BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         SHIRLEY HEATON,
 
         
 
              Claimant,                           File No. 794672
 
         
 
         vs.                                        A P P E A L
 
         
 
         SWIFT INDEPENDENT PACKING                D E C I S I O N
 
         COMPANY,
 
         
 
              Employer,                              F I L E D
 
         
 
         and                                        JAN 31 1989
 
         
 
         NATIONAL UNION FIRE INSURANCE     IOWA INDUSTRIAL COMMISSIONER
 
         COMPANY,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
                              STATEMENT OF THE CASE
 
         
 
              Claimant appeals from an arbitration decision granting 
 
         temporary total disability benefits.
 
         
 
              The record on appeal consists of the transcript of the 
 
         arbitration proceeding and joint exhibits A through M.  Both 
 
         parties filed briefs on appeal.
 
         
 
                                      ISSUE
 
         
 
              Claimant states the following issue on appeal:  "Did the 
 
         deputy industrial commissioner err in determining that claimant's 
 
         injuries of April 4, 1985, were temporary in nature and did not 
 
         justify an award of industrial disability benefits."
 
         
 
                              REVIEW OF THE EVIDENCE
 
         
 
              The arbitration decision adequately and accurately reflects 
 
         the pertinent evidence and it will not be set forth herein.
 
         
 
                                  APPLICABLE LAW
 
         
 
              Tho citations of law in the arbitration decision are 
 
         appropriate to the issues and the evidence.
 
         
 
                                     ANALYSIS
 
         
 
              The analysis of the evidence in conjunction with the law is 
 
         adopted.  Peter D. Wirtz, M.D., opined that claimant has a 
 
         degenerative disc disease.  Dr. Wirtz further opined that 
 
         claimant's injury of April 4, 1985 was an aggravation of 
 
         preexisting problems, that the aggravation was temporary in 
 
         nature, and would not result in any permanent impairment.  Walter 
 
         B. Eidbo, M.D., on the other hand characterized claimant's back 
 
         condition as permanent even though he conceded that he could not 
 
         say that claimant's back condition was totally related to the 
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         injury of April 4, 1985, because of the fact that claimant's back 
 
         condition could possibly have been there prior to the injury at 
 
         work.  The testimony of Dr. Wirtz will be given greater weight. 
 
         The claimant has failed to meet her burden to show that her 
 
         permanent disability is related to her injury of April 4, 1985. 
 

 
         
 
 
 
 
 
 
 
 
 
 
 
              
 
                                 FINDINGS OF FACT
 
              
 
              1.  Claimant experienced the onset of low back pain on April 
 
         4, 1985 while working the reject line using a hook to remove 
 
         chuck from combo on a chest-high conveyor line while in a bent 
 
         over position.
 
         
 
              2.  Claimant was unable to give a specific time or reason 
 
         for her complaints of severe pain as of that date.
 
              
 
              3.  Claimant received hot pack treatments at the nurse's 
 
         station following her pain complaints, but did not seek physician 
 
         treatment until May 1, 1985.
 
              
 
              4.  Claimant was off work from May 1, 1985 until May 6, 
 
         1985.
 
              
 
              5.  Claimant received physical therapy and was returned to 
 
         work on May 6, 1985 with restrictions on bending, twisting, and 
 
         lifting.
 
         
 
              6.  Claimant fell at work on June 18, 1985.
 
              
 
              7.  The June 18, 1985 work incident was a new injury, severe 
 
         enough to warrant extensive medical care.
 
              
 
              8.  Claimant had degenerative disc disease as revealed by 
 
         narrowing of the L4-L5 interspace shown on an x-ray of May 2, 
 
         1985.
 
         
 
              9.  Claimant's degenerative disc disease predated the April 
 
         4, 1985 onset of complaints of back pain at work.
 
         
 
              10.  The incident of April 4, 1985 was an aggravation of 
 
         claimant's preexisting back problems which aggravation was 
 
         temporary in nature and did not result in permanent impairment.
 
         
 
              11.  Claimant will continue to have temporary aggravations 
 
         of her permanent nonwork-related degenerative disc disease.
 
         
 
              12.  As of April 23, 1986, claimant's condition had not 
 
         worsened from her original April 4, 1985 injury.
 
              
 
              13.  Claimant apparently also experienced lower back pain 
 
         while performing bending and twisting activities while working at 
 
         Payless Shoes after leaving Swift's employ.
 
              
 
              14.  Claimant was off work from May 1, 1985 through May 6, 
 
         1985 on account of the April 4, 1985 temporary aggravation of her 
 
         preexisting degenerative disc disease.
 
              
 
              15.  Claimant was off work from June 27, 1985 through June 
 
         30, 1985 and from September 6, 1985 through November 24, 1985, 
 
         but it cannot be ascertained whether such related to the April 4, 
 
         1985 work incident or to the subsequent new injury of June 18, 
 
         1985.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
              
 
              16.  Claimant received physical therapy related to the April 
 
         4, 1985 work incident prior to June 18, 1985.
 
              
 
              17.  Claimant received physical therapy subsequent to June 
 
         18, 1985 which likely related to the new injury of that date.
 
         
 
                                CONCLUSIONS OF LAW
 
         
 
              Claimant has established an injury which arose out of and in 
 
         the course of her employment on April 4, 1985.
 
         
 
              Claimant has established that the April 4, 1985 injury was 
 
         causally related to temporary total disability on which she bases 
 
         her claim.
 
         
 
              Claimant has not established that the April 4, 1985 injury 
 
         is causally related to permanent partial disability on which she 
 
         bases her claim.
 
         
 
              Claimant is entitled to payment of medical costs related to 
 
         physical therapy rendered prior to June 18, 1985.
 
         
 
              WHEREFORE, the decision of the deputy is affirmed.
 
         
 
                                      ORDER
 
         
 
              THEREFORE, it is ordered:
 
         
 
              That defendants pay claimant temporary total disability 
 
         benefits at the rate of one hundred ninety-four and 78/100 
 
         dollars ($194.78) from May 1, 1985 through May 6, 1985.  
 
         Defendants receive credit for benefits previously paid.
 
         
 
              That defendants pay claimant the costs of physical therapy 
 
         rendered from May 1, 1985 to June 18, 1985.  Defendants receive 
 
         credit for payments previously made for physical therapy.
 
         
 
              That claimant pay the costs of this action.
 
         
 
              That defendants file a claim activity report as requested by 
 
         this agency pursuant to Division of Industrial Services Rule 
 
         343-3.1.
 
         
 
         
 
              Signed and filed this 31st day of January, 1989.
 
         
 
         
 
         
 
         
 
         
 
         
 
                                               DAVID E. LINQUIST
 
                                            INDUSTRIAL COMMISSIONER
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         Copies To:
 
         
 
         Mr. Thomas M. Werner
 
         Attorney at Law
 
         1150 Polk Blvd.
 
         Des Moines, Iowa  50311
 
         
 
         Mr. Richard G. Book
 
         Attorney at Law
 
         500 Liberty Bldg.
 
         Des Moines, Iowa  50309
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
 
                                            
 
 
 
 
 
 
 
 
 
 
 
                                            1801.1 - 2602
 
                                            Filed January 31, 1989
 
                                            DAVID E. LINQUIST
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         SHIRLEY HEATON,
 
         
 
              Claimant,
 
         
 
         vs.                                        File No. 794672
 
         
 
         SWIFT INDEPENDENT PACKING                    A P P E A L
 
         COMPANY,
 
                                                    D E C I S I 0 N
 
              Employer,
 
         
 
         and
 
         
 
         NATIONAL UNION FIRE INSURANCE
 
         COMPANY,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         
 
         1801.1 - 2602
 
         
 
              Affirmance of the deputy's award of temporary disability to 
 
         the claimant.  It was determined that claimant had a preexisting 
 
         condition, permanent in nature.  Claimant failed to sustain her 
 
         burden that there was causal connection between her injury and 
 
         her permanent disability.  Medical testimony which determined 
 
         that claimant's injury aggravated the preexisting condition, 
 
         resulting in temporary disability, was given greater weight 
 
         because the physician who rendered the decision had greater 
 
         contact with the claimant and higher expertise.
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                    
 
                    BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         SANDY GORSETT,                             File No. 794756
 
         
 
              Claimant,                          A R B I T R A T I O N
 
         
 
         vs.                                        D E C I S I O N
 
         
 
         WILSON FOODS CORPORATION,                     F I L E D
 
         
 
              Employer                                APR 14 1988
 
              Self-Insured,
 
              Defendant.                     IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
                                   INTRODUCTION
 
         
 
              This is a proceeding in arbitration brought by the claimant, 
 
         Sandy Gorsett, against her self-insured employer, Wilson Foods 
 
         Corporation, to recover benefits under the Iowa Workers' 
 
         Compensation Act as the result of an injury sustained on December 
 
         5, 1984.  This matter came on for hearing before the undersigned 
 
         deputy industrial commissioner at Storm Lake, Iowa on November 
 
         10, 1987.  A first report of injury was filed on May 21, 1985. 
 
         Claimant has been paid 33 2/7 weeks of healing period benefits 
 
         and 28.5 weeks of permanent partial disability benefits.  The 
 
         record in this case consists of the testimony of claimant and of 
 
         claimant's exhibits 1 through 21 and defendant's exhibits A 
 
         through J as well as of the stipulated statement regarding 
 
         testimony of Mary Wuebben.
 
         
 
                                    ISSUES
 
         
 
              Pursuant to the pre-hearing report, the parties stipulated 
 
         that claimant did receive an injury arising out of and in the 
 
         course of her employment on the stated injury date and that 
 
         claimant's rate of compensation is $197.51.  The issues remaining 
 
         for resolution are whether a causal relationship exists between 
 
         claimant's injury and her current disability and whether claimant 
 
         is entitled to additional temporary total or healing period 
 
         benefits as well as additional permanent partial disability 
 
         benefits above the 15% of the hand disability benefits which the 
 
         insurer has already paid.
 
         
 
                           REVIEW OF THE EVIDENCE
 
         
 
              Claimant is 28 years old, single and a high school graduate. 
 
         She began working for Wilson Foods, Inc. in 1979.  Her only other 
 
         work experience was as a care center cook and as a road 
 
         construction flagger.  Claimant began working on the boning line 
 
         after approximately one year with Wilson Foods.  She skinned 
 
         hams. Ham skinning involved grabbing a 20-25 pound ham from the 
 
         ham vat with the right hand.  The ham was then placed on the 
 
                                                
 
                                                         
 
         skinning machine with both hands.  Claimant estimated that she 
 
         skinned approximately 200 hams per hour by this method.  Claimant 
 
         is right handed.
 
         
 
              Claimant testified that she noticed a lump on her left wrist 
 
         which was increasing in size.  She reported that, on 
 
         approximately December 15, 1984, she saw the plant nurse who 
 
         subsequently sent her to Keith Garner, M.D., the company doctor.  
 
         He prescribed Naflon and took x-rays.  She next saw him on April 
 
         26, 1985 at which time she was sent to Dean E. Meylor, D.C.  Dr. 
 
         Meylor wrapped and manipulated the wrist.  Claimant described her 
 
         left arm pain as between the knot on her wrist and two or three 
 
         inches up her arm.
 
         
 
              On May 30, 1985, claimant saw William Follows, M.D.  Dr. 
 
         Follows placed her on limited duty.  Claimant worked until her 
 
         seniority was not sufficient to allow her to continue on light 
 
         duty.  On July 25, 1985, Dr. Follows gave claimant a Cortisone 
 
         injection and took her off work for one week.  Claimant saw 
 
         Thomas P. Ferlic, M.D., a hand specialist, on August 12, 1985.  
 
         She reported that Dr. Ferlic placed her arm in a cast and removed 
 
         her from work for 30 days.  He subsequently removed her from work 
 
         for another month and injected Cortisone below the wrist knob on 
 
         September 19, 1985.  On November 4, 1985, Michael T. O'Neill, 
 
         M.D., examined claimant per referral of Dr. Ferlic.  On December 
 
         19, 1985, claimant had surgery by way of a Bower's resection. 
 
         Claimant returned to work on limited duty on March 11, 1986. 
 
         Claimant reported that, on some days, she did work limited duty, 
 
         but, on other days, did regular duty.  She reported she still had 
 
         much pain and swelling following her work day.  Claimant 
 
         testified that she would report to the company that she would not 
 
         be in because of her pain and swelling, but would be told to come 
 
         in for medical treatment consisting of wrist wraps and Advil.
 
         
 
              Claimant saw Dr. Garner on March 24, 1986.  Physical therapy 
 
         was prescribed on a tri-weekly basis to April 4, 1986.  Claimant 
 
         stated therapy increased her wrist motion.
 
         
 
              On April 7, 1986, claimant saw Patricia Jean Harrison, M.D., 
 
         her family doctor, who removed her from work for one week, 
 
         reportedly because of redness and swelling.  Claimant could not 
 
         recall whether she received workers' compensation benefits or 
 
         company sick pay for the time she was off from April 7, 1986 to 
 
         April 14, 1986.  On April 16, 1986, claimant saw Dr. Garner.  She 
 
         testified that he refused her request to again see Dr. Ferlic, 
 
         but told her to return in three weeks.  On April 28, 1986, 
 
         claimant had an incident at home with her wrist.  Claimant denied 
 
         that that pain differed from her work pain.  An undated note of 
 
         Dr. Harrison states, "bumped wrist at site of 
 
         operation...swelling."  Claimant disagreed with characterization 
 
         in a medical note that she had slammed her wrist in the desk 
 
         drawer.  Claimant stated she had bumped and not slammed the 
 
         wrist.  At hearing, the parties stipulated that, if Mary Wuebben, 
 
         a registered nurse employed by Wilson Foods, were called to 
 
         testify, she would testify that she was employed by Wilson Foods 
 
                                                
 
                                                         
 
         on April 28, 1986 and was on duty at 11:12 a.m. when claimant 
 
         reported that she had a sore wrist and stated, "she slammed it in 
 
         the desk drawer."
 
         
 
              On April 29, 1986, claimant saw Dr. Harrison who then 
 
         removed her from work until May 5, 1986.  Apparently, on that 
 
         date, Dr. Harrison removed claimant from work until Dr. Ferlic 
 
         reexamined her on May 14, 1986.  Claimant reported that she again 
 
         saw Dr. Garner in May, 1986 and requested a split shift.  She 
 
         reported that the doctor and Larry Flood denied that request.  
 
         Claimant reported that she returned to work on May 20, 1986 and 
 
         left work early on May 23, 1986 and that, on May 27, 1986, Dr. 
 
         Harrison removed her from regular work.  Claimant has not worked 
 
         since that date.  She testified that she had been released for 
 
         light duty work, but that Mr. Flood had reported that no light 
 
         duty work was available.
 
         
 
              Claimant testified that she continues to have left wrist 
 
         problems and that the wrist swells if she uses it frequently.  
 
         She reported that she has difficulty with dropping things.  
 
         Claimant agreed that she has worked as a fill-in at Box Office 
 
         Video since May, 1986.  Claimant testified that she has had right 
 
         side as well as left side discomfort.
 
         
 
              Claimant reported that she saw A. J. Wolbrink, M.D., for a 
 
         disability examination and that the doctor performed both grip 
 
         and mobility testing.  Claimant could not recall whether she had 
 
         told Dr. Ferlic of the home incident.  She was aware that she had 
 
         not told Dr. Wolbrink of that incident.
 
         
 
              A. J. Wolbrink, M.D., examined claimant on January 29, 1987. 
 
         He reported that she had undergone a partial resection of the 
 
         distal ulna of the left wrist on December 19, 1986.  He reported 
 
         that, as of January 29, 1987, she would have pain in the arm with 
 
         excessive use with pain being predominantly above the distal 
 
         ulna, but also with pain above the shoulder as well.  Claimant 
 
         reported some loss of sensation about the incision, but no other 
 
         significant parathesis.  Claimant did not relate any previous 
 
         problems or past history with the wrist.
 
         
 
              On examination, claimant had no tenderness in the cervical 
 
         spine muscles.  Left shoulder did have some crepitation with 
 
         motion.  Claimant was able to touch her chin on her chest and had 
 
         normal extension, side bending and rotation of the cervical 
 
         spine. Claimant had full 170 degrees of forward flexion of the 
 
         left shoulder as well as full 60 degrees of internal rotation and 
 
         60 degrees of external rotation and seemed to have normal 
 
         strength throughout the shoulder.  She had mild discomfort with 
 
         forward flexion, abduction motion.  She had normal range of 
 
         motion of the elbow.  Rotation of the left forearm was limited to 
 
         80 degrees at supination comparable with the right arm and 30 
 
         degrees of pronation in the left arm compared to 80 degrees in 
 
         the right arm. Claimant had 30 degrees of dorsiflexion, 45 
 
         degrees of palmar flexion and normal ulnar and radial deviation.  
 
         Claimant had grip strength of 18/16/20 Kg. in the left hand 
 
                                                
 
                                                         
 
         compared 38/32/31 in the right hand.  Claimant had no significant 
 
         circulatory or neurosensory deficit.
 
         
 
              The doctor's impression was that claimant had suffered an 
 
         injury to the distal radial joint of the left wrist which had 
 
         resulted in some restricted motion, weakness and residual pain in 
 
         the wrist.  He opined that claimant had a 21% permanent 
 
         impairment of the upper left extremity due to residual loss of 
 
         range of motion and strength.  The doctor opined that claimant 
 
         could not tolerate many pulling, pushing and twisting motions 
 
         with the left wrist.
 
         
 
              On May 30, 1985, William Fellows, M.D., an orthopaedic 
 
         surgeon, reported that claimant had increasing pain in the left 
 
         wrist right around the ulnar styloid.  The styloid was reported 
 
         as perhaps a little dorsally prominent, but not excessively so. 
 
         Claimant had full pronation and supination, flexion and extension 
 
         of the wrist.  Tenderness was on the ulnar side of the distal 
 
         ulnar head.  X-rays were normal other than that the ulnar may be 
 
         a little posterior.  The doctor's opinion was that claimant's 
 
         problem was tendonitis.
 
         
 
              On May 27, 1986, P. J. Harrison, M.D., reported that 
 
         claimant had reinjured her wrist and had limited range of motion.  
 
         The doctor reported she needs to not overwork her wrist and, if 
 
                           
 
                                                         
 
         she cannot reduce her work, or do simple flexion-extension, she 
 
         should not work.
 
         
 
              Dean E. Meylor, D.C., initially treated claimant on April 
 
         26, 1985, diagnosing an acute, severe carpal tunnel syndrome, 
 
         complicated by laxity of the wrist.  On May 8, 1985, he reported 
 
         that radial and ulnar deviation continued to create some 
 
         discomfort and that, with the laxity of the support structures in 
 
         the wrist, he felt that the radial and ulnar lateral deviation 
 
         would continue to be a problem for some time with no guarantee of 
 
         complete resolution.
 
         
 
              Thomas P. Ferlic, M.D., an orthopaedic surgeon, diagnosed 
 
         claimant's condition as degenerative joint disease, distal radial 
 
         ulnar joint on the left.  On December 19, 1985, he performed a 
 
         Bower's resection of the distal ulna.  On March 4, 1986, Dr. 
 
         Ferlic opined that claimant should be able to return to her 
 
         former occupation and rated her as having a permanent 
 
         "disability" of 15% of the hand under the manual for orthopaedic 
 
         surgeons in evaluating permanent physical impairment.  On May 14, 
 
         1986, Dr. Ferlic noted that claimant's was "a fairly standared 
 
         [sic] amount of disability and is rateable to the hand even 
 
         though even though [sic] it is her wrist."  On physical 
 
         examination of that date, claimant had no erythema or induration 
 
         over her distal ulna.  She had no gross swelling, but had mild 
 
         tenderness over the area of the scar.  She had no gross 
 
         subluxation of the distal ulna and had virtually full supination.  
 
         Her pronation was to within 25 degrees of normal, although the 
 
         last ten degrees were obviously tender for her.  She had full 
 
         flexion and extension and no radial head tenderness or problems.  
 
         Neurovascular status was intact to the hand.   The doctor opined 
 
         that, as of that date, claimant was capable of packing house work 
 
         in a job which did not require excessive pronation.  He reported 
 
         that she could do any job requiring full flexion and extension of 
 
         the wrist with the wrist in neutral or in some supination.
 
         
 
              On April 25, 1986, Dr. Garner saw claimant in a conference 
 
         with Larry Flood, Mary Ketterman, R.N., and John Ketelson, a 
 
         union representative.  The representative apparently stated that 
 
         claimant's wrist was still stiff and she was unable to do her job 
 
         on a skinning machine, which she worked right-handed.  Dr. Garner 
 
         stated it was questionable how much work claimant had to do with 
 
         her left hand.  Dr. Garner indicated that claimant was to obtain 
 
         a job description, return to Dr. Ferlic, have him examine her and 
 
         go over the job description and write a letter concerning the 
 
         work status.  Claimant was to continue working in the meantime.  
 
         That arrangement was agreed upon by all parties concerned.  On 
 
         April 23, 1986, Dr. Garner reported that claimant continued to 
 
         have difficulty with getting full pronation.  She was working on 
 
         strengthening in supination and pronation.  On May 1, 1986, the 
 
         doctor reported that claimant was gradually gaining more 
 
         pronation.  Her wrist was reported as sore that week and she was 
 
         off work.  On June 18, 1986, B. Goettsch, L.P.T., reported that 
 
         claimant was making slow improvement, but still did not have 
 
         normal pronation and apparently was to continue physical therapy 
 
                                                
 
                                                         
 
         weekly.  As of July 2, 1986, it was reported that claimant 
 
         received whirlpool and gentle passive range of motion and 
 
         encouraged pronation, also strengthening of pronators on the 
 
         right hand.
 
         
 
                        APPLICABLE LAW AND ANALYSIS
 
         
 
              Our first concern is the causal connection issue.
 
         
 
              The claimant has the burden of proving by a preponderance of 
 
         the evidence that the injury of December 5, 1984 is causally 
 
         related to the disability on which she now bases her claim.  
 
         Bodish v. Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867 (1965).  
 
         Lindahl v. L. O. Boggs, 236 Iowa 296, 18 N.W.2d 607 (1945).  A 
 
         possibility is insufficient; a probability is necessary.  Burt v. 
 
         John Deere Waterloo Tractor Works, 247 Iowa 691, 73 N.W.2d 732 
 
         (1955).  The question of causal connection is essentially within 
 
         the domain of expert testimony.  Bradshaw v. Iowa Methodist 
 
         Hospital, 251 Iowa 375, 101 N.W.2d 167 (1960).
 
         
 
              However, expert medical evidence must be considered with all 
 
         other evidence introduced bearing on the causal connection.  
 
         Burt, 247 Iowa 691, 73 N.W.2d 732.  The opinion of experts need 
 
         not be couched in definite, positive or unequivocal language.  
 
         Sondag v. Ferris Hardware, 220 N.W.2d 903 (Iowa 1974).  However, 
 
         the expert opinion may be accepted or rejected, in whole or in 
 
         part, by the trier of fact.  Id. at 907.  Further, the weight to 
 
         be given to such an opinion is for the finder of fact, and that 
 
         may be affected by the completeness of the premise given the 
 
         expert and other surrounding circumstances.  Bodish, 257 Iowa 
 
         516, 133 N.W.2d 867.  See also Musselman.v. Central Telephone 
 
         Co., 261 Iowa 352, 154 N.W.2d 128 (1967).
 
         
 
              While much ado has been made over the issue of whether 
 
         claimant "bumped" or "slammed" her wrist at home on April 28, 
 
         1986, the precise action involved appears to have little bearing 
 
         on the actual resolution of this issue.  Claimant apparently had 
 
         been able to work, at least on an intermittent basis, prior to 
 
         the incident at home.  Following the home incident, claimant was 
 
         off work from April 29, 1986 until she returned to work on May 
 
         20, 1986.  Claimant apparently worked May 20, 1986 as well as May 
 
         21, 22 and part of the day on May 23, 1986.  On May 27, 1986, Dr. 
 
         Harrison removed her from regular work.  Claimant has not worked 
 
         since that date.  While claimant had continued to receive 
 
         treatment prior to her home incident, she apparently had been 
 
         working after March 11, 1986, except for the period April 7, 1986 
 
         through April 14, 1986.  Nothing in the record suggests that 
 
         claimant would not have continued to work, but for the April 28, 
 
         1986 home incident.  Likewise, nothing suggests that claimant 
 
         would not have continued work after May 20, 1986, but for the 
 
         intervention of the April 28, 1986 incident.  Indeed, by 
 
         agreement of all parties on April 25, 1986, claimant was to 
 
         continue working until further evaluation and the report of Dr. 
 
         Ferlic was obtained.  Likewise, no physician has indicated that 
 
         claimant's current condition relates only to her work injury and 
 
                                                
 
                                                         
 
         not to the intervening incident.  Neither Dr. Ferlic nor Dr. 
 
         Wolbrink mentioned the work incident in reports of examination 
 
         subsequent to that incident.  Claimant acknowledges that she did 
 
         not tell Dr. Wolbrink of that incident in her January 29, 1987 
 
         examination by that doctor.  Dr. Harrison's light-duty 
 
         restriction of May 27, 1986 does not relate that restriction to 
 
         claimant's work-related condition and not to her home incident.  
 
         [While, in the absence of opinion testimony as to causation the 
 
         absence of a complete medical history may be irrelevant to this 
 
         issue, it has import concerning the question of whether the 
 
         doctor's 21% permanent partial impairment of the left upper 
 
         extremity assigned to claimant can be properly attributed wholly 
 
         to her work incident. See Musselman v. Central Telephone Co., 261 
 
         Iowa 352, 360, 154 N.W.2d 128, 133 (1967).]
 
         
 
              We consider the benefit entitlement questions.  Initially, 
 
         we consider claimant's contention that she is entitled to 
 
         additional temporary total disability for the time off from April 
 
         25, 1986 to May 16, 1986 and from May 23, 1986 to June 21, 1986.
 
         
 
              Section 85.33(1) provides that the employer shall pay an 
 
         employee for injury producing temporary total disability weekly 
 
         compensation benefits until the employee has returned to work or 
 
         is medically capable of returning to employment substantially 
 
         similar to the employment in which the employee was engaged at 
 
         the time of the injury, whichever occurs first.  As discussed 
 
         above, claimant has not established that her time off work from 
 
         her April 28, 1986 home incident onward related to her initial 
 
         work injury and not to the home incident.  For that reason, 
 
         claimant has shown no entitlement to temporary total disability 
 
         benefits for that period.
 
         
 
              We consider the permanent partial disability entitlement 
 
         questions.
 
         
 
              An injury is the producing cause; the disability, however, 
 
         is the result, and it is the result which is compensated.  Barton 
 
         v. Nevada Poultry Co., 253 Iowa 285, 110 N.W.2d 660 (1961); 
 
         Dailey v. Pooley Lumber Co., 233 Iowa 758, 10 N.W.2d 569 
 
         (1943).
 
         
 
              The right of a worker to receive compensation for injuries 
 
         sustained which arose out of and in the course of employment is 
 
         statutory.  The statute conferring this right can also fix the 
 
         amount of compensation to be paid for different specific 
 
         injuries, and the employee is not entitled to compensation except 
 
         as provided by the statute.  Soukup v. Shores Co., 222 Iowa 272, 
 
         268 N.W. 598 (1936).
 
         
 
              A treating physician's testimony is not entitled to greater 
 
         weight as a matter of law than that of a physician who later 
 
         examines claimant in anticipation of litigation.  Weight to be 
 
         given testimony of physician is a fact issue to be decided by the 
 
         industrial commissioner in light of the record the parties 
 
         develop.  In this regard, both parties may develop facts as to 
 
                                                
 
                                                         
 
         the physician's employment in connection with litigation, if so; 
 
         the physician's examination at a later date and not when the 
 
         injuries were fresh; the arrangement as to compensation; the 
 
         extent and nature of the physician's examination; the physician's 
 
         education, experience, training, and practice; and all other 
 
         factors which bear upon the weight and value of the physician's 
 
         testimony may be considered.  Both parties may bring all this 
 
         information to the attention of the factfinder as either 
 
         supporting or weakening the physician's testimony and opinion.  
 
         All factors go to the value of the physician's testimony as a 
 
         matter of fact not as a matter of law.  Rockwell Graphic Systems, 
 
         Inc. v. Prince, 366 N.W.2d 187, 192 (Iowa 1985).
 
         
 
              An injury to the wrist is generally considered to result in 
 
         disability to the hand rather than to the upper extremity, that 
 
         is, the arm.  Elam v. Midland Manufacturing, II Iowa Industrial 
 
         Commissioner Report, 141 (App. Decn. 1981).
 
         
 
              On March 4, 1986, Dr. Ferlic, who performed claimant's 
 
         surgery, opined that she had a 15% permanent partial impairment 
 
         of the hand.  On May 14, 1986, Dr. Ferlic noted that claimant had 
 
         a fairly standard amount of "disability."  He reported that that 
 
         was ratable to the hand, even though it was in her wrist.  The 
 
         doctor's May 14 examination was subsequent to claimant's home 
 
         incident.  He reported that, as of that date, claimant had no 
 
         gross subluxation of the distal ulna and had virtually full 
 
         supination.  Pronation was within 25 degrees of normal and she 
 
         had full flexion and extension and no radial head tenderness or 
 
         problems.  Dr. Wolbrink, an examining physician, saw claimant on 
 
         January 29, 1987 and then opined that she had a 21% impairment to 
 
         the left upper extremity.  He noted that rotation of the left 
 
         forearm was comparable to the right and that claimant had 30 
 
         degrees of pronation on the left, 30 degrees of dorsiflexion and 
 
 
 
                        
 
                                                         
 
         45 degrees of palmar flexion.  Dr. Wolbrink related claimant's 
 
         impairment to an injury to the distal radial joint of the wrist, 
 
         reporting that claimant had restriction of motion, weakness and 
 
         residual pain in the wrist.  He was unaware of claimant's home 
 
         incident and did not relate her wrist injury to either her work 
 
         or to the home incident.  Dr. Ferlic also did not mention the 
 
         home incident when he examined claimant on May 14, 1986.  
 
         However, as of that date, the doctor saw no reason to evaluate 
 
         claimant differently than he had evaluated her prior to the home 
 
         incident. Dr. Ferlic's long-term treatment of claimant should 
 
         have placed him in a better position than Dr. Wolbrink as far as 
 
         assessing any additional damage to claimant on account of the 
 
         home incident.  He apparently did not observe any change in 
 
         claimant's permanency when he examined her on May 14, 1986.  
 
         Hence, even had claimant had a change of condition on account of 
 
         the home incident, it apparently was not evident upon examination 
 
         on May 14, 1986.  For that reason, we accept Dr. Ferlic's 
 
         evaluation of permanency of 15% percent of the hand.  In 
 
         accepting the doctor's position, we note that, following Elam, 
 
         claimant's impairment remains in the hand.  Nothing in the record 
 
         as made suggests that the impairment extends beyond the wrist 
 
         joint into the arm.
 
         
 
              Section 85.34(2)(1) provides that weekly compensation is due 
 
         for the loss of a hand for 190 weeks.  Dr. Ferlic's rating is of 
 
         a 15% permanent partial impairment to the hand.  Claimant, 
 
         therefore, is entitled to 28.5 weeks of permanent partial 
 
         disability benefits on account of that loss.  The parties have 
 
         agreed that the defendant has already paid that amount of 
 
         permanency.  Claimant is therefore entitled to no additional 
 
         permanent partial disability benefits.
 
         
 
                               FINDINGS OF FACT
 
         
 
              WHEREFORE, IT IS FOUND:
 
         
 
              Claimant injured her left wrist while performing repetitive 
 
         motions in her job as a ham boner at Wilson Foods.
 
         
 
              On December 19, 1985, Dr. Ferlic performed a Bower's 
 
         resection of claimant's left distal ulna.
 
         
 
              The Bower's resection was intended to treat claimant's 
 
         condition which was diagnosed as degenerative joint disease, 
 
         distal radial ulnar joint on the left.
 
         
 
              Claimant returned to limited duty work on March 11, 1986.
 
         
 
              On some days, claimant worked limited duty, but on other 
 
         days, she worked regular duty.
 
         
 
              Claimant received wrist wraps and Advil from the Wilson 
 
         first aid station during this period.
 
         
 
              On March 24, 1986, Dr. Garner prescribed physical therapy 
 
                                                
 
                                                         
 
         for claimant to April 4, 1986.
 
         
 
              Therapy increased claimant's wrist motion.
 
         
 
              On April 7, 1986, Dr. Harrison removed claimant from work 
 
         for one week.
 
         
 
              Claimant worked from April 14, 1986 through April 25, 1986.
 
         
 
              On April 25, 1986, claimant, union and company 
 
         representatives agreed claimant was to continue working until 
 
         further evaluation and report of Dr. Ferlic.
 
         
 
              On or about April 28, 1986, claimant had an incident with 
 
         her wrist at home.
 
         
 
              On April 29, 1986, Dr. Harrison removed claimant from work.
 
         
 
              Claimant returned to work on May 20, 1986 and worked until 
 
         she left work early on May 23, 1986.
 
         
 
              On May 27, 1986, Dr. Harrison removed claimant from regular 
 
         work.
 
         
 
              Claimant has not worked for Wilson Foods since May 27, 
 
         1986.
 
         
 
              On March 4, 1986, Dr. Ferlic opined claimant had permanent 
 
         partial impairment of 15% of the hand.
 
         
 
              On May 14, 1986, Dr Ferlic did not indicate that claimant's 
 
         rating differed from the rating given on March 4, 1986.
 
         
 
              Dr. Wolbrink examined claimant on January 29, 1987.
 
         
 
              Dr. Wolbrink assigned claimant a 21% impairment of the left 
 
         upper extremity.
 
         
 
              Dr. Wolbrink reported that such was due to an injury of the 
 
         distal radial joint, but did not relate the injury to either 
 
         claimant's work or to her home incident.
 
         
 
              Claimant did not tell Dr. Wolbrink of her home incident.
 
         
 
              Claimant did not tell Dr. Ferlic of her home incident.
 
         
 
              Claimant's injury does not extend beyond her wrist joint 
 
         into the arm.
 
         
 
                             CONCLUSIONS OF LAW
 
         
 
              THEREFORE, IT IS CONCLUDED:
 
         
 
              Claimant has not established a causal relationship between 
 
         the work injury of December 5, 1984 and either additional 
 
                                                
 
                                                         
 
         temporary total disability or additional permanent partial 
 
         disability.
 
         
 
              Claimant is not entitled to temporary total disability 
 
         benefits from April 25, 1986 to May 16, 1986 or from May 23, 1986 
 
         to June 21, 1986.
 
         
 
              Claimant is not entitled to additional permanent partial 
 
         disability benefits on account of her December 5, 1984 injury.
 
         
 
                                   ORDER
 
         
 
              THEREFORE, IT IS ORDERED:
 
         
 
              Claimant take nothing further from this proceeding.
 
         
 
              Claimant and defendant pay equally the costs of this 
 
         proceeding pursuant to Division of Industrial Services Rule 
 
         343-4.33.
 
         
 
              Signed and filed this 14th day of April,  1988.
 
         
 
         
 
         
 
         
 
         
 
         
 
                                            HELEN JEAN WALLESER
 
                                            DEPUTY INDUSTRIAL COMMISSIONER
 
         
 
         Copies To:
 
         
 
         Mr. Harry H. Smith
 
         Attorney at Law
 
         632-640 Badgerow Building
 
         P.O. Box 1194
 
         Sioux City, Iowa  51102
 
         
 
         Mr. David L. Sayre
 
         Attorney at Law
 
         223 Pine Street
 
         Cherokee, Iowa  51012
 
 
 
         
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                                 1108
 
                                                 Filed April 14, 1988
 
                                                 HELEN JEAN WALLESER
 
         
 
                      BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         SANDY GORSETT,
 
         
 
              Claimant,
 
                                                      File No. 794756
 
         vs.
 
                                                    A R B I T R A T I 0 N
 
         WILSON FOODS CORPORATION,
 
                                                       D E C I S I 0 N
 
              Employer
 
              Self-Insured,
 
              Defendant.
 
         
 
         
 
         1108
 
         
 
              Claimant did not establish causal relationship between any 
 
         additional disability and her work-related condition.
 
         
 
         
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                            
 
                    BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         BRENT E. BOELMAN,
 
         
 
              Claimant,
 
         
 
         VS.
 
                                                      FILE NO. 794825
 
         IOWA MOLD TOOLING, INC.,
 
                                                  A R B I T R A T I 0 N
 
              Employer,
 
                                                     D E C I S I O N
 
         and
 
         
 
         TRAVELERS INSURANCE COMPANY,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         
 
                                   INTRODUCTION
 
         
 
              This is a proceeding in arbitration brought by Brent E. 
 
         Boelman, claimant, against Iowa Mold Tooling, Inc., employer, and 
 
         Travelers Insurance Company, insurance carrier, for benefits as a 
 
         result of an alleged injury on January 9, 1985.  A hearing was 
 
         held at Mason City, Iowa on September 4, 1986 and the case was 
 
         fully submitted at the close of the hearing.  The record consists 
 
         of the testimony of Brent E. Boelman (claimant); Annette Boelman 
 
         (claimant's wife); and Dave C. Quinn (night supervisor); 
 
         claimant's exhibits 1 through 19; and defendants' exhibits A and 
 
         B.
 
         
 
                                   STIPULATIONS
 
         
 
              At the time of the hearing the parties stipulated to the 
 
         following matters:
 
         
 
              That an employer/employee relationship existed between the 
 
         claimant and the employer at the time of the alleged injury.
 
         
 
              That the weekly rate of compensation in the event of an 
 
         award is $177.00 per week.
 
         
 
              That in the event of an award the defendants are entitled to 
 
         credits under Iowa Code section 85.38(2) for $1,040.00 of 
 
         disability income and $674.88 of medical benefits previously paid 
 
         under employee non-occupational group health plans.
 
                                        
 
                                      ISSUES
 
         
 
              The issues presented by the parties for determination at the 
 
         time of the hearing are as follows:
 
         
 
              Whether the claimant sustained an injury on or about January 
 

 
         
 
         
 
         
 
         BOELMAN V. IOWA MOLD TOOLING, INC.
 
         Page   2
 
         
 
         
 
         9, 1985 which arose out of and in the course of his employment 
 
         with his employer.
 
         
 
              Whether the alleged injury is the cause of any temporary or 
 
         permanent disability.
 
         
 
              Whether the claimant is entitled to any temporary or 
 
         permanent disability benefits as a result of the alleged injury.
 
         
 
              Whether the claimant is entitled to medical benefits for the 
 
         alleged injury under Iowa Code section 85.27.
 
         
 
              The issue of whether the claimant is entitled to any penalty 
 
         benefits under Iowa Code section 86.13 has been bifurcated.
 
         
 
                             SUMMARY OF THE EVIDENCE
 
         
 
              Claimant is 28 years old, married and has two dependent 
 
         children.  He moved to Iowa from Missouri in 1979.  He graduated 
 
         from high school in 1976 and has taken some vocational 
 
         rehabilitation classes in the evening since his injury.  Past 
 
         employments include several jobs as a farm laborer, production 
 
         work at Winnebago Industries, general labor work at a Missouri 
 
         co-op and five and one-half years of experience cutting, bending 
 
         and forming steel in what is called shear and brake work for 
 
         Kiefer Built Homes of Kanawha.  Claimant started to work for the 
 
         employer on August 9, 1984 operating shears, brakes and punch 
 
         presses at approximately $7.00 per hour.  Claimant described this 
 
         work as medium heavy work.  He generally lifted from 10 pounds to 
 
         50 pounds several times a day.  Two men would handle 100 pounds.
 
         
 
              Claimant's regular physician from 1979 to 1985 was W. W. 
 
         Weisbrod, D.C., a chiropractor, at Belmond, Iowa.  Dr. Weisbrod's 
 
         testimony and his office notes show that he treated the claimant 
 
         for numerous ailments including cervical, thoracic and lumbar 
 
         back pain over these years.  Claimant lost no time from work and 
 
         was not hospitalized for any of these back complaints.  Claimant 
 
         testified that he had eight or nine adjustments for his low back 
 
         over the period from 1979 to January 1985.  His last adjustment 
 
         for low back pain prior to January, 1985, was on October 5, 1983. 
 
          Claimant testified that prior to 1985 he did not have any 
 
         radicular pain into his buttocks or legs.  Dr. Weisbrod's 
 
         testimony corroborated claimant's testimony on these points.
 
         
 
         
 
         
 
              In the fall of 1984, claimant began doing heavier work on 
 
         larger pieces of steel for the employer.  In January of 1985, he 
 
         began to encounter periodic backaches with pain that radiated 
 
         down into his legs.  He went to see Dr. Weisbrod twice for these 
 
         complaints in January of 1985.  Dr. Weisbrod's notes (Claimant's 
 
         Exhibit 1) and Dr. Weisbrod's deposition testimony (Defendants' 
 
         Ex. B, pages 23 & 24) confirmed that he treated the claimant for 
 
         low back pain on January 11, 1985 and again on January 19, 1985.  
 
         Neither the notes of Dr. Weisbrod nor his testimony relate the 
 
         pain to any specific event or to anything which took place at 
 
         work.  In fact on January 19, 1985, claimant said he noticed the 
 
         pain last night in bed (Cl. Ex. 1, Def. Ex.  B, p. 24).  This is 
 
         the last time that he saw Dr. Weisbrod.  Dr. Weisbrod testified 
 

 
         
 
         
 
         
 
         BOELMAN V. IOWA MOLD TOOLING, INC.
 
         Page   3
 
         
 
         
 
         that in January of 1985, the claimant did not describe any 
 
         particular incident or event that caused his back to hurt (Def. 
 
         Ex. B, p. 24).  Dr. Weisbrod stated that claimant never did 
 
         mention radicular pain to him (Def. Ex. B, p. 47).  Dr. Weisbrod 
 
         made no determination of permanent impairment (Def. Ex. B, pp. 49 
 
         & 55).
 
         
 
              Claimant next went to see Michael J. Whitters, D.O., in 
 
         Clarion on January 23, 1985 with pain in his low lumbar area and 
 
         radiation down both legs.  Dr. Whitters saw claimant only once; 
 
         he suspected a bulging lumbar vertebra; ordered a CT scan; and 
 
         referred claimant to Robert E. McCoy, M.D., an orthopedic surgeon 
 
         in Mason City.  Dr. Whitters told claimant's counsel that 
 
         claimant was doing a lot of heavy lifting at work and obviously 
 
         aggravated a low back problem (Cl. Ex. 2).  Claimant testified 
 
         that Dr. Whitters took him off work on January 23, 1985 until 
 
         further notice.  Dr. Whitters' office note on January 28, 1985 
 
         states that claimant is to "stay off work."  Dr. Whitters made no 
 
         determination as to whether the claimant was permanently impaired 
 
         or not (Cl. Ex. 2 & 3).
 
         
 
              Claimant testified he told his supervisor, Dave Quinn, that 
 
         Dr. Whitters wanted a CT scan and that Quinn told him to see the 
 
         company doctor, Lyle R. Fuller, M.D., in Garner.  Dr. Fuller 
 
         states he saw claimant on January 24, 1985.  Dr. Fuller adds that 
 
         claimant denied any previous back problems at the time of his 
 
         preemployment physical examination in August of 1984 and that 
 
         claimant failed to report any new back problem to the employer in 
 
         January of 1985.  Therefore, Dr. Fuller did not evaluate his back 
 
         problem (Cl. Ex. 4).
 
         
 
              The CT scan ordered by Dr. Whitters was taken on January 25, 
 
         1985 at St. Joseph's Mercy Hospital in Mason City.  It ruled out 
 
         a herniated disc and revealed some congenital problems in the 
 
         claimant's back.
 
         
 
              Impression:  1)  Bilateral spondylolysis defects at
 
                               the L 5 level with grade I anterolisthesis
 
                               of L 5 relative to S l.
 
                           2)  Mild changes of congenital central
 
                               stenosis at the L 3 and L 4 vertebral
 
                               levels.
 
                           3)  No hernated nucleus pulposus.
 
              (Cl. Ex. 6)
 
         
 
              Claimant first saw Dr. McCoy on February 12, 1985.  Dr. 
 
         McCoy reviewed claimant's history of low back pain for several 
 
         years and described the heavy nature of his work.  He commented 
 
         that claimant had been off work since January 22, 1985.  Dr. 
 
         McCoy's clinical tests in his office were essentially negative 
 
         but x-rays showed a mild bilateral spondylolisthesis at L-5, S-1 
 
         with a mild forward slip.  There was no evidence of a herniated 
 
         intervertebral disc.  Dr. McCoy commented that claimant was five 
 
         foot eleven inches tall and weighed 266 pounds.  He recommended 
 
         that claimant get his weight down to 200 pounds, do partial 
 
         sit-ups, and walk one mile five times a day.  While walking, 
 
         claimant fell on the ice, which caused additional pain in his low 
 
         back and legs.  Dr. McCoy returned claimant to work on April 22, 
 
         1985 with a 20 pound weight restriction, but the employer did not 
 

 
         
 
         
 
         
 
         BOELMAN V. IOWA MOLD TOOLING, INC.
 
         Page   4
 
         
 
         
 
         have any work to meet that weight restriction (Cl. Ex. 5 & 7).  
 
         Dr. McCoy again returned claimant to work on May 28, 1985 with a 
 
         30 pound weight restriction, but again employer did not have work 
 
         within the restriction.  Dr. McCoy commented on February 18, 
 
         1985, that he doubted that claimant would be able to continue his 
 
         present heavy job for the rest of his life without anticipating 
 
         further significant difficulty (Cl. Ex. 8).  On August 27, 1985, 
 
         Dr. McCoy discharged claimant, still with a 30 pound weight 
 
         restriction, and summarized his situation as follows:
 
         
 
              Mr. Boelman has spondylolisthesis for which he went to 
 
              a chiropractor once or twice a month somewhat 
 
              irregularly prior to his exacerbation of his problem 
 
              from his work activities.  I would estimate his 
 
              Permanent Partial Impairment of Function from his work 
 
              exposure at 10% of the whole man.  I think he may be 
 
              dismissed from my care.  I would be glad to see him 
 
              again on a prn basis.
 
              (Cl. Ex. 5)
 
         
 
              The best overview of Dr. McCoy's visualization of claimant's 
 
         situation, including causal connection, may be contained in his 
 
         letter dated May 29, 1985:
 
         
 
              As you are aware, I first saw Brent Boelman on 2/12/85.  
 
              At that time he had been off work since the 22nd of 
 
              January and said that about 6 weeks prior to his office 
 
              visit with me, which would be about the first of the 
 
              year, he began having pain in his low back radiating 
 
              down both legs which was further aggravated over the 
 
              next couple of weeks by driving a forklift.
 
         
 
              Mr. Boelman is very heavy and has spondylolisthesis of 
 
              L5-Sl with a mild forward slip on L5-Sl.  This is the 
 
              underlying situation on which his work activities where 
 
              [sic] superimposed.  I believe that the work activities 
 
              did precipitate the discomfort that he describes in his 
 
              low back, however, I think there was an underlying 
 
              predisposition in the status of his low back that 
 
              caused him to be susceptible to heavy lifting.  I think 
 
              it is advisable for him not to return to the same type 
 
              of heavy lifting in the future.  It is my understanding 
 
              that he has been in contact with more than one 
 
              vocational rehabilitation agency and is anxious,to 
 
              proceed with retraining for some sort of light work if 
 
              indeed he is not able to find light work with his 
 
              present employer of [sic] some other employer. (Cl. Ex. 
 
              8)
 
         
 
              Dr. McCoy commented one more time on October 28, 1985 by 
 
         saying:  "Mr. Boelman has a chronic problem which was aggravated 
 
         at work and is made more troublesome by his extreme overweight 
 
         situation. (Cl. Ex. 10).
 
         
 
              Claimant saw John R. Walker, M.D., of Waterloo on January 
 
         27, 1986.  Dr. Walker gave this opinion:
 
         
 
              OPINION:  This man has had a pre-existing [sic] problem 
 
              consisting of a spondylysis [sic] of the L-5 vertebral 
 

 
         
 
         
 
         
 
         BOELMAN V. IOWA MOLD TOOLING, INC.
 
         Page   5
 
         
 
         
 
              body, namely the pars interarticularis areas.  This, of 
 
              course is a congenital anomaly and it should be noted 
 
              that he was having some small amount of difficulty 
 
              prior to his repeated injuries at the Iowa Mold & Tool 
 
              Company.  To this, he has certainly added a 
 
              superimposed sprain of the lumbosacral joint, 
 
              superimposed on the spondylolisthesis and secondly of 
 
              course he has developed some sciatic pain, possibly due 
 
              to disc disruption at L-5.
 
         
 
              In-as-much as this man has really not had traction and 
 
              the usual therapy and perhaps a back exercise program, 
 
              I believe that he should be subjected to this.  I would 
 
              put him in the hospital for two weeks of intensive care 
 
              and therapy.  I certainly do not for a minute disagree 
 
              with his plan to be evaluated for vocational 
 
              rehabilitation.  Probably in the sense of the word this 
 
              man is never going to be able to return to heavy work.  
 
              I believe that he had a 10% partial impairment prior to 
 
              his injuries at Iowa Mold and I believe that to this he 
 
              has added another 10% permanent, partial impairment. 
 
              (Cl. Ex. 12)
 
              Claimant testified that he drew unemployment compensation 
 
         from May 8, 1985 to February 27, 1986, except when he worked for 
 
         a farmer for about six weeks in October, November and December of 
 
         1985, at which time he earned $1,723.51 (Cl. Ex. 17 & 18).  He 
 
         worked for the same farmer again in 1986 off and on preparing the 
 
         fields and hauling grain and has earned approximately $1,500.00 
 
         in 1986.  Claimant testified that he has been able to perform all 
 
         of the farm labor required of him, but he has only violated his 
 
         30 pound weight restriction on one occasion when he slid some 
 
         bags of grain across the floor.
 
         
 
              Claimant testified that he took approximately two or three 
 
         weeks of vocational rehabilitation training under the Job 
 
         Training Partnership Act.  They taught him how to look and act in 
 
         order to get a job.  They suggested college but claimant did not 
 
         feel financially or academically equipped for it.  Claimant 
 
         stated he received very poor grades in high school.  Furthermore, 
 
         this program does not pay any money while you attend college.
 
         
 
              Claimant said that he currently suffers with aching lower 
 
         back pain that goes down both legs, mostly on the left, to the 
 
         knees and sometimes to his toe on the left.  Since January, 1985, 
 
         the difference in his condition is that he has continuous aching 
 
         in his back and the pain goes down both legs.
 
         
 
              Claimant conceded that he did not reveal his prior back 
 
         problems at the time of his preemployment physical examination 
 
         with Dr. Fuller because he did not think these back problems were 
 
         serious.  He also admitted that his January, 1985, problem was 
 
         not the result of a specific incident or event.  He states he did 
 
         not report it to the employer until January 23, 1985.
 
         
 
              Dave Quinn, night supervisor, testified claimant called in 
 
         on January 23, 1985 and said he would be missing work due to back 
 
         problems.  Quinn asked if it were work related.  Quinn testified 
 
         that claimant told him that it was not work related; rather it 
 
         was from a childhood injury.  Quinn said that he reminded the 
 

 
         
 
         
 
         
 
         BOELMAN V. IOWA MOLD TOOLING, INC.
 
         Page   6
 
         
 
         
 
         claimant that if it was work related, then claimant would have to 
 
         see the company doctor, Dr. Fuller, in Garner.  Quinn testified 
 
         that claimant showed no physical signs of injury that he could 
 
         detect at work and that the claimant made no complaints of injury 
 
         at work.  If claimant was sick or injured, Quinn said he is the 
 
         person that claimant was supposed to notify.
 
         
 
              Claimant denied that he told Dr. McCoy that he was virtually 
 
         symptom free just before he fell on the ice by walking on or 
 
         about February 17, 1985.  Claimant admitted that he had not had 
 
         any treatment for his back for over a year since he saw Dr. McCoy 
 
         last in August of 1985 and he testified that he has not seen a 
 
         doctor for his back since he saw Dr. Walker in January of 1986.
 
         
 
              Claimant's exhibit 19 is an application for employee group 
 
         disability benefits signed by claimant on February 9, 1985.  
 
         Question 10 asks whether the patient's ailment is due to illness 
 
         or injury arising out of and in the course of his employment.  
 
         There is no entry in either the yes or no blank spaces.  
 
         Defendants' exhibit A is the same form signed by the claimant on 
 
         February 12, 1985.  On this exhibit question 10 has an x behind 
 
         the no answer.  Claimant testified that someone else must have 
 
         put the x in the no answer.  He does not remember doing it and he 
 
         does not remember signing the form on two different occasions.
 
         
 
              Claimant's wife Annette testified even though claimant had a 
 
         stiff neck and a sore back before January of 1985, he did not 
 
         have any leg pains and he did not miss any work on account of 
 

 
         
 
         
 
         
 
         BOELMAN V. IOWA MOLD TOOLING, INC.
 
         Page   7
 
         
 
         
 
         them.  In January of 1985, he began to complain of the weight 
 
         when he would carry their child and he said his lower back was 
 
         stiff from working.  She noticed that he was slow in getting up 
 
         from sitting and that he walked very carefully.  Since January of 
 
         1985, he has avoided carrying their child and carrying groceries 
 
         and other lifting obligations.  She mows the yard and does the 
 
         gardening.
 
         
 
                           APPLICABLE LAW AND ANALYSIS
 
         
 
              An employee is entitled to compensation for any and all 
 
         personal injuries which arise out of and in the course of the 
 
         employment.  Section 85.3(l).
 
         
 
              Claimant has the burden of proving by a preponderance of the 
 
         evidence that he received an injury on January 9, 1985 which 
 
         arose out of and in the course of his employment.  McDowell v. 
 
         Town of Clarksville, 241 N.W.2d 904 (Iowa 1976); Musselman v. 
 
         Central Telephone Co., 261 Iowa 352, 154 N.W.2d 128 (1967).
 
         
 
              The injury must both arise out of and be in the course of 
 
         the employment.  Crowe v. DeSoto Consol. Sch. Dist., 246 Iowa 
 
         402, 68 N.W.2d 63 (1955) and cases cited at pp. 405-406 of the 
 
         Iowa Report.  See also Sister Mary Benedict v. St. Mary's Corp., 
 
         255 Iowa 847, 124 N.W.2d 548 (1963) and Hansen v. State of Iowa, 
 
         249 Iowa 1147, 91 N.W.2d 555 (1958).
 
         
 
              The words "out of" refer to the cause or source of the 
 
         injury.  Crowe, 246 Iowa 402, 68 N.W.2d 63 (1955).
 
         
 
              The words "in the course of" refer to the time and place and 
 
         circumstances of the injury.  McClure v. Union et al.  Counties, 
 
         188 N.W.2d 283 (Iowa 1971); Crowe, 246 Iowa 402, 68 N.W.2d 63 
 
         (1955).
 
         
 
              "An injury occurs in the course of the employment when it is 
 
         within the period of employment at a place the employee may 
 
         reasonably be, and while he is doing his work or something 
 
         incidental to it.O  Cedar Rapids Comm. Sch. Dist. v. Cady, 278 
 
         N.W.2d 298,(Iowa 1979), McClure, 188 N.W.2d 283 (Iowa 1971), 
 
         Musselman, 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 
 

 
         
 
         
 
         
 
         BOELMAN V. IOWA MOLD TOOLING, INC.
 
         Page   8
 
         
 
         
 
              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.
 
         
 
              Although many injuries have a traumatic onset, no accident 
 
         is required.  Olson v. Goodyear Service Stores, 255 Iowa 1112, 
 
         1116, 125 N.W.2d 251, 254 (1963).
 
         
 
              Nor does there have to be a special incident or usual 
 
         occurrence.  Ford v. Goode, 240 Iowa 1219, 1222, 38 N.W.2d 158, 
 
         159 (1949).  A personal injury may develop gradually over an 
 
         extended period of time.  Black v. Creston Auto Co., 225 Iowa 
 
         671, 281 N.W. 189 (1938); McKeever Custom Cabinets v. Smith, 379 
 
         N.W.2d 368 (Iowa 1985).
 
         
 
         
 
              An employer is liable for all consequences which naturally
 
         and proximately flow from an injury.  Oldham v. Scofield & Welch, 
 
         222 Iowa 764, 767, 768, 266 N.W. 480, 482, 269 N.W. 925 (1936).  
 
         This applies to the situation where treatment aggravates or 
 
         increases disability and the worker is not negligent in selecting 
 
         the person who administers the treatment.  Lindeken v. Lowden, 
 
         229 Iowa 645, 295 N.W. 112 (1940).
 
         
 
              The claimant has the burden of proving by a preponderance of 
 
         the evidence that the injury of January 9, 1985 is causally 
 
         related to the disability on which he now bases his claim.  
 
         Bodish v. Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867 (1965).  
 
         Lindahl v. L. 0. Boggs, 236 Iowa 296, 18 N.W.2d 607 (1945).  A 
 
         possibility is insufficient; a probability is necessary.  Burt v. 
 
         John Deere Waterloo Tractor Works, 247 Iowa 691, 73 N.W.2d 732 
 
         (1955).  The question of causal connection is essentially within 
 
         the domain of expert testimony.  Bradshaw v. Iowa Methodist 
 
         Hospital, 251 Iowa 375, 101 N.W.2d 167 (1960).
 
         
 
              However, expert medical evidence must be considered with all 
 
         other evidence introduced bearing on the causal connection.  
 
         Burt, 247 Iowa 691, 73 N.W.2d 732.  The opinion of experts need 
 
         not be couched in definite, positive or unequivocal language.  
 
         Sondag v. Ferris Hardware, 220 N.W.2d 903 (Iowa 1974).  However, 
 
         the expert opinion may be accepted or rejected, in whole or in 
 
         part, by the trier of fact.  Id. at 907.  Further, the weight to 
 

 
         
 
         
 
         
 
         BOELMAN V. IOWA MOLD TOOLING, INC.
 
         Page   9
 
         
 
         
 
         be given to such an opinion is for the finder of fact, and that 
 
         may be affected by the completeness of the premise given the 
 
         expert and other surrounding circumstances.  Bodish, 257 Iowa 
 
         516, 133 N.W.2d 867.  See also Musselman, 261 Iowa 352, 154 
 
         N.W.2d 128 (1967).
 
         
 
              An employer takes an employee subject to any active or 
 
         dormant health impairments, and a work connected injury which 
 
         more than slightly aggravates the condition is considered to be a 
 
         personal injury.  Ziegler v. United States Gypsum Co., 252 Iowa 
 
         613, 620, 106 N.W.2d 591 (1960), and cases cited.
 
         
 
              While a claimant is not entitled to compensation for the 
 
         results of a preexisting injury or disease, the mere existence at 
 
         the time of a subsequent injury is not a defense.  Rose v. John 
 
         Deere Ottumwa Works, 247 Iowa 900, 908, 76 N.W.2d 756, 760-761 
 
         (1956).  If the claimant had a preexisting condition or 
 
         disability that is aggravated, accelerated, worsened or lighted 
 
         up so that it results in disability, claimant is entitled to 
 
         recover.  Nicks v. Davenport Produce Co., 254 Iowa 130, 115 
 
         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, 252 Iowa 
 
         613, 620, 106 N.W.2d 591, 595 (1960).
 
              
 
              The Iowa Supreme Court cites, apparently with approval, the 
 
         C.J.S. statement that the aggravation should be material if it is 
 
         to be compensable.  Yeager v. Firestone Tire & Rubber Co., 253 
 
         Iowa 369, 112 N.W.2d 299 (1961); 100 C.J.S. Workmen's 
 
         Compensation SS555(17)a.
 
         
 
              Permanent partial disabilities are classified as either 
 
         scheduled or unscheduled.  A specific scheduled disability is 
 
         evaluated by the functional method; the industrial method is used 
 
         to evaluate an unscheduled disability.  Martin v. Skelly Oil Co., 
 
         252 Iowa 128, 133, 106 N.W.2d 95, 98 (1960,); Graves v. Eagle 
 
         Iron Works, 331 N.W.2d 116 (Iowa 1983); Simbro v. DeLong's 
 
         Sportswear, 332 N.W.2d 886, 887 (Iowa 1983).
 
         
 
              If claimant has an impairment to the body as a whole, an 
 
         industrial disability has been sustained.  Industrial disability 
 
         was defined in Diederich v. Tri-City Railway Co. , 219 Iowa 587, 
 
         593, 258 N.W. 899, 902 (1935) as follows:  "It is therefore plain 
 
         that the legislature intended the term 'disability' to mean 
 
         'industrial disability' or loss of earning capacity and not a 
 
         mere 'functional disability' to be computed in the terms of 
 
         percentages of the total physical and mental ability of a normal 
 
         man."
 
         
 
              The opinion of the supreme court in Olson, 255 Iowa 1112, 
 
         1121, 125 N.W.2d 251, 257 (1963) cited with approval a decision 
 
         of the industrial commissioner for the following proposition:
 
         
 
              Disability * * * as defined by the Compensation Act 
 
              means industrial disability, although functional 
 
              disability is an element to be considered . . .    In 
 
              determining industrial disability, consideration may be 
 
              given to the injured employee's age, education, 
 

 
         
 
         
 
         
 
         BOELMAN V. IOWA MOLD TOOLING, INC.
 
         Page  10
 
         
 
         
 
              qualifications, experience and his inability, because 
 
              of the injury, to engage in employment for which he is 
 
              fitted. * * * *
 
         
 
              Claimant did establish by a preponderance of the evidence 
 
         that he sustained an injury that arose out of and in the course 
 
         of his employment with his employer.  It is true that the 
 
         claimant has had a preexisting back condition since at least 
 
         1977.  He received periodic chiropractic adjustments since 1979 
 
         for low back pain from Dr. Weisbrod through October 5, 1983.  It 
 
         was determined by the CT scan, that Dr. Whitters ordered, that 
 
         claimant did not have a herniated intervertebral disc, but rather 
 
         suffered from a congenital bilateral spondylolisthesis at L-5, 
 
         S-1.  Superimposed on this congenital condition is a man who is 
 
         five foot eleven inches tall and weighs as much as 272 pounds in 
 
         some reports, which is approximately 100 pounds more than he 
 
         should weigh for his height.  Also, he failed to tell Dr. Fuller 
 
         at the time of his preemployment physical examination that he had 
 
         suffered from previous back problems.  Also, when he reported his 
 
         back pain to Quinn on January 23, 1985, there was a conflict 
 
         between Quinn's testimony and the claimant's testimony as to 
 
         whether the pain was related to his job or something that he had 
 
         since childhood, like a congenital spondylolisthesis at L-5, S-1.  
 
         It would appear that the employer may have been led to believe 
 
         that this was not work related due to the claimant's statements 
 
         made at the time of the preemployment physical examination and 
 
         the claimant's statements to Quinn that his back pain was not 
 
         work related and, therefore, the employer did not try to control 
 
         the medical services.  Rather, Dr. Fuller told claimant to go 
 
         ahead and see his family physician.  It is also true that there 
 
         is no specific accident, incident or event that occurred when 
 
         claimant began to have trouble.  It is also true that after 
 
         treatment began claimant fell on the ice while walking on or 
 
         about February 17, 1985 and reinjured his healing back.  However, 
 
         he was walking or supposed to be walking one mile five times a 
 
         day pursuant to Dr. McCoy's orders.  Also, it is true claimant 
 
         did not report the injury until January 23, 1985 which was after 
 
         he had seen Dr. Weisbrod for pains twice on January 11, 1985 and 
 
         January 19, 1985 and Dr. Whitters once on January 23, 1985.  
 
         Also, it is noted that the employee only worked for this employer 
 
         for approximately six months from the time he started to work 
 
         until he had problems.
 
         
 
              Nevertheless, two orthopedic surgeons have reviewed 
 
         basically this same information and have asserted that the 
 
         claimant did sustain a work related injury through aggravation of 
 
         his congenital spondylolisthesis which "is made more troublesome 
 
         by his extreme overweight condition."  It would appear from the 
 
         evidence that even though the claimant was aware of the fact that 
 
         he had suffered minor back complaints in the past for which he 
 
         had taken chiropractic treatments, he did not consider these 
 
         earlier episodes to be serious in nature.  It was not until he 
 
         had pain down his legs and Dr. Whitters suspected a herniated 
 
         disc and told him it was related to heavy lifting at work on 
 
         January 23, 1985, that claimant was first aware of the fact that 
 
         his back pain was work related.  Claimant reported his back pain 
 
         to Quinn on that same day, January 23, 1985.  Quinn told him to 
 
         see Dr. Fuller if it was work related and claimant did go and see 
 
         Dr. Fuller on January 24, 1985.
 

 
         
 
         
 
         
 
         BOELMAN V. IOWA MOLD TOOLING, INC.
 
         Page  11
 
         
 
         
 
         
 
              Even though claimant is obviously aware of his weight, there 
 
         is no evidence that claimant knew that he had a congenital 
 
         spondylolisthesis at L-5, S-1 until after the CT scan on January 
 
         25, 1985.  It has been a principle of workers' compensation law 
 
         for a long time that an injury does not require an accident or 
 
         specific occurrence or event.  Furthermore, the doctrine of 
 
         cumulative injury has been confirmed by the Supreme Court of Iowa 
 
         in the McKeever case cited above.  If claimant fell while walking 
 
         and suffered a set back on his healing, it would be considered 
 
         sequelae of the same injury in that he was walking pursuant to 
 
         Dr. McCoy's orders.  There is no medical opinion by any,opposing 
 
         medical examiner or evaluator to refute, rebut, controvert or 
 
         contradict the opinions of Dr. McCoy and Dr. Walker to the effect 
 
         that the claimant suffered a work related aggravation of a 
 
         preexisting condition.  Consequently, claimant has proven by a 
 
         preponderance of the evidence that he did sustain an injury on 
 
         January 9, 1985 which arose out of and in the course of his 
 
         employment with the employer.
 
         
 
              Claimant testified that Dr. Whitters told him on January 23, 
 
         1985 not to work until further notice.  Dr. Whitters' office note 
 
         on January 28, 1985 reflects, "stay off workO. (Cl. Ex. 2).  
 
         Claimant never returned to work and was never found medically 
 
         capable of returning to the same or substantially similar 
 
         employment.  Dr. McCoy discharged claimant and gave him a 
 
         permanent impairment rating on August 27, 1985 (Cl. Ex. 5, p. 4).  
 
         If Dr. McCoy discharged claimant on August 27, 1985, that 
 

 
         
 
         
 
         
 
         BOELMAN V. IOWA MOLD TOOLING, INC.
 
         Page  12
 
         
 
         
 
         certainly strongly implies that claimant had reached the point in 
 
         Dr. McCoy's eyes that it was medically indicated that significant 
 
         improvement from the injury was no longer anticipated.  Iowa Code 
 
         section 85.34(l).  Also, the point at which disability can be 
 
         determined by the assessment of an impairment rating has been 
 
         determined as a point at which healing period can be ended.  
 
         Thomas v. William Knudson & Son, Inc., 349 N.W.2d 124 (Iowa App. 
 
         1984).  The fact that claimant fell and reinjured his back can be 
 
         considered sequelae of the original injury.  In addition, it 
 
         seems to be immaterial because when Dr. McCoy tried to return 
 
         claimant to work with a 20 pound weight restriction in April of 
 
         1985, and again with a 30 pound weight restriction in May of 
 
         1985, the employer did not have any work for him within these 
 
         restrictions (Cl. Ex. 5).  Thus, even if he had not fallen it 
 
         appears that he would not have been able to return to work on 
 
         account of the weight restrictions which appear to be due to his 
 
         overall condition rather than the fall on February 17, 1985.  The 
 
         receipt of unemployment compensation benefits will not preclude 
 
         an award of healing period benefits when hindsight makes it clear 
 
         that the employee was not able to return to his old job due to 
 
         the weight restrictions.  Schotanus v. Command Hydraulics, Inc., 
 
         I Industrial Commissioner Report 294 (1981).  Consequently, it is 
 
         determined that claimant's injury caused him to be temporarily 
 
         disabled for a period of healing from January 23, 1985 to August 
 
         27, 1985 and that he is entitled to healing period benefits for 
 
         this period of time.
 
         
 
              Both Dr. McCoy and Dr. Walker assessed that claimant had 
 
         sustained a 10 percent impairment of function of the body as a 
 
         whole due to the work related aggravation of his preexisting 
 
         bilateral spondylolisthesis.  Dr. Walker also said that claimant 
 
         had a 10 percent partial impairment prior to this injury due to 
 
         the preexisting condition.
 
         
 
              Claimant is 28 years old and is young enough to be trained 
 
         in a number of other job opportunities.  He has the advantage of 
 
         a high school education.  His past experience is somewhat limited 
 
         to general labor work and the farm work in particular seems to be 
 
         limited to irregular periodic employment.  The 30 pound weight 
 
         restriction is still in effect.  Claimant testified that he felt 
 
         that he could safely lift 40 pounds in his own personal opinion.  
 
         Nevertheless, claimant is limited because of the injury to engage 
 
         in the work for which he is best suited, i.e. manual labor and 
 
         medium heavy labor work.  This back injury, plus his continued 
 
         extreme overweight condition, and the 30 pound weight restriction 
 
         will definitely restrict claimant's ability to locate employment 
 
         in a market where employers have the ability to pick only the 
 
         cream of the crop.  However, claimant has been able to perform as 
 
         a general farm laborer both in the fall of 1985 and again in the 
 
         spring and summer of 1986.  Based on the foregoing factors, 
 
         claimant is determined to have sustained a 25 percent industrial 
 
         disability to the body as a whole.
 
         
 
              Whether the employer and insurance carrier failed to control 
 
         the medical services due to being misled as to whether there was 
 
         or was not a work related injury is not entirely clear from the 
 
         evidence presented.  They could have been misled or they may have 
 
         not been misled.  In either event, Dr. McCoy's treatment seems to 
 
         be more than reasonable and conservative when compared with the 
 

 
         
 
         
 
         
 
         BOELMAN V. IOWA MOLD TOOLING, INC.
 
         Page  13
 
         
 
         
 
         numerous procedures that Dr. Walker states were possible and that 
 
         he is still willing to do, including multiple surgeries (Cl. Ex. 
 
         12).
 
         
 
              It is questionable whether Dr. Walker's examination on 
 
         January 27, 1986 was necessary medical treatment after claimant's 
 
         own chosen physician had discharged him on August 27, 1985.  
 
         However, since Iowa Code section 85.27 provides for reasonable 
 
         medical services, rather than reasonable and necessary medical 
 
         services, and since the claimant still had some rather serious 
 
         subjective complaints of (1) throbbing pain in the low back; (2) 
 
         bilateral leg pains into the toe; (3) bending pain; and (4) that 
 
         he could not sleep on his stomach, a consulting opinion five 
 
         months later can be justified.  Consequently, the following 
 
         medical expenses are allowed under Iowa Code section 85.27.
 
         
 
         
 
         Radiologists of Mason City       1-25-85       $    159.00
 
                                          2-26-85             21.00
 
         Surgical Associates              2-12-85             35.00
 
                                          2-26-85             22.00
 
                                          3-15-85             22.00
 
                                          4-05-85             17.00
 
                                          4-19-85             22.00
 
                                          5-24-85             22.00
 
         St. Joseph's Mercy Hospital      1-25-85            439.00
 
         Bloemke Pharmacy                 2-13-85              4.85
 
                                          3-15-85             11.75
 
                                          4-03-85             11.75
 
         John R. Walker, M.D.             1-27-86            241.00
 
         North Iowa Medical Center        2-26-85             71.00
 
         Michael L. Whitters, D.O.        1-23-85             17.00
 
                   TOTAL                                  $1,116.35
 
         
 
              Claimant's list of mileage expenses for 540 miles is not 
 
         controverted by defendants and appears to be correct for the most 
 
         part.  The only discrepancy is a trip to Dr. McCoy on April 16, 
 
         1985.  Dr. McCoy's office notes do not record a trip or visit to 
 
         him on that date.  Therefore, from the total of 540 miles shown 
 
         on claimant's exhibit 16, 35 miles have been deducted and the 
 
         claimant is allowed the remaining 505 miles at the rate of $.24 
 
         per mile for a total allowance of $121.20 as reasonable necessary 
 
         mileage expense.  In addition, claimant is allowed costs of 
 
         $85.00 for a report from Dr. Walker and $25.00 for the cost of 
 
         the medical report from Dr. McCoy (Cl. Ex. 14).  Division of 
 
         Industrial Services Rule 3.43-4.33(6), formerly Iowa Industrial 
 
         Commissioner Rule 500-4.33(6)
 
         
 
                                 FINDINGS OF FACT
 
         
 
              Wherefore, based upon the evidence presented, the following 
 
         findings of fact are made:
 
         
 
              That claimant was employed by defendant employer from August 
 
         9, 1984 to January 23, 1985.
 
         
 
              That claimant began doing heavier work in the fall of 1984 
 
         handling 10 pounds to 50 pounds of sheet metal several times a 
 
         day.
 

 
         
 
         
 
         
 
         BOELMAN V. IOWA MOLD TOOLING, INC.
 
         Page  14
 
         
 
         
 
         
 
              That in January of 1985, claimant suffered pain in his low 
 
         back and saw his family physician on January 11, 1985 and again 
 
         on January 19, 1985.  Then on January 23, 1985, claimant saw Dr. 
 
         Whitters for his low back complaints but added that the pain ran 
 
         down his legs.
 
         
 
              That Dr. Whitters took the claimant off work on January 23, 
 
         1985, for a work aggravated injury caused by heavy lifting at 
 
         work.
 
         
 
              That a CT scan ordered by Dr. Whitters taken on January 25, 
 
         1985, showed no herniated intervertebral disc as Dr. Whitters 
 
         suspected, but did reveal congenital central stenosis and 
 
         congenital bilateral spondylolisthesis.
 
         
 
              That claimant was referred to and did see Dr. McCoy, an 
 
         orthopedic surgeon, on February 12, 1985 and was treated by him 
 
         until August 27, 1985 at which time claimant was discharged as 
 
         having attained maximum medical improvement.
 
              That claimant continued to have generally the same low back 
 
         pains and pain down the leg complaints after August 27, 1985 and 
 
         saw Dr. Walker on January 17, 1986.
 
         
 
              That Dr. Whitters, Dr. McCoy and Dr. Walker all found that 
 
         claimant's condition was aggravated by heavy lifting at work.  
 
         That Dr. McCoy and Dr. Walker assessed a 10 percent functional 
 
         impairment rating for the aggravation of the claimant's 
 
         congenital spondylolisthesis.
 
         
 
              That claimant encountered medical expenses as enumerated 
 
         above in the total amount of $1,116.35 and mileage expenses as 
 
         set out above in the amount of $121.20.
 
         
 
              That claimant incurred costs of $85.00 for a medical report 
 
         from Dr. Walker and $25.00 for a medical report from Dr. McCoy.
 
         
 
                                CONCLUSIONS OF LAW
 
         
 
              WHEREFORE, based upon the evidence presented and the 
 
         principles of law previously stated, the following conclusions of 
 
         law are made:
 
         
 
              That claimant sustained an injury on or about January 9, 
 
         1985 which arose out of and in the course of his employment with 
 
         the employer.
 
         
 
              That the injury was the cause of both temporary disability 
 
         and permanent disability.
 
         
 
              That the claimant is entitled to healing period benefits 
 
         from January 23, 1985 to August 27, 1985.
 
         
 
              That claimant is entitled to permanent partial disability 
 
         benefits of 25 percent of the body as a whole as industrial 
 
         disability commencing on August 28, 1985.
 
         
 
              That claimant is entitled to recover medical expenses in the 
 
         amount of $1,116.35 as enumerated above.
 

 
         
 
         
 
         
 
         BOELMAN V. IOWA MOLD TOOLING, INC.
 
         Page  15
 
         
 
         
 
         
 
              That the defendants are entitled to a credit of $674.88 for 
 
         medical expenses that they have already paid under the employee 
 
         non-occupational group health plan as stipulated in the 
 
         prehearing order.
 
         
 
              That claimant is entitled to medical mileage expenses in the 
 
         amount of $121.20 as enumerated above.
 
         
 
              That the claimant is entitled to costs in the amount of 
 
         $85.00 for a medical report from Dr. Walker and $25.00 for a 
 
         medical report from Dr. McCoy.
 
              That defendants are entitled to a credit in the amount of 
 
         $1,040.00 for disability income already paid to the claimant 
 
         under an employee non-occupational health plan as stipulated in 
 
         the prehearing report.
 
         
 
                                      ORDER
 
         
 
              THEREFORE, IT IS ORDERED:
 
         
 
              That defendants pay to the claimant thirty-one point zero 
 
         (31.0) weeks of healing period benefits from January 23, 1985 to 
 
         August 27, 1985 at the rate of one hundred seventy-seven and 
 
         no/100 dollars ($177.00) per week in the total amount of five 
 
         thousand four hundred eighty-seven and no/100 dollars 
 
         ($5,487.00).
 
         
 
              That defendants are entitled to a credit in the amount of 
 
         one thousand forty and no/100 dollars ($1,040.00) for income 
 
         disability payments previously made as stipulated.
 
         
 
              That defendants pay to claimant one hundred twenty-five 
 
         (125) weeks of permanent partial disability benefits commencing 
 
         on August 28, 1985 for a twenty-five percent (25%) industrial 
 
         disability of the body as a whole at the rate of one hundred 
 
         seventy-seven and no/100 dollars ($177.00) per week in the total 
 
         amount of twenty-two thousand one hundred twenty-five and no/100 
 
         dollars ($22,125. 00).
 
         
 
              That defendants pay the accrued amounts in a lump sum.
 
         
 
              That interest will accrue pursuant to Iowa Code section 
 
         85.30.
 
         
 
              That the defendants pay to claimant or the provider of 
 
         services the medical expenses enumerated above in the total 
 
         amount of one thousand one hundred sixteen and 35/100 dollars 
 
         ($1,116.35) less the credit of six hundred seventy-four and 
 
         88/100 dollars ($674.88) as stipulated in the prehearing report.
 
         
 
              That the defendants pay to claimant one hundred twenty-one 
 
         and 20/100 dollars ($121.20) in medical mileage expenses as set 
 
         out above.
 
         
 
              That the defendants pay the costs of this action pursuant to 
 
         Division of Industrial Services Rule 343-4.33, formerly Iowa 
 
         Industrial Commissioner Rule 500-4.33 and that these costs 
 
         include the medical report of Dr. Walker in the amount of 
 

 
         
 
         
 
         
 
         BOELMAN V. IOWA MOLD TOOLING, INC.
 
         Page  16
 
         
 
         
 
         eighty-five and no/100 dollars ($85.00) and the medical report of 
 
         Dr. McCoy in the amount of twenty-five and no/100 dollars $25.00 
 
         ).
 
         
 
              That the defendants file claim activity reports as required 
 
         by Division of Industrial Services Rule 343-3.1, formerly Iowa 
 
         Industrial Commissioner Rule 500-3.1.
 
         
 
              Signed and filed this 23rd day of January, 1987.
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
                                            WALTER R. McMANUS
 
                                            DEPUTY INDUSTRIAL COMMISSIONER
 
         
 
         Copies To:
 
         
 
         Mr. Robert S. Kinsey, III
 
         Attorney at Law
 
         214 N. Adams
 
         P. 0. Box 679
 
         Mason City, Iowa 50401
 

 
         
 
         
 
         
 
         BOELMAN V. IOWA MOLD TOOLING, INC.
 
         Page  17
 
         
 
         
 
         
 
         Mr. Jon Stuart Scoles
 
         Attorney at Law
 
         30-4th St. N.W.
 
         P. 0. Box 1953
 
         Mason City, Iowa 50401
 
         
 
         
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                                   1106; 1108.50; 1402.21
 
                                                   1402.30; 1402.40; 1802
 
                                                   1803; 2206; 2209
 
                                                   Filed January 23, 1987
 
                                                   WALTER R. McMANUS, JR.
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         BRENT E. BOELMAN,
 
         
 
              Claimant,
 
         
 
         VS.
 
                                                      FILE NO. 794825
 
         IOWA MOLD TOOLING, INC.,
 
                                                   A R B I T R A T I 0 N
 
              Employer,
 
                                                      D E C I S I 0 N
 
         and
 
         
 
         TRAVELERS INSURANCE COMPANY,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         1106; 1108.50; 1402.21; 1402.30; 1402.40; 2206; 2209
 
         
 
              Cumulative effect of lifting 10 pounds to 50 pounds of steel 
 
         several times daily caused a cumulative injury without specific 
 
         accident or onset by aggravating a preexisting congenital 
 
         spondylolisthesis of a 28 year old man who was about 100 pounds 
 
         overweight at 5 foot 11 inches tall and weighed as much as 272 
 
         pounds.
 
         
 
         1802
 
         
 
              Awarded 31 weeks of healing period as per medical reports.
 
         
 
         1803
 
         
 
              Treating physician and evaluating physician both assessed a 
 
         10% permanent impairment rating.  Claimant was a high school 
 
         graduate but a mediocre student not academically or financially 
 
         equipped for advanced education.  His only work experience was 
 
         heavy general labor and farm labor.  Doctor placed him under an 
 
         indefinite 30 pound weight restriction and said he probably could 
 
         never return to heavy work again.  Awarded 25% permanent partial 
 
         disability.
 
 
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         ED MADISON,
 
         
 
              Claimant,
 
         
 
         VS.
 
                                                    File No. 794964
 
         STURGEON TRUCK LINES, INC.,
 
                                                      A P P E A L
 
              Employer,
 
                                                    D E C I S I 0 N
 
         and
 
         
 
         IOWA SMALL BUSINESS EMPLOYERS
 
         GROUP,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         
 
                              STATEMENT OF THE CASE
 
         
 
              Claimant appeals from an arbitration decision denying all 
 
         compensation because he failed to establish that he sustained an 
 
         injury arising out of and in the course of his employment.
 
         
 
              The record on appeal consists of the transcript of the 
 
         arbitration hearing and defendants' exhibits 1 through 6.  Only 
 
         claimant has filed a brief on appeal.
 
         
 
                                      ISSUE
 
         
 
              The issue on appeal can be stated as whether claimant 
 
         sustained an injury arising out of and in the course of 
 
         employment when claimant voluntarily assisted another truck 
 
         driver not employed by defendant employer.
 
         
 
                              REVIEW OF THE EVIDENCE
 
         
 
              The arbitration decision adequately and accurately reflects 
 
         the pertinent evidence and it will not be set forth herein.
 
         
 
                                  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 May 22, 1985 which arose 
 
         out of and in the course of his employment.  McDowell v. Town 
 

 
         
 
         
 
         
 
         MADISON V. STURGEON TRUCK LINES, INC.
 
         Page   2
 
         
 
         of Clarksville, 241 N.W.2d 904 (Iowa 1976); Musselman v. 
 
         Central Telephone Co., 261 Iowa 352, 154 N.W.2d 128 (1967).
 
         
 
              The injury must both arise out of and be in the course of 
 
         the employment.  Crowe v. DeSoto Consol. Sch. Dist., 246 Iowa 
 
         402, 68 N.W.2d 63 (1955) and cases cited at pp. 405-406 of the 
 
         Iowa Report.  See also Sister Mary Benedict v. St. Mary's Corp. 
 
         255 Iowa 847, 124 N.W.2d 548 (1963) and Hansen v. State of 
 
         Iowa, 249 Iowa 1147, 91 N.W.2d 555 (1958).
 
         
 
              The words "out of" refer to the cause or source of the 
 
         injury.  Crowe, 246 Iowa 402, 68 N.W.2d 63.
 
         
 
               The words "in the course of" refer to the time and place 
 
         and circumstances of the injury.  McClure v. Union et al. 
 
         Counties, 188 N.W.2d 283 (Iowa 1971); Crowe, 246 Iowa 402, 68 
 
         N.W.2d 63.
 
         
 
              "An injury occurs in the course of the employment when it 
 
         is within the period of employment at a place the employee may 
 
         reasonably be, and while he is doing his work or something 
 
         incidental to it."  Cedar Rapids Comm. Sch. Dist. v. Cady, 278 
 
         N.W.2d 298 (Iowa 1979), McClure, 188 N.W.2d 283, Musselman, 261 
 
         Iowa 352, 154 N.W.2d 128.
 
         
 
              Whenever an employee leaves the line of duty, compensation 
 
         coverage ceases.  Walker v. Speeder Mach. Corp., 213 Iowa 1134, 
 
         240 N.W. 725 (1932).  However, to disqualify the employee from 
 
         compensation coverage, the departure from the usual place of 
 
         employment must amount to an abandonment of the employment or 
 
         be an act wholly foreign to the usual work.  Crowe, 246 Iowa 
 
         402, 68 N.W.2d 63.  The mere fact that an employee happens to 
 
         be a short distance removed from the actual situation of his 
 

 
         
 
         
 
         
 
         MADISON V. STURGEON TRUCK LINES, INC.
 
         Page   3
 
         
 
         work does not prevent recovery in a compensation proceeding.  
 
         Bushing v. Iowa R. & L. Co., 208 Iowa 1010, 226 N.W. 719 
 
         (1929).  If an employee deviates sufficiently from the line of 
 
         duty so that his actions are foreign to the employer's line of 
 
         work, injuries which occur to the employee may be outside the 
 
         course of employment.  Sheerin v. Holin Company, 380 N.W.2d 415 
 
         (Iowa 1986).  In determining whether an employee was acting in 
 
         the course of his employer's business, the question of whether 
 
         the activity was to the benefit of the employer is a relevant 
 
         factor.  Briar Cliff College v. Campolo, 360 N.W.2d 91 (Iowa 
 
         1984).
 
         
 
              In Yates v. Humphrey, 218 Iowa 792, 255 N.W. 639 (1984), 
 
         the supreme court held that an employee was in the course of 
 
         his employment when he sustained an injury while, out of 
 
         decency and courtesy, he assisted a nonemployee, who was 
 
         rightfully on the employer's premises during the employee's 
 
         working hours, to haul away cinders.  The court found that the 
 
         removal of the cinders was advantageous to the employer:
 
         
 
              While the cinders were undoubtedly of some benefit to 
 
              Buck and other patrons who hauled them away, it appears 
 
              in the evidence it was of benefit to the appellant 
 
              plant that such cinders should be removed, and that, if 
 
              such patrons had not removed them, the appellant owner 
 
              of the plant would have been put to the trouble and 
 
              expense of removing them.  It is quite apparent, 
 
              therefore, that the removal of the cinders from the 
 
              plant was of benefit to the appellant owner thereof.
 
         
 
         Id. at 796.
 
         
 
         The court also found that a custom of helpfulness existed among 
 
         defendant's employees:
 
         
 
              The manager of the plant testified that, while he had 
 
              not given any of the employees specific orders in 
 
              regard to assisting persons who were removing the 
 
              cinders, and would not say that this was a specific 
 
              duty of employees, the rendering of assistance to 
 
              patrons was a matter of courtesy that was expected of 
 
              the employees, and that he would expect a hired man at 
 
              the plant to help a man if he needed it.  He also said 
 
              that such was the habit and custom of the people and 
 
              had always been customary around the plant.
 
         
 

 
         
 
         
 
         
 
         MADISON V. STURGEON TRUCK LINES, INC.
 
         Page   4
 
         
 
              We think it sufficiently appears in the evidence that 
 
              not only the habits and customs of the people of the 
 
              community generally, but the general nature of the work 
 
              performed by the employees in the appellant's plant and 
 
              the general spirit of helpfulness toward patrons of the 
 
              plant, were such that the employees had reasonable 
 
              grounds for believing, and that they understood, that 
 
              their work was not limited strictly to the performance 
 
              of specific duties, but that they were expected to 
 
              perform such acts of courtesy and helpfulness toward 
 
              patrons of the plant as would promote good will and 
 
              redound to the benefit of their employer.
 
         
 
         Id.
 
         
 
                                     ANALYSIS
 
         
 
              Claimant relies on the holding in the Yates case to support 
 
         his contention that he was in the course of his employment when 
 
         he voluntarily assisted another truck driver in moving trailer 
 
         axles.  Claimant contends that, as in Yates, it is customary for 
 
         truck drivers to help each other and that such is beneficial to 
 
         the employer.  As the deputy noted, any benefit to the employer 
 
         is simply too attenuated to support claimant's contention that 
 
         his activity was in the course of his employment.  The court in 
 
         Yates found an apparent benefit to the employer in having 
 
         cinders hauled away from the employer's plant.  Yates at 796.  No 
 
         such apparent benefit exists in this case.
 
         
 
              Yates is distinguishable from this case in that the injury 
 
         to the employee in Yates was sustained on the employer's 
 
         premises.  Id. at 793.  Claimant in this case was not on his 
 
         employerOs premises.  At the time of the injury, claimant's truck 
 
         was docked and was being loaded by employees of Arts Metals, Inc.  
 
         The truck belonging to the driver claimant helped, had pulled 
 
         away from the loading dock area and was not blocking claimant's 
 
         truck.   To hold as claimant contends would create a liability 
 
         for employers which could not reasonably be anticipated by them.  
 
         The greater weight of evidence supports the deputy's finding that 
 
         claimant did not sustain an injury arising out of and in the 
 
         course of employment.
 
         
 
         
 
                                 FINDINGS OF FACT
 
         
 
              1.  Claimant started working for Sturgeon or Barr-Nunn on 
 
         November 23, 1984.
 
         
 
              2.  Claimant was employed by Barr-Nunn on May 22, 1985.
 
         
 
              3.  On May 22, 1985, there was no business relationship 
 
         between Barr-Nunn and Roach Truck Lines, Inc., of Madison, 
 
         Wisconsin.
 
         
 
              4.  David R. Meyer is a self-employed truck driver who 
 
         leased his equipment to Roach.
 
         
 
              5.  Claimant sustained an injury on May 22, 1985 while 
 
         assisting Meyer in moving the axles on Meyer's trailer.
 
         
 

 
         
 
         
 
         
 
         MADISON V. STURGEON TRUCK LINES, INC.
 
         Page   5
 
         
 
              6.  Meyer did not ask claimant for assistance on May 22, 
 
         1985; that is, claimant volunteered to assist Meyer.
 
         
 
              7.  Claimant did not contact Barr-Nunn to ask directives as 
 
         to whether he should assist Meyer.
 
         
 
              8.  Barr-Nunn did not have a policy on May 22, 1985 as to 
 
         whether or how its drivers assist other drivers.
 
         
 
              9.  The Meyer vehicle was out of the loading dock area and 
 
         was not blocking claimant from leaving on his own.
 
         
 
             10.  Claimant was not receiving any assistance from Meyer or 
 
         Roach to load or operate his vehicle on May 22, 1985.
 
         
 
                                CONCLUSION OF LAW
 
         
 
              Claimant failed to establish by a preponderance of the 
 
         evidence that he sustained an injury on May 22, 1984 that arose 
 
         out of and in the course of his employment with Barr-Nunn or 
 
         Sturgeon Truck Lines, Inc.
 
         
 
              WHEREFORE, the decision of the deputy is affirmed.
 
         
 
         
 
                                      ORDER
 
         
 
              THEREFORE, it is ordered:
 
         
 
              That claimant take nothing from this proceeding.
 
         
 
              That claimant pay all costs of this action.
 
         
 
         
 
              Signed and filed this 28th day of April, 1988.
 
         
 
         
 
         
 
         
 
         
 
         
 
                                                   DAVID E. LINQUIST
 
                                                   INDUSTRIAL COMMISSIONER
 
         
 
         Copies To:
 
         
 
         Mr. Channing L. Dutton
 
         Attorney at Law
 
         West Towers Office
 
         1200 35th St., Suite 500
 
         West Des Moines, 50265
 
         
 
         Mr. Thomas J. Logan
 
         Attorney at Law
 
         Terrace Center, Suite 111
 
         2700 Grand Avenue
 
         Des Moines, Iowa 50312
 
 
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                                     1100; 1101; 1107;
 
                                                     1402.3
 
                                                     Filed 4-28-88
 
                                                     David E. Linquist
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         ED MADISON,
 
         
 
              Claimant,
 
                                                     File No.  794964
 
         VS.
 
         
 
         STURGEON TRUCK LINES, INC.,                    A P P E A L
 
         
 
              Employer,                               D E C I S I 0 N
 
         
 
         and
 
         
 
         IOWA SMALL BUSINESS EMPLOYERS
 
         GROUP,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         
 
         1100; 1402.3
 
         
 
              Claimant failed to establish that he sustained an injury 
 
         arising out of and in the course of his employment when he 
 
         voluntarily assisted another truck driver in moving trailer 
 
         axles.  The driver claimant attempted to assist was not an 
 
         employee of defendant.
 
         
 
         1101
 
         
 
              Claimant's contention that, as in Yates v. Humphrey, 218 
 
         Iowa 792, 255 N.W. 639 (1934), it is customary for truck drivers 
 
         to help each other and that such is beneficial to the employer 
 
         was rejected.  As the deputy noted, any benefit to the employer 
 
         is simply too attenuated to support claimant's contention that 
 
         his activity was in the course of his employment.
 
         
 
         1107
 
         
 
              It was also found that claimant was not on his employerOs 
 
         premises at the time of the injury.
 
 
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                   BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         JERRY W. McCLURE,
 
         
 
              Claimant,                               File No. 795095
 
         
 
         vs.                                            A P P E A L
 
         
 
         AUDUBON BROOKHISER TRANSPORT                 D E C I S I O N
 
         INC.,
 
                                                        F I L E D
 
              Employer,
 
                                                       DEC 26 1989
 
         and
 
                                               IOWA INDUSTRIAL 
 
         COMMISSIONER
 
         HAWKEYE-SECURITY INSURANCE
 
         COMPANY,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
                           STATEMENT OF THE CASE
 
         
 
              Defendants appeal from a ruling denying defendants' motion 
 
         for rehearing and for reconsideration and granting claimant's 
 
         motion for summary judgment.
 
         
 
              The record on appeal consists of the deputy industrial 
 
         commissioner's ruling on defendants' motion for rehearing and 
 
         reconsideration and the agency's file on the matter.  Defendants 
 
         filed a brief on appeal.
 
         
 
                                  ISSUES
 
         
 
              Defendants state the issues on
 
         
 
              1.  Whether a wheelchair is an appliance or a permanent 
 
         prosthetic device.
 
         
 
              2.  Whether the defendants are liable to furnish claimant a 
 
         replacement wheelchair which wore out through ordinary wear and 
 
         tear.
 
         
 
                           REVIEW OF THE EVIDENCE
 
         
 
              The ruling on the motion for summary judgment filed November 
 
         10, 1988 adequately and accurately reflects the pertinent 
 
         evidence and it will not be reiterated herein.
 
         
 
                              APPLICABLE LAW
 
         
 
              In ruling on a motion for a summary judgment, the court's 
 
                                                
 
                                                         
 
         function is to determine whether such a genuine issue exists, not 
 
         to decide the merits of one which does.  See, Bauer v. Stern 
 
         Finance Company, 169 N.W.2d 850, 853 (Iowa 1969).
 
         
 
              Iowa Code section 85.27 provides in pertinent part:
 
         
 
                   The employer, for all injuries compensable under this 
 
              chapter or chapter 85A, shall furnish reasonable surgical, 
 
              medical, dental, osteopathic, chiropractic, podiatric, 
 
              physical rehabilitation, nursing, ambulance and hospital 
 
              services and supplies therefor and shall allow reasonably 
 
              necessary transportation expenses incurred for such 
 
              services. The employer shall also furnish reasonable and 
 
              necessary crutches, artificial members and appliances but 
 
              shall not be required to furnish more than one set of 
 
              permanent prosthetic devices.
 
         
 
                   ....
 
         
 
                   When an artificial member or orthopedic appliance, 
 
              whether or not previously furnished by the employer, is 
 
              damaged or made unusable by circumstances arising out of and 
 
              in the course of employment other than through ordinary wear 
 
              and tear, the employer shall repair or replace it.
 
         
 
              Division of Industrial Services Rule 343-8.5(85) provides:
 
         
 
                   Appliances are defined as hearing aids, corrective 
 
              lenses, orthodontic devices, dentures, orthopedic braces, or 
 
              any other artificial device used to provide function or for 
 
              therapeutic purposes.
 
         
 
                   Appliances which are for the correction of a condition 
 
              resulting from an injury or appliances which are damaged or 
 
              made unusable as a result of an injury or avoidance of an 
 
              injury are compensable under Iowa Code section 85.27.
 
         
 
              In a decision of 85.27 benefits, the deputy industrial 
 
         commissioner determined that special shoes prescribed for 
 
         claimant and built for him to correct a compensable injury, were 
 
         an appliance.  In addition, defendant was liable to furnish 
 
         replacement shoes which wore out through ordinary wear and tear. 
 
         Giese v. Capital Foods, III Iowa Industrial Commissioner Report 
 
         95 (1983).
 
         
 
                                ANALYSIS
 
         
 
              Defendants raised an issue of genuine fact in their motion 
 
         for rehearing which merits determination.  The factual issue 
 
         raised is whether claimant's wheelchair wore out through ordinary 
 
         wear and tear, or if the wheelchair was made unusable as a result 
 
         of claimant's current employment.  Since this issue was not 
 
         originally before the deputy, claimant's motion for summary 
 
         judgment is overruled.  An evidentiary hearing is necessary to 
 
         determine the factual issues of the case.
 
                                                
 
                                                         
 
         
 
              The deputy was correct in determining that a wheelchair is 
 
         an orthopedic appliance and not a prosthetic device.  A 
 
         prosthetic device is an artificial device designed to replace a 
 
         missing part of a human body.  As a wheelchair does not replace a 
 
         missing body part, it is not a prosthetic device.  On the other 
 
         hand, a wheelchair is a device designed to provide the claimant 
 
         with mobility, the former function of his legs, and is an 
 
         orthopedic appliance.
 
         
 
              The second issue is whether defendants are required to 
 
         replace an orthopedic appliance which wore out through ordinary 
 
         wear and tear.  As stated, a factual dispute exists as to whether 
 
         claimant's wheelchair wore out as a result of ordinary wear and 
 
         tear or was made unusable due to claimant's current employment.
 
         
 
              If the deputy determines that claimant's wheelchair wore out 
 
         through ordinary wear and tear, then defendants are required to 
 
         repair or replace it.  Claimant's wheelchair is designed to 
 
         relieve the claimant of the physical effect of a compensable 
 
         injury, but for claimant's employment with defendants, he would 
 
         not be in the wheelchair.  Section 85.27 does limit an employer's 
 
         liability in regard to permanent prosthetic devices.  However, 
 
         according to Iowa Code section 85.27, the employer is still 
 
         required to furnish reasonable and necessary crutches, artificial 
 
         members and appliances that wear out through ordinary wear and 
 
         tear.  As long as claimant's wheelchair is necessary, defendants 
 
         are required to repair and replace claimant's wheelchair that has 
 
         worn out through ordinary wear and tear.
 
         
 
              On the other hand, if claimant's wheelchair was made unusable 
 
         by circumstances arising out of and in the course of his current 
 
         employment, defendants are not required to repair or replace that 
 
         wheelchair.  It is clear that the last paragraph of section 85.27 
 
         refers to claimant's current employer and not defendants.  Section 
 
         85.27 requires the claimant's current employer repair or replace 
 
         an orthopedic appliance made unusable by his current employment 
 
         rather than ordinary wear and tear.  On remand, the deputy should 
 
         determine whether claimant's wheelchair was made unusable by 
 
         circumstance other than ordinary wear and tear, and if so, 
 
         defendants are not required to replace that wheelchair.  
 
         Defendants are not relieved of their liability to furnish claimant 
 
         additional wheelchairs that wear out through ordinary wear and 
 
         tear.
 
         
 
                           FINDINGS OF FACT
 
         
 
              1.  Claimant is confined to a wheelchair as a result of a 
 
         compensable injury.
 
         
 
              2.  Claimant's wheelchair is designed to provide the 
 
         claimant with mobility, the former function of his legs.
 
         
 
                            CONCLUSION OF LAW
 
         
 
                                                
 
                                                         
 
              A wheelchair is an orthopedic appliance.
 
         
 
              An evidentiary hearing is necessary to determine the cause 
 
         of claimant's wheelchair wearing out.
 
         
 
              WHEREFORE, the decision of the deputy is reversed.
 
         
 
                                      ORDER
 
         
 
              THEREFORE, it is ordered:
 
         
 
              That claimant's motion for summary judgment is overruled.
 
         
 
              That this case is placed back into assignment for 
 
         prehearing.
 
         
 
         
 
              Signed and filed this 26th day of December, 1989.
 
         
 
         
 
         
 
         
 
         
 
         
 
                                               DAVID E. LINQUIST
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
                                                
 
                                                         
 
                                            INDUSTRIAL COMMISSIONER
 
         
 
         Copies To:
 
         
 
         Mr. J. W. McGrath
 
         Attorney at Law
 
         Fourth & Dodge St.
 
         P.O. Box 453
 
         Keosauqua, Iowa  52565
 
         
 
         Mr. A. Roger Witke
 
         Mr. Thomas Henderson
 
         Attorney at Law
 
         1300 First Interstate Bank Bldg.
 
         Des Moines, Iowa  50309
 
         
 
         
 
         
 
         
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
                                                
 
 
            
 
 
 
                 
 
 
 
 
 
                                            2504 - 2906
 
                                            Filed December 26, 1989
 
                                            David E. Linguist
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         JERRY W. McCLURE,
 
         
 
              Claimant,
 
         
 
         vs. 
 
                                                   File No. 795095
 
         AUDUBON BROOKHISER TRANSPORT
 
         INC.,
 
                                                     A P P E A L
 
              Employer,
 
                                                    D E C I S I 0 N
 
         and
 
         
 
         HAWKEYE-SECURITY INSURANCE
 
         COMPANY,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         2504
 
         
 
              A wheelchair is an orthopedic appliance.  It provides 
 
         claimant with mobility, the former function of his legs.  In 
 
         addition, Iowa Code section 85.27 requires defendants to repair 
 
         or replace claimant's wheelchair that wears out as a result of 
 
         ordinary wear and tear.  However, if claimant's wheelchair was 
 
         made unusable as a result of his current employment, claimant's 
 
         current employer may be required to repair or replace the 
 
         wheelchair.  The defendants are not relieved of their obligation 
 
         to repair or replace claimant's wheelchair that has worn out as a 
 
         result of ordinary wear and tear.
 
         
 
         2906
 
         
 
              A factual issue exists which was not before the deputy, 
 
         therefore, summary judgment is overruled and the case scheduled 
 
         for prehearing.
 
         
 
         
 
         
 
 
 
 
 
 
 
 
 
 
 
 
 
                                                
 
 
        
 
 
 
 
 
                       BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
                                                
 
        BRUCE A. ANDERSEN,
 
        
 
            Claimant,
 
        
 
        vs.                              File No. 795220
 
        
 
        FARMLAND FOODS,                    A P P E A L
 
        
 
            Employer,                   D E C I 5 I O N
 
        
 
        and
 
        
 
        AETNA CASUALTY & SURETY CO.,
 
        
 
            Insurance Carrier,
 
        
 
            Defendants.
 
        
 
        
 
                                 STATEMENT OF THE CASE
 
        
 
        Defendants appeal from an arbitration decision awarding claimant 
 
        62.5 weeks of permanent partial disability and an approval of 50 
 
        weeks of vocational rehabilitation benefits.
 
        
 
        The record on appeal consists of the transcript of the 
 
        arbitration hearing and join exhibits A through J. Both parties 
 
        filed briefs on appeal.
 
        
 
                                      ISSUES
 
        
 
        The issues on appeal are whether the deputy erred in approving 50 
 
        weeks of vocational rehabilitation benefits and the extent of the 
 
        disability of claimant's right upper extremity.
 
                                                
 
                                 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 contained In the arbitration decision are 
 
        appropriate to the issues and evidence.
 
        
 
        
 
                                      ANALYSIS
 
        
 
        The first issue to be resolved is whether the approval of 50 
 
        weeks of vocational rehabilitation benefits was correct. The 
 
        deputy making the arbitration decision correctly noted.
 
        ANDERSEN V. FARMLAND FOODS
 
        Page 2
 
        
 
        
 
        a lack of jurisdiction to change another deputy's decision. The 
 
        resolution of this issue is now proper in this appeal decision. 
 
        The defendants argue that they should have been granted a hearing 
 
        on entitlement to the benefits and the award of benefits exceeds 
 
        the maximum allowed by statute. Claimant concedes in his appeal 
 
        brief that he is only due 26 weeks. Defendants and claimant are 
 

 
        
 
 
 
 
 
        correct that the maximum allowable benefits is 26 weeks. See Iowa 
 
        Code section 85.70.
 
        
 
        Division of Industrial Services Rule 343-4.4(86) provides: "A 
 
        hearing shall not be held in proceedings under 4.1(8), (9), (10), 
 
        (11), (12), unless requested in writing by the petitioner in the 
 
        original notice or petition or by the respondent within ten days 
 
        following the time allowed by these rules for appearance." 
 
        Division of Industrial Services Rule 343-4.1(8) refers to 
 
        contested case proceedings for vocational rehabilitation 
 
        benefits. The record in this matter reveals claimant's 
 
        application for rehabilitation benefits filed July 29, 1987 was 
 
        resisted by defendant employer. The record does not reveal that 
 
        defendants ever complied with rule 4.4 by requesting a hearing in 
 
        writing on entitlement to benefits. Defendants' failure to do so 
 
        is now fatal to its appeal on this issue. Defendants did not 
 
        request a hearing and there is no evidence that they can now rely 
 
        upon to refute the deputy's award of benefits. The extent of the 
 
        benefits cannot, however, exceed the maximum of 26 weeks allowed 
 
        by the statute. There is evidence that claimant has been enrolled 
 
        in a tool and die course of study for at least two quarters of a 
 
        seven quarter program.
 
        
 
        The next issue to be resolved is the extent of the disability of 
 
        claimant's right upper extremity. Horst G. Blume, M.D., who 
 
        examined claimant on March 31, 1986 gave an impairment rating "to 
 
        the right hand and right lower arm of approximately 2~%." (Joint 
 
        Exhibit A, page 10) Thomas P. Ferlic, M.D., the treating 
 
        physician and the doctor who performed the surgeries on claimant, 
 
        gave claimant two different impairment ratings of the upper 
 
        extremity. The first rating on March 4, 1987 was 20 percent of 
 
        the hand which converts to 18 percent of the upper extremity. The 
 
        second rating was given after he had performed surgery to release 
 
        the joint capsule dorsally and lengthen the collateral ligaments, 
 
        both medially and laterally, of the metacarpophalangeal joint, 
 
        fifth finger. When Dr. Ferlic rated the impairment after the 
 
        surgery which was performed on April 7, 1987, he indicated that 
 
        "the patient's impairment rating has lowered. I feel that the 
 
        impairment is 15% of his hand." (Jt. Ex. A, p. 2) Dr. Ferlic 
 
        rated claimant at 14 percent of the upper extremity. The surgery 
 
        was apparently only somewhat successful as Dr. Ferlic's 
 
        impairment rating had been lowered only slightly after the 
 
        surgery. The evaluations of impairments are guides for 
 
        evaluations of impairment. It is the duty of this agency to 
 
        determine the extent of claimant's permanent partial disability. 
 
        It is undisputed that the medical evidence in the case gives 
 
        claimant ratings of impairment between
 
        
 
        ANDERSEN V. FARMLAND FOODS
 
        Page 3
 
        
 
        
 
        14 and 25 percent. Claimant testified to the problems he has with 
 
        his arm. The deputy made personal observations of claimant. The 
 
        deputy's conclusion, which was based in part on observation, was 
 
        consistent with and corroborated by the medical evidence. The 
 
        deputy correctly concluded that claimant had a permanent 
 
        disability of 25 percent of the right upper extremity.
 
        
 
        One other matter should be discussed. In a letter filed December 
 
        29, 1987, counsel for the claimant indicated that additional 
 
        permanent partial disability benefits should commence September 
 
        16, 1986. Claimant's counsel indicated that the stipulation on 
 
        the prehearing report and order had, through a typographical 
 
        error, erroneously referred to another date and that defendants' 
 
        counsel agreed the date should be corrected. That letter was 
 

 
        
 
 
 
 
 
        received after the arbitration decision and there is no record of 
 
        defendants' objection to substitution of the September 16, 1986 
 
        date. The stipulated date should have read September 16, 1986 and 
 
        that date will be used in making the award.
 
        
 
                                 FINDINGS OF FACT
 
        
 
        1. Claimant sustained an injury which arose out of and in the 
 
        course of his employment May 24, 1985, when a hind foot saw 
 
        almost severed his right arm between the wrist and elbow.
 
        
 
        2. Claimant was hospitalized and underwent three surgical 
 
        procedures, including two for the release of joint contracture, 
 
        small finger, right hand.
 
        
 
        3. Claimant has limited wrist movement in all directions, cannot 
 
        open his hand completely, has an extended fifth finger of the 
 
        right hand.
 
        
 
        4. Claimant continues to suffer pain and swelling at the situs of 
 
        the injury.
 
        
 
        5. Claimant has a permanent impairment to his upper right 
 
        extremity as a result of his injury.
 
        
 
        6. Claimant has been rated from 14 to 25 percent impairment of 
 
        the right upper extremity by treating and evaluation physicians.
 
        
 
        7. Claimant has a 25 percent permanent partial disability to his 
 
        upper right extremity.
 
        
 
        8. Claimant discontinued employment with Farmland food on the 
 
        advice of his physician and because of his injury.
 
        
 
        9. Claimant is currently attending Iowa western community College 
 
        taking a course of study in tool and die making.
 
        
 
        ANDERSEN V. FARMLAND FOODS
 
        Page 4
 
        
 
        
 
        10. Claimant's application for section 85.70 vocational 
 
        rehabilitation supplemental benefits was approved August 5, 1987 
 
        by a deputy other than the deputy who made the arbitration 
 
        decision.
 
        
 
        11. Claimant is entitled to 26 weeks of vocational rehabilitation 
 
        benefits.
 
        
 
        12. Claimant has been paid 38.149 weeks of permanent partial 
 
        disability benefits.
 
        
 
                                 CONCLUSIONS OF LAW
 
        
 
        Claimant has proved by the greater weight of evidence that he is 
 
        entitled to 26 weeks of vocational rehabilitation benefits.
 
        
 
        Claimant has proved by the greater weight of evidence that the 
 
        injury sustained on May 24, 1985 was the cause of 25 percent 
 
        disability of the right upper extremity.
 
        
 
        WHEREFORE, the decision of the deputy is affirmed and modified.
 
        
 
                                      ORDER
 
        
 
        THEREFORE, it is ordered:
 

 
        
 
 
 
 
 
        
 
        That defendants pay claimant sixty-two point five (62.5) weeks of 
 
        permanent partial disability benefits at a rate of two hundred 
 
        twenty-seven and 79/100 dollars ($227.79) per week commencing 
 
        September 16, 1986.
 
        
 
        That disability benefits that have accrued shall be paid in a 
 
        lump sum together with statutory interest thereon pursuant to 
 
        Iowa Code section 85.30.
 
        
 
        That defendants receive credit for all permanent partial 
 
        disability benefits previously paid.
 
        
 
        That defendants pay claimant twenty-six (26) weeks of vocational 
 
        rehabilitation benefits.
 
        
 
        That a final report shall be filed upon payment of these awards .
 
        
 
        That all costs of this action including cost of transcribing the 
 
        arbitration hearing are assessed against the defendants pursuant 
 
        to Division of Industrial Services rule 343-4.33.
 
        
 
        ANDERSEN V. FARMLAND FOODS Page 5
 
        
 
        
 
        Signed and filed this 30th day of December, 1988.
 
        
 
        
 
        
 
                                          DAVID E. LINQUIST
 
                                       INDUSTRIAL COMMISSIONER
 
        
 
        
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                   BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         KEITH N. CANNON,
 
         
 
              Claimant,                               File No. 795331 
 
         
 
         vs.                                            A P P E A L
 
         
 
         KEOKUK STEEL CASTING,                        D E C I S I O N
 
         
 
              Employer,
 
                                                         F I L E D
 
         and
 
                                                        JAN 27 1988
 
         ROYAL INSURANCE COMPANY,
 
                                               IOWA INDUSTRIAL COMMISSIONER
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
                                STATEMENT OF THE CASE
 
         
 
              Claimant appeals from an arbitration decision awarding five 
 
         weeks of permanent partial disability.
 
         
 
              The record on appeal consists of the transcript of the 
 
         arbitration proceeding and joint exhibits 1 through 10.  Both 
 
         parties filed briefs on appeal.
 
         
 
                                     ISSUES
 
         
 
              Claimant states that the issue on appeal is the extent of 
 
         claimant's permanent partial disability.
 
         
 
                              REVIEW OF THE EVIDENCE
 
         
 
              Review of the record indicates the summary of evidence in 
 
         the arbitration decision is adequate and will not be repeated 
 
         herein.
 
         
 
                                APPLICABLE LAW
 
         
 
              The citations of law in the arbitration decision are 
 
         appropriate to the issues and the evidence.  In addition, the 
 
         following authorities are also applicable:
 
         
 
              The right of a worker to receive compensation for injuries 
 
         sustained which arose out of and in the course of employment is 
 
         statutory.  The statute conferring this right can also fix the 
 
         amount of compensation to be paid for different specific 
 
         injuries, and the employee is not entitled to compensation except 
 
         as provided by the statute.  Soukup v. Shores Co., 222 Iowa 272, 
 
         268 N.W. 598 (1936).
 
                                                
 
                                                         
 
         
 
              An injury is the producing cause; the disability, however, 
 
         is the result, and it is the result which is compensated.  Barton 
 
         v. Nevada Poultry Co., 253 Iowa 285, 110 N.W.2d 660 (1961); 
 
         Dailey v. Pooley Lumber Co., 233 Iowa 758, 10 N.W.2d 569 
 
         (1943).
 
         
 
              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).
 
         
 
              Permanent partial disabilities are classified as either 
 
         scheduled or unscheduled.  A specific scheduled disability is 
 
         evaluated by the functional method; the industrial method is used 
 
         to evaluate an unscheduled disability.  Martin v. Skelly Oil Co., 
 
         252 Iowa 128, 133, 106 N.W.2d 95, 98 (1960); Graves v. Eagle Iron 
 
         Works, 331 N.W.2d 116 (Iowa 1983); Simbro v. DeLong's Sportswear, 
 
         332 N.W.2d 886, 887 (Iowa 1983).
 
         
 
              Iowa Code section 85B.4(1) states as follows:
 
         
 
                   "Occupational hearing loss" means a permanent 
 
              sensorineural loss of hearing in one or both ears in excess 
 
              of twenty-five decibels if measured from international 
 
              standards organization or American national standards 
 
              institute zero reference level, which arises out of and in 
 
              the course of employment caused by prolonged exposure to 
 
              excessive noise levels.
 
         
 
                   In the evaluation of occupational hearing loss, only 
 
              the hearing levels at the frequencies of five hundred, one 
 
              thousand, two thousand, and three thousand Hertz shall be 
 
              considered.
 
         
 
              Iowa Code section 85.34(2)(r) and (u) states:
 
         
 
                   r.  For the loss of hearing, other than occupational 
 
              hearing loss as defined in section 85B.4, subsection 1, 
 
              weekly compensation during fifty weeks, and for the loss of 
 
              hearing in both ears, weekly compensation during one hundred 
 
              seventy-five weeks.  For occupational hearing loss, weekly 
 
              compensation as provided in the Iowa occupational hearing 
 
              loss Act [chapter 85B].
 
         
 
                   ....
 
         
 
                   u.   In all cases of permanent partial disability other 
 
              than those hereinabove described or referred to in 
 
              paragraphs "a" through "t" hereof, the compensation shall be 
 
              paid during the number of weeks in relation to five hundred 
 
              weeks as the disability bears to the body of the injured 
 
              employee as a whole.
 
         
 
                   If it is determined that an injury has produced a 
 
                                                
 
                                                         
 
                   disability less than that specifically described in said 
 
              schedule, compensation shall be paid during the lesser 
 
              number of weeks of disability determined, as will not exceed 
 
              a total amount equal to the same percentage proportion of 
 
              said scheduled maximum compensation.
 
         
 
              Iowa Code section 17A.14(5) states:  "The agency's 
 
         experience, technical competence, and specialized knowledge may 
 
         be utilized in the evaluation of the evidence."
 
         
 
              There can be no recovery of benefits for industrial 
 
         disability unless it is shown that a part of the body other than 
 
         the scheduled member is impaired.  Lauhoff Grain Co. v. McIntosh, 
 
         395 N.W.2d 834 (Iowa 1986).
 
         
 
              The benefits under section 85.34, The Code, contemplate 
 
         compensation for any effect on the claimant's earning capacity 
 
         caused by psychological problems stemming from an injury to a 
 
         scheduled member.  Pilcher v. Penick & Ford, File number 618597 
 
         (Appeal Decision, October 1987).
 
         
 
                                   ANALYSIS
 
         
 
              Claimant appeals the deputy's award of one percent 
 
         industrial disability.  Claimant alleges a hearing loss, tinnitus 
 
         and resultant psychological stress due to an explosion of an 
 
         oxidizing device he was operating on May 30, 1984.
 
         
 
              Claimant's medical experts did establish that claimant 
 
         suffers from a hearing loss in both ears, with tinnitus, or a 
 
         ringing in the ears, as a symptom.  Claimant did not miss any 
 
         time from work as a result of this injury.  Claimant experienced 
 
         a ringing sensation for a short time after the injury, with a 
 
         reoccurrence six months later.  He indicated that the ringing has 
 
         been constant since then and that it causes him sleeplessness, an 
 
         inability to be around loud noises, irritability with his wife 
 
         and grandchildren and social handicaps such as an inability to 
 
         understand conversations in a noisy setting.
 
         
 
              Guenter H. Gehrich, M.D., confirmed that claimant had 
 
         noise-induced damage to both inner ears and that the condition 
 
         was permanent.  There is no treatment available.  Claimant's 
 
         condition was, in his opinion, common for persons exposed to 
 
         noise on a repeated basis and could be aggravated by a loud 
 
         noise.  He found claimant to have a 20 dBA hearing loss in the 
 
         right ear, and 25 dBA in the left ear.  However, under the BAHL 
 
         method and the 1979 AMA Guides, he would rate that loss as 
 
         insignificant or 0%.  He did not offer testimony on any 
 
         psychological effect on claimant.
 
         
 
              Craig Blaine Rypma, Ph.D., testified that claimant would 
 
         likely suffer permanent psychological difficulty in adjusting to 
 
         his hearing loss.  He stated that this would exclude him from 
 
         certain types of employment in the future, such as telephone work 
 
         or working with the public.  Dr. Rypma declined to offer a rating 
 
                                                
 
                                                         
 
         or degree of impairment.  Dr. Rypma made no use of the AMA 
 
         guides.
 
         
 
              In his appeal brief, claimant requests the Commissioner to 
 
         take into consideration the more recent AMA Guides to the 
 
         Evaluation of Permanent Impairment, 2nd Edition, chapter 12 and 
 
         table 1 therein, dealing with mental and behavioral disorders, as 
 
         these "should be looked to for guidance even though the two 
 
         doctors seem to be not familiar with such guidelines."  He urges 
 
         that when these standards are applied, claimant's impairment is 
 
         actually 50-55%.  Claimant has attached a copy of chapter 12 of 
 
         the AMA Guides to his appeal brief.
 
         
 
              Claimant's request that the Commissioner, on appeal, 
 
         consider evidence, not made part of the record at the hearing, is 
 
         denied. Evidence that was available to claimant at the time of 
 
         the hearing cannot be considered on appeal unless the same was 
 
         properly offered and accepted into the record at the hearing with 
 
         an opportunity for defendants to object to its admission and 
 
         cross-examine as to its contents.  This was not done and said 
 
         evidence will not be considered on appeal.
 
         
 
              Claimant brought his petition under chapter 85 of the Code, 
 
         and not under chapter 85B, dealing with occupational hearing 
 
         loss. The record shows that claimant's hearing loss does not 
 
 
 
                                   
 
                                                         
 
         exceed 25 decibels, as required by section 85B.4(1), The Code.  
 
         In addition, the record shows that claimant's hearing condition 
 
         was caused by trauma in the form of an explosion, as opposed to 
 
         the prolonged exposure to excessive noise levels contemplated by 
 
         section 85B.4. Thus, claimant's injury, if it is compensable, 
 
         would be governed by chapter 85, The Code.
 
         
 
              Claimant's hearing loss was rated at 0% by the only expert 
 
         medical testimony received.  He also suffers tinnitus, or ringing 
 
         in the ears.
 
         
 
              In March of 1985 claimant reported "light headedness." 
 
         However, B. J. Williamson, M.D., noted the same month that 
 
         claimant had "no loss of balance."  At the hearing on June 17, 
 
         1986, pursuant to numerous questions, both claimant and his wife 
 
         failed to mention light headedness, dizziness, or a loss of 
 
         balance, motion tolerance or equilibrium as part of claimant's 
 
         symptoms.
 
         
 
              If claimant's tinnitus is a scheduled loss, he is to be 
 
         compensated pursuant to section 85.34(2)(r), The Code.  If 
 
         claimant's tinnitus is an injury to the body as a whole, he is to 
 
         be compensated according to the degree of his industrial 
 
         disability under section 85.34(2)(u), The Code.
 
         
 
              Section 85.34(2)(r) refers to the loss of hearing, other 
 
         than occupational loss of hearing.  The question then becomes, is 
 
         tinnitus "loss of hearing"?  The few Iowa cases dealing with 
 
         tinnitus do not provide a ready answer.  In Arguello v. Aluminum 
 
         Company of America, II Iowa Industrial Commissioner Report 11 
 
         (1981), although tinnitus was present, the award was based on 
 
         claimant's hearing loss and motion intolerance.  In Besch v. Fort 
 
         Dodge Laboratories, Thirty-fourth Biennial Report of the 
 
         Industrial Commissioner 37 (1979), again tinnitus was part of the 
 
         record, but the award given was based on hearing loss.  In Haney 
 
         v. University of Iowa--Oakdale Branch, I Iowa Industrial 
 
         Commissioner Report 129 (1980), although claimant alleged he 
 
         suffered tinnitus, insufficient evidence was put into the record 
 
         on the extent of disability or its connections to the injury.  In 
 
         addition, claimant in that case also suffered dizziness.
 
         
 
              There is, therefore, no clear authority on the proper 
 
         treatment of tinnitus under the Iowa Workers' Compensation law. 
 
         The present case is unique in that claimant suffers no dizziness, 
 
         loss of balance or equilibrium that might be considered as 
 
         extending his condition from the scheduled member (hearing) to 
 
         the body as a whole.
 
         
 
              Claimant's tinnitus affects his ability to hear or 
 
         distinguish words and does not affect any other part of his body. 
 
         Under this set of facts, claimant's tinnitus is a loss of 
 
         hearing, and as such is compensable under section 85.34(2)(r).
 
         
 
              Any psychological effects of his hearing loss or tinnitus 
 
         are contemplated in "loss of hearing" under section 85.34(2)(r), 
 
                                                
 
                                                         
 
         and thus would not constitute an extension of the impairment to 
 
         the body as a whole.
 
         
 
              Under section 85.34(2)(r), functional impairment, rather 
 
         than industrial disability, determines the extent of claimant's 
 
         compensation.  Although Dr. Gehrich does not assign a percentage 
 
         to claimant's hearing loss, he has sustained an actual hearing 
 
         loss.  Dr. Gehrich described claimant's hearing loss as having 
 
         lost "not so much the ability to hear but the ability to 
 
         understand in noisy surroundings."  (Deposition of Dr. Gehrich, 
 
         p. 7, 11. 8-9)  Dr. Gehrich described claimant's speech 
 
         discrimination as "excellent."  Claimant testified that "if I'm 
 
         in a noisy environment and there is several people, it's 
 
         virtually impossible for me to distinguish what people are 
 
         saying." (Transcript, p. 29, 11. 7-9)  Claimant's wife confirmed 
 
         claimant's inability to distinguish speech in social situations.  
 
         It is therefore determined that claimant's hearing loss due to 
 
         tinnitus results in a three percent functional loss of hearing as 
 
         a result of his injury.
 
         
 
                                FINDINGS OF FACT
 
         
 
              1.  On May 30, 1984 claimant suffered an injury to his 
 
         hearing as the result of an explosion at work.
 
         
 
              2.  Claimant lost no time from work as a result of his 
 
         injury.
 
         
 
              3. Claimant suffers tinnitus as a result of the May 30, 1984 
 
         injury.
 
         
 
              4.  Claimant has difficulty understanding conversation in a 
 
         noisy environment as a result of the injury on May 30, 1984.
 
         
 
              5.  Claimant has a total three percent hearing loss for both 
 
         ears due to his tinnitus.
 
         
 
              6.  Claimant's rate of compensation is $232.27.
 
         
 
                              CONCLUSIONS OF LAW
 
         
 
              Claimant has proven by a preponderance of the evidence that 
 
         on May 30, 1984 he suffered an injury arising out of and in the 
 
         course of his employment.
 
         
 
              Claimant has proven by a preponderance of the evidence that 
 
         he has suffered a permanent hearing loss to both ears of three 
 
         percent.
 
         
 
              WHEREFORE, the decision of the deputy is affirmed in part 
 
         and modified in part.
 
         
 
                                       ORDER
 
         
 
              THEREFORE, it is ordered:
 
                                                
 
                                                         
 
         
 
              That defendants pay unto claimant five point twenty-five 
 
         (5-25) weeks of permanent partial disability at the rate of two 
 
         hundred thirty-two and 27/100 dollars ($232.27) per week 
 
         commencing May 31, 1984.  All benefits shall be paid in a lump 
 
         sum together with statutory interest thereon.
 
         
 
              That the costs of this action are taxed to the defendants.
 
         
 
              That defendants shall file claim activity reports as 
 
         requested by this agency pursuant to Division of Industrial 
 
         Services Rule 343-3.1(2).
 
         
 
              Signed and filed this 27th day of January, 1988.
 
         
 
                                                 
 
                                                 
 
         
 
         
 
                                               DAVID E. LINQUIST
 
                                            INDUSTRIAL COMMISSIONER
 
         
 
         Copies To:
 
         
 
         Mr. James P. Hoffman
 
         Attorney at Law
 
         Middle Road
 
         P.O. Box 1066
 
         Keokuk, Iowa  52632
 
         
 
         Mr. Steven L. Udelhofen
 
         Attorney at Law
 
         1000 Des Moines Building
 
         Des Moines, Iowa  50309
 
 
 
         
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                                 2208; 1803; 1803.1;
 
                                                 2901; 2904; 2906; 3700
 
                                                 Filed 1-27-88
 
                                                 David E. Linquist
 
         
 
                   BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         KEITH N. CANNON,
 
         
 
              Claimant,
 
         
 
         vs.                                          File No. 795331
 
         
 
         KEOKUK STEEL CASTING,                          A P P E A L
 
         
 
              Employer,                               D E C I S I 0 N
 
         
 
         and
 
         
 
         ROYAL INSURANCE COMPANY,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         2208; 1803; 1803.1
 
         
 
              Claimant suffered a hearing loss and tinnitus (ringing in 
 
         the ears) as a result of an explosion.  His hearing loss was 
 
         traumatic and not over 25 decibels, so his claim was brought 
 
         under chapter 85.  It was held that this claimant's tinnitus, 
 
         which only affected his ability to hear and did not affect his 
 
         balance or equilibrium or any other part of the body, was a loss 
 
         of hearing, and as such was compensable as a scheduled loss under 
 
         85.34(2)(r).
 
         
 
         2902; 2904; 2906; 3700
 
         
 
              Claimant's attorney attached AMA Guides to the evaluation of 
 
         permanent impairment to his appeal brief for consideration by the 
 
         commissioner.  As they were not part of the record at the hearing 
 
         and not relied upon by any expert medical testimony given at the 
 
         hearing, they were not considered on appeal.