEL G. TRIER
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         DAVID S. STOBER,
 
         
 
              Claimant,
 
         
 
         vs.                                        File No. 792635
 
         
 
         CLEAR LAKE BAKERY,                      A R B I T R A T I 0 N
 
         
 
              Employer,                             D E C I S I 0 N
 
         
 
         and
 
         
 
         WAUSAU INSURANCE COMPANIES,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         1402.40, 1804, 4100
 
         
 
              Claimant, a 50-year-old man who had been employed in the 
 
         baking industry, injured his neck which resulted in fusion 
 
         surgery at two levels of his spine.  The result of his treatment 
 
         was not particularly good and he was left with headaches, neck 
 
         pain, shoulder pain and impaired use of his left arm and hand.  
 
         The pain was of a magnitude to be distracting so as to impair his 
 
         ability to perform intellectual pursuits.  The neck pain was 
 
         aggravated by performing work at a desk with his neck extended 
 
         forward.  The odd-lot doctrine was applied based upon claimant's 
 
         substantial efforts to resume gainful employment with the 
 
         employer through a work hardening program despite the fact that 
 
         he had not sought employment elsewhere.  Testimony from a 
 
         vocational consultant also found claimant to be unemployable.  
 
         Claimant was awarded permanent total disability.
 
         
 
         1704
 
         
 
              Employer and insurance carrier were allowed credit against 
 
         the permanent total disability award for wages paid during the 
 
         work hardening attempt.
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                   BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         DAVID S. STOBER,
 
         
 
              Claimant,
 
                                                      File No. 792635
 
         vs.
 
                                                         O R D E R
 
         CLEAR LAKE BAKERY,
 
                                                          N U N C
 
              Employer,
 
                                                           P R O
 
         and
 
                                                          T U N C
 
         WAUSAU INSURANCE COMPANIES,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         
 
              It has come to the attention of the undersigned that an 
 
         erroneous date appears in the fourth paragraph of the Conclusions 
 
         of Law and again in the first paragraph of the Order, both of 
 
         which are at page 15 of the Arbitration Decision filed March 15, 
 
         1989.
 
         
 
              Both paragraphs make reference to the date of June 14, 1988 
 
         as the date for commencement of total disability compensation.  
 
         June 14, 1988 is the date that the case was heard, which date has 
 
         no relationship to the commencement of total disability 
 
         compensation.
 
         
 
              When an injury produces total disability, the weekly 
 
         compensation is payable commencing on the date that the 
 
         disability began.  When permanent total disability results, there 
 
         is no compensation for healing period to be awarded.  
 
         Accordingly, in this case the date for commencement of total 
 
         disability compensation is April 14, 1985.
 
         
 
              The entry of June 14, 1988 where it appears on page 15 of 
 
         the Arbitration Decision is a scrivener's error as the date 
 
         Stober's disability commenced was April 14, 1985.
 
         
 
              IT IS THEREFORE ORDERED, nunc pro tunc, that Conclusion of 
 
         Law number 4 found at page 15 of the Arbitration Decision filed 
 
         March 15, 1989 is amended by deleting the date June 14, 1988 and 
 
         inserting in lieu thereof the date April 14, 1985 so that the 
 
         provision reads as follows:
 
         
 
              4.  Stober is entitled to receive weekly compensation 
 
              at the stipulated rate of $329.05 per week payable 
 
              commencing April 14, 1985 and continuing for so long as 
 
              he remains totally disabled.
 
         
 
              IT IS FURTHER ORDERED, nunc pro tunc, that the first 
 
         unnumbered paragraph in the ORDER portion of the Arbitration 
 
         Decision filed March 15, 1989 is amended by deleting the date 
 
         June 14, 1988 and inserting in lieu thereof the date April 14, 
 
         1985 so that the provision reads as follows:
 
         
 

 
         
 
         
 
         
 
         STOBER V. CLEAR LAKE BAKERY
 
         PAGE   2
 
         
 
         
 
                 IT IS THEREFORE ORDERED that defendants pay claimant 
 
              weekly compensation for permanent total disability at 
 
              the stipulated rate of three hundred twenty-nine and 
 
              05/100 dollars ($329.05) per week payable commencing 
 
              April 14, 1985 and continuing each week thereafter for 
 
              so long as Stober remains totally disabled under the 
 
              provisions of Code section 85.34(3).
 
         
 
              IT IS FURTHER ORDERED that in all other respects, the 
 
         Arbitration Decision filed March 15, 1989 is ratified and 
 
         confirmed.
 
         
 
         
 
              Signed and filed this 21st day of March, 1989.
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
                                           MICHAEL G. TRIER
 
                                           DEPUTY INDUSTRIAL COMMISSIONER
 
         
 
         Copies To:
 
         
 
         Mr. Robert S. Kinsey III
 
         Attorney at Law
 
         214 North Adams
 
         P.O. Box 679
 
         Mason City, Iowa 50401
 
         
 
         Mr. Mark A. Wilson
 
         Attorney at Law
 
         30 Fourth Street NW
 
         P.O. Box 1953
 
         Mason City, Iowa 50401
 
         
 
 
         
 
 
 
 
 
 
 
 
 
 
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         JAMES K. SINN, JR.,
 
         
 
              Claimant                                     File No. 792683
 
              
 
          VS.                                              A P P E A L
 
         
 
          ARROW-ACME CORPORATION,                          D E C I S I 0 N
 
          
 
               Employer,
 
               Insurance carrier,
 
               Defendants.
 
         
 
         
 
                                     STATEMENT OF THE CASE
 
         
 
         
 
              Defendant appeals from an arbitration decision awarding 
 
         permanent partial disability benefits based on an industrial 
 
         disability of 35 percent.
 
         
 
              The record on appeal consists of the transcript of the 
 
         arbitration hearing; joint exhibits 1 through 47; claimant's 
 
         exhibit 1; and defendant's exhibits 1 and 2. Both parties filed 
 
         briefs on appeal.
 
         
 
                                      ISSUE
 
                                        
 
              The issue on appeal is the extent of claimant's industrial 
 
         disability attributable to a work injury on March 2, 1985.
 
         
 
                              REVIEW OF THE EVIDENCE
 
         
 
              The arbitration decision filed November 1, 1988 adequately 
 
         and accurately reflects the pertinent evidence and it will not be 
 
         reiterated herein.
 
         
 
                                  APPLICABLE LAW
 
         
 
              The citations of law in the arbitration decision are 
 
         appropriate to the issues and evidence.
 
         
 
                                     ANALYSIS
 
         
 
              The dispositive issue on appeal is the extent of industrial 
 
         disability attributable to the work injury on March 2, 1985.  The 
 
         defendant argues that claimant's current industrial disability is 
 
         the result of a work injury on December 3, 1980.  As the deputy 
 
         correctly noted a Form 2A in agency file number 659073 reflects
 
         
 
         
 
         SINN V. ARROW-ACME CORPORATION 
 
         Page 2
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         
 
         that the claimant and the employer, through the insurance 
 
         carrier, closed that file by agreeing to healing period benefits 
 
         and a five percent permanent partial disability to the body as a 
 
         whole.  However this was not an agreement of settlement.on appeal 
 
         neither party disputes that portion of the deputy's decision in 
 
         which it was determined that claimant's current cumulative 
 
         industrial disability is 35 percent.  When all relevant factors 
 
         are considered claimant's cumulative industrial disability 
 
         following the March 2, 1985 injury was 35 percent.
 
         
 
              In order to resolve this matter it must be determined how 
 
         much of claimant's cumulative industrial disability of 35 percent 
 
         is attributable to the work injury of March 2, 1985.  The 
 
         starting point for this discussion is that the opinions of Robert 
 
         Gitchell, M.D., an orthopaedic surgeon, will be relied upon and 
 
         will be given more weight than the opinion of Peter D. Wirtz, 
 
         M.D., also an orthopaedic surgeon.  Dr. Wirtz was an evaluating 
 
         physician who only saw claimant on one occasion nearly two years 
 
         after the work incident.  Dr. Gitchell was the treating physician 
 
         who performed both surgeries on claimant.  Dr. Gitchell treated 
 
         claimant from December 1980 through November 13, 1986, a 
 
         treatment period that included both the injuries of December 3, 
 
         1980 and March 2, 1985.
 
         
 
              Claimant had surgery at the L5-Sl level following both 
 
         injuries.  In both surgeries portions of the herniated disc were 
 
         removed.  Claimant's treatment period following the first surgery 
 
         was approximately 5 1/2 months (claimant was last seen by Dr. 
 
         Gitchell on May 18, 1981 for the December 3, 1980 injury).  
 
         Claimant's treatment period following the second surgery was 
 
         approximately twenty months (claimant was last seen by Dr. 
 
         Gitchell on November 13, 1986 for the March 2, 1985 injury).  
 
         Claimant's lifting restrictions have been changed from an 
 
         occasional maximum of 50 pounds to an occasional maximum of 35 
 
         pounds.  He has activities restrictions which include not 
 
         standing in one position, avoiding repeated bending or twisting 
 
         (both as to repetitions and duration) avoiding overhead reaching, 
 
         and avoiding employment that involves long or continuous 
 
         automobile rides or driving.  In addition, claimant is now barred 
 
         from working overtime.  Claimant's functional impairment is 15-20 
 
         percent in Dr. Wirtz's opinion and 25 percent in Dr. Gitchell's 
 
         opinion.  Dr. Gitchell attributed 10 percent of the impairment 
 
         rating to the 1980 injury.  Claimant was 34 years of age when the 
 
         1980 injury occurred and 38 years of age when the 1985 injury 
 
         occurred.  Claimant's other physical conditions such as 
 
         neurological problems in the right lower extremity have 
 
         manifested themselves following the March 2, 1985 injury.
 
         
 
              Claimant has had a significant change in his physical 
 
         condition as a result of the March 2, 1985 injury. claimant's 
 
         current cumulative industrial disability of 35 percent is almost
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         SINN V. ARROW-ACME CORPORATION 
 
         Page 3
 
         
 
         
 
         totally the result of the injury on that date.  Claimant did have 
 
         some industrial disability as a result of the first injury.  The 
 
         industrial disability from the first injury is determined to be 
 
         five percent.  Therefore, the industrial disability attributable 
 
         to the injury on March 2, 1985 in 30 percent.
 
         
 
                                 FINDINGS OF FACT
 
         
 
              1.  Claimant was born November 9, 1946.
 
         
 
              2.  Claimant suffered an injury on December 3, 1980 that 
 
         arose out of and in the course of his employment with defendant.
 
         
 
              3.  Claimant suffered an injury on March 2, 1985 that arose 
 
         out of and in the course of his employment with defendant.
 
         
 
              4.  Both the injuries caused a permanent functional 
 
         impairment to the body as a whole.
 
         
 
              5.  Both injuries resulted in surgery at the L5-Sl level and 
 
         in both surgeries herniated disk was removed.
 
         
 
              6.  Claimant's industrial disability as a result of the 
 
         injury on December 3, 1980 was five percent.
 
         
 
              7.  Claimant's injury of March 2, 1985 was a new injury to 
 
         the same situs and resulted in further permanent restrictions, 
 
         including: Lifting weight, bending and twisting (both repetitions 
 
         and duration), lengthy standing, lengthy driving, lifting above 
 
         the head and working overtime.
 
         
 
              8.  Claimant's functional impairment as a result of the 
 
         injury of March 2, 1985 is 15 to 25 percent.
 
         
 
              9.  Claimant's work injury of March 2, 1985 is the cause of 
 
         a significant increase in claimant's loss of earning capacity.
 
         
 
              10.  Claimant's cumulative loss of earning capacity 
 
         resulting from the work injuries of December 2, 1980 and March 2, 
 
         1985 is 35 percent.
 
         
 
              11.  Claimant's loss of earning capacity attributable to the 
 
         March 2, 1985 injury is 30 percent.
 
         
 
              12.  Defendant has previously paid claimant 120 weeks of 
 
         permanent partial disability benefits.
 
         
 
         
 
         SINN V. ARROW-ACME CORPORATION
 
         Page 4
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         
 
                                CONCLUSION OF LAW
 
         
 
              Claimant has proved that his work injury of March 2, 1985 is 
 
         the cause of a 30 percent industrial disability.
 
         
 
              WHEREFORE, the decision of the deputy is affirmed.
 
         
 
                                      ORDER
 
         
 
              THEREFORE, it is ordered:
 
         
 
              That defendant pay claimant an additional thirty (30) weeks 
 
         of permanent partial disability benefits at a rate of two hundred 
 
         fifty-five and 83/100 dollars ($255.83) per week.
 
         
 
              That accrued benefits be paid in a lump sum together with 
 
         statutory interest thereon pursuant to Iowa Code section 85.30.
 
         
 
              That costs of this action including costs of transcribing 
 
         the arbitration hearing be assessed against defendant pursuant to 
 
         Division of Industrial Services Rule 343-4.33.
 
         
 
              That defendant file a claim activity report pursuant to 
 
         Division of Industrial Services Rule 343-3.1.
 
         
 
              Signed and filed this 29th day of December, 1989.
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
                                         DAVID E. LINQUIST
 
                                         INDUSTRIAL COMMISSIONER
 
         
 
         
 
         Copies To:
 
         
 
         Mr. Philip F. Miller
 
         Attorney at Law
 
         309 Court #200
 
         Des Moines, Iowa  50309,
 
         
 
         Mr. Thomas M. Plaza
 
         Attorney at Law
 
         701 Pierce St., Ste.200
 
         P.O. BOX 3086
 
         Sioux City, Iowa  51102
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
 
                                        
 
 
 
 
 
 
 
 
 
 
 
                                        51702 - 51806
 
                                        Filed December 29, 1989
 
                                        DAVID E. LINQUIST
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         JAMES K. SINN, JR.,
 
         
 
              Claimant,                                    File No. 792683
 
         
 
         VS.                                         A P P E A L
 
          
 
          ARROW-ACME CORPORATION,                   D E C I S I 0 N
 
          
 
               Employer,
 
               Insurance Carrier,
 
               Defendants.
 
         
 
         
 
         
 
         
 
         51702 - 51806
 
         
 
              Claimant suffered second injury to some vertebrae disc in 
 
         second work accident.  He had surgery after both work injuries.  
 
         After second surgery claimant had greater functional impairment, 
 
         greater work restrictions, and longer recuperation. claimant's 
 
         industrial disability of 35 percent was almost totally caused by 
 
         second injury.  Prior work injury resulted in a five percent 
 
         industrial disability (the same amount insurance carrier had paid 
 
         claimant in prior case).  Employer found to be liable for 30 
 
         percent industrial disability but was given credit for prior 
 
         voluntary payments.
 
         
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                    BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         JAMES K. SINN, JR.,
 
         
 
              Claimant,
 
                                                File No.  792683
 
         
 
         vs.
 
                                             A R B I T R A T I O N
 
         
 
         ARROW-ACME 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 claimant, 
 
         James K. Sinn, Jr., against Arrow-Acme Corporation, defendant 
 
         self-insured employer, to recover benefits under the Iowa 
 
         Workers' Compensation Act as the result of an alleged injury of 
 
         March 2, 1985.  This matter came on for hearing before Deputy 
 
         Industrial Commissioner Garry Woodward in Des Moines, Iowa, on 
 
         March 3, 1988.  The matter was considered fully submitted at the 
 
         close of hearing, subject to receipt of one deposition.  The 
 
         record in the proceeding consists of joint exhibits 1 through 47, 
 
         claimant's exhibit 1, defendant's exhibits 1 and 2, and the 
 
         testimony of the following witnesses:  Theresa Lynch, Georgiann 
 
         Mueller, Judy Charlene Sinn, James Keith Sinn, Jr., and Peter 
 
         Dwight Wirtz, M.D.
 
         
 
              After the record was closed, Deputy Woodward discontinued 
 
         his employment with the office of the industrial commissioner.  
 
         By order of July 22, 1988, jurisdiction for the purpose of 
 
         preparing and filing a proposed agency decision was transferred 
 
         to the undersigned by the industrial commissioner.  A transcript 
 
         of proceedings was prepared and received.  All of the record 
 
         evidence has been reviewed.
 
         
 
                                      ISSUES
 
         
 
              Pursuant to the pre-hearing report submitted by the parties 
 
         on March 3, 1988 (the report was not at that time approved and 
 
         accepted into the record by Deputy Woodward), the only issue that 
 
         remains to be resolved is the extent of claimant's permanent 
 
         partial disability; a part of that determination is the degree to 
 
         which defendant is now liable, if at all, by reason of a 
 
         worsening or aggravation of a preexisting condition.  The parties 
 
         stipulated that the defendant paid claimant 135 weeks of 
 
         compensation prior to hearing.  Based on the stipulated healing 
 
         period benefits paid, claimant received 15 weeks of healing 
 
         period and 120 weeks to be applied as credit to permanent partial 
 
         disability (24% of 500 weeks).
 
         
 
                           REVIEW OF THE EVIDENCE
 
         
 
              Claimant was married and 41 years old at the time of 
 
         hearing.  He graduated from high school in 1965 and served in the 
 
         United States Army from 1966 until 1968.  He has been employed as 
 

 
         
 
         
 
         
 
         SINN V. ARROW-ACME CORPORATION
 
         PAGE   2
 
         
 
         a gravel truck driver, an electrician's helper, and a crew 
 
         foreman for a company that constructed grain bins.  When he began 
 
         his work for defendant, he was a machine maintenance worker, but 
 
         did that for only about six months.  He remains employed with 
 
         defendant as a tool and die machinist.  That work entails making 
 
         machine parts, making trim dies and running a lathe or mill.  He 
 
         worked five hours overtime on twenty or thirty occasions each 
 
         year at the time of injury.
 
         
 
              Claimant suffered a herniated disc in a work injury with 
 
         this employer on or about December 3, 1980.  He underwent a 
 
         laminectomy procedure at the hands of Robert Gitchell, M.D.  Dr. 
 
         Gitchell is an orthopaedic surgeon.
 
         
 
              Dr. Gitchell diagnosed a herniated disc at the L5-Sl level 
 
         of his low back with irritation of the nerve root producing 
 
         sciatica.  He was originally given conservative treatment of 
 
         rest, an exercise program and anti-inflammatory and muscle 
 
         relaxant medication.  His time off work was twice extended 
 
         through January 19, 1981, but claimant developed additional pain 
 
         and was admitted to the hospital on January 15, 1981.  He was 
 
         then treated with bedrest, physical therapy and a TENS unit, 
 
         leading to his discharge on January 24, 1981.
 
         
 
              Claimant attempted to return to work, but suffered increased 
 
         pain and was readmitted to the hospital on February 13, 1981.  
 
         Following a myelogram, a laminectomy was performed on February 
 
         20, 1981.  Several disc fragments were removed from claimant's 
 
         spinal column and he was discharged from the hospital after 
 
         making good recovery five days following the surgery.  Dr. 
 
         Gitchell's deposition shows that all loose fragments of disc at 
 
         that location were removed, but some pieces of disc were still 
 
         attached inside the vertebrae.  The doctor felt that 
 
         approximately half of the disc had actually been removed.  
 
         Claimant made a good recovery and was released to return to light 
 
         work effective April 13, 1981.  He was at that time limited to 
 
         lifting no more than 25 pounds and allowed only minimal bending 
 
         and twisting, not to be repetitive.  After seeing claimant again 
 
         on May 18, 1981, Dr. Gitchell imposed a permanent weight 
 
         restriction of 50-60 pounds.  This was the last Dr. Gitchell saw 
 
         of claimant until after the injury that is the subject of this 
 
         action.
 
         
 
               Industrial commissioner's file number 659073 reflects that 
 
         claimant and employer (and then insurance company Liberty Mutual) 
 
         entered into a settlement in which claimant was compensated for 
 
         healing period benefits and a five percent (twenty-five weeks) 
 
         permanent partial disability to the body as a whole along with 
 
         medical benefits and travel costs.
 
         
 
              Dr. Gitchell described claimant's status post-surgery in a 
 
         June 8, 1981 letter to a claims adjuster for Liberty Mutual 
 
         Insurance Company as follows:
 
         
 
              Mr. James Sinn was last seen May 18, 1981, for follow 
 
              up post-laminectomy.  He was doing well.  He had been 
 
              instructed in abdominal and back exercises.  He was 
 
              doing these and getting back in good shape.  He has 
 
              lost some weight so he was feeling better.  He had no 
 
              complaints of pain or discomfort of leg radiation down 
 
              into the right leg.  He was advised that he could 
 
              increase his activities.
 
         
 
              I expect no permanent physical impairment from his 
 

 
         
 
         
 
         
 
         SINN V. ARROW-ACME CORPORATION
 
         PAGE   3
 
         
 
              injury or his surgery; however, I would advise that he 
 
              be restricted in weight lifting to no more than 50 lbs. 
 
              and this only for a minimum of time.  I would not want 
 
              him doing heavy activities for any prolonged period of 
 
              time.
 
         
 
              Dr. Gitchell did not see claimant again until March 7, 1985. 
 
          Claimant at that time complained that pain in his back, right 
 
         hip and leg had returned within the week prior and was associated 
 
         with heavy lifting at work.  Claimant had minor signs of nerve 
 
         irritation and an ankle jerk absent on his right side, which had 
 
         not previously been the case.  Dr. Gitchell advised claimant 
 
         against heavy lifting or bending and placed him on an 
 
         anti-inflammatory medication.
 
         
 
              Claimant.returned in two weeks and had made some 
 
         improvement.  He advised Dr. Gitchell that his pain increased 
 
         toward the end of his work day.  He again returned on April 12, 
 
         1985, having made no further improvement.  Claimant at that time 
 
         complained of numbness and tingling in his right ankle and foot.  
 
         He again returned on May 2, 1985, complaining of increasing pain, 
 
         and was treated with epidural steroid injections.
 
         
 
              The injections appeared not to help.  Claimant was given a 
 
         CT scan on June 10 which showed some narrowing of the spinal 
 
         canal at the L4,5 level and also some scarring at the L5-Sl level 
 
         on the right, consistent with the previous laminectomy.
 
         
 
              As of August 12, 1985, claimant had increased pain and had 
 
         failed to respond to rest and a brace.  He was hospitalized and 
 
         scheduled for a CT scan with myelogram.  This enhanced CT scan 
 
         led to a diagnosis of herniated disc on the right at the L5-Sl 
 
         level.
 
         
 
              The CT scan and myelogram were performed on August 18.  
 
         However, it precipitated an emergency.  Claimant developed more 
 
         pain because of having to lie still for the CT scan and was 
 
         prescribed a hypodermic of Demerol.  Claimant reacted poorly to 
 
         the Demerol and suffered a vomiting fit with loss of bladder 
 
         control.  This incident caused numbness from the waist down, 
 
         which led to the decision to perform immediate surgery.  A second 
 
         laminectomy was performed at the same situs and several 
 
         additional fragments of disc were removed.  Fortunately, claimant 
 
         recovered from his numbness but suffers some additional 
 
         problems.
 
         
 
              Claimant testified at hearing of numbness in his little toe, 
 
         the bottom of his heel and on the inside of his thigh along with 
 
         a partial loss of control of the anal sphincter and continuing 
 
         weakness and pain.
 
         
 
              Following release from the hospital, claimant undertook 
 
         rehabilitation.  The evidence appears undisputed that he has been 
 
         very conscientious in helping to rehabilitate himself.  Dr. 
 
         Gitchell saw claimant on a number of occasions for follow-up 
 
         examinations including a final visit on November 13, 1986.  Dr. 
 
         Gitchell described his evaluation in his deposition:
 
         
 
              Q.  And would you state what your evaluation was at 
 
              that particular time.
 
         
 
              A.  Well, in summary, he had some residuals.  He was 
 
              fourteen months post the emergency laminectomy because 
 
              of the emergency precipitated by the sudden increase in 
 

 
         
 
         
 
         
 
         SINN V. ARROW-ACME CORPORATION
 
         PAGE   4
 
         
 
              both legs and loss of bowel and bladder control.  
 
              Currently at fourteen months post-laminectomy he 
 
              complained that the right leg would get tired with 
 
              activity such as being on his feet all day, and he 
 
              mentioned specifically going to Adventureland, and to 
 
              walk, his right leg would get tired.  He complained of 
 
              numbness in his right little toe and the heel of his 
 
              right foot.  He also had the thigh numbness that 
 
              remained on the right inner thigh.  He had good bowel 
 
              control and urinary control, but he still felt the need 
 
              to get to the bathroom fairly quickly when he had to 
 
              go, specifically with the bowels.  He had occasional 
 
              soreness in the right buttock area and occasional 
 
              twinges of pain in the front of the right thigh.  I 
 
              felt his strength in the right foot had improved so 
 
              that he could push off and stand up on his toes at this 
 
              time.  He probably would fatigue faster, but he was at 
 
              least able to do it at one time.
 
         
 
              I advised that he be permanently restricted to working 
 
              no overtime hours and no lifting over 35 pounds, and I 
 
              rated him on the basis of the AMA guide to evaluation 
 
              of permanent impairment in conjunction with the manual 
 
              for orthopaedic surgeons in evaluating permanent 
 
              physical impairment as having a 25 percent whole man 
 
              impairment.
 
         
 
         (Gitchell deposition, page 41, line 19 through page 43, line 1)
 
         
 
         Dr. Gitchell discussed claimant's limitations as follows:
 
         
 
              Q.  Okay. Let's discuss those limitations with detail, 
 
              Doctor, rather than job activities.  You mention in 
 
              your permanent evaluation that there is a 35 pound 
 
              weight limit applicable to Mr. Sinn; is that correct?
 
         
 
              A.  Yes.
 
         
 
              Q.  Now to be more detailed on that, what type of 
 
              restriction is that?  Is there any modifier on that in 
 
              terms of repetition?
 
         
 
              A.  Yes.  That again, as I defined earlier, would not 
 
              be a repetitive 35 pounds over and over and over again, 
 
              so that he would end up doing that several times an 
 
              hour.  This is in the course, again thinking of him as 
 
              a servicing maintenance mechanic, that he has to do 
 
              this on an occasional basis, move some part, some 
 
              machinery, but he's not doing it on an assembly line 
 
              activity.
 
         
 
              Q.  So Mr. Sinn would on an occasional basis be allowed 
 
              to lift 35 pounds?
 
         
 
              A.  Right.
 
         
 
              Q.  Would that be, if we can assign a number of times 
 
              per hour, if that's possible, could you do that?
 
         
 
              A.  Oh, I would say we're talking less than ten to 
 
              fifteen times a day.
 
         
 
              Q.  Okay, how about standing, are there any residuals 
 
              that would impair his ability to stand, and if there 
 

 
         
 
         
 
         
 
         SINN V. ARROW-ACME CORPORATION
 
         PAGE   5
 
         
 
              are, could you describe what they would be?
 
         
 
              A.  Standing in one position I think would not be in 
 
              his best interest with this problem that he's 
 
              demonstrated twice now to have a disk problem.  So I 
 
              would encourage that he work off a high stool or have a 
 
              job that involves standing with walking or changing 
 
              position interspersed with that or working at a bench 
 
              off a stool.
 
         
 
              Q.  Are there any impairments that would restrict his 
 
              work activity with regards to bending?
 
         
 
              A.  Yes.
 
         
 
              Q.  And could you be specific about those?
 
         
 
              A.  Again, repeated bending or twisting of the back.
 
         
 
              By repeated, again doing several times an hour.  He 
 
              might be able to bend ten or fifteen times a day, but 
 
              not to again do assembly line work or have a job that 
 
              required reaching over to bend and fix something for 
 
              not only the number of times, but for an extended 
 
              period of time greater than fifteen or twenty minutes.
 
         
 
              Q.  So the number of times is restricted to ten to 
 
              fifteen, and the duration of the time would be limited 
 
              to ten to fifteen minutes?
 
         
 
              A.  Fifteen to twenty minutes.
 
         
 
              Q.  And with regards to reaching or bending fifteen to 
 
              twenty minutes, how many times a day, so I have it 
 
              clear, how many times a day would he be able to do 
 
              that?
 
         
 
              MR. PLAZA:  I guess I'd object.  Did you say reaching?
 
         
 
              MR. FOUNDREE:  Reaching or bending, either.
 
         
 
              A.  I said twisting, I didn't say reaching.
 
         
 
              Q.  Twisting, I'm sorry.
 
         
 
              A.  Twisting and bending I think can go with the same 
 
              restrictions.
 
         
 
              Q.  So no more than ten to fifteen times per day of 
 
              twisting or bending, and could that be up to twenty 
 
              minutes per twist or bend?
 
         
 
              A.  Well, a twist, you usually don't, you know, stay in 
 
              a twisted position for that long.
 
         
 
              Q.  No.
 
         
 
              A.  Bending, you might be working on a part, but 
 
              twistings more applicable to the repetitive thing. 
 
              somebody could do light work as mopping but had to 
 
              twist back and forth with their back, and that would 
 
              get him into the repetitive phase of that.  If he had 
 
              to do that at the end of the day to clean out his 
 
              workroom or whatever, that would be one thing.  If that 
 

 
         
 
         
 
         
 
         SINN V. ARROW-ACME CORPORATION
 
         PAGE   6
 
         
 
              was his job to go up and down halls, that would not be 
 
              in his interest, best interest.
 
         
 
              Q.  Are there any limitations on reaching?
 
         
 
              A.  We discourage overhead reaching because it puts the 
 
              back in hyperextension.  So he can reach up to shoulder 
 
              height, but anything above his head would not be -- 
 
              he'd be limited.
 
         
 
              Q.  Are there any other physical restrictions that you 
 
              feel in your medical opinion would apply to Mr. Sinn's 
 
              activity?
 
         
 
              A.  We would not encourage him to take a job that 
 
              required long car rides or continuous driving in an 
 
              automobile, where out of an eight-hour day he would 
 
              spend three or four hours of every day in an 
 
              automobile.  We would not endorse that.
 
         
 
         (Gitchell deposition, page 48, line 2 through page 51, line 20)
 
         
 
              Although the parties disagree as to the extent of permanent 
 
         partial disability, if any, they have stipulated that claimant 
 
         sustained an injury of March 2, 1985 arising out of and in the 
 
         course of his employment and that the injury is causally 
 
         connected to a period of recovery (April 16-April 21; May 24; 
 
         June 10; July 8-July 22; August 12-November 3, 1985).
 
         
 
              Dr. Gitchell further opined that claimant's initial back 
 
         problem of 1980 was a result of his work activity and that 
 
         subsequent work activity played a large causal factor in his 
 
         subsequent 1985 disc problem.
 
         
 
              Dr. Gitchell had planned to perform a second laminectomy 
 
         even before the vomiting fit that precipitated an emergency.  
 
         Claimant had a large ruptured disc prior to his reaction to 
 
         Demerol.  Dr. Gitchell specifically testified to his belief that 
 
         the vomitation episode and the CT scan were not causal factors in 
 
         the disc herniation.
 
         
 
              Dr. Gitchell was of the view that 10% of his 25% impairment 
 
         rating was assignable to the 1980 injury.  He also noted that 
 
         claimant showed bone spurs and degenerative disc disease that 
 
         appeared rheumatoidal in nature, but did not believe that these 
 
         physical problems had any causal connection to the second disc 
 
         rupture.
 
         
 
              Claimant was also seen for evaluation by Peter Dwight Wirtz, 
 
         M.D.  Dr. Wirtz is also an orthopaedic surgeon.  He saw claimant 
 
         on one occasion only, February 25, 1987.  His examination showed 
 
         that claimant has twice had a disc removal at the L5-Sl level and 
 
         has neurological residues.  Dr. Wirtz agreed that claimant does 
 
         suffer from a permanent physical impairment of perhaps 15%-20% 
 
         (based on differences in orthopaedic and AMA guidelines).  
 
         Significantly, Dr. Wirtz discerned no additional impairment 
 
         flowing from the 1985 injury as opposed to the impairment that 
 
         resulted from the 1981 injury.  He felt that claimant should be 
 
         limited to heavy lifting in the range of 40-50 pounds on a 
 
         regular basis, but felt that the same restrictions would have 
 
         been true in 1980.  Dr. Wirtz agreed that claimant's neurological 
 
         residuals include the absence of feeling on the right first toe, 
 
         absence of feeling on the right heel, absence of feeling on the 
 
         posterior aspect of the thigh and an absent ankle jerk on the 
 

 
         
 
         
 
         
 
         SINN V. ARROW-ACME CORPORATION
 
         PAGE   7
 
         
 
         right leg (transcript, page 43).
 
         
 
                           APPLICABLE LAW AND ANALYSIS
 
         
 
              An employee is entitled to compensation for any and all 
 
         personal injuries which arise out of and in the course of the 
 
         employment.  Section 85.3(l).
 
         
 
              The claimant has the burden of proving by a preponderance of 
 
         the evidence that the injury of March 2, 1985 is causally related 
 
         to the disability on which he now bases his claim.  Bodish v. 
 
         Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867 (1965).  Lindahl v. 
 
         L.O. Boggs, 236 Iowa 296, 18 N.W.2d 607 (1945).  A possibility is 
 
         insufficient; d probability is necessary.  Burt v. John Deere 
 
         Waterloo Tractor Works, 247 Iowa 691, 73 N.W.2d 732 (1955).  The 
 
         question of causal connection is essentially within the domain of 
 
         expert testimony.  Bradshaw v. Iowa Methodist Hospital, 251 Iowa 
 
         375, 101 N.W.2d 167 (1960).
 
         
 
              The parties have stipulated that claimant suffered a work 
 
         injury on March 2, 1985 and that this caused at least a period of 
 
         recovery.  The parties do not agree as to whether claimant has 
 
         suffered a permanent partial disability by reason of this 
 
         admitted work injury.  Defendant takes the position that 
 
         claimant's total impairment is approximately 15%-18% based upon 
 
         the evaluations of Drs. Gitchell and Wirtz.  Noting that Dr. 
 
         Gitchell attributed 10% of that impairment to the earlier injury 
 
         and that Dr. Wirtz found no additional restrictions appropriate 
 
         because of the second injury, defendant feels that claimant has 
 
         no additional industrial disability resulting from the injury 
 

 
         
 
         
 
         
 
         SINN V. ARROW-ACME CORPORATION
 
         PAGE   8
 
         
 
         under review.
 
         
 
              However, it should be noted that these parties have in the 
 
         past formally agreed upon claimant's industrial disability 
 
         resulting from his earlier laminectomy.  The parties entered into 
 
         a settlement agreement on the basis of a five percent permanent 
 
         partial disability to the body as a whole; this deputy is 
 
         comfortable accepting the parties' own evaluation of the extent 
 
         of that disability where the same parties are involved in the 
 
         second injury (except for an insurance company involved in the 
 
         first settlement but not in the case at hand).  Therefore, it is 
 
         held that an industrial disability of five percent resulted from 
 
         the first injury.
 
         
 
              Functional disability is an element to be considered in 
 
         determining industrial disability which is the reduction of 
 
         earning capacity, but consideration must also be given to the 
 
         injured employee's age, education, qualifications, experience and 
 
         inability to engage in employment for which he is fitted.  Olson 
 
         v. Goodyear Service Stores, 255 Iowa 1112, 125 N.W.2d 251 (1963).  
 
         Barton v. Nevada Poultry, 253 Iowa 285, 110 N.W.2d 660 (1961).
 
         
 
              A finding of impairment to the body as a whole found by a 
 
         medical evaluator does not equate to industrial disability.  This 
 
         is so as impairment and disability are not synonymous.  Degree of 
 
         industrial disability can in fact be much different than the 
 
         degree of impairment because in the first instance reference is 
 
         to loss of earning capacity and in the later to anatomical or 
 
         functional abnormality or loss.  Although loss of function is to 
 
         be considered and disability can rarely be found without it, it 
 
         is not so that a degree of industrial disability is 
 
         proportionally related to a degree of impairment of bodily 
 
         function.
 
         
 
              Factors to be considered in determining industrial 
 
         disability include the employee's medical condition prior to the 
 
         injury, immediately after the injury, and presently; the situs of 
 
         the injury, its severity and the length of healing period; the 
 
         work experience of the employee prior to the injury, after the 
 
         injury and potential for rehabilitation; the employee's 
 
         qualifications intellectually, emotionally and physically; 
 
         earnings prior and subsequent to the injury; age; education; 
 
         motivation; functional impairment as a result of the injury; and 
 
         inability because of the injury to engage in employment for which 
 
         the employee is fitted.  Loss of earnings caused by a job 
 
         transfer for reasons related to the injury is also relevant.  
 
         These are matters which the finder of fact considers collectively 
 
         in arriving at the determination of the degree of industrial 
 
         disability.
 
         
 
              There are no weighting guidelines that indicate how each of 
 
         the factors are to be considered.  There are no guidelines which 
 
         give, for example, age a weighted value of ten percent of the 
 
         total value, education a value of fifteen percent of total, 
 
         motivation - five percent; work experience - thirty percent, etc. 
 
          Neither does a rating of functional impairment directly 
 
         correlate to a degree of industrial disability to the body as a 
 
         whole.  In other words, there are no formulae which can be 
 
         applied and then added up to determine the degree of industrial 
 
         disability.  It therefore becomes necessary for the deputy or 
 
         commissioner to draw upon prior experience, general and 
 
         specialized knowledge to make the finding with regard to degree 
 
         of industrial disability.  See Peterson v. Truck Haven Cafe, 
 
         Inc., (Appeal Decision, February 28, 1985); Christensen v. 
 

 
         
 
         
 
         
 
         SINN V. ARROW-ACME CORPORATION
 
         PAGE   9
 
         
 
         Hagen, Inc., (Appeal Decision, March 26, 1985).
 
         
 
             Drs. Gitchell and Wirtz are relatively close in their 
 
         determinations of claimant's impairment.  The essential 
 
         difference is that Dr. Wirtz feels there is no additional 
 
         impairment beyond the 1980 injury, while Dr. Gitchell believes 
 
         that an additional 15% impairment resulted.  Of course, it is not 
 
         a rule that a treating physician's testimony is necessarily of 
 
         greater weight than a later physician who examines claimant in 
 
         anticipation of litigation.  Rockwell Graphic Systems, Inc. v. 
 
         Prince, 366 N.W.2d 187 (Iowa 1985).  Rather, such factors as 
 
         education, compensation agreement, the date of examination or 
 
         experience go to the value of respective physician's testimony as 
 
         questions of fact, not law.  Id.  In this case, the deputy is 
 
         inclined to give greater weight to the testimony of Dr. Gitchell 
 
         because of his greater opportunity to examine and treat claimant 
 
         over an extended period of time, including two separate surgical 
 
         procedures.  He has had the opportunity to observe claimant's 
 
         demeanor, posture, and apparent motivation over an extended 
 
         period, while Dr. Wirtz saw claimant on only one occasion.
 
         
 
              Claimant is under different restrictions from Dr. Gitchell 
 
         as opposed to the result of his 1980 injury.  His weight lifting 
 
         restriction has been lowered from 50-60 pounds down to 35 pounds. 
 
          Even lifting 35 pounds should only be allowed fewer than 10-15 
 
         times per day.  Claimant is to not stand in one position, avoid 
 
         repeated bending or twisting (both as to repetitions and 
 
         duration), avoid overhead reaching, and avoid employment that 
 
         involves long or continuous automobile rides or driving.  In 
 
         addition, claimant was barred from accepting overtime work.  
 
         Although overtime in this position was a relatively recent 
 
         development, it is true that claimant was working substantial 
 
         overtime when he was injured.  He is no longer able to, and has 
 
         suffered a diminution of his earning capacity as a result.
 
         
 
              Given claimant's age and work experience of driving, 
 
         construction and mechanical work, and further given the 
 
         restrictions that he is now under which were not previously the 
 
         case, and based further on the facts and analysis set forth in 
 
         this decision, the deputy finds and concludes that claimant has, 
 
         by reason of his work-related injury, suffered an industrial 
 
         disability of 35% of the body as a whole.
 
         
 
              However,.it has previously been held that claimant had a 
 
         preexisting industrial disability to the body as a whole of five 
 
         percent.  Therefore, five percent of claimant's current 
 
         disability shall be apportioned out by reason of that prior 
 
         injury and award.  The net industrial disability resulting from 
 
         the injury under review is 30%. of course, that shall be reduced 
 
         by the 24% permanent partial disability already voluntarily paid 
 
         to claimant by defendant.
 
         
 
                                 FINDINGS OF FACT
 
         
 
              Therefore, based on the evidence presented, the following 
 
         ultimate facts are found:
 
         
 
              1.  Claimant was employed by defendant Arrow-Acme 
 
         Corporation on March 2, 1985.
 
         
 
              2.  Claimant suffered an industrial accident stipulated by 
 
         the parties on or about that date.
 
         
 
              3.  It is stipulated that claimants injury arose out of and 
 

 
         
 
         
 
         
 
         SINN V. ARROW-ACME CORPORATION
 
         PAGE  10
 
         
 
         in the course of his employment.
 
         
 
              4.  It is stipulated that the injury caused temporary 
 
         disability and a period of recovery including the following 
 
         dates: April 16-April 21; May 24; June 10; July 8-July 22; and, 
 
         August 12-November 3, 1985.
 
         
 
              5.  Claimant suffered a prior industrial injury while 
 
         employed with defendant Arrow-Acme Corporation on or about 
 
         December 3, 1980.
 
         
 
              6.  The parties settled claimant's claim based on the 1980 
 
         injury by agreement that he ha,l suffered a five percent 
 
         industrial disability to the body as a whole.
 
         
 
              7.  Claimant's injury of March 2, 1985 was a new injury to 
 
         the same situs and resulted in further permanent restrictions, 
 
         including:  Lifting weight, bending and twisting (both 
 
         repetitions and duration), lengthy standing, lengthy driving, 
 
         lifting above the head and working overtime.
 
         
 
              8.  The additional restrictions placed on claimant by reason 
 
         of his industrial injury have caused a diminution of his earning 
 
         capacity.
 
         
 
              9.  Claimant's rate of compensation has been stipulated to 
 
         be $255.83 per week.
 
         
 
             10.  The commencement date for permanent partial disability 
 
         has been stipulated to be November 4, 1985.
 
         
 
             11.  It is stipulated that all requested medical benefits 
 
         have been or will be paid by defendant.
 
         
 
             12.  Defendant has paid claimant 135 weeks of compensation at 
 
         the stipulated rate prior to hearing as of march 21, 1988.
 
         
 
                                CONCLUSIONS OF LAW
 
         
 
              Wherefore, based on the principles of law previously stated, 
 
         the following conclusions of law are made:
 
         
 
              1.  Claimant suffered an injury that arose out of and in the 
 
         course of his employment on March 2, 1985.
 
         
 
              2.  Claimant's injury was an injury to the body as a whole 
 
         and was a new injury to a previously damaged vertebral disc.
 
         
 
              3.  Claimant's injury directly caused a healing period 
 
         including a number of dates set forth above and ending November 
 
         3, 1985.  He has been fully compensated for this healing period 
 
         by defendant.
 
         
 
              4.  Claimant's injury caused medical expenses for which he 
 
         has been or will be fully compensated by defendant.
 
         
 
              5.  Claimant has established a permanent partial industrial 
 
         disability of 35% of the body as a whole.
 
         
 
              6.  Five percent of claimant's permanent partial industrial 
 
         disability shall be apportioned out as attributable to his 1980 
 
         injury, and for which claimant has already been fully 
 
         compensated.
 
         
 

 
         
 
         
 
         
 
         SINN V. ARROW-ACME CORPORATION
 
         PAGE  11
 
         
 
              7.  Defendant shall be given credit for payment of 120 weeks 
 
         (24% of 500 weeks) as a credit toward claimant's award of 
 
         permanent partial disability.
 
         
 
                                      ORDER
 
         
 
              THEREFORE, IT IS ORDERED:
 
         
 
              Defendant is to pay unto claimant thirty (30) weeks of 
 
         permanent partial disability benefits at the stipulated rate of 
 
         two hundred fifty-five and 83/100 dollars ($255.83) per week as a 
 
         lump sum totalling seven thousand six hundred seventy-four and 
 
         90/100 dollars ($7,674.90).  This is based upon a thirty-five 
 
         percent (35%) industrial disability to the body as a whole (one 
 
         hundred seventy-five (175) weeks) minus a five percent (5%) 
 
         apportionment for claimant's preexisting injury (twenty-five (25) 
 
         weeks) and minus twenty-four percent (24%) credit which has 
 
         already been paid by defendant (one hundred twenty (120) weeks).
 
         
 
              That lump sum shall be paid together with statutory interest 
 
         thereon pursuant to Iowa Code section 85.30.
 
         
 
              That costs of this action are assessed against defendant 
 
         pursuant to Division of Industrial Services Rule 343-4.33.
 
         
 
              That defendant file a Claim Activity Report upon payment of 
 
         this award pursuant to Division of Industrial Services Rule 
 
         343-3.1.
 
         
 
              Signed and filed this 1st day of November, 1988.
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
                                        DAVID RASEY
 
                                        DEPUTY INDUSTRIAL COMMISSIONER
 
         
 
         
 
         Copies To:
 
         
 
         Mr. Philip F. Miller
 
         Attorney at Law
 
         Suite 200 Saddlery Building
 
         309 Court Avenue
 
         Des Moines, Iowa 50309
 
         
 
         Mr. Thomas M. Plaza
 
         Attorney at Law
 
         200 Home Federal Building
 
         P.O. Box 3086
 
         Sioux City, Iowa 51102
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                               1702, 1703, 1803
 
                                               Filed November 1, 1988
 
                                               DAVID RASEY
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         JAMES K. SINN, JR.,
 
         
 
              Claimant,
 
                                                  File No. 792683
 
         vs.
 
                                               A R B I T R A T I O N
 
         ARROW-ACME CORPORATION,
 
                                                  D E C I S I O N
 
              Employer,
 
              Self-Insured,
 
              Defendant.
 
         
 
         
 
         
 
         1702, 1703, 1803
 
         
 
              Claimant suffered second injury to same vertebral disc.  
 
         After second surgery, he established permanent partial disability 
 
         of 35%.  Defendant employer was entitled to credit of 5% for 
 
         preexisting injury (which had been settled at that rating by same 
 
         parties) and 24% for voluntary payments.
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                   BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         WILTON CROFT,                               File No. 792717
 
         
 
              Claimant,                           A R B I T R A T I O N
 
         
 
         vs.                                         D E C I S I O N
 
         
 
         JOHN MORRELL & COMPANY,                        F I L E D
 
         
 
              Employer,                                JAN 27 1988
 
              Self-Insured,
 
              Defendant.                       IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
                              STATEMENT OF THE CASE
 
         
 
              Claimant appeals from an arbitration decision barring his 
 
         claim because he failed to give his employer notice of his 
 
         occupational disease.
 
         
 
              The record on appeal consists of the transcript of the 
 
         arbitration decision; claimant's exhibits 1 through 8; and 
 
         defendant's exhibit A.  Both parties filed briefs on appeal.
 
         
 
                                   ISSUE
 
         
 
              The issue raised on appeal is whether claimant's claim is 
 
         barred because he failed to give his employer timely notice of 
 
         his occupational disease.
 
         
 
                            REVIEW OF THE EVIDENCE
 
         
 
              The arbitration decision adequately and accurately reflects 
 
         the pertinent evidence and it will not be totally reiterated 
 
         herein.
 
         
 
              Claimant worked at defendant's plant where he was regularly 
 
         exposed to steam from plant cleaning operations or condensation 
 
         as warm hog carcasses hit the cool air on the kill floor.  He 
 
         testified that there was an oil mist in the plant as well as 
 
         ammonia and hog odor in the winter.  He reported that there had 
 
         been several ammonia leaks in the plant after which workers were 
 
         evacuated, but agreed that no medical treatment was ever sought 
 
         following those leaks.
 
         
 
              Claimant had seen R. P. Bose, M.D., for treatment of 
 
         hypertension and heart trouble.  Claimant, on his own volition, 
 
         began seeing physicians at Fairmont Medical Clinic.  Medical 
 
         records from Fairmont indicate that claimant was treated for 
 
         anginal-like symptoms, heaviness of chest and shortness of breath 
 
         on April 6, 1982.  He was seen for similar breathing problems on 
 
         April 19, 1982, May 3, 1982, and May 28, 1982.  The office notes 
 
                                                
 
                                                         
 
         by Robert Lohr, M.D., made regarding the April 6, 1982 visit 
 
         stated:  "HE [sic] notes some heaviness in the chest and 
 
         shortness of breath with a dry wheezy cough.  It usually is 
 
         relieved by rest and is exacerbated when he is at work where he 
 
         works at Morrell's [sic] in Estherville."  Claimant was also seen 
 
         by Dr. Lohr on October 1, 1982 and the doctor noted that his 
 
         breathing had been quite good and that he uses an inhaler only 
 
         occasionally.  On December 7, 1982 the doctor again noted that 
 
         his breathing had been good.  On January 17, 1983 the doctor 
 
         noted that he had had no shortness of breath.  On July 15, 1983 a 
 
         pre-employment physical screening was done because claimant had 
 
         been laid off for 13 months and the doctor noted that his 
 
         breathing had been good. Claimant noticed when he returned to 
 
         work that the cough kept getting worse.  In October of 1983 Dr. 
 
         Lohr noticed that claimant's coughing seemed to be related to 
 
         something he was exposed to at the plant.  Medical records of 
 
         November 14, 1983, November 12, 1984 and March 25, 1985 further 
 
         indicate a connection between claimant's conditions and his 
 
         employment.
 
         
 
              The following is taken from the deposition of claimant 
 
         (defendant's exhibit A) in response to questioning by defendant's 
 
         lawyer:
 
         
 
              Q.  Bill, what's-- If you're claiming that something at work 
 
              has caused some of these problems, what's the reason you 
 
              didn't file this action until May of 85 after you'd 
 
              retired?
 
         
 
              A.  Well, I'll tell you.  When I went to see Ernie I'd put 
 
              in for a job in Minnesota and if I-- And the things on that 
 
              application-- There wasn't no job that paid any amount of 
 
              money or anything.  And the things that are on there-- It 
 
              just asked you if you had any lungs and this and that and at 
 
              that time I don't know, I'm not saying I was transferred, 
 
              but I was even thinking about transferring, but that cough 
 
              just had me wore out when the plant closed.
 
         
 
              Q.  Well, I guess I still don't quite understand why you 
 
              didn't.  If you're alleging these problems started to occur 
 
              two or three years ago why have you waited until this 
 
              particular time to file your action?
 
         
 
              A.  Well, can't give you exactly pinpoint of what you-- I 
 
              mean why I didn't do it until--
 
         
 
              Q.  At least why you-- why didn't you take a medical-- 
 
              written medical excuse or explanation to John Morrell of 
 
              some kind?
 
         
 
              A.  Well, they knew about it cause the nurses many a times 
 
              wanted me to sit down for a minute or two until I get my 
 
              breath.  In fact she had to run up and get my proventilator 
 
              for me at the drugstore for me.
 
         
 
                                                
 
                                                         
 
              Q.  Okay. I understand that you had had some problems 
 
              breathing, but is there any written medical report that 
 
              indicates that the problems you've had breathing had 
 
              anything to do with your working at John Morrell?
 
         
 
              A.  Well, I don't know how you'd really answer that.
 
         
 
              The personnel and labor relations director for defendant 
 
         testified that claimant never did give defendant a light-duty 
 
         slip indicating he was unable to perform certain jobs.  On 
 
         September 21, 1983 claimant saw the defendant's plant nurse 
 
         because of difficulty in breathing and she sent him to Fairmont 
 
         Medical Center.
 
         
 
                                APPLICABLE LAW
 
         
 
              The citations of law in the arbitration decision are 
 
         appropriate to the issues and the evidence.
 
         
 
                                  ANALYSIS
 
         
 
              Claimant argues on appeal that defendant was given notice of 
 
         claimant's injury because the Fairmont Medical Clinic physicians 
 
         are representatives of the defendant and that any knowledge of 
 
         those physicians is attributable to the defendant.  If an employer 
 
         does not have actual knowledge of an employee's disability or 
 
         death because of an occupational disease within 90 days the 
 
         employee is required to give written notice to the employer within 
 
         90 days after the first distinct manifestation of the disease.  
 
         See section 85A.18.
 
         
 
              Claimant knew or should have known the seriousness of his 
 
         breathing difficulties and probable compensable character of his 
 
         disease on April 6, 1982.  Breathing difficulties were treated 
 
         three more times within seven weeks of that date.  Shortly 
 
         thereafter claimant was laid off for 13 months and his breathing 
 
         problems subsided during that time.  He returned to work in July 
 
         1983 and his difficulties resumed and continued to get worse. 
 
         Other than the petition which initiated this action (filed May 2, 
 
         1985), claimant never gave the defendant written notice.  The 
 
         claimant initially began seeing the physicians at Fairmont when he 
 
         was dissatisfied with the treatment he received from Dr. Bose.  
 
         The physicians at Fairmont were not representatives of the 
 
         defendant. The knowledge of those physicians does not constitute 
 
         actual knowledge of the defendant.  Claimant failed to prove that 
 
         Fairmont Medical Clinic had such a relationship with defendant as 
 
         to make the knowledge of the clinic that of defendant.  The 
 
         earliest possible event that would demonstrate that defendant may 
 
         have had actual knowledge of claimant's condition is when he 
 
         visited the defendant's nurse on September 21, 1983.  But, it is 
 
         not even totally clear that at that time defendant knew claimant's 
 
         problems were related to his work.  Claimant's own testimony 
 
         reveals that he knew he did not give defendant notice of his 
 
         injury.  Claimant's failure to inform his employer of his 
 
         condition within 90 days of April 6, 1982 bars his claim.
 
                                                
 
                                                         
 
         
 
                              FINDINGS OF FACT
 
         
 
              1.  Claimant's work environment contained hog odor, ammonia, 
 
         temperature variations and steam in amounts greater than found in 
 
         other occupations or in nonemployment life.
 
         
 
              2.  Claimant underwent pulmonary function studies of April 
 
         24, 1985 and May 15, 1984.
 
         
 
              3.  Studies of May 15, 1985 were significantly improved over 
 
         those of April 24, 1985.
 
         
 
              4.  Claimant was working at the Morrell plant on April 24, 
 
         1985, but had ceased working as of May 15, 1985.
 
         
 
              5.  Claimant saw Fairmont Clinic physicians for breathing 
 
         complaints on April 6, 1982.
 
         
 
              6.  Claimant related exasperation of his complaints to his 
 
         work at Morrell at that time.
 
         
 
              7.  Claimant's symptoms remitted when he left work for 
 
         layoffs and vacations.
 
                              
 
                                                
 
                                                         
 
              8.  Claimant has a history of pneumonia on several occasions 
 
         over the last 20 years and was hospitalized for pneumonia in the 
 
         late 1970's or early 1980's.
 
         
 
              9.  Claimant has had asthma attacks in the past.
 
         
 
              10.  Claimant has chronic obstructive pulmonary disease 
 
         consisting of asthmatic bronchitis and central to smaller airway 
 
         disorder with a history of temporary aggravation as a result of 
 
         conditions in his work environment.
 
         
 
              11.  Claimant did not transfer, in part, because he felt he 
 
         could no longer work in the packing plant environment on account 
 
         of his physical condition.
 
         
 
              12.  Claimant became actually incapacitated from performing 
 
         his work on April 26, 1985.
 
         
 
              13  Claimant filed his petition in arbitration on May 2, 
 
         1985.
 
         
 
              14  Claimant's disease process first distinctively 
 
         manifested itself on April 6, 1982.
 
         
 
              15.  Defendant did not have actual knowledge of claimant's 
 
         condition within ninety days of that date nor reason to know of 
 
         the condition within ninety days of that date.
 
         
 
              16.  A reasonable person of claimant's education and 
 
         intelligence should have recognized the nature, seriousness and 
 
         probable compensable character of his condition when he related 
 
         to his Fairmont physicians on April 6, 1982 that work exasperated 
 
         his problem.
 
         
 
                             CONCLUSIONS OF LAW
 
         
 
              Claimant's claim is not barred by the applicable statute of 
 
         limitations.
 
         
 
              Claimant's claim is barred because claimant failed to give 
 
         his employer notice of his occupational disease as required under 
 
         section 85A.18.
 
         
 
              WHEREFORE, the decision of the deputy is affirmed.
 
         
 
                                      ORDER
 
         
 
              THEREFORE, it is ordered:
 
         
 
              That claimant take nothing from these proceedings.
 
         
 
              That claimant pay the costs of the arbitration proceeding as 
 
         well as the costs on appeal including the transcription of the 
 
         hearing proceeding.
 
         
 
                                                
 
                                                         
 
         
 
              Signed and filed this 27th day of January, 1988.
 
         
 
         
 
         
 
         
 
         
 
                                               DAVID E. LINQUIST
 
                                            INDUSTRIAL COMMISSIONER
 
         
 
         Copies To:
 
         
 
         Mr. E. W. Wilcke
 
         Attorney at Law
 
         826 1/2 Lake Street
 
         P.O. Box 455
 
         Spirit Lake, Iowa  51360
 
         
 
         Mr. E. J. Kelly
 
         Attorney at Law
 
         Suite 111, Terrace Center
 
         2700 Grand Avenue
 
         Des Moines, Iowa  50312
 
         
 
         Mr. Dick H. Montgomery
 
         Attorney at Law
 
         Professional Building
 
         P.O. Box 7038
 
         Spencer, Iowa  51301
 
 
 
         
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
            _____
 
                        :
 
            WILTON CROFT,    :
 
                        :
 
                 Claimant,   :       File No. 792717
 
                        :
 
            vs.         :          A P P E A L
 
                        :
 
            JOHN MORRELL & COMPANY,    :        D E C I S I O N
 
                        :
 
                 Employer,   :
 
                 Self-Insured,    :
 
                 Defendant.       :
 
            ____________________________________________________________
 
            _____
 
            The record, including the transcript of the hearing before 
 
            the deputy and all exhibits admitted into the record, has 
 
            been reviewed de novo on appeal.
 
            issue
 
            The issue on appeal is:  Whether claimant has proved that 
 
            his work has caused a permanent disability.
 
            findings of fact
 
            The arbitration decision filed May 26, 1986 adequately and 
 
            accurately reflects the pertinent evidence and it will not 
 
            be set forth herein.
 
            applicable law and analysis
 
            The applicable law and analysis of the remand decision dated 
 
            September 30, 1991 are adopted as final agency action with 
 
            the following additional law and analysis.
 
            
 
                 The claimant has the burden of proving by a 
 
            preponderance of the evidence that the alleged injury 
 
            actually occurred and that it arose out of and in the course 
 
            of employment.  McDowell v. Town of Clarksville, 241 N.W.2d 
 
            904 (Iowa 1976); Musselman v. Cent. Tel. Co., 261 Iowa 352, 
 
            154 N.W.2d 128 (1967).  The words "arising out of" refer to 
 
            the cause or source of the injury.  The words "in the course 
 
            of" refer to the time, place and circumstances of the 
 
            injury.  Sheerin v. Holin Co., 380 N.W.2d 415 (Iowa 1986); 
 
            McClure v. Union County, 188 N.W.2d 283 (Iowa 1971).
 
            
 
                 The claimant has the burden of proving by a 
 
            preponderance of the evidence that the injury is a proximate 
 
            cause of the disability on which the claim is based.  A 
 
            cause is proximate if it is a substantial factor in bringing 
 
            about the result; it need not be the only cause.  A 
 
            preponderance of the evidence exists when the causal 
 
            connection is probable rather than merely possible.  
 
            Blacksmith v. All-American, Inc., 290 N.W.2d 348 (Iowa 
 
            1980); Holmes v. Bruce Motor Freight, Inc., 215 N.W.2d 296 
 
            (Iowa 1974).
 
            
 
                 The question of causal connection is essentially within 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            the domain of expert testimony.  The expert medical evidence 
 
            must be considered with all other evidence introduced 
 
            bearing on the causal connection between the injury and the 
 
            disability.  The weight to be given to any expert opinion is 
 
            determined by the finder of fact and may be affected by the 
 
            accuracy of the facts relied upon by the expert as well as 
 
            other surrounding circumstances.  The expert opinion may be 
 
            accepted or rejected, in whole or in part.  Sondag v. Ferris 
 
            Hardware, 220 N.W.2d 903 (Iowa 1974); Anderson v. Oscar 
 
            Mayer & Co., 217 N.W.2d 531 (Iowa 1974); Bodish v. Fischer, 
 
            Inc., 257 Iowa 516, 133 N.W.2d 867 (1965).
 
            
 
                 A personal injury contemplated by the workers' 
 
            compensation law means an injury, the impairment of health 
 
            or a disease resulting from an injury which comes about, not 
 
            through the natural building up and tearing down of the 
 
            human body, but because of trauma.  The injury must be 
 
            something which acts extraneously to the natural processes 
 
            of nature and thereby impairs the health, interrupts or 
 
            otherwise destroys or damages a part or all of the body.  
 
            Although many injuries have a traumatic onset, there is no 
 
            requirement for a special incident or an unusual occurrence.  
 
            Injuries which result from cumulative trauma are 
 
            compensable.  McKeever Custom Cabinets v. Smith, 379 N.W.2d 
 
            368 (Iowa 1985); Olson v. Goodyear Serv. Stores, 255 Iowa 
 
            1112, 125 N.W.2d 251 (1963); Ford v. Goode, 240 Iowa 1219, 
 
            38 N.W.2d 158 (1949); Almquist v. Shenandoah Nurseries, 
 
            Inc., 218 Iowa 724, 254 N.W. 35 (1934).  An occupational 
 
            disease covered by chapter 85A is specifically excluded from 
 
            the definition of personal injury.  Iowa Code section 
 
            85.61(5); Iowa Code section 85A.8.
 
            
 
                 Claimant has not proved that his underlying permanent 
 
            pulmonary condition was caused by his work environment.  Dr. 
 
            From's opinions suggest that claimant's work is a temporary 
 
            aggravation of claimant's condition.  He reported that it 
 
            was possible but not true that claimant's work aggravation 
 
            has sensitized claimant to other chemicals.  Dr. Lohr's 
 
            opinions also suggest a temporary aggravation and that the 
 
            work environment may have caused bronchial spasm.  Dr. 
 
            Carignan's opinion can be given little weight because he was 
 
            unaware of claimant's pneumonia and previous history and had 
 
            the impression that claimant's pulmonary problems had 
 
            occurred in "the last three or four years after he had been 
 
            working at the plant for a considerable period of time."  
 
            (Transcript, page 66, lines 11-13)  Dr. Carignan 
 
            acknowledged that the second test (done in May 1985 after 
 
            the employer's plant had closed) showed there wasn't any 
 
            reversible lung disease.  This also indicates that 
 
            claimant's work was a temporary aggravation.  There is no 
 
            reliable medical evidence that establishes a causal 
 
            connection between claimant's underlying permanent condition 
 
            and his work.
 
            findings of fact
 
            The findings of fact contained in the proposed agency 
 
            decision filed September 30, 1991 are adopted as final 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            agency action.
 
            conclusions of law
 
            The conclusions of law contained in the proposed agency 
 
            decision filed September 30, 1991 are adopted as final 
 
            agency action.
 
            WHEREFORE, the decision of the deputy is affirmed.
 
            order
 
            THEREFORE, it is ordered:
 
            That claimant shall take nothing from these proceedings.
 
            That claimant shall pay the costs of this matter including 
 
            the transcription of the hearing.  
 
            That defendant file a first report of injury within twenty 
 
            (20) days of the signing and filing of this decision.
 
            Signed and filed this ____ day of January, 1993.
 
            
 
            
 
            
 
            
 
                      ________________________________
 
                               BYRON K. ORTON
 
                          INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr. E. J. Kelly
 
            Attorney at Law
 
            2700 Grand Ave., Ste 111
 
            Des Moines, Iowa 50312
 
            
 
            Mr. E. W. Wilcke
 
            Attorney at Law
 
            P.O. Box 455
 
            Spirit Lake, Iowa 51360
 
            
 
            Mr. Dick H. Montgomery
 
            Attorney at Law
 
            P.O. Box 7038
 
            Spencer, Iowa 51301
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                            2801 - 2802
 
                                            Filed January 27, 1988
 
                                            DAVID E. LINQUIST
 
         
 
                    BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         WILTON CROFT,
 
         
 
              Claimant,
 
                                                      File No. 792717
 
         vs.
 
                                                        A P P E A L
 
         JOHN MORRELL & COMPANY,
 
                                                      D E C I S I 0 N
 
              Employer,
 
              Self-Insured,
 
              Defendant.
 
         
 
         
 
         2801 - 2802
 
         
 
              Claimant's claim was barred because he failed to give 
 
         employer written notice of his occupational disease within 90 
 
         days of the date that the disease first manifested itself.  
 
         Defendant did not have actual knowledge of claimant's condition.
 
         
 
              Claimant had been treated by his personal choice physician 
 
         for respiratory problems.  Knowledge of the condition by 
 
         claimant's physician was not constructive knowledge of the 
 
         employer.  Claimant should have known his condition was work 
 
         related when he was treated four times in seven weeks and his 
 
         conditions decreased when he was off work on vacation or on 
 
         layoff.
 
 
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
            1803
 
            Filed January 22, 1993
 
            Byron K. Orton
 
            HJW
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
            _____
 
                        :
 
            WILTON CROFT,    :
 
                        :
 
                 Claimant,   :       File No. 792717
 
                        :
 
            vs.         :          A P P E A L
 
                        :
 
            JOHN MORRELL & COMPANY,    :        D E C I S I O N
 
                        :
 
                 Employer,   :
 
                 Self-Insured,    :
 
                 Defendant.       :
 
            ____________________________________________________________
 
            _____
 
            
 
            1803
 
            Claimant not entitled to permanent partial disability 
 
            benefits where work environment produced only temporary 
 
            aggravation of underlying asthmatic bronchitis disease 
 
            process.  There was no reliable medical evidence that 
 
            claimant's work caused his underlying asthmatic condition.
 
            
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            WILTON CROFT,                 :
 
                                          :
 
                 Claimant,                :         File No. 792717
 
                                          :
 
            vs.                           :           R E M A N D
 
                                          :
 
            JOHN MORRELL & COMPANY,       :         D E C I S I O N
 
                                          :
 
                 Employer,                :
 
                 Self-Insured,            :
 
                 Defendant.               :
 
            ____________________________________________________________
 
            
 
                                   introduction
 
            
 
                 This case is returned to the industrial commissioner on 
 
            remand from the Iowa Court of Appeals for proceedings 
 
            consistent with that court's decision in Croft v. John 
 
            Morrell & Co., 451 N.W.2d 501 (Iowa App. 1989).
 
            
 
                 The record on remand consists of the transcript of the 
 
            arbitration hearing; claimant's exhibits 1 through 8; 
 
            defendant's exhibit A; and, of the filings and stipulations 
 
            of the parties throughout this proceeding.
 
            
 
                                      issues
 
            
 
                 As this claim has been remanded for proceedings 
 
            consistent with the Iowa Court of Appeals' decision, issues 
 
            remaining from the original arbitration proceeding and not 
 
            decided prior to appeal are before us.  The only issue 
 
            remaining appears to be the issue of whether claimant is 
 
            entitled to permanent partial disability benefits.
 
            
 
                              review of the evidence
 
            
 
                 The arbitration decision filed May 22, 1986, sets forth 
 
            the evidence pertinent to the permanent partial disability 
 
            issue.  The evidence will not be restated herein.
 
            
 
                           applicable law and analysis
 
            
 
                 As claimant has an impairment to the body as a whole, 
 
            an industrial disability has been sustained.  Industrial 
 
            disability was defined in Diederich v. Tri-City Ry. Co., 219 
 
            Iowa 587, 593, 258 N.W.2d 899, 902 (1935) as follows: "It is 
 
            therefore plain that the legislature intended the term 
 
            'disability' to mean 'industrial disability' or loss of 
 
            earning capacity and not a mere 'functional disability' to 
 
            be computed in the terms of percentages of the total 
 
            physical and mental ability of a normal man [sic]."
 
            
 
                 Functional impairment is an element to be considered in 
 
            determining industrial disability which is the reduction of 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            
 
            
 
            earning capacity, but consideration must also be given to 
 
            the injured employee's age, education, qualifications, 
 
            experience, motivation, loss of earnings, severity and situs 
 
            of the injury, work restrictions, inability to engage in 
 
            employment for which the employee is fitted and the 
 
            employer's offer of work or failure to so offer.  Olson v. 
 
            Goodyear Serv. Stores, 255 Iowa 1112, 1121, 125 N.W.2d 251, 
 
            257 (1963); McSpadden v. Big Ben Coal Co., 288 N.W.2d 181 
 
            (Iowa 1980); Barton v. Nevada Poultry Co., 253 Iowa 285, 110 
 
            N.W.2d 660 (1961).
 
            
 
                 Compensation for permanent partial disability shall 
 
            begin at the termination of the healing period.  
 
            Compensation shall be paid in relation to 500 weeks as the 
 
            disability bears to the body as a whole.  Section 85.34.
 
            
 
                 While a claimant is not entitled to compensation for 
 
            the results of a preexisting injury or disease, its mere 
 
            existence at the time of a subsequent injury is not a 
 
            defense.  Rose v. John Deere Ottumwa Works, 247 Iowa 900, 76 
 
            N.W.2d 756 (1956).  If the claimant had a preexisting 
 
            condition or disability that is materially aggravated, 
 
            accelerated, worsened or lighted up so that it results in 
 
            disability, claimant is entitled to recover.  Nicks v. 
 
            Davenport Produce Co., 254 Iowa 130, 115 N.W.2d 812 (1962); 
 
            Yeager v. Firestone Tire & Rubber Co., 253 Iowa 369, 112 
 
            N.W.2d 299 (1961).
 
            
 
                 Apportionment of disability between a preexisting 
 
            condition and an injury is proper only when some 
 
            ascertainable portion of the ultimate industrial disability 
 
            existed independently before an employment-related 
 
            aggravation of disability occurred.  Bearce v. FMC Corp., 
 
            465 N.W.2d 531 (Iowa 1991); Varied Enterprises, Inc. v. 
 
            Sumner, 353 N.W.2d 407 (Iowa 1984).
 
            
 
                 The burden of showing that disability is attributable 
 
            to a preexisting condition is placed upon the defendant.  
 
            Where evidence to establish a proper apportionment is 
 
            absent, the defendant is responsible for the entire 
 
            disability that exists.  Bearce, 465 N.W.2d 531; Sumner, 353 
 
            N.W.2d 407.
 
            
 
                 Whether claimant is entitled to permanent partial 
 
            disability benefits hinges on whether claimant's 
 
            work-related condition was merely a temporary aggravation of 
 
            an underlying disease process, which aggravation abated 
 
            after claimant left the work environment such that any 
 
            current residuals relate only to the underlying disease 
 
            process and not to the aggravation, or whether claimant's 
 
            current condition is a condition materially aggravated, 
 
            accelerated, worsened or lighted up such that it results in 
 
            disability.  In the original arbitration decision, we 
 
            stated:
 
            
 
                 . . . even if we accept such, we must find that 
 
                 any loss of earning capacity which claimant 
 
                 suffers relates largely to his underlying disease 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            
 
            
 
                 process and not to any residuals from its 
 
                 temporary aggravation in a specific work 
 
                 environment.  That fact coupled with claimant's 
 
                 failure to show any actual loss of earnings makes 
 
                 suspect claimant's claim of industrial disability 
 
                 resulting from his occupational disease.
 
            
 
            (Arbitration Decision, May 22, 1986, page 12)
 
            
 
                 On further considering the issue in this remand, we 
 
            find nothing in the record that would change our original 
 
            findings in this regard.  Air study of April 24, 1985, two 
 
            days prior to claimant's last day of work, showed an 
 
            abnormal, moderate obstruction with a reversible component.  
 
            A study of May 15, 1985, while consistent with mild airway 
 
            obstruction, was considerably improved as compared with the 
 
            April 24, 1985 study.  Dr. From conducted his own pulmonary 
 
            function studies, all apparently after May 15, 1985, and 
 
            reported that such were normal without significant 
 
            restriction or obstruction.  Such is consistent with a 
 
            finding that claimant's condition had a reversible component 
 
            as the Mayo studies suggested and that claimant's condition 
 
            had reversed significantly subsequent to his leaving work.  
 
            Given such, claimant's work-related aggravation of his 
 
            condition must be characterized as only a temporary 
 
            aggravation which does not entitle claimant to permanent 
 
            disability benefits.
 
            
 
                 Claimant may well argue that the fact that he cannot 
 
            return to a work environment such as he experienced at John 
 
            Morrell entitles him to an award of permanent partial 
 
            disability benefits.  Claimant's argument misses the mark, 
 
            however.  Claimant's inability to return to the John Morrell 
 
            work environment or like work environments relates to 
 
            claimant's underlying condition and not to that condition's 
 
            temporary aggravation at John Morrell.
 
            
 
                 Likewise, claimant may argue that under Bearce, 
 
            claimant is entitled to an award of permanent partial 
 
            disability benefits in that claimant had no ascertainable 
 
            portion of any ultimate industrial disability before the 
 
            employment-related aggravation of his underlying disease 
 
            process.  We cannot agree.  Initially, as stated above, 
 
            claimant's underlying aggravation was at best a temporary 
 
            aggravation.  While Dr. From indicates that perhaps 
 
            one-fourth of claimant's current impairment rating resulted 
 
            from the temporary work aggravation of the condition, the 
 
            record as a whole does not support such.  The record as a 
 
            whole supports a finding that claimant's condition had 
 
            always abated substantially when he left the work 
 
            environment and that, outside of the work environment, 
 
            claimant appeared to have no residuals that could be related 
 
            directly to his temporary work aggravation and not to his 
 
            underlying asthmatic bronchitis disease process.
 
            
 
                 For all the reasons cited above, we find that claimant 
 
            is not entitled to any permanent partial disability on 
 
            account of his temporary work aggravation of his underlying 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            
 
            
 
            asthmatic bronchitis disease process.
 
            
 
                                 findings of fact
 
            
 
                 WHEREFORE, IT IS FOUND:
 
            
 
                 Claimant's asthmatic bronchitis has a reversible 
 
            component.
 
            
 
                 Claimant's asthmatic bronchitis reversed significantly 
 
            subsequent to his leaving John Morrell employment.
 
            
 
                 Claimant's aggravation of his asthmatic bronchitis at 
 
            John Morrell was a temporary aggravation only.
 
            
 
                 Claimant cannot return to work at John Morrell or to 
 
            like work environments because of his underlying asthmatic 
 
            bronchitis and not because of that condition's temporary 
 
            aggravation in his employment.
 
            
 
                 Claimant has no permanent condition related to his John 
 
            Morrell employment.
 
            
 
                 Claimant has no loss of earnings capacity related to 
 
            his John Morrell employment.
 
            
 
                                conclusions of law
 
            
 
                 THEREFORE, IT IS CONCLUDED:
 
            
 
                 Claimant has not established an entitlement to 
 
            permanent partial disability benefits on account of an 
 
            aggravation of his asthmatic bronchitis disease process.
 
            
 
                           
 
            
 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            
 
            
 
            order
 
            
 
                 THEREFORE, IT IS ORDERED:
 
            
 
                 Claimant take nothing further from this proceeding.
 
            
 
                 Claimant pay costs of this action, which costs are 
 
            directly attributable to this remand and resolution of the 
 
            permanent partial disability issue pursuant to rule 343 IAC 
 
            4.33.
 
            
 
                 Defendant pay costs of this action, which costs are not 
 
            directly relatable to this remand nor directly relatable to 
 
            the permanent partial disability issue, pursuant to rule 343 
 
            IAC 4.33.
 
            
 
                 Defendant file a first report of injury within twenty 
 
            (20) days of the signing and filing of this remand decision 
 
            pursuant to rule 343 IAC 3.1.
 
            
 
                 Signed and filed this ______ day of ____________, 1991.
 
            
 
                 
 
            
 
                 
 
                 
 
                                          ______________________________
 
                                          HELENJEAN WALLESER
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr. E. W. Wilcke
 
            Attorney at Law
 
            826 1/2 Lake Street
 
            P.O. Box 455
 
            Spirit Lake, Iowa  51360
 
            
 
            Mr. E. J. Kelly
 
            Attorney at Law
 
            Suite 111, Terrace Center
 
            2700 Grand Avenue
 
            Des Moines, Iowa  50312
 
            
 
            Mr. Dick H. Montgomery
 
            Attorney at Law
 
            316 11th Street SW Plaza
 
            P.O. Box 7038
 
            Spencer, Iowa  51301
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                           1803
 
                           Filed September 30, 1991
 
                           HELENJEAN WALLESER
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            WILTON CROFT,                 :
 
                                          :
 
                 Claimant,                :         File No. 792717
 
                                          :
 
            vs.                           :           R E M A N D
 
                                          :
 
            JOHN MORRELL & COMPANY,       :         D E C I S I O N
 
                                          :
 
                 Employer,                :
 
                 Self-Insured,            :
 
                 Defendant.               :
 
            ____________________________________________________________
 
            
 
            1803
 
            Claimant not entitled to permanent partial disability 
 
            benefits where work environment produced only temporary 
 
            aggravation of underlying asthmatic bronchitis disease 
 
            process.