BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
                                        
 
         
 
         LARRY JOENS,
 
         
 
              Claimant,
 
         
 
         VS.
 
         
 
                                                File No.  797338
 
         WATERLOO COMMUNITY SCHOOLS,
 
         
 
                                             A R B I T R A T I 0 N
 
              Employer,
 
         
 
                                              D E C I S I 0 N
 
         and
 
         
 
         AETNA INSURANCE,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         
 
                                   INTRODUCTION
 
         
 
              This is a proceeding in arbitration brought by the claimant, 
 
         Larry Joens, against Waterloo Community Schools, employer, and 
 
         Aetna Insurance, insurance carrier, defendants, to recover 
 
         benefits as a result of an alleged injury sustained on March 1, 
 
         1985.  This matter came on for hearing before the deputy 
 
         industrial commissioner in Waterloo, Iowa, on November 22, 1989. 
 
         The record consists of the testimony of the claimant, claimant's 
 
         wife, Nanette Joens, Roger Kittleson, Dr. Donald Hanson, and Jane 
 
         Weingarden; claimant's exhibits 1 through 21, 23 through 31, and 
 
         33 through 37; and defendants' exhibits A through G, and H (pages 
 
         1 through 3), and I through U.
 
         
 
              On November 17, 1989, claimant filed a motion for sanctions 
 
         to exclude Dr. Strathman's October 31, 1989 report.  Claimant's 
 
         motion was sustained by the undersigned prior to taking 
 
         testimony.  Basically, defendants failed to comply with paragraph 
 
         6 of the hearing assignment order.
 
         
 
              On November 22, 1989, the defendants filed a motion for 
 
         protective order regarding use of depositions at the hearing.  
 
         Claimant's motion was denied.  The ruling made by the undersigned 
 
         before taking testimony is already set out in detail in the 
 
         record made in this case and will not be set out in full herein.
 
         
 
         
 
         
 
         LARRY JOENS V. WATERLOO COMMUNITY SCHOOLS
 
         Page 2
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         
 
                                      ISSUES
 
         
 
              The issues for resolution are:
 
         
 
              1. Whether claimant's alleged injury on March 1, 1985 arose 
 
         out of and in the course of his employment;
 
         
 
              2. Whether claimant's alleged disability is causally 
 
         connected to his March 1, 1985 injury;
 
         
 
              3. The nature and extent of claimant's entitlement to 
 
         benefits; and
 
         
 
              4. Whether the odd-lot doctrine applies.
 
         
 
                              REVIEW OF THE EVIDENCE
 
         
 
              Larry Joens testified in person and through his deposition 
 
         taken October 11, 1988.  Claimant has worked for approximately 21 
 
         years for the Waterloo School District.  He said he originally 
 
         taught physical education and coached football, basketball and 
 
         baseball involving the eighth and ninth grades.  He stated he 
 
         received his college degree from University of Northern Iowa with 
 
         a major in physical education and a minor in drivers education.  
 
         He also played four years on the baseball team and one year on 
 
         the basketball team.
 
         
 
              Claimant described the various changes in his teaching and 
 
         coaching responsibilities over the years.  He continued to be 
 
         involved in coaching and coaching certain sports.  Claimant 
 
         emphasized he suffered no injuries while participating in any 
 
         athletics as a player or coach, including high school, college 
 
         and to the present except for his March 1, 1985 injury.  Claimant 
 
         testified he played softball twice a week for the Waterloo 
 
         merchants town team up to the summer before his March 1985 
 
         injury.  He said he has not played softball since his injury.  
 
         Claimant said he bowled twice a week prior to his March 1985 
 
         injury.
 
         
 
              Claimant testified he was teaching at a special education 
 
         tumbling class involving less than ten second and third grade 
 
         students on March 1, 1985.  He said the students were doing 
 
         forward and backward rolls on the mats.' Claimant said he was 
 
         spotting the participants when there was a girl having trouble 
 
         doing the forward roll, so he helped her over and got a sharp 
 
         pain in his back as he was helping her.  He indicated he was on 
 
         one knee at the time.  He said this tumbling student weighed 
 
         approximately 70 pounds.  He indicated he lifted this student to 
 
         some extent with his hands under her shoulder, taking the weight 
 
         off her head and neck.  Claimant thought he had pulled a muscle 
 
         at first and felt the pain in the middle to the low part of his
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         LARRY JOENS V. WATERLOO COMMUNITY SCHOOLS 
 
         Page 3
 
         
 
         
 
         back and had trouble getting to his feet.  Claimant indicated he 
 
         mentioned this back incident to the librarian and the principal 
 
         on the day it happened.
 
         
 
              Claimant stated he made an appointment with Donald 
 
         Schnurpfeil, M.D., that afternoon and eventually was put in the 
 
         hospital.  Claimant was informed that his medical records show 
 
         his first visit with Dr. Schnurpfeil was March 26, 1985.  
 
         Claimant did not think there was that much time between his 
 
         alleged March 1 injury and the appointment.  Claimant 
 
         acknowledged that he continued to teach and coach between the 
 
         injury date and the date he first saw the doctor.  Claimant 
 
         recalled being in the hospital at least four weeks to receive 
 
         traction and bed rest.  Claimant remembered he returned to work 
 
         May 20, 1985.  Claimant said he coached baseball in the summer of 
 
         1985 but had no other jobs nor did he play any other sports.  
 
         Claimant acknowledged the only time he missed work in 1985 was 
 
         April 22, 1985 through May 20, 1985.
 
         
 
              Claimant said he then returned to school for the 1985-1986 
 
         school year.  Claimant acknowledged that in the 1985-1986 school 
 
         year, which began in August 1985, he only missed work one month, 
 
         namely, March to April 1986.  He could not recall the exact date.  
 
         Claimant recalled that at the end of the baseball season, during 
 
         the last game, he noticed problems beginning in his low back.  
 
         Claimant related he awoke the next morning and his left side was 
 
         numb.  Claimant revealed he did coach baseball in the summer of 
 
         1986 with the help of his son and others, but he was having 
 
         problems.  Claimant said he returned to school beginning the 
 
         1986-1987 school year and worked two weeks.  He had surgery in 
 
         October 1986 and missed the entire 1986-1987 school year except 
 
         for the two weeks.    Claimant acknowledged he coached the entire 
 
         summer of 1987, at which time the school district provided him 
 
         with a paid assistant.  Claimant testified that he transferred 
 
         from elementary to the high school because of his back injury.  
 
         He indicated he does not have to be on his feet as much teaching 
 
         the older children versus the younger elementary children.
 
         
 
              Claimant said he cannot mow the lawn or shovel snow since 
 
         his injury nor is he able to sleep through the full night.  
 
         Claimant denied telling anyone he hurt his back weightlifting.  
 
         Claimant said the only weightlifting he did in the past was with 
 
         his kids in the basement.  He indicated his lifting was nothing 
 
         heavy.  Claimant acknowledged there was some supervised 
 
         weightlifting connected with his therapy but denied any injury 
 
         resulting therefrom.
 
         
 
              Claimant testified that after his L5-Sl back surgery on 
 
         October 6, 1986, he had to give up coaching football but 
 
         continued to coach basketball, and with the exception of the 
 
         winter of 1986-1987, he continued coaching basketball.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         
 
         
 
         
 
         LARRY JOENS V. WATERLOO COMMUNITY SCHOOLS
 
         Page 4
 
         
 
         
 
              Claimant described his salary as a teacher and the amount he 
 
         makes additionally from coaching.  Claimant said he is not able 
 
         to return to coaching football.
 
         
 
              Claimant acknowledged he used to bowl every week.  He said 
 
         he noticed a cramp in his back on March 26, 1985 when he bowled 
 
         and has not bowled since.  Claimant said he did not have a paid 
 
         assistant baseball coach helping him prior to his injury or until 
 
         the 1987 season.  Claimant said if he did not have assistants 
 
         helping him today with baseball, he would not be able to continue 
 
         coaching.  Claimant understood defendants took a video of him 
 
         hitting baseballs at a district tournament.  He acknowledged he 
 
         hit one round to the infield as there was a time restriction for 
 
         pregame practice.  He indicated his assistant hit to the 
 
         outfield.
 
         
 
              Claimant said he was surprised Dr. Schnurpfeil had not 
 
         mentioned in his March 26, 1985 notes that claimant injured 
 
         himself in a physical education class.  Claimant also disputed 
 
         Physiotherapist Bedard's notes that claimant said he was an avid 
 
         weightlifter.  Claimant emphasized he did not know where Mr. 
 
         Bedard got that idea.  Claimant said he currently goes to a 
 
         whirlpool every other week, either at a motel or a fitness 
 
         center.  Claimant said he is not trained to teach anything other 
 
         than physical education and drivers education.  Claimant 
 
         testified he has received the normal salary increases and if he 
 
         could coach football, he would be making $2,031 during this 
 
         1989-1990 school year.  Claimant said it was his decision not to 
 
         coach football.  He emphasized he felt he could not do it 
 
         physically.  Claimant said he would have to go back to school in 
 
         order to get certified to teach other courses.
 
         
 
              Nanette Joens, claimant's wife, recalled the day in March 
 
         1985 that claimant came home and indicated he did something to 
 
         his back.  She emphasized claimant is not an avid weightlifter, 
 
         but she said her two sons are.  She could not recall that 
 
         claimant lifts weights.  She said claimant is a good bowler and 
 
         tried once after his injury.  She said he came home complaining 
 
         of pain and has not bowled since.  She indicated claimant's 
 
         stamina is now gone.  She said he used to play softball twice a 
 
         week prior to the injury.  She recalled there was a period of 
 
         time between the injury and claimant's going to the doctor 
 
         because claimant thought he had a muscle injury only.
 
         
 
              Roger Kittleson testified he is a physical education 
 
         instructor at East Waterloo High School and coaches several 
 
         sports including being head football coach for nineteen years.  
 
         He said he will also take on the position of interim athletic 
 
         director this fall.  He stated he has known claimant since 1967 
 
         or 1968 when they met in amateur baseball.  He said claimant was 
 
         his assistant in football, his sophomore line coach, and press
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         
 
         LARRY JOENS V. WATERLOO COMMUNITY SCHOOLS 
 
         Page 5
 
         
 
         
 
         box spotter before his injury in March 1985.  He described 
 
         claimant's duties as a coach.  He said claimant was unable to 
 
         coach football after his injury and that there is no way claimant 
 
         could fulfill the football coach program.  He said he had to find 
 
         an assistant to take claimant's place.  He explained claimant was 
 
         a quality football coach and that it was difficult for claimant 
 
         to give up football.
 
         
 
              Dr. Donald Hanson, a retired long-time teacher and coach in 
 
         the Waterloo Community School District, and the current 
 
         superintendent of schools this past year, testified that he was 
 
         familiar with claimant's employment history and how assistants 
 
         are decided upon.  He could not recall claimant's request for an 
 
         assistant coach, but he has not reviewed claimant's records for 
 
         years.    He couldn't recall the district ever firing a coach or 
 
         teacher due to a physical disability and he couldn't foresee it.  
 
         He said the school never told claimant he couldn't coach 
 
         football, but claimant would need a doctor's release to return to 
 
         coaching again.  He acknowledged that based on what he knows, he 
 
         doesn't disagree with claimant's decision to quit coaching.
 
         
 
              Jane Winegarden, personnel specialist since 1970, testified 
 
         she is familiar with claimant's records.  She said if an 
 
         assistant coach is hired due to physical disability of a coach, 
 
         there should be a letter in claimant's file.  Contrary to what 
 
         claimant testified, she said claimant's file did not have such a 
 
         letter in it.  She said claimant has progressed normally as to 
 
         teaching and coaching salaries since March 1985.  She indicated 
 
         teachers are requested to have physicals every third year.  She 
 
         said claimant has had the physicals and has not failed any of 
 
         them.
 
         
 
              Robert Bedard, a licensed physical therapist, testified by 
 
         way of a deposition on March 29, 1989, that claimant was referred 
 
         to him by Donald Schnurpfeil, M.D., who gave a diagnosis of 
 
         lumbosacral pain with spasms, questionable disc syndrome.  He 
 
         said his history taken from claimant on the first visit of April 
 
         23, 1985 indicated claimant was an avid weightlifter.  He 
 
         testified claimant was uncertain as to the exact date of his 
 
         injury but that it was approximately one month before.  He said 
 
         he did not know if claimant lifted weights but claimant's upper 
 
         body build indicated claimant did weightlifting'.  Bedard said 
 
         claimant told him, when asked, that he lifted weights.  Bedard 
 
         emphasized the use of the word "avid" was his description or 
 
         assumption due to the physical dimensions of claimant's body.  He 
 
         revealed claimant was in acute distress when he saw him on April 
 
         23, 1985.  He said claimant did not mention during his treatment 
 
         anything about a gymnastics class or a tumbling class causing him 
 
         problems.  Bedard acknowledged that the type of injuries he saw 
 
         in claimant was a common type of injury if a person was lifting 
 
         weights incorrectly.  Mr. Bedard testified he was not aware of
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         
 
         LARRY JOENS V. WATERLOO COMMUNITY SCHOOLS 
 
         Page 6
 
         
 
         
 
         claimant's congenital anomaly at L5-Sl at the time of his contact 
 
         with claimant.  He indicated that the weightlifting superimposed 
 
         upon this congenital anomaly could have certainly caused 
 
         claimant's problem.  Bedard indicated that Dr. Schnurpfeil's 
 
         notes confirm Bedard's initial thoughts as to possible cause, 
 
         i.e., weightlifting.
 
         
 
              David Frerichs, a substitute teacher with the Waterloo 
 
         Schools, testified through his deposition on January 3, 1989 that 
 
         he is in his second year as assistant sophomore basketball coach 
 
         and in his third year as assistant varsity baseball coach at East 
 
         High School   He said he was an assistant to claimant.  He stated 
 
         claimant told him in the spring of 1987 that he injured his back 
 
         in a gymnastics class helping students with tumbling.  He 
 
         indicated claimant was having trouble bending over at that time.  
 
         He stated claimant is able to do more now than he was in 1987.  
 
         He said claimant could not pitch batting practice in 1988.  
 
         Frerichs said claimant was not able initially to demonstrate 
 
         shots and movements in basketball practice, but this year he is 
 
         gradually doing a little bit more.  He indicated claimant's 
 
         weightlifting was limited to some arm curls, but not building a 
 
         physique.  Frerich understood East High needed an assistant coach 
 
         because of claimant's condition.  He also thought claimant wanted 
 
         an assistant.  He said West High School already had an assistant.  
 
         He stated claimant rides in his own car to out-of-town games 
 
         because the team bus is too bouncy.  He said it would be hard for 
 
         one physically able person to coach baseball alone.  He described 
 
         the way he was told by claimant that claimant injured himself.
 
         
 
              Bryan Joens testified through his deposition on January 3, 
 
         1989 that he is a teacher and coach at Waterloo East High School 
 
         and claimant is his father.  He said his father never had any 
 
         back problems prior to March 1985 that he knew of.  He stated his 
 
         father did not lift weights.  He did indicate that his father 
 
         might have gone down in the basement to do a few things.  He said 
 
         his father never worked out much.  "The only thing he would do 
 
         was wrist curls and that's about all."  He did acknowledge there 
 
         was a bench press downstairs with 80 to 100 pounds thereon.  He 
 
         described how his father told him he was injured during the gym 
 
         class in March 1985.  Bryan Joens testified that his father is 
 
         able to perform all of his coaching duties now with an assistant.  
 
         He indicated that he doubted his father could do the duties 
 
         without an assistant.  He acknowledged that claimant wanted an 
 
         assistant before he hurt his back because the other high schools 
 
         had an assistant already.
 
         
 
              Chuck Quirk testified through his deposition on January 3, 
 
         1989 that he is a history teach at University of Northern Iowa.  
 
         He said he helped claimant voluntarily as an assistant or aide on 
 
         the varsity basketball team in 1986, 1987 and 1988.  Quirk said 
 
         he first heard that claimant hurt his back in late March or April
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         
 
         LARRY JOENS V. WATERLOO COMMUNITY SCHOOLS 
 
         Page 7
 
         
 
         
 
         1985.  He said claimant indicated he hurt hit back in a gym 
 
         class.  He stated claimant was in such pain that he couldn't hit 
 
         ground balls and help the kids in their positions.  Quirk related 
 
         that he volunteered to help claimant coach when it was obvious 
 
         claimant could not do what had to be done.  He said he couldn't 
 
         "recall claimant ever lifting a weight.  What's puzzling is that 
 
         his son is so heavy into it, as my children, but if he did, I 
 
         never saw him do it."  He indicated he would be surprised if a 
 
         doctor described claimant as an avid weightlifter.  He said it 
 
         wouldn't surprise him if the doctor said that as to the 
 
         claimant's son.  Quirk said claimant was always well built.  He 
 
         described the difficulties claimant was having with coaching and 
 
         practice in the summer of 1986 to 1988.  He indicated he sees 
 
         claimant fairly frequent at the River Plaza (health center) 
 
         usually in the hot tub.
 
         
 
              Kathryn Rewerts testified through her deposition on January 
 
         3, 1989 that she is a media facilitator with the Waterloo School 
 
         Systems, which involves responsibility for the media centers and 
 
         computer programs for the district.  Rewerts testified that 
 
         claimant and she worked very closely together and would trade 
 
         classes every twenty-five minutes with a five minute break in 
 
         between.  She also related that they had twenty minute recess 
 
         duty three times a week and would stand outside and visit.  She 
 
         remembers when claimant hurt his back during gym class.  Rewerts 
 
         recalled claimant telling her right after a gymnastics class in 
 
         March 1985 that he thought he twisted wrong when he was spotting 
 
         a student who was falling and he went to catch her.  Ms. Rewerts 
 
         said she had noticed claimant was walking very stiff and could 
 
         hardly move after the class and she had inquired as to what 
 
         happened to claimant.  She recalled she tried to convince 
 
         claimant to see a doctor.  Ms. Rewerts could not recall claimant 
 
         ever complaining of back problems before the March 1985 incident.  
 
         She explained she felt claimant would have mentioned any back 
 
         problems he may have had, and said she had worked with him for 
 
         two years prior to March 1985.  She related she discussed her 
 
         back problems with claimant and would think he would discussed 
 
         his, if he had any.  She indicated an aide, Terri Roberts, also 
 
         tried to convince claimant to see a doctor after this gym class 
 
         incident occurred.  Rewerts testified that claimant told her he 
 
         would get ready for baseball by working out and lifting weights.  
 
         She said baseball generally began the first week in April, after 
 
         the spring break.  Rewerts explained she definitely can see a 
 
         difference physically in claimant.  She said he isn't as agile.  
 
         She indicated he seemed to be down not being able to play 
 
         softball and frustrated not being able to do his job and keep up 
 
         with the elementary kids.  She stated it appeared too painful for 
 
         claimant.  She mentioned claimant never sat down when he talked 
 
         to her or the kids in gym but after this March 1985 incident, she 
 
         indicated he always had a chair and would sit down if he could.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         
 
         LARRY JOENS V. WATERLOO COMMUNITY SCHOOLS
 
         Page 8
 
         
 
         
 
              Terri Roberts testified through her deposition taken by 
 
         phone on February 7, 1989.  She stated she worked one-on-one with 
 
         claimant in the same school room during the years 1984 and 1985.  
 
         She testified she saw claimant injure his back in gym while 
 
         squatting on one knee helping a young girl do a roll over in 
 
         tumbling class.   She described the student as a nine year old, 
 
         five foot one inch, 110 pound dead weight individual.  She said 
 
         this student had some behavioral problems and couldn't do a lot 
 
         of physical activity.  Roberts described the claimant's physical 
 
         expression of pain after the incident took place.  She said he 
 
         groaned and stood up slowly and she knew something was wrong.  
 
         She said she never saw claimant experience back pain prior to 
 
         this March 1985 incident.  Roberts said claimant and she had 
 
         recess about one hour after the incident and they talked about 
 
         his being hurt.  She said he felt uncomfortable and told her how 
 
         he had hurt his back in a tumbling class.
 
         
 
              Ms. Roberts described the procedure during the class.  She 
 
         said claimant got the mats out and did the stretching exercises 
 
         that date with the kids before they did the tumbling.  She said 
 
         if the claimant had injured his back the day before, she would 
 
         have noticed it at the beginning of the class.
 
         
 
              Mark Suiter, a physiotherapist, testified through his 
 
         deposition on April 19, 1989 and November 13, 1989 that he first 
 
         saw claimant November 16, 1986, which was approximately six 
 
         months after he had a lumbar laminectomy L5-Sl.  Suiter said he 
 
         last saw claimant on October 28, 1987.  He described the nature 
 
         of claimant's treatment.  Suiter stated claimant was able to do 
 
         more upon leaving his care than when he came in initially, but 
 
         claimant had reached a plateau where he could not improve in the 
 
         way he felt.  He said claimant was very cooperative and diligent 
 
         to do the things that were required of him.  He said claimant 
 
         spent a majority of his time trying to improve his physical 
 
         status.  In his second deposition, Suiter was asked and answered:
 
         
 
              Q.  Now, I think the records in this case, Mr. Suiter, will 
 
              show that at the time of his injury, Mr. Joens was teaching 
 
              a physical education course at the lower elementary level, 
 
              and in fact I think was teaching a course for handicapped 
 
              children at the time he was injured.  And then I think the 
 
              testimony will further indicate that he at the time was 
 
              coaching football as a line coach, assisting in basketball, 
 
              and was the head baseball coach.
 
              
 
                 If since his injury he's now requested some changes in 
 
              his work assignment so now he is not teaching a physical 
 
              education course at the lower elementary but rather at the 
 
              upper high school level, and that he has dropped his 
 
              football coaching because of his injury and
 

 
              
 
 
 
 
 
 
 
 
 
 
 
         
 
         
 
         LARRY JOENS V. WATERLOO COMMUNITY SCHOOLS 
 
         Page 9
 
         
 
         
 
              now has an assistant in baseball, do you think those changes 
 
              in his work assignments are appropriate given the type of 
 
              injury he had and the restrictions that you saw in Larry?
 
              
 
              A. Appropriate in that they were not necessary.
 
              
 
              Q. Yes.
 
              
 
              A. That would have been my recommendation.
 
              
 
              ....
 
              
 
              Q. From your experience with Mr. Joens and knowing his 
 
              limitations, would you expect that he would be able to ever 
 
              return to coaching football that would require 
 
              demonstrations in blocking and tackling and things of that 
 
              nature?
 
              
 
              A. I believe that would be very much ill advised.
 
              
 
              Q. And from your experience with Mr. Joens, could you expect 
 
              that he will ever be able to get back to where he could 
 
              swing a bat on a regular basis or hit fly balls and pitch 
 
              batting practice and doing all the various things coaches 
 
              would do on a full-time basis?
 
              
 
              A. I don't believe that -- I don't believe that that will be 
 
              possible without him experiencing a relapse into the same 
 
              kinds of pain problems that he has had.
 
              
 
              Q. And if Mr. Joens was required as part of his 
 
              responsibilities to demonstrate various physical education 
 
              courses from everything from rope climbing to some types of 
 
              gymnastics, wrestling, whatever it may be, do you think he 
 
              would be advised to do that type of work?
 
              
 
              A. I would advise him against that, and again that's based 
 
              on my experience and also my experience with Mr. Joens that 
 
              when he does increase his activity level, he also has an 
 
              increase in his pain.
 
              
 
              Q. From your experience when a person does things that are 
 
              not within his limitations with an injury such as Mr. Joens, 
 
              what normally happens to them?
 
              
 
              A. Generally, when we see the kinds of things that have been 
 
              documented here where he would experience an increase in 
 
              pain and stiffness, often times there will be some swelling 
 
              locally.  All the things that you or a
 

 
              
 
 
 
 
 
 
 
 
 
 
 
         
 
         
 
         LARRY JOENS V. WATERLOO COMMUNITY SCHOOLS 
 
         Page 10
 
         
 
         
 
              person of normal physical makeup would see as an injury, as 
 
              an acute injury.  Generally that's been my experience in 
 
              cases such as this.
 
              
 
              Q. With all the work that Mr. Joens did in his therapy 
 
              sessions and all the work that you did with Mr. Joens in his 
 
              therapy sessions, were you able ever to get him back to full 
 
              rotation, range of motion and those types of things?
 
              
 
              A. No, I did not.
 
         
 
         (Claimant's Exhibit 37, pp. 31-37)
 
         
 
              Donald Schnurpfeil, M.D., a family practice physician, 
 
         testified through his deposition on March 22, 1989 that he first 
 
         saw claimant on March 26, 1985, and he was complaining of back 
 
         problems.  He said claimant indicated weightlifting was making 
 
         his back worse, and then claimant went bowling and had more 
 
         stiffness and pain.  He stated claimant did not specifically 
 
         mention anything else that might have brought about these back 
 
         problems.  He said claimant told him he was doing curls, leg 
 
         lifts and similar type exercises.  Dr. Schnurpfeil said his notes 
 
         did not reflect when claimant first told him his back symptoms 
 
         occurred.  He could not recall claimant indicating any prior back 
 
         problems.  He indicated the radiological report implied a disc 
 
         problem in the fifth lumbar vertebra area.  The doctor 
 
         acknowledged that claimant never told him at that time that he 
 
         injured his back during a tumbling class.  Dr. Schnurpfeil opined 
 
         that claimant's weightlifting activities had aggravated his 
 
         condition and that claimant's arthritic changes had existed in 
 
         his spine for some time.  The doctor indicated claimant's 
 
         arthritic condition was caused more by a gradual wear and tear 
 
         than any particular trauma and if there was trauma that caused 
 
         these problems, the only activity that was indicated to him was 
 
         weightlifting or the bowling.  He said he referred claimant to J. 
 
         D. Kothari, M.D., on May 6, 1985.  He said Dr. Kothari wrote to 
 
         him that claimant has a lumbar disc syndrome.  Dr. Schnurpfeil 
 
         opined that the syndrome most likely was caused by the disc 
 
         itself pressing on the nerve.  Dr. Schnurpfeil indicated he also 
 
         referred claimant to Mr. Bedard, a physical therapist.  The 
 
         doctor opined claimant's arthritic condition and the congenital 
 
         condition at L5-existed prior to March 1985.  He could not 
 
         suggest that claimant's back problems are work related.  The 
 
         doctor explained that his medical notes "possibly aggravated by 
 
         recent increased weightlifting" means that it could be but not 
 
         necessarily was aggravated. (Cl. Ex. 29, pp. 21) Dr. Schnurpfeil 
 
         admitted it would not be uncommon for a person to try and work 
 
         out an injury before seeing a doctor.  He revealed he wouldn't be 
 
         surprised if someone athletically inclined, like a sports coach, 
 
         might try that.  He opined claimant is athletically
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         
 
         LARRY JOENS V. WATERLOO COMMUNITY SCHOOLS 
 
         Page 11
 
         
 
         
 
         inclined.  The doctor said when he referred claimant to Dr. 
 
         Kothari on May 6, 1986, Dr. Kothari basically took over the 
 
         treating of the claimant.  He said claimant had not improved 
 
         through therapy.  Dr. Schnurpfeil acknowledged claimant was 
 
         admitted to the hospital on September 17, 1986.  He said claimant 
 
         was worse on that date than he was on March 26, 1985.  The doctor 
 
         said he wasn't qualified to opine whether claimant sustained any 
 
         permanent disability to his back.
 
         
 
              Jitu D. Kothari, M.D., an orthopedic surgeon, testified 
 
         through his deposition on July 25, 1989 that his first contact 
 
         with claimant was May 8, 1985.  Dr. Kothari described the nature 
 
         of his examination of claimant.  He had diagnosed claimant as 
 
         having a mild lumbar disc syndrome.  He said he recommended 
 
         complete bed rest.  The doctor said he felt claimant could return 
 
         to work on May 20, 1985.  On June 4, 1985, when Dr. Kothari saw 
 
         claimant, he said claimant still had some pain but was doing 
 
         quite well.  Dr. Kothari next saw claimant on September 17, 1986 
 
         at the hospital.  Claimant was experiencing radiating pain into 
 
         his left buttock down into the left thigh and into the left calf 
 
         area, and claimant was unable to walk because of the pain.  Dr. 
 
         Kothari said his diagnosis was the same as before, in other 
 
         words, lumbar disc syndrome probably at L5-Sl level with low back 
 
         pain a lot worse.  The doctor had a CT scan taken of claimant on 
 
         September 20, 1986 which showed a large herniated disc at L5-Sl.  
 
         He attempted further treatment without surgery.  Dr. Kothari said 
 
         claimant returned to his office on October 1, 1986 and requested 
 
         a second opinion from HoSung Chung, M.D.  Dr. Kothari said Dr. 
 
         Chung affirmed his diagnosis and manner of treatment.  Dr. 
 
         Chung's history of claimant refers to an injury while at a school 
 
         tumbling class.  Dr. Kothari emphasized it is not unusual for a 
 
         person with claimant's condition to improve and then end up again 
 
         in claimant's condition in September 1986.  He said he sees this 
 
         on a fairly regular basis.  Dr. Kothari then performed a lumbar 
 
         laminectomy on claimant on October 6, 1986.  The doctor described 
 
         the extent of the ruptured disc as follows:
 
         
 
              The CT-scan showed a rather significant or large rupture.  
 
              Then my operating note on 10-6-86 -- okay -showed there was 
 
              a fragment of the disc which measures 1.5 centimeters by 1.5 
 
              centimeters by .5 centimeters.  So roughly about a half 
 
              inch, bigger than half an inch.  That was a free fragment 
 
              that was removed.  And some additional material from the 
 
              disc was removed.  So that's a pretty significant size 
 
              piece.
 
              
 
              ....
 
              
 
              ...That was pressing upon the S-1 nerve root....
 

 
              
 
 
 
 
 
 
 
 
 
 
 
              
 
              ....
 
         
 
         
 
         LARRY JOENS V. WATERLOO COMMUNITY SCHOOLS
 
         Page 12
 
         
 
         
 
              ...The left leg pain was caused by a pinched nerve or a 
 
              ruptured disc....
 
              
 
              ....
 
              
 
              ...that we found at surgery....
 
         
 
         (Cl. Ex. 25, p. 21)
 
         
 
              Dr. Kothari described the various visits, therapy, and 
 
         cortisone injections claimant received after the surgery and 
 
         described the rehabilitation program claimant was on.  Dr. 
 
         Kothari saw claimant March 10, 1987, five months post-surgery, 
 
         and was concerned about claimant's pain shifting to his right 
 
         hip.  He ordered another CT scan.  The CT scan showed there could 
 
         be a recurrent disc or scar tissue, but surgery again was not in 
 
         order.  He said D. N. Koury, M.D., a radiologist, saw little 
 
         change since the September 1986 examination.  Dr. Kothari 
 
         indicated anything that would be done would indicate surgery, 
 
         which he said was discussed with claimant.
 
         
 
              On March 11, 1987, Dr. Kothari released claimant to return 
 
         to work part-time, up to four hours a day.  Dr. Kothari said he 
 
         understood defendant employer would not take claimant back to 
 
         work on a part-time basis for one-half day at a time.
 
         
 
              On May 26, 1987, the doctor released claimant to work as a 
 
         baseball coach, but not to return to his regular work.  The 
 
         doctor recommended claimant continue his rehabilitation program 
 
         and then be rechecked in August before school started.  At that 
 
         time, he said he would release claimant to regular work if he was 
 
         symptom-free.  On August 18, 1987, Dr. Kothari released claimant 
 
         to return to work with recheck for final disability evaluation in 
 
         three months.  Dr. Kothari said that on November 16, 1987 
 
         claimant returned for evaluation.  He testified:
 
         
 
              He was in the office for disability evaluation examination 
 
              in regards to his back.  He had lumbar laminectomy one ear 
 
              ago at L5-Sl level.  My record says right side, but it 
 
              should be left side. . At present he does not have any 
 
              radicular leg pain.  He does not have any numbness or 
 
              tingling or paresthesia in the lower extremities.  He 
 
              continues to have back pain.  He is not able to continue his 
 
              running.  He had to give up his football coaching because of 
 
              his persistent back pain.  He is not able to participate in 
 
              bowling because of his back pain.  The back pain is worse 
 
              towards the end of the day.  The pain extends into both 
 
              buttocks.
 

 
              
 
 
 
 
 
 
 
 
 
 
 
         
 
         
 
         LARRY JOENS V. WATERLOO COMMUNITY SCHOOLS
 
         Page 13
 
         
 
         
 
                 On clinical examination, the incision is well healed up. 
 
              Straight leg raising was negative.  He has moderate 
 
              restriction on range of motion of the lumbar spine, 
 
              particularly forward bending.  There is no neurological 
 
              deficit in the lower extremities.  There is no sensory 
 
              deficit.
 
         
 
         (Cl. Ex. 26, p. 39)
 
         
 
              He opined:
 
              
 
              In my opinion it was 20 percent permanent impairment and 
 
              loss of physical function of the whole body on account of 
 
              surgical excision of the disc without fusion, with moderate 
 
              persistent pain and stiffness which is aggravated by any 
 
              heavy lifting, and required modification of his activities.  
 
              This is in accordance with the Manual of Orthopedic Surgeons 
 
              in Evaluating Permanent Physical Impairment, by the American 
 
              Academy of orthopedic Surgeons.
 
         
 
         (Cl. Ex. 26, p. 40)
 
         
 
              Dr. Kothari said he last saw claimant on April 11, 1989, at 
 
         which time he complained of a few episodes of muscle spasms in 
 
         his back and numbness in his left leg.  The doctor said claimant 
 
         denied any specific reinjury.  Dr. Kothari was asked:
 
         
 
              Q. All right.  Doctor, based upon the history that you 
 
              obtained from Mr. Joens and based upon, of course, your care 
 
              and treatment of him, do you have an opinion, based upon a 
 
              reasonable degree of medical certainty, whether the injury 
 
              that you treated Mr. Joens for and eventually performed 
 
              surgery was caused by the tumbling incident and is work 
 
              related, based upon the history that you obtained?
 
              
 
              A. In my records, you know, there was no real detailed 
 
              explanation of how exactly it happened.  Dr. Chung's record 
 
              reflects a tumbling incident.  Yes. it can cause a back 
 
              injury such as Mr. Joens had, yes.
 
         
 
         (Cl. Ex. 26, p. 47)
 
         
 
              Dr. Kothari affirmed that claimant did have a ruptured disc 
 
         in May or June 1985, when he saw him.  The doctor said claimant 
 
         should avoid anything that would require bending over, lifting, 
 
         pulling or straining, whether that is in his coaching or 
 
         day-to-day work in the house or whatever setting, and don't lift 
 
         any heavy stuff.  Dr. Kothari indicated claimant could throw, 
 
         swing a baseball bat or pick up a baseball.  He would not
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         
 
         LARRY JOENS V. WATERLOO COMMUNITY SCHOOLS 
 
         Page 14
 
         
 
         
 
         recommend claimant to be a catcher.  Dr. Kothari was asked and 
 
         answered as follows:
 
         
 
              Q. Okay. At this point in time do you expect his condition, 
 
              his back condition to get worse?.
 
              
 
              A. Like I said earlier, I don't expect it, but any time you 
 
              have a back condition or back surgery you are at a higher 
 
              risk of back pain or re-injury to the back than a person the 
 
              same age, same sex, who never had a back condition.
 
              
 
              Q. I guess to clarify it, can you or would you say within a 
 
              reasonable degree of medical certainty that his back 
 
              condition will get worse?
 
              
 
              A. It will get worse, because he is lacking one disc, and 
 
              that's the reason he has that 20 percent disability.  And 
 
              that accounts for future back pain, recurrent muscle spasm.  
 
              Whether it will get worse to the point that he would require 
 
              further surgery, and in my estimation the ball park figure 
 
              would be 10 percent.
 
              
 
              Q. Okay. At this point in time you said you don't expect 
 
              that to happen?
 
              
 
              A. That's right.
 
         
 
         (Cl. Ex. 26, p. 59)
 
         
 
              Dr. Kothari said claimant should continue his exercises.  He 
 
         indicated claimant may need to take anything from plain Tylenol 
 
         to maybe up to Motrin or some other pain medication.
 
         
 
              Lawrence C. Strathman, M.D., an orthopedic surgeon, 
 
         testified through his deposition on October 30, 1989 that he saw 
 
         claimant for evaluation on December 6, 1988.  Dr. Strathman 
 
         opined that claimant had a 15 to 20 percent impairment based on 
 
         the AMA Guides.  He further stated he saw no indication at that 
 
         time of a need for further treatment.  Dr. Strathman expected 
 
         claimant would have bending, stooping, lifting and standing 
 
         restrictions for a long period of time.  The doctor said that a 
 
         trace of a reflex of claimant's left ankle is a residual 
 
         functional loss of the nerve supplying the Achilles reflex, which 
 
         is the S1 root and is consistent with an L5-Sl disc.  Allen 
 
         Memorial Hospital records on October 6, 1986 reflect:
 
         
 
              PREOPERATIVE DIAGNOSIS:  herniated lumbar disc, L5-Sl,
 
               left side.
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         LARRY JOENS V. WATERLOO COMMUNITY SCHOOLS 
 
         Page 15
 
         
 
         
 
              OPERATIVE PROCEDURE: Lumbar Laminectomy, excision of 
 
              extruded disc fragment and discectomy at L5-Sl, left side.
 
         
 
         (Cl. Ex. 1, p. 45)
 
         
 
              HoSung Chung, M.D., a neurologist, wrote on October 3, 1986:
 
         
 
                 His history dates back to May 1985, when he sustained his 
 
              low back injury while tumbling at his class....
 
              
 
              ....
 
              
 
                 Ct scan of lumbar spine on September 29, 1986, shows a 
 
              fairly large soft tissue density anterolateral to the thecal 
 
              sac at the level of L5-Sl on the left side.
 
              
 
                 This gentleman has root stretch signs along Sl root and a 
 
              positive CT scan.  Since conservative treatment has not been 
 
              quite successful and daily routine is severely hampered, I 
 
              think a surgical option is recommended.
 
         
 
         (Cl. Ex. 8, pp. 1-2)
 
         
 
              Dr. Chung wrote on April 2, 1987:
 
         
 
                 Repeat CT scan of March 11, 1987, shows a fairly large 
 
              soft tissue density anterior to the thecal sac at the level 
 
              of L5-Sl on the left side.  This configuration is about the 
 
              same as the one of September 29, 1986.
 
              
 
                 One would wonder if this gentleman has recurrent disk at 
 
              the same level or epidural scar formation on the basis of CT 
 
              scan findings.  But the patient's clinical condition is 
 
              quite satisfactory, and some amount of discomfort at the 
 
              lumbar area on ambulation is not unusual after a technically 
 
              successful surgery of discectomy.
 
              
 
                 I do not have any answer about this quite identical 
 
              pictures of Ct scan, preoperatively and postoperatively.  At 
 
              any rate, I do not see any surgical indication of 
 
              re-exploration.  I would recommend him to continue 
 
              conservative treatments, including daily swimming exercises, 
 
              and to be followed
 
         
 
         
 
         LARRY JOENS V. WATERLOO COMMUNITY SCHOOLS
 
         Page 16
 
         
 
         
 
              by Dr. Kothari continuously.  I thank you for the 
 
              opportunity of evaluating this gentleman.
 

 
              
 
 
 
 
 
 
 
 
 
 
 
         
 
         (Cl. Ex. 8, pp. 6-7)
 
         
 
              Exhibit 11, page 43, is an x-ray report of Dr. Koury taken 
 
         at Schoitz Covenant Medical Center.  This was requested to see a 
 
         comparison to prior x-ray taken on September 18, 1986 before 
 
         claimant had his laminectomy L5-Sl.  The report reflects, in 
 
         part, the following: "CT OF THE LOWER LUMBAR SPINE AT 0.5 CM 
 
         INTERVALS: Large protruded disc at the L-5 interspace on the left 
 
         and very little change in appearance since 9-18-86."  Dr. 
 
         Kothari's medical notes reflect, in part, the following notation 
 
         on the following dates:
 
         
 
              3-11-87 - He is back with the CT scan.  The report by Dr. 
 
              Koury states that there is very little change in the 
 
              appearance since the 9-18-86 examination.  He reports a 
 
              large protruded disc at L5-Sl interspace on the left side.  
 
              As I recall, the extradural defect on the CT Scan of 9-18-86 
 
              was very large.  The extradural defect that I see on the CT 
 
              Scan now is rather flat and this could be from scar tissue 
 
              or a recurrent disc, however, his symptoms are not 
 
              significant enough to have anything done.  This was all 
 
              discussed with the patient.  If anything, he had pain on the 
 
              right hip posteriorly three times within the last month.  
 
              Straight leg raising on the left side was negative.  At this 
 
              time, I have given him a release to return to work on a part 
 
              time basis up to four hours a day.  He does not know whether 
 
              his employer will allow him to return to work.
 
              
 
              ....
 
              
 
              8-18-87 - He was in the office today.  He is doing fairly 
 
              well.  His back incision is well healed up.  The only pain 
 
              he has is in the posterior part of the right hip towards the 
 
              end of the day.  He does not have any leg pain.  He denies 
 
              any numbness, tingling or paresthesia in the lower 
 
              extremities.  Straight leg raising was negative bilaterally.  
 
              There is no sensory deficit.
 
              
 
              Recommendation: He is OK to return to work from tomorrow 
 
              with recheck in three months for final disability 
 
              evaluation.
 
         
 
         
 
         LARRY JOENS V. WATERLOO COMMUNITY SCHOOLS 
 
         Page 17
 
         
 
         
 
              11-16-87 - Mr. Joens has 20% permanent impairment and loss 
 
              of physical function of the whole body on account of 
 
              surgical excision of the disc without fusion, with moderate 
 
              persistent pain and stiffness which is aggravated by any 
 
              heavy lifting, and required modification of his activities.  
 
              This is in accordance with the Manual of Orthopaedic 
 
              Surgeons in Evaluating Permanent Physical Impairment, by the 
 
              American Academy of Orthopaedic Surgeons.
 

 
              
 
 
 
 
 
 
 
 
 
 
 
         
 
         (Cl. Ex. 14, pp. 7,9)
 
         
 
              The records of Donald Schnurpfeil, M.D., on March 6, 1985 
 
         reflect, in part:
 
         
 
              41 yr. old white male with fairly recent problems with low 
 
              back pain localized to the left lower back and possibly 
 
              aggravated by recent increase in weight lifting.  Especially 
 
              during curls and log lifts and similar type exercises.  He 
 
              stopped doing these and seemed to get some improvement, 
 
              although after a bowling night last week he found 
 
              considerable stiffness and pain upon arising the following 
 
              morning [sic].  Has been using heating pad with little 
 
              improvement, denies radiating pain, numbness, tingling or 
 
              other symptoms.
 
              
 
              O - Pain is localized to the left lumbar, para-spinal 
 
              muscles which are fairly tight, but no bony tenderness or 
 
              neurologic abnormalities are noted.
 
         
 
              A- Lumbar strain.
 
         
 
         (Cl. Ex. 17, p. 1)
 
         
 
              On April 23, 1985, Robert Bedard, L.P.T., wrote:
 
         
 
              Progress: Mr. Joens is a forty-one year old man who comes in 
 
              today with complaints of lower back pain.  He tells me this 
 
              has bothered him off and on for approximately one month.  He 
 
              is an avid weight lifter.  Last night he had a good deal of 
 
              discomfort and could not get to sleep and this morning was 
 
              unable to get out of bed without assistance.
 
         
 
         
 
         (Cl. Ex. 16, p. 4)
 
         
 
         
 
         LARRY JOENS V. WATERLOO COMMUNITY SCHOOLS 
 
         Page 18
 
         
 
         
 
         
 
              The medical records of Lawrence Strathman, M.D., on December 
 
         6, in part, reflect the following:
 
         
 
              He began to have back symptoms in 1985 which he relates to 
 
              an incident that occurred while at work while spotting 
 
              tumbling practice.  He improved with rest, returned to some 
 
              coaching activities, continued to have discomfort, and 
 
              symptoms progressed to an incapacitating level.  
 
              Subsequently laminectomy and removal of a herniated 5-1 disc 
 
              was carried out.  He has recovered to the point of returning 
 
              to full-time duty.  However, he has restrictions in 
 
              performing his duties and presently cannot carry them out 
 
              without the aid of an assistant.  He continues to have some 
 
              symptoms requiring modification of work and recreational 
 
              duties, although he has learned to work Around them very 
 
              well and is presently a full-time employee.
 

 
              
 
 
 
 
 
 
 
 
 
 
 
              
 
                 On the basis of his present examination, including review 
 
              of records and x-rays, I do not feel further surgical 
 
              treatment is indicated.  I do think however that his 
 
              limitations as outlined are valid and real.
 
              
 
                 It seems reasonable that his problems began from the 
 
              incident while spotting tumbling practice, but as is evident 
 
              from his history, the actual herniation and incapacitating 
 
              aspect of his disorder did not occur until after he had 
 
              returned to duty and had continued aggravating incidents.  
 
              It seems reasonable to the examiner that this gentleman's 
 
              problems are work related.  It also seems reasonable that he 
 
              has residual impairment requiring modification of work 
 
              status and lifestyle.
 
              
 
                 Estimated impairment is 15-20 per cent of the body as a 
 
              whole.
 
         
 
         (Cl. Ex. 19, pp. 2-3)
 
         
 
         
 
                           APPLICABLE LAW AND ANALYSIS
 
         
 
              Claimant has the burden of proving by a preponderance of the 
 
         evidence that he received an injury on March 1, 1985 which arose 
 
         out of and in the course of his employment.  McDowell v. Town of 
 
         Clarksville, 241 N.W.2d 904 (Iowa 1976); Musselman v. Central 
 
         Telephone Co., 261 Iowa 352, 154 N.W.2d 128 (1967).
 
         
 
              The injury must both arise out of and be in the course of 
 
         the employment.  Crowe v. DeSoto Consol Sch. Dist., 246 Iowa
 
         
 
         
 
         LARRY JOENS V. WATERLOO COMMUNITY SCHOOLS 
 
         Page 19
 
         
 
         
 
         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 claimant has the burden of proving by a preponderance of 
 
         the injury of the evidence that the injury of March 1, 1985 is 
 
         causally related to the disability on which he now bases his 
 
         claim.  Bodish v. Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867 
 
         (1965). Lindahl v. L. 0. Boggs, 236 Iowa 296, 18 N.W.2d 607 
 
         (1945).  A possibility is insufficient; a probability is 
 
         necessary.  Burt v. John Deere Waterloo Tractor Works, 247 Iowa 
 
         691, 73 N.W.2d 732 (1955).  The question of causal connection is 
 
         essentially within the domain of expert testimony.  Bradshaw v. 
 
         Iowa Methodist Hospital, 251 Iowa 375, 101 N.W.2d 167 (1960).
 
         
 
              However, expert medical evidence must be considered with all 
 
         other evidence introduced bearing on the causal connection.  
 
         Burt, 247 Iowa 691, 73 N.W.2d 732.  The opinion of experts need 
 
         not be couched in definite, positive or unequivocal language.  
 
         Sondag v. Ferris Hardware, 220 N.W.2d 903 (Iowa 1974).  However, 
 
         the expert opinion may be accepted or rejected, in whole or in 
 
         part, by the trier of fact.  Id. at 907.  Further, the weight to 
 
         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).
 

 
         
 
 
 
 
 
 
 
 
 
 
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              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.2d 899, 902 (1935) as follows: "It is therefore 
 
         plain that the legislature intended the term 'disability' to mean 
 
         ',industrial disability' or loss of earning capacity and not a 
 
         mere 'functional disability' to be computed in the terms of 
 
         percentages of the total physical and mental ability of a normal 
 
         man."
 
         
 
              Functional impairment is an element to be considered in 
 
         determining industrial disability which is the reduction of 
 
         earning capacity, but consideration must also be given to the 
 
         injured employee's age, education, qualifications, experience and 
 
         inability to engage in employment for which he is fitted.  Olson 
 
         v. Goodyear Service Stores, 255 Iowa 1112, 1121, 125 N.W.2d 251, 
 
         257 (1963).
 
         
 
              Iowa Code section 85.34(l) 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)
 
         
 
         
 
         LARRY JOENS V. WATERLOO COMMUNITY SCHOOLS 
 
         Page 20
 
         
 
         
 
         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.
 
         
 
              A healing period may be interrupted by a return to work.  
 
         Riesselman v. Carroll Health Center, III Iowa Industrial 
 
         Commissioner Report 09 (Appeal Decision 1982).
 
         
 
              This 45-year-old claimant is a teacher and a coach.  He has 
 
         taught for approximately 21 years in the Waterloo School District 
 
         and has been involved in coaching for several years.  He has been 
 
         personally involved in athletics during his high school and 
 
         college studies and after his graduation.  It is obvious claimant 
 
         loves various sports and enjoys coaching and working with the 
 
         young students, and personally participating.  There is credible 
 
         evidence from two individuals who either saw claimant hurt 
 
         himself on or around March 1, 1985 or saw evidence of an injury 
 
         and talked to claimant shortly after the injury occurred.  
 
         Claimant contends he hurt his low back on March 1, 1985 while 
 
         spotting and helping a young uncoordinated 70 to 100 pound child 
 
         during a tumbling class.  Claimant's testimony and description of 
 
         events coincide with what Terri Roberts witnessed.  Roberts has 
 
         moved from the state.  It appears she no longer has any 
 
         connection with the parties or this area.  She moved from 
 
         waterloo because of the transfer of her husband.  There is a big 
 
         dispute as to whether claimant's injury occurred as claimant 
 
         indicated or because of claimant lifting weights, and whether 
 
         claimant's condition is causally connected to the tumbling class 
 
         injury or the lifting of weights.  The confusion begins with a 
 
         history taken by Dr. Schnurpfeil, who was the first doctor 
 
         claimant saw for his back problems in March 1985.  Dr. 
 
         Schnurpfeil defends the history he took, which indicates claimant 
 
         told him he injured or aggravated his low back by a recent 
 
         increase in weightlifting.  He said claimant also referred to a 
 
         recent bowling event that caused pain and stiffness the next 
 
         night.  Dr. Schnurpfeil appears adamant that claimant did not say 
 
         he injured his back in a tumbling class.  Dr. Schnurpfeil then 
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         referred claimant to Robert Bedard, a physical therapist, who 
 
         took a history on April 23, 1985.  Bedard does not recall or show 
 
         in his records any notations that claimant suggested an injury in 
 
         a tumbling class at school.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              Every other doctor who later had contact with claimant and 
 
         took a history refers to claimant's contention he injured his low 
 
         back in a tumbling incident or in a physical education class.  
 
         The undersigned finds it is not unusual for medical personnel to 
 
         leave out information or put incorrect information in a history.  
 
         While this is not intentional, haste or other reasons can cause 
 
         any incomplete history.  It is undisputed that weightlifting can 
 
         cause a herniated disc problem and even more so if a person is 
 
         not conditioned or lifts the wrong way.  Similar injuries can be
 
         
 
         
 
         LARRY JOENS V. WATERLOO COMMUNITY SCHOOLS 
 
         Page 21
 
         
 
         
 
         caused by a sneeze.  Taken the medical and nonmedical testimony 
 
         as a whole, there is no question in the undersigned's mind that 
 
         claimant sought help from Dr. Schnurpfeil because of the tumbling 
 
         incident at school.  Claimant was very athletic.  It was that 
 
         time of year in which claimant would begin to get in shape for 
 
         baseball season, which starts after the spring break.  Baseball 
 
         workouts began in 1985 around the first week in April.  One of 
 
         the means of exercise was working with weights.  It is not 
 
         unusual for a person, especially an athlete, to use various 
 
         exercises to work out a "kink" or apparent muscle stretch by 
 
         increased activity.  The advisability of this exercise depends on 
 
         the nature of the problem.  The undersigned believes claimant was 
 
         hurt as he described on March 1, 1985, but did not realize the 
 
         nature of his injury.  He started his pre-baseball workout and 
 
         this aggravated or brought out more sharply the nature of his 
 
         March 1, 1985 injury.  Dr. Schnurpfeil's notes indicate claimant 
 
         said he aggravated his back by lifting weights.  This does not 
 
         indicate that the weight caused his original injury.  This is an 
 
         instance whereby the history taken leaves much to be desired.  
 
         This happens in other instances in this case.  It is necessary to 
 
         look at other circumstances to clarify this picture.
 
         
 
              Robert Bedard, the physiotherapist, testified that he added 
 
         the word "avid" to a description of the claimant as a 
 
         weightlifter.  He made assumptions that claimant was an avid 
 
         weightlifter because of claimant's body build. once he made that 
 
         assumption, that tainted his logic to some extent.
 
         
 
              Dr. Kothari, to whom claimant was referred by Dr. 
 
         Schnurpfeil, referred to claimant as being injured in his 
 
         physical education class.  He said he wasn't more specific 
 
         because he presumed this was a workers' compensation case since 
 
         the insurance company was dealing with him as if it were a 
 
         workers' compensation injury.  The undersigned finds that the 
 
         greater weight of evidence shows claimant injured his low back on 
 
         March 1, 1985 while helping a student perform a roll-over in a 
 
         tumbling class.
 
         
 
              Claimant's condition resulting from the March 1, 1985 injury 
 
         progressively got worse.  It isn't unusual in an injury of this 
 
         nature for the herniated disc to cause increased problems.  
 
         Because of the nature of this injury, the doctors used 
 
         conservative treatment and therapy.  Claimant ultimately had 
 
         surgery in October 1986.  Dr. Kothari found a 20 percent 
 
         permanent impairment and loss of physical function to claimant's 
 
         whole body.  Dr. Kothari is a treating specialist who performed 
 
         the lumbar laminectomy.  Defendants desired a second impairment 
 
         opinion and received an estimated 15 to 20 percent impairment of 
 
         the body as a whole from Dr. Strathman.  The undersigned finds 
 
         the greater weight of medical evidence shows that claimant's 
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         condition and permanent impairment of his body as a whole is
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         
 
         
 
         LARRY JOENS V. WATERLOO COMMUNITY SCHOOLS
 
         Page 22
 
         
 
         
 
         causally connected to his work injury on March 1, 1985.  Claimant 
 
         has a 20 percent impairment to his body as a whole.
 
         
 
              The evidence shows claimant was off work from April 22, 1985 
 
         through May 19, 1985, and September 17, 1986 through August 19, 
 
         1987.  This latter period included the time claimant was off due 
 
         to his October 6, 1987 lumbar laminectomy.  The undersigned finds 
 
         claimant incurred the two healing periods above which total four 
 
         weeks and 48.143 weeks, respectively.  Dr. Kothari said claimant 
 
         could return to his regular duties which included teaching and 
 
         coaching beginning August 19, 1987.
 
         
 
              Claimant is very sports oriented and this has been a big 
 
         part of his teaching-coaching activities the last several years.  
 
         He is well respected as a teacher and coach.  Claimant's job as a 
 
         teacher in a physical education class requires some athletic 
 
         ability.  Prior to March 1, 1985, he was working with smaller 
 
         elementary students.  Demonstrating certain exercises was more 
 
         important and necessary with the younger students.  After his 
 
         injury, claimant was not able to do the duties required and 
 
         expected of him.  He eventually applied for and obtained a 
 
         transfer to the high school where he dealt with older students 
 
         who required less demonstration of exercises.  If necessary, 
 
         claimant could call upon the older students to come before the 
 
         class as a demonstrator.
 
         
 
              Claimant was coaching certain sports without a paid 
 
         assistant.  Because of his condition, he requested and was 
 
         ultimately provided an assistant to help with baseball.  Claimant 
 
         gave up football coaching because he could not perform the 
 
         required duties.  Claimant has lost approximately $1,800 to 
 
         $2,000 the last two years from having to give up the assistant 
 
         football coaching job.
 
         
 
              Claimant is now earning as much, if not more, teaching and 
 
         coaching, than he was earning on March 1, 1985, adjusting for the 
 
         normal expected increases, except for football.  Although the 
 
         loss of income is one item to consider in determining a person's 
 
         industrial disability, one's loss of earning capacity is the real 
 
         criteria.  Claimant's request for transfer to the high school was 
 
         granted.  Claimant does not have the capacity to perform the job 
 
         he had in the elementary school.  Claimant no longer has the 
 
         ability to coach football.  This is another loss of earning 
 
         capacity as well as income.  Claimant's athletic coaching 
 
         maturity and ability can overcome one's age in working with young 
 
         people, but physical functional impairments can have a greater 
 
         impact in a coaching career than in some other careers.  
 
         Attitude, example and being able to perform with players is 
 
         important.  Claimant has lost this capacity for coaching football 
 
         and his capacity in other sports of baseball and basketball has 
 
         been diminished.  He was able to handle baseball alone without
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         
 
         LARRY JOENS V. WATERLOO COMMUNITY SCHOOLS 
 
         Page 23
 
         
 
         
 
         problems, before his March 1, 1985 injury.  He ultimately 
 
         received requested help for an assistant, otherwise, he would not 
 
         be able to continue coaching alone in baseball.
 
         
 
              Claimant is highly motivated.  He went beyond expectation in 
 
         his eagerness to go through therapy and the required exercises to 
 
         recover as fast and fully as possible.  Claimant attempted to 
 
         come back part-time and defendant employer wouldn't allow it.  
 
         The employer indicated claimant had to return full time through a 
 
         doctor's release or not return at all.
 
         
 
              The evidence shows claimant does not need additional 
 
         surgery.  There also is evidence that future surgery cannot be 
 
         ruled out.  The undersigned cannot speculate as to what the 
 
         future may hold for claimant.  This decision is based on 
 
         claimant's current medical situation with no anticipation of 
 
         future surgery or disc damage.
 
         
 
              The undersigned viewed defendants' video tape (Exhibit A).  
 
         From what this deputy saw, claimant would be expected to perform 
 
         those functions shown on the tape even with a higher degree of 
 
         functional impairment.  The undersigned believes certain 
 
         functions shown on the tape were being done with pain occurring. 
 
         claimant is motivated.  If claimant gave up baseball so as to 
 
         prevent pain or possible aggravation of his injury, then the 
 
         claimant's industrial disability would be greater.  Claimant has 
 
         an impairment that he must live with.  He is to be congratulated 
 
         in his perseverance considering the low pay he receives.  
 
         Defendant employer should be congratulated in allowing this 
 
         teacher and coach to mold young players into responsible 
 
         athletes.  The evidence indicates claimant is a good role model 
 
         as an understanding, respected coach and teacher.  Taking into 
 
         consideration claimant's age and the nature of his injury, 
 
         motivation and all the other items that are considered in 
 
         determining one's industrial disability, the undersigned finds 
 
         claimant has a 30 percent industrial disability.  Claimant's 
 
         permanent disability benefits will begin August 20, 1987.
 
         
 
              Claimant raised the odd-lot doctrine.  It is obvious that 
 
         this doctrine is not applicable.  First of all, claimant is not 
 
         totally disabled under any criteria.  Second, claimant is fully 
 
         employed.  There is no need to further discuss this issue.
 
         
 
                                 FINDINGS OF FACT
 
         
 
              1. Claimant injured his low back on March 1, 1985 while 
 
         helping a young student perform a roll-over in a gymnastics 
 
         class.
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
              2. Claimant had a lumbar laminectomy at L5-Sl as a result of 
 
         his work-related injury on March 1, 1985.
 
         
 
         
 
         LARRY JOENS V. WATERLOO COMMUNITY SCHOOLS
 
         Page 24
 
         
 
         
 
              3. Claimant has a 20 percent permanent partial impairment 
 
         and loss of physical function of the whole body as a result of 
 
         his work-related March 1, 1985 injury.
 
         
 
              4. Claimant is no longer able to coach football as a result 
 
         of his March 1, 1985 injury.  Claimant is no longer able to coach 
 
         baseball and basketball without help or assistance provided by 
 
         the employer as a result of his March 1, 1985 work injury.
 
         
 
              5. Claimant is earning as much for his teaching 
 
         responsibilities as he was at the time of his work injury on 
 
         March 1, 1985, adjusted for the normal expected and inflationary 
 
         increases.
 
         
 
              6. Claimant is earning less compensation from his coaching 
 
         duties as a result of not being able to coach football, as a 
 
         result of his March 1, 1985 work injury.
 
         
 
              7. Claimant incurred healing periods involving April 22, 
 
         1985 through May 19, 1985 and September 17, 1986 through August 
 
         19, 1987, totaling four weeks and 48.143 weeks, respectively.  
 
         These periods total 52.143 weeks at $339.97 per week.
 
         
 
              8. Future surgery for claimant's low back is not anticipated 
 
         at this time.
 
         
 
              9. Claimant has a reduction in earning capacity.
 
         
 
              10. Clamant is a full-time employee.
 
         
 
              11. The odd-lot doctrine is not applicable.
 
         
 
                                CONCLUSIONS OF LAW
 
         
 
              Claimant's March 1, 1985 injury to his low back while 
 
         helping a young student perform a roll-over in a gymnastics class 
 
         arose out of and in the course of his employment.
 
         
 
              Claimant's lumbar laminectomy at L5-Sl is causally connected 
 
         to his work-related injury on March 1, 1985.
 
         
 
              Claimant's 20 percent permanent partial impairment and loss 
 
         of physical function of the whole body is causally connected to 
 
         his March 1, 1985 work-related low back injury.
 
         
 
              Claimant is no longer able to coach football as a result of 
 
         his March 1, 1985 work injury.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              Claimant is no longer able to coach baseball and basketball 
 
         without help or assistance provided by the employer as a result 
 
         of his March 1, 1985 work injury.
 
         
 
         
 
         LARRY JOENS V. WATERLOO COMMUNITY SCHOOLS
 
         Page 25
 
         
 
         
 
              Claimant incurred healing periods involving April 22, 1985 
 
         through May 19, 1985 and September 17, 1986 through August 19, 
 
         1987, totaling four weeks and 48.143 weeks, respectively.  These 
 
         periods total 52.143 weeks at $339.97 per week.
 
         
 
              Claimant has a 30 percent industrial disability.  The 
 
         odd-lot doctrine is not applicable.
 
         
 
                                      ORDER
 
              THEREFORE, it is ordered:
 
         
 
              That defendants shall pay unto claimant healing period 
 
         benefits at the rate of three hundred thirty-nine and 97/100 
 
         dollars ($339.97) per week for the periods beginning April 22, 
 
         1985 through May 19, 1985 (four weeks) and beginning September 
 
         17, 1986 through August 19, 1987 (48.143 weeks), totaling 
 
         fifty-two point one four three (52.143) weeks.
 
         
 
              That defendants shall pay unto claimant one hundred fifty 
 
         (150) weeks of permanent partial disability benefits at the rate 
 
         of three hundred thirty-nine and 97/100 dollars ($339.97) 
 
         beginning August 20, 1987.
 
         
 
              That defendants shall pay the accrued weekly benefits in a 
 
         lump sum,and shall receive credit against the award for weekly 
 
         benefits previously paid.
 
         
 
              That defendants shall pay interest on benefits awarded 
 
         herein as set forth in Iowa Code section 85.30.
 
         
 
              That defendants shall pay the costs of this action, pursuant 
 
         to Division of Industrial Services Rule 343-4.33.
 
         
 
              That 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 15th day of February, 1990.
 
         
 
         
 
         
 
         
 
         
 
                                         BERNARD J. O'MALLEY
 
                                         DEPUTY INDUSTRIAL COMMISSIONER
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         
 
         LARRY JOENS V. WATERLOO COMMUNITY SCHOOLS
 
         Page 26
 
         
 
         
 
         Copies to:
 
         
 
         Mr Thomas L Staack
 
         Mr J Scott Bayne
 
         Attorneys at Law
 
         3151 Brockway Rd.
 
         P 0 Box 810
 
         Waterloo IA 50704
 
         
 
         Mr James E Walsh 
 
         Mr Bruce L Gettman Jr 
 
         Attorneys at Law 
 
         River Plaza Bldg 
 
         10 W Fourth St 
 
         P 0 Box 596
 
         Waterloo IA 50704
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
 
         
 
 
 
 
 
 
 
 
 
 
 
                                         51100; 51108.50;
 
                                         51803; 51800
 
                                         Filed February 15, 1990
 
                                         Bernard J. O'MALLEY
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         LARRY JOENS,
 
         
 
              Claimant,
 
         
 
         VS.
 
                                               File No. 797338
 
         WATERLOO COMMUNITY SCHOOLS,
 
                                         A R B I T R A T I 0 N
 
              Employer,
 
                                               D E C I S I 0 N
 
         and
 
         
 
         AETNA INSURANCE,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         51100
 
         
 
              Found claimant's injury arose out of and in the course of 
 
         his employment.
 
         
 
         51108.50
 
         
 
              Found claimant's low back condition and 20% impairment to 
 
         his body as a whole was causally connected to his work injury.
 
         
 
         51800
 
         
 
              Claimant was a physical education and driver's education 
 
         teacher and coached football, basketball and baseball.  Due to 
 
         his injury, he no longer coaches football and 'now needs paid 
 
         assistant to help coach basketball and baseball.
 
         
 
         51803
 
         
 
              Found 30% industrial disability.
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
 
            
 
 
 
 
 
            
 
 
 
                    
 
                 BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         JEFF L. BUCK,
 
         
 
              Claimant,
 
                                                  File No. 797417
 
         vs.
 
         
 
         BABCOCK & WILCOX,                     A R B I T R A T I O N
 
         
 
              Employer,                            D E C I S I O N
 
         
 
         and                                          F I L E D
 
         
 
         CIGNA                                       FEB 21 1989
 
         
 
              Insurance Carrier             IOWA INDUSTRIAL COMMISSIONER
 
              Defendants.
 
         
 
         
 
                           STATEMENT OF THE CASE
 
         
 
              This is a proceeding in arbitration brought by Jeff L. Buck, 
 
         claimant, against Babcock & Wilcox, employer, and Cigna, 
 
         insurance carrier, to recover benefits under the Iowa Workers' 
 
         compensation Act as a result of an injury occurring June 12, 
 
         1985.  This matter came on for hearing before the undersigned 
 
         deputy industry commissioner February 9, 1989.  The record was 
 
         considered fully submitted at the close of the hearing.  The 
 
         record in this case consists of the testimony of claimant, Lee 
 
         Ann Russo and Becky Parkins; and exhibits 1 through 75, 
 
         inclusive, which are marked as claimant's exhibits but which were 
 
         received into evidence as joint exhibits.
 
         
 
                                   ISSUES
 
         
 
              Pursuant to the prehearing report and order submitted and 
 
         approved February 9, 1989, the following issues are presented for 
 
         resolution:
 
         
 
              1.  Whether claimant's work injury of June 12, 1985 is the 
 
         cause of the disability on which claimant now bases his claim; 
 
         and
 
         
 
              2.  The extent of claimant's entitlement, if any, to 
 
         permanent partial disability benefits.
 
         
 
              The parties have stipulated that defendants have paid 
 
         claimant 75 weeks of permanent partial disability benefits for an 
 
         industrial disability equal to 15 percent.
 
         
 
              Claimant also lists as disputed his entitlement to 
 
         vocational rehabilitation benefits under Iowa Code section 85.70.  
 
                                                
 
                                                         
 
         This issue, however, was not listed as an issue on the hearing 
 
         assignment order and, accordingly, the undersigned is without 
 
         jurisdiction to consider it.  See Joseph Presswood v. Iowa Beef 
 
         Processors, (Appeal Decision filed November 14, 1986) holding an 
 
         issue not noted on the hearing assignment order is an issue that 
 
         is waived.
 
         
 
                            FACTS PRESENTED
 
         
 
              Claimant sustained an injury which arose out of and in the 
 
         course of his employment on June 12, 1985 when, after moving 
 
         scaffolding, he felt a "shooting sharp pain" in his lower back on 
 
         the right and pain down his right leg.  Claimant testified he saw 
 
         a "couple of" doctors before being referred to David F. Poe, 
 
         M.D., orthopedic surgeon, who prescribed medication, did some 
 
         testing and gave him a chymopapain disc injection.  Claimant 
 
         explained that his pain did not cease and that he was eventually 
 
         referred to William R. Boulden, M.D., by the insurance carrier.  
 
         Claimant testified that Dr. Boulden performed surgery on his back 
 
         in August 1987 and that while the surgery alleviated all of his 
 
         leg pain, he still experiences sharp pains in his back.
 
         
 
              Claimant testified that since his release from medical care 
 
         he is unable to return to work in his usual occupation as a 
 
         journeyman sheet metal work and, after working with counselors 
 
         from Intracorp and the State of Iowa Vocational Rehabilitation, 
 
         he had originally planned to attend school and pursue a sociology 
 
         degree and possibly teach.  However, claimant has now set his 
 
         goal toward securing a registered nurse diploma either through a 
 
         high school or a community college but acknowledged that he has 
 
         not yet been accepted into any such program.  Claimant  testified 
 
         that he believes he is a good prospect to complete such a program 
 
         as his wife is a nurse and he has been working as an 
 
         orderly/nurse assistant at a nursing home in Ackley on a 
 
         part-time basis for 24 to 32 hours per week after attaining a 
 
         certificate as a nursing assistant.  Claimant acknowledged he has 
 
         not sought other work since securing this position although he 
 
         maintained he sought employment from a variety of "service" 
 
         industry establishments which he classified as "light or medium 
 
         duty weight jobs" and had, prior to surgery but after the injury, 
 
         worked for K-Mart Corporation as a part-time sales clerk.
 
         
 
              Claimant testified that since his injury his recreational 
 
         activities have changed in that he no longer competes in sports 
 
         and what he does he does not do "full steam."  On 
 
         cross-examination, claimant denied ever suffering any previous 
 
         back injury and when asked to explain Dr. D. Schmit's office note 
 
         that he "injured [his] sacroiliac area 2 yrs ago" claimant had no 
 
         explanation as he denied ever seeing a doctor for his back prior 
 
         to the injury under review.  Claimant acknowledged his attendance 
 
         at work at the nursing home in Ackley has been "pretty good" in 
 
         that he does not miss much time.
 
         
 
              Lee Ann Russo, who identified herself as a vocational 
 
         counselor with the State of Iowa Vocational Rehabilitation and 
 
                                                
 
                                                         
 
         who described her job duties as determining a client's 
 
         eligibility for services, testified she first came in contact 
 
         with claimant while she was employed with Intracorp but that she 
 
         could not recall any of the specifics of the contact without the 
 
         Intracorp file.  Ms. Russo stated that she saw claimant again 
 
         once she began employment with the State of Iowa when Dr. Poe 
 
         referred him for services. Ms. Russo explained claimant was 
 
         eligible for vocational rehabilitation services and classified as 
 
         "severely disabled" meaning claimant required multiple services 
 
         over an extended period of time.  Ms. Russo stated she found 
 
         claimant to be an individual without any transferable skills who 
 
         was qualified only for entry level positions.  Ms. Russo reported 
 
         on claimant's results from the GATB and other testing which lead 
 
         to the conclusion that claimant's ability to be successful in 
 
         post-secondary education was tenuous.  Ms. Russo stated that 
 
         notwithstanding the test results, a plan was developed to return 
 
         claimant to school at a community college in order to increase 
 
         claimant's grade point average (as his high school grades were 
 
         not sufficient) to a point which would allow claimant to enter 
 
         the University of Northern Iowa to pursue a degree in sociology.  
 
         Ms. Russo explained that that vocational rehabilitation plan has 
 
         now been amended to allow claimant to pursue a registered nurse 
 
         diploma and that claimant's grades from the University of Iowa 
 
         have placed his funding in jeopardy.  Ms. Russo reported that 
 
         claimant's grade point from the last semester equaled 1.98 and 
 
         that claimant must have maintained a 2.0 grade point average in 
 
         order to retain his state funding.  Ms. Russo opined that if 
 
         claimant did not complete any type of retraining, he would 
 
         qualify only for positions which would "require little or no 
 
         creative thought" paying minimum wage to $4.50 per hour and that 
 
         with a registered nurse diploma the pay could range from $5.00 to 
 
         $12.62 per hour.  Ms. Russo opined that with claimant's 
 
         restrictions he should not return to work in sheet metal.
 
         
 
              On cross-examination, Ms. Russo acknowledged that all of the 
 
         medical evidence contained in her file predated claimant's 
 
         surgery and none of the physicians who rendered opinions for the 
 
         state agency have ever personally examined claimant.
 
         
 
              Becky Parkins, who identified herself as a rehabilitation 
 
         consultant with Intracorp, testified her first contact with 
 
         claimant came on November 2, 1988 after she was given claimant's 
 
         file from another Intracorp consultant.  Ms. Parkins reported 
 
         that preinjury and postinjury profiles were done on claimant 
 
         which included examinations of claimant's work history, his 
 
         vocational rehabilitation test results, his educational level and 
 
         his interests and that preinjury claimant could perform 24 
 
         percent of the jobs available in the Iowa labor market while 
 
         postinjury claimant could perform approximately 19 percent of 
 
         those jobs. Ms. Parkins opined that claimant had transferable 
 
         skills such as reading, writing, an ability to read blueprints 
 
         and a knowledge of construction and construction materials.  Ms. 
 
         Parkins stated that under the Dictionary of Occupational Titles, 
 
         sheet metal work is classified in the medium work category and, 
 
         considering claimant's medical condition and restrictions, as 
 
                                                
 
                                                         
 
         well as the job description of claimant's previous position 
 
         provided by defendant employer's personnel director, that 
 
         claimant can return to sheet metal work.
 
         
 
              William R. Boulden, M.D., orthopaedic surgeon, testified he 
 
         first saw claimant on October 6, 1986 for the purposes of:
 
         
 
              Basically to examine the patient, find out what his 
 
              complaints were, see if there was pathological processes, 
 
              and rate him out with a disability if there was such to be 
 
              rated out; and if there was something else to be found or 
 
              worked up, to proceed ahead with trying to find out what was 
 
              wrong with his persistent symptoms.
 
         
 
         (William R. Boulden Deposition, Page 5)
 
         
 
              Dr. Boulden explained that at that time his impression was 
 
         that claimant had either a spinal stenosis problem from a 
 
         previous cymopapain injection that claimant had had at the L-4, 5 
 
         level or that claimant was having problems from the L-5, S-l 
 
         disc.  Dr. Boulden saw claimant a number of times thereafter 
 
         during which claimant was found to have retained material from 
 
         the chymopapain injection at L-4, 5 and an old calcified disc at 
 
         L-5, S-l which Dr. Boulden described as being "longstanding" in 
 
         nature and not due to a current, new or traumatic event.  Dr. 
 
 
 
                            
 
                                                         
 
         Boulden performed surgery on claimant on August 28, 1987 
 
         explaining:  "The surgery we did was basically to take out the 
 
         further disc material at the L-4, 5 disc and then remove some of 
 
         the calcified disc material at L-5, S-l so that the nerve that 
 
         could have been entrapped either at the 4-5 or the 5-1 disc 
 
         levels would be totally freed.... " (Boulden Dep., p. 7) Dr. 
 
         Boulden described the surgery as successful, stating;
 
         
 
              Basically his postoperative course was uneventful.  At first 
 
              he had a little numbness and tingling in his legs after the 
 
              surgery, but that was basically because of the amount of 
 
              surgery we did on him.  He did not have any further leg 
 
              pain, and that responded.  In fact, the leg numbness 
 
              disappeared. He still had a few aches and pains in his back 
 
              which I would expect because still the condition of the 
 
              degenerative state of his disc.  So, no, I think he did very 
 
              nicely.
 
         
 
         (Boulden Dep., pp. 10-11)
 
         
 
              Dr. Boulden did not recommend any type of work hardening 
 
         program on the basis that:
 
         
 
              Since he did not consider going back to doing heavy manual 
 
              work, we did not feel it would be important to recondition 
 
              his back for the working manual labor type of position he 
 
              had been doing in the past.  If he was going, however, back 
 
              to manual labor, then we felt that would have been a very 
 
              important thing to consider.
 
         
 
         (Boulden Dep., p. 12)
 
         
 
              Dr. Boulden testified:
 
         
 
              Q . Based, Doctor, on your treatment and examinations and 
 
              the physical capacities evaluation, what recommendations 
 
              have you made to Mr. Buck concerning his physical activity?
 
         
 
              A.  We feel the patient can resume most normal activities, 
 
              but we have tried to point out to him proper back mechanics 
 
              meaning what he should and shouldn't do with the back.  We 
 
              want him to be active.  We want him to try and be more 
 
              normal, but we have discussed there's certain activities 
 
              that are basically bad for his back.  These would include 
 
              activities where he would do any bending, lifting, or 
 
              twisting with his back.  I'm not saying he could not do 
 
              those maneuvers, but he would have to use proper mechanics 
 
              of the back to perform those activities.
 
         
 
         (Boulden Dep., p. 12-13)
 
         
 
              On January 14, 1988, Dr. Boulden advised defendants' counsel 
 
         that claimant's functional capacities would show claimant had "an 
 
         average back considering what is left with it and that he is not 
 
         entailed for heavy industrial work.  It would be our 
 
                                                
 
                                                         
 
         recommendation that job vocational retraining or re-education 
 
         will be in order."  (Joint Exhibit 11) On January 28, 1988, Dr. 
 
         Boulden opined claimant has "a disability of 15% of the lumbar 
 
         spine which is a body as a whole rating."  (Jt. Ex. 10 )
 
         
 
              Claimant did have a functional capacity evaluation on 
 
         January 12, 1988 which was conducted by Thomas W. Bower, L.P.T., 
 
         a physical therapy consultant.  In a report of the same date, Mr. 
 
         Bower wrote:
 
         
 
              On the basis of this test, the patient would be placed into 
 
              a physical demand level of light to medium.  This is simply 
 
              based on the maximum effort that was generated in the floor 
 
              to waist lift of 55 pounds.  We feel the patient did have 
 
              rather adequate perception of his pain and did not 
 
              significantly this, therefore, we feel the values 
 
              demonstrated today are within the safe limits.  Generalized 
 
              body mechanics were good during the course of the lifting 
 
              procedures.  We do feel the test is valid at this time.
 
         
 
                 Recommendations at this time would be the implementation 
 
              of a work hardening or rehabilitation program simply to see 
 
              if we can build the generalized stamina up of the 
 
              individual. Apparently the patient is currently in school 
 
              and is attending classes for or in the profession of 
 
              sociology. Certainly this particular profession would not 
 
              require a great deal of heavy lifting but we do feel that 
 
              his overall stamina could be improved to a degree that would 
 
              allow him to participate in generalized recreational 
 
              activities more adequately than what he would be able to do 
 
              at this time.
 
         
 
         (Jt. Ex. 3)
 
         
 
              David F. Poe, M.D., orthopedic surgeon, opined on February 
 
         19, 1986 that claimant has "a 15% whole body permanent disability 
 
         rating.  This would include a permanent light duty status with a 
 
         30 pound weight restriction."  (Jt. Ex. 19)
 
         
 
              On February 12, 1986, claimant was seen for intelligence and 
 
         academic achievement testing at the area office in Waterloo, 
 
         Iowa. David Spaulding, M.S., school psychologist, summarized his 
 
         findings as:
 
         
 
              SUMMARY:
 
         
 
                 The client was a twenty-seven year old male functioning 
 
              in average range of intelligence.  His IQ score would place 
 
              him at the thirty-fourth percentile.  His academic 
 
              achievement scores were above average in arithmetic and at 
 
              the seventh and and [sic] ninth grade levels in spelling and 
 
              reading, respectively.
 
         
 
              The client said he is five feet, eight inches tall, and he 
 
              presented a very acceptable appearance for job interviewing. 
 
                                                
 
                                                         
 
                   It was felt the testing went just a bit faster with this 
 
              client than in many instances.  He said he was a sheet metal 
 
              worker and he was satisfied with that job but he injured his 
 
              back in June of 1986 and he said he will be unable to do 
 
              heavy lifting, pulling, etc.
 
         
 
              The client was interested in his scores and evidently there 
 
              has been some discussion on whether he was properly prepared 
 
              for advanced training.  He was told he was of "average 
 
              intelligence."  He was told the performance IQ was the 
 
              highest IQ and that went similar to the G score on the GATB 
 
              which was ninety-nine.  Perhaps they tend to be just 
 
              slightly higher than his high school which was 1.431, or he 
 
              was 459th in a class of 493.  He likes to work with figures 
 
              and he did score above average on the written arithmetic 
 
              test, which probably reflects the refresher course he 
 
              recently took in algebra at Hawkeye Tech.
 
         
 
                        APPLICABLE LAW AND ANALYSIS
 
         
 
              An employee is entitled to compensation for any and all 
 
         personal injuries which arise out of and in the course of the 
 
         employment. Section 85.3(1).
 
         
 
              The claimant has the burden of proving by a preponderance of 
 
         the evidence that the injury of June 12, 1985 is causally related 
 
         to the disability on which he now bases his claim.  Bodish v. 
 
         Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867 (1965).  Lindahl v. 
 
         L.O. Boggs, 236 Iowa 296, 18 N.W.2d 607 (1945).  A possibility is 
 
         insufficient; 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)
 
         
 
              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).
 
         
 
              Defendants do not dispute that on June 12, 1985, claimant 
 
         sustained an injury which arose out of and in the course of his 
 
         employment.  Although defendants do dispute that this work injury 
 
         is the cause of any permanent disability, the undersigned must 
 
         conclude that the greater weight of evidence would not support 
 
         defendants' position.  Initially, it is noted that in defendants' 
 
         last substituted and amended answer to claimant's petition filed 
 
                                                
 
                                                         
 
         with the industrial commissioner on August 13, 1987, defendants 
 
         admit that claimant has suffered permanent disability as a result 
 
         of the injury of June 12, 1985.  In addition, Dr. Boulden, who is 
 
         the only physician to render any opinion on claimant's condition 
 
         following his surgery, causally connects claimant's impairment 
 
         and his work restrictions to the work injury of June 12, 1985. 
 
         Although defendants argue that claimant has some type of 
 
         preexisting condition, the medical records as well as claimant's 
 
         testimony (which may admittedly be self-serving at times) do not 
 
         support such a finding.  The undersigned cannot disagree that 
 
         claimant may have had an old calcified disc at the L5, Sl level 
 
         but there is no evidence in the record to suggest that claimant 
 
         had any difficulty at the L4, L5 level prior to this work injury. 
 
         See, for example, pages 31 and 32 of Dr. Boulden's deposition. 
 
         Therefore, it is accepted that claimant's work injury is the 
 
         cause of permanent disability and the cause of the disability on 
 
         which claimant now bases his claim.
 
         
 
              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."
 
         
 
              Iowa Code subsection 85.34(2)(u) provides:
 
         
 
                 In all cases of permanent partial disability other than 
 
              those hereinabove described or referred to in paragraphs "a" 
 
              through "t" hereof, the compensation shall be paid during 
 
     
 
                        
 
                                                         
 
              the number of weeks in relation to five hundred weeks as the 
 
              disability bears to the body of the injured employee as a 
 
              whole.
 
         
 
              The crux of the matter in this case is really the extent of 
 
         claimant's permanent partial disability attributable to this work 
 
         injury.  Dr. Boulden has opined that claimant has a "disability 
 
         of 15 percent of the lumbar spine which is a body as a whole 
 
         rating." Although Dr. Boulden refers to "disability" as opposed 
 
         to "impairment," the undersigned cannot find any evidence which 
 
         would show Dr. Boulden invaded the province of the industrial 
 
         commissioner in rendering his opinion.  Claimant clearly has a 
 
         permanent impairment as a result of the work injury.
 
         
 
              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 or 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 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 is 30 years old, has a high school education and 
 
         has, since his injury, completed four semesters of postsecondary 
 
         education with an overall grade point average of 2.8.  Although 
 
         the parties spent a great deal of hearing time discussing and 
 
         arguing over claimant's potential future as a register nurse, for 
 
         the undersigned to consider what may happen to claimant in the 
 
         future would be error as it would constitute basing a decision on 
 
         mere speculation.  See e.g., Umphress v. Armstrong Rubber 
 
         Company (Appeal Decision filed August 27, 1987) which states, in 
 
         part: "It appears...that the deputy based his decision in part on 
 
         what may occur to claimant in the future as opposed to his 
 
         present condition.  This is mere speculation."  It is clearly 
 
         claimant's present condition that must be evaluated for what will 
 
         happen to claimant in the future is better left to a 
 
         review-reopening proceeding.  At present, the record would 
 
         establish claimant is successfully completing an academic 
 
         program.  Although claimant points to a somewhat poor performance 
 
         during the last academic semester as well as his intelligence and 
 
         academic achievement test scores which might support an opinion 
 
         that his chances of success in this program are tenuous, claimant 
 
         has not, in the opinion of the undersigned, performed as poorly 
 
         in school as these tests might suggest.  While at the community 
 
         college claimant was able to record a grade point average of over 
 
         3.0 or a B.  Claimant's performance in this academic program also 
 
         would speak well for his motivation.  The undersigned would 
 
         conclude that claimant's current potential for rehabilitation, if 
 
         that rehabilitation is, in fact, necessary is good.
 
         
 
              However, this conclusion is tempered with a caveat that the 
 
         undersigned is not convinced that claimant cannot return to work 
 
         as a journeyman sheet metal worker.  Dr. Boulden opined that 
 
         claimant is not "entailed for heavy industrial work."  Claimant 
 
         has not convinced this deputy that the work he performed as a 
 
         journeyman sheet metal work was, in fact, "heavy industrial 
 
         work." First, nowhere in the record is there a showing that Dr. 
 
         Boulden was aware of the specifics of claimant's job.  Second, 
 
         claimant stated the work he performed called for lifting from 5 
 
         to 80 or 100 pounds.  However, claimant also added that at least 
 
         with regard to higher weights he generally had help to lift most 
 
         of the time and only "occasionally" lifted as much as 100 pounds.  
 
         Even considering claimant's asserted weight restriction of 55 
 
         pounds, if at least one other individual would help lift an 
 
         article weighing 100 pounds claimant would still come within that 
 
         restriction.
 
         
 
                                                
 
                                                         
 
              It appears Dr. Boulden's opinion with regard to work 
 
         hardening was somewhat equivocal in that he did not recommend 
 
         claimant undergo such a program since claimant was currently 
 
         enrolled in school and did not plan to return to manual labor. 
 
         These circumstances leave the undersigned with the question of 
 
         whether or not it was Dr. Boulden's recommendation claimant not 
 
         return to work in sheet metal or, since claimant was already in 
 
         school, did Dr. Boulden believe claimant would not be returning 
 
         to work in such a capacity in any event.  This becomes evident in 
 
         Dr. Boulden's response to a March 25, 1988 inquiry from Intracorp 
 
         which reads:
 
         
 
              Do you recommend a work hardening program for this claimant? 
 
              YES: x              NO:
 
         
 
              Comments:    if he consider manual labor in the future
 
         
 
         (Jt. Ex. 39, p. 20)
 
         
 
              This does not lead the undersigned to a conclusion that 
 
         claimant is prohibited from all manual labor.  Then, Thomas 
 
         Bower, who did a functional capacities evaluation with which Dr. 
 
         Boulden concurred, opined that claimant's overall stamina could 
 
         be improved to a degree with a work hardening program.  One 
 
         wonders if claimant had the ambition or the motivation to 
 
         actually return to sheet metal work if he could not, in fact, do 
 
         so and whether the 55 pound weight mentioned in Mr. Bower's 
 
         report is permanent and the true maximum amount claimant is able 
 
         to handle.
 
         
 
              Dr. Boulden did not prohibit claimant from any bending, 
 
         lifting or twisting with his back but merely would have claimant 
 
         do those maneuvers with the use of proper body mechanics.  The 
 
         undersigned cannot conclude that with this explanation in mind 
 
         this truly constitutes a limitation on claimant's employability 
 
         since all individuals would do well to use proper body mechanics 
 
         when engaging in such activities.  However, it is accepted that 
 
         in light of claimant's surgery, it may be more important for him 
 
         to use those proper body mechanics than individuals who had not 
 
         sustained an injury such as that sustained by claimant.
 
         
 
              Claimant is currently employed as a certified nursing 
 
         assistant at a nursing home which, according to joint exhibit 39, 
 
         page 2, requires frequently lifting or carrying up to 25 pounds, 
 
         climbing, balancing, stooping, kneeling, crouching, crawling, 
 
         reaching, handling, finger feeling, talking, hearing and seeing, 
 
         and is classified in the medium work category.  Claimant's goal 
 
         currently is to secure a diploma as a registered nurse.  In light 
 
         of claimant's representations at the time of hearing, his current 
 
         occupation as well as his goal seem to be somewhat inconsistent 
 
         with his testimony on his current abilities and limitations. 
 
         However, no medical practitioner has provided any opinion which 
 
         would prohibit claimant from pursuing these occupational goals.
 
         
 
              The undersigned also cannot totally rely on the opinions 
 
                                                
 
                                                         
 
         expressed by Lee Ann Russo initially because many of the opinions 
 
         expressed by her were not within her field of expertise but also 
 
         because, in the experience of the undersigned, claimant is 
 
         clearly not without transferable skills for the purposes of 
 
         evaluating industrial disability.  Claimant went through a four 
 
         year apprenticeship program in sheet metal work and progressed to 
 
         the journeyman stage where he had the ability to, by his own 
 
         testimony, lay out, fabricate and erect all sheet metal products 
 
         including the ability to read and transfer into reality blueprint 
 
         designs . Clearly, claimant has knowledge of construction and 
 
         construction materials.  Just as clearly, claimant did not lose 
 
         these skills or the knowledge garnered from his years of 
 
         experience in this field when he was injured.  Claimant testified 
 
         that although most of his experience was in industrial sheet 
 
         metal work, he also had some experience in residential sheet 
 
         metal work which he classified as generally less physically 
 
         demanding.  Yet, claimant also appears to have eliminated the 
 
         possibility of returning to residential work which he admits is 
 
         less physically demanding.
 
         
 
              Claimant appears to have had a scant medical history prior 
 
         to this injury and to have had the ability to engage in any 
 
         activities of his choosing without limitation.  Claimant has 
 
         prior work experience as a janitor, stock clerk, in furniture 
 
         delivery, sodding yards and as a gas station attendant in 
 
         addition to his sheet metal work and his own personal knowledge 
 
         of home maintenance.  It cannot be concluded that the evidence 
 
         presented in this case would establish that claimant's injury 
 
         strictly prohibits him from engaging in employment for which he 
 
         is fitted by experience and education.
 
         
 
              It is accepted, however, that as a result of the work injury 
 
         of June 12, 1985 claimant suffered both a loss of earning 
 
 
 
                        
 
                                                         
 
         capacity (since the claimant does have a permanent impairment 
 
         which, by the very use of the phrase, indicates claimant will 
 
         never return to the same condition he was in prior to his injury) 
 
         as well as an actual loss of earnings.  Industrial disability can 
 
         be the same as, less than, or equal to functional impairment. 
 
         Birmingham v. Firestone Tire & Rubber Company, II Iowa 
 
         Industrial Commissioner Report 39 (Appeal Decision 1981).  
 
         Considering then, all the elements of industrial disability, it 
 
         is determined that claimant, as a result of the work injury of 
 
         June 12, 1985, has sustained a permanent partial disability of 15 
 
         percent for industrial purposes entitling him to 75 weeks of 
 
         permanent partial disability benefits.  Claimant, having already 
 
         been paid an amount equal to this award, shall take nothing 
 
         further as a result of these proceedings.
 
         
 
                             FINDINGS OF FACT
 
         
 
              Wherefore, based on all of the evidence presented, the 
 
         following findings of fact are made:
 
         
 
              1.  Claimant sustained an injury which arose out of and in 
 
         the course of his employment June 12, 1985 and underwent surgery 
 
         as a resuit thereof.
 
         
 
              2.  Claimant has a permanent partial impairment as a result 
 
         of the injury.
 
         
 
              3.  Claimant, age 30, has a high school education and has 
 
         successfully completed four semesters of postsecondary 
 
         education.
 
         
 
              4.  Claimant now wishes to pursue a career as a registered 
 
         nurse.
 
         
 
              5. Claimant perceives he cannot return to his usual 
 
         occupation as a journeyman sheet metal worker.
 
         
 
              6.  Medical records do not show claimant is prohibited from 
 
         engaging in manual labor.
 
         
 
              7.  Claimant currently has restrictions on his 
 
         employability.
 
         
 
              8.  Claimant is currently employed as a certified nurse 
 
         assistant and is able to perform all of the aspects of his job.
 
         
 
              9.  Claimant has transferable skills.
 
         
 
              10.  Claimant is not prohibited, as a result of the injury 
 
         of June 12, 1985, from engaging in employment for which he is 
 
         fitted.
 
         
 
              11.  The injury of June 12, 1985 has hampered claimant's 
 
         capacity to earn and has caused a loss of earnings.
 
         
 
                                                
 
                                                         
 
              12.  The injury of June 12, 1985 is the cause of permanent 
 
         disability .
 
         
 
              13.  Claimant has sustained a permanent partial disability 
 
         of 15 percent for industrial purposes as a result of the injury 
 
         of June 12, 1985.
 
         
 
                                CONCLUSION OF LAW
 
         
 
              Therefore, based on the principles of law previously stated, 
 
         the following conclusion of law is made:
 
         
 
              Claimant has sustained a permanent partial disability of 15 
 
         percent for industrial purposes as a result of the injury of June 
 
         12, 1985 and is entitled to 75 weeks of permanent partial 
 
         disability benefits.
 
         
 
                                      ORDER
 
         
 
              THEREFORE, it is ordered:
 
         
 
              As the parties have stipulated claimant has been paid 
 
         seventy-five (75) weeks of permanent partial disability benefits 
 
         for an industrial disability of fifteen (15) percent, claimant 
 
         shall take nothing further as a result of these proceedings.
 
         
 
              Costs are assessed against defendants pursuant to Division 
 
         of Industrial Services Rule 343-4.33.
 
         
 
              Signed and filed this 21st day of February, 1989.
 
         
 
         
 
         
 
         
 
                                         DEBORAH A. DUBIK
 
                                         DEPUTY INDUSTRIAL COMMISSIONER
 
         
 
         Copies to:
 
         
 
         Mr. W. H. Gilliam
 
         Attorney at Law
 
         722 Water Street Ct.
 
         2nd Floor
 
         Waterloo, IA  50703
 
         
 
         Mr. E. J. Giovannetti
 
         Attorney at Law
 
         Terrace Center, Ste 111
 
         2700 Grand Ave
 
         Des Moines, IA  50312
 
         
 
         
 
 
 
 
 
                                                
 
 
        
 
 
 
 
 
        
 
        
 
                                       1803
 
                                       Filed February 21, 1989
 
                                       Deborah A. Dubik
 
        
 
                    BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
        
 
        
 
        JEFF L. BUCK,
 
        
 
            Claimant,
 
                                                        File No. 797417
 
        vs.
 
        
 
        BABCOCK & WILCOX,                               A R B I T R A T 
 
        I O N
 
        
 
            Employer,                                  D E C I S I O N
 
        
 
        and
 
        
 
        CIGNA,
 
        
 
             Insurance Carrier,
 
             Defendants.
 
             
 
             
 
        1803
 
        
 
             Claimant, age 30, injured his back at work and represented 
 
             he could not return to his usual occupation as a sheet metal 
 
             worker. Medical evidence was not convincing on that fact. 
 
             Claimant awarded an industrial disability of 15% which defendants 
 
             had already paid. Claimant took nothing as a result of the 
 
             proceeding.
 
             
 
        
 
 
         
 
        
 
            
 
           
 
                    BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         ____________________________________________________________
 
                   
 
         SHERRI FINDERS,     
 
                   
 
              Claimant, 
 
                   
 
         vs.       
 
                                             File No. 797477
 
         LOUIS RICH COMPANY, 
 
                                               A P P E A L
 
              Employer, 
 
                                             D E C I S I O N
 
         and       
 
                   
 
         LIBERTY MUTUAL INS.,     
 
                   
 
              Insurance Carrier,  
 
              Defendants.    
 
         ___________________________________________________________
 
         The record, including the transcript of the hearing before the 
 
         deputy and all exhibits admitted into the record, has been 
 
         reviewed de novo on appeal.  The decision of the deputy filed 
 
         June 25, 1992 is affirmed and is adopted as the final agency 
 
         action in this case. 
 
         Claimant and defendants shall share equally the costs of the 
 
         appeal, including the preparation of the hearing transcript.
 
         Signed and filed this ____ day of July, 1993.
 
         
 
         
 
         
 
         
 
                                        ________________________________
 
                                                 BYRON K. ORTON
 
                                            INDUSTRIAL COMMISSIONER
 
         
 
         Copies To:
 
         
 
         Mr. Walter F. Johnson
 
         Attorney at Law
 
         111 West Second Street
 
         P O Box 716
 
         Ottumwa, Iowa  52501
 
         
 
         Mr. Stephen D. Lombardi
 
         Attorney at Law
 
         10101 University Avenue
 
         STE 202
 
         Clive, Iowa  50325
 
         
 
 
            
 
 
 
         
 
 
 
                                                5-1803
 
                                                Filed July 29, 1993
 
                                                BYRON K. ORTON
 
                
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                      
 
            SHERRI FINDERS,     
 
                      
 
                 Claimant, 
 
                      
 
            vs.       
 
                                                  File No. 797477
 
            LOUIS RICH COMPANY, 
 
                                                   A P P E A L
 
                 Employer, 
 
                                                 D E C I S I O N
 
            and       
 
                      
 
            LIBERTY MUTUAL INS.,     
 
                      
 
                 Insurance Carrier,  
 
                 Defendants.    
 
            ___________________________________________________________
 
            
 
            
 
            5-1803
 
            Non-precedential, extent of disability case.
 
            
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                                          :
 
            SHERRI FINDERS,               :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :       File No. 797477
 
            LOUIS RICH COMPANY,           :
 
                                          :    A R B I T R A T I O N
 
                 Employer,                :
 
                                          :       D E C I S I O N
 
            and                           :
 
                                          :
 
            LIBERTY MUTUAL INS.,          :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
            
 
                          STATEMENT OF THE CASE
 
            
 
                 This is a proceeding in arbitration brought by Sherri 
 
            Finders, claimant, against Louis Rich Company, employer, 
 
            hereinafter referred to as Rich, and Liberty Mutual 
 
            Insurance Company, insurance carrier, defendants, for 
 
            workers' compensation benefits as a result of an alleged 
 
            injury on June 18, 1985.  On May 6, 1992, a hearing was held 
 
            on claimant's petition and the matter was considered fully 
 
            submitted at the close of this hearing.
 
            
 
                 The parties have submitted a prehearing report of con
 
            tested issues and stipulations which was approved and 
 
            accepted as a part of the record of this case at the time of 
 
            hearing.  The oral testimony and written exhibits received 
 
            during the hearing are set forth in the hearing transcript. 
 
            
 
                 According to the prehearing report, the parties have 
 
            stipulated to the following matters:
 
            
 
                 1.  An employee-employer relationship existed between 
 
            claimant and Rich at the time of the alleged injury.
 
            
 
                 2.  Claimant is seeking temporary total or healing 
 
            period benefits from June 19, 1985 and defendants agree that 
 
            she has been off work since.
 
            
 
                 3.  If the injury is found to have caused permanent 
 
            disability, the type of disability is an industrial disabil
 
            ity to the body as a whole.
 
            
 
                 4.  At the time of injury, claimant's gross rate of 
 
            weekly compensation was $200.00; she was married; and she 
 
            was entitled to 3 exemptions.  Therefore, claimant's weekly 
 
            rate of compensation is $136.17 according to the Industrial 
 
            Commissioner's published rate booklet for FY 85.
 
            
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
                 5.  All requested medical benefits have been or will be 
 
            paid by defendants.           
 
            
 
                                      ISSUES
 
            
 
                 The parties submitted the following issues for determi
 
            nation in this proceeding:
 
            
 
                   I.  Whether claimant received an injury arising out 
 
            of and in the course of employment;
 
            
 
                  II. The extent of claimant's entitlement to disability 
 
            benefits; and
 
            
 
                 III.  Entitlement to additional benefits due to the 
 
            alleged lack of termination notice and unreasonable denial 
 
            of benefits under Iowa Code section 86.13(4).
 
            
 
                                 FINDINGS OF FACT
 
            
 
                 Having heard the testimony and considered all of the 
 
            evidence, the deputy industrial commissioner finds as 
 
            follows:
 
            
 
                 A credibility finding is necessary to this decision as 
 
            defendants placed claimant's credibility at issue during 
 
            cross-examination as to the nature and extent of the injury 
 
            and disability.  From her demeanor while testifying, 
 
            claimant is found credible.
 
            
 
                 Claimant worked for Rich from July 1984 until June 18, 
 
            1985, the date of injury herein.  Rich is a turkey meat pro
 
            cessor.  Initially claimant was assigned to work in the 
 
            packaging room weighing and grading turkeys.  After non-work 
 
            related back surgery in November 1984, she was assigned to 
 
            the trim room trimming bone and skin from breast meat.
 
            
 
                 On or about June 18, 1985, claimant injured her low 
 
            back when she slipped in a hallway at the plant on her way 
 
            to break.  This injury arose out of and in the course of her 
 
            employment at Rich.  Although she grabbed something to pre
 
            vent a fall to the floor, the sudden body movement injured 
 
            her spine and she immediately began to experience low back, 
 
            buttocks and right leg pain.  She was initially treated by 
 
            William Pontarelli, M.D., an orthopedic specialist, with bed 
 
            rest and medication.  Conservative treatment plus epidural 
 
            injections was continued by James B. Worrell, M.D., a neuro
 
            surgeon, over the next several months.  When the pain con
 
            tinued, claimant's care was transferred to Thomas Carlstrom, 
 
            M.D., another neurosurgeon.  Dr. Carlstrom performed back 
 
            surgery on claimant in October 1986.  Unfortunately, this 
 
            surgery failed to alleviate the problems and claimant con
 
            tinues to experience chronic low back and right leg pain 
 
            today.  Claimant has been evaluated since by several physi
 
            cians, including those at the Spinal Center at the 
 
            University of Iowa Hospitals and Clinics.  The consensus 
 
            diagnosis appears to be herniated disc, arachnoiditis 
 
            (scarring) and spinal stenosis at L4-5 level of claimant's 
 
            spine with degeneration of the facet joints.
 
            
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
                 Claimant's work injury to L4-5 on June 18, 1985 was a 
 
            second injury to that area.  As stated previously, claimant 
 
            received back surgery in November 1984 for a non-work 
 
            related injury and had only returned to work in April 1985, 
 
            before the injury herein.  However, that return to work was 
 
            without restrictions and chronic pain.  The second surgery 
 
            failed to correct the problem as before.  All physicians in 
 
            the case agreed that claimant's re-injury aggravated the 
 
            prior existing condition and that this aggravation has had 
 
            permanent effect.
 
            
 
                 There was dispute in the record as to when claimant 
 
            reached maximum healing.  Dr. Carlstrom gives a date in June 
 
            1987.  The University of Iowa doctors at the Spine Center 
 
            provide a date of October 21, 1988.  Given the award herein, 
 
            the date of maximum healing is a moot issue.
 
            
 
                 It is found that the work injury of June 18, 1985 was a 
 
            cause of significant permanent physical impairment.  All 
 
            physicians in this case, including an independent evaluator 
 
            retained by Rich, Peter Wirtz, M.D., opined that claimant 
 
            has suffered some degree of permanent partial impairment as 
 
            a result of the injury on June 18, 1985.  The only differ
 
            ence of opinion concerned how much was attributable to the 
 
            prior injury and surgery.  The rating range from 5 percent 
 
            to 15 percent.  Even if a portion of this impairment is 
 
            attributable to the prior injury and surgery of November 
 
            1984, it is found that there was no ascertainable loss of 
 
            earning capacity prior to June 18, 1985. Claimant had no 
 
            work restrictions and returned to full duty at Rich after 
 
            the surgery.  Claimant is obese but Dr. Carlstrom does not 
 
            feel this was a major factor in her disability.
 
            
 
                 As a result of the injury of June 18, 1985, claimant is 
 
            permanently restricted to light duty work. Dr. Carlstrom's 
 
            views are given the most weight as he has been the treating 
 
            surgeon for both of claimant's surgeries.  Dr. Carlstrom 
 
            restricts claimant's physical activities to no lifting over 
 
            30-40 pounds, 10-15 pounds repetitively and no prolonged 
 
            sitting, standing or bending at the waist.  Most of the 
 
            other evaluators substantially concur in this assessment.
 
            
 
                 Claimant, age 35, has been evaluated vocationally 
 
            primarily by the Iowa Division of Vocational Rehabilitation 
 
            and a private consulting firm retained by defendants.  Both 
 
            concur that the only vocational rehabilitation alternative 
 
            is retraining given her physical restrictions.  She is 
 
            unable to return to Rich or any other physically demanding 
 
            job, the type of work for which she is best suited given her 
 
            work history and education.  Claimant has a GED but only a 
 
            ninth grade formal education.  Her past jobs as a nurse's 
 
            aide and factory work at Perfex all required work which 
 
            would currently exceed her physician imposed restrictions.
 
            
 
                 Claimant has attempted retraining and with the assis
 
            tance of state assistance, she has taken courses in a book
 
            keeping program at a local community college.  
 
            Unfortunately, she had to withdraw from the harder of these 
 
            courses due to lack of mental aptitude and her back pain.  
 
            She has completed some typing and office machine courses.  
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            Given her difficulty with this program, the future success 
 
            of this training program is unknown at this time.  She has 
 
            looked for suitable work in the area of her residence but 
 
            has found nothing.  No vocational counselor was able to 
 
            locate work for her and Rich has done nothing to assist her 
 
            in a return to the work force.
 
            
 
                 Although it would appear that claimant is mentally 
 
            capable of sedentary office type of work, the restriction 
 
            against prolonged sitting or standing appears to be a sub
 
            stantial impediment to a return to the work force even if 
 
            she completes the bookkeeping courses.
 
            
 
                 After consideration of all of the factors, it is found 
 
            that the work injury of June 18, 1985 was a cause of a 100 
 
            percent loss of earning capacity.
 
            
 
                 It is found that claimant's attorney of record, Stephen 
 
            Lombardi, received notice of the termination of benefits 
 
            from the defendant insurer more than 30 days prior to the 
 
            termination of benefits.
 
            
 
                                CONCLUSIONS OF LAW
 
            
 
                 I. Claimant has the burden of proving by a preponder
 
            ance of the evidence that claimant received an injury aris
 
            ing out of and in the course of employment.  The words "out 
 
            of" refer to the cause or source of the injury.  The words 
 
            "in the course of" refer to the time and place and circum
 
            stances of the injury.  See generally, Cedar Rapids, 
 
            Community Sch.  Dist. v. Cady, 278 N.W.2d 298 (Iowa 1979); 
 
            Crowe v. DeSoto Consol. Sch. Dist., 246 Iowa 402, 68 N.W.2d 
 
            63 (1955).  An employer takes an employee subject to any 
 
            active or dormant health impairments. A work connected 
 
            injury which more than slightly aggravates the condition is 
 
            considered to be a personal injury.  Ziegler v. U.S. Gypsum, 
 
            252 Iowa 613, 620, 106 N.W.2d 591 (1961), and cases cited 
 
            therein.
 
            
 
                 In the case sub judice, the existence of a work injury 
 
            was not in serious dispute.  Claimant clearly carried her 
 
            burden of showing a work injury.
 
            
 
                 II.  Claimant must next establish by a preponderance of 
 
            the evidence the extent of weekly benefits for permanent 
 
            disability to which claimant is entitled.  As the claimant 
 
            has shown that the work injury was a cause a permanent phys
 
            ical impairment or limitation upon activity involving the 
 
            body as a whole, the degree of permanent disability must be 
 
            measured pursuant to Iowa Code section 85.34(2)(u).  
 
            However, unlike scheduled member disabilities, the degree of 
 
            disability under this provision is not measured solely by 
 
            the extent of a functional impairment or loss of use of a 
 
            body member.  A disability to the body as a whole or an 
 
            "industrial disability" is a loss of earning capacity 
 
            resulting from the work injury.  Diederich v. Tri-City 
 
            Railway Co., 219 Iowa 587, 593, 258 N.W. 899 (1935).  A 
 
            physical impairment or restriction on work activity may or 
 
            may not result in such a loss of earning capacity.  
 
            Examination of several factors determines the extent to 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            which a work injury and a resulting medical condition caused 
 
            an industrial disability.  These factors include the 
 
            employee's medical condition prior to the injury, immedi
 
            ately 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.  See Peterson v. Truck Haven Cafe, Inc., (Appeal 
 
            Decision, February 28, 1985).
 
            
 
                 In the case sub judice, it was found that claimant suf
 
            fered a 100 percent loss of her earning capacity as a result 
 
            of the work injury.  Such a finding entitles claimant to 
 
            permanent total disability benefits as a matter of law under 
 
            Iowa Code section 85.34(3) which provides for weekly bene
 
            fits indefinitely until there is a change of condition.  
 
            Absent a change of condition, these benefits last for the 
 
            duration of claimant's life.  Certainly, if claimant in this 
 
            case does secure employment after retraining, this agency is 
 
            available at a future date to review this award.
 
            
 
                 With reference to the issue of apportionment of dis
 
            ability as envisioned in Varied Enterprises, Inc. v. Sumner, 
 
            353 N.W.2d 407 (Iowa 1984), such an apportionment is not 
 
            appropriate or possible in a permanent total disability case 
 
            because the benefits are not payable for a definite time 
 
            period under Iowa Code section 85.34(2) but are paid to 
 
            claimant indefinitely during the period of her disability 
 
            under Iowa Code section 85.34(3).  The work injury in this 
 
            case was the proverbial "straw that broke the camel's back" 
 
            and permanent total disability benefits shall be awarded 
 
            accordingly.  Loftus v. Waterloo Comm. School Dist., Case 
 
            No. 777678, Arbitration Decision Filed March 27, 1989; Brown 
 
            v. Nissen Corp., Arbitration Decision Filed June 29, 1988
 
            
 
                 Furthermore, apportionment of disability between a pre
 
            existing condition and an injury is proper only in those 
 
            situations where a prior injury or illness "unrelated to 
 
            employment independently produces some ascertainable portion 
 
            of the ultimate disability.  Tussing v. George A. Hormel & 
 
            Co., 461 N.W.2d 450 (Iowa 1990); Varied Enterprises, Inc., 
 
            353 N.W.2d 407 (Iowa 1984).  Prior existing impairment Does 
 
            not equate to a finding of loss of earning capacity when 
 
            there has been no prior lost earnings or employment.  See  
 
            Bearce v. FMC Corp., 465 N.W.2d 531 (Iowa 1991)
 
            
 
                 III.  Claimant asserts lack of a 30 day termination 
 
            notice.  However, claimant's attorney of record in the pend
 
            ing contested case before this agency at the time was 
 
            Stephen Lombardi.  It would be improper for a party to send 
 
            any communication to a party directly when that party is 
 
            represented by an attorney. Therefore, notice to the attor
 
            ney was notice to the claimant.
 
            
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
                 Furthermore, defendants paid healing period benefits 
 
            and permanent partial disability payments prior to hearing 
 
            based upon the views of the licensed and board certified 
 
            physicians in this case.  Also, the contribution of the 
 
            prior injury and surgery further complicated this case.  
 
            Claimant has failed to show that defendants acted unreason
 
            ably in this matter.
 
            
 
                                      ORDER
 
            
 
                 1.  Defendants shall pay to claimant permanent total 
 
            disability benefits at a rate of one hundred thirty-six and 
 
            17/l00 dollars ($136.17) per week from June 18, 1985.
 
            
 
                 2.  Defendants shall pay accrued weekly benefits in a 
 
            lump sum and shall receive credit against this award for all 
 
            benefits previously paid.
 
            
 
                 3.  Defendants shall pay interest on weekly benefits 
 
            awarded herein that are in excess of those paid as set forth 
 
            in Iowa Code section 85.30. 
 
            
 
                 4.  Defendants shall pay the costs of this action pur
 
            suant to rule 343 IAC 4.33, including reimbursement to 
 
            claimant for any filing fee paid in this matter.
 
            
 
                 5.  Defendants shall file activity reports on the pay
 
            ment of this award as requested by this agency pursuant to 
 
            rule 343 IAC 3.1.
 
            
 
            
 
                 Signed and filed this ____ day of June, 1992.
 
            
 
            
 
            
 
            
 
            
 
                                          ______________________________
 
                                          LARRY P. WALSHIRE
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr. Stephen D. Lombardi
 
            Attorney at Law
 
            10101 University Ave
 
            STE 202
 
            Clive, Iowa  50325
 
            
 
            Mr. Walter F. Johnson
 
            Attorney at Law
 
            111 W Second Street
 
            P O Box 716
 
            Ottumwa, Iowa  52501
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                                5-1803
 
                                                Filed June 25, 1992
 
                                                LARRY P. WALSHIRE
 
            
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                      
 
            SHERRI FINDERS,     
 
                      
 
                 Claimant, 
 
                      
 
            vs.       
 
                                              File No. 797477
 
            LOUIS RICH COMPANY, 
 
                                          A R B I T R A T I O N
 
                 Employer, 
 
                                             D E C I S I O N
 
            and       
 
                      
 
            LIBERTY MUTUAL INS.,     
 
                      
 
                 Insurance Carrier,  
 
                 Defendants.    
 
            ___________________________________________________________
 
            
 
            
 
            5-1803
 
            Non-precedential, extent of disability case.
 
            
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            JUAN TRUJILLO,                :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :         File No.797520
 
            CITY OF WEBSTER CITY,         :
 
                                          :      A R B I T R A T I O N
 
                 Employer,                :
 
                                          :         D E C I S I O N
 
            and                           :
 
                                          :
 
            ALEXSIS, INC.,                :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
                              statement of the case
 
            
 
                 This is a proceeding in arbitration upon the petition 
 
            of claimant, Juan Trujillo, against his employer, City of 
 
            Webster City, and Alexsis, Inc., insurance carrier, 
 
            defendants.  The case was heard on June 29, 1989, in Fort 
 
            Dodge, Iowa at the Webster County Courthouse.  The record 
 
            consists of the testimony of claimant, the testimony of Mark 
 
            Dahms, Steve Mourlan, Dawn Trujillo, Teresa Marie 
 
            Rotschafer, and Kathryn Bennett.  Additionally, the record 
 
            consists of joint exhibits 1-10.
 
            
 
                                      issues
 
            
 
                 The sole issues to be determined are:  1)  whether 
 
            there is a causal relationship between the injury and any 
 
            permanent disability; 2) whether claimant is entitled to 
 
            temporary disability/healing period benefits or permanent 
 
            partial or total disability benefits; and, 3) whether 
 
            claimant is an odd-lot employee.
 
            
 
                                 findings of fact
 
            
 
                 Claimant is 41 years old.  He was born in Santiago, 
 
            Chile.  He has been residing in the United States since 
 
            January 8, 1977.  Claimant is married with three children.  
 
            At the time of the hearing, claimant was enrolled at Iowa 
 
            State University.  He was set to graduate during the spring 
 
            term 1990.  Claimant had been enrolled in a Spanish and an 
 
            education curriculum.  At the time of the hearing, claimant 
 
            planned to teach seventh to twelfth grade Spanish.
 
            
 
                 Claimant had been a volunteer fire fighter since 
 
            December of 1977.  In 1979, claimant was hired full time as 
 
            a city worker performing electrical work.  Six months later, 
 
            claimant transferred to the Waste Water Treatment Plant.  
 
            His job title was a grade 2 operator.
 
            
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
                 On May 27, 1985, claimant responded to a garage fire 
 
            call on lst Street in Webster City.  He stepped into a hole 
 
            and fell to the ground.  He described his right leg as 
 
            "snapping."  Claimant was treated by fellow fire fighters, 
 
            transferred to Hamilton County Hospital and later 
 
            transferred to Mary Greeley Hospital.  He had his first 
 
            surgery on May 28, l985.
 
            
 
                 Following the first surgery, claimant had two 
 
            additional surgeries.  The second surgery occurred on June 
 
            7, 1985.  It involved the insertion of a bipolar Harris 
 
            Galante porous coat hip prothesis.  The third surgery was 
 
            performed on December 29, 1987.  It involved a total hip 
 
            surgical procedure.  All three surgeries were performed by 
 
            claimant's treating orthopedic surgeon, John A. Grant, M.D.  
 
            Following each surgery, claimant engaged in physical therapy 
 
            and a recovery period.
 
            
 
                 As early as December 30, 1985, Dr. Grant expressed his 
 
            doubts whether claimant would ever be able to return to his 
 
            position at the water treatment plant.  Dr. Grant opined:
 
            
 
                 The problem I am having is that when he returns to 
 
                 work he will have to be able to do activities that 
 
                 require some lifting, walking, climbing, and 
 
                 possibly being on slippery uneven surfaces and I 
 
                 do not feel that he can do that at this point and 
 
                 I hesitate to predict when he can.  I think there 
 
                 is a distinct possibility he will not be able to 
 
                 return to his former job.  In discussing this with 
 
                 his employer, apparently therre [sic] is no form 
 
                 of light work that they can supply for him so I 
 
                 think he remains unable to resume active 
 
                 employment....
 
            
 
                 Later in April of 1986, Dr. Grant reiterated the above 
 
            viewpoint in his report of April 15, 1986.  Dr. Grant wrote 
 
            in relevant portion:
 
            
 
                 From my standpoint, I do not feel he is able to 
 
                 return to much of any type of work and I think the 
 
                 whole approach to him should be centered at some 
 
                 type of vocational rehabilitation.  I have 
 
                 suggested this to him over the past three months 
 
                 and, as near as I can determine, nothing has been 
 
                 done to encourage this approach.  There is no 
 
                 question in my mind that he will not be able to 
 
                 return to a job that requires much time on his 
 
                 feet, repeat bending, climbing or standing, and I 
 
                 do not think he can walk on slippery, uneven sur
 
                 faces, scaffolding, or ladders.  Despite these 
 
                 restrictions, I see no reason whatsoever that he 
 
                 could not be in some type of training program at 
 
                 this point in an attempt to find other suitable 
 
                 employment.
 
            
 
                 After a job analysis was prepared by Kathryn Bennett, 
 
            vocational rehabilitation specialist, Dr. Grant provided a 
 
            final opinion relative to claimant's capabilities.  In his 
 
            letter of July 18, 1986, Dr. Grant wrote:
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            
 
                 I am returning the job analysis on Juan Trujillo.  
 
                 As you can see, I did not feel that he is able to 
 
                 physically tolerate the job described.  Much of 
 
                 what he is called upon to do he could do, but he 
 
                 is not in a position to do much heavy lifting, he 
 
                 is not in a position to risk walking around on 
 
                 slippery surfaces or doing a lot of climbing.  
 
                 Also, I do not feel he is in a position to respond 
 
                 quickly to situations as he cannot rely that well 
 
                 on the involved hip.
 
            
 
                 Dr. Grant rendered a final opinion relative to a 
 
            permanent impairment rating for claimant.  As of November 5, 
 
            1988, the surgeon opined claimant had a 50 percent 
 
            impairment of the lower extremity which converted to 20 
 
            percent impairment to the body as a whole.  Dr. Grant also 
 
            determined claimant had reached maximum medical improvement 
 
            as of June 6, 1988.
 
            
 
                 Claimant, as of June 13, 1989, had still been listed as 
 
            a city employee on its roster by defendant-employer.  
 
            However, claimant was not offered a light duty position with 
 
            the city.  Nor was another position offered to him.
 
            
 
                 Claimant, on his own, enrolled in the College of 
 
            Science and Humanities at Iowa State University.  He had 
 
            been able to maintain a cumulative grade point average in 
 
            excess of 3.0 points.  As a result, claimant was able to 
 
            receive a scholarship for students over 25 years of age.
 
            
 
                 Additionally, claimant had been engaged in various 
 
            correspondence courses through Kirkwood Community College in 
 
            Cedar Rapids, Iowa.  The courses prepared claimant for an 
 
            upgrade as a water treatment worker.
 
            
 
                                conclusions of law
 
            
 
                 Claimant has the burden of proving by a preponderance 
 
            of the evidence that he received an injury on May 27, 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). 
 
            
 
                 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 claimant has the burden of proving by a 
 
            preponderance of the evidence that the injury of May 27, 
 
            1985, is causally related to the disability on which he now 
 
            bases his claim.  Bodish v. Fischer, Inc., 257 Iowa 516, 133 
 
            N.W.2d 867 (1965).  Lindahl v. L. O. Boggs, 236 Iowa 296, 18 
 
            N.W.2d 607 (1945).  A possibility is insufficient; 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). 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            
 
                 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, 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.2d 756, 760-61 (1956).  If the claimant had a 
 
            preexisting condition or disability that is aggravated, 
 
            accelerated, worsened or lighted up so that it results in 
 
            disability, claimant is entitled to recover.  Nicks v. 
 
            Davenport Produce Co., 254 Iowa 130, 115 N.W.2d 812, 815 
 
            (1962).
 
            
 
                 When an aggravation occurs in the performance of an 
 
            employer's work and a causal connection is established, 
 
            claimant may recover to the extent of the impairment.  
 
            Ziegler v. United States Gypsum Co., 252 Iowa 613, 620, 106 
 
            N.W.2d 591, 595 (1960).
 
            
 
                 The Iowa Supreme Court cites, apparently with approval, 
 
            the C.J.S. statement that the aggravation should be material 
 
            if it is to be compensable.  Yeager v. Firestone Tire & 
 
            Rubber Co., 253 Iowa 369, 112 N.W.2d 299 (1961); 100 C.J.S. 
 
            Workmen's Compensation sec. 555(17)a.
 
            
 
                 Our supreme court has stated many times that a claimant 
 
            may recover for a work connected aggravation of a 
 
            preexisting condition.  Almquist v. Shenandoah Nurseries, 
 
            218 Iowa 724, 254 N.W. 35 (1934).  See also Auxier v. 
 
            Woodward State Hosp. Sch., 266 N.W.2d 139 (Iowa 1978); Gosek 
 
            v. Garmer and Stiles Co., 158 N.W.2d 731 (Iowa 1968); Barz 
 
            v. Oler, 257 Iowa 508, 133 N.W.2d 704 (1965); Olson v. 
 
            Goodyear Service Stores, 255 Iowa 1112, 125 N.W.2d 251 
 
            (1963); Yeager, 253 Iowa 369, 112 N.W.2d 299 (1961); 
 
            Ziegler, 252 Iowa 613, 106 N.W.2d 591 (1960).
 
            
 
                 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 (1960), and cases cited.
 
            
 
                 Claimant has established the requisite causal 
 
            connection between claimant's injury of May 27, 1985, and 
 
            his claimed condition.  Dr. Grant has provided an expert 
 
            medical opinion which supports causality.  In his letter of 
 
            February 19, 1987, Dr. Grant writes:
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            
 
                 I have reviewed the documentation on Juan Trujillo 
 
                 following our telephone conversation.  In summary, 
 
                 I saw this man for the first time on 5/23/85 with 
 
                 what I felt represented tendinitis and/or myositis 
 
                 of the psoas and sartorius muscles of the right 
 
                 thigh.  He had some decrease in internal rotation 
 
                 of the right hip at that time and he was not using 
 
                 the quadriceps well on the right side because of 
 
                 discomfort.  As you know from my next 
 
                 communications, he was seen with a fracture of the 
 
                 right hip that had occurred while being active as 
 
                 a volunteer fireman.  Reportedly, he was running 
 
                 when he felt sharp pain and the hip gave way.  As 
 
                 you know, x-rays and surgical findings confirmed 
 
                 the presence of a giant cell tumor present in the 
 
                 neck of the femur.  I reviewed the outside films 
 
                 from Webster City and there appeared to be some 
 
                 possible radiolucency in the neck of the femur on 
 
                 the right that would certainly represent the giant 
 
                 cell tumor prior to trauma.  There is no question 
 
                 that the trauma of running created the fracture 
 
                 through the weakened area of the neck of the 
 
                 femur.  This weakness is because of the presence 
 
                 of the giant cell tumor.  Whether or not he would 
 
                 have expected to sustain a fracture through the 
 
                 neck of the femur spontaneously with no history of 
 
                 injury is very difficult to answer.  I would 
 
                 suspect that with time the giant cell tumor would 
 
                 have gotten so extensive and weakened the neck of 
 
                 the femur to such a degree that he might have had 
 
                 a spontaneous fracture with weight bearing but how 
 
                 long this might have taken would be strictly 
 
                 conjecture.  From my standpoint, I think the 
 
                 approximate cause of his fractured femur was the 
 
                 stress of running applied to a bone weakened by 
 
                 the presence of a giant cell tumor.  I realize 
 
                 this is probably an indirect answer to your 
 
                 inquiry but to the best of my knowledge this is 
 
                 the way I would interpret the events surrounding 
 
                 the fracture of the right femoral neck.  I think 
 
                 the impairment rating reported on 11/17/86 is 
 
                 permanent.  Hopefully this is the information you 
 
                 seek.
 
            
 
                 As a result of Dr. Grant's opinion, claimant has met 
 
            his burden of proof.
 
            
 
                 The next issue to address is whether claimant has 
 
            incurred any permanent disability.  The determination of 
 
            this deputy is in the affirmative.
 
            
 
                 The right of a worker to receive compensation for 
 
            injuries sustained which arose out of and in the course of 
 
            employment is statutory. The statute conferring this right 
 
            can also fix the amount of compensation to be paid for 
 
            different specific injuries, and the employee is not 
 
            entitled to compensation except as provided by the statute.  
 
            Soukup v. Shores Co., 222 Iowa 272, 268 N.W. 598 (1936).
 
            
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
                 An injury to a scheduled member may, because of after 
 
            effects (or compensatory change), result in permanent 
 
            impairment of the body as a whole.  Such impairment may in 
 
            turn form the basis for a rating of industrial disability.  
 
            Dailey v. Pooley Lumber Co., 233 Iowa 758, 10 N.W.2d 569 
 
            (1943).  Soukup, 222 Iowa 272, 268 N.W. 598 (1936).
 
            
 
                 An injury to a scheduled member which, because of 
 
            after-effects (or compensatory change), creates impairment 
 
            to the body as a whole entitles claimant to industrial 
 
            disability.  Barton v. Nevada Poultry Co., 253 Iowa 285, 110 
 
            N.W.2d 660 (1961).  Daily, 233 Iowa 758, 10 N.W.2d 569 
 
            (1943).
 
            
 
                 Claimant's injury is to the body as a whole rather than 
 
            to just the right lower extremity.  Claimant has had a 
 
            complete hip replacement.  The surgery did touch upon his 
 
            body cavity.  Claimant has had problems bending, stooping 
 
            and lifting.  His problems have extended beyond mere walking 
 
            and running difficulties.  He has limited range of motion of 
 
            the hip.  Claimant has a permanent partial disability to the 
 
            body as a whole.  See Lauhoff Grain v. McIntosh, 395 N.W.2d 
 
            834 (Iowa 1986).
 
            
 
                 Claimant argues he is industrially disabled.  Moreover, 
 
            claimant alleges he is an odd-lot employee under Guyton v. 
 
            Irving Jensen Co., 373 N.W.2d 101 (Iowa 1985).
 
            
 
                 A finding of impairment to the body as a whole found by 
 
            a medical evaluator does not equate to industrial disabil
 
            ity.  This is so as impairment and disability are not syn
 
            onymous.  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 dis
 
            ability 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 
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
            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 dis
 
            ability.  See Peterson v. Truck Haven Cafe, Inc., (Appeal 
 
            Decision, February 28, 1985);  Christensen v. Hagen, Inc., 
 
            (Appeal Decision, March 26, l985).
 
            
 
                 Claimant has established he is industrially disabled.  
 
            He has a loss of earning capacity.  Claimant is permanently 
 
            restricted from standing for long periods of time, from 
 
            lifting heavy objects or from repeated bending.  Claimant's 
 
            physician has refused to release claimant to his former 
 
            position as a water treatment operator II.  
 
            Defendant-employer has done nothing to put claimant back to 
 
            work.  No light duty has ever been offered to claimant by 
 
            the city.  Nor has the city officially terminated claimant.
 
            
 
                 Claimant, on the other hand, is to be commended for his 
 
            efforts in not only taking correspondence courses in the 
 
            area of water treatment, but also in returning to college.  
 
            Claimant, at the time of the hearing, was a full time 
 
            student.  He had earned a scholarship.  He had approximately 
 
            one year of college remaining.  Claimant had had no job 
 
            prospects at hearing time.  He was unemployed.  It is 
 
            anticipated by the rehabilitation counselor that claimant 
 
            will have to leave his geographical location if he hopes to 
 
            find a teaching position in the future.  Claimant is highly 
 
            motivated.
 
            
 
                 Defendants maintain claimant is not industrially 
 
            disabled because he is studying to become a Spanish teacher.  
 
            However, at the time of the hearing, there were no job 
 
            prospects or job offers.  Any arguments about claimant's 
 
            future employment as a teacher are speculative.
 
            
 
                 Claimant is not an odd-lot employee under Guyton.  
 
            Claimant is capable of gainful employment.  He has applied 
 
            for positions as an insurance adjuster, a fire inspector and 
 
            a salesperson in the area of safety equipment.  Claimant 
 
            believes he is capable of handling these positions.  There 
 
            has been no evidence presented which indicates claimant has 
 
            been refused employment because of his physical condition.  
 
            There are jobs in the competitive labor market available to 
 
            claimant.
 
            
 
                 After reviewing the testimony, after observing claimant 
 
            and after reviewing the opinions of experts, it is the 
 
            determination of the undersigned that claimant has a 
 
            permanent partial disability in the amount of 35 percent.
 
            
 
                 The next issue to address is the issue of healing 
 
            period benefits.  Section 85.34(1) governs the payment of 
 
            healing period benefits.  The section provides:
 
            
 

 
            
 
            Page   8
 
            
 
            
 
            
 
            
 
                 If an employee has suffered a personal injury 
 
                 causing permanent partial disability for which 
 
                 compensation is payable as provided in subsection 
 
                 2 of this section, the employer shall pay to the 
 
                 employee compensation for a healing period, as 
 
                 provided in section 85.37, beginning on the date 
 
                 of injury, and until the employee has returned to 
 
                 work or it is medically indicated that significant 
 
                 improvement from the injury is not anticipated or 
 
                 until the employee is medically capable of 
 
                 returning to employment substantially similar to 
 
                 the employment in which the employee was engaged 
 
                 at the time of injury, whichever occurs first.
 
            
 
                 In the case at hand, claimant was in the healing period 
 
            from May 27, 1985, the date of the work injury, until June 
 
            6, 1988.  Dr. Grant determined that as of June 6, 1988, 
 
            claimant had reached maximum medical improvement following 
 
            the third surgery.  Prior to June 6, 1988, claimant had had 
 
            three surgeries on his right hip.  The first two surgeries 
 
            were not totally successful.  Claimant participated in 
 
            physical therapy programs after each one.  Still claimant 
 
            did not improve greatly.  It was only after the third 
 
            surgery that claimant did improve.  Therefore, it is the 
 
            determination of this deputy that claimant was in the 
 
            healing period from May 27, 1985 to June 6, 1988.  The 
 
            healing period involves 158.143 weeks of benefits at the 
 
            stipulated rate of $404.86. per week.
 
            
 
                                      order
 
            
 
                 THEREFORE, IT IS ORDERED:
 
            
 
                 Defendants are to pay permanent partial disability 
 
            benefits for one hundred fifty-five (155) weeks at the 
 
            stipulated rate of four hundred four and 86/l00 dollars 
 
            ($404.86) per week commencing from June 7, 1988.
 
            
 
                 Defendants are to also pay healing period benefits from 
 
            May 27, 1985 to June 6, 1988, a period of one hundred 
 
            fifty-eight point one-four-three (158.143) weeks, at the 
 
            stipulated rate of four hundred four and 86/l00 dollars 
 
            ($404.86) per week.
 
            
 
                 Interest shall be paid according to section 85.30.
 
            
 
                 Defendants shall receive credit for all benefits 
 
            previously paid.
 
            
 
                 Costs of the action shall be assessed to defendants 
 
            pursuant to Division of Industrial Services Rule 343-4.33.
 
            
 
                 Defendants shall file a claim activity report as 
 
            requested by this division pursuant to Division of 
 
            Industrial Services Rule 343-3.1.
 
            
 
            
 
            
 
                 Signed and filed this ____ day of August, 1990.
 
            
 

 
            
 
            Page   9
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
                                          ______________________________               
 
            MICHELLE A. McGOVERN
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 

 
            
 
            Page  10
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
            Copies To:
 
            
 
            Mr. Tito Trevino
 
            Attorney at Law
 
            503 Snell Bldg
 
            P O Box 1680
 
            Fort Dodge  IA  50501
 
            
 
            Mr. Paul C. Thune
 
            Attorney at Law
 
            218 6th Ave  STE 300
 
            P O Box 9130
 
            Des Moines  IA  50306
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                               1803; 1803.1
 
                                               Filed August 23, 1990
 
                                               MICHELLE A. McGOVERN
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            JUAN TRUJILLO,                :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :         File No.797520
 
            CITY OF WEBSTER CITY,         :
 
                                          :      A R B I T R A T I O N
 
                 Employer,                :
 
                                          :         D E C I S I O N
 
            and                           :
 
                                          :
 
            ALEXSIS, INC.,                :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
            
 
            1803.1
 
            Claimant was a water treatment worker.  He sustained an 
 
            injury to his hip.  It was determined claimant sustained an 
 
            injury to his body as a whole.
 
            
 
            1803
 
            Claimant sustained a permanent partial disability of 35%.  
 
            He was unable to return to his former position.  Defendant- 
 
            employer refused to offer claimant another position at the 
 
            time of the hearing.  Claimant had returned to college where 
 
            he was set to begin his final year in Spanish and education.  
 
            At that time claimant was unemployed with no job prospects.
 
            
 
 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
                     before the iowa industrial commissioner
 
         ____________________________________________________________
 
                                       :
 
         JUAN TRUJILLO,                :
 
                                       :
 
              Claimant,                :
 
                                       :
 
         vs.                           :
 
                                       :         File No. 797520
 
         CITY OF WEBSTER CITY,         :
 
                                       :             N U N C
 
              Employer,                :
 
                                       :              P R O
 
         and                           :
 
                                       :             T U N C
 
         ALEXSIS, INC.,                :
 
                                       :            O R D E R
 
              Insurance Carrier,       :
 
              Defendants.              :
 
         ___________________________________________________________
 
         
 
         There was an error in calculating the number of weeks.  The 
 
         proper number of weeks is 175 for permanent partial disability 
 
         benefits.
 
         All other portions of the decision and order remain the same.
 
         
 
         
 
         
 
              Signed and filed this ____ day of August, 1990.
 
         
 
         
 
         
 
         
 
         
 
                                       ______________________________               
 
         MICHELLE A. McGOVERN
 
                                       DEPUTY INDUSTRIAL COMMISSIONER
 
         
 
         Copies To:
 
         
 
         Mr. Tito Trevino
 
         Attorney at Law
 
         503 Snell Bldg
 
         P O Box 1680
 
         Fort Dodge  IA  50501
 
         
 
         Mr. Paul C. Thune
 
         Attorney at Law
 
         218 6th Ave  STE 300
 
         P O Box 9130
 
         Des Moines  IA  50306
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                      BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         ROBYN HUGHES, Surviving
 
         Spouse of BRYAN RICHARD
 
         HUGHES,
 
         
 
              Claimant,
 
         
 
         VS.
 
                                                         File No. 797627
 
         HOUSE OF MUFFLERS,
 
                                                            0 R D E R
 
              Employer,
 
         
 
         and
 
         
 
         EMPLOYERS MUTUAL INS., CO.,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         
 
            Now on this 16th day of June, 1987 the undersigned finds that 
 
         the following order should be entered.
 
         
 
              That Steven E. Ort will be taking a position with Employers 
 
         Mutual Insurance Companies.  Deputy Ort presided over the hearing 
 
         in this case.
 
         
 
              That jurisdiction for purposes of preparing and filing a 
 
         proposed agency decision in the above captioned case is hereby 
 
         transferred to Deputy Industrial Commissioner Larry P. Walshire.
 
         
 
         
 
              Signed and filed this 16th day of June, 1987.
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
                                          DAVID E. LINQUIST
 
                                          ACTING INDUSTRIAL COMMISSIONER
 
         
 
         Copies To:
 
         
 
         Mr. Mark J. Eveloff
 
         Attorney at Law
 
         221 South Main
 
         Council Bluffs, Iowa 51501
 
         
 
         HUGHES V. HOUSE OF MUFFLERS
 
         Page 2
 
                                                
 
                                                         
 
         
 
         
 
         
 
         Mr. Sheldon M. Gallner
 
         Attorney at Law
 
         P.O. Box 1588
 
         Council Bluffs, Iowa 51502
 
         
 
         Mr. Gregory G. Barntsen
 
         Attorney at Law
 
         P.O. Box 249
 
         Council Bluffs, Iowa 51502
 
 
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                          
 
            5-1106,5-1108.50,5-1401,5-1402.20
 
                                          5-1402.30,5-1402.40,1803
 
                                          Filed July 26, 1990
 
                                          Walter R. McManus, Jr.t
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            TERRY L. WEYANT,              :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :        File No. 797650
 
            STEEL WAREHOUSING, INC.,      :
 
                                          :     A R B I T R A T I O N
 
                 Employer,                :
 
                                          :        D E C I S I O N
 
            and                           :
 
                                          :
 
            EMPLOYERS MUTUAL COMPANIES,   :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
            5-1106, 5-1108.50, 51401, 5-1402.20, 5-1402.30, 5-1402.40
 
            Claimant sustained a low back injury which arose out of and 
 
            in the course of employment while lifting an acrtylene tank 
 
            over a 4 foot railing which caused permanent impairment and 
 
            disability to his low back.
 
            1803
 
            Impairment ratings were zero percent, five percent and five 
 
            percent.  Claimant had not seriously sought full time work 
 
            because he and his wife decided he should be a househusband.  
 
            No surgery performed or recommended.  Claimant was 
 
            foreclosed from prior employment.  Claimant awarded 20 
 
            percent industrial disability.
 
            
 
 
        
 
 
 
 
 
                       BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
        
 
        
 
        FRANK FUCHES,
 
        
 
            Claimant,
 
        
 
        vs.                              File Nos. 797701/834046
 
        
 
        KOHLES & BACH, INC.,               A P P E A L
 
            Employer,
 
                                         D E C I S I O N
 
        
 
        and
 
        
 
        ROYAL INDEMNITY COMPANY,
 
        
 
            Insurance Carrier,
 
            Defendants.
 
        
 
                                 STATEMENT OF THE CASE
 
        
 
        Defendants appeal from an arbitration decision awarding future 
 
        reasonable and necessary medical expenses as well as temporary 
 
        total benefits and any permanent partial disability benefits. It 
 
        should be noted that file no. 824085, in which the insurance 
 
        carrier is not a defendant, involved an alleged injury of May 7, 
 
        1986 and was part of the arbitration decision. An apparent 
 
        attempted appeal of the referenced file numbers by defendant 
 
        employer was later withdrawn. File no. 824085 which alleged an 
 
        injury of May 7, 1986 has not been appealed. Those portions of 
 
        the arbitration decision relating only to file no. 824085 are now 
 
        final and will not be part of the determinations in this appeal 
 
        decision.
 
        
 
        The record on appeal consists of the transcript of the 
 
        arbitration hearing and joint exhibits 1(1-9) and 2. Both the 
 
        attorney for the claimant and attorney for the employer and 
 
        insurer filed briefs on appeal.
 
        
 
                                      ISSUE
 
        
 
        The issue on appeal is whether there is a causal connection 
 
        between the alleged work injury of June 22, 1985, and claimant's 
 
        claimed disability.
 
        
 
                                 REVIEW OF THE EVIDENCE
 
        
 
        The arbitration decision adequately and accurately reflects the 
 
        pertinent evidence and it will not be totally reiterated herein.
 
        
 
        FUCHES V. KOHLES & BACH, INC.
 
        Page 2
 
        
 
        
 
                                 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. In January 1981 claimant sustained an injury to his right 
 
        shoulder while participating in a "Tough Man Contest."
 
        
 
        2. Claimant reinjured his shoulder in November 1981 when he 
 
        slipped on ice at his home.
 
        
 
        3. Neither of the injuries in 1981 were work related.
 
        
 
        4. Claimant began work for defendant employer in June 1983 and 
 
        finally terminated this employment in July 1986.
 
        
 
        5. There is no evidence that claimant missed work because of his 
 
        right shoulder condition from June 1983 until June 22, 1985.
 
        
 
        6. On June 22, 1985, claimant injured his right shoulder when he 
 
        fell when scaffolding collapsed while he was working for 
 
        defendant employer.
 
        
 
        7. On November 12, 1985, claimant injured his right shoulder when 
 
        he slipped on an icy bumper of a pick-up truck while unloading 
 
        inventory for defendant employer.
 
        
 
        8. Claimant missed four or five days of work after the injury on 
 
        June 22, 1985 and was released to return to work on June 28, 
 
        1985.
 
        
 
        9. Claimant was treated by Robert Breedlove, M.D., for right 
 
        shoulder instability.
 
        
 
        10. The work injury of June 22, 1985, was the cause of claimant's 
 
        present problem of global instability and recurrent dislocations.
 
        
 
        11. The work injury of June 22, 1985, was the cause of a 
 
        permanent impairment of claimant's right shoulder.
 
        
 
        12. As a result of the June 22, 1985 injury, claimant is entitled 
 
        to the reimbursement of reasonable medical expenses which he has 
 
        incurred.
 
        
 
        FUCHES V. KOHLES & BACH, INC.
 
        Page 3
 
        
 
        
 
        13. Claimant has incurred the following expenses which
 
        are reasonable and necessary:
 
        
 
        Dr. Robert Breedlove, M.D.      $ 60.00
 
        Mayo Clinic                      113.00
 
            Total                      $173.00
 
        
 
        14. As a result of the June 22, 1985 injury, claimant may incur 
 
        further medical expenses, including surgery on his shoulder.
 
        
 
        15. The greater weight of the evidence shows that claimant has 
 
        not reached maximum recovery and that as a result of the June 22, 
 
        1985 accident, any permanent partial disability cannot be 
 
        established at this time.
 
        
 
                                 CONCLUSIONS OF LAW
 
        
 
        Claimant has proved a causal connection between a work injury on 
 
        June 22, 1985, and a disability at the time of the hearing.
 

 
        
 
 
 
 
 
        
 
        Claimant has proved he is entitled to reimbursement for medical 
 
        expenses and that he is entitled to reasonable and necessary 
 
        future medical expenses, including the costs of surgery, as a 
 
        result of the work injury on June 22, 1985.
 
        
 
        WHEREFORE, the decision of the deputy is affirmed and modified.
 
        
 
                                      ORDER
 
        
 
        THEREFORE, it is ordered:
 
        
 
        That defendant, Royal Indemnity Company, reimburse claimant the 
 
        amount of one hundred seventy-three and 00/100 dollars ($173.00) 
 
        for medical expenses.
 
        
 
        That defendant, Royal Indemnity Company, pay future reasonable 
 
        and necessary medical expenses related to the claimant's right 
 
        shoulder including, but not limited to, the costs of surgery.
 
        
 
        That defendant, Royal Indemnity Company, pay appropriate healing 
 
        period and disability benefits which may later be shown to be 
 
        causally connected to the June 22, 1985 injury.
 
        
 
        That defendants pay the costs of this proceeding including the 
 
        costs of transcription of the arbitration hearing.
 
        
 
        That defendants file claim activity reports pursuant to Division 
 
        of Industrial Services Rule 343-3.1(2).
 
        
 
        FUCHES V. KOHLES & BACH, INC. Page 4
 
        
 
        
 
        
 
        
 
        
 
        Signed and filed this 28th day of April, 1989.
 
        
 
        
 
        
 
        
 
        
 
                                           DAVID E LINQUIST
 
                                        INDUSTRIAL COMMISSIONER
 
        
 
        
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                   BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         FRANK FUCHES,
 
         
 
              Claimant,
 
         
 
         vs.
 
                                            File Nos. 797701/834046
 
         KOHLES & BACH, INC.,
 
                                                  A P P E A L
 
              Employer,
 
                                                D E C I S I 0 N
 
         and
 
                                                     F I L E D
 
         ROYAL INDEMNITY COMPANY,
 
                                                    APR 28 1989
 
              Insurance Carrier,
 
              Defendants.                 IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         
 
                                 STATEMENT OF THE CASE
 
         
 
              Defendants appeal from an arbitration decision awarding future 
 
         reasonable and necessary medical expenses as well as temporary total 
 
         benefits and any permanent partial disability benefits.  It should be 
 
         noted that file no. 824085, in which the insurance carrier is not a 
 
         defendant, involved an alleged injury of May 7, 1986 and was part of 
 
         the arbitration decision.  An apparent attempted appeal of the 
 
         referenced file numbers by defendant employer was later withdrawn.  
 
         File no. 824085 which alleged an injury of May 7, 1986 has not been 
 
         appealed.  Those portions of the arbitration decision relating only to 
 
         file no. 824085 are now final and will not be part of the 
 
         determinations in this appeal decision.
 
         
 
              The record on appeal consists of the transcript of the 
 
         arbitration hearing and joint exhibits 1(1-9) and 2.  Both the 
 
         attorney for the claimant and attorney for the employer and insurer 
 
         filed briefs on appeal.
 
         
 
                                    ISSUE
 
         
 
              The issue on appeal is whether there is a causal connection 
 
         between the alleged work injury of June 22, 1985, and claimant's 
 
         claimed disability.
 
         
 
                             REVIEW OF THE EVIDENCE
 
         
 
              The arbitration decision adequately and accurately reflects the 
 
         pertinent evidence and it will not be totally 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.  In January 1981 claimant sustained an injury to his right 
 
         shoulder while participating in a "Tough Man Contest."
 
         
 
              2.  Claimant reinjured his shoulder in November 1981 when he 
 
         slipped on ice at his home.
 
         
 
              3.  Neither of the injuries in 1981 were work related.
 
         
 
              4.  Claimant began work for defendant employer in June 1983 and 
 
         finally terminated this employment in July 1986.
 
         
 
              5.  There is no evidence that claimant missed work because of his 
 
         right shoulder condition from June 1983 until June 22, 1985.
 
         
 
              6.  On June 22, 1985, claimant injured his right shoulder when he 
 
         fell when scaffolding collapsed while he was working for defendant 
 
         employer.
 
         
 
              7.  On November 12, 1985, claimant injured his right shoulder 
 
         when he slipped on an icy bumper of a pick-up truck while unloading 
 
         inventory for defendant employer.
 
         
 
              8.  Claimant missed four or five days of work after the injury on 
 
         June 22, 1985 and was released to return to work on June 28, 1985.
 
         
 
              9.  Claimant was treated by Robert Breedlove, M.D., for right 
 
         shoulder instability.
 
         
 
              10.  The work injury of June 22, 1985, was the cause of 
 
         claimant's present problem of global instability and recurrent 
 
         dislocations.
 
         
 
              11.  The work injury of June 22, 1985, was the cause of a 
 
         permanent impairment of claimant's right shoulder.
 
         
 
              12.  As a result of the June 22, 1985 injury, claimant is 
 
         entitled to the reimbursement of reasonable medical expenses which he 
 
         has incurred.
 
         
 
              13.  Claimant has incurred the following expenses which are 
 
         reasonable and necessary:
 
         
 
              Dr. Robert Breedlove, M.D.   $ 60.00
 
              Mayo Clinic                   113.00
 
                       Total               $173.00
 
         
 
                                                   
 
                                                            
 
              14.  As a result of the June 22, 1985 injury, claimant may incur 
 
         further medical expenses, including surgery on his shoulder.
 
         
 
              15.  The greater weight of the evidence shows that claimant has 
 
         not reached maximum recovery and that as a result of the June 22, 1985 
 
         accident, any permanent partial disability cannot be established at 
 
         this time.
 
         
 
                            CONCLUSIONS OF LAW
 
         
 
              Claimant has proved a causal connection between a work injury on 
 
         June 22, 1985, and a disability at the time of the hearing.
 
         
 
              Claimant has proved he is entitled to reimbursement for medical 
 
         expenses and that he is entitled to reasonable and necessary future 
 
         medical expenses, including the costs of surgery, as a result of the 
 
         work injury on June 22, 1985.
 
         
 
              WHEREFORE, the decision of the deputy is affirmed and modified.
 
         
 
                                   ORDER
 
         
 
              THEREFORE, it is ordered:
 
         
 
              That defendant, Royal Indemnity Company, reimburse claimant the 
 
         amount of one hundred seventy-three and 00/100 dollars ($173.00) for 
 
         medical expenses.
 
         
 
              That defendant, Royal Indemnity Company, pay future reasonable 
 
         and necessary medical expenses related to the claimant's right 
 
         shoulder including, but not limited to, the costs of surgery.
 
         
 
              That defendant, Royal Indemnity Company, pay appropriate healing 
 
         period and disability benefits which may later be shown to be causally 
 
         connected to the June 22, 1985 injury.
 
         
 
              That defendants pay the costs of this proceeding including the 
 
         costs of transcription of the arbitration hearing.
 
         
 
              That defendants file claim activity reports pursuant to Division 
 
         of Industrial Services Rule 343-3.1(2).
 
         
 
              Signed and filed this 28th day of April, 1989.
 
                                   
 
         
 
         
 
                                                    DAVID E. LINQUIST
 
                                                 INDUSTRIAL COMMISSIONER
 
         
 
         Copies To:
 
         
 
         Mr. David D. Drake
 
         Mr. Tom L. Drew
 
                                                   
 
                                                            
 
         Attorneys at Law
 
         West Towers Office Complex
 
         1200 35th St., Suite 500
 
         West Des Moines, Iowa  50265
 
         
 
         Ms.  Dorothy L. Kelley
 
         Attorney at Law
 
         500 Liberty Bldg.
 
         Des Moines, Iowa  50309
 
         
 
         Ms. Rebecca C. Reznicek
 
         Mr. Timothy R. Williams
 
         Mr. James S. Blackburn
 
         Attorneys at Law
 
         400 Homestead Bldg.
 
         303 Locust St.
 
         Des Moines, Iowa  50309
 
         
 
         
 
         
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
                                                   
 
 
         
 
 
 
 
 
 
 
 
 
 
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         FRANK FUCHES,
 
         
 
              Claimant,
 
         
 
         vs.
 
                                            File Nos. 797701/834046
 
         KOHLES & BACH, INC.,
 
                                                  A P P E A L
 
              Employer,
 
                                                D E C I S I 0 N
 
         and
 
                                                     F I L E D
 
         ROYAL INDEMNITY COMPANY,
 
                                                    APR 28 1989
 
              Insurance Carrier,
 
              Defendants.                 IOWA INDUSTRIAL COMMISSIONER
 
                                                      
 
         
 
         
 
                              STATEMENT OF THE CASE
 
         
 
              Defendants appeal from an arbitration decision awarding 
 
         future reasonable and necessary medical expenses as well as 
 
         temporary total benefits and any permanent partial disability 
 
         benefits.  It should be noted that file no. 824085, in which the 
 
         insurance carrier is not a defendant, involved an alleged injury 
 
         of May 7, 1986 and was part of the arbitration decision.  An 
 
         apparent attempted appeal of the referenced file numbers by 
 
         defendant employer was later withdrawn.  File no. 824085 which 
 
         alleged an injury of May 7, 1986 has not been appealed.  Those 
 
         portions of the arbitration decision relating only to file no. 
 
         824085 are now final and will not be part of the determinations 
 
         in this appeal decision.
 
         
 
              The record on appeal consists of the transcript of the 
 
         arbitration hearing and joint exhibits 1(1-9) and 2.  Both the 
 
         attorney for the claimant and attorney for the employer and 
 
         insurer filed briefs on appeal.
 
         
 
                                      ISSUE
 
         
 
              The issue on appeal is whether there is a causal connection 
 
         between the alleged work injury of June 22, 1985, and claimant's 
 
         claimed disability.
 
         
 
                              REVIEW OF THE EVIDENCE
 
         
 
              The arbitration decision adequately and accurately reflects 
 
         the pertinent evidence and it will not be totally 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.  In January 1981 claimant sustained an injury to his 
 
         right shoulder while participating in a "Tough Man Contest."
 
         
 
              2.  Claimant reinjured his shoulder in November 1981 when he 
 
         slipped on ice at his home.
 
         
 
              3.  Neither of the injuries in 1981 were work related.
 
              
 
              4.  Claimant began work for defendant employer in June 1983 
 
         and finally terminated this employment in July 1986.
 
         
 
              5.  There is no evidence that claimant missed work because 
 
         of his right shoulder condition from June 1983 until June 22, 
 
         1985.
 
         
 
              6.  On June 22, 1985, claimant injured his right shoulder 
 
         when he fell when scaffolding collapsed while he was working for 
 
         defendant employer.
 
         
 
              7.  On November 12, 1985, claimant injured his right 
 
         shoulder when he slipped on an icy bumper of a pick-up truck 
 
         while unloading inventory for defendant employer.
 
         
 
              8.  Claimant missed four or five days of work after the 
 
         injury on June 22, 1985 and was released to return to work on 
 
         June 28, 1985.
 
         
 
              9.  Claimant was treated by Robert Breedlove, M.D., for 
 
         right shoulder instability.
 
         
 
              10.  The work injury of June 22, 1985, was the cause of 
 
         claimant's present problem of global instability and recurrent 
 
         dislocations.
 
         
 
              11.  The work injury of June 22, 1985, was the cause of a 
 
         permanent impairment of claimant's right shoulder.
 
         
 
              12.  As a result of the June 22, 1985 injury, claimant is 
 
         entitled to the reimbursement of reasonable medical expenses 
 
         which he has incurred.
 
         
 
              13.  Claimant has incurred the following expenses which are 
 
         reasonable and necessary:
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
              Dr. Robert Breedlove, M.D.  $ 60.00
 
              Mayo Clinic                  113.00
 
                       Total              $173.00
 
         
 
              14.  As a result of the June 22, 1985 injury, claimant may 
 
         incur further medical expenses, including surgery on his 
 
         shoulder.
 
         
 
              15.  The greater weight of the evidence shows that claimant 
 
         has not reached maximum recovery and that as a result of the June 
 
         22, 1985 accident, any permanent partial disability cannot be 
 
         established at this time.
 
         
 
                                CONCLUSIONS OF LAW
 
         
 
              Claimant has proved a causal connection between a work 
 
         injury on June 22, 1985, and a disability at the time of the 
 
         hearing.
 
         
 
              Claimant has proved he is entitled to reimbursement for 
 
         medical expenses and that he is entitled to reasonable and 
 
         necessary future medical expenses, including the costs of 
 
         surgery, as a result of the work injury on June 22, 1985.
 
         
 
              WHEREFORE, the decision of the deputy is affirmed and 
 
         modified.
 
         
 
                                      ORDER
 
         
 
              THEREFORE, it is ordered:
 
         
 
              That defendant, Royal Indemnity Company, reimburse claimant 
 
         the amount of one hundred seventy-three and 00/100 dollars 
 
         ($173.00) for medical expenses.
 
         
 
              That defendant, Royal Indemnity Company, pay future 
 
         reasonable and necessary medical expenses related to the 
 
         claimant's right shoulder including, but not limited to, the 
 
         costs of surgery.
 
         
 
              That defendant, Royal Indemnity Company, pay appropriate 
 
         healing period and disability benefits which may later be shown 
 
         to be causally connected to the June 22, 1985 injury.
 
         
 
              That defendants pay the costs of this proceeding including 
 
         the costs of transcription of the arbitration hearing.
 
         
 
              That defendants file claim activity reports pursuant to 
 
         Division of Industrial Services Rule 343-3.1(2).
 
         
 
              Signed and filed this 28th day of April, 1989.
 
         
 
         
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
                                                    DAVID E. LINQUIST
 
                                                 INDUSTRIAL COMMISSIONER
 
         
 
         Copies To:
 
         
 
         Mr. David D. Drake
 
         Mr. Tom L. Drew
 
         Attorneys at Law
 
         West Towers Office Complex
 
         1200 35th St., Suite 500
 
         West Des Moines, Iowa  50265
 
         
 
         Ms.  Dorothy L. Kelley
 
         Attorney at Law
 
         500 Liberty Bldg.
 
         Des Moines, Iowa  50309
 
         
 
         Ms. Rebecca C. Reznicek
 
         Mr. Timothy R. Williams
 
         Mr. James S. Blackburn
 
         Attorneys at Law
 
         400 Homestead Bldg.
 
         303 Locust St.
 
         Des Moines, Iowa  50309
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
 
            
 
 
 
 
 
            
 
 
 
                                            1402.40 - 1402.60
 
                                            Filed April 28, 1989
 
                                            DAVID E. LINQUIST
 
         
 
               BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         FRANK FUCHES,
 
         
 
              Claimant,
 
         
 
         vs.
 
                                               File Nos. 797701/834046 
 
         KOHLES & BACH, INC.,
 
                                                     A P P E A L
 
              Employer,
 
                                                    D E C I S I 0 N
 
         and
 
         
 
         ROYAL INDEMNITY COMPANY,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         
 
         1402.40
 
         
 
              Claimant injured his right shoulder on two occasions in 
 
         non-work related incidents in 1981.  Claimant began work for 
 
         defendant employer in 1983 and did not miss any work until after 
 
         a June 22, 1985, work injury.  Treating physician opined that 
 
         claimant's work injury was the most significant in terms of 
 
         causing claimant's problems of global instability and recurrent 
 
         dislocations. Deputy's finding that claimant had proved a causal 
 
         connection between the work injury and the claimed disability was 
 
         affirmed on appeal.
 
         
 
         1402.60
 
         
 
              Claimant was entitled to reimbursement for reasonable 
 
         medical expenses which he had incurred and to payment of 
 
         reasonable and necessary further medical expenses.
 
         
 
         
 
         
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
                                                
 
 
                                            
 
 
 
 
 
 
 
 
 
 
 
                                            1402.40 - 1402.60
 
                                            Filed April 28, 1989
 
                                            DAVID E. LINQUIST
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         FRANK FUCHES,
 
         
 
              Claimant,
 
         
 
         vs.
 
                                               File Nos. 797701/834046 
 
         KOHLES & BACH, INC.,
 
                                                     A P P E A L
 
              Employer,
 
                                                    D E C I S I 0 N
 
         and
 
         
 
         ROYAL INDEMNITY COMPANY,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         
 
         1402.40
 
         
 
              Claimant injured his right shoulder on two occasions in 
 
         non-work related incidents in 1981.  Claimant began work for 
 
         defendant employer in 1983 and did not miss any work until after 
 
         a June 22, 1985, work injury.  Treating physician opined that 
 
         claimant's work injury was the most significant in terms of 
 
         causing claimant's problems of global instability and recurrent 
 
         dislocations. Deputy's finding that claimant had proved a causal 
 
         connection between the work injury and the claimed disability was 
 
         affirmed on appeal.
 
         
 
         1402.60
 
         
 
              Claimant was entitled to reimbursement for reasonable 
 
         medical expenses which he had incurred and to payment of 
 
         reasonable and necessary further medical expenses.
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         FRANK FUCHES,
 
         
 
              Claimant,
 
                                                File Nos. 834046,
 
         vs.                                              824085 & 797701
 
         
 
         KOHLES & BACH, INC.,                  A R B I T R A T I 0 N
 
         
 
              Employer,                           D E C I S I 0 N
 
         
 
         and
 
         
 
         ROYAL INDEMNITY COMPANY,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         
 
                                   INTRODUCTION
 
         
 
              This is a proceeding in arbitration brought by Frank Fuches, 
 
         claimant, against Kohles & Bach, Inc., employer, and Royal 
 
         Indemnity Company, insurance carrier, defendants.  Royal 
 
         Indemnity Company is not a party defendant in case number 
 
         824085.
 
         
 
              On March 2, 1988, the hearing was held before Garry D. 
 
         Woodward, Deputy Industrial Commissioner.  On July 13, 1988, the 
 
         case was transferred to the undersigned by David E. Linquist, 
 
         Industrial Commissioner.
 
         
 
              The record consists of the testimony of claimant, Ricky Joe 
 
         Bach and joint exhibits 1 (1-9) and 2.
 
         
 
              With respect to the cases numbered 797701 and 834046, the 
 
         parties stipulate that claimant sustained injuries on June 22, 
 
         1985 and November 12, 1985 which arose out of and in the course 
 
         of his employment with the employer.  Further, the injuries were 
 
         a cause of temporary disability from June 22, 1985 through June 
 
         27, 1985 and from November 12, 1985 to January 26, 1986.
 
         
 
              In case number 824085, the parties stipulate claimant 
 
         sustained an injury on May 7, 1986 which arose out of and in the 
 
         course of his employment and that the injury caused a temporary 
 
         disability.  The parties stipulate the rate of weekly 
 
         compensation was set for  $319.80.  The parties also stipulate 
 
         that the fees charged for medical services rendered were fair and 
 
         reasonable and that the requisite expenses incurred were also 
 
         fair and reasonable.  Finally, the parties stipulate that the 
 
         causal connection of the expenses to treatment for a medical 
 
         condition upon which claimant was basing his claim was admitted 
 
         but that the causal connection of this condition to a work injury 
 
         remains an issue.
 
         
 
         
 

 
         
 
         
 
         
 
         FUCHES V. KOHLES & BACH, INC.
 
         PAGE   2
 
                                     
 
                                     
 
                                     ISSUES
 
         
 
              The issues presented are as follows:
 
         
 
              1.  Whether the employer, Kohles & Bach, Inc., is liable for 
 
         healing period benefits from May 7, 1986 until July 14, 1986 as a 
 
         result of a fall on May 7, 1986;
 
         
 
              2.  Whether the employer, Kohles & Bach, Inc., or the 
 
         workers' compensation insurance carrier, Royal Indemnity Company, 
 
         is liable for future medical services, including surgery;
 
         
 
              3.   Whether the employer, Kohles & Bach, Inc., or the 
 
         workers' compensation insurance carrier, Royal Indemnity Company, 
 
         is liable for healing period benefits for a period.of time if 
 
         future medical services, including surgery, are awarded; and,
 
         
 
              4.  Whether the alleged injuries of June 22, 1985, November 
 
         12, 1985 or May 7, 1986 resulted in any permanent injury to the 
 
         claimant and, it so, whether the employer or the workers' 
 
         compensation insurance carrier is liable for any alleged 
 
         permanent injuries.
 
         
 
                                 FACTS PRESENTED
 
         
 
              The claimant was employed as a heating and air conditioner 
 
         installer by the employer.  Records indicate claimant commenced 
 
         his employment on or about June 13, 1983, terminated in September 
 
         of 1983 and then was rehired by defendant approximately five 
 
         weeks later.  Claimant left the employ of the defendant on July 
 
         26, 1986.
 
         
 
              Claimant testified that in January of 1981 he sustained an 
 
         injury to his right shoulder while participating in a "Tough Man 
 
         Contest."  The contest was unrelated to any work activities.  
 
         Hospital records indicate claimant suffered an anterior 
 
         subcoracoid dislocation.  Claimant reported, "the shoulder came 
 
         down into the armpit."  In November of 1981 the claimant again 
 
         injured his right shoulder when he slipped on ice at his home.  
 
         That injury was also unrelated to any work activities.
 
         
 
              On June 22, 1985, while in the course of his employment, the 
 
         claimant sustained a "recurrent right shoulder dislocation" as a 
 
         result of a scaffolding collapse.  Claimant testified his 
 
         shoulder "...came out the back side... This time it came out to 
 
         the back side and tore everything up in the back."  Claimant was 
 
         paid temporary total disability payments and medical benefits by 
 
         the Royal Indemnity Company.  After three to five days, the 
 
         claimant returned to work in a supervisory capacity.
 
         
 
              On November 12, 1985, claimant sustained another work 
 
         related injury to his shoulder.  Claimant was standing on an icy 
 
         bumper and unloading inventory.  Claimant fell and reinjured his 
 
         right shoulder.  Claimant, after the November injury date, 
 
         received temporary total disability benefits for approximately 
 
         two months.  Medical expenses incurred by claimant were likewise 
 
         paid by the Royal Indemnity Company.
 
         
 
              On May 7, 1986, claimant again injured his right shoulder 
 
         while he was replacing a furnace on a job site.  Claimant slipped 
 
         on a furnace filter and fell.  Claimant reported he sought the 
 

 
         
 
         
 
         
 
         FUCHES V. KOHLES & BACH, INC.
 
         PAGE   3
 
         
 
         medical advice of Robert Breedlove, M.D., subsequent to the 
 
         injury.  Claimant also indicated that after the injury in May of 
 
         1986, he was not paid any additional benefits under the workers' 
 
         compensation laws but he did receive $2,700 from President Rick 
 
         Bach.  Rick Bach, president of defendant employer, reported the 
 
         company did not have workers' compensation insurance for 16 or 17 
 
         days in May of 1986.  The period included May 7, 1986, the day 
 
         claimant slipped on the furnace filter.
 
         
 
              Subsequent to the three injury dates in question, the 
 
         claimant sought the medical attention of Dr. Breedlove.  Claimant 
 
         also sought the medical opinion of Robert Cofield, M.D., and 
 
         pursuant to a request by the insurance carrier, claimant was 
 
         examined by Joshua D. Kimelman, D.O., on August 4, 1987.
 
         
 
                                  APPLICABLE LAW
 
         
 
              An employee is entitled to compensation for any and all 
 
         personal injuries which arise out of and in the course of the 
 
         employment.  Section 85.3(l).
 
         
 
              The claimant has the burden of proving by a preponderance of 
 
         the evidence that the injuries of June 22, 1985, November 12, 
 
         1985 and May 7, 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. 0. Boggs, 236 Iowa 
 
         296, 18 N.W.2d 607 (1945).  A possibility is insufficient; a 
 
         probability is necessary.  Burt v. John Deere Waterloo Tractor 
 
         Works, 247 Iowa 691, 73 N.W.2d 732 (1955).  The question of 
 
         causal connection is essentially within the domain of expert 
 
         testimony.  Bradshaw v. Iowa Methodist Hospital, 251.Iowa 375, 
 
         101 N.W.2d 167 (1960).
 
         
 
              However, expert medical evidence must be considered with all 
 
         other evidence introduced bearing on the causal connection.  
 
         Burt, 247 Iowa 691, 73 N.W.2d 732.  The opinion of experts need 
 
         not be couched in definite, positive or unequivocal language.  
 
         Sondag v. Ferris Hardware, 220 N.W.2d 903 (Iowa 1974).  However, 
 
         the expert opinion may be accepted or rejected, in whole or in 
 
         part, by the trier of fact.  Id. at 907.  Further, the weight to 
 
         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.2d 756, 760-761 
 
         (1956).  If the claimant had a preexisting condition or 
 
         disability that is aggravates, accelerated, worsened or lighted 
 
         up so that it results in disability, claimant is entitled to 
 
         recover.  Nicks v. Davenport Produce Co., 254 Iowa 130, 115 
 
         N.W.2d 812, 815 (1962).
 
         
 
              When an aggravation occurs in the performance of an 
 
         employer's work and a causal connection is established, claimant 
 
         may recover to the extent of the impairment.  Ziegler v. United 
 
         States Gypsum Co., 252 Iowa 613, 620, 106 N.W.2d 591, 595 
 

 
         
 
         
 
         
 
         FUCHES V. KOHLES & BACH, INC.
 
         PAGE   4
 
         
 
         (1960).
 
         
 
              The Iowa Supreme Court cites, apparently with approval, the 
 
         C.J.S. statement that the aggravation should be material if it is 
 
         to be compensable.  Yeager v. Firestone Tire & Rubber Co., 253 
 
         Iowa 369, 112 N.W.2d 299 (1961); 100 C.J.S. Workmen's 
 
         Compensation SS555(17)a.
 
         
 
              Our supreme court has stated many times that a claimant may 
 
         recover for a work connected aggravation of a preexisting 
 
         condition.  Almquist v. Shenandoah Nurseries, 218 Iowa 724, 254 
 
         N.W. 35 (1934).  See also Auxier v. Woodward State Hosp. Sch., 
 
         266 N.W.2d 139 (Iowa 1978); Gosek v. Garmer and Stiles Co., 158 
 
         N.@ 731 (Iowa 1968); Barz v. Oler, 257 Iowa 508, 133 N.W.2d 704 
 
         (1965); Olson v. Goodyear Service Stores, 255 Iowa 1112, 125 
 
         N.W.2d 251 (1963); Yeager, 253 Iowa 369, 112 N.W.2d 299 (1961); 
 
         Ziegler, 252 Iowa 613, 106 N.W.2d 591 (1960).
 
         
 
              An employer takes an employee subject to any active or 
 
         dominant 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 
 
         (1960), and cases cited.
 
         
 
              An employee is not entitled to recover for the results of a 
 
         preexisting injury or disease but can recover for an aggravation 
 
         thereof which resulted in the disability found to exist.  Olson, 
 
         255 Iowa 1112, 125 N.W.2d 251 (1963); Yeager, 253 Iowa 369, 112 
 
         N.W.2d 299 (1961); Ziegler, 252 Iowa 613, 106 N.W.2d 591 (1960).  
 
         See also Barz, 257 Iowa 508, 133 N.W.2d 704 (1965); Almquist, 218 
 
         Iowa 724, 254 N.W. 35 (1934).
 
         
 
                                     ANALYSIS
 
         
 
              The dates of claimant's work related injuries which are 
 
         stipulated are June 22, 1985, November 12, 1985 and May 7, 1986.
 
         
 
              While claimant does not deny he originally dislocated his 
 
         shoulder in an accident unrelated to work, claimant's treating 
 
         physician, Dr. Breedlove, diagnoses claimant as having an 
 
         aggravation to a preexisting condition as of July 9, 1985.  The 
 
         physician opines the scaffolding accident on June 22, 1985 was 
 
         the most significant injury in terms of causing the global 
 
         instability and recurrent dislocations.  Claimant's physician 
 
         diagnoses the claimant as having a recurrent shoulder dislocation 
 
         after the November work related injury.  In addition to the 
 
         above, Dr. Breedlove writes in his report of October 8, 1986:
 
         
 
              My final diagnosis for Mr. Fuches is recurrent right 
 
              shoulder dislocation secondary to global or 
 
              multi-directional instability.
 
         
 
              I have repeatedly recommended that Mr. Fuches have a 
 
              shoulder repair in order to tighten up the torn and/or 
 
              loose ligaments of his shoulder.  I have recommended 
 
              that he go to see Dr. Robert Cofield at the Mayo 
 
              Clinic, a world expert on global shoulder instability.
 
         
 
              I feel that Mr. Fuches sustained a significant injury 
 
              to his shoulder in June 1985.  He had been doing 
 

 
         
 
         
 
         
 
         FUCHES V. KOHLES & BACH, INC.
 
         PAGE   5
 
         
 
              apparently very well from his original injury in 1981 
 
              until his fall in June 1985.  Following the accident he 
 
              has had global instability.  Based upon the clinic 
 
              reports available following his original dislocation, 
 
              there was no evidence of global instability that was 
 
              present on physical examination following his fall from 
 
              the scaffolding.  I feel that the injury in June 1985 
 
              was the most significant in terms of causing his 
 
              present problem of global instability and recurrent 
 
              dislocations.
 
         
 
              I do not feel that the accident in May 1986 
 
              significantly changed Mr. Fuches physical examination 
 
              or his symptoms.  The diagnosis following his injury on 
 
              May 7 is no different than it was following the 
 
              accident which he fell oft the scaffolding in 1985.  
 
              His prognosis and physical complaints are also the same 
 
              as they were prior to his 1986 accident.
 
         
 
              I do not feel, based on a reasonable degree of medical 
 
              certainty, I do not feel that the incident of May 7, 
 
              1986, figures into any of the problems that Mr. Fuches 
 
              is currently having today.
 
         
 
              Much weight is afforded to the diagnosis of Dr. Breedlove 
 
         who was a treating physician and who saw claimant on six separate 
 
         occasions.  The first occasion was several weeks after the first 
 
         work related injury.
 
         
 
              Joshua Kimelman, D.O., on the other hand, has only seen 
 
         claimant on one occasion.  This occasion was long after the work 
 
         related injuries and it was solely for the purpose of evaluation. 
 
          Therefore, not as much weight will be given to his evaluation.
 
         
 
              However, even Dr. Kimelman, in his report of October 14, 
 
         1987, writes:
 
         
 
              I believe that his initial episode of dislocation 
 
              occurred on January 22, 1981 when he was treated for 
 
              anterior dislocation of his shoulder, and there was a 
 
              recurrent dislocation apparently in November of 1981.  
 
              He, by history, did well up until June 22, 1986 when he 
 
              again had a fall and suffered a dislocation of his 
 
              right shoulder.
 
         
 
              I believe Mr. Fuches' suffers from instability of the 
 
              shoulder resulting in recurrent multidirectional 
 
              dislocation.  I believe that his original dislocation 
 
              is the etiology of his problem dating back to 1981.  
 
              However, certainly the 1986 episode must be considered 
 
              an exacerbation of a previous episode as his 
 
              dislocations are, by history, more frequent since that 
 
              injury.
 
         
 
              I believe that he has suffered permanent impairment. 
 
              related to his right shoulder and would assess that, 
 
              according to the Manual for Orthopedic [sic] Surgeons 
 
              in Evaluating Permanent Impairment, it represents 
 
              approximately 35 percent impairment to the right upper 
 
              extremity.
 

 
         
 
         
 
         
 
         FUCHES V. KOHLES & BACH, INC.
 
         PAGE   6
 
         
 
         
 
              Dr. Cofield was referred to claimant by Dr. Breedlove.  
 
         After examining the claimant, Dr. Cofield determined surgery was 
 
         appropriate.  In his medical notes for August 19, 1986, he 
 
         writes:
 
         
 
              In June or July of 1985, he fell through a scaffold and 
 
              dislocated the shoulder.  He felt badly.  He has then 
 
              had it come out three times since then, the last being 
 
              May 7th.  He has interval subluxations when he reaches 
 
              away from his body; particularly with the arm back at 
 
              the side he feels it slip.  He has had some ulnar nerve 
 
              involvement in the form of dysesthesias on the last 
 
              dislocation this year.
 
         
 
              Dr. Cofield, in his letter to Dr. Breedlove of August 22,
 
         1986, states:
 
         
 
              It would be my interpretation that he does have 
 
              anterior instability in combination with 
 
              multidirectional instability and it would be reasonable 
 
              to consider shoulder repair for him doing a 
 
              modification of the capsular shift procedure.
 
              The greater weight of evidence presented supports a finding 
 
         that claimant's shoulder condition at the time of the hearing was 
 
         causally connected to his injury on June 22, 1985.  In light of 
 
         that tact, Royal Indemnity Company is liable for reasonable and 
 
         necessary medical expenses including future medical benefits 
 
         under section 85.27 as well as future time off from work and for 
 
         any permanent partial disability which claimant may sustain.  The 
 
         evidence indicates claimant has not been reimbursed for 
 
         reasonable medical expenses related to his shoulder injury.
 
         
 
              The employer, Kohles & Bach, Inc., had no workers' 
 
         compensation insurance on May 7, 1986, the date claimant fell on 
 
         the furnace filter.  Consequently, the employer is solely liable 
 
         for temporary total disability benefits from May 7, 1986 to July 
 
         14, 1986 at the rate of $319.80 per week for nine and 
 
         three-sevenths weeks.  While there is testimony in the record 
 
         that $2,700.00 was given to claimant from employer, there is no 
 
         indication in the record that this payment was made pursuant to 
 
         any of the sections under the Workers' Compensation Act.  No 
 
         credit is given to employer for this payment.
 
         
 
                     FINDINGS OF FACT AND CONCLUSIONS OF LAW
 
         
 
              WHEREFORE, based on the evidence presented and the 
 
         principles of law previously stated, the following findings of 
 
         fact and conclusions of law are made:
 
         
 
              FINDING 1.  On June 22, 1985, November 12, 1985 and May 7,
 
         1986, claimant was injured while working for defendant.
 
         
 
              CONCLUSION A. The aforementioned injuries arose out of and 
 
         in the course of his employment with defendant.
 
         
 
              FINDING 2.  As a result of the June 22, 1985 injury, 
 
         claimant sustained injuries to his right shoulder.
 
         
 
              CONCLUSION B.  Claimant met his burden in proving a causal 
 

 
         
 
         
 
         
 
         FUCHES V. KOHLES & BACH, INC.
 
         PAGE   7
 
         
 
         connection between his injury on June 22, 1985 and his disability 
 
         at the time of the hearing.
 
         
 
              FINDING 3.  As a result of the June 22, 1985 injury, 
 
         claimant is entitled to the reimbursement of reasonable medical 
 
         expenses which he has incurred.
 
         
 
              FINDING 4.  Claimant has incurred the following expenses 
 
         which are reasonable and necessary:
 
         
 
              Dr. Robert Breedlove, M.D.               $ 60.00
 
              Mayo Clinic                               113.00
 
                    Total                              $173.00
 
         
 
              FINDING 5.  As a result of the June 22, 1985 injury, 
 
         claimant may incur further medical expenses, including surgery on 
 
         his shoulder.
 
         
 
              CONCLUSION C.  Claimant met his burden in proving that he is 
 
         entitled to medical expenses and that he will be entitled to 
 
         reasonable and necessary future medical expenses, including the 
 
         reasonable costs of surgery, because of the injury which occurred 
 
         on June 22, 1985.
 
         
 
              FINDING 6.  The greater weight of the evidence shows that 
 
         claimant has not reached maximum recovery and that as a result of 
 
         the June 22, 1985 accident, any permanent partial disability 
 
         cannot be established at this time.
 
         
 
              FINDING 7.  Claimant missed nine and three-sevenths weeks of 
 

 
         
 
         
 
         
 
         FUCHES V. KOHLES & BACH, INC.
 
         PAGE   8
 
         
 
         work as a result of the injury which occurred on May 7, 1986.
 
         
 
              FINDING 8.  Employer was without workers' compensation, 
 
         insurance on May 7, 1986.
 
         
 
              FINDING 9.. The injury on May 7, 1986, resulted in an 
 
         aggravation of a preexisting condition whereby the results were 
 
         only temporary in nature and no permanent impairment occurred.
 
         
 
              CONCLUSION D.  Claimant has met his burden in proving he is 
 
         entitled from employer to nine and three-sevenths weeks of 
 
         temporary total disability benefits because of the May 7, 1986 
 
         injury.
 
         
 
                                      ORDER
 
         
 
              THEREFORE, defendant, Royal Indemnity Company, is to 
 
         reimburse claimant the amount of one hundred seventy-three and 
 
         no/100 dollars ($173.00) for medical expenses.
 
         
 
              Defendant, Royal Indemnity Company, is also ordered to pay 
 
         future reasonable and necessary medical expenses related to the 
 
         claimant's right shoulder including, but not limited to, the 
 
         costs of surgery as well as any temporary total benefits and any 
 
         permanent partial disability.
 
         
 
              Defendant, Kohles & Bach, Inc., is ordered to pay temporary 
 
         total disability benefits for nine and three-sevenths (9 3/7) 
 
         weeks at the rate of three hundred nineteen dollars and 80/100 
 
         dollars ($319.80) on account of the May 7, 1986 injury.  Kohles & 
 
         Bach, Inc., take no credit for the two thousand seven hundred and 
 
         no/100 dollars ($2,700.00) paid to claimant.
 
         
 
              Accrued benefits for case number 824085 are to be made in a 
 
         lump sum together with statutory interest at the rate of ten 
 
         percent (10%) per year pursuant to section 85.30, Code of Iowa, 
 
         as amended.
 
         
 
              Costs are taxed to defendant, Kohles & Bach, inc., for case 
 
         number 824085 and costs for case numbers 797701 and 834046 are 
 
         taxed to defendant, Royal Indemnity Company, pursuant to Division 
 
         of Industrial Services Rule 343-4.33.
 
         
 
              Defendants shall file final reports upon payment of these 
 
         awards.
 
         
 
         
 
              Signed and filed this 22nd day of September, 1988.
 
         
 
         
 
         
 
         
 
         
 
                                        MICHELLE A. McGOVERN
 
                                        DEPUTY INDUSTRIAL COMMISSIONER
 
         
 
         
 
         Copies To:
 
         
 
         Mr. David D. Drake
 

 
         
 
         
 
         
 
         FUCHES V. KOHLES & BACH, INC.
 
         PAGE   9
 
         
 
         Mr. Tom L. Drew
 
         Attorneys at Law
 
         West Towers Office Complex
 
         1200 35th Street, Suite 500
 
         West Des Moines, Iowa 50265
 
         
 
         Ms. Dorothy L. Kelley
 
         Attorney at Law
 
         1000 Des Moines Bldg.
 
         Des Moines, Iowa 50309
 
         
 
         Ms. Rebecca C. Reznicek
 
         Mr. Timothy R. Williams
 
         Mr. James S. Blackburn
 
         Attorneys at Law
 
         400 Homestead Bldg.
 
         300 Locust Street
 
         Des Moines, Iowa 50309
 
 
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                               1402.30; 1402.40;
 
                                               1402.60; 1801; 2206
 
                                               Filed September 22, 1988
 
                                               MICHELLE A. McGOVERN
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         FRANK FUCHES,
 
         
 
              Claimant,
 
                                                File Nos. 834046,
 
         vs.                                              824085 & 797701
 
         
 
         KOHLES & BACH, INC.,                   A R B I T R A T I 0 N
 
         
 
              Employer,                           D E C I S I 0 N
 
         
 
         and
 
         
 
         ROYAL INDEMNITY COMPANY,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         
 
         1402.30
 
         
 
              Claimant suffered shoulder injuries on June 22, 1985, 
 
         November 12, 1985 and May 7, 1986 which arose out of and in the 
 
         course of his employment.
 
         
 
         1402.40
 
         
 
              Claimant met his burden in proving a causal connection 
 
         between his injury on June 22, 1985 and his disability at the 
 
         time of the hearing.
 
         
 
         1402.60
 
         
 
              As a result of the June 22, 1985 injury, claimant is 
 
         entitled to the reimbursement of reasonable medical expenses 
 
         which he has incurred and to the payment of reasonable and 
 
         necessary future medical expenses.
 
         
 
         1402.30; 1801; 2206
 
         
 
              Claimant has established that his injury on May 7, 1986, 
 
         resulted in an aggravation of a preexisting condition whereby the 
 
         results were only temporary in nature and employer was required 
 
         to pay temporary total disability benefits.