BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         ARTHUR LUND,
 
         
 
              Claimant,
 
         
 
         VS.                                          File No. 795367
 
         
 
         WAREHOUSE MARKET/NASH FINCH
 
         COMPANY,                                  A R B I T R A T I 0 N
 
         
 
              Employer,                               D E C I S I 0 N
 
         
 
         and
 
         
 
         MID-CENTURY INSURANCE COMPANY,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         
 
                                   INTRODUCTION
 
         
 
              This is a proceeding in arbitration brought by Arthur Lund, 
 
         claimant, against Warehouse Market/Nash Finch Company, employer, 
 
         and Mid-Century Insurance Company, the employer's insurance 
 
         carrier, for benefits as a result of an alleged injury of 
 
         February 5, 1985.  The hearing was held at Fort Dodge, Iowa on 
 
         September 8, 1987 and the matter was considered fully submitted 
 
         at the close of the hearing.
 
         
 
              The record in the proceeding consists of testimony from 
 
         Arthur Lund, Jacqueline Lund, claimant's wife, and Larry 
 
         Goedhart, claimant's former supervisor.  The record also consists 
 
         of joint exhibits 1 through 14, 26 and 27 and claimant's exhibit 
 
         A.
 
         
 
                                      ISSUES
 
         
 
              The parties submitted a pre-hearing report of issues and 
 
         stipulations which was approved and accepted as a part of the 
 
         record of this case.  According to the pre-hearing report, the 
 
         issues to be decided are as follows:
 
         
 
              Whether claimant sustained an injury on February 5, 1985 
 
         which arose out of and in the course of employment with the 
 
         employer;
 
         
 
              Whether the alleged injury is a cause of any temporary 
 
         disability or permanent disability; and,
 
              The extent of permanent disability, if any.
 
         
 
              The parties have stipulated to the following:
 

 
         
 
         
 
         
 
         LUND V. WAREHOUSE MARKET/NASH FINCH COMPANY
 
         Page   2
 
         
 
         
 
         
 
              In the event claimant is entitled to either temporary 
 
         disability or healing period benefits, they would run from 
 
         March 26, 1985 to June 2, 1986 (62 weeks);
 
         
 
              In the event claimant is entitled to permanent partial 
 
         disability, those disability benefits would commence as of June 
 
         3, 1986; and,
 
         
 
              The rate of compensation, in the event of an award, is 
 
         $224.94.
 
         
 
                          SUMMARY OF THE EVIDENCE
 
         
 
              The following is a summary of evidence presented in this 
 
         case.  Only the evidence most pertinent to this decision is 
 
         discussed, but all of the evidence received at the hearing was 
 
         considered in arriving at this decision.  Conclusions about what 
 
         the evidence offered may show are inevitable with any 
 
         summarization.  The conclusions in the following summary should 
 
         be considered to be preliminary findings of fact.
 
         
 
              Arthur Lund is a 29-year-old married man with three 
 
         children.  He graduated from Eagle Grove High school in 1975 and 
 
         immediately enrolled in Iowa Central Community College in Fort 
 
         Dodge where he took two years of accounting and business courses.  
 
         Claimant graduated with an AA degree in 1977.
 
         
 
              Claimant's prior work experience includes general farm 
 
         labor, retail sales in a Coast to Coast store, forklift operation 
 
         and assistant manager of a Wendy's fast food restaurant.  He also 
 
         bought, refinished and sold used furniture on a part-time basis.
 
         
 
              Claimant denied having any prior back problems or injuries 
 
         to his back.  No evidence to the contrary appears in the record.
 
         
 
              Claimant worked for Warehouse Market from November, 1977 to 
 
         March 26, 1985.  Warehouse Market is a wholesale or discount 
 
         style grocery store.  Claimant was the second assistant manager. 
 
          His duties included unloading trucks, stocking, ordering, book 
 
         work and cashier.  He had been second assistant manager since 
 
         1978.
 
         
 
              Claimant testified that, on February 5, 1985, he began work 
 
         at noon or 1:00 p.m.  He testified that he could have been 
 
         cutting tops off boxes or stocking shelves, or maybe both.  He 
 
         testified that he felt fine when he went into work, but when he 
 
         arrived home that evening, he felt discomfort in his back and 
 
         right leg.
 
         
 
              Claimant's supervisor, Larry Goedhart, testified for the 
 
         defendants at the time of hearing and stated that claimant spent 
 
         most of the day of February 5, 1985 stocking groceries (exhibit 
 
         27).
 

 
         
 
         
 
         
 
         LUND V. WAREHOUSE MARKET/NASH FINCH COMPANY
 
         Page   3
 
         
 
         
 
         
 
              Claimant's wife testified that, when she arrived home from 
 
         her bowling league, claimant made complaint to her regarding low 
 
         back pain.  Claimant was stiff and sore the next day, but went to 
 
         work.  He continued working until he saw Roy M. Hutchinson, M.D., 
 
         some time around February 14, 1985.  He took two or three days 
 
         off work.  Claimant then worked regularly through March 26, 1985 
 
         when he was taken off work by Stephen G. Taylor, M.D.  The 
 
         surgeon's report prepared by Dr. Hutchinson on May 10, 1985 
 
         states:
 
         
 
              [P]atient was lifting a couple cases of can goods.  
 
              Towards later in the day in [sic] had onset of back 
 
              pain and his back has been giving him problems since. 
 
              (Exhibit 3).
 
         
 
              Claimant was referred to Trinity Regional Hospital in Fort 
 
         Dodge for a CT scan by Dr. Hutchinson.  The CT scan was within 
 
         normal limits.
 
         
 
              Exhibit 4 is a note from Dr. Taylor dated March 26, 1985 
 
         which states:
 
         
 
              Mr. Lund is a 27 year old man seen today because of a 
 
              two month history of lower back and right leg pain.  
 
              About two months ago the pain first started in his 
 
              right hip without any injury.  The pain was primarily 
 
              in the right hip area radiating down the lateral thigh 
 
              and also the lateral calf.  He never had much back 
 
              pain.  He seems to be quite stiff when he first gets up 
 
              in the morning and then it tends to improve.
 
         
 
              His work involves stocking shelves in a supermarket and 
 
              he has had to alter the way he lifts and moves objects.  
 
              He has continued to work without interruption.
 
         
 
              He saw Dr. Hutchinson because of these symptoms and did 
 
              have a back and CT scan both of which apparently were 
 
              normal.  Generally his symptoms are improving but he is 
 
              not yet asymptomatic.
 
         
 
              ...
 
         
 
              Impression:  Probable mild disk protrusion L4,5 on the 
 
              right.
 
         
 
              Recommendation:  I think Mr. Lund has good clinical 
 
              findings of a lumbar disk but seems to be gradually 
 
              improving.  For this reason I would continue with 
 
              conservative treatment.  I think he would be better off 
 
              to take three to four weeks off work and rest and keep 
 
              off of his feet and the lifting that this requires.  If 
 
              he isn't nearly fully recovered at that point one might 
 
              consider a myelogram and I discussed that with him 
 
              also.  In the meantime he should continue with bed rest 
 
              and he was started on Naprosyn.
 
         
 
              Exhibits 1 and 2, which were issued by Dr. Taylor, do not 
 
         indicate whether claimant's back condition is work related.
 

 
         
 
         
 
         
 
         LUND V. WAREHOUSE MARKET/NASH FINCH COMPANY
 
         Page   4
 
         
 
         
 
         
 
              In June of 1986, claimant went to see Thomas B. Summers, 
 
         M.D., a neurologist (exhibit 14).  At that time, claimant stated 
 
         that one morning in February, 1985  he went to work as usual.  He 
 
         felt fine.  He did his work.  When he got through that day he did 
 
         have a backache which worsened over the following days.
 
         
 
              Larry Goedhart, claimant's supervisor, testified that 
 
         claimant initially mentioned his back discomfort in February.  
 
         Goedhart testified that he inquired of claimant concerning facts 
 
         and details of the low back complaint.  Goedhart testified that 
 
         claimant stated he simply woke up one morning with this low back 
 
         discomfort.  When asked if it occurred while stocking or doing 
 
         anything at work, claimant said he did not know.  When asked if 
 
         it occurred while working in claimant's furniture business, 
 
         claimant stated he did not believe so.  Claimant could not recall 
 
         that conversation.
 
         
 
              Claimant gave Goedhart a note dated April 26, 1985 which 
 
         said, "On Feb. 5th, 1985, I injured my back at work--.  I request 
 
         that you notify Workman's [sic] Compensation" (exhibit 27).  In 
 
         response to that note Goedhart filled out a first report of 
 
         injury that contained a question mark as it concerns the date of 
 
         February 5, 1985.  He also wrote a letter which said:
 
         
 
              Art claims on Feb. 5, 1985 he injured his back at work.  
 
              I was not notified at the time the accident happened or 
 
              if it happened at work.  I am not certain of the date 
 
              he told me of his problem.  The date of Feb. 5 did not 
 
              come up until his last appointment (April 23, 1985) 
 
              with his doctor in Des Moines.  Up until that time he 
 
              did not know when or where his problem began.
 
         
 
              Goedhart testified that, when he asked claimant about the 
 
         date, claimant told him that claimant and his spouse had sat down 
 
         with a calendar and figured it out.
 
         
 
              Claimant was first seen by Dr. Taylor in Des Moines on March 
 
         26, 1985.  X-rays were interpreted as normal.  Dr. Taylor gave 
 
         the impression that there was a "probable mild disc protrusion, 
 
         L4-L5 on the right" (exhibits 4 and 5).  A myelogram was 
 
         performed on April 29, 1985 and was normal.  An epicural steroid 
 
         injection was carried out on April 30, 1985 (exhibits 4 and 5).
 
         
 
              Claimant was again seen on June 13, 1985 by Dr. Taylor.  At 
 
         that time, Dr. Taylor found that claimant was showing some 
 
         improvement in his back discomfort, but that lifting anything 
 
         over ten to fifteen pounds still produced an aching pain in the 
 
         low back.   In addition, he was not able to sit with his legs out 
 
         straight.  He was given stretching exercises and physical therapy 
 
         and was last seen by Dr. Taylor on August 15, 1985 (exhibits 4 
 
         and 5).
 
         
 
              Claimant was next seen by John T. Bakody, M.D., a Des Moines 
 
         neurosurgeon, on September 17, 1985.  EMGs and nerve conduction 
 
         studies were conducted at Mercy Hospital in Des Moines on 
 
         September 18, 1985.  The electromyelogram with nerve conduction 
 
         study was interpreted as:
 
         
 

 
                          
 
         
 
         LUND V. WAREHOUSE MARKET/NASH FINCH COMPANY
 
         Page   5
 
         
 
         
 
              Right peroneal and right sural studies are within 
 
              normal limits.  EMG - lower extremity:  EMG Study of 
 
              lumbosacral paraspinals and right lower extremity is 
 
              normal. (Exhibit 9).
 
         
 
              He returned to see Dr. Bakody on October 1, 1985 and, at 
 
         that time, the doctor stated:
 
         
 
              (Claimant's) job requires lifting 40 to 50 pounds 
 
              continuously and that there is no lighter work than 
 
              this available so I believe he should consider 
 
              retraining as he will not be able to return to this 
 
              type of work in the future. (Exhibit 9).
 
         
 
              Claimant continued to complain of low back pain and was 
 
         referred to the Mayo Clinic where he saw Robert C. Hermann, Jr., 
 
         M.D., of the Department of Neurology.  This examination took 
 
         place on February 19, 1986.  Dr. Hermann's neurologic examination 
 
         revealed:
 
         
 
              [A] mild decrease in the right ankle jerk and mild 
 
              weakness in the right lower extremity and the 
 
              abductors, hamstrings, and anterior toe extensors.  On 
 
              examination of his back there was limitation of forward 
 
              flexion on bending to the right with paravertebral 
 
              spasms and flexion of the right leg with forward 
 
              bending.  Straight leg raising was positive on the 
 
              right at 60 (degrees). (Exhibit 12).
 
         
 
              Dr. Hermann went on to state that, "It was our impression 
 
         that he had a mild right S-1 radiculopathy.  The physical 
 
         findings seemed fairly definite" (exhibit 12).  In a letter to 
 
         Farmers' Insurance Group of April 23, 1986, Dr. Hermann stated:
 
         
 
              We would hope that there would be continued 
 
              improvement, but at the present time he has some way to 
 
              go before there is improvement.  He has about a 10 to 
 
              20 percent disability at the present time, but I do not 
 
              know if this disability will be permanent. (Exhibit 
 
              13).
 
         
 
              At the request of the defendants, claimant was next seen by 
 
         Thomas B. Summers, M.D., on June 3, 1986.  Dr. Summers' clinical 
 
         impression was, "Suspected lumbar radicular syndrome, lower 
 
         lumbar, right" (exhibit 14).  Dr. Summers went on to state, "In 
 
         my opinion, the functional impairment or disability rating is 10% 
 
         of the body taken as a whole" (exhibit 14).
 
         
 
              Claimant was off work recuperating from his injury of 
 
         February 5, 1985 until October, 1986 when he opened his own used 
 
         furniture store in Fort Dodge called Lund's Used Furniture Plus.  
 
         Claimant testified at hearing that he has had two months since he 
 
         opened in which he realized a profit.  His overall earnings since 
 
         he opened have been below expenses by $300 to $500 per month.  He 
 
         stated that his monthly operating expenses were approximately 
 
         $3,500 per month.  He used his retirement savings account from 
 
         Warehouse Market to start up his new business.  In addition, he 
 
         received approximately $1,200 from the State Department of 
 
         Vocational Rehabilitation to purchase a sign for the store and a 
 

 
         
 
         
 
         
 
         LUND V. WAREHOUSE MARKET/NASH FINCH COMPANY
 
         Page   6
 
         
 
         
 
         four-wheeled dolly to help move furniture around in the store.  
 
         He stated that he hires high school boys to help him load and 
 
         unload heavy item,s of furniture.
 
         
 
              Jacqueline Lund testified that claimant has difficulty 
 
         sleeping because he has to use a pillow to support his back.  He 
 
         awakens easily during the night and finds it difficult to get 
 
         comfortable.  Claimant stated that he is limited in what he can 
 
         do for leisure activities.  He no longer fishes actively in the 
 
         local area.  He cannot tolerate sitting for more than an hour at 
 
         a time or driving for long periods of time.  Claimant has three 
 
         children and he has been married since 1980.  Claimant has 
 
         obtained a license to sell life insurance.
 
         
 
              Claimant underwent an Occupational Evaluation in Des Moines 
 
         in June, 1986.  It was exceptional in that claimant was found to 
 
         have a Full Scale I.Q. of 130.  His test results were in the 
 
         Osuperior" range in almost every category of intellectual 
 
         ability.  It was apparent from claimant's demeanor at the hearing 
 
         that he has good command of the language and excellent reasoning 
 
         ability.  The "Disability" portion of the Evaluation states as 
 
         follows:
 
         
 
              As stated, disability is lumbar disc disease.  Client 
 
              reports that he has a 20 lb. lifting limit, and that he 
 
              should avoid bending, stooping, and squatting.  He 
 
              reports that it is easier [sic] for him to stand than 
 
              to sit for prolong [sic] periods.
 
         
 
              Client voiced no physical complaints during evaluation.  
 
              He did change positions as needed to alleviate back 
 
              discomfort, and it was noted that he stood at every 
 
              opportunity - between tasks, when in conversation, etc.  
 
              Maximum time he was required to sit to , complete any 
 
              one task was approximately 30 minutes; he appeared 
 
              somewhat stiff and to move guardedly after sitting this 
 
              length of time.  If two or more tasks requiring him to 
 
              work seated were given consecutively, he took the 
 
              opportunity between tasks to stand and/or walk around a 
 
              few minutes.  He did not discontinue a task or ask for 
 
              a break because of physical discomfort when on task. 
 
              (Exhibit 26).
 
         
 
              The summary and recommendations on page 3 of the June 20, 
 
         1986 evaluation are as follows:
 
         
 
              SUMMARY AND RECOMMENDATIONS:
 
         
 
              1.  Test results are consistent with the GATB testing 
 
              done earlier at Fort Dodge, and indicate a very capable 
 
              person.  Intelligence, according to the WAIS, places in 
 
              the very superior range.  The majority of the SAGE 
 
              aptitude test results fall in the superior range, and 
 
              none fall below the average range.
 
         
 
              2.  Tested reading, math and verbal reasoning are 
 
              superior and indicate excellent chance of success in 
 
              academic training, and/or occupations requiring a high 
 
              degree of academic ability.
 

 
         
 
         
 
         
 
         LUND V. WAREHOUSE MARKET/NASH FINCH COMPANY
 
         Page   7
 
         
 
         
 
         
 
              3.  Mechanical reasoning, space relations, and abstract 
 
              reasoning (as well as dexterities) support occupations 
 
              involving things, rather than people-- or words, and 
 
              indicate an excellent chance of success in a physical 
 
              science field and/or in a technical or  manual 
 
              occupations.
 
         
 
              4.  Tested dexterities are strong with finger dexterity 
 
              being somewhat stronger than manual.  Finger dexterity, 
 
              small tool usage, and fine eye/hand coordination all 
 
              placed in the superior range and are supportive of 
 
              occupations requiring rapid, precise, manipulative 
 
              skills.
 
         
 
              5.  As indicated earlier, it is felt that client 
 
              intends to pursue self-employment and his intelligence 
 
              and personality appear to support this.  Certainly, 
 
              test results support a small business evaluation, if 
 
              client wishes, to pursue this.
 
         
 
              6.  Client's tested skills and aptitudes obviously 
 
              support a large number of occupations.  Client was 
 
              given access to occupational information to help him in 
 
              his decision-making process.  Some of the specific jobs 
 
              we discussed, and client seemed to have an interest in, 
 
              include:  Real Estate Sales 250.357-018; Insurance 
 
              Sales 250.357-010; Insurance Adjuster 241.217-010; 
 
     
 
         
 
         
 
         
 
         
 
         LUND V. WAREHOUSE MARKET/NASH FINCH COMPANY
 
         Page   8
 
         
 
         
 
              Sales Representative, Food Products 260.357-014; 
 
              Customer Service Representative 959.361-010; Tax Form 
 
              Preparer 219.362-070; Branch Manager 183.117-010; 
 
              Ticket Agent 238.367-026; Electronics Mechanic 
 
              828.281-010; Repairer Hand Tools 701.381-010; Electric 
 
              Meter Repairer 720.281-014.
 
         
 
              Enclosed are two computer printouts.  One is based on 
 
              client's prior work experience.  The other is based on 
 
              the SAGE aptitude test results.  The latter list has 
 
              been edited to provide a representative sampling of the 
 
              kinds of jobs that client is capable of.
 
         
 
              It was necessary to edit the list because otherwise, 
 
              with client's high level of skills, the list would 
 
              provide an unmanageable number of jobs.  This computer 
 
              printout is not intended to be all inclusive or 
 
              exclusive, but is intended merely to generate ideas and 
 
              provide a point of discussion between client and 
 
              counselor.
 
         
 
              The June 19, 1986 psychological evaluation that is contained 
 
         in exhibit 26 reads as follows on page 2 thereof:
 
         
 
              In summary, intelligence testing suggested intellectual 
 
              functioning within the very superior range.  This 
 
              client would probably be capable of pursuing a great 
 
              number of vocational possibilities.  Arthur has claimed 
 
              difficulty in choosing any one vocational area, 
 
              however, he seems quite hesitant to work for someone 
 
              else.  The client seems to be a rather independent 
 
              person, and probably really desires only to pursue 
 
              self-employment.  With this client's level of 
 
              intelligence and personality characteristics, this may 
 
              be the best option.  He may wish to consider other 
 
              vocational possibilities, particularly in independent 
 
              sales where he can basically be his own boss.  Again, 
 
              this client would appear to have the potential to 
 
              pursue a great number of jobs.  His only significant 
 
              restrictions will be whatever physical limitations his 
 
              doctor has recommended, and the client's own 
 
              willingness to pursue employment.
 
         
 
         
 
                        APPLICABLE LAW AND ANALYSIS
 
         
 
              Claimant has the burden of proving by a preponderance of the 
 
         evidence that he received an injury on February 5, 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).
 
         
 
              Injury may result from a single acute incident of trauma or
 
         from cumulative trauma.  McKeever Custom Cabinets v. Smith, 379 
 
         N.W.2d 368 (Iowa 1985).
 
         
 
              The appearance and demeanor of all the witnesses was 
 
         observed as they testified.  They are all found to be credible.  
 
         The fact that claimant did not initially realize the seriousness, 
 

 
         
 
         
 
         
 
         LUND V. WAREHOUSE MARKET/NASH FINCH COMPANY
 
         Page   9
 
         
 
         
 
         nature and cause of his back problems and did not promptly report 
 
         them does not detract from his credibility.  Claimant described 
 
         the onset of symptoms; he did not describe any particular, single 
 
         incident of trauma.  It is not unusual that he would initially 
 
         fail to characterize his normal work activities as an injury or 
 
         to realize that they had produced an injury.  It is found that 
 
         claimant did injure his back on February 5, 1985 by performing 
 
         the normal lifting and carrying inherent in his employment as he 
 
         testified.  Claimant's condition is a lumbar disc syndrome as 
 
         diagnosed by Dr. Bakody and Dr. Summers.  The most recent 
 
         impressions of the other medical practitioners are not at great 
 
         divergence.
 
         
 
               The claimant has the burden of proving by a preponderance 
 
         of the evidence that the injury of February 5, 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).
 
         
 
               The opinion of an expert witness need not be couched in 
 
         definitive, positive or unequivocal language.  Dickinson v. 
 
         Mailliard, 175 N.W.2d 588, 593 (Iowa 1979).  An expert may 
 
         testify to the possibility of a causal connection, but a 
 
         possibility, standing alone, is insufficient.  A probability is 
 
         necessary to generate a question of factor and sustain an award.  
 
         Burt v. John Deere Waterloo Tractor Works, 247 Iowa 691, 73 
 
         N.W.2d 732 (1955).  The expert medical evidence must be 
 
         considered with all other evidence introduced bearing on causal 
 
         connection.  Burt, Id.  The Iowa Supreme Court in Becker v. D & E 
 
         Distributing, 247 N.W.2d 727 (Iowa 1976), discussed the law on 
 
         this problem with great clarity.  Briefly summarized, the Court 
 
         indicated that an expert witness may testify to the possibility, 
 
         the probability or the actuality of the causal connection between 
 
         claimant's employment and his injury.  If the expert testimony 
 
         shows probability or actuality of causal connection, this will 
 
         suffice to raise the question of fact of connection for the trier 
 
         of fact and, if accepted, will support an award.  If the opinion 
 
         shows a possibility of causal connection, it must be buttressed 
 
         with other evidence such as lay testimony that the described 
 
         condition of which complaint is made did not exist before the 
 
         occurrence of those facts alleged to be the cause thereof.
 
         
 
              The expert opinion may be accepted or rejected, in whole or 
 
         in part, by the trier of fact.  Sondag v. Ferris Hardware, 220 
 
         N.W.2d 903, 907 (Iowa 1974).  Further, Othe weight to be given to 
 
         such an opinion is for the finder of the fact and that may be 
 
         effected by the completeness of the premise given the expert and 
 
         other surrounding circumstances."  Bodish v. Fischer, Inc., 257 
 
         Iowa 516, 133 N.W.2d 867, 870 (1965); See also Musselman v. 
 
         Central Telephone Company,  260 Iowa 352, 154 N.W.2d 128 (1967).  
 
         Testimony of claimant regarding the onset and severity of 
 
         symptoms where otherwise credible is entitled to considerable 
 
         weight and may be the differentiating factor in accepting or 
 
         rejecting varying medical opinions.  Hinrichs v. Davenport 
 

 
         
 
         
 
         
 
         LUND V. WAREHOUSE MARKET/NASH FINCH COMPANY
 
         Page  10
 
         
 
         
 
         Locomotive Works, 203 Iowa 1395, 214 N.W.2d 585 (1927).
 
         
 
              A treating physician's testimony need not be given greater 
 
         weight as a matter of law than that of a physician who examined 
 
         the workers' compensation claimant in anticipation of litigation. 
 
          Rockwell Graphic Systems, Inc. v. Barbara D. Prince, 366 N.W.2d 
 
         187, 192.  The weight offered to an expert who examines a 
 
         workers' compensation claimant in anticipation of litigation is a 
 
         factual issue to be decided by the industrial commissioner in 
 
         light of the records developed by the parties.  Rockwell, Id.
 
         
 
              Agency expertise may be utilized as permitted by Iowa Code 
 
         section 17A.14(5) when evaluating the evidence to recognize that 
 
         work activity of the type claimant performed is commonly 
 
         considered by medical experts to be a possible cause of back 
 
         conditions of the type from which claimant suffers.  For a cause 
 
         to be proximate, it need not be the sole cause.  Blacksmith v. 
 
         All American, Inc., 290 N.W.2d 348 (Iowa 1980).  None of the 
 
         medical reports in evidence directly states whether or not 
 
         claimant's difficulties are directly attributable to his work 
 
         activities with Nash Finch Company.
 
         
 
              Dr. Taylor's letter of March 26, 1985, (exhibit 1), 
 
         specifically says the following:
 
         
 
              About two months ago the pain first started in his 
 
              right hip without any injury.
 
         
 
              When claimant first reported the injury to Larry Goedhart, 
 
         he simply stated that his back pain started one morning when he 
 
         woke up.  He specifically said that he did not know of anything 
 
         in particular that he had done.  It was over two months after 
 
         February 5, 1985 that claimant first related any of his 
 
         difficulties to anything that he was doing at work.
 
         
 
              Claimant has provided a consistent history to his physicians 
 
         ever since his condition was diagnosed by Dr. Taylor.  None of 
 
         the physicians have disputed that history as being a likely 
 
         source of claimant's back problem.  The sequence of being 
 
         symptom-free followed by the onset of symptoms is evidence of a 
 
         causal connection.  It is found that a causal connection exists 
 
         between the February 5, 1985 injury and claimant's back 
 
         condition.
 
         
 
              In addition to establishing a work-related injury, claimant 
 
         has the burden of proving that he sustained a permanent 
 
         disability for which he is entitled to compensation.  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); Bradshaw v. Iowa 
 
         Methodist Hospital, 251 Iowa 375, 101 N.W.2d 167 (1960).
 
         
 
               The medical evidence in this case is void of any specific 
 
         indication that claimant suffers from a condition which is 
 
         permanent in nature.  In fact, all the doctors seem to indicate 
 
         that his condition may improve.  No one is recommending surgery 
 
         or suggesting any kind of treatment for claimant.  In particular, 
 
         as of April 23, 1986, Dr. Hermann from the Neurology Department 
 
         at the Mayo Clinic rated claimant at 10 to 20 percent disability, 
 
         but specifically stated that he did not know if the disability 
 

 
         
 
         
 
         
 
         LUND V. WAREHOUSE MARKET/NASH FINCH COMPANY
 
         Page  11
 
         
 
         
 
         would be permanent (exhibit 13).  Dr. Summers assigned a 10 
 
         ,percent impairment rating (exhibit 14).  The condition is, 
 
         however, sufficiently long standing to be considered permanent.  
 
         Wallace v. Brotherhood, 230 Iowa 1127, 300 N.W. 322 (1941).
 
         
 
              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."
 
         
 
              Functional impairment is an element to be considered in 
 
         determining industrial disability which is the reduction of 
 
         earning capacity, but consideration must also be given to the 
 
         injured employeeOs age, education, qualifications, experience and 
 
         inability to engage in employment for which he is fitted.  Olson 
 
         v. Goodyear Service Stores, 255 Iowa 1112, 1121, 125 N.W.2d 251, 
 
         257 (1963).
 
         
 
              Industrial disability, or loss of earning capacity, in a 
 
         workers' compensation case is quite similar to impairment of 
 
         earning capacity, an element of damages in a tort case.  
 
         Impairment of physical capacity creates an inference of lessened 
 
         earning capacity.  The basic element to be determined, however, 
 
         is the reduction in value of the general earning capacity of the 
 
         person rather than the loss of wages or earnings in a specific 
 
         occupation.  Holmquist v. Volkswagon of America, Inc., 261 N.W.2d 
 
         516 (Iowa App. 1977) 100 A.L.R.3rd 143; 2 Larson Workmen's 
 
         Compensation Law, sections 57.21 and 57.31.
 
         
 
              Claimant is well suited intellectually for light or 
 
         sedentary employment.  He has the aptitude for academic pursuits.  
 
         Resources for further education do not seem to be readily 
 
         available, but he could probably complete a four-year college 
 
         degree, if he was so inclined.  It likely would require him to 
 
         incur some debt, but that is not uncommon for anyone attending 
 
         college.
 
         
 
              A number of potential jobs were identified for claimant by 
 
         the State Vocational Rehabilitation Department.  Some of the jobs 
 
         would likely pay relatively the same as his job with Nash Finch.  
 
         Post-injury earnings create a presumption of earning capacity 
 
         cmmensurate with them, but it is rebuttable by evidence showing 
 
         them to be an unreliable basis for estimating earning capacity.  
 
         2 Larson Workmen's Compensation Law, section 57.21(d); Michael v.  
 
         Harrison County, 34th Iowa Industrial Commissioner Biennial 
 
         Report, 218 (1979).  Claimant's post-injury earnings greatly 
 
         understate his actual earning capacity and are not a reliable 
 
         indicator of his actual earning capacity.
 
         
 
              Claimant has, however, lost access to jobs which require 
 
         moderate or heavy physical exertion.  He has suffered a loss of 
 
         earning capacity.  When all the material factors are considered, 
 
         claimant is determined to have sustained a 20% permanent martial 
 
         disability as a result of the injury he sustained on February 5, 
 

 
         
 
         
 
         
 
         LUND V. WAREHOUSE MARKET/NASH FINCH COMPANY
 
         Page  12
 
         
 
         
 
         1985.
 
         
 
                                 FINDINGS OF FACT
 
         
 
              1.  On February 5, 1985, Arthur Lund was a resident of the 
 
         state of Iowa employed by Warehouse Market, also known as Nash 
 
         Finch Company, in Fort Dodge, Iowa.
 
         
 
              2.  Lund was injured on February 5, 1985 while performing 
 
         the normal carrying and lifting that were part of his duties as 
 
         an assistant manager at the Warehouse Market.
 
         
 
              3.  Following the injury, claimant continued to work for a 
 
         time, but eventually sought medical care and was medically 
 
         incapable of performing work in employment substantially similar 
 
         to that he performed at the time of injury from March 26, 1985 
 
         through June 2, 1986 as stipulated by the parties.
 
         
 
              4. Claimant is restricted in his ability to bend, lift, 
 
         carry and, in general, in his ability to perform moderate or 
 
         heavy physical labor.
 
         
 
              5. The injury claimant sustained on February 5, 1985 is a 
 
         substantial factor in producing the physical restrictions and 
 
         functional impairment that currently exists with regard to his 
 
         lower back.
 
         
 
              6. Claimant's injury produced a back condition that has been 
 

 
         
 
         
 
         
 
         LUND V. WAREHOUSE MARKET/NASH FINCH COMPANY
 
         Page  13
 
         
 
         
 
         diagnosed as a lumbar disc syndrome.
 
         
 
              7. Claimant has a two-year associate degree in accounting 
 
         and business.
 
         
 
              8. Claimant has experience as a small business manager.
 
         
 
              9. Claimant is quite intelligent and has the potential to 
 
         successfully complete academic pursuits.
 
         
 
             10.  Claimant is motivated to be self-employed.
 
         
 
             11.  Claimant has retail sales experience and a life 
 
         insurance license and is adept at dealing with the public.
 
         
 
             12. Claimant's current level of earnings in his business 
 
         enterprises understate his actual earning capacity.
 
         
 
             13.  Claimant has sustained a 20% loss of earning capacity as 
 
         a result of the physical restrictions and limitations which he 
 
         experiences as a result of the February 5, 1985 injury.
 
         
 
             14.  The injury was a cumulative trauma type of injury and 
 
         did not result from any specific traumatic event.
 
         
 
             15.  Claimant's condition is permanent.
 
         
 
                                CONCLUSIONS OF LAW
 
         
 
              1.  This agency has jurisdiction of the subject matter of 
 
         this proceeding and its parties.
 
         
 
              2.  Claimant sustained an injury to his back on February 5, 
 
         1985 which arose out of and in the course of his employment with 
 
         Warehouse Market/Nash Finch Company.
 
         
 
              3.  The injury was approximate cause of permanent disability 
 
         originating in claimant's lumbar spine.
 
         
 
              4.  Claimant has a 20% permanent partial disability in 
 
         industrial terms under the provisions of Iowa Code section 
 
         85.34(2)(u) which entitles him to receive 100 weeks of 
 
         compensation.
 
         
 
              5.  Defendants have fully paid all healing period 
 
         compensation and no further compensation for healing period is 
 
         due.
 
         
 
              6.  Defendants are entitled to receive credit for 50 weeks 
 
         of permanent partial disability compensation that has been 
 
         previously paid as reported to the agency on June 11, 1987.
 
         
 
                                      ORDER
 
         
 
              IT IS THEREFORE ORDERED that defendants pay claimant one 
 
         hundred (100) weeks of compensation for permanent partial 
 
         disability at the stipulated rate of two hundred twenty-four and 
 
         94/100 dollars ($224.94) per week commencing June 3, 1986.
 
         
 

 
         
 
         
 
         
 
         LUND V. WAREHOUSE MARKET/NASH FINCH COMPANY
 
         Page  14
 
         
 
         
 
              IT IS FURTHER ORDERED that defendants are entitled to credit 
 
         for the fifty (50) weeks of compensation previously paid and 
 
         shall pay all past due amounts remaining, after the credit is 
 
         applied, in a lump sum together with interest pursuant to Iowa 
 
         Code section 85.30.
 
         
 
              IT IS FURTHER ORDERED that defendants pay the costs of this 
 
         action pursuant to Division of Industrial Services Rule 
 
         343-4.33.
 
         
 
              IT IS FURTHER ORDERED that defendants file Claim Activity 
 
         Reports as requested by this agency pursuant to Division of 
 
         Industrial Services Rule 343-3.1.
 
         
 
               Signed and filed this 10th day of March, 1988.
 
         
 
         
 
                                             MICHAEL G. TRIER
 
                                             DEPUTY INDUSTRIAL COMMISSIONER
 
         
 
         Copies To:
 
         
 
         Mr. Tito Trevino
 
         Attorney at Law
 
         503 3nt--ll Building
 
         P.O. Box 1680
 
         Fort Dodge, Iowa 50501
 
         
 
         Mr. Roy M. Irish
 
         Attorney at Law
 
         729 Insurance Exchange Building
 
         Des Moines, Iowa 50309
 
         
 
         
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                                 1402.20, 1402.30, 1803
 
                                                 2209
 
                                                 Filed March 10, 1988
 
                                                 MICHAEL G. TRIER
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         ARTHUR LUND,
 
         
 
               Claimant,
 
         
 
         VS.
 
                                                       File No. 795367
 
         WAREHOUSE MARKET/NASH FINCH
 
         COMPANY,                                  A R B I T R A T I 0 N
 
         
 
               Employer,                              D E C I S I 0 N
 
         
 
         and
 
         
 
         MID-CENTURY INSURANCE COMPANY,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         1402.20, 1402.30, 1803, 2209
 
         
 
              Claimant was an assistant manager at a grocery store where 
 
         he performed stocking and other activities involving lifting and 
 
         carrying.  One evening, without any identifiable incident of 
 
         trauma, he began experiencing low back and leg pain.  He 
 
         eventually sought medical care and was taken off work.  The 
 
         record was silent with regard to medical opinions upon the issue 
 
         of causal connection, even though the history had been presented 
 
         to several physicians.  The silence of the physicians in 
 
         combination with the diagnosis of lumbar disc syndrome and 
 
         claimant's credible testimony regarding the onset of symptoms was 
 
         found to be sufficient to establish a causal connection.  Agency 
 
         experience combined with the lack of contrary identical opinions 
 
         was held to be sufficient to establish that a causal connection 
 
         was possible and that was then buttressed by claimant's credible 
 
         testimony.
 
         
 
              Claimant was highly intelligent and had moderate to mild 
 
         physical restrictions.  He was awarded 20% permanent partial 
 
         disability.  His actual reduction in earnings had been much 
 
         greater, but his self-employment income was found to be not truly 
 
         representative of his actual earning capacity.
 
 
 
         
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         LAWRENCE M. MASEAR,
 
         
 
              Claimant,                         File Nos. 795854/834958
 
         
 
         vs.                                          A P P E A L
 
         
 
         SUPER VALU STORES, INC.,                   D E C I S I O N
 
         
 
              Employer,                                F I L E D
 
         
 
         and                                          JUL 31 1989
 
         
 
         LIBERTY MUTUAL INSURANCE CO.,       IOWA INDUSTRIAL COMMISSIONER
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
                              STATEMENT OF THE CASE
 
         
 
              Claimant appeals from an arbitration decision awarding 
 
         claimant 11 weeks of permanent partial disability for a knee 
 
         injury on May 22, 1984; 50 weeks of permanent partial disability 
 
         benefits for a shoulder and neck injury May 9, 1986;,and 10 weeks 
 
         of healing period benefits.
 
         
 
              The record on appeal consists of the transcript of the 
 
         arbitration hearing and joint exhibits A through E.  Both parties 
 
         filed briefs on appeal.
 
         
 
                                     ISSUE
 
         
 
              The issue on appeal is the extent of permanent disability 
 
         for each of claimant's injuries.
 
         
 
                           REVIEW OF THE EVIDENCE
 
         
 
              The arbitration decision dated March 17, 1989 adequately and 
 
         accurately reflects the pertinent evidence and it will not be 
 
         reiterated herein.
 
         
 
                               APPLICABLE LAW
 
         
 
              The citations of law in the arbitration decision are 
 
         appropriate to the issues and evidence.
 
         
 
                                 ANALYSIS
 
         
 
              The analysis of the evidence in conjunction with the law in 
 
         the arbitration decision is adopted.
 
         
 
                             FINDINGS OF FACT
 
                                                
 
                                                         
 
         
 
              1.  Claimant injured his left knee on May 22, 1984 while 
 
         working for defendant employer.
 
         
 
              2.  Surgery to remove the meniscus on claimant's left knee 
 
         on or around June 3, 1985 was a result of claimant's May 22, 1984 
 
         injury.
 
         
 
              3.  Claimant's disability to his lower extremity is a result 
 
         of his injury of May 22, 1984.
 
         
 
              4.  Claimant has a five percent impairment to his left lower 
 
         extremity as a result of his injury of May 22, 1984.
 
         
 
              5.  Claimant incurred a healing period as a result of the 
 
         May 22, 1984 injury from and including May 27, 1985 up to and 
 
         including August 4, 1985.
 
         
 
              6.  The weekly rate of compensation for claimant's May 22, 
 
         1984 injury is $423.52 per week.
 
         
 
              7.  Claimant injured his shoulder and cervical neck area on 
 
         May 9, 1986 when he was struck by a crank while letting down the 
 
         dolly on his truck.
 
         
 
              8.  Claimant has a ten percent impairment to his shoulder 
 
         and cervical area which is a result of his injury of May 9, 
 
         1986.
 
         
 
              9.  Claimant could have had his same job with defendant 
 
         employer that he had on May 9, 1986 or could have had another job 
 
         with defendant employer which would have been less strenuous and 
 
         paying approximately 30 percent less income.
 
         
 
              10.  Claimant has a loss of earning capacity as a result of 
 
         his injury of May 9, 1986.
 
         
 
              11.  The weekly rate of compensation of claimant for the May 
 
         9, 1986 injury is $488.24.
 
         
 
                             CONCLUSIONS OF LAW
 
         
 
              Claimant's injury on May 22, 1984 arose out of and in the 
 
         course of his employment.
 
         
 
              Claimant's impairment to his left lower extremity is 
 
         causally connected to his injury on May 22, 1984.
 
         
 
              Claimant has a five percent impairment to his left lower 
 
         extremity as a result of his injury of May 22, 1984.
 
         
 
              Claimant is entitled to healing period benefits for ten 
 
         weeks beginning May 27, 1985 to and including August 4, 1985 at 
 
         the rate of $423.52.
 
         
 
                                                
 
                                                         
 
              Claimant's shoulder and cervical area injury on May 9, 1986 
 
         arose out of and in the course of his employment.
 
         
 
              Claimant's disability to his shoulder and cervical neck area 
 
         is causally connected to his injury of May 9, 1986.
 
         
 
              Claimant incurred a ten percent industrial disability as a 
 
         result of his injury of May 9, 1986.
 
         
 
              Claimant is entitled to no healing period benefits as 
 
         claimant was not off work as a result of his May 9, 1986 injury.
 
         
 
              Claimant's weekly benefit rate for the May 9, 1986 injury is 
 
         $488.24.
 
         
 
              WHEREFORE, the decision of the deputy is affirmed.
 
         
 
                                      ORDER
 
         
 
              THEREFORE, it is ordered:
 
         
 
              That defendants pay claimant eleven (11) weeks of permanent 
 
         partial disability at the stipulated rate of four hundred 
 
         twenty-three and 52/100 dollars ($423.52) per week commencing 
 
         August 5, 1985 for the injury of May 22, 1984.
 
         
 
              That defendants pay claimant healing period benefits for ten 
 
         (10) weeks beginning May 27, 1985 to and including August 4, 1985 
 
         at the stipulated rate of four hundred twenty-three and 52/100 
 
         dollars ($423.52) for the injury of May 22, 1984.
 
         
 
              That defendants pay claimant fifty (50) weeks of permanent 
 
         partial disability benefits at the stipulated rate of four 
 
         hundred eighty-eight and 24/100 dollars ($488.24) beginning 
 
         November 29, 1986 for the May 9, 1986 injury.
 
         
 
              That defendants receive credit for benefits already paid.
 
         
 
              That defendants pay the accrued weekly benefits in a lump 
 
         sum.
 
         
 
              That defendants pay interest on benefits awarded herein as 
 
         set forth in Iowa Code section 85.30.
 
         
 
              That claimant pay the costs of this appeal including the 
 
         costs of transcribing the arbitration hearing.
 
         
 
              That defendants pay all other costs of this action pursuant 
 
         to Division of Industrial Services Rule 343-4.33.
 
         
 
              That defendants file an activity report upon payment of this 
 
         award as required by this agency pursuant to Division of 
 
         Industrial Services Rule 343-3.1.
 
         
 
         
 
                                                
 
                                                         
 
              Signed and filed this 31st day of July, 1989.
 
         
 
         
 
         
 
         
 
         
 
                                                    DAVID E. LINQUIST
 
                                                 INDUSTRIAL COMMISSIONER
 
         
 
         Copies To:
 
         
 
         Mr. Barry Moranville
 
         Attorney at Law
 
         974 73rd St., Suite 16
 
         Des Moines, Iowa  50312
 
         
 
         Mr. W. C. Hoffmann
 
         Mr. Richard G. Book
 
         Attorneys at Law
 
         500 Liberty Building
 
         Des Moines, Iowa  50309
 
         
 
         
 
         
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
                                                
 
 
            
 
 
 
 
 
          
 
 
 
                                            1803
 
                                            Filed July 31, 1989
 
                                            DAVID E. LINQUIST
 
         
 
                BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         LAWRENCE M. MASEAR,
 
         
 
              Claimant,
 
         
 
         vs.
 
                                                 File Nos. 795854/834958
 
         SUPER VALU STORES, INC.,
 
                                                       A P P E A L
 
              Employer,
 
                                                      D E C I S I 0 N
 
         and
 
         
 
         LIBERTY MUTUAL INSURANCE CO.,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         1803
 
         
 
              Claimant awarded benefits based on five percent impairment 
 
         to his left lower extremity resulting from May 22, 1984 injury.
 
         
 
              Claimant awarded ten percent industrial disability as a 
 
         result of an injury on May 9, 1986 to his shoulder and neck.
 
         
 
              The extent of claimant's industrial disability was affected 
 
         by his voluntary retirement from his job with employer.  Claimant 
 
         could have continued working for employer at same job or claimant 
 
         could have had another job with employer that was less strenuous 
 
         and paying 30 percent less income.  Deputy affirmed on appeal.
 
         
 
         
 
         
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
                                                
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                  BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         LAWRENCE M. MASEAR,
 
         
 
              Claimant,
 
                                                   File Nos. 795854
 
         VS.                                                 834958
 
         
 
         SUPER VALU STORES, INC.,               A R B I T R A T I 0 N
 
         
 
              Employer,                            D E C I S I 0 N
 
         
 
         and                                          F I L E D
 
         
 
         LIBERTY MUTUAL INSURANCE CO.,               MAR 17 1989
 
         
 
              Insurance Carrier,            IOWA INDUSTRIAL COMMISSIONER
 
              Defendants.
 
         
 
                                        
 
                              STATEMENT OF THE CASE
 
         
 
              This is a proceeding in arbitration brought by Lawrence M. 
 
         Masear, claimant, against Super Valu Stores, Inc., employer, and 
 
         Liberty Mutual Insurance Co., insurance carrier, to recover 
 
         benefits as a result of injuries sustained on May 22, 1984 and 
 
         May 9, 1986.  This matter came on for hearing before the 
 
         undersigned deputy industrial commissioner in Des Moines, Iowa, 
 
         on February 1, 1989.  The record consists of the testimony of 
 
         claimant and W. A. (Bill) Hart; and joint exhibits A through E.
 
         
 
                                   ISSUES
 
         
 
              Pursuant to the prehearing report, the issues for resolution 
 
         are:
 
         
 
              1.  The nature and extent of claimant's entitlement to 
 
         disability benefits resulting from his knee injury, a scheduled 
 
         member, of May 22, 1984;
 
         
 
              2.  Whether claimant's disability.to his shoulder and 
 
         cervical area is causally connected to claimant's injury of May 
 
         9, 1986; and
 
         
 
              3.  The nature and extent of claimant's entitlement to 
 
         disability benefits as a result of the injury of May 9, 1986.
 
         
 
                           REVIEW OF THE EVIDENCE
 
         
 
              Claimant injured his left knee on May 22, 1984, when he 
 
         slipped on the tire of his truck and fell into the motor 
 
         compartment while attempting to wash the  windshield of his 
 
         truck.
 
         
 
                                                
 
                                                         
 
              Claimant injured his back on May 9, 1986, when he was struck 
 
         by a crank when a bolt broke while claimant was letting down the 
 
         dolly on his truck.
 
         
 
              Claimant testified he continued to work.after his May 22, 
 
         1984 injury until his last day of work due to retirement except 
 
         for approximately an eight week period in 1985 due to a partial 
 
         medial meniscectomy performed on June 3, 1985, as a result of his 
 
         May 22, 1984 injury.  Claimant testified that before he had his 
 
         left knee surgery, a button area developed on the knee causing 
 
         severe pain which ran down to his ankle and caused numbness in 
 
         his toes and also would cause his knee to lock.  Claimant 
 
         testified that Kelly Bast, M.D., suggested that claimant continue 
 
         working as the doctor thought it would be good for claimant to 
 
         keep active so that the doctor could better evaluate claimant's 
 
         condition.  As a result of his May 9, 1986 injury, claimant 
 
         testified that he had pain in his neck causing him to lose four 
 
         to five hours sleep at night and that he was unable to rest while 
 
         on the road in connection with his truck driving.
 
         
 
              Claimant stated that in August 1986, at a truck scale in 
 
         Illinois, an attendant checking claimant's papers noticed that 
 
         claimant was wearing a TENS unit and asked claimant whether he 
 
         could operate without it.  Claimant indicated that the scale 
 
         attendant thought that it was illegal for claimant to drive a 
 
         truck while using a pain reducer.  Claimant testified that he 
 
         felt he should not drive a truck while taking drugs to reduce 
 
         pain. Claimant also stated that he was having trouble making fast 
 
         stops while driving his truck.
 
         
 
              Claimant testified that he decided to retire on November 28, 
 
         1986 after he had talked to Dr. Bast who indicated to claimant 
 
         that he did not think claimant's medical situation would improve. 
 
         Claimant admitted that he said little, if anything, to defendants 
 
         as to his retirement plan before he had told defendants in 
 
         September 1986 that he was going to retire.  Claimant was sixth 
 
         in seniority as he had worked for defendant employer since 
 
         September 1954.
 
         
 
              Claimant testified that his wife also had been physically 
 
         incapacitated for the last fifteen years.  Claimant stated that 
 
         he had concluded that he could no longer continue working with 
 
         the pain and loss of sleep.  Claimant testified that his decision 
 
         to retire also was aided by the fact that he and his wife were 
 
         not getting along.  Claimant blamed this on lack of sleep, which 
 
         upset his normal family schedule.  Claimant also admitted that he 
 
         understood at the time of his retirement that his retirement 
 
         benefits with the employer would not increase any more if the 
 
         claimant worked any longer with defendant employer.  Claimant 
 
         understood that when he retired he had sufficient years of work 
 
         to have already reached his maximum benefit.
 
         
 
              Claimant acknowledged that if he was unable to continue to 
 
         drive a truck for defendant employer, claimant could bid into 
 
         other types of jobs with defendant employer and that employees 
 
                                                
 
                                                         
 
         with the highest seniority would get the job.  Claimant stated 
 
         that he did not ask defendant employer as to bid jobs nor did he 
 
         know of any.  Claimant agreed that in the last few years his job 
 
         required little lifting or loading on his part.  Claimant stated 
 
         that his loads mainly involved moving the merchandise to and from 
 
         various locations and that the merchandise that claimant hauled 
 
         would be on pallets which were then unloaded by mechanical 
 
         equipment by the customer at the site.
 
         
 
              W. A. (Bill) Hart, the loss prevention manager for defendant 
 
         employer, testified that he was familiar with claimant's personal 
 
         employment file and claimant's day to day work operation.  Mr. 
 
         Hart stated that claimant would not load his own truck.  Mr. Hart 
 
         testified as to approximately six other jobs at the employer's 
 
         place of business which could be performed by claimant 
 
         considering the driving and lifting limitations of the claimant.  
 
         Mr. Hart indicated the claimant could have bid for the jobs and 
 
         that people with the highest seniority usually get the jobs and 
 
         that claimant had a very high seniority and would most likely be 
 
         able to get the job for which he bid.  Mr. Hart disagreed with 
 
         the claimant's opinion that if claimant had bid it would have 
 
         taken two and a half years before a job would become available.  
 
         Mr. Hart also indicated that there is another person with the 
 
         same or similar restrictions that claimant has that is now doing 
 
         a tow man job which would.be one of the jobs for which claimant 
 
         could bid and could perform in the opinion of Mr. Hart.  Mr. Hart 
 
         testified that claimant never approached defendant employer as to 
 
         bidding on a job.  He indicated that claimant retired with full 
 
         pension rights and that the actual retirement date was January 6, 
 
         1987 taking into consideration accrued vacation.  Mr. Hart 
 
         indicated that the rate for a tow man was approximately $25,750 
 
         to $30,000 per year.
 
         
 
              Dr. Jerome Bashara testified that he had a medical history 
 
         of claimant's prior problems with his health.  Dr. Bashara 
 
         testified as follows:
 
         
 
              Q.  ...And from the information you had at hand, could you 
 
              tell the deputy industrial commissioner whether or not, 
 
              within a reasonable degree of medical certainty, there's a 
 
              causal relationship between the impairment to his left knee 
 
              and the work incident which he described to you, and which 
 
              you've read about in other ways?
 
         
 
              A.  Yes.
 
         
 
              Q.  And what is that opinion?
 
         
 
              A.  That it was directly related to an injury in May of 
 
              1984, in which he slipped on some diesel fuel and slipped 
 
              off a tire and hit his knee against the engine of a truck.
 
         
 
         (Bashara Deposition, Joint Exhibit A, pages 7-8)
 
         
 
              In an April 26, 1988 evaluation, Dr. Bashara wrote the 
 
                                                
 
                                                         
 
         following diagnoses:
 
         
 
              1)  postoperative status tear of the medial meniscus left 
 
                  knee, related to injury at work May of 1984.
 
         
 
                   No specific treatment is outlined.  I would give the 
 
              patient a 10% permanent partial physical impairment of the 
 
              left lower extremity related to his knee injury.
 
         
 
         (Jt. Ex. E, p. 7)
 
         
 
              Mark B. Kirkland, M.D., wrote on December 30, 1985:  "I 
 
         performed a partial medial meniscectomy on Larry.  He has a 5% 
 
         permanent functional impairment."  (Jt. Ex. E, p. 18)
 
         
 
              As to the May 9, 1986 injury, Dr. Bashara testified that he 
 
         had reviewed claimant's records and medical history.  Dr. Bashara 
 
         was asked the following:
 
         
 
              Q.  I want to ask you if the patient, from your examination 
 
              and the records you looked at, whether or not you have an 
 
              opinion, within a reasonable degree of medical certainty, as 
 
              to whether or not he had any permanent partial impairment in 
 
              his neck on account of that latest injury which you 
 
              described?
 
 
 
                           
 
                                                         
 
         
 
              A.  Yes.
 
         
 
              Q.  And what is that opinion?
 
         
 
              A.  My opinion is that he has a ten percent permanent 
 
              partial physical impairment of his body as a whole, related 
 
              to the neck injury of 5-9-86.
 
         
 
              Q.  And did you use the AMA guides for that rating, also?
 
         
 
              A.  That rating was taken from both the second edition of 
 
              the AMA Guides for Evaluating Permanent Impairment, pages 
 
              48, 49, and from the Manual for Orthopedic Surgeons in 
 
              Evaluating Permanent Physical Impairment, page 26, 
 
              subparagraph 1b.
 
         
 
              Q.  And do you have an opinion, within a reasonable degree 
 
              of medical certainty, as to whether or not there's a causal 
 
              relationship between the impairment you have just described 
 
              and the injury which he sustained on 5-9-86?
 
         
 
              A.  Yes.
 
         
 
              Q.  And what is that opinion?
 
         
 
              A.  That the permanent partial physical impairment that I've 
 
              previously described is related to an injury at work on 
 
              5-9-86.
 
         
 
                  ....
 
         
 
              Q.  Mr. Masear had a fusion of his neck many years ago, 
 
              prior to this injury.  In your professional opinion, what 
 
              amount of permanent impairment would he have had resulting 
 
              from that fusion?
 
         
 
              A.  My opinion to the answer to your question would be that 
 
              it would be somewhere in the range of 15 percent.
 
         
 
              Q.  Of the body as a whole?
 
         
 
              A.  Yes.
 
         
 
         (Bashara Dep., Jt. Ex. A, pp. 9-10,.42-43)
 
         
 
              Kelly Bast, M.D., testified as to his treatment of claimant 
 
         for his May 9, 1986 injury as follows:
 
         
 
              Q.  And do you have an opinion, within a reasonable degree 
 
              of medical certainty, as to whether or not there's a causal 
 
              relationship between the accident of May, 1986, which he 
 
              described to you, and these problems you have just 
 
              described?
 
         
 
                                                
 
                                                         
 
              A.  Yes, I do.
 
         
 
              Q.  And what is that opinion?
 
         
 
              A.  My opinion is that incident that occurred May 9, 1986, 
 
              is directly responsible for his pains that he's still having 
 
              now.
 
         
 
                  ....
 
         
 
              Q.  Now, in a clinical note of November 5th of 186 you gave 
 
              a permanent partial impairment rating.  Would you please 
 
              tell the Deputy Industrial Commissioner what that rating 
 
              was?
 
         
 
              A.  My impression was that he had an impairment of 25 
 
              percent of the right upper extremity.  This was his dominent 
 
              [sic] arm, and I calculated this to be a 15 percent 
 
              impairment to the whole person.  And the degree of 
 
              impairment mainly consisted of the degree of pain and the 
 
              radiation of nerve pain that he had from the use of this arm 
 
              that impaired him from being able to use it in activities.
 
         
 
         (Bast Dep., Jt. Ex. B, pp- 8-10)
 
         
 
              Dr. Bast later testified in reference to his clinical notes 
 
         of August 27, 1987 that the impairment rating at that time based 
 
         on Dr. Bast detecting some atrophy of the muscles.
 
         
 
         
 
              A.  ...would be more of a 30 percent impairment of the upper 
 
              extremity, rather than 25 percent as previous, which 
 
              correlates to an 18 percent impairment to the whole man."
 
         
 
                  ....
 
         
 
              Q.  ...Did you ever discuss with Larry Masear any connection 
 
              at all between his retiring and the problem caused by his 
 
              injury of May of 1986?
 
         
 
              A.  Yes, I did.
 
         
 
              Q.  And could you tell the Deputy Industrial Commissioner 
 
              what you think about that?
 
         
 
              A.  Well, he was pretty much of a workaholic type of person. 
 
              He was still driving, going through pains putting his arm in 
 
              different positions.  More than what -- much more than the 
 
              average person would be doing.  He had stated he didn't have 
 
              that much longer that he could go until he could retire, and 
 
              was trying to make it so that his retirement could be as 
 
              much as possible for his future.
 
         
 
                  When it got to a point where the pain was getting too 
 
              much for him, he said, "Well, I think I might need to 
 
                                                
 
                                                         
 
                   retire," and I told him that would be a good idea to help 
 
              lessen his overall pain.
 
         
 
         (Bast Dep., Jt. Ex. B, pp. 12-13)
 
         
 
              Dr. Bast indicated that his rating pursuant to his visit 
 
         with claimant on August 27, 1987 did not include limitation of 
 
         motion. Dr. Bast stated his opinion was based upon claimant's 
 
         complaints of pain, evidence of atrophy and nerve damage.  Dr. 
 
         Bast testified there was rotation of motion limitation of the 
 
         neck but there was not a limitation of motion in claimant's 
 
         shoulder or upper extremities.  Dr. Bast admitted that he did not 
 
         find any clinical signs in his examination of claimant shortly 
 
         after the injury of May 9, 1986 that would have led him to 
 
         believe that the claimant suffered a cervical disc injury at that 
 
         time.
 
         
 
              Raymond L. Webster, M.D., examined claimant on April 14, 
 
         1987 after having been referred to him by defendants.  Dr. 
 
         Webster was not able to render an opinion as to whether claimant 
 
         had any permanent partial impairment.  Dr. Webster testified that 
 
         he subsequently obtained an MRI scan which was basically abnormal 
 
         and that pursuant to an EMG study and the MRI study he concluded 
 
         that claimant needed an evaluation by someone more qualified than 
 
         Dr. Webster and therefore referred claimant to Thomas Carlstrom, 
 
         M.D.
 
         
 
              Pursuant to Dr. Carlstrom's examination of claimant on June 
 
         11, 1987, he wrote:
 
         
 
              Twenty years ago, he had undergone an anterior cervical 
 
              fusion at both the C-5, 6 and C-6, 7 levels, by my partner, 
 
              Dr. Robert Hayne.
 
         
 
                   ....
 
         
 
                   He seems to have radicular symptoms, but little in the 
 
              way of findings.  I reviewed his MRI scan which isn't 
 
              particularly helpful, particularly in light of the two-level 
 
              fusion which had been done earlier and it's hard to tell 
 
              exactly what the condition of the intraspinal contents are.  
 
              I did not, however, see any.significant nerve root 
 
              impingement.
 
         
 
                   I think he probably should have a myelogram if we wish 
 
              to consider surgery any more seriously.  I gave him a Medrol 
 
              dosepack to try, and will hear back from him with respect to 
 
              any change in his symptoms.  Basically, I don't think he is 
 
              an excellent surgical candidate, and will probably do best 
 
              with the medical retirement which he desires.
 
         
 
         (Jt. Ex. E, p. 9)
 
         
 
              Dr. Carlstrom saw claimant again on September 8, 1987, and 
 
         wrote:
 
                                                
 
                                                         
 
         
 
              He is continuing basically to have the same type of 
 
              symptoms, with shoulder pain, numbness and tingling in his 
 
              arm, and significant exacerbation with activity.  He 
 
              currently is not working, having retired early.
 
         
 
                   His exam is essentially unchanged from previous exams, 
 
              with diminished range of motion of his neck, and a normal 
 
              neurologic exam.
 
         
 
                   I think this patient has experienced a permanent injury 
 
              to his neck and right shoulder, and I don't believe any 
 
              further evaluation or treatment is required.  I think he 
 
              probably has suffered about a 3-4% impairment rating, of the 
 
              body as a whole, based upon the AMA criteria.
 
         
 
         (Jt. Ex. E, p. 11)
 
         
 
                           APPLICABLE LAW AND ANALYSIS
 
         
 
              The claimant has the burden of proving by a preponderance of 
 
         the evidence that the injuries of May 22, 1984 and May 9, 1986 
 
         are causally related to the disability on which he now bases his 
 
         claim.  Bodish v. Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867 
 
         (1965).  Lindahl v. L.O. Boggs, 236 Iowa 296, 18 N.W.2d 607 
 
         (1945).  A possibility is insufficient; a probability is 
 
         necessary.  Burt v. John Deere Waterloo Tractor Works, 247 Iowa 
 
         691, 73 N.W.2d 732 (1955).  The question of causal connection is 
 
         essentially within the domain of expert testimony.  Bradshaw v. 
 
         Iowa Methodist Hospital, 251 Iowa 375, 101 N.W.2d 167 (1960).
 
         
 
              However, expert medical evidence must be considered with all 
 
         other evidence introduced bearing on the causal connection.  
 
 
 
                           
 
                                                         
 
         Burt, 247 Iowa 691, 73 N.W.2d 732.  The opinion of experts need 
 
         not be couched in definite, positive or unequivocal language.  
 
         Sondag v. Ferris Hardware, 220 N.W.2d 903 (Iowa 1974).  However, 
 
         the expert opinion may be accepted or rejected, in whole or in 
 
         part, by the trier of fact.  Id. at 907.  Further, the weight to 
 
         be given to such an opinion is for the finder of fact, and that 
 
         may be affected by the completeness of the premise given the 
 
         expert and other surrounding circumstances.  Bodish, 257 Iowa 
 
         516, 133 N.W.2d 867.  See also Musselman v. Central Telephone 
 
         Co., 261 Iowa 352, 154 N.W.2d-128 (1967).
 
         
 
              While a claimant is not entitled to compensation for the 
 
         results of a preexisting injury or disease, the mere existence at 
 
         the time of a subsequent injury is not a defense.  Rose v. John 
 
         Deere Ottumwa Works, 247 Iowa 900, 908, 76 N.W.2nd 756, (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, (1962).
 
         
 
              When an aggravation occurs in the performance of an 
 
         employer's work and a causal connection is established, claimant 
 
         may recover to the extent of the impairment.  Ziegler v. United 
 
         States Gypsum Co., 252 Iowa 613, 620, 106 N.W.2d 591, (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 section 555(17)a.
 
         
 
              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, 252 Iowa 613, 620, 106 N.W.2d 591, and 
 
         cases cited.
 
         
 
              As a claimant has an impairment to the body as a whole, an 
 
         industrial disability has been sustained.  Industrial disability 
 
         was defined in Diederich v. Tri-City Railway Co., 219 Iowa 587, 
 
         593, 258 N.W. 899, 902 (1935) as follows:  "It is therefore plain 
 
         that the legislature intended the term 'disability' to mean 
 
         'industrial disability' or loss of earning capacity and not a 
 
         mere 'functional disability' to be computed in the terms of 
 
         percentages of the total physical and mental ability of a normal 
 
         man."
 
         
 
              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 85.34(1) provides that if an employee has 
 
         suffered a personal injury causing permanent partial disability, 
 
         the employer shall pay compensation for a healing period from the 
 
         day of the injury until (1) the employee returns to work; or (2) 
 
         it is medically indicated that significant improvement from the 
 
         injury is not anticipated; or (3) until the employee is medically 
 
         capable of returning to substantially similar employment.
 
         
 
              Iowa Code section 85.34(2) provides that compensation for 
 
         permanent partial disability shall begin at the termination of 
 
         the healing period.  Iowa Code section 85.34(2)"u" provides that 
 
         compensation for a nonscheduled or body as a whole injury shall 
 
         be paid in relation to 500 weeks that the disability bears to the 
 
         body as a whole.
 
         
 
              Functional impairment is an element to be considered in 
 
         determining industrial disability which is the reduction of 
 
         earning capacity, but consideration must also be given to the 
 
         injured employee's age, education, qualifications, experience and 
 
         inability to engage in employment for which he is fitted.  Olson 
 
         v. Goodyear Service Stores, 255 Iowa 1112, 125 N.W.2d 251 (1963). 
 
         Barton v. Nevada Poultry, 253 Iowa 285, 110 N.W.2d 660 (1961).
 
         
 
              A finding of impairment to the body as a whole found by a 
 
         medical evaluator does not equate to industrial disability.  This 
 
         is so as impairment and disability are not synonymous.  Degree of 
 
         industrial disability can in fact be much different than the 
 
         degree of impairment because in the first instance reference is 
 
         to loss of earning capacity and in the latter to anatomical or 
 
         functional abnormality or loss.  Although loss of function is to 
 
         be considered and disability can rarely be found without it, it 
 
         is not so that a degree of industrial disability is 
 
         proportionally related to a degree of impairment of bodily 
 
         function.
 
         
 
              Factors to be considered in determining industrial 
 
         disability include the employee's medical condition prior to the 
 
         injury, immediately after the injury, and presently; the situs of 
 
         the injury, its severity and the length of healing period; the 
 
         work experience of the employee prior to the injury, after the 
 
         injury and potential for rehabilitation; the employee's 
 
         qualifications intellectually, emotionally and physically; 
 
         earnings prior and subsequent to the injury; age; education; 
 
         motivation; functional impairment as a result of the injury; and 
 
         inability because of the injury to engage in employment for which 
 
         the employee is fitted. Loss of earnings,caused by a job transfer 
 
         for reasons related to the injury is also relevant.  These are 
 
         matters which the finder of fact considers collectively in 
 
         arriving at the determination of the degree of industrial 
 
         disability.
 
         
 
              There are no weighting guidelines that indicate how each of 
 
         the factors are to be considered.  There are no guidelines which 
 
         give, for example, age a weighted value of ten percent of the 
 
         total value, education a value of fifteen percent of total, 
 
                                                
 
                                                         
 
         motivation - five percent; work experience - thirty percent, etc. 
 
         Neither does a rating of functional impairment directly correlate 
 
         to a degree of industrial disability to the body as a whole.  In 
 
         other words, there are no formulae which can be applied and then 
 
         added up to determine the degree of industrial disability.  It 
 
         therefore becomes necessary for the deputy or commissioner to 
 
         draw upon prior experience, general and specialized knowledge to 
 
         make the finding with regard to degree of industrial disability.  
 
         See Peterson v. Truck Haven Cafe, Inc., (Appeal Decision, 
 
         February 28, 1985); Christensen v. Hagen, Inc., (Appeal Decision, 
 
         March 26, 1985).
 
         
 
              Claimant injured his knee when he slipped on the tire of his 
 
         truck while attempting to perform some maintenance work.  Dr. 
 
         Kirkland opined a 5 percent permanent partial impairment of the 
 
         left lower extremity and Dr. Bashara opined a 10 percent 
 
         permanent partial impairment of claimant's left lower extremity.  
 
         This impairment is to a scheduled member.  Dr. Kirkland saw 
 
         claimant for the purposes of treatment, which treatment first 
 
         began approximately one year after claimant's May 22, 1984 knee 
 
         injury. On around June 3, 1985, claimant had a removal of the 
 
         meniscus by surgery which resulted in the opinions of the doctors 
 
         as to impairment set out above.  The surgery and impairments were 
 
         causally related to claimant's injury of May 22, 1984.  Dr. 
 
         Kirkland followed claimant throughout the course of treatment for 
 
         the knee.  Dr. Bashara evaluated claimant on April 26, 1988 for 
 
         one time only for the sole purpose of evaluating claimant in the 
 
         context of litigation.  The greater weight of medical evidence 
 
         favors Dr. Kirkland's opinion.  Claimant is entitled to permanent 
 
         partial disability benefits equal to 5 percent of the left lower 
 
         extremity.
 
         
 
              Claimant was off work as a result of the May 22, 1984 injury 
 
         from May 27, 1985 to August 4, 1985 and is entitled to healing 
 
         period benefits for that period.
 
         
 
              Claimant was injured on May 9, 1986, when he was hit in the 
 
         head by a crank while letting down the dolly of his truck 
 
         resulting in an injury to his shoulder and cervical neck area. 
 
         Claimant is 62 years of age, completed ninth grade, and has had 
 
         no other formal education.  Claimant has worked mainly as a truck 
 
         driver for defendant employer since he began employment in 
 
         September 1954.  At the time of this injury, claimant was sixth 
 
         in seniority.
 
         
 
              Claimant's medical records indicate that he has had various 
 
         injuries or back problems for over twenty years.  In 1967, he had 
 
         herniated discs and fusion at C5-C6, C6-C7 and had a cervical 
 
         laminectomy.  In 1969, claimant hurt his back unloading trees 
 
         resulting in pain in his lower lumbar area.  In 1971, claimant 
 
         had treatment for low back pain and a laminectomy was performed 
 
         April 14, 1971 at L4 and L5.  Claimant complained of bursitis and 
 
         soreness in the back in 1974 and received treatment.  Claimant 
 
         fell off a truck and injured his low back at L2-3 in 1975.  In 
 
         1982, claimant complained of bursitis and neck and shoulder pain. 
 
                                                
 
                                                         
 
         It is not clear from the medical records that all of the doctors 
 
         treating this claimant and issuing an impairment percent, in 
 
         fact, had all the actual medical records and information and 
 
         history of this claimant.
 
         
 
              Medical testimony is undisputed that the disability for 
 
         which claimant now complains as to his shoulder, neck and back 
 
         area is causally connected to his injury of May 9, 1986 and this 
 
         causal connection is so found.
 
         
 
              Dr. Bast opined a 15 percent impairment to claimant's body 
 
         as a whole as a result of this injury.  Dr. Bashara opined a 10 
 
         percent impairment to the body as a whole as a result of this 
 
         same accident.  Dr. Carlstrom opined a 3 to 4 percent impairment 
 
         to claimant's body as a whole as a result of his accident.
 
         
 
              Claimant continued to work after the injury for five months 
 
         until claimant retired with his last day of work on November 28, 
 
         1986 at which time claimant turned 60.  Claimant testified that 
 
         he understood that if he continued working any longer he would 
 
         not increase his retirement benefits by retiring at a later date 
 
         and that at the age of 60 he had reached the maximum retirement 
 
         benefits to which he would be entitled.  Claimant also testified 
 
         that he was having marital problems with his wife who had been 
 
         ill for the last fifteen years.  Claimant blamed this marital 
 
         problem on the effects his injury had on his pain and fatigue 
 
         that was caused by this May 9, 1986 injury and his continuing to 
 
         work. Claimant had a very high seniority and the testimony shows 
 
         that claimant could have bid in and most likely obtained a job as 
 
         a tow man, which job was a lot less strenuous and a job to which 
 
         claimant could work without violating any of the medical 
 
         restrictions placed on him.  Claimant chose not to bid and in 
 
         fact had not given any indication to defendants that he was 
 
                           
 
                                                         
 
         intending to retire.  Defendants, in fact, did not realize that 
 
         when claimant retired, it was injury related.  Claimant was 
 
         making approximately $45,000 per year as a truck driver and the 
 
         tow man job would have enabled claimant to earn up to $30,000 per 
 
         year. Although claimant continued to work at his $45,000 per year 
 
         job until his retirement, he did have a chance to obtain a job 
 
         making $32,000 but in fact chose to retire.  Claimant's 
 
         retirement enabled him to receive a yearly income of 
 
         approximately $21,000 which type of income he would not have been 
 
         entitled to had he chosen to continue working.  Claimant has a 
 
         loss of earning capacity considering his age, education, and his 
 
         medical impairment.  The extent of this impairment has been 
 
         affected by claimant's voluntary retirement that must be 
 
         considered.  Claimant has an industrial disability of 10 
 
         percent.
 
         
 
              Since claimant did not miss work as a result of his May 9, 
 
         1986 injury, claimant is entitled to no healing period benefits.
 
         
 
                             FINDINGS OF FACT
 
         
 
              WHEREFORE, it is found:
 
         
 
              1.  Claimant injured his left knee on May 22, 1984 while 
 
         working for defendant employer.
 
         
 
              2.  Surgery to remove the meniscus on claimant's left knee 
 
         on or around June 3, 1985 was a result of claimant's May 22, 1984 
 
         injury.
 
         
 
              3.  Claimant's disability to his lower extremity is a result 
 
         of his injury of May 22, 1984.
 
         
 
              4.  Claimant has a 5 percent impairment to his left lower 
 
         extremity as a result of his injury of May 22, 1984.
 
         
 
              5.  Claimant incurred a healing period as a result of the 
 
         May 22, 1984 injury from and including May 27, 1985 up to and 
 
         including August 4, 1985.
 
         
 
              6.  The weekly rate of compensation for.claimant's May 22, 
 
         1984 injury is $423.52 per week.
 
         
 
              7. Claimant injured his shoulder and cervical neck area on 
 
         May 9, 1986 when he was struck by a crank while letting down the 
 
         dolly on his truck.
 
         
 
              8. Claimant has a 10 percent impairment to his shoulder and 
 
         cervical area which is a result of his injury of May 9, 1986.
 
         
 
              9.  Claimant voluntarily retired from his job with defendant 
 
         employer on November 28, 1986.
 
         
 
              10.  Claimant could have had his same job with defendant 
 
         employer that he had on May 9, 1986 or could have had another job 
 
                                                
 
                                                         
 
         with defendant employer which would have been less strenuous and 
 
         paying approximately 30 percent less income.
 
         
 
              11.  Claimant has a loss of earning capacity as a result of 
 
         his injury of May 9, 1986.
 
         
 
              12.  The weekly rate of compensation of claimant for the May 
 
         9, 1986 injury is $488.24.
 
         
 
                           CONCLUSIONS OF LAW
 
         
 
              THEREFORE, it is concluded:
 
         
 
              Claimant's injury on May 22, 1984 arose out of and in the 
 
         course of his employment.
 
         
 
              Claimant's impairment to his left lower extremity is 
 
         causally connected to his injury on May 22, 1984.
 
         
 
              Claimant has a 5 percent impairment to his left lower 
 
         extremity as a result of his injury of May 22, 1984.
 
         
 
              Claimant is entitled to healing period benefits for 10 weeks 
 
         beginning with May 27, 1985 to and including August 4, 1985 at 
 
         the rate of $423.52.
 
         
 
              Claimant's shoulder and cervical area injury on May 9, 1986 
 
         arose out of and in the course of his employment.
 
         
 
              Claimant's disability to his shoulder and cervical neck area 
 
         is causally connected to his injury of May 9, 1986.
 
         
 
              Claimant incurred a 10 percent industrial disability as a 
 
         result of his injury of May 9, 1986.
 
         
 
              Claimant is entitled to no healing period benefits as 
 
         claimant was not off work as a result of his May 9, 1986 injury.
 
         
 
              Claimant's weekly benefit rate for the May 9, 1986 injury is 
 
         $488.24.
 
         
 
                                  ORDER
 
         
 
              THEREFORE, it is ordered:
 
         
 
              Defendants are to pay unto claimant eleven (11) weeks of 
 
         permanent partial disability at the stipulated rate of four 
 
         hundred twenty-three and 52/100 dollars ($423.52) per week 
 
         commencing August 5, 1985 for the injury of May 22, 1984.
 
         
 
              Defendants are to pay unto claimant healing period benefits 
 
         for ten (10) weeks beginning May 27, 1985 to and including August 
 
         4, 1985 at the stipulated rate of four hundred twenty-three and 
 
         52/100 dollars ($423.52) for the injury of May 22, 1984.
 
         
 
                                                
 
                                                         
 
              Defendants are to pay unto claimant fifty (50) weeks of 
 
         permanent partial disability benefits at the stipulated rate of 
 
         four hundred eighty-eight and 24/100 dollars ($488.24) beginning 
 
         November 29, 1986 for the May 9, 1986 injury.
 
         
 
              Defendants shall receive credit for benefits already paid.
 
         
 
              Defendants shall pay the accrued weekly benefits in a lump 
 
         sum.
 
         
 
              Defendants shall pay interest on benefits awarded herein as 
 
         set forth in Iowa Code section 85.30.
 
         
 
              Defendants shall pay the costs of this action pursuant to 
 
         Division of Industrial Services Rule 343-4.33.
 
         
 
              Defendants shall file an activity report upon payment 
 
         of.this award as required by this agency pursuant to Division of 
 
         Industrial Services Rule 343-3.1.
 
         
 
              Signed and filed this 17th day March, 1989.
 
         
 
         
 
         
 
         
 
         
 
                                            BERNARD J. O'MALLEY
 
                                             DEPUTY INDUSTRIAL 
 
         COMMISSIONER
 
         
 
         Copies to:
 
         
 
         Mr. Barry Moranville
 
         Attorney at Law
 
         974 73rd St Suite 16
 
         Des Moines, IA  50312
 
         
 
         Mr. W. C. Hoffmann
 
         Mr. Richard G. Book
 
         Attorneys at Law
 
         500 Liberty Bldg
 
         Des Moines, IA  50309
 
         
 
         
 
         
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
                                                
 
 
            
 
 
 
             
 
 
 
 
 
                                            1803; 1803.1
 
                                            Filed March 17, 1989
 
                                            Bernard J. O'Malley
 
         
 
               BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         LAWRENCE M. MASEAR,
 
         
 
              Claimant,
 
                                                  File Nos. 795854
 
         vs.                                                834958
 
         
 
         SUPER VALU STORES, INC.,              A R B I T R A T I 0 N
 
         
 
              Employer,                           D E C I S I 0 N
 
         
 
         and
 
         
 
         LIBERTY MUTUAL INSURANCE CO.,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         1803.1
 
         
 
              Claimant awarded benefits based on 5% impairment to his left 
 
         lower extremity resulting from May 22, 1984 injury.
 
         
 
         1803
 
         
 
              Claimant awarded 10% industrial disability as a result of an 
 
         injury on May 9, 1986 to his shoulder and neck.
 
         
 
              The extent of claimant's industrial disability was affected 
 
         by his voluntary retirement from his job with employer.  Claimant 
 
         could have continued working for employer at same job or claimant 
 
         could have had another job with employer that was less strenuous 
 
         and paying 30% less income.
 
         
 
         
 
         
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
                                                
 
 
        
 
 
 
 
 
                       BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
        
 
        
 
        JANICE A. MENDEZ,
 
        
 
            Claimant,
 
        
 
        vs.                               File No. 795862
 
        
 
        MERCY HOSPITAL MEDICAL CENTER,       A P P E A L
 
        
 
            Employer,                     D E C I S I O N
 
        
 
        and
 
        
 
        THE AETNA CASUALTY AND SURETY
 
        COMPANY,
 
        
 
            Insurance Carrier,
 
            Defendants.
 
        
 
        
 
                                 STATEMENT OF THE CASE
 
        
 
        Defendants appeal from an arbitration decision awarding healing 
 
        period benefits and permanent partial disability benefits based 
 
        upon an industrial disability of 25 percent resulting from 
 
        injuries on April 26, 1985 and May 16, 1985.
 
        
 
        The record on appeal consists of the transcript of the 
 
        arbitration hearing and the exhibits listed in the prehearing 
 
        report. Both parties filed briefs on appeal.
 
        
 
                                      ISSUES
 
        
 
        The issues on appeal are whether claimant received an injury that 
 
        arose out of and in the course of her employment and the nature 
 
        and extent of claimant's alleged disability.
 
        
 
                                 REVIEW OF THE EVIDENCE
 
        
 
        The arbitration decision adequately and accurately reflects the 
 
        pertinent evidence and it will not be totally reiterated herein.
 
        
 
        Claimant testified that she was born February 28, 1959 and was 28 
 
        years old at the time of the arbitration hearing. She stated that 
 
        she had prior work experience as a housekeeper, a waitress and a 
 
        nursing assistant. She had completed training as a nursing 
 
        assistant and a nursing program at a community college. She began 
 
        work in June 1982, at Des Moines General Hospital in a full-time 
 
        position as a registered nurse. Her
 
        
 
        MENDEZ v. MERCY HOSPITAL MEDICAL CENTER 
 
        Page 2
 
        
 
        
 
        work included moving patients from a cart to their bed, the 
 
        bathroom, into the tub and in and out of bed. On March 31, 1983, 
 
        February 19, 1984 and November 1, 1984 she had back pain while 
 
        moving patients. (Exhibit 6, pages 153, 156 and 159) Claimant 
 
        reported each of those incidents to her supervisor on the same 
 
        day they occurred. The only treatment noted for these events was 
 
        bed rest for the night following the February 19, 1984 incident. 
 

 
        
 
 
 
 
 
        Claimant stated she could not remember missing any work with Des 
 
        Moines General Hospital because of her back. She ceased 
 
        employment at Des Moines General Hospital in January 1985.
 
        
 
        Claimant testified that she began work as a registered nurse in a 
 
        part-time position for defendant employer on February 11, 1985. 
 
        She stated that on April 28, 1985, she was working the 3:00 to 
 
        11:00 shift in the progressive cardiac unit. She stated she 
 
        injured her back while lifting a disoriented patient into bed. 
 
        She continued to work but went home early because the number of 
 
        patients in the hospital was down. Claimant did not report this 
 
        incident to her supervisors on the day it occurred. She continued 
 
        to work after that day but on May 9, 1985 sought care with Peter 
 
        D. Wirtz, M.D., because of the "bothersome" condition in her low 
 
        back. Claimant indicated that on May 16, 1985, when she was 
 
        getting into her locker to get her uniform, she had a very sharp 
 
        pain in her low back. She told her supervisors about this 
 
        episode. She sought treatment in the emergency room where she was 
 
        referred to Marshall Flapan, M.D. Claimant was eventually seen by 
 
        William R. Boulden, M.D. Claimant testified that Dr. Boulden did 
 
        not do the type of examination that Dr. Flapan had.
 
        
 
        Claimant did not return to work with defendant employer. She 
 
        began working at the Blood Center on September 16, 1985. She 
 
        describes that in this job she carried equipment, set up tables 
 
        and moves chairs, and does bending, stooping and lifting. She 
 
        stated that leaning forward or being in a bent over position is 
 
        the problem in her work.
 
        
 
        Nancy DeVore, workers' compensation coordinator for the defendant 
 
        employer, testified that it was her understanding the incident 
 
        date on an incident report was changed from April 28, 1985 to 
 
        April 26, 1985 when it was discovered that claimant worked on 
 
        April 26 but not April 28.
 
        
 
        The admitting form for the emergency room dated May 16, 1985 (Ex. 
 
        2, pp. 27 & 28) indicated that the case was not workers' 
 
        compensation and the nursing assessment was: "c/o lower back 
 
        pain. Started 2 wks ago seen by Dr. Wirtz for this. severe today 
 
        while dressing for work causing difficulty standing & walking."
 
        
 
        A note made by either Dr. Wirtz or a Dr. Naanep dated May 9, 
 
        1985, noted that claimant had had lower back problems
 
        
 
        MENDEZ v. MERCY HOSPITAL MEDICAL CENTER
 
        Page 3
 
        
 
        
 
        off and on since May 1, 1985 and that the diagnosis was 
 
        musculoskeletal strain, lower back. The same medical record (Ex. 
 
        1, p. 13) noted that on May 16, 1985 the claimant was spoken to 
 
        on the phone.
 
        
 
        Claimant was treated by Dr. Flapan, an orthopedic surgeon. In a 
 
        letter dated September 13, 1985, Dr. Flapan wrote:
 
        
 
        [I]t is my opinion that Janice Mendez' current back problems are 
 
        results of episodes she describes which occurred on April 28, 
 
        1985 while at work in the Cardiac Unit at Mercy and subsequent 
 
        aggravation of her back problems on May 16, 1985. It is my 
 
        opinion that these episodes were the causative incidents which 
 
        have resulted in her continuing problems with her back.
 
        
 
        (Ex. 1, p.2)
 
        
 
        In a letter dated September 15, 1985, Dr. Flapan wrote:
 

 
        
 
 
 
 
 
        
 
        The injury that Janice sustained has produced a permanent partial 
 
        physical impairment to her body as a whole in the amount of 10% 
 
        of the body as a whole.
 
        
 
        I would caution Ms. Mendez about bending, lifting and straining 
 
        while at work. I would put lifting restrictions of 25 lbs. on her 
 
        activity.
 
        
 
        (Ex. 1, p. 1)
 
        
 
        Dr. Boulden, an orthopaedic surgeon, examined claimant three 
 
        times in February and March, 1986. In a letter dated October 7, 
 
        1986, Dr. Boulden wrote:
 
        
 
        I had found no objective clinical findings on this patient, and I 
 
        had found a negative CAT scan. Therefore, I felt that we were 
 
        dealing with a chronic weak back syndrome, and in my opinion, had 
 
        not found anything objectively to rate her out with.
 
        
 
        I am not sure if anything has been found since my last visit with 
 
        her in March of 1986, but if nothing else has been found, then I 
 
        cannot really concur with the fact of the 10% disability rating.
 
        
 
        
 
        
 
        In reference to restrictions, I feel that the patient should not 
 
        do any bending, stooping, or lifting with her back, or prolonged 
 
        sitting.
 
        
 
        (Ex. 1, p. 11)
 
        
 
        MENDEZ v. MERCY HOSPITAL MEDICAL CENTER
 
        Page 4
 
        
 
        
 
        A note from Dr. Boulden dated February 27, 1986, indicated that a 
 
        "CAT scan was completely normal."
 
        
 
                                 APPLICABLE LAW
 
        
 
        Claimant has the burden of proving by a preponderance of the 
 
        evidence that she received an injury which arose out of and in 
 
        the course of her employment. McDowell v. Town of Clarksville, 
 
        241 N.W.2d 904 (Iowa 1976); Musselman v. Central Telephone Co., 
 
        261 Iowa 352, 154 N.W.2d 128 (1967).
 
        
 
        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(1).
 
        
 
        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
 
        
 
        
 

 
        
 
 
 
 
 
        "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.
 
        
 
        The claimant must prove by a preponderance of the evidence that 
 
        her injury arose out of and in the course of her employment. 
 
        Musselman, 261 Iowa 352, 154 N.W.2d 128.
 
        
 
        In the course of employment means that the claimant must prove 
 
        her injury occurred at a place where she reasonably may be 
 
        performing her duties. McClure, 188 N.W.2d 283.
 
        
 
        Arising out of suggests a causal relationship between the 
 
        employment and the injury. Crowe, 246 Iowa 402, 68 N.W.2d
 
        
 
        
 
        The claimant has the burden of proving by a preponderance of the 
 
        evidence that the injury is causally related to the disability on 
 
        which she now bases her claim. Bodish v. Fischer,
 
        
 
        MENDEZ v. MERCY HOSPITAL MEDICAL CENTER
 
        Page 5
 
        
 
        
 
        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).
 
        
 
        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).
 
        
 
        As a claimant has an impairment to the body as a whole, an 
 
        industrial disability has been sustained. Industrial disability 
 
        was defined in Diederich v. Tri-City Railway Co., 219 Iowa 587, 
 
        593, 258 N.W. 899, 902 (1935) as follows: "It is therefore plain 
 
        that the legislature intended the term 'disability' to mean 
 
        'industrial disability' or loss of earning capacity and not a 
 
        mere 'functional disability' to be computed in the terms of 
 
        percentages of the total physical and mental ability of a normal 
 
        man."
 
        
 
        The opinion of the supreme court in Olson v. Goodyear Service 
 
        Stores, 255 Iowa 1112, 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, qualifications, experience and his inability, 
 
        because of the injury, to engage in employment for which he is 
 
        fitted. * * * *
 
        
 
        
 
        Functional impairment is an element to be considered in 
 
        determining industrial disability which is the reduction of 
 

 
        
 
 
 
 
 
        earning capacity, but consideration must also be given to the 
 
        injured employee's age, education, qualifications, experience and 
 
        inability to engage in employment for which he is fitted. Olson, 
 
        255 Iowa 1112, 1121, 125 N.W.2d 251, 257.
 
        
 
        In Parr v. Nash Finch Co., (Appeal Decision, October 31, 1980) 
 
        the industrial commissioner, after analyzing the decisions of 
 
        McSpadden v. Big Ben Coal Co., 288 N.W.2d 181 (Iowa 1980) and 
 
        Blacksmith v. All-American, Inc., 290 N.W.2d 348 (Iowa 1980), 
 
        stated:
 
        
 
        Although the court stated that they were looking for the 
 
        reduction in earning capacity it is undeniable
 
        
 
        MENDEZ v. MERCY HOSPITAL MEDICAL CENTER
 
        Page 6
 
        
 
        
 
        that it was the "loss of earnings" caused by the job transfer for 
 
        reasons related to the injury that the court was indicating 
 
        justified a finding of "industrial disability." Therefore, if a 
 
        worker is placed in a position by his employer after an injury to 
 
        the body as a whole and because of the injury which results in an 
 
        actual reduction in earning, it would appear this would justify 
 
        an award of industrial disability. This would appear to be so 
 
        even if the worker's "capacity" to earn has not been diminished.
 
        
 
        A finding of impairment to the body as a whole found by a medical 
 
        evaluator does not equate to industrial disability. This is so as 
 
        impairment and disability are not synonymous. Degree of 
 
        industrial disability can in fact be much different than the 
 
        degree of impairment because in the first instance reference is 
 
        to loss of earning capacity and in the later to anatomical or 
 
        functional abnormality or loss. Although loss of function is to 
 
        be considered and disability can rarely be found without it, it 
 
        is not so that a degree of industrial disability is 
 
        proportionally related to a degree of impairment of bodily 
 
        function.
 
        
 
        Factors to be considered in determining industrial disability 
 
        include the employee's medical condition prior to the injury, 
 
        immediately after the injury, and presently; the situs of the 
 
        injury, its severity and the length of healing period; the work 
 
        experience of the employee prior to the injury, after the injury 
 
        and potential for rehabilitation; the employee's qualifications 
 
        intellectually, emotionally and physically; earnings prior and 
 
        subsequent to the injury; age; education; motivation; functional 
 
        impairment as a result of the injury; and inability because of 
 
        the injury to engage in employment for which the employee is 
 
        fitted. Loss of earnings caused by a job transfer for reasons 
 
        related to the injury is also relevant. These are matters which 
 
        the finder of fact considers collectively in arriving at the 
 
        determination of the degree of industrial disability.
 
        
 
        There are no weighting guidelines that indicate how each of the 
 
        factors are to be considered. There are no guidelines which give, 
 
        for example, age a weighted value of ten percent of the total 
 
        value, education a value of fifteen percent of total, motivation 
 
        five percent; work experience - thirty percent, etc. Neither does 
 
        a rating of functional impairment directly correlate to a degree 
 
        of industrial disability 'o the body as a whole. In other words, 
 
        there are no formulae which can be applied and then added up to 
 
        determine the degree of industrial disability. It therefore 
 
        becomes necessary for the deputy or commissioner to draw upon 
 
        prior experience, general and specialized knowledge to make the 
 
        finding with regard to
 

 
        
 
 
 
 
 
        
 
        MENDEZ v. MERCY HOSPITAL MEDICAL CENTER
 
        Page 7
 
        
 
        
 
        degree of industrial disability. See Peterson v. Truck Haven 
 
        Cafe, Inc., (Appeal Decision, February 28, 1985); Christensen v. 
 
        Hagen, Inc., (Appeal Decision, March 26, 1985).
 
        
 
                                      ANALYSIS
 
        
 
        The first issue to be resolved is whether claimant suffered an 
 
        injury that arose out of and in the course of her employment. The 
 
        incident, as described by the claimant in which she was lifting a 
 
        patient, is undisputed. Claimant was performing a task that was 
 
        common in her job with this employer. It was reasonable to expect 
 
        that the claimant would be doing what she was doing in the course 
 
        of her employment.
 
        
 
        Defendants, in arguing that claimant did not suffer an injury 
 
        that arose out of and in the course of her employment, make much 
 
        of the facts that the date of the original incident may have been 
 
        incorrectly reported, that the claimant did not immediately 
 
        inform her supervisors, and that certain reports indicate that 
 
        the injury was not a workers' compensation injury. While it is 
 
        somewhat troubling that claimant did not report the April 
 
        incident to her supervisors as she had done when she had injured 
 
        herself when working for her former employer, the claimant has 
 
        nonetheless been consistent in statements made to her physicians 
 
        and in her testimony as to the particular injurious events. 
 
        Claimant's failure to immediately report her April injury to her 
 
        supervisors may well be explained by the fact that her injuries 
 
        with her former employer did not result in claimant having to 
 
        miss work or take extended treatment and, therefore, claimant did 
 
        not immediately report an injury which she did not anticipate 
 
        would require her to take extended treatment and miss work. 
 
        Claimant did, however, report the incident in May in which she 
 
        had more severe pain (Transcript p. 149, line 21 - p. 150, line 
 
        5). Merely because some forms that may or may not have been 
 
        completed from information supplied by claimant indicate that 
 
        claimant's injuries were not workers' compensation injuries, does 
 
        not mean that claimant's injuries are not work related. 
 
        Claimant's testimony on how the incidents happened is undisputed. 
 
        Claimant sought treatment for and reported to physicians for an 
 
        injury consistent with claimant's description of the injury and 
 
        incident. The medical reports are consistent with an injury that 
 
        would have resulted from the incidents as described by the 
 
        claimant. Claimant suffered an injury on April 26, 1985 that 
 
        arose out of and in the course of her employment. That injury was 
 
        aggravated in a work-related incident on May 16, 1985 when 
 
        claimant was taking her uniform from her locker. The aggravation 
 
        caused by the incident on May 16, 1985 was not significant and 
 
        did not increase the permanency of claimant's condition.
 
        
 
        The second issue to be resolved is the extent of claimant's 
 
        industrial disability. Dr. Flapan opines that claimant has
 
        
 
        MENDEZ v. MERCY HOSPITAL MEDICAL CENTER
 
        Page 8
 
        
 
        
 
        a ten percent permanent partial impairment. Dr. Boulden did not 
 
        give a rating of impairment and indicated he did not find any 
 
        objective evidence of an injury. However, Dr. Boulden did impose 
 
        certain restrictions on claimant's activity. Claimant has 
 
        suffered a permanent partial impairment to her back.
 

 
        
 
 
 
 
 
        
 
        In discussing the extent of claimant's industrial disability, the 
 
        deputy stated:
 
        
 
        Claimant's past employment primarily [sic] consists of nursing 
 
        work. Claimant has worked her way up the ladder starting as a 
 
        nurse's aide and eventually completing her training at a 
 
        community college to qualify as a registered nurse. During all of 
 
        her previous employment prior to her current job at the blood 
 
        bank, claimant was required to lift, bend, twist and stoop along 
 
        with sit and stand for prolonged periods of time in order to 
 
        perform her nursing duties. Therefore, the evidence demonstrates 
 
        that as a result of her functional impairment and physician 
 
        imposed restrictions, claimant is unable to return to the type of 
 
        nursing work she was performing at the time of the work injury 
 
        and most other nursing jobs claimant has held in the past. 
 
        Mercy's workers' compensation coordinator testified at hearing 
 
        that Mercy has instituted a program since claimant left which is 
 
        specifically developed to accommodate injured nurses and provide 
 
        them with light duty work. Although claimant did not return to 
 
        Mercy after resigning in September, 1985, to take the blood bank 
 
        job to inquire as to such other light duty nursing jobs, Mercy, 
 
        on the other hand did not offer employment either. Therefore, 
 
        claimant has demonstrated a very significant loss of earning 
 
        capacity as a result of her work related back difficulties.
 
        
 
        On the other hand, claimant's rehabilitation is unnecessary 
 
        because claimant has found suitable replacement employment. 
 
        Although her back continues to give her problems, she is earning 
 
        in her current job on a per hour rate close to the same money she 
 
        was earning at Mercy.
 
        
 
        Claimant is 28 years of age, has a post high school education and 
 
        exhibited above average intelligence at the hearing. Claimant has 
 
        high potential for successful vocational rehabilitation should 
 
        she lose her current job at the blood bank.
 
        
 
        Claimant is relatively young and is more apt to adjust to a new 
 
        occupation. Her loss of earning capacity due to disability is 
 
        less severe than would be the case for an older person without an 
 
        educational background.
 
        
 
        MENDEZ v. MERCY HOSPITAL MEDICAL CENTER
 
        Page 9
 
        
 
        
 
        When all factors are considered, the deputy correctly concluded 
 
        that claimant has suffered an industrial disability of 25 
 
        percent.
 
        
 
                                 FINDINGS OF FACT
 
        
 
        1. Claimant was born February 28, 1959 and was 28 years old at 
 
        the time of the arbitration hearing.
 
        
 
        2. Claimant has completed high school and a nursing program and 
 
        is a registered nurse.
 
        
 
        3. Claimant has had prior work experience as a housekeeper, a 
 
        waitress and a nursing assistant.
 
        
 
        4. Claimant was employed by defendant Mercy Hospital Medical 
 
        Center as a registered nurse.
 
        
 
        5. Part of claimant's duties included lifting patients into and 
 
        out of bed.
 

 
        
 
 
 
 
 
        
 
        6. On April 26, 1985, claimant injured her back while lifting a 
 
        patient.
 
        
 
        7. Claimant continued to work but sought medical treatment from 
 
        Dr. Wirtz on May 9, 1985 because of her lower back condition.
 
        
 
        8. On May 16, 1985, claimant had sharp pain in her lower back 
 
        while getting into her locker to get her uniform. This incident 
 
        aggravated her back injury which had occurred on April 26, 1985. 
 
        The aggravation on May 16, 1985 was not significant and did not 
 
        increase the permanency of claimant's condition.
 
        
 
        9. Claimant was unable to return to her work with defendant 
 
        employer due to her back condition.
 
        
 
        10. Claimant was given an impairment rating of ten percent of the 
 
        body as a whole by Dr. Flapan.
 
        
 
        11. Claimant was not given an impairment rating by Dr. Boulden 
 
        but Dr. Boulden placed restrictions on claimant on bending, 
 
        stooping or lifting with her back or prolonged sitting.
 
        
 
        12. Claimant did experience back problems with a former employer 
 
        but those prior back problems did not cause the claimant to miss 
 
        work and were not the cause of permanent physical impairment.
 
        
 
        13. Claimant works for a blood clinic and is able to carry 
 
        equipment and set up tables and chairs. Being in a bent-over 
 
        position causes claimant problems in this job.
 
        
 
        MENDEZ v. MERCY HOSPITAL MEDICAL CENTER
 
        Page 10
 
        
 
        
 
        14. Claimant's injury of April 26, 1985 arose out of and in the 
 
        course of her employment.
 
        
 
        15. Claimant has a loss of earning capacity of 25 percent as a 
 
        result of her injury of April 26, 1985.
 
        
 
                                 CONCLUSIONS OF LAW
 
        
 
        Claimant's injury of April 26, 1985 arose out of and in the 
 
        course of her employment with defendant Mercy Hospital Medical 
 
        Center.
 
        
 
        Claimant has an industrial disability of 25 percent as a result 
 
        of her April 26, 1985 injury.
 
        
 
        WHEREFORE, the decision of the deputy is affirmed.
 
        
 
                                      ORDER
 
                                                
 
        THEREFORE, it is ordered:
 
        
 
        That defendants shall pay to claimant one hundred twenty-five 
 
        (125) weeks of permanent partial disability benefits at the rate 
 
        of two hundred fourteen and 42/100 dollars ($214.42) per week 
 
        from September 7, 1985.
 
        
 
        That defendants shall pay to claimant healing period benefits 
 
        from May 16, 1985 through September 6, 1985 at the rate of two 
 
        hundred fourteen and 42/100 dollars ($214.42) per week.
 
        
 
        That defendants shall reimburse claimant the sum of three 
 

 
        
 
 
 
 
 
        thousand eight hundred ninety and 96/100 dollars ($3,890.96) for 
 
        medical expenses caused by the injuries.
 
        
 
        That defendants shall pay all accrued weekly benefits in a lump 
 
        sum.
 
        
 
        That defendants shall receive credit for previous payments of 
 
        benefits under a non-occupational group insurance plan, if 
 
        applicable and appropriate under Iowa Code section 85.38(2).
 
        
 
        That defendants shall pay interest on benefits awarded herein as 
 
        set forth in Iowa Code section 85.30.
 
        
 
        That defendants shall pay the cost of this action including the 
 
        costs of the appeal and transcription of the arbitration hearing 
 
        pursuant to Division of Industrial Services Rule 343-4.33.
 
        
 
        That defendants shall file activity reports on the payment of 
 
        this award as requested by this agency pursuant to Division of 
 
        Industrial Services Rule 343-3.1.
 
        
 
        MENDEZ v. MERCY HOSPITAL MEDICAL CENTER
 
        Page 11
 
        
 
        
 
        That this matter shall be sent back into assignment for 
 
        prehearing and hearing on the extent of additional weekly 
 
        benefits to which claimant may be entitled based upon an alleged 
 
        unreasonable delay in commencement of payment of benefits 
 
        pursuant to Iowa Code section 86.13.
 
        
 
        
 
        Signed and filed this 30th day of December, 1988.
 
        
 
        
 
        
 
                                       DAVID E. LINQUIST
 
                                    INDUSTRIAL COMMISSIONER
 
        
 
        
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                    BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         BONNIE FARREN,
 
         
 
              Claimant,
 
                                                     File No. 796069
 
         vs.
 
         
 
         GEIFMAN FOOD STORES, INC.,                    A P P E A L
 
         
 
              Employer,                              D E C I S I 0 N
 
         
 
         and
 
                                                        F I L E D
 
         LIBERTY MUTUAL INSURANCE
 
         COMPANY,                                      JAN 26 1988
 
         
 
              Insurance Carrier,              IOWA INDUSTRIAL COMMISSIONER
 
              Defendants.
 
         
 
         
 
                             STATEMENT OF THE CASE
 
         
 
              Claimant appeals from an arbitration decision denying 
 
         benefits.
 
         
 
              The record on appeal consists of the hearing transcript; and 
 
         joint exhibits A-J.  Both parties filed briefs on appeal.
 
         
 
                                     ISSUE
 
         
 
              Claimant states the following issue on appeal:
 
         
 
              Whether the deputy industrial commissioner erred in ruling 
 
         that insufficient credible evidence was presented upon which to 
 
         base a finding that claimant suffered an injury which arose out 
 
         of and in the course of her employment.
 
         
 
                            REVIEW OF THE EVIDENCE
 
         
 
              Review of the evidence indicates the summary of evidence in 
 
         the arbitration decision is adequate, and it will not be totally 
 
         reiterated herein.
 
         
 
              Briefly stated, claimant began work for defendant Geifman, a 
 
         grocery store, in 1961.  Her work consisted of both bookwork and 
 
         cashier work.  Claimant testified that on May 11, 1985 while 
 
         lifting an eight-pack carton of pop from a grocery cart, she felt 
 
         severe low back pain.  She reported the incident to her manager. 
 
         Claimant's husband testified he observed claimant in pain when 
 
         she came home from work, and two days later he took her to see 
 
         Dr. Birdsell, a chiropractor.  Claimant was off work until August 
 
         1985, when she returned to her same position.  Although claimant 
 
                                                
 
                                                         
 
         indicated she returned to lighter duties that did not involve 
 
         heavy lifting, both Richard Geifman and John Wittowski, her 
 
         supervisors, testified they were unaware of any change in her 
 
         duties.
 
         
 
              At a deposition, claimant stated that prior to the May 11, 
 
         1985 incident she had not had any problems with her back, had not 
 
         injured her back, and had not received treatment from a 
 
         chiropractor because of back problems.  (Exhibit J, page 5, lines 
 
         21-25; page 6, lines 1-10)  She asserted that prior to May 11, 
 
         1985, she had not been involved in any accidents or slip and 
 
         falls that required medical or chiropractic attention.  (Ex. J, 
 
         p. 8, lines 5-10).
 
         
 
              Claimant also testified that prior to May 11, 1985, she had 
 
         not been off work as a result of a back injury (Ex. J, p. 6, 
 
         lines 3-5) or as a result of any type of injury (Ex. J, p. 8, 
 
         lines 11-14).
 
         
 
              Claimant acknowledged seeing Dr. Birdsell as a patient prior 
 
         to May 11, 1985, but described these visits as occurring "very 
 
         seldom," with the last visit prior to May 11, 1985 occurring 
 
         "probably several months" (before), although claimant was not 
 
         certain.  She indicated the prior visits with Dr. Birdsell were 
 
         for "regular adjustment(s)."  (Ex. J, pp. 7-8).
 
         
 
              However, Dr. Birdsell testified that he had treated claimant 
 
         for a nonwork-related fall in 1974 which injured claimant's 
 
         tailbone.  He treated her again in 1978 for a nonwork-related 
 
         fall injuring her "behind."  Dr. Birdsell also stated that 
 
         claimant had been a regular patient of his since 1978 with 
 
         appointments occurring on an approximate monthly basis.  
 
         Claimant's last visit with Dr. Birdsell was one month prior to 
 
         the alleged injury.  Dr. Birdsell opined that claimant's 
 
         condition was related to the May 11, 1985 incident.  Claimant was 
 
         also examined by John E. Sinning, M.D., and Jan Koehler, M.D.
 
         
 
              When confronted with the discrepancies in her testimony, 
 
         claimant stated she made those responses because she did not 
 
         consider the prior injuries to be permanent and that she felt a 
 
         different area of the back was involved.  As to her failure to 
 
         acknowledge her prior time off from work, she stated she recalled 
 
         the time off now but did not recall it at her deposition.  She 
 
         admitted that she had been off work from falling incidents two 
 
         times prior to May 11, 1985, with one period of absence from work 
 
         lasting four weeks.  (Tran., p. 64, lines 18; p. 65, line 16)  
 
         When asked if she had slipped and fallen on stairs at home prior 
 
         to May 11, 1985, she acknowledged she "probably" had.  (Tran., p. 
 
         50, lines 22-25).
 
         
 
                                 APPLICABLE LAW
 
         
 
              Claimant has the burden of proving by a preponderance of the 
 
         evidence that she received an injury on May 11, 1985 which arose 
 
         out of and in the course of 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.
 
         
 
              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.
 
         
 
              The claimant has the burden of proving by a preponderance of 
 
         the evidence that the injury of May 11, 1985 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).
 
         
 
              An expert's opinion is not necessarily binding on the 
 
         industrial commissioner or his deputy, but is to be weighed 
 
         together with facts and circumstances of the claim with the 
 
         ultimate conclusion to be made by the finder of fact.  Bodish v. 
 
         Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867 (Iowa 1965).
 
         
 
                                  ANALYSIS
 
         
 
              Claimant has the burden to show by a preponderance of the 
 
         evidence that she has suffered an injury which arose out of and 
 
         in the course of her employment.  Claimant's testimony is the 
 
         only evidence in the record on the actual occurrence of the 
 
         injury. Claimant's credibility was successfully impeached by 
 
         defendants. At her deposition, claimant was told to ask for 
 
         clarification if any questions propounded to her were unclear.  
 
         She did not ask for any such clarification.  The questions on 
 
         prior back problems, treatment, and absences from work were 
 
         clearly worded and unequivocal.
 
         
 
              Those questions went directly to the issue of whether her 
 
         present disability stems from an injury which arose out of and in 
 
         the course of her employment or from a nonwork injury.  The 
 
         testimony of Dr. Birdsell directly contradicted claimant's 
 
         testimony on her prior injuries, treatment and work absences.  
 
         Her answers at her deposition were given under oath.
 
         
 
              Thus, little weight can be given to claimant's testimony 
 
                                                
 
                                                         
 
         that her present disability stems from an alleged injury at her 
 
         place of employment on May 11, 1985.
 
         
 
              In searching the record for evidence, independent of 
 
         claimant's testimony, that claimant's present disability stems 
 
         from an injury arising out of and in the course of her 
 
         employment, only the testimony of claimant's husband that 
 
         claimant came home on May 11, 1985 with back pain is available.
 
         
 
              In his decision, the deputy stated:
 
         
 
                   At the hearing claimant explained that she did not feel 
 
              at the time of her deposition that any of the prior injuries 
 
              were significant enough to mention or consider as an injury 
 
              and that she could not remember the injury or loss of work 
 
              in 1978.  Such an explanation cannot be believed.  In this 
 
              agency's experience, it is certainly not unusual for 
 
              claimant to "down play" past injuries.  However, claimant's 
 
              deposition testimony cannot be explained as honest 
 
              exaggeration and her lack of credibility is fatal to her 
 
              case.  After rejection of her testimony, we are left with 
 
              her husband's testimony that he observed her pain on the 
 
              alleged date of injury.  This may establish that she was in 
 
              pain, but it does not verify the events leading up to the 
 
              onset of this pain.  Admittedly, claimant held a responsible 
 
     
 
                                  
 
                                                         
 
              position with Geifman for many years and Ronald Geifman, the 
 
              owner and manager, testified that claimant was an honest 
 
              person from his experience. Unfortunately, such testimony 
 
              only establishes her honesty in the performance of her job, 
 
              not in the pursuit of this workers' compensation claim.
 
         
 
         Claimant's evidence does not satisfy her burden in proving that 
 
         she suffered an injury arising out of and in the course of her 
 
         employment.
 
         
 
                                 FINDINGS OF FACT
 
         
 
              1.  Claimant was an employee of defendant Geifman Food Store 
 
         on May 11, 1985.
 
         
 
              2.  Prior to May 11, 1985, claimant had suffered two back 
 
         injuries.
 
         
 
              3.  Prior to May 11, 1985, claimant had received 
 
         chiropractic treatment for back problems.
 
         
 
              4.  Prior to May 11, 1985, claimant had missed time from 
 
         work due to back problems.
 
         
 
              5.  Claimant gave deposition answers under oath which denied 
 
         having back injuries, receiving chiropractic treatment or missing 
 
         work due to back problems prior to May 11, 1985.
 
         
 
              6.  There were no witnesses to claimant's alleged injury.
 
         
 
              7.  Claimant is not a credible witness.
 
         
 
                           CONCLUSION OF LAW
 
         
 
              Claimant has failed to meet her burden to show by a 
 
         preponderance of the evidence that her alleged injury arose out 
 
         of and in the course of her employment.
 
         
 
              WHEREFORE, the decision of the deputy is affirmed.
 
         
 
                                      ORDER
 
         
 
              THEREFORE, it is ordered:
 
         
 
              That claimant shall take nothing from these proceedings
 
         
 
              That claimant shall pay the costs of this action.
 
         
 
              Signed and filed this 26th day of January, 1988.
 
         
 
         
 
         
 
         
 
         
 
         
 
                                                
 
                                                         
 
         
 
                                                    DAVID E. LINQUIST
 
                                                 INDUSTRIAL COMMISSIONER
 
         
 
         Copies To:
 
         
 
         Mr. William J. Bribriesco
 
         Attorney at Law
 
         2407 18th Street
 
         Suite 202
 
         Bettendorf, Iowa  52722
 
         
 
         Mr. Anthony A. Longnecker
 
         Attorney at Law
 
         2600 Ruan Center
 
         Des Moines, Iowa  50309
 
         
 
         Mr. Greg Egbers
 
         Attorney at Law
 
         600 Union Arcade Building
 
         111 East Third Street
 
         Davenport, Iowa  52801
 
 
 
         
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                                 1401; 1402.20; 1402.30
 
                                                 2902; 3700
 
                                                 Filed 1-26-88
 
                                                 David E. Linquist
 
         
 
                   BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         BONNIE FARREN,
 
         
 
              Claimant,
 
                                                      File No. 796069
 
         vs.
 
         
 
         GEIFMAN FOOD STORES, INC.,                     A P P E A L
 
         
 
              Employer,                               D E C I S I 0 N
 
         
 
         and
 
         
 
         LIBERTY MUTUAL INSURANCE
 
         COMPANY,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         1401; 1402.20; 1402.30; 2902; 3700
 
         
 
              Claimant's credibility was successfully impeached when her 
 
         chiropractor contradicted her deposition statements as to a lack 
 
         of prior back injuries, prior treatment, and time off of work. 
 
         Insufficient independent evidence appeared in the record to carry 
 
         her burden of proof.