BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
        
 
        
 
        SHERRY L. LUNDQUIST,
 
        
 
            Claimant,
 
        
 
        vs.                              File Nos. 792729/798238
 
                                                   298239
 
        FIRESTONE TIRE & RUBBER
 
        COMPANY,                               A P P E A L
 
        
 
            Employer,                       D E C I S I O N
 
        
 
        and
 
        
 
        INSURANCE COMPANY OF NORTH
 
        AMERICA
 
        
 
            Insurance Carrier,
 
            Defendants.
 
        
 
        
 
                                 STATEMENT OF THE CASE
 
        
 
        Defendants appeal from an arbitration decision awarding permanent 
 
        partial disability benefits based on an industrial disability of 
 
        40 percent; medical benefits; and healing period benefits 
 
        resulting from a work injury on April 22, 1985.
 
        
 
        The record on appeal consists of the transcript of the 
 
        arbitration hearing; claimant's exhibits 1 through 3; and 
 
        defendants' exhibits A through C. Both parties filed briefs on 
 
        appeal.
 
        
 
                                      ISSUE
 
        
 
        Defendants state the issue on-appeal is whether the deputy erred 
 
        in finding that the claimant sustained permanent industrial 
 
        disability or loss of earning capacity in this case.
 
        
 
                                 REVIEW OF THE EVIDENCE
 
        
 
        The arbitration decision 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.
 
        
 
        LUNDQUIST V. FIRESTONE TIRE & RUBBER COMPANY
 
        Page 2
 
        
 
        
 
                                      ANALYSIS
 
        
 
        In order to facilitate resolution of this appeal it is necessary 
 
        to summarize the deputy's findings in the arbitration decision. 
 
        The deputy found that there was no permanency from injuries in 
 
        1983 and 1984; that there was no permanent impairment to any part 
 
        of claimant's body other than her back; and that claimant 
 
        suffered a permanent disability as a result of her injury on 
 

 
        
 
 
 
 
 
        April 22, 1985. It is this last finding that defendants appeal 
 
        and is the subject of this appeal.
 
        
 
        Kent Patrick, M.D., was claimant's treating physician and his 
 
        opinions will be relied upon to resolve this matter. Dr. Patrick 
 
        testified in his deposition on April 4, 1986:
 
        
 
        Q. (By Mr. Henderson) Doctor, was the reason you decided to 
 
        perform a fusion surgery on Sherry's back based upon the pain 
 
        that she was experiencing from her spondylolisthesis condition?
 
        
 
        A. Yes--
 
        
 
        
 
        
 
        A. The indication for surgery in a patient with spondylolisthesis 
 
        includes pain that is unresponsive to nonoperative treatment. Her 
 
        complaints of pain are the reason that fusion was carried out.
 
        
 
        
 
        
 
        Q. Do you have an opinion within a reasonable degree of medical 
 
        certainty as to the amount of permanent physical impairment which 
 
        Sherry Lundquist may expect as a result of the fusion surgery 
 
        which she had in January of 1986?
 
        
 
        
 
        
 
        A  Yes
 
        
 
        Q. What is that opinion?
 
        
 
        
 
        
 
        A. A typical patient with a lumbar fusion, this problem, using 
 
        the Guidelines of the American Academy of Orthopedic Surgeons, 
 
        warrants a permanent partial impairment rating of 20 percent of 
 
        the body as a whole.
 
        
 
        LUNDQUIST V. FIRESTONE TIRE & RUBBER COMPANY
 
        Page 3
 
        
 
        
 
        Q. On the basis of those films and on the basis of your 
 
        examination, has Mrs. Lundquist's condition of spondylolisthesis 
 
        ever changed?
 
        
 
        A. No. She has been a Grade I spondylolisthesis from the 
 
        beginning, and she remains a Grade I spondylolisthesis. This is 
 
        based on how far one vertebra slips forward on the other.
 
        
 
        Q. So, Doctor, is it safe for me to assume that there is nothing 
 
        in your care and treatment of Mrs. Lundquist that leads you to 
 
        believe that the work she was doing at Firestone worsened her 
 
        condition? Is that a fair statement?
 
        
 
        
 
        
 
        A. Her diagnosis is unchanged from February of '84 through the 
 
        present. Her diagnosis is Grade I spondylolisthesis, L5 on S1.
 
        
 
        
 
        
 
        Q. Were you, at any time in the course of your care and treatment 
 
        of Mrs. Lundquist, convinced she had a herniated disc?
 
        
 

 
        
 
 
 
 
 
        A. She at no time showed physical findings of history of a 
 
        herniated disc.
 
        
 
        
 
        
 
        Q. But it's obviously a defect that was formed prior to the time 
 
        you saw Mrs. Lundquist?
 
        
 
        A. Much, much prior to my seeing Mrs. Lundquist.
 
        
 
        Q. And as time passed, the work that she was doing at Firestone, 
 
        I take it, you feel made her symptomatic, is that correct?
 
        
 
        A. That is correct.
 
        
 
        
 
        
 
        Q. Now, Doctor, and I think you told Mr. Henderson that you 
 
        believe then that the work Mrs. Lundquist did at Firestone 
 
        aggravated the symptoms of this condition of spondylolisthesis; 
 
        is that a fair statement?
 
        
 
        A. Yes.
 
        
 
        LUNDQUIST V. FIRESTONE TIRE & RUBBER COMPANY
 
        Page 4
 
        
 
        
 
        Q. Now, Doctor, considering the facts of the hypothetical 
 
        question in your care and treatment of Mrs. Lundquist, is it safe 
 
        to say that the work that Mrs. Lundquist did at Firestone and is 
 
        described to you in that question did not aggravate or 
 
        precipitate or cause the condition that she has of 
 
        spondylolisthesis?
 
        
 
        
 
        
 
        A. Her spondylolisthesis predated her employment at Firestone 
 
        Tire and Rubber Company, if that answers your question.
 
        
 
        Q. (By Mr. Giovannetti) But I guess my question is, Doctor, you 
 
        have--in our discussion here, you have not indicated that any of 
 
        the work that she did at Firestone altered that condition; it 
 
        that a fair statement?
 
        
 
        
 
        
 
        A. Anatomically, her spondylolisthesis predated her employment. 
 
        Through the course of her employment and injuries, her 
 
        spondylolisthesis did not change on an anatomical basis. By that 
 
        I mean, it did not proceed to further slippage or further 
 
        instability of the lower back.
 
        
 
        (Claimant's Exhibit 1, VI, a, Patrick Deposition, Pages 25-38)
 
        
 
        Dr. Patrick's opinion that claimant did not have a herniated disc 
 
        will be given more weight than the opinion of Dennis Rolek, D.O. 
 
        Dr. Patrick treated claimant for her back condition while Dr. 
 
        Rolek admitted that he treated claimant for abdominal pain. Dr. 
 
        Patrick is an orthopedic surgeon and Dr. Rolek is a general 
 
        practitioner. Dr. Rolek's initial impression of a probable 
 
        herniated disc appears to have been formed before testing other 
 
        than an examination. Dr. Rolek agreed that the examination by Dr. 
 
        Winston while claimant was in Mercy Hospital did not result in a 
 
        diagnosis of a herniated disc. Dr. Rolek also admitted that a 
 
        herniated disc was a suspicion that was not a confirmed 
 

 
        
 
 
 
 
 
        diagnosis. The greater weight of evidence demonstrates that 
 
        claimant did not have a herniated disc.
 
        
 
        Dr. Patrick's opinion, who was a treating physician and an 
 
        orthopedic surgeon, will be given greater weight than the opinion 
 
        of Donald Baldwin, D.C. Dr. Baldwin's records were the 
 
        only-medical evidence that characterized claimant's 
 
        spondylolisthesis as Grade II. The greater weight of evidence 
 
        demonstrates that claimant had a Grade I spondylolisthesis.
 
        
 
        Claimant's lumbar condition, Grade I spondylolisthesis, predated 
 
        her employment with defendant employer. Claimant's
 
        
 
        LUNDQUIST V. FIRESTONE TIRE & RUBBER COMPANY
 
        Page 5
 
        
 
        
 
        employment with defendant employer did not change that condition. 
 
        However, her employment did aggravate her pain which was a 
 
        symptom of her condition. Claimant at no time showed physical 
 
        findings or history of a herniated disc. Claimant's permanent 
 
        impairment is the result of the lumbar fusion. The lumbar fusion 
 
        was performed to correct a condition that predated her 
 
        employment. Claimant's work injury which manifested itself as 
 
        pain was a temporary aggravation of her preexisting condition. 
 
        The work injury on April 22, 1985 did not result in any permanent 
 
        change in claimant's condition. When claimant's pain was treated 
 
        and claimant could work without the pain caused by the work 
 
        injury, her work-related disability ended. Claimant, however, was 
 
        unable to work for a period of time as a result of the temporary 
 
        aggravation of her condition. Claimant did not work from April 
 
        23, 1985 until May 16 when she unsuccessfully attempted to work 
 
        for two days. Claimant has not since returned to employment with 
 
        defendant employer. As the deputy noted there is an unexplained 
 
        period beginning July 8, 1985 when claimant apparently was not 
 
        seeking medical care, was not working, and did not explain her 
 
        activities. Claimant has not proved that her temporary disability 
 
        extended beyond July 8, 1985 when she ceased medical care. 
 
        Accordingly, medical expenses incurred for treatment of 
 
        claimant's condition that predated her employment were not 
 
        incurred as a result of her work injury. Claimant did, however, 
 
        incur medical expenses to treat the pain which was a result of 
 
        her work injury.
 
        
 
        Claimant has made application to assess costs as follows:
 
        
 
        $150 for the deposition testimony of Dr. Kent Patrick $61 for the 
 
        testimony of vocational expert Roger Marquardt $75 for the 
 
        medical report of Dr. Dennis F. Rolek
 
        
 
        The costs as requested by claimant are costs and amounts that are 
 
        allowable under Division of Industrial Services Rule 343-4.33. 
 
        Those costs will be taxed to defendants.
 
        
 
                                 FINDINGS OF FACT
 
        
 
        1. Claimant sustained an injury in the nature of an aggravation 
 
        of a preexisting condition which produced no permanent disability 
 
        in November 1983 and on November 2, 1984.
 
        
 
        2. Sherry L. Lundquist sustained an injury in the nature of a 
 
        temporary aggravation of a preexisting condition on April 22, 
 
        1985, which injury occurred while she was pushing a bale in the 
 
        course of her employment at the Firestone Plant in Des Moines, 
 
        Iowa.
 
        
 

 
        
 
 
 
 
 
        3. Following the injury, claimant was medically incapable of 
 
        returning to work in employment substantially similar to
 
        
 
        LUNDQUIST V. FIRESTONE TIRE & RUBBER COMPANY
 
        Page 6
 
        
 
        
 
        that in which she was engaged at the time of the injury. Claimant 
 
        attempted to resume working on May 16 and 17, 1985, but was 
 
        unsuccessful.
 
        
 
        4. From July 9, 1985 through January 19, 1986, claimant did not 
 
        actively seek medical care, did not work and was not recovering 
 
        from the injury.
 
        
 
        5. The assessment of the cause of claimant's condition and 
 
        symptoms as provided by Dr. Patrick is correct.
 
        
 
        6. Claimant's lumbar condition predated her employment with 
 
        defendant employer.
 
        
 
        7. Claimant's employment with defendant employer did not change 
 
        her lumbar condition.
 
        
 
        8. Claimant did not have a herniated disc.
 
        
 
        9. The lumbar fusion was performed to correct a condition that 
 
        predated claimant's employment with defendant employer.
 
        
 
        10. Claimant's permanent impairment is the result of the lumbar 
 
        fusion.
 
        
 
        11. Claimant's permanent impairment is not the result of a work 
 
        injury with defendant employer in November 1983, on November 2, 
 
        1984 or on April 22, 1985.
 
        
 
        12. In the last 13 completed weeks during which claimant worked 
 
        prior to the injury, she earned a total of $6,803.94.
 
        
 
        13. Claimant failed to introduce any evidence showing that she 
 
        sustained any permanent impairment or permanent disability to any 
 
        part of her body as a result of any of the injuries for which 
 
        claim is made in this action.
 
        
 
        14. Claimant incurred medical expenses in treatment of the work 
 
        injury on April 22, 1985 which were reasonable as follows:
 
        
 
        Neuro-Associates, P.C.                      $ 230.00
 
        Orthopedics Limited, P.C.
 
          (2/15/84 - 1/20/86)                      1,069.00
 
        Mercy Hospital (4/22/85)                      132.00
 
        Mercy Hospital (5/8/85)                       724.00
 
               Total                              $2,155.00
 
        
 
                                 CONCLUSIONS OF LAW
 
        
 
        Claimant has proved that an injury sustained to her back on April 
 
        22, 1985 arose out of and in the course of her employment
 
        
 
        LUNDQUIST V. FIRESTONE TIRE & RUBBER COMPANY
 
        Page 7
 
        
 
        
 
        with defendant employer.
 
        
 
        Claimant has proved that the injury sustained on April 22, 1985 
 

 
        
 
 
 
 
 
        was the cause of temporary total disability from that date until 
 
        July 8, 1985 with a two day interruption for May 16 and 17, 1985.
 
        
 
        Claimant has not proved that work injuries in November 1983, on 
 
        November 2, 1984, and April 22, 1985 were the cause of a 
 
        permanent disability.
 
        
 
        Claimant's rate of compensation is $320.59 per week.
 
        
 
        WHEREFORE, the decision of the deputy is affirmed and modified.
 
        
 
                                      ORDER
 
                                                
 
        THEREFORE, it is ordered:
 
        
 
        That defendants pay claimant temporary total disability benefits 
 
        at a rate of three hundred twenty and 59/100 dollars ($320.59) 
 
        per week from April 23, 1985 through July 8, 1985 with a two day 
 
        interruption for May 16 and 17, 1985.
 
        
 
        That defendants pay claimant two thousand one hundred fifty-five 
 
        dollars ($2155) in section 85.27 benefits.
 
        
 
        That defendants pay all past due weekly compensation in a lump 
 
        sum together with interest pursuant to Iowa Code section 85.30 
 
        from the date each payment came due until the date of actual 
 
        payment.
 
        
 
        That defendants pay the costs of this action including costs of 
 
        transcription of the arbitration hearing pursuant to Division of 
 
        Industrial Services Rule 343-4.33.
 
        
 
        That the costs that defendants pay specifically includes the 
 
        following:
 
        
 
        $150 for the deposition testimony of Dr. Kent Patrick
 
        $61 for the testimony of vocational expert Roger Marquardt
 
        $75 for the medical report of Dr. Dennis F. Rolek
 
        
 
        That file number 798239, which deals with the injury of April 22, 
 
        1985 be assigned for prehearing conference on the remaining 
 
        section 86.13 claim.
 
        
 
        That defendants file claim activity reports as requested by this 
 
        agency pursuant to Division of Industrial Services Rule 343-3.1.
 
        
 
        LUNDQUIST V. FIRESTONE TIRE & RUBBER COMPANY
 
        Page 8
 
        
 
        
 
        Signed and filed this 31st day of March, 1989.
 
        
 
        
 
        
 
                                       DAVID E. LINQUIST
 
                                    INDUSTRIAL COMMISSIONER
 
        
 
        
 
 
            
 
 
 
           
 
 
 
 
 
                   BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         SHERRY L. LUNDQUIST,
 
         
 
              Claimant,
 
         
 
         vs.                                     File Nos. 792729/798238
 
                                                           798239
 
         FIRESTONE TIRE & RUBBER
 
         COMPANY,                                      A P P E A L
 
         
 
              Employer,                              D E C I S I 0 N
 
         
 
         and
 
                                                        F I L E D
 
         INSURANCE COMPANY OF NORTH
 
         AMERICA,                                      MAR 31 1989
 
         
 
              Insurance Carrier,             IOWA INDUSTRIAL COMMISSIONER
 
              Defendants.
 
         
 
         
 
         
 
                          STATEMENT OF THE CASE
 
         
 
              Defendants appeal from an arbitration decision awarding 
 
         permanent partial disability benefits based on an industrial 
 
         disability of 40 percent; medical benefits; and healing period 
 
         benefits resulting from a work injury on April 22, 1985.
 
         
 
              The record on appeal consists of the transcript of the 
 
         arbitration hearing; claimant's exhibits 1 through 3; and 
 
         defendants' exhibits A through C.  Both parties filed briefs on 
 
         appeal.
 
         
 
                                   ISSUE
 
         
 
              Defendants state the issue on appeal is whether the deputy 
 
         erred in finding that the claimant sustained permanent industrial 
 
         disability or loss of earning capacity in this case.
 
         
 
                             REVIEW OF THE EVIDENCE
 
         
 
              The arbitration decision 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
 
         
 
              In order to facilitate resolution of this appeal it is 
 
                                                       
 
                                                                
 
         necessary to summarize the deputy's findings in the arbitration 
 
         decision.  The deputy found that there was no permanency from 
 
         injuries in 1983 and 1984; that there was no permanent impairment 
 
         to any part of claimant's body other than her back; and that 
 
         claimant suffered a permanent disability as a result of her 
 
         injury on April 22, 1985.  It is this last finding that 
 
         defendants appeal and is the subject of this appeal.
 
         
 
              Kent Patrick, M.D., was claimant's treating physician and 
 
         his opinions will be relied upon to resolve this matter.  Dr. 
 
         Patrick testified in his deposition on April 4, 1986:
 
         
 
              Q.  (By Mr. Henderson)  Doctor, was the reason you decided 
 
              to perform a fusion surgery on Sherry's back based upon the 
 
              pain that she was experiencing from her spondylolisthesis 
 
              condition?
 
         
 
              A.  Yes--
 
         
 
              ....
 
         
 
              A.  The indication for surgery in a patient with 
 
              spondylolisthesis includes pain that is unresponsive to 
 
              nonoperative treatment.  Her complaints of pain are the 
 
              reason that fusion was carried out.
 
         
 
              ....
 
         
 
              Q.  ...Do you have an opinion within a reasonable degree of 
 
              medical certainty as to the amount of permanent physical 
 
              impairment which Sherry Lundquist may expect as a result of 
 
              the fusion surgery which she had in January of 1986?
 
         
 
              ....
 
         
 
              A.  Yes.
 
         
 
              Q.  ...What is that opinion?
 
         
 
              ....
 
         
 
              A.   A typical patient with a lumbar fusion, this problem, 
 
              using the Guidelines of the American Academy of Orthopedic 
 
              Surgeons, warrants a permanent partial impairment rating of 
 
              20 percent of the body as a whole.
 
         
 
              Q.  On the basis of those films and on the basis of your 
 
              examination, has Mrs. Lundquist's condition of 
 
              spondylolisthesis ever changed?
 
         
 
              A.  No.  She has been a Grade I spondylolisthesis from the 
 
              beginning, and she remains a Grade I spondylolisthesis.  
 
              This is based on how far one vertebra slips forward on the 
 
              other.
 
         
 
                                                       
 
                                                                
 
              Q.  So, Doctor, is it safe for me to assume that there is 
 
              nothing in your care and treatment of Mrs. Lundquist that 
 
              leads you to believe that the work she was doing at 
 
              Firestone worsened her condition?  Is that a fair 
 
              statement?
 
         
 
              ....
 
         
 
              A.  Her diagnosis is unchanged from February of '84 through 
 
              the present.  Her diagnosis is Grade I spondylolisthesis, L5 
 
              on S1.
 
         
 
              ....
 
         
 
              Q.  Were you, at any time in the course of your care and 
 
              treatment of Mrs. Lundquist, convinced she had a herniated 
 
              disc?
 
         
 
              A.  She at no time showed physical findings of history
 
              of a herniated disc.
 
         
 
              ....
 
         
 
              Q.  But it's obviously a defect that was formed prior to the 
 
              time you saw Mrs. Lundquist?
 
         
 
              A.  Much, much prior to my seeing Mrs. Lundquist.
 
         
 
              Q.  And as time passed, the work that she was doing at 
 
              Firestone, I take it, you feel made her symptomatic, is that 
 
              correct?
 
         
 
              A.  That is correct.
 
         
 
              ....
 
         
 
              Q.  Now, Doctor, and I think you told Mr. Henderson that you 
 
              believe then that the work Mrs. Lundquist did at Firestone 
 
              aggravated the symptoms of this condition of 
 
              spondylolisthesis; is that a fair statement?
 
         
 
              A.  Yes.
 
         
 
              Q.  Now, Doctor, considering the facts of the hypothetical 
 
              question in your care and treatment of Mrs. Lundquist, is it 
 
              safe to say that the work that Mrs. Lundquist did at 
 
              Firestone and is described to you in that question did not 
 
              aggravate or precipitate or cause the condition that she has 
 
              of spondylolisthesis?
 
         
 
              ....
 
         
 
              A.  Her spondylolisthesis predated her employment at 
 
              Firestone Tire and Rubber Company, if that answers your 
 
              question.
 
                                                       
 
                                                                
 
         
 
              Q.  (By Mr. Giovannetti)  But I guess my question is, 
 
              Doctor, you have--in our discussion here, you have not 
 
              indicated that any of the work that she did at Firestone 
 
              altered that condition; it that a fair statement?
 
         
 
              ....
 
         
 
              A.  Anatomically, her spondylolisthesis predated her 
 
              employment.  Through the course of her employment and 
 
              injuries, her spondylolisthesis did not change on an 
 
              anatomical basis.  By that I mean, it did not proceed to 
 
              further slippage or further instability of the lower back.
 
         
 
         (Claimant's Exhibit 1, VI, a, Patrick Deposition, Pages 25-38)
 
         
 
              Dr. Patrick's opinion that claimant did not have a herniated 
 
         disc will be given more weight than the opinion of Dennis Rolek, 
 
         D.O.  Dr. Patrick treated claimant for her back condition while 
 
         Dr. Rolek admitted that he treated claimant for abdominal pain. 
 
         Dr. Patrick is an orthopedic surgeon and Dr. Rolek is a general 
 
         practitioner.  Dr. Rolek's initial impression of a probable 
 
         herniated disc appears to have been formed before testing other 
 
         than an examination.  Dr. Rolek agreed that the examination by 
 
         Dr. Winston while claimant was in Mercy Hospital did not result 
 
 
 
                                    
 
                                                                
 
         in a diagnosis of a herniated disc.  Dr. Rolek also admitted that 
 
         a herniated disc was a suspicion that was not a confirmed 
 
         diagnosis. The greater weight of evidence demonstrates that 
 
         claimant did not have a herniated disc.
 
         
 
              Dr. Patrick's opinion, who was a treating physician and an 
 
         orthopedic surgeon, will be given greater weight than the opinion 
 
         of Donald Baldwin, D.C.  Dr. Baldwin's records were the only 
 
         medical evidence that characterized claimant's spondylolisthesis 
 
         as Grade II.  The greater weight of evidence demonstrates that 
 
         claimant had a Grade I spondylolisthesis.
 
         
 
              Claimant's lumbar condition, Grade I spondylolisthesis, 
 
         predated her employment with defendant employer.  Claimant's 
 
         employment with defendant employer did not change that condition. 
 
         However, her employment did aggravate her pain which was a 
 
         symptom of her condition.  Claimant at no time showed physical 
 
         findings or history of a herniated disc.  Claimant's permanent 
 
         impairment is the result of the lumbar fusion.  The lumbar fusion 
 
         was performed to correct a condition that predated her 
 
         employment.  Claimant's work injury which manifested itself as 
 
         pain was a temporary aggravation of her preexisting condition.  
 
         The work injury on April 22, 1985 did not result in any permanent 
 
         change in claimant's condition.  When claimant's pain was treated 
 
         and claimant could work without the pain caused by the work 
 
         injury, her work-related disability ended.  Claimant, however, 
 
         was unable to work for a period of time as a result of the 
 
         temporary aggravation of her condition.  Claimant did not work 
 
         from April 23, 1985 until May 16 when she unsuccessfully 
 
         attempted to work for two days.  Claimant has not since returned 
 
         to employment with defendant employer.  As the deputy noted there 
 
         is an unexplained period beginning July 8, 1985 when claimant 
 
         apparently was not seeking medical care, was not working, and did 
 
         not explain her activities.  Claimant has not proved that her 
 
         temporary disability extended beyond July 8, 1985 when she ceased 
 
         medical care. Accordingly, medical expenses incurred for 
 
         treatment of claimant's condition that predated her employment 
 
         were not incurred as a result of her work injury.  Claimant did, 
 
         however, incur medical expenses to treat the pain which was a 
 
         result of her work injury.
 
         
 
              Claimant has made application to assess costs as follows:
 
         
 
              $150 for the deposition testimony of Dr. Kent Patrick
 
              $61 for the testimony of vocational expert Roger Marquardt 
 
              $75 for the medical report of Dr. Dennis F. Rolek
 
         
 
         The costs as requested by claimant are costs and amounts that are 
 
         allowable under Division of Industrial Services Rule 343-4.33. 
 
         Those costs will be taxed to defendants.
 
         
 
                                 FINDINGS OF FACT
 
         
 
              1.  Claimant sustained an injury in the nature of an 
 
         aggravation of a preexisting condition which produced no 
 
                                                       
 
                                                                
 
         permanent disability in November 1983 and on November 2, 1984.
 
         
 
              2.  Sherry L. Lundquist sustained an injury in the nature of 
 
         a temporary aggravation of a preexisting condition on April 22, 
 
         1985, which injury occurred while she was pushing a bale in the 
 
         course of her employment at the Firestone Plant in Des Moines, 
 
         Iowa.
 
         
 
              3.  Following the injury, claimant was medically incapable 
 
         of returning to work in employment substantially similar to that 
 
         in which she was engaged at the time of the injury.  Claimant 
 
         attempted to resume working on May 16 and 17, 1985, but was 
 
         unsuccessful.
 
         
 
              4.  From July 9, 1985 through January 19, 1986, claimant did 
 
         not actively seek medical care, did not work and was not 
 
         recovering from the injury.
 
         
 
              5.  The assessment of the cause of claimant's condition and 
 
         symptoms as provided by Dr. Patrick is correct.
 
         
 
              6.  Claimant's lumbar condition predated her employment with 
 
         defendant employer.
 
         
 
              7.  Claimant's employment with defendant employer did not 
 
         change her lumbar condition.
 
         
 
              8.  Claimant did not have a herniated disc.
 
         
 
              9.  The lumbar fusion was performed to correct a condition 
 
         that predated claimant's employment with defendant employer.
 
         
 
              10.  Claimant's permanent impairment is the result of the 
 
         lumbar fusion.
 
         
 
              11.  Claimant's permanent impairment is not the result of a 
 
         work injury with defendant employer in November 1983, on November 
 
         2, 1984 or on April 22, 1985.
 
         
 
              12.  In the last 13 completed weeks during which claimant 
 
         worked prior to the injury, she earned a total of $6,803.94.
 
         
 
              13.  Claimant failed to introduce any evidence showing that 
 
         she sustained any permanent impairment or permanent disability to 
 
         any part of her body as a result of any of the injuries for which 
 
         claim is made in this action.
 
         
 
              14.  Claimant incurred medical expenses in treatment of 
 
         the work injury on April 22, 1985 which were reasonable as 
 
         follows:
 
          
 
               Neuro-Associates, P.C.                          $    230.00
 
               Orthopedics limited, P.C.
 
                   (2/15/84 - 1/20/86)                            1,069.00
 
               Mercy Hospital (4/22/85)                             132.00
 
                                                       
 
                                                                
 
               Mercy Hospital (5/8/85)                              724.00
 
                        Total                                    $2,155.00
 
          
 
                              CONCLUSIONS OF LAW
 
         
 
              Claimant has proved that an injury sustained to her back on 
 
         April 22, 1985 arose out of and in the course of her employment 
 
         with defendant employer.
 
         
 
              Claimant has proved that the injury sustained on April 22, 
 
         1985 was the cause of temporary total disability from that date 
 
         until July 8, 1985 with a two day interruption for May 16 and 17, 
 
         1985.
 
         
 
              Claimant has not proved that work injuries in November 1983, 
 
         on November 2, 1984, and April 22, 1985 were the cause of a 
 
         permanent disability.
 
         
 
              Claimant's rate of compensation is $320.59 per week.
 
         
 
              WHEREFORE, the decision of the deputy is affirmed and 
 
         modified.
 
         
 
                                      ORDER
 
         
 
              THEREFORE, it is ordered:
 
         
 
              That defendants pay claimant temporary total disability 
 
         benefits at a rate of three hundred twenty and 59/100 dollars 
 
         ($320.59) per week from April 23, 1985 through July 8, 1985 with 
 
         a two day interruption for May 16 and 17, 1985.
 
         
 
              That defendants pay claimant two thousand one hundred 
 
         fifty-five dollars ($2155) in section 85.27 benefits.
 
         
 
              That defendants pay all past due weekly compensation in a 
 
         lump sum together with interest pursuant to Iowa Code section 
 
         85-30 from the date each payment came due until the date of 
 
         actual payment.
 
         
 
              That defendants pay the costs of this action including costs 
 
         of transcription of the arbitration hearing pursuant to Division 
 
         of Industrial Services Rule 343-4.33.
 
         
 
              That the costs that defendants pay specifically includes the 
 
         following:
 
         
 
              $150 for the deposition testimony of Dr. Kent Patrick
 
              $61 for the testimony of vocational expert Roger Marquardt 
 
              $75 for the medical report of Dr. Dennis F. Rolek
 
         
 
              That file number 798239, which deals with the injury of 
 
         April 22, 1985 be assigned for prehearing conference on the 
 
         remaining section 86.13 claim.
 
         
 
                                                       
 
                                                                
 
              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 31st day of March, 1989.
 
         
 
         
 
         
 
         
 
         
 
                                               DAVID E. LINQUIST
 
                                            INDUSTRIAL COMMISSIONER
 
         
 
         Copies To:
 
         
 
         Mr. Timothy J. Walker
 
         Mr. Thomas Henderson
 
         Attorneys at Law
 
         1300 First Interstate Bank Bldg.
 
         Des Moines, Iowa  50309
 
         
 
         Mr. E. J. Giovannetti
 
         Attorney at Law
 
         2700 Grand Ave., Suite 111
 
         Des Moines, Iowa  50312
 
         
 
         
 
         
 
 
 
                                      
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
                                                       
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         SHERRY L. LUNDQUIST,
 
         
 
              Claimant,
 
                                                    File Nos. 792729
 
         VS.                                                  798238
 
                                                              798239
 
         FIRESTONE TIRE AND
 
         RUBBER COMPANY,
 
                                                 A R B I T R A T I 0 N
 
              Employer,
 
         
 
         and                                        D E C I S I 0 N
 
         
 
         INSURANCE COMPANY OF
 
         NORTH AMERICA,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         
 
                                   INTRODUCTION
 
         
 
              This decision addresses three arbitration petitions filed by 
 
         Sherry L. Lundquist, claimant, against Firestone Tire and Rubber 
 
         Company, her former employer, and Insurance Company of North 
 
         America, the employer's workers' compensation insurance carrier.  
 
         The first file, number 798238, alleges an injury to claimant's 
 
         back and arms occurring in November, 1983, as a result of the 
 
         repetitive trauma of claimant's day-to-day work activities.  The 
 
         second file, number 792729, alleges an injury to claimant's low 
 
         back occurring on November 2, 1984, as a result of being struck 
 
         by a heavy steel shell.  The third file, number 798239, alleges 
 
         injury to claimant's back from moving a large plastic bale on 
 
         April 22, 1985.  The second and third files also allege 
 
         cumulative trauma injury to claimant's back from her day-to-day 
 
         work activities.  Claimant seeks compensation for healing period, 
 
         permanent disability and payment of medical expenses.
 
         
 
              The case was heard in Des Moines, Iowa, on June 9, 1987.  
 
         The evidence consists of claimant's exhibits 1, 2 and 3 and 
 
         defendants' exhibits A, B and C.  Claimant's exhibit 1 is a large 
 
         binder with many subparts which comprise the vast majority of 
 
         documentary evidence.  The record also contains testimony from 
 
         Sherry L. Lundquist, Richard Lundquist, Roger Marquardt, Doug 
 
         Whinery, Larry Tungland, Jim Allpress and Barb Chaldy.  All 
 
         evidence received was considered in deciding this case even 
 
         though it might not be referred to in this decision.
 
                                    
 
                                    ISSUES
 
         
 
              The issues presented for determination are identical for all 
 
         three files.  They are:
 
         
 
              1.  Whether claimant sustained injury which arose out of and 
 
         in the course of her employment;
 

 
         
 
         
 
         
 
         LUNDQUIST V. FIRESTONE TIRE AND RUBBER COMPANY
 
         Page   2
 
         
 
         
 
         
 
              2.  Whether any alleged injury was a proximate cause of 
 
         temporary disability, healing period or permanent disability and 
 
         determination of claimant's entitlement to weekly compensation 
 
         for such disabilities;
 
         
 
              3.  Whether any alleged injury was a proximate cause of the 
 
         medical treatment and expenses claimant has incurred and 
 
         determination of claimant's entitlement to benefits under Iowa 
 
         Code section 85.27;
 
         
 
              4.  The defense asserts that the claims are barred by Iowa 
 
         Code section 85.23;
 
         
 
              5.  Claimant's claim for additional benefits under the 
 
         fourth unnumbered paragraph of Iowa Code section 86.13 remains 
 
         asserted, but has been bifurcated for a possible subsequent 
 
         determination, dependent upon the result of this decision.
 
         
 
                               SUMMARY OF EVIDENCE
 
         
 
              Claimant's letter brief adequately sets forth the facts of 
 
         the case and is incorporated with a few modifications.
 
         
 
              Sherry Lundquist is a 49-year-old woman with a high school 
 
         education.  Her past work history includes a brief employment as 
 
         a dental hygienist in the late 1950's and employment for a few 
 
         years as a waitress in the 1960's.  She was employed by Superior 
 
         Manufacturing for one year beginning in 1973 working in light 
 
         manufacturing with sheet metal.  In 1974, she began her 
 
         employment with Firestone.  From 1974 through 1981, claimant 
 
         performed a number of different duties for Firestone working with 
 
         material handling in the scrap and rerolling departments.
 
         
 
              On January 9, 1981, claimant complained of low back pain to 
 
         the plant doctor at Firestone.  According to Firestone's medical 
 
         records, this pain appeared to be localized around the lumbar 
 
         area and completely disappeared by January 20, 1981.
 
         
 
              Claimant also received an injury on March 3, 1981 when her 
 
         right arm was caught in a machine at Firestone.  Claimant 
 
         testified that the machine she was operating caught the sleeve of 
 
         her sweater and her right arm was injured when the sweater was 
 
         ripped from her body.  Claimant was treated at Iowa Methodist 
 
         Medical Center on the same date and was diagnosed as having a 
 
         strain of the right elbow.  According to the Firestone medical 
 
         records, it appears that she made a complete recovery by March 
 
         20, 1981, when she indicated that she no longer had any pain as a 
 
         result of this injury.
 
         
 
              Claimant was on layoff from Firestone from December 18, 1981 
 
         through September 27, 1983.  During the time she was on layoff, 
 
         she worked for the Skillet Restaurant as a waitress for a brief 
 
         period of time.  In the summer of 1983, she experienced a problem 
 
         with her right hand going to sleep on occasion over approximately 
 
         a two-week period and the symptoms disappeared.  Claimant did not 
 
         seek any medical attention nor did she file any workers' 
 
         compensation claims for this condition.
 
         
 

 
         
 
         
 
         
 
         LUNDQUIST V. FIRESTONE TIRE AND RUBBER COMPANY
 
         Page   3
 
         
 
         
 
              Claimant was given a recall physical at Firestone on 
 
         September 26, 1983.  At that time, the physical indicated she had 
 
         no health problems, disabilities or complaints of pain.
 
         
 
              Shortly after she returned to her job at Firestone in 
 
         September of 1983, she was given a job which required her to pick 
 
         up tire liners and place them on a jeep to be transported to a 
 
         different part of the plant.  The tire liners are made primarily 
 
         of canvas and are wrapped around a steel shell.  The total weight 
 
         of the shell and the liner may be up to 90 pounds.  The liners 
 
         vary in length from 30 to 72 inches.
 
         
 
              Sometime in late November of 1983, claimant began to notice 
 
         that her back was giving her a great deal of pain when she 
 
         engaged in these lifting activities.  The pain was radiating 
 
         through her lower back area.  Since claimant was afraid she might 
 
         lose her job if she reported it to the company, she decided to go 
 
         to Donald Baldwin, D.C., on her husband's recommendation.
 
         
 
              Dr. Baldwin treated claimant from December 5, 1983 through 
 
         February 1, 1984.  His summary of her treatments is outlined in 
 
         his letter to Cigna Insurance Company dated May 23, 1984.  He 
 
         stated that, when he first saw claimant, she had complaints in 
 
         her hands, forearms and low back.  Her problems with her hands 
 
         were first observed approximately six months earlier, but now her 
 
         left hand goes to sleep anytime and both hands go to sleep at 
 
         night.  He noted she was lifting 50-75 pounds at work and had had 
 
         severe back pain for one week with pain radiating into the left 
 
         leg on the prior day.  Although claimant noted she had a low back 
 
         pain before, it had never been this severe.  Dr. Baldwin's x-rays 
 
         showed cervical spondylosis at C5-6 and spondylolisthesis, grade 
 
         II [claimant's exhibit 1, II(c)].
 
         
 
              Although claimant did not feel that Dr. Baldwin's treatments 
 
         helped her a great deal, she felt that the pain in her back could 
 
         be managed as long as she had a jeep job which allowed her to sit 
 
         down for brief periods of time during her activities.  She began 
 
         taking Tylenol in December, 1983, at the rate of approximately 
 
         four a day.
 
         
 
              In late January, 1984, claimant was transferred from her 
 
         jeep job and given a position which required her to reroll 
 
         liners.. This job required her to be on her feet constantly and 
 
         work in conjunction with another worker.  The co-worker and 
 
         claimant would pick up liners with a bar.  The liners were 
 
         approximately 30-72 inches long.  Once the liners were lifted 
 
         with the bar, they were placed on a steel shell and the liner was 
 
         rolled around the shell.  After the liner was rolled around the 
 
         shell, the unit would again weigh as much as 90 pounds.  This 
 
         whole unit was placed on a skid to be sent to a different portion 
 
         of the plant to be filled with rubber.
 
         
 
              After approximately three days, claimant could not handle 
 
         the low back and arm pain which was caused as a result of the 
 
         rerolling process.  At that point, she reported her problem to 
 
         her supervisor, Douglas Whinery.  Claimant was given a pass to 
 
         the company nurse.  Claimant advised the company nurse that she 
 
         had been going to a chiropractor for some time for her arms.  She 
 
         also indicated she had been suffering from low back and arm pain 
 

 
         
 
         
 
         
 
         LUNDQUIST V. FIRESTONE TIRE AND RUBBER COMPANY
 
         Page   4
 
         
 
         
 
         as the result of her lifting activities at Firestone.  Claimant 
 
         advised the nurse that her low back pain did not hurt when she 
 
         had an opportunity to sit down.  ClaimantOs Firestone records 
 
         indicate that an appointment was made for her by Firestone to see 
 
         Kent Patrick, M.D., on February 15, 1984.
 
         
 
              On February 1, 1984, claimant returned to Dr. Baldwin for 
 
         her final treatment with him.  On page three of his May 23, 1984 
 
         report, he stated that claimant told him she had a new job and 
 
         that it hurt for her to stand and it caused pain in her low back 
 
         and left leg.
 
         
 
              On February 2, 1984, claimant returned to the company nurse, 
 
         again complaining of pain in the left side of her back.  On 
 
         February 11, 1984, claimant went to the Firestone medical office, 
 
         requested Tylenol and indicated that she was in pain.
 
         
 
              On February 15, 1984, claimant saw Dr. Patrick for an 
 
         examination.  At that time, she indicated she had been suffering 
 
         from low back and left leg pain for approximately two months.  
 
         Chiropractic treatments were of no assistance.  Claimant 
 
         mentioned that she felt better when she was sitting or off her 
 
         feet for 10 to 15 minutes per hour.  The back pain was located in 
 
         her lower back and radiated into her left buttock and thigh with 
 
         some radiation into the calf, left foot and ankle.  In addition, 
 
         claimant indicated that she was suffering from some stiffness and 
 
         soreness throughout the proximal musculature including her 
 
         shoulders and elbows.  At that time, she was waking up with arm 
 
         discomfort and tingling in her fingers.
 
              On February 15, 1984, Dr. Patrick indicated in his report 
 
         that he had diagnosed claimant's condition as spondylolisis and 
 
         possible spondylolisthesis which may or may not be related to her 
 
         pain.  Dr. Patrick also advised Firestone that the change in 
 
         activities at the place of employment may have caused her 
 
         complaints.  Dr. Patrick prescribed Feldene for the inflammation. 
 
          In addition, he requested that she return for a recheck in one 
 
         month.  The Firestone medical records indicate that they received 
 
         a 50-pound weight limitation from Dr. Patrick on February 16, 
 
         1984.
 
         
 
              On March 14, 1984, claimant returned for reexamination.  At 
 
         that time, it appeared that her back and leg pain had reached 
 
         resolution.  Her upper extremities continued to be a source of 
 
         discomfort with tenderness localized in the elbow regions.  As a 
 
         result, Dr. Patrick recommended that she wear tennis elbow 
 
         straps.
 
         
 
              On April 13, 1984, claimant indicated to Dr. Patrick that 
 
         she had stopped taking the Feldene because she was afraid of 
 
         drug-induced hypoglycemia.  Her back and leg appeared to be fine, 
 
         but the tennis elbow straps were causing her significant 
 
         discomfort.  At that time, she indicated she was reluctant to try 
 
         a steroid injection.
 
         
 
              Firestone's medical record of April 16, 1984 indicated that 
 
         claimant's back was now unrestricted.
 
         
 
              On May 7, 1984, claimant returned to Dr. Patrick for a 
 
         reexamination and indicated that her back and leg pain had now 
 

 
         
 
         
 
         
 
         LUNDQUIST V. FIRESTONE TIRE AND RUBBER COMPANY
 
         Page   5
 
         
 
         
 
         returned and that her elbows continued to be a problem.  Because 
 
         of the pain in her arms, she agreed to have a steroid injection.  
 
         In addition, Dr. Patrick recommended that she return to taking 
 
         Feldene.
 
         
 
              On May 30, 1984, claimant was again seen by Dr. Patrick.  On 
 
         that date, he noted that she had received excellent relief in her 
 
         arms from the steroid injection.  Although she still had some 
 
         elbow discomfort, her arms were much better and she appeared 
 
         willing to continue working.
 
         
 
              On September 17, 1984, claimant returned to Dr. Patrick for 
 
         another examination.  Claimant indicated that, if she tried to 
 
         reduce the amount of Feldene she was taking, her discomfort 
 
         returned.  Dr. Patrick recommended that she try taking the dosage 
 
         every other day.
 
         
 
              In his report dated September 17, 1984, Dr. Patrick noted 
 
         that he had a letter from Firestone indicating they had denied 
 
         workers' compensation coverage for claimant's elbow problems.  No 
 
         further payments were made to Dr. Patrick for any of claimant's 
 
         treatments.  In response, Dr. Patrick stated that he never 
 
         indicated claimant's elbow problems were a result of her prior 
 
         employment at The Skillet [claimant's exhibit 1, II(c)].
 
         
 
              On November 2, 1984, claimant was struck in the right lower 
 
         back by a 60-inch steel liner which weighed approximately 55 
 
         pounds.  Claimant indicated that she felt immediate pain across 
 
         her lower back and she went to the nurse's station.  The nurse 
 
         applied ice to her back.  Since November 2 was a Friday, she 
 
         returned to work on November 5, 1984 and saw the company doctor 
 
         [claimant's exhibit 1, V(a)].
 
         
 
              On November 5, 1984, the company doctor examined claimantOs 
 
         back and found a contusion on the right lower back.  Claimant 
 
         complained of pain upon bending and the company doctor referred 
 
         her to the Iowa Methodist Hospital for an x-ray.
 
         
 
              On November 9, 1984, Firestone records indicate that the 
 
         x-ray report stated claimant was suffering from spondylolisthesis 
 
         at L5-Sl with no evidence of recent bone injury indicated.  
 
         Claimant was placed on light duty by the company doctor and 
 
         returned to regular duty when her back pain became better.
 
         
 
              Claimant testified that she continued to experience pain in 
 
         her shoulders, arm, low back and left leg off and on through 
 
         April of 1985 as a result of her work activities at Firestone.  
 
         On April 15, 1985, claimant reported to the company doctor to 
 
         discuss the problems.  At that time, the company doctor noted she 
 
         was suffering from multiple vague symptoms and referred her to 
 
         Dr. Brenton.  Claimant was scheduled for an appointment to see 
 
         Dr. Brenton on April 30, 1985.
 
         
 
              On April 19, 1985, claimant returned to the company doctor 
 
         with complaints of back, neck and shoulder pain.  Firestone 
 
         medical records state she had pain across the mid-back which was 
 
         most of her problem.  The pain appeared to be the worst when she 
 
         would first awake in the morning.  The company doctor recommended 
 
         that she see Dr. Manning at the Southridge Clinic on that date.  
 

 
         
 
         
 
         
 
         LUNDQUIST V. FIRESTONE TIRE AND RUBBER COMPANY
 
         Page   6
 
         
 
         
 
         As a result of a phone call received from Dr. Manning later that 
 
         afternoon, the company doctor indicated that claimant would be 
 
         off work for that day.
 
         
 
              On April 19, 1985, Dr. Manning examined claimant for low 
 
         back, left leg, and shoulder and arm pain related to a work 
 
         injury.  Dr. Manning noted that her pain decreased when she was 
 
         not at work.  By report to Firestone on April 22, 1985, Dr. 
 
         Manning stated that he was not sure of the cause of her injury.
 
         
 
              On April 22, 1985, claimant was working near a machine that 
 
         packed pieces of plastic into a large plastic bale.  The bale 
 
         weighed approximately 800 pounds.  When the machine was finished 
 
         packing the plastic, it would kick the bale out into the middle 
 
         of a large piece of cardboard.  Firestone employees would then 
 
         center the big piece of plastic in the middle of the cardboard 
 
         and wrap the cardboard around the bale.  A band would be placed 
 
         around the outside of the cardboard to hold it in place around 
 
         the bale.
 
         
 
              After a great deal of exertion, the plastic was centered on 
 
         the cardboard and taken away.  Immediately after claimant helped 
 
         to center the plastic on the cardboard, she felt a great deal of 
 
         pain across her lower back that was like a large weight had been 
 
         placed on her back.  In addition, the pain in her shoulders 
 
         became worse.
 
         
 
              Since this particular injury occurred near the end of the 
 

 
         
 
         
 
         
 
         LUNDQUIST V. FIRESTONE TIRE AND RUBBER COMPANY
 
         Page   7
 
         
 
         
 
         night shift, claimant went to a room in the plant where she could 
 
         sit down.  Since she was working the night shift, there was no 
 
         company doctor available to examine claimant.  After she 
 
         completed her night's work, claimant went to Mercy Hospital 
 
         Emergency Room for an examination regarding her back pain.
 
         
 
              At Mercy Hospital, claimant was diagnosed as having maximum 
 
         discomfort at L2-L3 paravertebral region and a lumbar strain.  
 
         She was given a doctor's slip recommending that she not work for 
 
         approximately three days and was told to make an appointment with 
 
         Dr. Patrick.
 
         
 
              On the next day, claimant phoned the company nurse to advise 
 
         her that she had strained her back and arms at work on the 
 
         previous evening.  In addition, claimant's husband, Dick 
 
         Lundquist, took the hospital three-day-off-work slip to the 
 
         company and gave it to claimant's supervisor.
 
         
 
              On April 24, 1985, claimant returned to Dr. PatrickOs office 
 
         complaining of reoccurrence of her back pain.  She complained she 
 
         was at work doing her usual lifting activities when she noticed 
 
         an increase of pain in her back.  On that date, she complained of 
 
         back pain radiating into her hips.  In addition, she had some 
 
         radiation of pain into her neck and arms.  Claimant stated that 
 
         she was comfortable when sitting down or lying down, but had 
 
         discomfort when standing.  Dr. Patrick's findings revealed that 
 
         she had appropriate lumbarsacral tenderness with no inappropriate 
 
         findings.  Dr. Patrick recommended that she stay off work for 
 
         approximately one week and attempt to get some further rest.  In 
 
         addition, Dr. Patrick recommended that she take a non-steroidal 
 
         and non-inflammatory drug.  When she was able to return to work, 
 
         Dr. Patrick warned her that she should stay on light duty.
 
         
 
              On May 8, 1985, claimant returned for her follow-up 
 
         examination with Dr. Patrick.  At that time, she indicated she 
 
         continued to have back pain discomfort which now traveled into 
 
         her legs.  She complained of numbness which was bilateral and 
 
         equal.  She stated that her legs felt like they were going to 
 
         give way.
 
              Dr. Patrick's physical examination on that date revealed 
 
         that she had straight leg raising with an equivocal bow string.  
 
         Although she did have some distal migration of her discomfort, 
 
         Dr. Patrick was uncertain as to its reliability.  She did reveal 
 
         a decreased pin prick in the L5 distribution.  She also exhibited 
 
         some mild right calf wasting with no reflex or strength changes.
 
         
 
              In order to rule out the possible disc herniation, Dr. 
 
         Patrick recommended that she have a CT scan.
 
         
 
              On May 9, 1985, Dr. Patrick again examined claimant.  The CT 
 
         scan showed the spondylitic defect bilaterally, but did not 
 
         reveal any disc protrusion or bony spurs which would be impinging 
 
         on the nerve roots.  As a result, Dr. Patrick recommended that 
 
         she start back to work on light duty.
 
         
 
              On May 16, 1985, claimant's Firestone medical records 
 
         indicate that she was again seen by the company doctor.  As a 
 
         result of that examination, the company doctor indicated that it 
 
         was acceptable for her to work.  Claimant's attendance records 
 

 
         
 
         
 
         
 
         LUNDQUIST V. FIRESTONE TIRE AND RUBBER COMPANY
 
         Page   8
 
         
 
         
 
         indicate that she was present for work on May 16 and 17.
 
         
 
              On June 10, 1985, claimant returned for a follow-up 
 
         examination with Dr. Patrick regarding her back pain.  She 
 
         advised Dr. Patrick that she had attempted to work for a couple 
 
         of days in May, but was unable to continue with her work due to 
 
         the discomfort.  She complained primarily of back pain.  At that 
 
         time, Dr. Patrick wanted to have her begin a therapy program, but 
 
         noted she may require a lumbar fusion sometime in the near 
 
         future.  At that time, Dr. Patrick planned to see her in two to 
 
         three weeks.
 
         
 
              On June 11, 1985, claimant was examined by Dennis Rolek, 
 
         D.O. On that date, she complained of abdominal pain and bloating 
 
         relating to problems not associated with this case.  In addition, 
 
         she complained of back pain.  Dr. Rolek had her admitted to Mercy 
 
         Hospital for the abdominal pain and her possible herniated lumbar 
 
         disc.
 
         
 
              From June 11, 1985 through June 19, 1985, claimant was 
 
         treated at Mercy Hospital for abnormal pain, pelvic pain and low 
 
         back pain.  In her admission history and physical, Dr. Rolek 
 
         wrote that he was treating her for low back pain which he thought 
 
         may be related to a herniated lumbar disc.  He noted this most 
 
         recent onset occurred as the result of a work injury at Firestone 
 
         two months prior to the date of admission.  Claimant had 
 
         indicated that the pain had gotten worse and was not 
 
         debilitating.  It was noted that she was suffering from pain 
 
         paresthesias in the upper extremities probably secondary to 
 
         thoracic outlet syndrome.
 
         
 
              On June 17, 1985, Albert Clemens, M.D., stated in a 
 
         consultation report that claimant had complained of cold, numb 
 
         and tingly hands.  He stated that his examination revealed 
 
         evidence of thoracic outlet syndrome.
 
         
 
              On July 8, 1985, Dr. Patrick discussed with claimant her 
 
         current back and arm problems.  On that date, Dr. Patrick 
 
         indicated that he would recommend that she attempt to find some 
 
         other form of work.
 
         
 
              On September 20, 1985, Dr. Patrick prepared a report which 
 
         indicated that he had not seen claimant since July of 1985.  At 
 
         that time, Dr. Patrick indicated that claimant should not be in a 
 
         job requiring significant lifting of more than 30 pounds 
 
         repeatedly or 50 pounds on an occasional basis.  In addition, she 
 
         should not be expected to perform any job that required repeated 
 
         bending, stooping, twisting or lifting of any degree.
 
         
 
              On October 28, 1985, Dr. Patrick stated in his report that 
 
         claimant complained of bilateral upper extremity pain and she was 
 
         ultimately injected with a steroid which resulted in excellent 
 
         relief.  Dr. Patrick noted that the pain had returned 
 
         approximately four months later.  Based on the work history given 
 
         to Dr. Patrick, he concluded that this condition, her lateral 
 
         epicondylitis, was due to her work at Firestone, but was unable 
 
         to find any permanency associated with that condition at that 
 
         time.
 
         
 

 
         
 
         
 
         
 
         LUNDQUIST V. FIRESTONE TIRE AND RUBBER COMPANY
 
         Page   9
 
         
 
         
 
              On January 20, 1986, Dr. Patrick examined claimant in his 
 
         office.  On that date, Dr. Patrick noted that she had some 
 
         intermittent symptoms in her lower extremities, but nothing that 
 
         sounded neurological.  On that date, Dr. Patrick wrote that she 
 
         essentially has all back pain.  As a result, Dr. Patrick 
 
         scheduled her for a lumbar fusion, L5 to the sacrum.  At that 
 
         time, Dr. Patrick noted that her healing time from this lumbar 
 
         fusion would be approximately six months to one year.
 
         
 
              On January 21, 1986, Dr. Patrick.admitted claimant to Mercy 
 
         Hospital and performed surgery at L5-Sl for an intertransverse to 
 
         sacrum fusion lateral approach with a left iliac crest donor 
 
         site.
 
         
 
              After her release from Mercy Hospital, claimant was again 
 
         seen by Dr. Patrick on February 3, 1986.  At that time, she 
 
         indicated that she had not noticed a big difference in comparison 
 
         to her pre-operative pain.  Claimant had been engaging in walking 
 
         activities, but noticed that her right calf tended to ache 
 
         following her walk.  Claimant's wound was healed and the staples 
 
         were removed.  X-ray studies performed on that date showed that 
 
         her bone graft was in place and she was told to return in one 
 
         month and to continue her walking activities.
 
         
 
              On March 3, 1986, Dr. Patrick noted that claimant was still 
 
         wearing a corset and engaging in walking activities approximately 
 
         one to two hours a day.  Her x-ray studies showed a good early 
 
         appearance of the graft material bilaterally.  She was instructed 
 
         to continue her walking activities.
 
         
 
              On September 3, 1986, Peter Wirtz, M.D., an associate of Dr. 
 
         Patrick, prepared a report for the Iowa Department of Job 
 
         Service.  In that report, he stated that claimant was unable to 
 
         perform her occupation for a period running from her surgery on 
 
         January 21, 1986 through August 13, 1986.  At that time, he 
 
         indicated that claimant should seek employment that would allow 
 
         her to do intermittent standing and sitting with a lifting, 
 
         pushing and pulling limitation of 25 pounds [claimant's exhibit 
 
         1, II(h)].
 
         
 
              On the same date, Dr. Rolek prepared a report regarding his 
 
         care and treatment of claimant.  He indicated that her period of 
 
         disability ran from June 11, 1985, when he first treated her for. 
 
         her April, 1985 injury, through the date of the report.  He 
 
         stated that he had not released his patient to return to work and 
 
         stated that she should avoid work that would require her to do 
 
         bending, standing or lifting.
 
         
 
              In a report written November 20, 1986, Dr. Rolek stated that 
 
         he had diagnosed her condition as a back injury at her place of 
 
         employment in the early months of 1985.  As a result of this 
 
         injury, she had severe back pain, down both of her lower 
 
         extremities.  He also found her to be profoundly depressed 
 
         because of this chronic, severe pain.
 
         
 
              In December of 1986, claimant began attending a work 
 
         hardening program at the Sports Medicine Clinic in Des Moines, 
 
         Iowa.  She performed a weight therapy program at the direction of 
 
         Michael Dreibeif for approximately two months.  Mr. Dreibeif and 
 

 
         
 
         
 
         
 
         LUNDQUIST V. FIRESTONE TIRE AND RUBBER COMPANY
 
         Page  10
 
         
 
         
 
         claimant disagreed on some of the elements of the work hardening 
 
         program where Mr. Dreibeif asked claimant to perform some 
 
         exercises that were extremely painful to her.  Barbara Chaldy, 
 
         the vocational rehabilitation expert employed by the defendants, 
 
         intervened in the dispute and was able to resolve some of the 
 
         issues between Mr. Dreibeif and claimant.  Claimant felt that the 
 
         overall effect of the program was beneficial with regard to her 
 
         strength and symptomatology.
 
         
 
              At the present time, claimant complains of a fairly 
 
         consistent dull ache located in her low back area.  This pain 
 
         becomes more extensive and pronounced when she engages in 
 
         extensive physical exertion.  She still experiences pain and 
 
         tingling in her arms on occasion, but the problem has not been 
 
         nearly as extensive.
 
         
 
              Claimant has indicated that she would like to return to 
 
         employment within the restrictions set forth by her doctors.  She 
 
         is currently working with a vocational rehabilitation expert 
 
         selected by the defendants, Barbara Chaldy, to locate an 
 
         occupation that would meet her physical limitations.  In the last 
 
         few months, she has applied with several employers, but has been 
 
         unable to find any employment.  Initially, she had no interest in 
 
         employment other than at Firestone.
 
         
 
              At the time of the hearing, Richard Lundquist testified on 
 
         behalf of his wife.  Mr. Lundquist stated that he had known 
 
         claimant since she began her employment at Firestone in 1974.  He 
 
         had been her supervisor and found her to be an excellent 
 
         employee.  In the late 1970's they began to date and in the early 
 
         1980's they were married.
 
         
 
              During the time that he had known her, Mr. Lundquist did not 
 
         recall claimant ever complaining of back pain except for a brief 
 
         time in 1981.  When she began to complain of significant back 
 
         pain in late November and early December of 1983, he recommended 
 
         that she go to see his chiropractor, Dr. Baldwin.
 
         
 
              Mr. Lundquist remembered that claimant continued to have 
 
         difficulty with her low back and arms throughout the remaining 
 
         time she worked at Firestone.  On the evening of April 22, 1985, 
 
         Mr. Lundquist recalled that claimant walked to the car and 
 
         indicated that she was in a great deal of pain after pushing a 
 
         large block of plastic.  Since there was no company doctor at the 
 
         plant at that time, Mr. Lundquist indicated that he would take 
 
         her to Mercy Hospital for an examination.  While at Mercy 
 
         Hospital, claimant was given a doctor's statement that she should 
 
         not work for three days.  Mr. Lundquist testified that he took 
 
         the statement to Firestone the following day.  When he arrived at 
 
         Firestone, he attempted to give the doctor's statement to the 
 
         company nurse and to the personnel department.  Both departments 
 
         refused to take the statement.  As a result, he contacted one of 
 
         claimant's supervisors, Larry Tungland, and gave him the pass.  
 
         He also advised Tungland that claimant had reinjured her back at 
 
         work the prior evening.
 
         
 
              Mr. Lundquist also testified that it is necessary now to 
 
         help claimant with a number of the household chores that she did 
 
         prior to the beginning of her back and arm problems.  She is also 
 

 
         
 
         
 
         
 
         LUNDQUIST V. FIRESTONE TIRE AND RUBBER COMPANY
 
         Page  11
 
         
 
         
 
         no longer able to sleep in the same bed with Mr. Lundquist and 
 
         has found that she is more comfortable sleeping on the family 
 
         couch as the back of the couch allows her to receive some support 
 
         for her spine.
 
         
 
              Roger Marquardt, a qualified vocational consultant, 
 
         testified on behalf of claimant.  Mr. Marquardt has been in the 
 
         vocational rehabilitation field since 1968.  Mr. Marquardt 
 
         testified that he had interviewed claimant on a couple of 
 
         occasions and had reviewed pertinent portions of her medical 
 
         records.  In addition, he read the vocational reports prepared by 
 
         Barbara Chaldy.  Based upon prior meetings with claimant, he felt 
 
         that her motivation to return to employment had improved with 
 
         time.  Initially, he felt claimant appeared to be primarily 
 
         concerned with resolving her physical problems prior to 
 
         considering her employment options.  Since claimant is 49 years 
 
         old, he classified her as a younger employee for vocational 
 
         rehabilitation purposes.  Her past employment failed to give her 
 
         any transferrable skills and Mr. Marquardt would classify her as 
 
         an unskilled employee.  Although claimant has a high school 
 
         education, she has no previous trade education which would 
 
         improve her chances of employment.
 
         
 
              Based upon claimant's past vocational background and upon 
 
         her physical limitations, Mr. Marquardt testified as to the types 
 
         of employment that were realistically available to claimant in 
 
         the Des Moines area.  In taking an average of the wages paid to 
 
         each of those types of positions and comparing them to a wage 
 

 
         
 
         
 
         
 
         LUNDQUIST V. FIRESTONE TIRE AND RUBBER COMPANY
 
         Page  12
 
         
 
         
 
         which claimant would currently be earning at Firestone, Mr. 
 
         Marquardt was able to establish that claimant had sustained a 
 
         37-39% reduction in her earning potential as a result of her 
 
         injuries at Firestone Tire & Rubber Company.
 
         
 
              Exhibit 1, IV(a), is the deposition of Kent M. Patrick, 
 
         M.D., the orthopaedic surgeon primarily responsible for treatment 
 
         of claimant's low back.  When claimant was initially examined on 
 
         February 15, 1984, she related two months of pain in her lower 
 
         back and left leg.  At that time she was working in the Firestone 
 
         scrap department and rerolling liners (page 6).  A grade I 
 
         spondylolisthesis of L5 on Sl was diagnosed.  She also complained 
 
         of stiffness and soreness in the upper arm and shoulder area 
 
         which Dr. Patrick termed as myositis (page 8).
 
         
 
              Claimant was initially treated with medication and a 
 
         50-pound work restriction (pages 7 and 8).  In a month her back 
 
         and leg pain was greatly improved, but she continued to have 
 
         discomfort in her arms (page 9).  A month later, claimant had 
 
         discontinued the medication without return of her back and leg 
 
         pain, but tennis elbow straps had not relieved the problems in 
 
         her arms (page 10).  When seen on May 7, 1984, claimant's back 
 
         and leg pain had returned.  Her elbows remained sore and were 
 
         treated by injections.  By May 30, 1984, claimant reported 
 
         excellent relief in her elbows and made little comment about her 
 
         back (page 11).  Claimant was next seen on September 17, 1984 and 
 
         had experienced an increase in arm symptoms when she discontinued 
 
         her medication.  Dr. Patrick recommended that she resume 
 
         medication at a reduced dosage (page 12).
 
         
 
              Claimant returned to Dr. Patrick on April 24, 1985 after 
 
         being seen at Mercy.  She reported pain in her back, neck, arms 
 
         and hips (page 13).  On April 29, 1985, he released her to 
 
         light-duty work for three weeks, but she returned to the doctor 
 
         in less than two weeks with increased complaints (page 14).  A CT 
 
         scan was performed on May 15, 1985, which showed no nerve root 
 
         impingement.  Claimant was released to return to light-duty work 
 
         on May 16, 1985, worked only a couple of days and returned to Dr. 
 
         Patrick (pages 16 and 17).  Dr. Patrick recommended that claimant 
 
         reduce her workload or change her type of work in order to avoid 
 
         a fusion (pages 17 and 18).  Dr. Patrick next saw claimant on 
 
         January 20, 1986 at which time her complaints seemed somewhat 
 
         reduced, but she elected to proceed with the fusion (page 18).
 
         
 
              Fusion surgery was performed January 21, 1986.  When seen on 
 
         follow-up visits, claimant indicated that the surgery had not 
 
         changed her pain (pages 19 and 20).  Dr. Patrick indicated that 
 
         the typical healing period for a lumbar fusion is six months to 
 
         one year (page 26).  When the deposition was taken, he stated 
 
         claimant was not ready to return to work because she had not yet 
 
         reached her maximum healing (page 28).
 
         
 
              Dr. Patrick indicated that the type of work claimant 
 
         performed at Firestone probably aggravated her condition and 
 
         caused it to become symptomatic (pages 9, 21-25, 36 and 37), but 
 
         that the work did not cause any discernible anatomical change in 
 
         the spondylolisthesis (pages 37 and 38).  He indicated that the 
 
         reason he performed the fusion surgery was the pain claimant was 
 
         experiencing from the spondylolisthesis condition (page 25).  Dr. 
 

 
         
 
         
 
         
 
         LUNDQUIST V. FIRESTONE TIRE AND RUBBER COMPANY
 
         Page  13
 
         
 
         
 
         Patrick rated claimant as having a 20% permanent partial 
 
         impairment of the body as a whole due to the lumbar fusion (pages 
 
         26 and 27).  He indicated that she should avoid jobs that require 
 
         repetitive stooping, bending, twisting or lifting and that she 
 
         avoid lifting of more than 30 pounds (page 28).
 
         
 
              Exhibit 1, VI(b), is the deposition of Dennis F. Rolek, 
 
         M.D., a general practitioner who treated claimant commencing on 
 
         June 6, 1985.  Her complaints included abdominal pain, back pain 
 
         and pain down her left leg.  The history taken placed the onset 
 
         of the back pain two months before the examination (pages 3-5).  
 
         Claimant's complaints worsened and she was hospitalized for eight 
 
         days commencing June 11, 1985 (page 6).
 
         
 
              While hospitalized, claimant was extensively evaluated.  
 
         Conditions diagnosed included thoracic outlet syndrome, which was 
 
         not sufficiently symptomatic to warrant surgery and has not been 
 
         actively treated (pages 9 and 10).  She was also diagnosed as 
 
         having cervical syndrome and chronic recurrent lumbar sacral 
 
         strain (page 21).  Thereafter, Dr. Patrick took care of 
 
         claimantOs low back while Dr. Rolek treated her other complaints 
 
         (page 10).  Claimant had indicated to Dr. Rolek that the surgery 
 
         performed by Dr. Patrick had not been helpful (page 11).
 
         
 
              Dr. Rolek treated claimant for depression which he felt was 
 
         due in large part to her low back condition (pages 22 and 24).  
 
         He indicated that the depression had worsened (page 14).
 
         
 
              Dr. Rolek stated that claimant's disability rating is 
 
         "...approximately 60 percent of normal..." when including all of 
 
         her diagnosed conditions (page 15).  Sixty percent of normal is 
 
         equivalent to a rating of 40% impairment.
 
         
 
              At the time of the hearing, three employees of Firestone 
 
         Tire & Rubber testified on behalf of the defendants.  The first 
 
         witness,was Doug Whinery who testified that he had worked for 
 
         Firestone Tire & Rubber for 20 years.  Mr. Whinery was claimant's 
 
         supervisor in late 1983 and early 1984.  On direct examination, 
 
         Mr. Whinery testified that he could not recall claimant having 
 
         any back problem in late 1983 or early 1984.
 
         
 
              On cross-examination, Mr. Whinery admitted that he had 
 
         filled out a hospital pass on February 1, 1984 which indicated 
 
         that claimant strained her back while engaging in lifting 
 
         activities in her employment.  He also testified that the type of 
 
         plastic bale that claimant moved on April 22, 1985 could have 
 
         weighed as much as 400 pounds, although he had never weighed 
 
         one.
 
         
 
              The second witness to testify on behalf of the defendants 
 
         was Larry Tungland.  Mr. Tungland testified that he is currently 
 
         a night shift supervisor for Firestone Tire & Rubber.  Mr. 
 
         Tungland had supervised claimant during 1984 and 1985.
 
         
 
              On November 2, 1984, Mr. Tungland was called to claimant's 
 
         work area to investigate an injury that she sustained.  At that 
 
         time, a liner had toppled off a skid and had struck claimant in 
 
         the back.  As a result, Mr. Tungland prepared a pass to the 
 
         hospital dated November 2, 1984, which is contained in the 
 

 
         
 
         
 
         
 
         LUNDQUIST V. FIRESTONE TIRE AND RUBBER COMPANY
 
         Page  14
 
         
 
         
 
         Firestone medical records.
 
         
 
              With regard to claimant's injury on April 22, 1985, Mr. 
 
         Tungland did not specifically recall receiving the doctor's off 
 
         work statement from Mercy Hospital recommending that claimant 
 
         take three days off work.  He admitted that Mr. Lundquist may 
 
         have given him the statement.  Mr. Tungland admitted that 
 
         Firestone Tire & Rubber has been known to lose records of that 
 
         nature.
 
         
 
              James Allpress also testified on behalf of the defendants.  
 
         He is currently the safety director at Firestone Tire & Rubber 
 
         Company.
 
         
 
              On direct examination, Mr. Allpress identified claimant's 
 
         payroll records with Firestone.  He also testified that 
 
         Firestone's medical department had received no report of any 
 
         specific incident of injury as a result of her back strain on 
 
         February 1, 1984.
 
         
 
              Mr. Allpress explained that all of claimantOs medical bills 
 
         should have been paid by the group carrier if she had submitted 
 
         the bills to the group carrier.  When a medical bill is turned 
 
         down by Firestone as not being related to a workers' compensation 
 
         injury, the group carrier pays the bill under the employee's 
 
         health plan.
 
         
 
              On cross-examination, Mr. Allpress admitted that the pass to 
 
         the hospital prepared by Mr. Whinery on February 1, 1984 outlined 
 
         a specific incident of injury at Firestone.
 
         
 
              Barb Chaldy, a qualified vocational consultant, testified 
 
         that she attempted to determine the work that would be available 
 
         to claimant, based on her past employment and work restrictions. 
 
          She stated that the employment restrictions she was operating 
 
         under were the ones given by Peter Wirtz, M.D., including a 
 
         lifting, pushing and pulling restriction of 25 pounds, no 
 
         twisting and intermittent standing and sitting.
 
         
 
              Since claimant was motivated to return to her job at 
 
         Firestone Tire & Rubber Company, Ms. Chaldy attempted to find 
 
         employment for her at the plant which would fit her restrictions.  
 
         She was. advised by Mr. Allpress that there were no appropriate 
 
         jobs at Firestone that would meet those restrictions, nor would 
 
         jobs be available in the indefinite future.
 
         
 
              As a result, Ms. Chaldy explored other types of employment 
 
         options and included a list of these options in her letter of May 
 
         31, 1987.  It was Ms. Chaldy's conclusion that claimant had 
 
         obtained a much more positive approach to securing reemployment 
 
         during the time that she had worked with her.
 
         
 
              On cross-examination, Ms. Chaldy admitted that some of the 
 
         jobs that she had listed in her report of May 31, 1987 were not 
 
         readily available in a realistic number in the Des Moines area.  
 
         In addition, she admitted that she had been advised by Mr. 
 
         Allpress on at least two occasions that there was no likelihood 
 
         of claimant being able to return to employment at Firestone in 
 
         the indefinite future.
 

 
         
 
         
 
         
 
         LUNDQUIST V. FIRESTONE TIRE AND RUBBER COMPANY
 
         Page  15
 
         
 
         
 
         
 
              In rebuttal evidence, claimant testified that all of her 
 
         medical bills had not been paid by the group carrier, contrary to 
 
         the testimony of Mr. Allpress.
 
         
 
         
 
                           APPLICABLE LAW AND ANALYSIS
 
         
 
              Claimant has the burden of proving by a preponderance of the 
 
         evidence that she received an injury on each of the dates alleged 
 
         which arose out of and in the course of her 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, 731-32, 254 N.W. 35, 38 (1934), 
 
         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.
 
         
 
              While a claimant is not entitled to compensation for the 
 
         results of a preexisting injury or disease, the mere existence at 
 
         the time of a subsequent injury is not a defense.  Rose v. John 
 
         Deere Ottumwa Works, 247 Iowa 900, 908, 76 N.W.2d 760-761 
 
         (1956).  If the claimant had a preexisting condition or 
 
         disability that is aggravated, accelerated, worsened or lighted 
 
         up so that it results in disability, claimant is entitled to 
 

 
         
 
         
 
         
 
         LUNDQUIST V. FIRESTONE TIRE AND RUBBER COMPANY
 
         Page  16
 
         
 
         
 
         recover.  Nicks v. Davenport Produce Co., 254 Iowa 130, 115 
 
         N.W.2d 812, 815 (1962).
 
         
 
              When an aggravation occurs in the performance of an 
 
         employer's work and a causal connection is established, claimant 
 
         may recover to the extent of the impairment.  Ziegler v. United 
 
         States Gypsum Co., 252 Iowa 613, 620, 106 N.W.2d 591, 595 
 
         (1960).
 
         
 
              The distinction between injury resulting from cumulative 
 
         trauma, cumulative trauma aggravation of a preexisting condition 
 
         and the natural changes that occur to the body due to a life 
 
         devoted to hard labor is not easily made.  Clearly, Sherry 
 
         Lundquist had a preexisting condition of a type which would 
 
         become symptomatic if she engaged in strenuous physical exertion.  
 
         She did engage in physical exertion and the condition became 
 
         symptomatic.  The condition ultimately became so symptomatic that 
 
         a well-qualified orthopaedic surgeon recommended fusion surgery 
 
         and she agreed to have it.  In his deposition, Dr. Patrick 
 
         indicated that the type of work claimant performed at Firestone 
 
         probably aggravated her condition and caused it to become 
 
         symptomatic (pages 9, 21-25, 36 and 27).  He also indicated, 
 
         however, that the work did not cause any discernible anatomical 
 
         change in the spondylolisthesis (pages 37 and 38).  Individuals 
 
         with spondylolisthesis, a slippage of one vertebra over the one 
 
         beneath it, are graded according to the extent of the slippage 
 
         with grade I being the least and grade IV being the greatest.  
 
         Dr. Baldwin indicated that claimant's spondylolisthesis was a 
 

 
         
 
         
 
         
 
         LUNDQUIST V. FIRESTONE TIRE AND RUBBER COMPANY
 
         Page  17
 
         
 
         
 
         grade II.  All the other medical evidence characterizes it as 
 
         grade I. Nevertheless, Dr. Patrick found claimant's symptoms to 
 
         be appropriate for her condition.  Claimant's work at Firestone 
 
         is therefore found to be a proximate cause of the need for the 
 
         fusion surgery and of the resulting disability relating to 
 
         claimant's back.
 
         
 
              The evidence clearly demonstrates that claimant had a 
 
         spondylolisthesis which preexisted any of the injuries in 
 
         question.  The condition is one which, characteristically, can 
 
         become symptomatic if the person engages in strenuous physical 
 
         activity.  It is therefore found and concluded that claimant did 
 
         sustain injury which arose out of and in the course of her 
 
         employment on the dates alleged and in the manners she described 
 
         in her testimony.  It appears that claimant was paid for the 
 
         times she was off work for the first two injuries.  It is only 
 
         the third, that of April 22, 1985, for which healing period 
 
         compensation is claimed.
 
         
 
              Defendants urge a defense under section 85.23 of The Code.  
 
         It should be noted that the claimed injury date is April 22, 1985 
 
         and that the petition was filed on July 19, 1985.  Proof of 
 
         service in the file shows it to have been delivered to Firestone 
 
         on July 22, 1985.  Clearly, this action was commenced within 90 
 
         days from April 22, 1985.  The affidavit of service in the file 
 
         shows that the petitions were served by certified mail on July 
 
         19, 1985 and were received by the employer on July 22, 1985.  
 
         Service by certified mail is deemed made by posting and the date 
 
         of July 19, 1985 is clearly within 90 days from April 22, 1985.  
 
         The defense of section 85.23 is not available with regard to the 
 
         injury of April 22, 1985.
 
         
 
              Upon review of the entire evidence in the case and the 
 
         nature of a spondylolisthesis as previously stated, it is 
 
         determined that no permanency should be awarded based upon the 
 
         injuries of 1983 and 1984 under the basis of the case McKeever 
 
         Custom Cabinets v. 
 
         
 
         
 
         Smith, 379 N.W.2d 368 (Iowa 1985).  Claimant was injured on April  
 
         22, 1985, returned to work briefly for two days and has not since 
 
         returned to employment with Firestone.  After a trial of 
 
         conservative treatment was unsuccessful at resolving her 
 
         complaints, claimant underwent surgery on January 21, 1986.  Her 
 
         healing period ended on August 13, 1986 as indicated by Peter 
 
         Wirtz, M.D.  There is, however, an unexplained period running 
 
         from July 8, 1985 to January 20, 1986 when claimant apparently 
 
         was not actively seeking medical care, was not working and for 
 
         which her activities are essentially unexplained.  Consistent 
 
         with the result in McKeever, the healing period will be 
 
         interrupted for the dates commencing on July 9, 1985 and running 
 
         through January 19, 1986.  Accordingly, claimant's healing period 
 
         commences April 23, 1985 and runs through July 8, 1985, except 
 
         for May 16 and 17 when she did return to work.  The healing 
 
         period terminates on July 9, 1985, but recommences on January 20, 
 
         1986 when claimant resumed actively seeking medical care.  The 
 
         initial healing period is a span of 10 5/7 weeks.  The second is 
 
         a span of 29 3/7 weeks.  The total is 40 1/7 weeks.
 
         
 

 
         
 
         
 
         
 
         LUNDQUIST V. FIRESTONE TIRE AND RUBBER COMPANY
 
         Page  18
 
         
 
         
 
              If claimant has an impairment to the body as a whole, an 
 
         industrial disability has been sustained.  Industrial disability 
 
         was defined in Diederich v. Tri-City Railway Co., 219 Iowa 587, 
 
         593, 258 N.W. 899, 902 (1935) as follows:  "It is therefore plain 
 
         that the legislature intended the term 'disability' to mean 
 
         'industrial disability' or loss of earning capacity and not a 
 
         mere 'functional disability' to be computed in the terms of 
 
         percentages of the total physical and mental ability of a normal 
 
         man.O
 
         
 
              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).
 
         
 
              The evidence from Marquardt is found to be persuasive and is 
 
         accepted as correct as it relates to claimant's potential for 
 
         resuming employment.  When all the material factors of industrial 
 
         disability are considered, it is determined that claimant has a 
 
         40% permanent partial disability which entitles her to 200 weeks 
 
         of compensation for permanent partial disability.
 
         
 
              The rate of compensation is an issue.  Review of exhibit C 
 
         shows claimant's earnings to have been as follows for the 13 full 
 
         weeks which claimant worked prior to the week in which the injury 
 
         occurred:
 
         
 
              Week    1      4-21-85      $357.00
 
                      2      4-14-85       430.50
 
                      3      3-31-85       527.00
 
                      4      3-24-85       527.00
 
                      5      3-17-85       527.00
 
                      6      3-03-85       527.00
 
                      7      2-24-85       527.00
 
                      8      2-17-85       527.00
 
                      9      2-10-85       527.00
 
                     10      2-03-85       527.00
 
                     11      1-27-85       612.29
 
                     12      1-20-85       612.29
 
                     13      1-13-85       575.74
 
                              Total     $6,803.94 divided by 13 $523.32
 
         
 
              Since claimant was paid by the hour, the rate should be 
 
         determined under section 85.36(6). The following cases provide 
 
         that the weeks of vacation should be excluded and that the weeks 
 
         of actual work should be used to compute the rate.  Schotanus v. 
 
         Command Hydrolics, Inc., I Iowa Industrial Commissioner Report, 
 
         294 (1981); Lewis v. Aalf's Manufacturing Co., I Iowa Industrial 
 
         Commissioner Report, 206 (1980).  The total earned during those 
 
         13 weeks is $6,803.94 which provides average weekly earnings of 
 
         $523.38.  The record shows claimant to have been married with two 
 
         children.  Accordingly, she is married with four exemptions and 
 
         the appropriate rate of compensation is $320.59 per week.
 
         
 
              Claimant seeks to recover the following medical bills:
 
         
 

 
         
 
         
 
         
 
         LUNDQUIST V. FIRESTONE TIRE AND RUBBER COMPANY
 
         Page  19
 
         
 
         
 
              Neuro-Associates, P.C.                    $  230.00
 
              Medical Center Anesthesiologists             609.00
 
              Orthopedics Limited, P.C.                  2,261.00
 
              Dennis F. Rolek, D.O.                      1,427.00
 
              Mercy Hospital (4/22/85)                     132.00
 
              Mercy Hospital (5/8/85)                      724.00
 
              Mercy Hospital (1/86)                      3,769.38
 
                        Total                           $9,152.38
 
         
 
              Claimant was directed to Dr. Patrick, who practices as 
 
         Orthopedics Limited, P.C., by the employer.  The charges from Dr. 
 
         Rolek, however, were not incurred at the direction of the 
 
         employer and are not shown to have been substantially related to 
 
         care of claimant's back.  Accordingly, the charges from Dr. Rolek 
 
         are not the responsibility of the employer.  The records clearly 
 
         show that claimant's complaints which caused her to be 
 
         hospitalized were things other than her back problems.  The care 
 
         and treatment which he provided to her back was duplicative of 
 
         that which had previously been provided by Dr. Patrick.  It was 
 
         therefore unnecessary and unreasonable that it be repeated.  The 
 
         charges at Mercy Hospital were all incurred under the direction 
 
         of Dr. Patrick and are, therefore, the responsibility of the 
 
         employer.  The same is true for all the other expenses listed, 
 
         except for those of Dr. Rolek.  The employer is therefore 
 
         responsible for payment of all of claimant's medical expenses as 
 
         listed, except those of Dr. Rolek.  The total is $7,725.38.
 
         
 
                                 FINDINGS OF FACT
 
         
 
              1.  Sherry L. Lundquist sustained injury in the nature of an 
 
         aggravation of a preexisting condition which produced no 
 
         permanent disability in November, 1983 and on November 2, 1984.
 
         
 
              2.  Sherry L. Lundquist sustained an injury in the nature of 
 
         an aggravation of a preexisting condition on April 22, 1985, 
 
         which injury occurred while she was pushing a bale in the course 
 
         of her employment at the Firestone Plant in Des Moines, Iowa.
 
         
 
              3.  Following the injury, claimant was permanently medically 
 
         incapable of returning to work in employment substantially 
 
         similar to that in which she was engaged at the time of the 
 
         injury.  She underwent surgery and was released by the physician. 
 
         to resume work, with restrictions, on August 13, 1986.  Claimant 
 
         had attempted to resume working on May 16 and 17, 1985, but was 
 
         unsuccessful.
 
         
 
              4.  From July 9, 1985 through January 19, 1986, claimant did 
 
         not actively seek medical care, did not work and was not 
 
         recovering from the injury.
 
         
 
              5.  Claimant has sustained a 40% loss of earning capacity as 
 
         a result of the injuries she sustained.
 
         
 
              6.  Claimant incurred medical expenses in treatment of the 
 
         injury which were reasonable as follows:
 
          
 
                  Neuro-Associates, P.C.                 $  230.00
 
                  Medical Center Anesthesiologists          609.00
 
                  Orthopedics Limited, P.C.               2,261.00
 

 
         
 
         
 
         
 
         LUNDQUIST V. FIRESTONE TIRE AND RUBBER COMPANY
 
         Page  20
 
         
 
         
 
                  Mercy Hospital (4/22/85)                  132.00
 
                  Mercy Hospital (5/8/85)                   724.00
 
                  Mercy Hospital (1/86)                   3,769.38
 
                            Total                        $7,725.38
 
         
 
              7.  Claimant is a credible witness with regard to the events 
 
         that produced her injury.
 
         
 
              8.  The assessment of claimant's employability as made by 
 
         Roger Marquardt is correct and accurate.
 
         
 
              9.  The assessment of the cause of claimant's condition and 
 
         symptoms as provided by Dr. Patrick is accepted as correct.
 
         
 
             10.  In the last 13 completed weeks during which claimant 
 
         worked prior to the injury, she earned a total of $6,803.94.
 
         
 
              11.  Claimant failed to introduce any evidence showing that 
 
         she sustained any permanent impairment or permanent disability to 
 
         any part of her body other than her back as a result of any of 
 
         the injuries for which claim is made in this action.
 
         
 
                                CONCLUSIONS OF LAW
 
         
 
              1.  This agency has jurisdiction of the subject matter of 
 
         this proceeding and its parties.
 
         
 
              2.  The injury claimant sustained to her back on April 22, 
 
         1985 arose out of and in the course of her employment with 
 
         Firestone Tire & Rubber Company.
 
         
 
              3.  Claimant is entitled to receive a total of 40 1/7 weeks 
 
         of compensation for healing period with 10 5/7 weeks thereof 
 
         payable commencing April 23, 1985, with an interruption of two 
 
         days for May 16 and 17, 1985.  An additional 29 3/7 weeks are 
 
         payable commencing January 20, 1986.
 
         
 
              4.  Claimant has a 40% permanent partial disability, when 
 
         the same is evaluated industrially, which, under section 
 
         85.34(2)(u) entitles her to receive 200 weeks of compensation 
 
         payable commencing August 14, 1986.
 
         
 
              5.  Claimant's rate of compensation is $320.59 per week.
 
         
 
                                      ORDER
 
         
 
              IT IS THEREFORE ORDERED that defendants pay claimant forty 
 
         and one-seventh (40 1/7) weeks of compensation for healing period 
 
         at the rate of three hundred twenty and 59/100 dollars ($320.59) 
 
         per week with ten and five-sevenths (10 5/7) weeks thereof 
 
         payable commencing April 23, 1985, with a two-day interruption 
 
         for May 16 and 17, 1985.  Defendants shall pay the remaining 
 
         twenty-nine and three-sevenths (29 3/7) weeks thereof commencing 
 
         January 20, 1986.
 
         
 
              IT IS FURTHER ORDERED that defendants pay claimant two 
 
         hundred (200) weeks of compensation for permanent partial 
 
         disability at the rate of three hundred twenty and 59/100 dollars 
 
         ($320.59) per week commencing August 14, 1986.
 

 
         
 
         
 
         
 
         LUNDQUIST V. FIRESTONE TIRE AND RUBBER COMPANY
 
         Page  21
 
         
 
         
 
         
 
              IT IS FURTHER ORDERED that defendants pay claimant seven 
 
         thousand seven hundred twenty-five and 38/100 dollars ($7,725.38) 
 
         in section 85.27 benefits.
 
         
 
              IT IS FURTHER ORDERED that defendants pay all past due 
 
         weekly compensation in a lump sum together with interest pursuant 
 
         to Iowa Code section 85.30 from the date each payment came due 
 
         until the date of actual payment.
 
         
 
              IT IS FURTHER ORDERED that defendants pay the costs of this 
 
         action pursuant to Division of Industrial Services Rule 
 
         343-4.33.
 
         
 
              IT IS FURTHER ORDERED that file number 798239, which deals 
 
         with the injury of April 22, 1985, be assigned for prehearing 
 
         conference on the remaining section 86.13 claim.
 
         
 
              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 January, 1988.
 
         
 
         
 
         
 
         
 

 
         
 
         
 
         
 
         LUNDQUIST V. FIRESTONE TIRE AND RUBBER COMPANY
 
         Page  22
 
         
 
         
 
         
 
         
 
         
 
                                         MICHAEL G. TRIER
 
                                         DEPUTY INDUSTRIAL COMMISSIONER
 
         
 
         Copies To:
 
         
 
         Mr. Timothy J. Walker
 
         Mr. Thomas Henderson
 
         Attorneys at Law
 
         1300 First Interstate Bank Building
 
         Des Moines, Iowa 50309
 
         
 
         Mr. E. J. Giovannetti
 
         Attorney at Law
 
         Suite 111, Terrace Center
 
         2700 Grand Avenue
 
         Des Moines, Iowa 50312
 
         
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                                 1402.30, 1802, 1803
 
                                                 2206, 2209, 3001
 
                                                 Filed January 15, 1988
 
                                                 MICHAEL G. TRIER
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         SHERRY L. LUNDQUIST,
 
         
 
              Claimant,
 
                                                File  Nos.  792729
 
         VS.                                                798238
 
                                                            798239
 
         FIRESTONE TIRE AND
 
         RUBBER COMPANY,
 
                                               A R B I T R A T I 0 N
 
              Employer,
 
         
 
         and                                      D E C I S I 0 N
 
         
 
         INSURANCE COMPANY OF
 
         NORTH AMERICA,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         1402.30, 1802, 1803, 2206, 2209, 3001
 
         
 
              Claimant, a 49-year-old woman with a high school education, 
 
         had a preexisting spondylolisthesis which was made symptomatic 
 
         through her work.  Such was held to be a compensable injury in 
 
         the nature of an aggravation of a preexisting condition.  The 
 
         cumulative trauma rule was applied to make the last injury, from 
 
         which she never returned to work, the one for which compensation 
 
         was payable.  The rate of compensation was based upon the last 13 
 
         full weeks that she had worked, excluding two weeks of vacation 
 
         which were taken during that period.
 
         
 
              After claimant left work, there was a period of 
 
         approximately six months when she was not actively seeking 
 
         medical care and for which little explanation of her activities 
 
         was made.  Consistent with McKeever, her healing period was 
 
         interrupted for that six-month period.  After a fusion surgery, 
 
         the employer failed to take the claimant back to work and she was 
 
         awarded 40% permanent partial disability with reliance being 
 
         placed upon the vocational consultants' opinions of her 
 
         employment opportunities.
 
         
 
         
 
         
 
 
 
 
 
 
 
                                                
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            SHERRY L. LUNDQUIST,          :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :      File Nos. 792729
 
                                          :                798238
 
            FIRESTONE TIRE & RUBBER       :                798239
 
            COMPANY,                      :
 
                                          :         R E M A N D
 
                 Employer,                :
 
                                          :       D E C I S I O N
 
            and                           :
 
                                          :
 
            INSURANCE COMPANY OF NORTH    :
 
            AMERICA,                      :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
            statement of the case
 
            This is a proceeding on remand that comes as a result of the 
 
            following history.  An arbitration decision dated January 
 
            15, 1988 concluded that claimant sustained an injury that 
 
            arose out of and in the course of her employment with 
 
            Firestone Tire and Rubber Company; that claimant was 
 
            entitled to healing period and that claimant had 40 percent 
 
            industrial disability as a result of her work injuries while 
 
            employed with defendants.  Defendants appealed that decision 
 
            to the industrial commissioner, and in an appeal decision 
 
            dated March 21, 1989 the commissioner concluded that 
 
            claimant proved that her April 22, 1985 work injury was the 
 
            cause of temporary total disability but that claimant failed 
 
            to prove that her work injuries were the cause of a 
 
            permanent disability.
 
            Claimant appealed the decision to the District Court of Polk 
 
            County.  In a ruling dated November 13, 1989, the district 
 
            court held that claimant met her burden of showing that her 
 
            permanent partial disability was caused by claimant's work 
 
            injuries.  The district court ordered that the decision of 
 
            the industrial commissioner should be reversed and the 
 
            arbitration decision of the deputy industrial commissioner 
 
            should be reinstated.  Defendants appealed the decision of 
 
            the district court and both parties stipulated that the 
 
            conclusion of the district court was correct but that the 
 
            district court erred in not remanding the case to the 
 
            industrial commissioner.  The supreme court ordered that the 
 
            case be remanded back to the industrial commissioner to 
 
            determine the extent of claimant's industrial disability.
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            The record on remand consists of the transcript of the 
 
            arbitration hearing; claimant's exhibits 1 through 3; and 
 
            defendants' exhibits A through C.  Neither party filed 
 
            briefs on remand but both parties filed briefs in the prior 
 
            appeal proceeding.
 
            issue
 
            The sole issue on remand is the extent of claimant's 
 
            industrial disability.
 
            review of the evidence
 
            The arbitration decision filed January 15, 1988 which was 
 
            adopted in the prior appeal decision filed March 31, 1989 
 
            adequately and accurately reflects the pertinent evidence 
 
            and it will not be reiterated herein.
 
            applicable law
 
            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, 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 
 
            latter 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 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            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 dis
 
            ability.   See Peterson v. Truck Haven Cafe, Inc., (Appeal 
 
            Decision, February 28, 1985); Christensen v. Hagen, Inc., 
 
            (Appeal Decision, March 26, l985).
 
            analysis
 
            Claimant testified to an incident on April 22, 1985 where 
 
            she and a co-worker were attempting to move a bale of 
 
            plastic and experienced back pain.  Claimant was diagnosed 
 
            with a lumbar strain and remained off work for three days.  
 
            Claimant sought the treatment of Kent Patrick, M.D., who 
 
            recommended one additional week of rest, anti-inflammatory 
 
            medication and light duty upon her return to work.  Claimant 
 
            attempted to return to work on May 16 and 17, 1985, but was 
 
            unsuccessful.
 
            In January 1986, claimant had fusion surgery on account of 
 
            her spondylolisthesis.  Dr. Patrick testified that healing 
 
            period following fusion surgery is from six months to one 
 
            year.  Dr. Patrick testified that claimant is restricted 
 
            from jobs that require repetitive stooping, bending, 
 
            twisting, or lifting and should avoid lifting over 30 
 
            pounds.  As a result of a grade I spondylolithesis, 
 
            claimant's functional impairment is 20 percent.
 
            Claimant was born August 27, 1937 and is a high school 
 
            graduate.  Claimant's work experiences include retail sales, 
 
            dental assistant, waitress and assembly line manufacturing.  
 
            Claimant worked with a vocational counselor who testified 
 
            that claimant was motivated to find work.  Roger Marquardt, 
 
            a vocational rehabilitation counselor, testified that 
 
            claimant experienced a 37 percent through 39 percent 
 
            reduction of wages as a result of her work injury.  
 
            (Arbitration Decision, pages 126-127)
 
            Claimant contacted defendant employer for a position within 
 
            her work restrictions.  James Allpress, a safety director 
 
            and in charge of workers' compensation for defendants, 
 
            testified that defendant employer did not have a position 
 
            available for claimant within her work restrictions.  
 
            However, claimant is still considered on lay off status and 
 
            could be called up if a position became available.
 
            As a result of the above analysis, claimant is adjudged to 
 
            be 40 percent disabled for industrial purposes on account of 
 
            her work injuries to her back.
 
            findings of fact
 
            1.  Claimant sustained an injury in the nature of an 
 
            aggravation of a preexisting condition on April 22, 1985, 
 
            which injury occurred while she was pushing a plastic bale 
 
            in the course of her employment with defendants.
 
            2.  Claimant underwent fusion surgery and was released to 
 
            return to work with restrictions, on April 13, 1986.
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            3.  Claimant is restricted from jobs that require repetitive 
 
            stooping, bending, twisting, or lifting and should avoid 
 
            lifting over 30 pounds.
 
            4.  Claimant's functional impairment rating is 20 percent on 
 
            account of the lumbar fusion surgery.
 
            5.  Claimant was born August 27, 1937 and is a high school 
 
            graduate.
 
            6.  Claimant's work experiences include retail sales, dental 
 
            assistant, waitress and assembly line worker.
 
            7.  Claimant is medically incapable of returning to work in 
 
            employment substantially similar to that in which she 
 
            engaged in at the time of the injury.
 
            8.  Claimant is motivated to seek employment within her work 
 
            restrictions.
 
            9.  Defendant employer was unable to offer claimant a 
 
            position within her medical restrictions because of the 
 
            seniority system at the plant but maintained claimant on lay 
 
            off status in the event that a position became available.
 
            10. Claimant had a multitude of injuries to her back, 
 
            shoulders and arms prior to her April 22, 1985 work injury. 
 
            11. Claimant sustained a 40 percent loss of earning capacity 
 
            as a result of the injuries she sustained.
 
            conclusion of law
 
            Claimant has a 40 percent permanent partial disability for 
 
            industrial purposes on account of her work injury and is 
 
            entitled to 200 weeks of compensation.
 
            order
 
            THEREFORE, it is ordered:
 
            That defendants shall pay claimant two hundred (200) weeks 
 
            of compensation for permanent partial disability at the rate 
 
            of three hundred twenty and 59/100 dollars ($320.59) per 
 
            week commencing August 14, 1986.
 
            That defendants shall pay all past due weekly compensation 
 
            in a lump sum together with interest pursuant to Iowa Code 
 
            section 85.30 from the date each payment came due until the 
 
            date of actual payment.
 
            That defendants shall pay the cost of this proceeding 
 
            including the cost of transcription of the arbitration 
 
            hearing pursuant to Division of Industrial Services Rule 
 
            343-4.33.
 
            That defendants file claim activity reports pursuant to 
 
            Division of Industrial Services Rule 343-3.1(2).
 
            Signed and filed this ____ day of August, 1990.
 
            
 
            
 
            
 
            
 
                      ________________________________
 
                               CLAIR R. CRAMER
 
                       ACTING INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr. Timothy J. Walker
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            Mr. Thomas Henderson
 
            Attorneys at Law
 
            1300 First Interstate Bank Bldg.
 
            Des Moines, Iowa 50309
 
            
 
            Mr. E. J. Giovannetti
 
            Attorney at Law
 
            Terrace Center, Ste. 111
 
            2700 Grand Avenue
 
            Des Moines, Iowa 50312
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                   BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         WILLIAM CHARLES DECKER,
 
         
 
              Claimant,                         File No. 792749
 
         
 
         vs                                  A R B I T R A T I 0 N
 
         
 
         DUBOIS CONTRACTORS, INC.,              D E C I S I 0 N
 
         
 
              Employer,
 
         
 
         and
 
         
 
         CNA INSURANCE CO.,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         
 
                                   INTRODUCTION
 
         
 
              This is a proceeding brought by William Charles Decker, 
 
         claimant, against Dubois Contractors, Inc., employer, and CNA 
 
         Insurance Company, defendants.  The case came upon a petition for 
 
         arbitration for benefits as a result of alleged injuries 
 
         occurring on November 9, 1984.  The case was heard before the 
 
         undersigned on August 16, 1988.
 
         
 
              The record consists of the testimony of claimant, joint 
 
         exhibits A and B and defendants' exhibit 1.
 
         
 
                                      ISSUES
 
         
 
              The issues presented by the parties are as follows:
 
         
 
              1.  Whether claimant is entitled to permanent partial 
 
         disability benefits; and,
 
         
 
              2.  Whether claimant is entitled to the payment of medical 
 
         expenses under section 85.27 of the Iowa Code, as amended.
 
         
 
                                 FACTS PRESENTED
 
         
 
              The parties stipulated claimant sustained an injury on 
 
         Friday, November 9, 1984, which arose out of and in the course of 
 
         his employment with employer.  The parties also stipulated the 
 
         injury was the cause of a temporary disability for which claimant 
 
         was paid full benefits.  According to the claimant, he was 
 
         cleaning at Hartley Packing Plant.  Claimant was attempting to 
 
         lift an "inedible tub of bone marrow."  The tub weighed 
 
         approximately 55 pounds.  Claimant turned improperly and could 
 
         not straighten his back.
 
         
 
              On the following Monday, claimant was hospitalized at the 
 
         Spencer Municipal Hospital where he was seen by J. R. Peterson, 
 

 
         
 
         
 
         
 
         DECKER V. DUBOIS CONTRACTORS, INC.
 
         PAGE   2
 
         
 
         D.O.  Later, claimant was treated by Dr. William Follows, P.C., 
 
         an orthopedic surgeon.  Dr. Follows referred claimant to the 
 
         Institute for Low Back Care.  Claimant was then treated at the 
 
         Back Rehabilitation Clinics of America where claimant was 
 
         treated by Brian W. Nelson, M.D.
 
         
 
              Claimant returned to work on or about January 18, 1985 and 
 
         worked for several weeks.  According to claimant's deposition, 
 
         the following events transpired:
 
         
 
              Q.  Why did you leave that employment then?
 
         
 
              A.  I was laid off.
 
         
 
              Q.  For what reason?
 
         
 
              A.  I had hurt -- I had burnt my-- the back of my 
 
              hand,with QM-1, and I had tooken a day off for -because 
 
              I couldn't move my hand at all and so I had tooken a 
 
              day off for that and Tom had laid me off because he 
 
              couldn't do the work by himself.  He had to get 
 
              somebody else to do those outer areas.
 
         
 
                 ...
 
         
 
              Q.  My next question is what is QM-1?
 
         
 
              A.  It's some kind of chemical to burn fat and stuff 
 
              off hooks.
 
         
 
              Q.  All right.  Then you took a couple days off because 
 
              of that hand problem.
 
         
 
              A.  Yes, took one day off.
 
         
 
              Q.  And then what happened?
 
         
 
              A.  And he had laid me off because he couldn't do the 
 
              job by himself.  Thats what he had said.
 
         
 
              Q.  All right.  Have you tried to get back on with 
 
              them?
 
         
 
              A.  Yes.
 
         
 
              Q.  Have you gotten back on with them at any time?
 
         
 
              A.  No.
 
              Q.  When did you next try?
 
         
 
              A.  Probably about a couple months after he laid me 
 
              off, a month after he laid me off.
 
         (Defendants' Exhibit 1, page 27, lines 23-25 and page 28, lines 
 
         1-6 and 9-23)
 
         
 
              At the time of his layoff, claimant was earning $5.00 per 
 

 
         
 
         
 
         
 
         DECKER V. DUBOIS CONTRACTORS, INC.
 
         PAGE   3
 
         
 
         hour for a 40 hour work week.  Claimant testified that between 
 
         the years of 1981 to 1988, he never earned more than $9,500 per 
 
         year in gross wages.
 
         
 
                                  APPLICABLE LAW
 
         
 
              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).
 
         
 
              Claimant has the burden of  proving  by  a  preponderance of 
 
         the evidence that he received an injury on November 9, 1984, 
 
         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).
 
         
 
              Claimant also has the burden of proving by a preponderance 
 
         of the evidence that the injury of November 9, 1984, is causally 
 
         related to the disability on which he now bases his claim.  
 
         Bodish v. Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867 (1965).  
 
         Lindahl v. L.O. Boggs, 236 Iowa 296, 18 N.W.2d 607 (1945).  A 
 
         possibility is insufficient; a probability is necessary.  Burt v. 
 
         John Deere Waterloo Tractor Works, 247 Iowa 691, 73 N.W.2d 732 
 
         (1955).  The question of causal connection is essentially within 
 
         the domain of expert testimony.  Bradshaw v. Iowa Methodist 
 
         Hospital, 251 Iowa 375, 101 N.W.2d 167 (1960).
 
         
 
              When a worker sustains an injury, later sustains another 
 
         injury, and subsequently seeks to reopen an award predicated on 
 
         the first injury, he or she must prove one of two things: (a) 
 
         that the disability for which he or she seeks additional 
 
         compensation was proximately caused by the first injury, or (b) 
 
         that the second injury (and ensuing disability) was proximately 
 
         caused by the first injury.  DeShaw v. Energy Manufacturing 
 
         Company, 192 N.W.2d 777, 780 (Iowa 1971).
 
         
 
              If a claimant contends he has industrial disability he has 
 
         the burden of proving his injury results in an ailment extending 
 
         beyond the scheduled loss.  Kellogg v. Shute and Lewis Coal Co., 
 
         256 Iowa 1257, 130 N.W.2d 667 (1964).
 
         
 
              As a claimant has an impairment to the body as a whole, an 
 
         industrial disability has been sustained.  Industrial disability 
 
         was defined in Diederich v. Tri-City  Railway Co., 219  Iowa 587, 
 
         593, 258 N.W. 899, 902 (1935) as follows:  "It is therefore plain 
 
         that the legislature intended the term 'disability' to mean 
 
         'industrial disability' or loss of earning capacity and not a 
 
         mere 'functional disability' to be computed in the terms of 
 
         percentages of the total physical and mental ability of a normal 
 
         man."
 
         
 
              The opinion of the supreme court in Olson v. Goodyear 
 
         Service Stores, 255 Iowa 1112,     125 N.W.2d 251 (1963) at 1121, 
 
         cited with approval a decision of the industrial commissioner for 
 
         the following proposition:
 
         
 
              Disability * * * as defined by the Compensation Act 
 
              means industrial disability, although functional 
 
              disability is an element to be considered . . . In 
 
              determining industrial disability, consideration may be 
 

 
         
 
         
 
         
 
         DECKER V. DUBOIS CONTRACTORS, INC.
 
         PAGE   4
 
         
 
              given to the injured employee's age, education, 
 
              qualifications, experience and his inability, because 
 
              of the injury, to engage in employment for which he is 
 
              fitted.
 
         
 
              Functional 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, 
 
         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. Hagen, Inc., (Appeal Decision, 
 
         March 26, 1985).
 
         
 
              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 
 

 
         
 
         
 
         
 
         DECKER V. DUBOIS CONTRACTORS, INC.
 
         PAGE   5
 
         
 
         injured employee's age, education, qualifications, experience and 
 
         inability to engage in employment for which he is fitted.  Olson, 
 
         255 Iowa 1112, 1121 125 N.W.2d 251, 257 (1963).
 
         
 
              For example, a defendant employer's refusal to give any sort 
 
         of work to a claimant after he suffers his affliction may justify 
 
         an award of disability.  McSpadden v. Big Ben Coal Co., 288 
 
         N.W.2d 181 (Iowa 1980).
 
         
 
              Similarly, a claimant's inability  to  find  other  suitable 
 
         work after making bona fide efforts to find such work may 
 
         indicate that relief would be granted.  McSpadden, 288 N.W.2d 181 
 
         (Iowa 1980).
 
         
 
                                     ANALYSIS
 
         
 
              Claimant has met his burden in proving that he is entitled 
 
         to permanent partial disability benefits.
 
         
 
              As of January 28, 1986, Dr. Follows, in his progress notes, 
 
         writes:
 
         
 
              Impression:  coccydynia and discogenic low back pain.  
 
              I would give his permanent disability on the basis of 
 
              his back to be five percent total body function.
 
         
 
              As of July 21, 1988, Dr. Follows states in his letter to Mr. 
 
         Mike Bovee, claimant's attorney:
 
         
 
              I would say that the patient has a 5% permanent 
 
              functional disability due to his back as a result of 
 
              this injury.  I would restrict Mr. Decker in the future 
 
              from heavy lifting, that is lifting objects over 40 
 
              pounds.
 
              Claimant testified he is now taking Extra Strength Tylenol 
 
         and motrin on a daily basis.  Usually he takes the medication to 
 
         ease his back pain.  Claimant, in his deposition, also stated he 
 
         is having difficulties riding in a car for a long period of time, 
 
         lifting, stooping and bending.
 
         
 
              Claimant alleges he has an industrial disability which 
 
         exceeds the five percent functional impairment rating provided by 
 
         Dr. Follows.  In support of his position, claimant cites the fact 
 
         that he was terminated several weeks after his return to work.  
 
         The record is clear; claimant was not terminated because of any 
 
         injury to his back.  Claimant returned to work subsequent to his 
 
         back injury.  He worked for several weeks where he was able to 
 
         perform duties which required lifting, bending or twisting.  
 
         Claimant was terminated because his unrelated hand injury 
 
         rendered him incapable of performing his duties.
 
         
 
              In the instant case, the back injury and the hand injury 
 
         were two separate injuries.  One injury did not cause the other. 
 
         only the back injury is before the undersigned.  Since the 
 
         termination was unrelated to the back injury, the McSpadden rule 
 
         is inapplicable.  Claimant's termination cannot be considered a 
 
         factor in determining whether claimant has an industrial 
 
         disability related to his back injury.
 
         
 
              Since the date of his termination, claimant has only been 
 

 
         
 
         
 
         
 
         DECKER V. DUBOIS CONTRACTORS, INC.
 
         PAGE   6
 
         
 
         employed sporadically.  The record indicates claimant was 
 
         employed for two weeks during the fall of 1985.  He returned 
 
         there for three or four months during the spring of 1986.  Also 
 
         claimant testified he worked as a finish work carpenter for 
 
         Gordon Quell Construction.
 
         
 
              Claimant indicated he has applied for a number of jobs since 
 
         the time of his layoff.  He testified he has applied at Aalf's 
 
         Manufacturing and the Janitor Closet.  However, claimant at his 
 
         deposition, revealed he was probably refused employment because 
 
         the two companies did not need help at the time.  At the hearing, 
 
         claimant stated he has been refused employment because of his 
 
         back at VERCO, Eaton's, Morton Buildings, Spenser Construction 
 
         and for other unnamed jobs.
 
         
 
              In April of 1988, claimant secured full time employment at 
 
         Ruthum Lumber Yard.  At the time of the hearing, claimant was 
 
         earning $5.50 per hour.  Claimant's job duties at the lumber yard 
 
         include driving a forklift, carpentry work, trim work, taping, 
 
         paneling and tiling.  His present employer is aware of claimant's 
 
         lifting restrictions.  Claimant testified he believes these 
 
         lifting restrictions, will impede his promotional possibilities.  
 
         Likewise he stated he will have a difficult time securing a 
 
         higher job at the lumber yard since he is unable to read and 
 
         write well.
 
         
 
              Claimant has met his burden of proving he has an industrial 
 
         disability.  He has a functional impairment of five percent of 
 
         the body as a whole.  In addition to functional impairment, 
 
         claimant has shown that he was refused re-employment by 
 
         defendant.  Claimant, by his own admission, reports he was a 
 
         student in special education during his school years and that he 
 
         is unable to read and write at a level which will enable him to 
 
         secure future employment outside of the manual labor market.  
 
         Claimant is not an excellent candidate for retraining.  Claimant 
 
         established he has a loss of 10 percent of his earning capacity 
 
         because of his back injury.
 
         
 
              With respect to the issue of medical benefits under section 
 
         85.27, the claimant has established that defendants are 
 
         responsible for the payment of certain medical expenditures.
 
         
 
              Iowa code section 85.27 provides that the claimant is 
 
         entitled to reasonable medical expenses for a work related 
 
         injury.  The employer and its insurance carrier have the right to 
 
         choose a treating physician, but does not give them the right to 
 
         invade the province of medical professionals in determining what 
 
         diagnostic tests and/or methods of treatment are to be utilized.  
 
         Pote v. Mickow Corp., File No. 694639 (Review-reopening Decision, 
 
         Filed June 17, 1986); Martin v. Armour Dial, Inc., File No. 
 
         754732 (Arbitration Decision, filed July 31, 1985.
 
         
 
              The defendants acquiesced to the treatment by Dr. Peterson, 
 
         the attending physician who referred claimant to Dr. Follows, the 
 
         primary physician and orthopedic specialist.  A portion of each 
 
         of their bills has been paid.  Dr. Follows, in turn recommended 
 
         claimant to the Institute for Low Back Care.  Defendants cannot 
 
         now deny responsibility for the type of treatment which was 
 
         sought by Dr. Follows.
 
         
 

 
         
 
         
 
         
 
         DECKER V. DUBOIS CONTRACTORS, INC.
 
         PAGE   7
 
         
 
              While there is no evidence to indicate claimant was referred 
 
         to Brian Nelson, M.D., and the Back Rehabilitation Clinics of 
 
         America, there is evidence to indicate Dr. Charles D. Ray, M.D., 
 
         Associate Medical Director at the Institute for Low Back Care, 
 
         believed claimant could benefit from local physical therapy.  
 
         Such local physical therapy treatments were done at the Back 
 
         Rehabilitation Clinics in Spirit Lake, Iowa.  However, even if 
 
         the care provided by Dr. Nelson and at the Back Rehabilitation 
 
         Clinics, was unauthorized by either Dr. Ray or by defendants, 
 
         defendants are still responsible for the charges since claimant 
 
         benefited from the medical care.
 
         
 
              Unauthorized treatment which improves an employee's 
 
         condition and which ultimately may mitigate the employer's 
 
         liability may subsequently be found reasonable and necessary for 
 
         treatment of an injury.  Butcher v. Valley Sheet Metal, 4 Iowa 
 
         Industrial Commissioner Reports 49 (Appeal Decision 1983); 
 
         Rittgers v. United Parcel Serv., 3 Iowa Industrial Commissioner 
 
         Reports 210 (Appeal Decision 1982).  Hutchinson v. American 
 
         Freight Systems, Inc., I-1 Iowa Industrial Commissioner Decision 
 
         94 (Appeal Decision 1984).  The evidence, in the instant 
 
         proceeding, is uncontroverted that claimant's condition improved 
 
         subsequent to the therapy he received at the Back Rehabilitation 
 
         Clinics of America.  In summary, defendants are responsible for 
 
         payment of certain expenses and mileage costs.
 
         
 
                     FINDINGS OF FACT AND CONCLUSIONS OF LAW
 
         
 
              WHEREFORE, based on the evidence presented and the 
 
         principles of law previously stated, the following findings of 
 
         fact and conclusions of law are made:
 
         
 
              FINDING 1.  On November 9, 1984, claimant received an injury 
 
         while working for defendants.
 
         
 
              FINDING 2.  As a result of the injury, claimant now has a 
 
         permanent functional impairment of five percent (5%) of the body 
 
         as a whole.
 
         
 
              CONCLUSION A.  Claimant has met his burden of proving his 
 
         present back injury is casually connected to his injury on 
 
         November 9, 1984.
 
         
 
              FINDING 3.  Claimant's rate of weekly compensation for his 
 
         November 9, 1984 injury is $133.00 per week.
 
         
 
              CONCLUSION B.  As a result of his injuries on November 9, 
 
         1984, claimant has an industrial disability of ten percent 
 
         (10%).
 
         
 
              FINDING 4.  Claimant has incurred medical expenses and 
 
         mileage as a result of the November 9, 1984 injury.
 
         
 
              CONCLUSION C.  Claimant is entitled to have the following 
 
         paid by defendants:
 
         
 
              Dr. William Follows                           $70.00
 
              J. R. Peterson, D.O.                           17.00
 
              Prescription Medications                       63.00
 
              Medical Arts X-Ray Service                     81.00
 

 
         
 
         
 
         
 
         DECKER V. DUBOIS CONTRACTORS, INC.
 
         PAGE   8
 
         
 
              Medical Scanning Consultants                  100.00
 
              Abbott Northwestern Hospital                  702.20
 
              Iowa Lakes Orthopedics, P.C.                  942.00
 
              Back Rehabilitation Clinics of America      3,170.00
 
                       Totals                            $5,145.20
 
         
 
         (Plus)
 
         Motels = $40.00; Meals = $25.00; and          $    151.40
 
         Mileage for Trip to Minneapolis = $86.40
 
         
 
         (Plus)
 
         Mileage for trips to and from Back Rehabilitation
 
         Clinic - 25 trips @ 40 miles per trip              225.00
 
         
 
         BALANCE OWING                                   $5,521.60
 
                                      ORDER
 
         
 
              THEREFORE, defendants are to pay the medical expenses as 
 
         listed above in the sum of five thousand one hundred forty-five 
 
         and 20/100 dollars ($5,145.20).  Defendants are also to pay unto 
 
         claimant mileage and motel expenses in the amount of three 
 
         hundred seventy-six and 40/100 dollars ($376.40).
 
         
 
              Defendants are to pay unto claimant fifty (50) weeks of 
 
         permanent partial disability benefits at a rate of one hundred 
 
         thirty-three and no/100 dollars ($133.00) per week.
 
         
 
              Accrued benefits are to be made in a lump sum.together with 
 
         statutory interest at the rate of ten percent (10%) per year 
 
         pursuant to section 85.30, Iowa Code, as amended.
 

 
         
 
         
 
         
 
         DECKER V. DUBOIS CONTRACTORS, INC.
 
         PAGE   9
 
         
 
         
 
              Costs are taxed to defendants pursuant to Division of 
 
         Industrial Services Rule 343-4.33 which shall include:
 
         
 
              May 6, 1985     Dr. J. R. Peterson   Med. Rpt. $15.00
 
              May 6, 1985     Spencer Hospital     Med. Rpt.  16.00
 
              Feb. 10, 1986   Dr. Follows          Med. Rpt.  35.00
 
                                                             $66.00
 
         
 
              Defendants shall file a final report upon payment of this 
 
         award.
 
         
 
         
 
              Signed and filed this 18th day of October, 1988.
 
         
 
         
 
         
 
         
 
                                           MICHELLE A. McGOVERN
 
                                           DEPUTY INDUSTRIAL COMMISSIONER
 
         
 
         Copies To:
 
         
 
         Mr. Michael R. Bovee
 
         Attorney at Law
 
         Professional Bldg.
 
         P. 0. Box 7038
 
         Spencer, Iowa 51301
 
         
 
         Mr. William J. Rawlings
 
         Attorney at Law
 
         300 Toy National Bank Bldg.
 
         Sioux City, Iowa 51101
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                                   1402.60: 1803
 
                                                   Filed October 18, 1988
 
                                                   MICHELLE A. McGOVERN
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         WILLIAM CHARLES DECKER,
 
         
 
              Claimant,                            File No. 792749
 
         
 
         vs.                                   A R B I T R A T I 0 N
 
         
 
         DUBOIS CONTRACTORS, INC.,                D E C I S I 0 N
 
         
 
              Employer,
 
         
 
         and
 
         
 
         CNA INSURANCE CO.,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         
 
         1402.60
 
         
 
              As a result of the November 9, 1984 injury, claimant is 
 
         entitled to the reimbursement of reasonable medical expenses 
 
         which he has incurred.
 
         
 
         1803
 
         
 
              Claimant awarded 10 percent industrial disability subsequent 
 
         to injury resulting in functional impairment of the body as a 
 
         whole.
 
 
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         JOAN SANDVEN,
 
         
 
              Claimant,
 
         
 
         vs.
 
                                                   File No. 793104
 
         HEINZ, USA,
 
                                                     A P P E A L
 
              Employer,
 
                                                   D E C I S I 0 N
 
         
 
         and
 
         
 
         LIBERTY MUTUAL INSURANCE COMPANY,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         
 
                              STATEMENT OF THE CASE
 
         
 
              Defendants appeal from an arbitration decision awarding 
 
         benefits based on 15% permanent partial impairment of the right 
 
         leg and awarding medical benefits.
 
         
 
              The record on appeal consists of the transcript of the 
 
         arbitration hearing and joint exhibits 1 through 26.  Both 
 
         parties filed briefs on appeal.
 
         
 
                                      ISSUES
 
         
 
         Defendants state the following issues on appeal:
 
         
 
                                        I
 
         
 
                 That the Deputy Industrial Commissioner erred in 
 
              failing to apportion Claimant's permanent impairment 
 
              between her work injury and a degenerative condition 
 
              existing prior to the work incident.
 
         
 
                                       II
 
         
 
                 That the Deputy Industrial Commissioner erred in 
 
              failing to find that Claimant's treatment with Dr. 
 
              Naden and all charges arising therefrom constitute 
 
              unauthorized medical treatment and should not be 
 
              reimbursed.
 
         
 
                           REVIEW OF THE EVIDENCE
 
         
 
              The arbitration decision adequately and accurately reflects 
 
         the pertinent evidence and it will not be totally reiterated 
 
         herein.
 
         
 
              Claimant stated that while she was mopping steps for 
 
         defendant employer on May 31, 1984 she twisted her right knee.  
 

 
         
 
         
 
         
 
         SANDVEN V. HEINZ, USA
 
         Page   2
 
         
 
         Claimant indicated that she reported this injury to the company 
 
         nurse and that the nurse gave her aspirin.  Claimant opined that 
 
         she recovered from this injury without further treatment.  
 
         Claimant stated she once again injured her right knee on 
 
         September 11, 1984 while mopping.  Claimant described the 
 
         incident by saying that her right knee, "popped just like a 
 
         gunshot, and it hurt me so bad I stooped and grabbed my knee and 
 
         stood there for a few minutes.  I even got almost nauseous 
 
         because it hurt so bad." (Transcript, page 12, lines 11-15) 
 
         Claimant stated that she also reported this injury to the company 
 
         nurse and was given aspirin and ice packs for her knee.  Claimant 
 
         testified that after waiting a week to see if the swelling would 
 
         subside, she was referred by the nurse to William Catalona, M.D.  
 
         Claimant stated that Dr. Catalona recommended surgery.
 
         
 
              Joint exhibit 8 is a copy of Dr. CatalonaOs surgical report 
 
         which indicates that an "falrthroscopy and arthroscopic shaving, 
 
         medial femoral condyle and medial meniscus" was performed on 
 
         claimant on October 8, 1984.  Dr. Catalona's post-operative 
 
         diagnosis was O[d]egenerated and torn medial meniscus, right knee 
 
         ... plus chondromalacia of medial femoral condyle."
 
         
 
              Claimant stated that after this surgery, her right knee did 
 
         not improve and that it continued to hurt.  Claimant testified 
 
         that she did not undergo any physical therapy after the 
 
         arthroscopic surgery.
 
         
 
              Dr. CatalonaOs notes concerning his treatment of claimant 
 
         following the arthroscopic surgery state:
 
         
 
              10/12/84 Having no pain.  Walking w/crutches.  Has no 
 
              swell. of knee.  Rx: encour. in motion but contin. 
 
              protective wt. bear.  N/C(c) 10/17/84 Sat. prog.  
 
              N/C(c) Missed appt 10-30-84 11/l/84 Imprv.  Would be 
 
              able to ret. to work 11/12/84.  Rx: encour. to increase 
 
              activ.  N/C(c) 11/15/84 Ret. to rept. reported for work 
 
              11/12/84. as laid off.  Intends to start litigation for 
 
              "compensation".  C/0 rt. knee still hurts & swells.  
 
              Exam: has 1+ effus.  Motion from 0 to 130 deg. where 
 
              hurts.  Rx: told she can expect chronic discomfort this 
 
              knee because of DJD.  Encour. to contin. use & SLR 
 
              exerc. will follow.  OC: N/C(c) 11/29/84 Status quo.  
 
              Still on lay off.  Willing to ret. to sedentary work.  
 
              Slip given.  OC: N/C(c) 12/17/84 Comes to tell me that 
 
              since last visit she consult.  Dr. Naden who told her 
 
              she had a fx. in her rt. knee & that he had operated 
 
              her knee to correct the deform.  She appears very 
 
              distraught & feels I sent her back to work too early.  
 
              Requests I admit that I sent her back to work too early 
 
              so that she can collect compensation benefits.  N/C(c)
 
         
 
         (Joint exhibit 12, p. 1)
 
         
 
              Claimant testified concerning her conversations with Carol 
 
         Shepard, formerly the supervisor of the health services 
 
         department, to obtain alternate medical care:
 
         
 
              Q.  After you went back to work at Heinz, did you have 
 
              any conversations with Carol Shepard?
 
         
 

 
         
 
         
 
         
 
         SANDVEN V. HEINZ, USA
 
         Page   3
 
         
 
              A.  Yes.
 
         
 
              Q.  Can you tell me who she is?
 
         
 
              A.  Yes.  She's the nurse.  She was the head nurse in 
 
              charge of--
 
         
 
              Q.  What was the situation that you happened to talk to 
 
              Carol Shepard?
 
         
 
              A.  Well, she was concerned with my limping, and she 
 
              told me that she noticed that I was still limping, and 
 
              asked if my knee was getting better, and I said no.
 
         
 
              Q.  Where did you happen to see her and have this 
 
              conversation?
 
         
 
              A.  It was in the front office, what they call the 
 
              front office.  It was right when you come in the doors 
 
              of Heinz.  And I was cleaning there and I was pushing 
 
              the vacuum cleaner, and she stopped and talked to me 
 
              there.
 
         
 
              Q.  When you had a conversation with Carol Shepard out 
 
              in the front office, can you remember what was said?
 
         
 
              A.  I can remember very well.  I remember her coming in 
 
              the door, and she had a red sweater on that day, and 
 
              she said that she was very concerned about my limping, 
 
              and that she thought that I should see a doctor.  And I 
 
              said, "I'm afraid to go back to Catalona."  And she 
 
              said, "Why?"  And I said, "Because he laughed at me the 
 
              last time I was there.  I was in pain, and I just don't 
 
              want to go back."
 
         
 
                 And I said, "I've even thought about maybe going to 
 
              a chiropractor," and she said, "Well, they can do 
 
              different things for different injuries or whatever." 
 
              And I said, "Well, what do you think?"  And she said, 
 
              "Well, I don't know.  I can't tell you what to do."  
 
              And I said, "Well, can I go to another doctor?"  And 
 
              she said, "Yes, by all means, go to a different 
 
              doctor.
 
         
 
              Q.  Did you ever tell Carol Shepard that you had gone 
 
              to a chiropractor?
 
         
 
              A.  No.  We just discussed the fact that I was 
 
              interested if they could do something for me.
 
         
 
              Q.  And she did tell you that you could go to another 
 
              doctor?
 
         
 
              A.  Yes, ma'am.
 
         
 
              Q.  Did Carol Shepard ever tell you that you needed 
 
              some kind of slip from her to go see another doctor?
 
         
 
              A.  No.  Nothing was ever mentioned.
 
         
 

 
         
 
         
 
         
 
         SANDVEN V. HEINZ, USA
 
         Page   4
 
         
 
              Q.  Did Carol Shepard ever tell you that if you went to 
 
              another doctor for treatment, that you would not be 
 
              covered by worker's [sic] compensation?
 
         
 
              A.  No.  She never told me anything.
 
         
 
              Q.  If Carol had told you that your medical treatment 
 
              wouldn't be covered by worker's [sic] compensation 
 
              without some authorization from her or some kind of a 
 
              slip from her, what would you have done?
 
         
 
              A.  I'd have probably gone back to Catalona.
 
         
 
         (Tr., pp. 17 - 19)
 
         
 
              Carol Shepard testified concerning her recollection of this 
 
         conversation:
 
         
 
              Q.  Okay. What is your recollection of that 
 
              conversation?
 
         
 
              A.  I recollect the conversation that she was not happy 
 
              with Dr. Catalona.  She had even said that she had gone 
 
              to a chiropractor, and we discussed the fact that she 
 
              could go to any doctor she chose because it was her 
 
              body, but she was also advised that it was not of a 
 
              certainty that the company would pay for that kind of 
 
              thing.
 
         
 
                 To go to another doctor with company authorization, 
 
              she would have to have a slip from me stating that she 
 
              had my permission to go to that doctor.
 
         (Shepard Deposition, p. 5, 11. 11-23).
 
         
 
         Shepard stated that employees were familiar with this policy 
 
         through the company bulletin boards and the monthly newspaper.  
 
         Shepard related that claimant was "limping quite a bit" and had 
 
         some swelling after her return to work, but Shepard opined that 
 
         swelling is reasonable after arthroscopy.  Shepard also stated 
 
         that claimant was complaining of pain and was given ice packs and 
 
         limited duties.  Shepard testified that she spoke to Ron 
 
         Albright, personnel assistant, about claimant's reluctance to 
 
         return to Dr. Catalona and that Mr. Albright said claimant would 
 
         have to stay with Dr. Catalona.
 
         
 
              Ron Albright stated that a newsletter is sent to employees 
 
         once very two months and that: "It's generated by the medical 
 
         department.  It deals with everything from changes in the 
 
         operation, deals with births, anniversaries, anything newsworthy 
 
         of our employees, rules, regulations, things such as that." (Tr., 
 
         p. 42)
 
         
 
              Claimant denied that she ever received the monthly 
 
         newsletter or saw the rule requiring a slip from Shepard to 
 
         obtain alternate care posted on the bulletin board.  Claimant's 
 
         daughter, Kathy Henderson, testified that she did not know of the 
 
         rule requiring employees to obtain a slip from Shepard before 
 
         seeing a doctor.  Henderson admitted that she does not always 
 
         read the company newsletters.
 
         
 

 
         
 
         
 
         
 
         SANDVEN V. HEINZ, USA
 
         Page   5
 
         
 
              Claimant stated she did go see another doctor, David C. 
 
         Naden, M.D., at the suggestion of a friend but after her 
 
         conversation with Shepard.  In his clinical notes for December 6, 
 
         1984 Dr. Naden states the following diagnosis and disposition 
 
         concerning claimant's knee condition:
 
         
 
              Diag:  Chip fracture involving the medial tibial 
 
              plateau, rt. tibia.  Degenerative arthritis of the 
 
              medial compartment of the rt. knee.
 
         
 
              Disp:  This woman is sort of in a dilemma but basically 
 
              she's not going to get back to work until she has 
 
              something done to correct the narrowing of the medial 
 
              jointline surface of that knee.  She needs to have a 
 
              high tibial osteotomy and put her in a valgus position 
 
              so she can get back to work.  I really think the 
 
              original diagnosis was wrong and I think the pop she 
 
              had in there and the subsequent problems are due to the 
 
              chip fracture of the osteophyte in that area.  Advised 
 
              about care and activity.  DN:ch.
 
         
 
         (Joint Exhibit 17)
 
         
 
              Dr. Naden subsequently admitted claimant to the hospital for 
 
         surgery.  The surgery was performed by Dr. Naden on December 10, 
 
         1984.  The surgical report describes the surgical procedure as a 
 
         "[c]losing valgus wedge osteotomy, upper right tibia and 
 
         casting." (Joint exhibit 14) Dr. Naden released claimant for 
 
         return to work on March 11, 1985.
 
         
 
              Claimant opined that after the December 1984 surgery by Dr. 
 
         Naden, she felt much better.  Claimant stated that she went back 
 
         to work for defendant employer after she was released by Dr. 
 
         Naden, but that she only worked for seven and one-half hours 
 
         because the job she was given required her to stand in one spot. 
 
          Claimant indicated that she has worked at other jobs since 
 
         leaving defendant employer.  Claimant described this work as 
 
         sweeping a mall and cleaning restrooms.  Claimant stated that at 
 
         this job she was allowed to sit when she got tired.  Claimant 
 
         opined that her knee is not 100%, that she cannot walk up stairs 
 
         like she used to, that she cannot go on long hiking trips, that 
 
         she cannot play with her grandchildren like she used to, and that 
 
         she cannot get down on her knees.
 
         
 
              Claimant denied on cross-examination that she was laid off 
 
         by defendant employer after she returned to work in March 1985.  
 
         Claimant stated that she did not request lighter work from 
 
         defendant employer because "there is no sit-down jobs at Heinz." 
 
         (Tr., p. 32) On redirect, claimant testified that she felt that 
 
         when Carol Shepard told her she could go to any doctor, she 
 
         understood that Ms. Shepard was giving her authorization to go to 
 
         another doctor.
 
         
 
              In a letter dated November 4, 1985 to claimant's attorney, 
 
         Dr. Naden opined:
 
         
 
                 The above-named patient does have a permanency with 
 
              her right knee.  As a result of this affliction and the 
 
              surgery she has had in the past, I would award her a 
 
              14-15% PPD rating of the right lower extremity.  This 
 

 
         
 
         
 
         
 
         SANDVEN V. HEINZ, USA
 
         Page   6
 
         
 
              woman's knee does have arthritis in it, and it's going 
 
              to become progressively worse.
 
         
 
                 Converted to the whole body this would be about a 6% 
 
              rating.
 
         
 
         (Joint Ex. 20)
 
         
 
              In reply to this request by defendants' attorney:  "Would 
 
         you be so kind as to provide me with a breakdown of your 
 
         disability rating as to how much of it is related to work vs. the 
 
         natural degenerative process and/or the pre-existing degenerative 
 
         arthritis?"  Dr. Naden opined in a January 28, 1986 letter:  OIn 
 
         arriving at her whole 14% to 15% permanency rating, I would 
 
         attribute 50% to be related to her work and 50% due to the 
 
         natural degenerative processes on her right lower extremity." 
 
         (Joint Exhibit 22).
 
              In a February 11, 1986 letter to claimant's attorney, Dr. 
 
         Naden opines:
 
         
 
              I feel that this woman had degenerative arthritis in 
 
              the medial compartment of her knee in spite of the fact 
 
              that she really did not complain of any problems in 
 
              that knee prior to May, 1984.  Now, history-wise, I 
 
              find out that this woman did provoke her right knee 
 
              with a twisting injury in May, 1984.  However, I 
 
              believe that she was treated for this on a symptomatic 
 
              basis and it did "recover."  She has another 
 
              injury--twice--in September, 1984 which did this knee 
 
              in.  She does have evidence of degenerative arthritis, 
 
              and I think a good amount of this was present prior to 
 
              this injury.  However, I think she has an excellent 
 
              history of reinjuring this knee with a twisting, 
 
              rotatory-type of motion which "left" her with a 
 
              disruption of some of the cartilage in the knee area, 
 
              and also a chip fracture of this medial tibial plateau.  
 
              At that time I felt that she had probably about a 17 
 
              1/2% physical impairment of her right knee, and I would 
 
              attribute 60% of it to a previous condition, and 40% to 
 
              her injury in September, 1984.  I think she has 
 
              improved since her closing valgus wedge osteotomy and 
 
              at the present time, I would state that she has about a 
 
              15% PPD rating of her right lower extremity as a result 
 
              of the afflictions with her knee and her post-operative 
 
              status.  I do believe that her arthritis in that knee 
 
              will progress, and I feel that she will end up needing 
 
              additional surgery on that right knee--probably a right 
 
              total knee replacement.
 
         
 
         (Joint Ex. 23)
 
         
 
              Claimant stated that she has never had difficulty with her 
 
         knee before May 1984 and that she has not injured her knee other 
 
         than on May 31, 1984 and September 11, 1984.
 
         
 
                                  APPLICABLE LAW
 
         
 
              The citations of law in the arbitration decision are 
 
         appropriate to the issues and evidence.
 
         
 

 
         
 
         
 
         
 
         SANDVEN V. HEINZ, USA
 
         Page   7
 
         
 
              Iowa Code section 85.27, unnumbered paragraph 4 (1983) 
 
         states:
 
         
 
                 For purposes of this section, the employer is 
 
              obliged to furnish reasonable services and supplies to 
 
              treat an injured employee, and has the right to choose 
 
              the care.  The treatment must be offered promptly and 
 
              be reasonably suited to treat the injury without undue 
 
              inconvenience to the employee.  If the employee has 
 
              reason to be dissatisfied with the care offered, he 
 
              should communicate the basis of such dissatisfaction to 
 
              the employer, in writing if requested, following which 
 
              the employer and the employee may agree to alternate 
 
              care reasonably suited to treat the injury.  If the 
 
              employer and employee cannot agree on such alternate 
 
              care, the commissioner may, upon application and 
 
              reasonable proofs of the necessity therefor, allow and 
 
              order other care.  In an emergency, the employee may 
 
              choose his care at the employer's expense, provided the 
 
              employer or his agent cannot be reached immediately.
 
         
 
                                 ANALYSIS
 
         
 
              Defendants argue on appeal that claimant's permanent 
 
         disability to her right lower extremity should be apportioned 
 
         between her degenerative arthritis condition and her knee 
 
         surgeries.  This argument was rejected by the deputy.  In Varied 
 
         Enterprises v. Sumner, 353 N.W.2d 407, 410-11 (Iowa 1984), the 
 
         supreme court discussed when apportionment is proper:
 
         
 

 
         
 
         
 
         
 
         SANDVEN V. HEINZ, USA
 
         Page   8
 
         
 
                 A clear and helpful discussion of the precise problem 
 
              which is presented is contained in 2 A. Larson, The Law of 
 
              Workmen's Compensation SS 59.22, at 10-365 (1981) where the 
 
              author states:
 
         
 
                      Apart from special statute, apportionable 
 
                   "disability" does not include a prior nondisabling 
 
                   defect or disease that contributes to the end 
 
                   result.  Nothing is better established in 
 
                   compensation law than the rule that, when 
 
                   industrial injury precipitates disability from a 
 
                   latent prior condition, such as heart disease, 
 
                   cancer, back weakness and the like, the entire 
 
                   disability is compensable ....
 
         
 
                      The essential distinction at stake here is 
 
                   between a pre-existing disability that 
 
                   independently produces all or part of the final 
 
                   disability, and the pre-existing conditon that in 
 
                   some way combines with or is acted upon by the 
 
                   industrial injury...
 
         
 
                      To be apportionable, then, an impairment must 
 
                   have been independently producing some degree of 
 
                   disability before the accident ....
 
         
 
         (Emphasis added.)
 
         
 
                 The principle which Larson describes limits apportionment 
 
              to those situations where a prior injury or illness, 
 
              unrelated to the employment, independently produces some 
 
              ascertainable portion of the ultimate industrial disability 
 
              which exists following the employment related aggravation.  
 
              This is consistent with the rule which we adopted in Rose, 
 
              247 Iowa at 908, 76 N.W.2d at 760-61.
 
         
 
         (Id. at 411).
 
         
 
              Contrary to the deputy's finding, claimant did have an 
 
         ascertainable disability prior to her work injury and subsequent 
 
         surgeries.  Dr. Naden and Dr. Catalona were in agreement that 
 
         claimant suffered from degenerative arthritis prior to her 
 
         injury.  Dr. Naden opined that claimant has a 15% impairment of 
 
         50% of which he attributes to the the right lower extremity; 
 
         arthritis.  The greater weight of evidence supports a finding 
 
         that claimant suffered from degenerative arthritis prior to her 
 
         injury and that the degenerative arthritis produces 50% of 
 
         claimant's current 15% impairment to the right lower extremity.  
 
         Based on these findings, it is concluded that defendants are 
 
         liable for permanent partial disability benefits based upon a 
 
         7.5% impairment of the right lower extremity.
 
         
 
              The next issue on appeal is the charges for medical 
 
         treatment claimant obtained from Dr. Naden.  The record reveals 
 
         that the company physician, Dr. Catalona, continued to treat 
 
         claimant up to the time when claimant went to Dr. Naden, but Dr. 
 
         Catalona failed to diagnose the chip fracture of claimant's right 
 
         knee.  Dr. Naden opined that claimant's problems were due to the 
 
         chip fracture and performed surgery on December 10, 1984.  After 
 
         this surgery, Dr. Naden opined that claimant's knee condition 
 

 
         
 
         
 
         
 
         SANDVEN V. HEINZ, USA
 
         Page   9
 
         
 
         improved.  See Joint Exhibit 23, page 2.  Claimant also stated 
 
         that she felt much better after surgery by Dr. Naden.
 
         
 
              In Rittgers v. United Parcel Service, II Iowa Industrial 
 
         Commissioner Report 210, 213 (Appeal Decision 1982), the 
 
         industrial commissioner stated:
 
         
 
                 It is remembered that the treatment provided by Dr. 
 
              Johnson was previously found to be unauthorized.  As of 
 
              that time, there was no evidence to suggest that Dr. 
 
              Johnson had performed services more effectively than 
 
              the medical care that had been provided by the 
 
              defendants.  However, the evidence now in the record 
 
              reveals that claimantOs condition continues to improve 
 
              because of the surgery performed by Dr. Johnson.  Such 
 
              an improvement in claimant's condition not only helps 
 
              the claimant, but also provides the possibility that 
 
              defendants' ultimate liability may be mitigated.  
 
              Although defendants are entitled to choose the 
 
              claimant's medical care provider, it appears 
 
              questionable that the claimant's condition would have 
 
              improved as it did had defendants continued control of 
 
              claimant's care.  Defendants had ceased providing care 
 
              for the claimant subsequent to the first proceeding.  
 
              Examination by doctors of defendants' choice currently 
 
              concurs with the care provided by Dr. Johnson.  The 
 
              care provided to claimant by Dr. Johnson proved to be 
 
              reasonable and necessary for the treatment of 
 
              claimant's employment related injuries as contemplated 
 
              by Iowa Code section 85.27.  The expenses involved in 
 
              the services of Dr. Johnson and the surgery of March 3, 
 
              1981 should properly be paid for by the defendants.
 
         
 
         See also Butcher v. Valley Sheet Metal, IV Industrial 
 
         Commissioner Report 49 (Appeal Decision 1983).  Hutchinson v. 
 
         American Freight Sys. Inc., I-1 State of Iowa Industrial 
 
         Commissioner Decisions 94 (Appeal Decision 1984).
 
         
 
              Authorized or not, defendants cannot deny that the 
 
         improvement in claimant's condition, benefits them by reducing 
 
         claimant's impairment and healing period.  Therefore claimant is 
 
         entitled to payment of charges for medical treatment obtained 
 
         from Dr. Naden, Muscatine General Hospital and Dr. Patel.
 
         
 
         
 
                                 FINDINGS OF FACT
 
         
 
              1.  Claimant sustained a chip fracture to her right knee on 
 
         May 31, 1984 and on September 11, 1984 while mopping and sweeping 
 
         steps for defendant employer.
 
         
 
              2.  As a result of the injury on September 11, 1984, 
 
         claimant underwent surgery on October 8, 1984 and December 10, 
 
         1984.
 
         
 
              3.  Claimant has degenerative arthritis in her right knee 
 
         which existed prior to her work injuries.
 
         
 
              4.  As a result of the degenerative arthritis, work injuries 
 
         and knee surgeries, claimant suffers a 15% permanent impairment 
 

 
         
 
         
 
         
 
         SANDVEN V. HEINZ, USA
 
         Page  10
 
         
 
         to the right lower extremity.
 
         
 
              5.  Fifty percent of claimant's 15% permanent impairment to 
 
         her right lower extremity is the result of her degenerative 
 
         arthritis.
 
         
 
              6.  Claimant's knee condition improved after the surgery by 
 
         Dr. Naden on December 10, 1984.
 
         
 
              7.  Claimant's rate of compensation is $227.14 per week.
 
         
 
              8.  Claimant's healing period ended on March 11, 1985.
 
         
 
                                CONCLUSIONS OF LAW
 
         
 
              Claimant sustained an injury to her right knee on September 
 
         11, 1984 arising out of and in the course of employment.
 
         
 
              Claimant has established a causal connection between her 
 
         work injury and a 7.5% permanent disability to her right lower 
 
         extremity.
 
         
 
              Claimant is entitled to the payment of the medical bills of 
 
         Dr. Naden, Dr. Patel and Muscatine General Hospital.
 
         
 
              WHEREFORE, the decision of the deputy is affirmed and 
 
         modified.
 
         
 
                                      ORDER
 
         
 
              THEREFORE, it is ordered:
 
         
 
              That defendants pay claimant healing period benefits from 
 
         October 8, 1984 through March 11, 1985 at the rate of two hundred 
 
         twenty-seven and 14/100 dollars ($227.14) per week.
 
         
 
              That defendants pay claimant sixteen point five (16.5) weeks 
 
         of permanent partial disability benefits at the rate of two 
 
         hundred twenty-seven and 14/100 dollars ($227.14) per week 
 
         commencing March 12, 1985.
 
         
 
              That defendants pay the charges for medical treatment 
 
         obtained from Dr. Naden, Muscatine General Hospital and Dr. Patel 
 
         as set out in Joint Exhibits 2, 25, and 26 ($4,652.45).
 
         
 
              That defendants pay accrued amounts in a lump sum together 
 
         with interest pursuant to Iowa Code section 85.30.
 
         
 
              That defendants be given credit for benefits already paid.
 
         
 
              That defendants pay all costs including the cost of the 
 
         transcription of the hearing proceeding.
 
         
 
              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 22nd day of February, 1988.
 
         
 
         
 

 
         
 
         
 
         
 
         SANDVEN V. HEINZ, USA
 
         Page  11
 
         
 
         
 
         
 
                                                  DAVID E. LINQUIST
 
                                                  INDUSTRIAL COMMISSIONER
 
         
 
         Copies To:
 
         
 
         Ms. Linda L. Allison
 
         Attorney at Law
 
         115 East Second Street
 
         P.O. Box 496
 
         Muscatine, Iowa 52761
 
         
 
         Mr. Greg A. Egbers
 
         Attorney at Law
 
         600 Union Arcade Building
 
         111 East Third Street
 
         Davenport, Iowa 52801-1550
 
         
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                                1806 - 2500 - 2501
 
                                                Filed February 22, 1988
 
                                                DAVID E. LINQUIST
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         JOAN SANDVEN,
 
         
 
              Claimant,
 
         
 
         vs.
 
                                                      File No.  793104
 
         HEINZ, USA,
 
                                                        A P P E A L
 
              Employer,
 
                                                       D E C I S I 0 N
 
         and
 
         
 
         LIBERTY MUTUAL INSURANCE COMPANY,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         
 
         1806
 
         
 
              Claimant found to have had an ascertainable disability prior 
 
         to her work injury and subsequent surgeries.  Physicians involved 
 
         were in agreement that claimant suffered from degenerative 
 
         arthritis prior to her injury.  Held 50 percent of claimant's 
 
         present disability was attributable to preexisting degenerative 
 
         arthritis.
 
         
 
         2500 - 2501
 
         
 
              Claimant entitled to payment of medical expenses where 
 
         treatment obtained improved claimant's condition thereby reducing  
 
         claimant's impairment and healing period.  See Rittgers v. 
 
         United Parcel Service, II Iowa Industrial Commissioner Report 
 
         210, 213 (Appeal Decision 1982).