BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         JANICE VAN DUSEN,
 
         
 
              Claimant,                                File No. 798519
 
              
 
         vs.                                        A R B I T R A T I O N
 
         
 
         HEINZ U.S.A.,                                 D E C I S I O N
 
         
 
              Employer,
 
                                                          F I L E D
 
         and
 
                                                         JAN 19 1990
 
         LIBERTY MUTUAL INSURANCE CO.,
 
                                                IOWA INDUSTRIAL 
 
         COMMISSIONER
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
                              STATEMENT OF THE CASE
 
         
 
              This is a proceeding in arbitration, brought by Janice Van 
 
         Dusen, claimant, against Heinz U.S.A., employer (hereinafter 
 
         referred to as Heinz), and Liberty Mutual Insurance Company, 
 
         insurance carrier, defendants, for workers' compensation benefits 
 
         as a result of an alleged injury on March 25, 1985.  On June 14, 
 
         1989, 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 contested 
 
         issues and stipulations which was approved and accepted as a part 
 
         of the record of this case at the time of hearing.  Oral 
 
         testimony and written exhibits were received during the hearing 
 
         from the parties.  The exhibits offered into the evidence are 
 
         listed in the prehearing report.
 
         
 
              According to the prehearing report, the parties have 
 
         stipulated to the following matters:
 
         
 
              1.  On March 25, 1985, claimant received an injury which 
 
         arose out of and in the course of her employment with Heinz.
 
         
 
              2.  Claimant is seeking temporary total disability or 
 
         healing period benefits for the times off work listed in exhibit 
 
         16. Defendants have not stipulated that these times off work were 
 
         causally connected to the injury.
 
         
 
              3.  If the injury is found to have caused permanent 
 
         disability, the type of disability is an industrial disability to 
 
         the body as a whole.
 
         
 
              4.  Claimant's rate of weekly compensation in the event of 
 
         an award of weekly benefits from this proceeding shall be 
 
         $247.76.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              5.  All requested medical benefits have been paid by 
 
         defendants.
 
         
 
                                      ISSUES
 
         
 
              The parties have submitted the following issues for 
 
         determination in this proceeding:
 
         
 
               I.  Whether there is a causal relationship between the work 
 
         injury and the claimed disability; and,
 
              
 
              II.  The extent of claimant's entitlement to weekly benefits 
 
         for disability.
 
         
 
                              STATEMENT OF THE FACTS
 
         
 
              The following is a brief statement highlighting some of the 
 
         more pertinent evidence presented.  Whether or not specifically 
 
         referred to in this statement, all of the evidence received at 
 
         the hearing was reviewed and considered in arriving at this 
 
         decision. Any conclusions about the evidence received contained 
 
         in the following statement shall be viewed as preliminary 
 
         findings of fact.
 
         
 
              Claimant testified that she worked for Heinz from the summer 
 
         of 1979 until her termination in May 1987.  Claimant said that 
 
         she initially performed light duty work at Heinz but eventually 
 
         moved to higher paying jobs which required heavy labor work 
 
         including lifting up to 30 pounds or more.  Claimant testified 
 
         that she was at times expected to handle objects weighing as much 
 
         as up to 100 pounds.  Several of claimant's fellow employees at 
 
         Heinz testified that claimant was fully able to perform such 
 
         heavy work prior to 1985 and that subsequent to her work injury 
 
         her abilities considerably reduced.  Claimant earned $9.57 per 
 
         hour in her job at the time of the alleged injury, including a 
 
         full range of fringe benefits such as paid health, dental and eye 
 
         care plans along with life insurance.  When claimant was 
 
         terminated, she was making $10.78 per hour plus benefits.  
 
         Claimant testified that she was terminated by Heinz for excessive 
 
         absenteeism.  Claimant said that her absenteeism was caused by 
 
         recurrent and chronic pain from the work injury of 1985.  
 
         Pursuant to union contract procedures, the company settled a 
 
         grievance filed by claimant wherein the company admitted that 
 
         claimant's termination was due to absences caused by claimant's 
 
         physical problems following the work injury.
 
         
 
              The facts surrounding the work injury are not in dispute. 
 
         Claimant testified that her shirt became entangled in a machine 
 
         and that she hurt her shoulder, neck, back and arms while 
 
         struggling to free herself from the machine.  The machine 
 
         eventually ripped the shirt entirely off claimant's upper torso. 
 
         Claimant sought treatment for persistent neck and shoulder pain 
 
         the next day from William Catalona, M.D., an orthopedic surgeon. 
 
         Dr. Catalona diagnosed muscle strain and returned claimant to 
 
         work with medication and physical therapy.  Claimant was directed 
 
         to use hot compresses at work and to avoid aggravation of her 
 
         pain. Claimant said that she was unable to return to work due to 
 
         her pain and later returned to Dr. Catalona who continued to 
 
         prescribe hot compresses, medication and "to continue rest at 
 
         home." Claimant was scheduled to be on vacation at that time 
 
         until April 15, 1985.  On April 12, 1985, claimant reported low 
 
         back pain to Dr. Catalona along with her other problems.  An EMG 
 
         test later in April 1985, failed to show any nerve conduction 
 
         abnormalities in claimant's neck or low back.  At that time Dr. 
 
         Catalona and claimant had an argument in which claimant claimed 
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         that Dr. Catalona was the reason why she was not receiving 
 
         workers' compensation benefits from Heinz.  On April 25, 1985, 
 
         claimant told Dr. Catalona that she quit physical therapy as it 
 
         was aggravating her pain.  Claimant's care was then transferred 
 
         to Dr. Catalona's associate, Patrick Kessler, M.D., another 
 
         orthopedic surgeon.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              After his examination of claimant on May 30, 1985, Dr. 
 
         Kessler diagnosed chronic neck and lower back pain from the 
 
         original injury and prescribed another attempt at the physical 
 
         therapy.  Dr. Kessler returned claimant back to work in a light 
 
         duty status with no excessive use of arms, no heavy lifting over 
 
         15 pounds and no repetitive bending or lifting over five pounds. 
 
         Claimant testified that she returned to work as directed but the 
 
         work assigned to her was in excess of these restrictions.  She 
 
         stated that she continued to experience pain in her shoulder, 
 
         neck, arms, back and legs.  Heinz management testified at hearing 
 
         that the work assigned did not exceed Dr. Kessler's restrictions. 
 
         Claimant went to a chiropractor with no success in the six weeks 
 
         following the injury and then sought treatment from another 
 
         orthopedic surgeon, not authorized by Heinz, by the name of David 
 
         Naden, M.D.  After his examination of claimant, Dr. Naden felt 
 
         that claimant had acute upper and lower back strain and that she 
 
         should not be working.  He also stated that rehabilitation would 
 
         be of benefit to her.  However, later in May 1985, Dr. Naden 
 
         reported that claimant "dropped the football" on his recommended 
 
         physical therapy.  In June 1985, Dr. Naden referred claimant back 
 
         to Dr. Kessler.  Dr. Naden stated that claimant should return to 
 
         work in a light duty capacity.
 
         
 
              Claimant was evaluated by physicians at the University of 
 
         Iowa Hospitals and Clinics in June 1985.  The University doctors 
 
         diagnosed chronic cervical and low back strain and also 
 
         prescribed a rehabilitation program.  In September 1985, Dr. 
 
         Kessler referred claimant to Richard F. Neiman, M.D., a 
 
         neurosurgeon.  EMG and myelogram testing by Dr. Neiman indicated 
 
         abnormalities such as denervations at the location of a low back 
 
         vertebrae along with mild bulging with no herniation of a low 
 
         back disc.  Dr. Neiman referred claimant back to Dr. Kessler with 
 
         these findings but did not recommend any additional treatment.  
 
         On October 3, 1985, Dr. Kessler noted Dr. Neiman's findings but 
 
         he likewise recommended no new treatment modalities.  Claimant's 
 
         light duty restrictions have remained continuous since that time.  
 
         In December 1985, claimant was evaluated by Byron Rovine, M.D., 
 
         another neurosurgeon, who found no organic problems with 
 
         claimant's back or neck and opined that claimant was physically 
 
         and organically capable of normal function.  Dr. Rovine did not 
 
         change his opinion after being given the results of Dr. Neiman's 
 
         myelogram and EMG testing.  Claimant continues to see Dr. Kessler 
 
         in 1986 with the same complaints.  Dr. Kessler's last work 
 
         restrictions imposed upon claimant's activity consisted of no 
 
         repetitive bending or lifting or no lifting above 25 pounds.
 
         
 
              In February 1987, Dr. Rovine attempted to reexamine claimant 
 
         but claimant and the doctor became very upset with each other and 
 
         no examination was conducted.  Apparently, claimant became upset 
 
         with Dr. Rovine's reports that there was nothing wrong with her. 
 
         In April 1987, claimant returned to Dr. Neiman with the same 
 
         complaints as before asking if something could be done as a 
 
         return to work at Heinz was not helping.  Dr. Neiman performed 
 
         another EMG which again showed denervation of the nerves of the 
 
         low back. Dr. Neiman opined that it was not usual for an EMG test 
 
         taken soon after the injury to be normal and for abnormal 
 
         readings to appear in later EMGs months or years after the 
 
         injury.  Dr. Neiman found that his findings were consistent with 
 
         an L5 radiculopathy of claimant's low back.  He referred claimant 
 
         to another neurosurgeon to see what "had to be done" but that 
 
         physician would not examine claimant without a release from his 
 
         involvement in pending litigation.  Claimant refused to sign such 
 
         a release and was seen by another neurosurgeon, Eugene Collins, 
 
         M.D., in May 1987.  In his deposition testimony, Dr. Collins 
 
         opines that if claimant's history of no prior problems before May 
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         25, 1985 is correct, then her upper and lower back problems are 
 
         causally connected to the injury.  He opines that claimant 
 
         suffers from a stretch injury to the L5 nerve which is not 
 
         operable.  His findings of atrophy of the right leg were 
 
         consistent with claimant's complaints.  Dr. Collins felt that the 
 
         problems were permanent but he could give no permanency rating at 
 
         that time because he did not have his AMA Guides with him.  Dr. 
 
         Collins felt that claimant would have difficulty performing 
 
         manual labor jobs involving prolonged standing, bending, pushing, 
 
         pulling, turning or long driving.  He agreed with Dr. Neiman that 
 
         a delay in EMG abnormal findings was not unusual.  J. R. Lee, 
 
         M.D., specialty unknown, evaluated claimant in June 1987 and 
 
         diagnosed lumbar strain with no functional deficits and 
 
         prescribed a work hardening program.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              Claimant has not been employed other than babysitting since 
 
         leaving Heinz.  Claimant did not discuss in her testimony what 
 
         efforts, if any, she has made to seek other suitable alternative 
 
         employment.  Claimant refused rehabilitation efforts offered by 
 
         insurance companies stating that she had baby-sitting 
 
         commitments. Although she dropped out of high school in her 
 
         senior year, claimant obtained her GED in November 1987 and has 
 
         attended Muscatine Community College and the University of Iowa.  
 
         She hopes to receive an education to qualify her for a job in 
 
         environmental engineering.  However, she cannot do such 
 
         educational work full time at the present due to child and home 
 
         responsibilities.  She also states that such studies are too 
 
         physically and mentally demanding for her.  However, she has 
 
         received very excellent grades in her recent educational 
 
         activities.
 
         
 
                           APPLICABLE LAW AND ANALYSIS
 
         
 
              Note:  A credibility finding is necessary to this decision 
 
         as defendants place claimant's credibility at issue during 
 
         cross-examination as to the nature and extent of the disability.  
 
         From her demeanor while testifying, claimant is found credible. 
 
         Although it is clear from her testimony and medical records that 
 
         claimant is a very argumentative person, she appeared to be 
 
         telling the truth at hearing with reference to her past problems.
 
         
 
               I.  The claimant has the burden of proving by a 
 
         preponderance of the evidence that the work injury is a cause of 
 
         the claimed disability.  A disability may be either temporary or 
 
         permanent.  In the case of a claim for temporary disability, the 
 
         claimant must establish that the work injury was a cause of 
 
         absence from work and lost earnings during a period of recovery 
 
         from the injury.  Generally, a claim of permanent disability 
 
         invokes an initial determination of whether the work injury was a 
 
         cause of permanent physical impairment or permanent limitation in 
 
         work activity.  However, in some instances, such as a job 
 
         transfer caused by a work injury, permanent disability benefits 
 
         can be awarded without a showing of a causal connection to a 
 
         physical change of condition.  Blacksmith v. All-American, Inc., 
 
         290 N.W.2d 348, 354 (Iowa 1980); McSpadden v. Big Ben Coal Co., 
 
         288 N.W.2d 181 (Iowa 1980).
 
         
 
              The question of causal connection is essentially within the 
 
         domain of expert medical opinion.  Bradshaw v. Iowa Methodist 
 
         Hospital, 251 Iowa 375, 101 N.W.2d 167 (1960).  The opinion of 
 
         experts need not be couched in definite, positive or unequivocal 
 
         language and the expert opinion may be accepted or rejected, in 
 
         whole or in part, by the trier of fact.  Sondag v. Ferris 
 
         Hardware, 220 N.W.2d 903 (Iowa 1974).  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 v. Fischer. Inc., 257 
 
         Iowa 516, 133 N.W.2d 867 (1965).
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
              Furthermore, if the available expert testimony is 
 
         insufficient along to support a finding of causal connection, 
 
         such testimony may be coupled with nonexpert testimony to show 
 
         causation and be sufficient to sustain an award.  Giere v. Asse 
 
         Haugen Homes Inc., 259 Iowa 1065, 146 N.W.2d 911, 915 (1966).  
 
         Such evidence does not, however, compel an award as a matter of 
 
         law.  Anderson v. Oscar Mayer. & Co., 217 N.W.2d 531, 536 (Iowa 
 
         1974).  To establish compensability, the injury need only be a 
 
         significant factor, not be the only factor causing the claimed 
 
         disability.  Blacksmith, 290 N.W.2d 348, 354.  In the case of a 
 
         preexisting condition, 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 v. Goodyear Service Stores, 255 Iowa 1112, 125 
 
         N.W.2d 251 (1963).
 
         
 
              In the case sub judice, claimant contends that she has 
 
         suffered a disability as a result of her work injury due to 
 
         permanent functional impairment to the body as a whole.  No 
 
         physician in this case has provided an impairment rating of such 
 
         a functional   impairment.  A few physicians have opined that 
 
         claimant has no functional loss.  However, it is clear from the 
 
         records of the primary treating physicians, Drs. Catalona, 
 
         Kessler and Neiman, that claimant has permanent work restrictions 
 
         stemming from the date of injury against heavy lifting and 
 
         repetitive lifting, bending, pushing and pulling, and against 
 
         prolonged standing.  A board certified neurosurgeon, Dr. Collins, 
 
         has opined that claimant's condition is permanent and the only 
 
         reason he failed to rate claimant's impairment is that he was 
 
         never asked at a time when he had his AMA Guides available.  
 
         Therefore, claimant has shown a functional loss of use of the 
 
         body as a whole.  There appears to be no quarrel among the 
 
         experts except for the views of Dr. Rovine who was a one time 
 
         medical examiner, that these restrictions are directly traceable 
 
         to the May 25, 1985 injury.
 
         
 
              II.  Claimant must 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 of a permanent physical 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.  The extent to which a work 
 
         injury and a resulting medical condition has resulted in an 
 
         industrial disability is determined from examination of several 
 
         factors. These factors 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.  
 
         Olson, 255 Iowa 1112, 1121, 125 N.W.2d 251, 257 (1963).  See 
 
         Peterson v. Truck Haven Cafe, Inc., (Appeal Decision, February 
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         28, 1985.)
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              Claimant's medical condition before the work injury was 
 
         excellent and she had no functional impairments or ascertainable 
 
         disabilities.  Claimant was able to fully perform physical tasks 
 
         involving heavy lifting, repetitive lifting, bending, twisting, 
 
         stooping and prolonged standing.  As a result of the restrictions 
 
         imposed subsequent to the work injury, claimant has been unable 
 
         to return to the job she was performing at the time of the injury 
 
         or any other manual labor job at Heinz or elsewhere.  Given her 
 
         lack of formal education and lack of other skills, claimant is 
 
         unable to perform the work for which she is best suited.  The 
 
         lack of a percentage rating of permanency on the functional basis 
 
         is not significant as in an industrial case the restrictions on 
 
         claimant's work activities are the important analysis to 
 
         determine loss of employment opportunities and earning capacity.
 
         
 
              Claimant is relatively young at 33 years of age which should 
 
         not preclude retraining.  She appears to have been very 
 
         successful in her efforts to date to seek a formal education 
 
         beyond her GED. However, this agency has held that predicting the 
 
         success of vocational retraining and/or future employment 
 
         searches is speculation and is not a proper factor in measuring 
 
         an injured worker's current industrial disability.  Steward v. 
 
         Crouse Cartage Co., Appeal Decision filed September 20, 1987.  
 
         This agency is available upon proper application in the future to 
 
         review such matters when more facts are available.
 
         
 
              However, claimant has not shown much of an effort to seek 
 
         alternative suitable employment following her termination at 
 
         Heinz.  Her devotion to baby-sitting appears to have a 
 
         significant adverse affect upon her future earning capacity which 
 
         is not related to the work injury.  Claimant also refused to 
 
         fully cooperate with recommended physical therapy and 
 
         rehabilitation efforts.  Claimant certainly has a duty to 
 
         reasonably mitigate the effects of her injuries.  Claimant's only 
 
         reaction to pain from being assigned to various light duty jobs 
 
         after the injury was to not show up for work.  She did not appear 
 
         to fully cooperate with attempts by Heinz to return her to 
 
         suitable work.  In the experience of this agency, other companies 
 
         in this state would have simply fired claimant without any 
 
         attempt to accommodate for her disabilities.  Consequently, the 
 
         award in this case was significantly lowered accordingly.
 
         
 
              On the other hand, claimant was earning a considerable wage 
 
         at the time of the injury which to date she has not been able to 
 
         replace and it is unlikely that she will replace it in the 
 
         significant future.  Also, claimant's earning capacity was 
 
         severely affected by her termination at Heinz which was not 
 
         entirely the fault of claimant.  Claimant today does have a 
 
         significant disability which needs to be compensated.
 
         
 
              After examination of all of the factors it is found as a 
 
         matter of fact that claimant has suffered a 30 percent loss in 
 
         her earning capacity from this work injury.  Based upon such a 
 
         finding, claimant is entitled as a matter of law to 150 weeks of 
 
         permanent partial disability benefits under Iowa Code section 
 
         85.34(2)(u) which is 30 percent of 500 weeks, the maximum 
 
         allowable for an injury to the body as a whole in that 
 
         subsection. As claimant has established entitlement to permanent 
 
         partial disability, claimant may be entitled to weekly benefits 
 
         for healing period under Iowa Code section 85.34 from the date of 
 
         injury until claimant returned to work, until claimant is 
 
         medically capable of returning to substantially similar work to 
 
         the work she was performing at the time of the injury; or, until 
 
         it is indicated that significant improvement from the injury is 
 
         not anticipated, whichever occurs first.
 

 
         
 
 
 
 
 
 
 
 
 
 
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              Dr. Catalona and Dr. Kessler state that claimant had no lost 
 
         time but did impose work restrictions.  Claimant credibly 
 
         testified that the work assigned to her aggravated her pain which 
 
         compelled her absences from work.  Claimant's employment records 
 
         indicated that her absenteeism problem began at the time of the 
 
         work injury.  Claimant seeks healing period for several years 
 
         after the injury.  However, claimant's condition has really not 
 
         changed since the fall of 1985.  The abnormalities of claimant's 
 
         low back was finally identified by Dr. Neiman's testing at that 
 
         time and no new treatment modalities were recommended in light of 
 
         these findings.  Dr. Kessler was appraised of Dr. Neiman's 
 
         findings on October 3, 1985.  It was at that time claimant's 
 
         treating physicians did not anticipate that claimant would 
 
         improve and therefore the healing period ended.  Claimant will be 
 
         awarded healing period from May 25, 1985 through October 3, 1985, 
 
         which totals 27 3/7 weeks.  However, according to exhibit 16, 
 
         claimant worked intermittently during this time for a total of 10 
 
         3/7 weeks.  Therefore, claimant will be awarded the difference of 
 
         17 weeks of healing period benefits.
 
                                        
 
                                 FINDINGS OF FACT
 
         
 
              1.  Claimant was a credible witness.  Claimant's appearance 
 
         while testifying indicated that she was testifying truthfully as 
 
         to the extent of her injuries and chronic pain.
 
         
 
              2.  On March 25, 1985, claimant suffered an injury to the 
 
         right shoulder, right arm, neck and low back which arose out of 
 
         and in the course of her employment with Heinz.  This injury was 
 
         finally diagnosed as either an L5 radiculopathy or injury to the 
 
         nerves of the low back.
 
         
 
              3.  The work injury of March 25, 1985, was a cause of a 
 
         period of total disability from work for a 17 week period between 
 
         March 25, 1985 through October 3, 1985.  Claimant reached maximum 
 
         healing on October 3, 1985, when her treating physicians no 
 
         longer anticipated further recovery.  During her healing period, 
 
         claimant received extensive treatment of her work injury 
 
         consisting of limitations on activity, medications for pain and 
 
         inflammation, home exercises and supervised physical therapy.
 
         
 
              4.  The work injury of March 25, 1985, is a cause of a 
 
         permanent partial impairment to the body as a whole and of 
 
         permanent restrictions upon claimant's physical activity 
 
         consisting of no repetitive lifting or bending or prolonged 
 
         standing.  Claimant had no ascertainable functional impairments 
 
         prior to the work injury.
 
         
 
              5.  The work injury of March 25, 1985 and the resulting 
 
         permanent partial impairment and work restrictions are a cause of 
 
         a 30 percent loss of earning capacity.  Claimant is 33 years of 
 
         age and has a GED.  Claimant has successfully attended a few post 
 
         high school education classes which had to be discontinued due to 
 
         her commitment to her family and to her self-employment as a 
 
         baby-sitter.  Claimant has no ascertainable loss of earning 
 
         capacity prior to her work injury.  Claimant's physician imposed 
 
         activity restrictions prevent a return to the job she was 
 
         performing at the time of her injury.  Claimant is also unable to 
 
         return to the manual labor job she has held in the past.  She has 
 
         not been able to continue her employment even in light duty 
 
         capacity at Heinz as a result of the work injury.  Employment in 
 
         manual labor occupations, is the type of occupations for which 
 
         claimant is best suited given her work history and lack of formal 
 
         education. Claimant has not been employed in gainful employment 
 
         since her termination at Heinz in May 1987.  However, claimant 
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         has not fully cooperated with vocational and physical 
 
         rehabilitation opportunities offered by defendants to alleviate 
 
         her disability. Claimant has not made a great deal of effort to 
 
         seek suitable alternative employment outside of the home.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
                                CONCLUSIONS OF LAW
 
         
 
              Claimant has established under law entitlement to 17 weeks 
 
         of healing period benefits and 150 weeks of permanent partial 
 
         disability benefits.
 
         
 
                                      ORDER
 
         
 
              1.  Defendants shall pay to claimant one hundred fifty (150) 
 
         weeks of permanent partial disability benefits at the rate of two 
 
         hundred forty-seven and 76/100 dollars ($247.76) from October 4, 
 
         1985.
 
         
 
              2.  Defendants shall pay to claimant seventeen (17) weeks of 
 
         healing period benefits from March 25, 1985, at the rate of two 
 
         hundred forty-seven and 76/100 dollars ($247.76) per week.
 
         
 
              3.  Defendants shall pay accrued weekly benefits in a lump 
 
         sum and shall receive credit against this award for weekly 
 
         benefits previously paid as stipulated in the prehearing report.
 
         
 
              4.  Defendants shall receive credit for previous payment of 
 
         benefits under a non-occupational group insurance plan under Iowa 
 
         Code section 85.38(2) as stipulated in the prehearing report.
 
         
 
              4. Defendants shall pay interest on weekly benefits awarded 
 
         herein as set forth in Iowa Code section 85.30.
 
              
 
              5. Defendants shall pay the cost of this action pursuant to 
 
         Division of Industrial Services Rule 343-4.33.
 
         
 
              6.  Defendants shall file activity reports on the payment of 
 
         this award as requested by this agency pursuant to Division of 
 
         Industrial Services Rule 343-3.1.
 
         
 
              Signed and filed this 19th day of January, 1990.
 
         
 
         
 
         
 
         
 
         
 
                                       
 
                                            LARRY P. WALSHIRE
 
                                            DEPUTY INDUSTRIAL COMMISSIONER
 
         
 
         Copies To:
 
         
 
         Mr. James M. Hood
 
         Attorney at Law
 
         302 Union Arcade Bldg
 
         Davenport, IA  52801
 
         
 
         Mr. Greg A. Egbers
 
         Attorney at Law
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         600 Union Arcade Bldg
 
         111 East Third St
 
         Davenport, IA  52801-1596
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
 
                                            
 
 
 
 
 
 
 
 
 
 
 
                                            1803
 
                                            Filed January 19, 1990
 
                                            LARRY P. WALSHIRE
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         JANICE VAN DUSEN,
 
         
 
              Claimant,
 
         
 
         vs.                                            File No. 798519
 
         
 
         HEINZ U.S.A.,                               A R B I T R A T I O N
 
         
 
              Employer,                                 D E C I S I O N
 
         
 
         and
 
         
 
         LIBERTY MUTUAL INSURANCE CO.,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         1803 - Extent of permanent partial disability benefits
 
         
 
              Industrial disability award lower due to failure of claimant 
 
         to fully cooperate with offered vocational and physical 
 
         rehabilitation opportunities to help her alleviate her 
 
         disability. Claimant did not make a great deal of effort to look 
 
         for suitable alternative employment outside of her home following 
 
         the termination of her employment.  Claimant however did 
 
         successfully attend a few retraining classes and received good 
 
         grades.  This educational effort was discontinued however due to 
 
         a commitment to babysitting in the home.
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
            _____
 
                                          :
 
            NANCY SIMONSON,               :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :   File Nos. 798628/842007
 
                                          :             851960
 
            SNAP-ON TOOLS,                :
 
                                          :          A P P E A L
 
                 Employer,                :
 
                                          :        D E C I S I O N
 
            and                           :
 
                                          :
 
            ROYAL INSURANCE COMPANY,      :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ____________________________________________________________
 
            _____
 
            
 
                              STATEMENT OF THE CASE
 
            
 
                 Claimant appeals from an arbitration decision awarding 
 
            temporary total disability benefits in file number 842007 
 
            and healing period and permanent partial disability benefits 
 
            in filed number 851960.
 
            
 
                 The record on appeal consists of the transcript of the 
 
            arbitration hearing; claimant's exhibits A through D; and 
 
            defendants' exhibits 1 through 33.  
 
            
 
                                      issues
 
            By previous ruling, claimant failed to timely file an appeal 
 
            brief.  Therefore, the appeal will be considered generally 
 
            and without regard to specific issues.
 
            
 
                                 findings of fact
 
            
 
                 The findings of fact contained in the arbitration 
 
            decision is adopted herein.
 
            
 
                                conclusions of law
 
            
 
                 The conclusions of law contained in the proposed agency 
 
            decision are adopted herein as set forth below.  Segments 
 
            indicated by asterisks (*****) indicate portions of the 
 
            proposed agency decision that have been intentionally 
 
            deleted and that do not form a part of this final agency 
 
            decision:
 
            
 
                    As stipulated, an employment relationship 
 
                 existed between claimant and Snap-On Tools 
 
                 Corporation at all times relevant and that 
 
                 claimant sustained an injury arising out of and in 
 
                 the course of that employment, but dispute the 
 
                 date and manner of occurrence(s).  This amounts to 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
                 no stipulation at all.  Accordingly, "arising out 
 
                 of" will be treated as a disputed issue, as will 
 
                 causal connection.
 
            
 
                    Claimant has the burden of proving by a 
 
                 prepon-derance of the evidence that she received 
 
                 an injury or injuries which arose out of and in 
 
                 the course of her employment.  McDowell v. Town of 
 
                 Clarksville, 241 N.W.2d 904 (Iowa 1976); Musselman 
 
                 v. Cent. Tel. Co., 261 Iowa 352, 154 N.W.2d 128 
 
                 (1967). 
 
            
 
                    The words "out of" refer to the cause or source 
 
                 of the injury.  Crowe v. DeSoto Consol. School 
 
                 Dist., 246 Iowa 402, 68 N.W.2d 63 (1955). 
 
            
 
                    "An injury occurs in the course of the 
 
                 employment when it is within the period of 
 
                 employment at a place the employee may reasonably 
 
                 be, and while he is doing his work or something 
 
                 incidental to it."  Cedar Rapids Community School 
 
                 Dist. v. Cady, 278 N.W.2d 298 (Iowa 1979), McClure 
 
                 v. Union, et al., Counties, 188 N.W.2d 283 (Iowa 
 
                 1971); Musselman v. Cent. Tel. Co., 261 Iowa 352, 
 
                 154 N.W.2d 128 (1967). 
 
            
 
                    The supreme court of Iowa in Almquist v. 
 
                 Shenandoah Nurseries, 218 Iowa 724, 731-32, 254 
 
                 N.W. 35, 38 (1934) discussed the definition of 
 
                 personal injury in workers' compensation cases as 
 
                 follows:
 
            
 
                    While a personal injury does not include an 
 
                 occupational disease under the Workmen's 
 
                 Compensation Act, yet an injury to the health may 
 
                 be a personal injury.  [Citations omitted.]  
 
                 Likewise a personal injury includes a disease 
 
                 resulting from an injury....The result of changes 
 
                 in the human body incident to the general 
 
                 processes of nature do not amount to a personal 
 
                 injury.  This must follow, even though such 
 
                 natural change may come about because the life has 
 
                 been devoted to labor and hard work.  Such result 
 
                 of those natural changes does not constitute a 
 
                 personal injury even though the same brings about 
 
                 impairment of health or the total or partial 
 
                 incapacity of the functions of the human body. 
 
            
 
                    ....
 
            
 
                 A personal injury, contemplated by the Workmen's 
 
                 Compensation Law, obviously means an injury to the 
 
                 body, the impairment of health, or a disease, not 
 
                 excluded by the act, which comes about, not 
 
                 through the natural building up and tearing down 
 
                 of the human body, but because of a traumatic or 
 
                 other hurt or damage to the health or body of an 
 
                 employee.  [Citations omitted.]  The injury to the 
 
                 human body here contemplated must be something, 
 
                 whether an accident or not, that acts extraneously 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
                 to the natural processes of nature, and thereby 
 
                 impairs the health, overcomes, injures, 
 
                 interrupts, or destroys some function of the body, 
 
                 or otherwise damages or injures a part or all of 
 
                 the body.
 
            
 
                    The claimant has the burden of proving by a 
 
                 prepon-derance of the evidence that her injury or 
 
                 injuries are causally related to the disability on 
 
                 which she now bases her claim.  Bodish v. Fischer, 
 
                 Inc., 257 Iowa 516, 133 N.W.2d 867 (1965).  
 
                 Lindahl v. L. O. Boggs, 236 Iowa 296, 18 N.W.2d 
 
                 607 (1945).  A possibility is insufficient; a 
 
                 probability is necessary.  Burt v. John Deere 
 
                 Waterloo Tractor Works, 247 Iowa 691, 73 N.W.2d 
 
                 732 (1955).  The question of causal connection is 
 
                 essentially within the domain of expert testimony.  
 
                 Bradshaw v. Iowa Methodist Hosp., 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. Cent. Tel. 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, 760-61 (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).
 
            
 
                    The 1985 injury occurred as the result of a 
 
                 traumatic incident while claimant was bending and 
 
                 lifting.  Claimant was off work from July 5 
 
                 through July 12 and returned to work effective 
 
                 July 15 with no medical restrictions whatsoever.  
 
                 She was voluntarily paid weekly benefits, 
 
                 receiving the last of those on July 19, 1985.  
 
                 Defendants have raised a limitations defense under 
 
                 Iowa Code section 85.26.  The statute provides 
 
                 that an original proceeding for benefits shall not 
 
                 be maintained in any contested case where weekly 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
                 compensation benefits have been paid unless the 
 
                 proceeding is commenced within three years from 
 
                 the date of the last such payment.  Because the 
 
                 petition in this case was filed on December 29, 
 
                 1988, further relief is barred under section 
 
                 85.26.  Claimant contends that the running of 
 
                 limitations under 85.26 was stopped by failure to 
 
                 file a commencement of payments notice pursuant to 
 
                 section 86.13.  However, official notice of timely 
 
                 filing of that notice has been taken.  
 
                 Accordingly, other issues involved with this 
 
                 injury (e.g., interest and penalty) are rendered 
 
                 moot.  However, because this decision finds that 
 
                 claimant is entitled to industrial disability for 
 
                 the 1987 injury, it is necessary to consider the 
 
                 extent of her 1985 industrial disability, because 
 
                 any such should be apportioned out from the award 
 
                 attributable to that later 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, expe
 
                 rience and inability to engage in employment for 
 
                 which he is fitted.  Olson v. Goodyear Service 
 
                 Stores, 255 Iowa 1112, 125 N.W.2d 251 (1963).  
 
                 Barton v. Nevada Poultry, 253 Iowa 285, 110 
 
                 N.W.2d 660 (1961).
 
            
 
                    A finding of impairment to the body as a whole 
 
                 found by a medical evaluator does not equate to 
 
                 industrial disability.  This is so as impairment 
 
                 and disability are not synonymous.  Degree of 
 
                 industrial disability can in fact be much 
 
                 different than the degree of impairment because in 
 
                 the first instance reference is to loss of earning 
 
                 capacity and in the latter to anatomical or 
 
                 functional abnormality or loss.  Although loss of 
 
                 function is to be considered and disability can 
 
                 rarely be found without it, it is not so that a 
 
                 degree of industrial disability is proportionally 
 
                 related to a degree of impairment of bodily 
 
                 function.
 
            
 
                    Factors to be considered in determining 
 
                 industrial disability include the employee's 
 
                 medical condition prior to the injury, immediately 
 
                 after the injury, and presently; the situs of the 
 
                 injury, its severity and the length of healing 
 
                 period; the work experience of the employee prior 
 
                 to the injury, after the injury and potential for 
 
                 rehabilitation; the employee's qualifications 
 
                 intellectually, emotionally and physically; 
 
                 earnings prior and subsequent to the injury; age; 
 
                 education; motivation; functional impairment as a 
 
                 result of the injury; and inability because of the 
 
                 injury to engage in employment for which the 
 
     
 
            
 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
                 employee is fitted.  Loss of earnings caused by a 
 
                 job transfer for reasons related to the injury is 
 
                 also relevant.  These are matters which the finder 
 
                 of fact considers collectively in arriving at the 
 
                 determination of the degree of industrial 
 
                 disability.
 
            
 
                    There are no weighting guidelines that indicate 
 
                 how each of the factors are to be considered.  
 
                 There are no guidelines which give, for example, 
 
                 age a weighted value of ten percent of the total 
 
                 value, education a value of fifteen percent of 
 
                 total, motivation - five percent; work experience 
 
                 - thirty percent, etc.  Neither does a rating of 
 
                 functional impairment directly correlate to a 
 
                 degree of industrial disability to the body as a 
 
                 whole.  In other words, there are no formulae 
 
                 which can be applied and then added up to 
 
                 determine the degree of industrial disability.  It 
 
                 therefore becomes necessary for the deputy or 
 
                 commissioner to draw upon prior experience, 
 
                 general and specialized knowledge to make the 
 
                 finding with regard to degree of industrial dis
 
                 ability.  See Peterson v. Truck Haven Cafe, Inc., 
 
                 (Appeal Decision, February 28, 1985); Christensen 
 
                 v. Hagen, Inc., (Appeal Decision, March 26, 1985).
 
            
 
                    Because claimant returned to her same job 
 
                 without medical restrictions and continued working 
 
                 for years thereafter, it is held that she 
 
                 sustained no permanent reduction in earning 
 
                 capacity as a result of the 1985 injury.
 
            
 
                    The 1986 injury did not result from an 
 
                 identifiable traumatic incident.  Rather, it is in 
 
                 the nature of a cumulative injury.  In cases of 
 
                 cumulative injury, the injury date is deemed to be 
 
                 when due to pain or physical inability claimant is 
 
                 no longer able to work.  McKeever Custom Cabinets 
 
                 v. Smith, 379 N.W.2d 368 (Iowa 1985).  Expert 
 
                 testimony is of particular importance in 
 
                 determining whether a condition of disability is 
 
                 causally related to the work or "arose out of" the 
 
                 same.  Dr. Drown, upon a diagnosis of spinal 
 
                 subluxation and strain, concluded that claimant's 
 
                 condition resulted from fatigue causally related 
 
                 to lifting at work.  No contrary evidence appears 
 
                 of record.  Claimant has clearly met her burden of 
 
                 proof in establishing the 1986 work injury and 
 
                 causal connection to, at least, a period of 
 
                 temporary disability.
 
            
 
                    Claimant was forced to miss work from November 
 
                 6 through November 17 and was returned to work 
 
                 without restrictions on November 18, 1986.  Once 
 
                 again, she returned to the same work and continued 
 
                 for at least some months in the absence of any 
 
                 medical restriction whatsoever.  Claimant is 
 
     
 
            
 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
                 entitled to temporary total disability benefits, 
 
                 but did not sustain industrial disability arising 
 
                 from any permanent impairment.  Accordingly, no 
 
                 portion of claimant's current industrial 
 
                 disability is attributable to this injury.
 
            
 
                    Pursuant to Iowa Code sections 85.32 and 85.33, 
 
                 temporary total disability that does not extend 
 
                 beyond fourteen days is compensable beginning on 
 
                 the fourth day of disability and continuing until 
 
                 the employee has returned to work.  Accordingly, 
 
                 claimant is entitled to nine days of temporary 
 
                 total disability benefits commencing November 9, 
 
                 1986.  The parties stipulated that claimant's 
 
                 gross weekly earnings as of November 6, 1986 
 
                 averaged $404.80.  Pursuant to the Guide to Iowa 
 
                 Workers' Compensation Claim Handling effective 
 
                 July 1, 1986, a married claimant entitled to five 
 
                 exemptions and those average earnings is entitled 
 
                 to a rate of $260.58 per week.  Accordingly, 
 
                 claimant is entitled to an award of $335.11 with 
 
                 respect to the 1986 injury.
 
            
 
                    Since defendants voluntarily paid less than 
 
                 claimant's entitlement, it is necessary to 
 
                 consider their affirmative defenses under Iowa 
 
                 Code sections 85.23 and 85.26.  Both fail.
 
            
 
                    Claimant's petition filed on December 29, 1988 
 
                 was clearly within three years of the last payment 
 
                 of weekly benefits.  Accordingly, the 85.26 
 
                 defense fails.
 
            
 
                    Under Iowa Code section 85.23, no compensation 
 
                 will be allowed unless the employer or its 
 
                 representative shall have actual knowledge of the 
 
                 occurrence of an injury or be given notice by 
 
                 claimant or someone on her behalf within 90 days 
 
                 from the date of the occurrence of the injury.  
 
                 Dr. Drown's letter of December 9, 1986 furnished 
 
                 actual knowledge.  Accordingly, the 85.23 defense 
 
                 fails.
 
            
 
                    Claimant asserts entitlement to penalty under 
 
                 Iowa Code section 86.13, unnumbered paragraph 4.  
 
                 Under the statute, if a delay in commencement of 
 
                 benefits occurs without reasonable or probable 
 
                 cause or excuse, the industrial commissioner shall 
 
                 award benefits up to 50 percent of the amount 
 
                 unreasonably delayed.  The word "shall" indicates 
 
                 a mandatory duty.  The check compensating claimant 
 
                 for her temporary total disability during 1986 is 
 
                 dated January 12, 1987, a delay of nearly two 
 
                 months.  No reasonable cause or excuse has been 
 
                 offered.  As shall be seen, defendants have 
 
                 established a pattern of late payment of accrued 
 
                 benefits.  Accordingly, defendants shall be 
 
                 ordered to pay a penalty of $167.55, a full 50 
 
                 percent of the benefits unreasonably delayed.
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
            
 
                    Come at last we must to the 1987 injury.  As 
 
                 shall be seen, this also is a cumulative injury, 
 
                 not one resulting from an identifiable specific 
 
                 trauma.  Under McKeever, the date of injury is 
 
                 when claimant first left work.  Claimant takes the 
 
                 position that this occurred on April 28, when she 
 
                 apparently missed 1.8 hours to see Dr. 
 
                 Kellenberger.  However, claimant apparently worked 
 
                 at least three more days (April 29 through May 1) 
 
                 before being off on leave of absence commencing 
 
                 May 4, 1987.  It is held that the injury occurred 
 
                 on May 4, 1987, when claimant missed five 
 
                 consecutive days, her first substantial lost time.
 
            
 
                    The primary treating physician, Dr. Nelson, has 
 
                 opined that claimant's condition was probably due 
 
                 to a cumulative injury relating to her work.  Dr. 
 
                 Drown had previously rendered a similar opinion.  
 
                 The University of Iowa spine team found impairment 
 
                 and recommended restrictions, although not 
 
                 rendering an opinion as to whether the injury was 
 
                 work related.
 
            
 
                    Only Dr. Wirtz has opined otherwise.  Dr. Wirtz 
 
                 saw claimant only once as an evaluating physician, 
 
                 as compared to the numerous times claimant was 
 
                 seen by Dr. Nelson for treatment.  Dr. Wirtz's 
 
                 initial opinion appears internally inconsistent in 
 
                 that he finds no impairment, but recommends 
 
                 physical restrictions.  Then, without seeing 
 
                 claimant again, he reversed even that opinion on 
 
                 the basis of testing performed by a physical 
 
                 therapist which the therapist himself thought 
 
                 invalid.  Dr. Wirtz's opinion is unpersuasive.  
 
                 Claimant has met her burden of proof in 
 
                 establishing an injury arising out of and in the 
 
                 course of her employment.  Even if claimant had a 
 
                 preexisting condition (as apparently believed by 
 
                 Dr. Wirtz), it was clearly aggravated and lighted 
 
                 up by the subject cumulative work injury.
 
            
 
                    Pursuant to Iowa Code section 85.34(1), healing 
 
                 period is payable beginning on the date of injury 
 
                 and continuing until the employee has returned to 
 
                 work, it is medically indicated that significant 
 
                 improvement from the injury is not anticipated, or 
 
                 until the employee is medically capable of 
 
                 returning to substantially similar employment, 
 
                 whichever first occurs.  Healing period can be 
 
                 interrupted or intermittent.  Willis v. Lehigh 
 
                 Portland Cement Co., Vol.  2-1, State of Iowa 
 
                 Industrial Commissioner Decisions 485 (1984).
 
            
 
                    Beginning at the end, it is held that 
 
                 claimant's healing period ended May 25, 1988, when 
 
                 the treating physician opined that claimant had 
 
                 reached maximum recuperation.  Although Dr. Nelson 
 
                 had rendered a similar opinion a month earlier, 
 
     
 
            
 
            
 
            Page   8
 
            
 
            
 
            
 
            
 
                 claimant had improved in the interim, thus 
 
                 indicating that the first opinion was premature.  
 
                 Although claimant attempted to work on a number of 
 
                 occasions during her interrupted healing period, 
 
                 each of these attempts proved unsuccessful.  She 
 
                 never did return to work on any permanent basis 
 
                 and it is clear that she will for the foreseeable 
 
                 future be medically incapable of returning to 
 
                 employment substantially similar to that in which 
 
                 she was engaged at the time of injury (else why 
 
                 would defendant discharge her).
 
            
 
                    Claimant's healing period was intermittent 
 
                 through May 25, 1988 because of her attempted 
 
                 returns to work.  In May 1987, claimant missed 
 
                 work on the 4th through 8th, 10th and 11th (seven 
 
                 days); in July, on the 21st through 24th and 27th 
 
                 through 31st (nine days).  In August, claimant 
 
                 worked half-days on the 3rd through 6th, 10th, 
 
                 11th and 13th (eight half-days) and temporary 
 
                 total benefits on the 17th through 21st, 24th 
 
                 through 28th, and 31st (eleven days).  Except for 
 
                 a very few days and parts of days, claimant was 
 
                 subsequently off work from September 1, 1987 
 
                 through May 25, 1988, the end of her healing 
 
                 period.  This span totals 38 weeks, 2 days.  
 
                 However, defendants shall be given 
 
                 dollar-for-dollar credit for those scattered wages 
 
                 claimant earned during that span.  Peterson v. 
 
                 Gary Olson Constr., file number 858921 (Arb. 
 
                 Decn., March 29, 1989).  Accordingly, claimant is 
 
                 entitled to 42 weeks, 5 days of healing period 
 
                 benefits counting the eight half-days.
 
            
 
                    Claimant has also sustained substantial 
 
                 industrial disability.  She was age 35 at hearing 
 
                 and, although not having a high school diploma, 
 
                 appears to be of an intelligence very suitable for 
 
                 retraining.  Dr. Nelson suggests that she should 
 
                 not work on an assembly line or any type of job 
 
                 which requires her to constantly bend, twist, 
 
                 pull, or lift.  She can probably lift 35-40 pounds 
 
                 occasionally (according to the University of Iowa 
 
                 spine team, about half of that frequently) and can 
 
                 stand or sit for long periods of time.  Claimant 
 
                 is clearly foreclosed from her work with Snap-On 
 
                 Tools and, due to the lifting restrictions, 
 
                 presumably could not function as a nurse's aide.  
 
                 However, there appears no reason why she could not 
 
                 act as a telephone solicitor or waitress, the 
 
                 other jobs she has previously held.  Her ability 
 
                 to work long hours and to manage and run her own 
 
                 tavern/restaurant show commendable stamina and 
 
                 numerous transferrable skills.
 
            
 
                    Although both parties expended substantial 
 
                 energy developing evidence as to the success or 
 
     
 
            
 
            
 
            Page   9
 
            
 
            
 
            
 
            
 
                 lack thereof of the tavern business, this is of 
 
                 very limited relevance.  Numerous factors go into 
 
                 the level of success of a privately operated 
 
                 business, including location, competition and the 
 
                 "business head" of the proprietor, all factors 
 
                 that do not directly relate to earning capacity as 
 
                 an employee.  It is an apples and oranges 
 
                 comparison.  On the other hand, defendants have 
 
                 failed to provide continued employment, which in 
 
                 and of itself can justify an award of industrial 
 
                 disability.  McSpadden v. Big Ben Coal Co., 288 
 
                 N.W.2d 181 (Iowa 1980).  Similarly, vocational 
 
                 rehabilitation services were precipitously 
 
                 withdrawn prior to the time claimant entered into 
 
                 self-employment.
 
            
 
                    Considering then these factors in specific and 
 
                 the record otherwise in general, it is held that 
 
                 claimant has sustained an industrial disability 
 
                 equivalent to 35 percent of the body as a whole.
 
            
 
                    Thirty-five percent of 500 weeks is 175 weeks.  
 
                 Claimant has creatively argued that an 
 
                 individual's projected life expectancy [as set 
 
                 forth in rule 343 IAC 6.3(1)] should be multiplied 
 
                 by the percentage of industrial disability; if the 
 
                 product exceeds 500 weeks, the award should be 500 
 
                 weeks.  In innumerable cases, the industrial 
 
                 commissioner has calculated permanent partial 
 
                 disability to the body as a whole as a percentage 
 
                 of 500 weeks rather than as a percentage of the 
 
                 anticipated balance of life expectancy.  Precedent 
 
                 from the industrial commissioner is binding in 
 
                 this office.  Any such precipitous change as 
 
                 claimant suggests must be sought from a higher 
 
                 authority.
 
            
 
                    The parties stipulated to gross weekly earnings 
 
                 of $427.80 with respect to the 1987 injury.  In 
 
                 their brief, defendants have sought to renege on 
 
                 that stipulation.  This is patently unfair and 
 
                 shall not be allowed.  Although the actual injury 
 
                 date has been found to be May 4, 1987, the record 
 
                 does not contain wage information between April 27 
 
                 and that date.  Therefore, the stipulation of the 
 
                 parties shall be adopted as establishing rate.  
 
                 The Guide to Iowa Workers' Compensation Claim 
 
                 Handling effective July 1, 1986 reflects that a 
 
                 married individual with those earnings and 
 
                 entitlement to five exemptions has a compensation 
 
                 rate of $273.47.
 
            
 
                    Defendants also assert affirmative defenses 
 
                 under sections 85.23 and 85.26.  This action was 
 
                 clearly commenced within two years of the date of 
 
                 injury and defendants' own records reflect that it 
 
                 was promptly reported.  Both defenses fail.
 
            
 
                    As set forth in the findings of fact, claimant 
 
     
 
            
 
            
 
            Page  10
 
            
 
            
 
            
 
            
 
                 shall also be awarded $133.87 in unreimbursed 
 
                 mileage.  Defendants have stipulated agreement to 
 
                 reimburse claimant for section 85.39 expenses.
 
            
 
                    Claimant also asserts entitlement to penalty 
 
                 benefits under separate theories.  She alleges 
 
                 that unreasonable delays occurred in processing 
 
                 weekly claims and further alleges that defendants' 
 
                 failure to pay voluntary benefits to the extent 
 
                 she believes appropriate was unreasonable.  The 
 
                 undersigned has now concluded that he committed 
 
                 error by permitting evidence of settlement 
 
                 negotiations into the record.  The proper standard 
 
                 should be the level of benefits actually paid, 
 
                 rather than the level of benefits offered during 
 
                 settlement negotiations.  Accordingly, all 
 
                 evidence of settlement negotiations has been 
 
                 disregarded.
 
            
 
                    In determining entitlement to penalty benefits, 
 
                 the appropriate standard is whether defendants' 
 
                 claim is fairly debatable.  Where defendants 
 
                 assert a claim that is fairly debatable, denial of 
 
                 payment is not unreasonable.  Stanley v. Wilson 
 
                 Foods Corp., file number 753405 (App. Decn., 
 
                 August 23, 1990).
 
            
 
                    With respect to the amount of benefits 
 
                 voluntarily paid, defendants' position is fairly 
 
                 debatable.  Dr. Wirtz opined (eventually) that 
 
                 claimant had no impairment or restrictions.  
 
                 Results of a Minnesota Multiphasic Personality 
 
                 Inventory during claimant's treatment for an 
 
                 unrelated matter reflect the view of psychologist 
 
                 Daniel Davis that "exaggeration of symptoms is a 
 
                 possibility."  Accordingly, no penalty benefits 
 
                 shall be awarded with respect to the degree of 
 
                 claimant's industrial disability.
 
            
 
                    *****
 
            
 
                    A review of voluntary benefits paid shows that 
 
                 in some cases there were delays in processing.  In 
 
                 other cases, payments were prompt and, in 1988, 
 
                 often made before due (at the beginning of a week 
 
                 in which it was anticipated that claimant would be 
 
                 entitled to benefits).  On balance, defendants' 
 
                 frequent delays in processing do not appear so 
 
                 unreasonable as to justify an award of penalty 
 
                 benefits.
 
            
 
                    However, it does appear that interest has not 
 
                 been paid on delayed benefits and on benefits paid 
 
                 at less than the rate found herein.  Claimant 
 
                 correctly points out that payments should be 
 
                 applied first to accrued interest up to the date 
 
                 of payment, and then to principal amounts due.  
 
                 Huner v. Doolittle, 3 Greene 76-77 (Iowa 1851).  
 
                 The parties shall be left to calculate interest 
 
                 due pursuant to Iowa Code section 85.30.  If 
 

 
            
 
            Page  11
 
            
 
            
 
            
 
            
 
                 further intervention by this agency is needed to 
 
                 resolve any dispute as to such calculations, the 
 
                 parties are warned in advance of the possibility 
 
                 that a certified public accountant might be 
 
                 retained as an expert and the cost thereof 
 
                 assessed to one or several parties as may seem 
 
                 just.
 
            
 
                    For purposes of determining the date upon which 
 
                 payments were made, it is held that payments shall 
 
                 be deemed "made" on the day deposited into the 
 
                 United States mail addressed to claimant, or, if 
 
                 not so mailed, on the date made available to 
 
                 claimant (not merely made available to Snap-On 
 
                 Tools in the case of checks issued by Royal 
 
                 Insurance Company).
 
            
 
                 WHEREFORE, the decision of the deputy is affirmed.
 
            
 
                                      order
 
            
 
                 THEREFORE, it is ordered:
 
            
 
                 That in file number 798628:
 
            
 
                 Claimant shall take nothing.
 
            
 
                 That in file number 842007:
 
            
 
                 Defendants shall pay unto claimant one point two eight 
 
            six (1.286) weeks of temporary total disability benefits at 
 
            the rate of two hundred sixty and 58/100 dollars ($260.58) 
 
            per week commencing November 9, 1986 and totalling three 
 
            hundred thirty-five and 11/100 dollars ($335.11).
 
            
 
                 Defendants shall pay unto claimant penalty benefits of 
 
            one hundred sixty-seven and 55/100 dollars ($167.55).  
 
            Interest shall accrue on penalty benefits from the date of 
 
            this decision.
 
            
 
                 That in file number 851960:
 
            
 
                 Defendants shall pay unto claimant forty-two point 
 
            seven one four (42.714) weeks of healing period benefits 
 
            beginning on May 4, 1987 and continuing intermittently as 
 
            set forth in the body of this decision at the rate of two 
 
            hundred seventy-three and 47/100 dollars ($273.47) per week 
 
            and totalling eleven thousand six hundred eighty-one and 
 
            00/100 dollars ($11,681.00).
 
            
 
                 Defendants shall pay unto claimant one hundred 
 
            seventy-five (175) weeks of permanent partial disability 
 
            benefits at the rate of two hundred seventy-three and 47/100 
 
            dollars ($273.47) per week commencing May 26, 1988 and 
 
            totalling forty-seven thousand eight hundred fifty-seven and 
 
            25/100 dollars ($47,857.25).
 
            
 
                 Defendants shall pay unreimbursed mileage expenses 
 
            totalling one hundred thirty-three and 87/100 dollars 
 
            ($133.87).
 

 
            
 
            Page  12
 
            
 
            
 
            
 
            
 
            
 
                 Defendants shall have credit for all weekly benefits 
 
            voluntarily paid prior to the filing date hereof, regardless 
 
            of how they are denominated.
 
            
 
                 All accrued weekly benefits shall be paid in a lump sum 
 
            together with statutory interest thereon pursuant to Iowa 
 
            Code section 85.30.
 
            
 
                 The costs of this action shall be assessed to 
 
            defendants pursuant to rule 343 IAC 4.33 including the cost 
 
            of transcription of the hearing proceeding.
 
            
 
                 That defendants file claim activity reports as 
 
            requested by this agency pursuant to rule 343 IAC 3.1.
 
            
 
                 Signed and filed this ____ day of October, 1991.
 
            
 
            
 
            
 
            
 
                                          
 
            ________________________________
 
                                                   BYRON K. ORTON
 
                                              INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr. Mark S. Soldat
 
            Attorney at Law
 
            714 East State Street
 
            Algona, Iowa 50511
 
            
 
            Mr. Paul C. Thune
 
            Attorney at Law
 
            Suite 300, Fleming Bldg.
 
            P.O. Box 9130
 
            Des Moines, Iowa 50306
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
            1803
 
            Filed October 31, 1991
 
            Byron K. Orton
 
            DRR
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
		                      :
 
            NANCY SIMONSON, 	      :
 
		                      :
 
                 Claimant, 	      :         File Nos. 798628
 
                     		      :                   842007
 
		            vs.       :                   851960
 
                		      :
 
            SNAP-ON TOOLS, 	      :            A P P E A L
 
                      		      :
 
                 Employer,	      :          D E C I S I O N
 
                      		      :
 
		            and       :
 
                 		      :
 
            ROYAL INSURANCE COMPANY,  :
 
                      		      :
 
                 Insurance Carrier,   :
 
                 Defendants.          :
 
            ____________________________________________________________
 
            
 
            In that the deputy's decision was adopted verbatim with only 
 
            minor deletions, the headnotes were adopted verbatim as 
 
            well:
 
            
 
            1803
 
            Claimant's industrial disability was calculated as a 
 
            percentage of 500 weeks, not as a percentage of anticipated 
 
            life expectancy.
 
            
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            NANCY SIMONSON,               :
 
                                          :
 
                 Claimant,                :         File Nos. 798628
 
                                          :                   842007
 
            vs.                           :                   851960
 
                                          :
 
            SNAP-ON TOOLS,                :       A R B I T R A T I O N
 
                                          :
 
                 Employer,                :          D E C I S I O N
 
                                          :
 
            and                           :
 
                                          :
 
            ROYAL INSURANCE COMPANY,      :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ____________________________________________________________
 
            
 
                              statement of the case
 
            
 
                 The above captioned matters were consolidated by an 
 
            Order filed May 4, 1989.
 
            
 
                 File number 798628 is a proceeding in arbitration upon 
 
            claimant's petition filed December 29, 1988.  Claimant 
 
            alleged an injury to the back and right leg of July 5, 1985.
 
            
 
                 File number 842007 is also upon a petition in 
 
            arbitration filed December 29, 1988.  This petition alleged 
 
            an injury to the back and neck of November 6, 1986.
 
            
 
                 File number 851960 is also a petition in arbitration 
 
            filed December 29, 1988.  Claimant alleged injuries to the 
 
            back and left shoulder of April 27, 1987.
 
            
 
                 Claimant, however, now asserts that she has suffered 
 
            but a single cumulative injury which was "manifested" on 
 
            several separate occasions and which might be deemed to have 
 
            occurred for workers' compensation purposes on any of 
 
            several different dates.  She now seeks benefits under the 
 
            Iowa Workers' Compensation Act from her employer, Snap-On 
 
            Tools Corporation, Inc., and its insurance carrier at all 
 
            times relevant, Royal Insurance Company.
 
            
 
                 Hearing on the petitions in arbitration was had in 
 
            Storm Lake, Iowa, on April 10, 1990.  The following 
 
            witnesses testified at hearing:  claimant, Simon Simonson, 
 
            Stuart Simonson, Lee Gunderson, Shirley Hoveland and Richard 
 
            Olson.  Claimant's exhibit A, B and D were admitted into 
 
            evidence, as were defendants' exhibits 1 through 33, 
 
            inclusive.  In disregard of the hearing assignment order 
 
            dated September 29, 1989 (the parties were ordered to meet 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
            prior to hearing and "[e]very reasonable effort should be 
 
            made to avoid duplication"), many of the exhibits were 
 
            duplicate copies.  Claimant offered exhibit C subject to 
 
            objection and ruling was reserved.  Claimant's exhibit E was 
 
            offered contingent on that ruling, that is, if exhibit C 
 
            were to be excluded.  The objections to claimant's exhibits 
 
            C are now overruled and the exhibit is received.
 
            
 
                 In addition, official notice was taken of a standard 
 
            calendar for 1986 through 1989.  Official notice is hereby 
 
            taken of the claim activity report, form 2, filed on 
 
            (apparently--the impression is faint) July 22, 1985 in file 
 
            number 798628.  That form shows that defendants voluntarily 
 
            paid disability benefits from July 9 through July 14, 1985 
 
            on July 16.  In so doing, it is held that it is unnecessary 
 
            to afford the parties an opportunity to contest that fact 
 
            because fairness to the parties does not require an 
 
            opportunity to contest the fact.  See Iowa Code 17A.14(4).
 
            
 
                                      issues
 
            
 
                 The parties entered into a consolidated prehearing 
 
            report in which it is stipulated:  that an employment 
 
            relationship existed between claimant and employer at the 
 
            time of the alleged injury; that claimant sustained an 
 
            injury arising out of and in the course of that employment, 
 
            the date and manner of which, however, is disputed (in the 
 
            posture in which this case is presented, the dispute renders 
 
            the stipulation meaningless); that the alleged injury caused 
 
            a period of temporary disability; that if claimant be found 
 
            to have sustained permanent disability, it is an industrial 
 
            disability to the body as a whole; that with respect to the 
 
            alleged injury of April 27, 1987, claimant had gross average 
 
            weekly wages of $427.80, was married and entitled to five 
 
            exemptions; that defendants do not seek credit under Iowa 
 
            Code section 85.38(2).
 
            
 
                 Accordingly, issues presented for resolution in each 
 
            case include:  the manner in which claimant sustained an 
 
            injury or injuries arising out of and in the course of her 
 
            employment; whether one or more injuries caused permanent 
 
            disability; the extent of claimant's various entitlements to 
 
            compensation for temporary total disability, healing period 
 
            or permanent disability, including the commencement date 
 
            thereof; the extent of claimant's entitlement to medical 
 
            benefits under Iowa Code sections 85.27 and 85.39, although 
 
            the dispute is limited to transportation expenses 
 
            (defendants agreeing by stipulation to pay claimant's 85.39 
 
            claim); the extent of defendants' credit for payments made 
 
            voluntarily prior to hearing; taxation of costs.
 
            
 
                 In addition, defendants asserted affirmative defenses 
 
            of notice under Iowa Code section 85.23 and limitations 
 
            under Iowa Code section 85.26.  Claimant asserted 
 
            entitlement to penalty benefits under Iowa Code section 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
            86.13 and raises issues as to whether interest has been 
 
            properly calculated and paid under Iowa Code section 85.30.
 
            
 
                                 findings of fact
 
            
 
                 The undersigned deputy, having heard the testimony and 
 
            considered all of the evidence, finds:
 
            
 
                 Claimant, 35 years of age at hearing, dropped out of 
 
            school during the eleventh grade and has never attained her 
 
            GED.  However, she is comfortable with her skills in 
 
            reading, writing and arithmetic.  She completed a nurse's 
 
            aide course and did work as a nurse's aide at one time.  In 
 
            addition, she has been employed in telephone solicitation 
 
            work and as a waitress.  She began employment with defendant 
 
            in 1979 and has worked as spot welder, in the metal box 
 
            department and in the brake press department (beginning the 
 
            latter position in spring, 1987).  All of these positions 
 
            involved the manufacture of metal tool boxes.
 
            
 
                 Before commencing employment with Snap-On Tools, 
 
            claimant enjoyed good health; in particular, she had no 
 
            problem with her arms, hands, shoulders, neck or back.  
 
            However, as early as 1980, she began developing back 
 
            complaints.  After 1984, her problems progressively 
 
            worsened.
 
            
 
                 On or about July 5, 1985, claimant suffered a traumatic 
 
            work incident when she felt something "pop" in her back and 
 
            was unable to straighten up after bending over to pick up a 
 
            basket of metal.  She was seen and treated by Kenneth L. 
 
            Zelm, D.C.  Dr. Zelm's initial diagnosis was of subluxation 
 
            of the lumbar/lumbosacral vertebrae, but he apparently later 
 
            modified this diagnosis to subluxation of thoracic 
 
            vertebrae.  The record does not disclose what 
 
            contemporaneous history claimant gave Dr. Zelm, but this is 
 
            the history she gave Brian W. Nelson, M.D., on July 21, 
 
            1987.  Notes of defendants' nurse dated July 5, 1985 reflect 
 
            that claimant complained of back and right leg pain and that 
 
            she was bending over a basket straightening a load when pain 
 
            was felt.  She also told Dr. Nelson that she had suffered 
 
            problems off and on since the 1985 incident and felt that 
 
            she was slowly but surely getting worse.
 
            
 
                 Claimant was off work from July 5 through July 12 and 
 
            returned to work on the following Monday, July 15, 1985.  
 
            Defendants voluntarily paid weekly benefits, the last check 
 
            being dated July 16 and received by claimant on July 19, 
 
            1985.  Claimant was not placed under any restrictions 
 
            whatsoever and was released to and did return to her regular 
 
            job.
 
            
 
                 Claimant was again off work due to back pain from 
 
            November 6 through November 17, 1986.  On November 7, she 
 
            visited Russell O. Drown, D.C.  Dr. Drown's notes of 
 
            November 9 show a diagnosis of spinal subluxation and 
 
            strain.  His later findings reflect the view that claimant's 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
            subluxation and strain was occupational in nature and 
 
            specified the doctor's belief that the condition was "work 
 
            oriented."  Claimant was released to return to her regular 
 
            job without restrictions effective November 18, 1986.  Dr. 
 
            Drown's letter of December 9, 1986 specified that claimant's 
 
            spinal condition was caused by fatigue from the amount of 
 
            lifting she did in her work, but noted that claimant had 
 
            responded to spinal manipulation and was relieved of all her 
 
            symptoms.  Benefits were voluntarily paid, the last check 
 
            being dated January 12, 1987.
 
            
 
                 Dr. Drown's December 9 letter was addressed to 
 
            defendant Royal Insurance.  Defendants thus had notice of 
 
            the injury.
 
            
 
                 Unfortunately, symptoms recurred and worsened in early 
 
            1987.  Claimant missed seven consecutive days of work 
 
            beginning May 4, 1987.  She missed 1.8 hours on April 28 to 
 
            see her family physician, Rick D. Kellenberger, D.O., with 
 
            complaints of left shoulder and back pain starting three 
 
            weeks before.  Defendants' records note that when claimant 
 
            was referred to Dr. Kellenberger on April 27, she reported 
 
            that pain "began when she began working in the brake 
 
            department."
 
            
 
                 Claimant was thereafter referred to her primary 
 
            treating physician, Brian W. Nelson, M.D.  On July 21, Dr. 
 
            Nelson released claimant to return to light-duty work with a 
 
            recommendation that she not be required to sit or stand for 
 
            longer than 30 minutes at a time.  Prognosis was considered 
 
            excellent.  However, claimant's symptoms continued to come 
 
            and go, being particularly responsive to her level of 
 
            activity.  By September 15, 1987, Dr. Nelson noted that 
 
            claimant's symptoms were 90 percent resolved, but thought it 
 
            advisable that she be considered for a less strenuous job 
 
            (although he did not at that time set forth specific medical 
 
            restrictions).  However, by September 25, claimant had 
 
            regressed.  By October 13, leg pain was almost completely 
 
            gone, although she continued having problems with the lower 
 
            back.  By November 11, claimant was subjectively feeling 
 
            "very good" with pain in the back and leg completely gone.  
 
            Unfortunately, by February 29, 1988, pain had returned.
 
            
 
                 Following computerized tomography, Dr. Nelson diagnosed 
 
            a herniated disc on the right at L5-S1.
 
            
 
                 On April 13, 1988, Dr. Nelson wrote of his opinion that 
 
            claimant had reached her maximum medical improvement barring 
 
            future surgery.  By May 25, when claimant returned for a 
 
            recheck, pain was now concentrated in the back and leg pain 
 
            was no longer a problem, which Dr. Nelson deemed a 
 
            significant change.  Because claimant now had no significant 
 
            leg pain, Dr. Nelson changed his view and determined that 
 
            surgery was no longer advisable.  Dr. Nelson's chart notes 
 
            indicate that he now again opined that claimant had reached 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
            maximum medical improvement based on his assessment of 
 
            chronic low back pain secondary to a herniated disc.  He 
 
            opined that claimant had sustained a four percent permanent 
 
            partial impairment to the body as a whole and, as to 
 
            restrictions, wrote:
 
            
 
                 I do think that this patient is able to work but 
 
                 there are certain types of things that I recommend 
 
                 she stay away from.  She should not be working at 
 
                 someplace [sic] that requires her to be on an 
 
                 assembly line or in any type of job which for 
 
                 hours at a time requires her to constantly be 
 
                 bending, twisting, pulling, lifting, even if this 
 
                 is large amounts.  Any one of these activities is 
 
                 unlikely to cause her much problem, but the 
 
                 cumulative effect over hours, days, and weeks, is 
 
                 quite likely to cause her unacceptable pain and 
 
                 not allow her to do this type of job.  On the 
 
                 other hand, I think that she can probably lift up 
 
                 to 35 to 40 pounds occasionally without much 
 
                 problem.  She can also stand for long periods of 
 
                 time or sit for long periods of time and function 
 
                 well in this capacity.  Any type of job which 
 
                 stays within these restrictions, I think she would 
 
                 be a good candidate for.  I would not recommend 
 
                 expending any more health care dollars on this 
 
                 case because further health care dollars are 
 
                 likely to be unproductive.  I would also like to 
 
                 comment that her functional capacity assessment 
 
                 that she had in Des Moines has some limitations.  
 
                 When a patient gets a functional capacity 
 
                 assessment, it is very dependent upon how the 
 
                 patient feels that particular day.  It is 
 
                 certainly less than a perfect predictor of how the 
 
                 patient will do over time doing repetitive types 
 
                 of tasks as listed above.  In my opinion, Nancy 
 
                 would not be able to tolerate that type of 
 
                 activity.
 
            
 
                 Claimant returned on July 13, 1989, somewhat over one 
 
            year later.  Dr. Nelson wrote that claimant had been getting 
 
            along relatively well until getting out of bed three days 
 
            before when she sat up and stood with a twisting motion and 
 
            felt something "pop" in her back, leaving her with lower 
 
            back pain.  Dr. Nelson believed this represented an acute 
 
            lumbar strain which was probably not related to the previous 
 
            back problem.  By this time, claimant was no longer working 
 
            for Snap-On Tools.
 
            
 
                 Claimant was also seen for evaluation on March 17, 
 
            1988, by Peter D. Wirtz, M.D.  Dr. Wirtz diagnosed lumbar 
 
            disc degeneration and radicular symptoms of the right leg.  
 
            His chart notes indicate that a CT scan showed "an 
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
            abnormality," but it is unclear whether the doctor actually 
 
            saw the scan.  He believed claimant capable of employment 
 
            within restrictions of standing, bending, twisting and 
 
            lifting; physiologic ability would determine weight 
 
            capabilities.  He believed it unlikely that claimant's back 
 
            would tolerate twisting, bending and lifting as a spot 
 
            welder (a position offered to claimant by defendants).  He 
 
            did not believe surgery was indicated and felt that claimant 
 
            would be chronically symptomatic in the back with 
 
            overstress.  On April 22, 1988, Dr. Wirtz wrote of his 
 
            belief that maximum medical improvement would have occurred 
 
            in fall, 1987.  Despite the fact that he had suggested 
 
            physical restrictions, he apparently did not believe that 
 
            claimant had suffered any permanent impairment as a result 
 
            of the symptoms developing in April 1987.  Further, he 
 
            wrote:  "Also indicative of an impairment rating would be 
 
            her functional ability after she has returned to employment 
 
            regarding any restrictions from her pre-injury work 
 
            capacity."  Despite repeatedly reading this sentence, the 
 
            undersigned is unable to discern the doctor's meaning.
 
            
 
                 Dr. Wirtz referred claimant to the Sports Medicine 
 
            Centre for a report concerning claimant's functional 
 
            abilities.  Physical therapist Mike Dreibelbeis concluded 
 
            that the test was invalid due to inconsistencies in both 
 
            rotation and side bending activities.  Thereafter, Dr. Wirtz 
 
            wrote on May 10 that in review of that (invalid) study, 
 
            claimant had minimal functional restrictions and was capable 
 
            of bending, twisting and lifting within her physiologic 
 
            ability.  In particular, claimant was capable of functioning 
 
            as a spot welder throughout the majority of body mechanics 
 
            for that employment.  The record does not show why Dr. Wirtz 
 
            changed his mind, unless it was as a punitive measure.
 
            
 
                 Claimant was also seen for a detailed evaluation by the 
 
            University of Iowa Hospitals and Clinics Spine Diagnostic 
 
            and Treatment Center on October 19, 1989, upon referral by 
 
            her attorney.  Spine fellow Ron Henderson, M.D., wrote on 
 
            October 27, 1989 that CT scan indicated a slight bulge at 
 
            L5-S1.  Assessing claimant as having sustained a five 
 
            percent impairment of the body as a whole, Dr. Henderson's 
 
            opinion was that functional capacity assessment showed a 
 
            current maximum non-repetitive lifting limit of 40 pounds 
 
            (squat lift), 50 pounds (partial squat lift) and 50 pounds 
 
            (arm lift), with repetitive lifting limited to half of those 
 
            amounts.  Claimant had essentially normal trunk motion and 
 
            motor strength, reflexes and sensation were all within 
 
            normal limits.
 
            
 
                 In 1986, claimant had carpal tunnel surgery of the 
 
            right hand which left her with physical impairment, but 
 
            apparently no permanent medical restrictions.
 
            
 
                 Defendants made some effort to get claimant back to 
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
            work and provided very limited vocational rehabilitation 
 
            services.  On June 23, 1988, claimant was discharged because 
 
            defendants had no job within her limits for which she might 
 
            successfully bid due to her seniority.  Shortly afterwards, 
 
            rehabilitation services were withdrawn.  Claimant 
 
            subsequently made a few attempts to find other work 
 
            (applying at approximately two department stores, two bars 
 
            and a country club) and thereafter purchased a tavern with 
 
            her husband and has operated that business ever since.  
 
            Unfortunately, it has not been a particularly successful 
 
            enterprise.  Claimant is able to assign some of the heavier 
 
            work to employees, but has shown the ability to work an 
 
            average of 50 hours per week, and sometimes 16 hours per day 
 
            (alternating sitting and standing as needed).  She does not 
 
            fill coolers or do clean-up as part of her bartender duties, 
 
            but is able to perform all cooking chores.  Claimant 
 
            testified that, if she were hiring a hypothetical person 
 
            with her own limitations and capabilities, she would pay 
 
            only $3.50 per hour.
 
            
 
                 Claimant's husband is also employed by Snap-On Tools 
 
            and earned the same wage as claimant.  In January 1988, they 
 
            each earned $10.77 per hour.  Mr. Simonson now earns $11.42 
 
            per hour (and averages approximately five hours of overtime 
 
            per week); claimant would presumably have the same earnings 
 
            had she been able to continue that employment.  In addition, 
 
            claimant now has lost entitlement to numerous fringe 
 
            benefits.
 
            
 
                 In the pursuit of various medical services, claimant 
 
            accrued a total of 6,588.5 miles from November 6, 1986 
 
            through October 19, 1989.  She was reimbursed in the sum of 
 
            $1,249.72.
 
            
 
                                conclusions of law
 
            
 
                 As stipulated, an employment relationship existed 
 
            between claimant and Snap-On Tools Corporation at all times 
 
            relevant and that claimant sustained an injury arising out 
 
            of and in the course of that employment, but dispute the 
 
            date and manner of occurrence(s).  This amounts to no 
 
            stipulation at all.  Accordingly, "arising out of" will be 
 
            treated as a disputed issue, as will causal connection.
 
            
 
                 Claimant has the burden of proving by a preponderance 
 
            of the evidence that she received an injury or injuries 
 
            which arose out of and in the course of her employment. 
 
            McDowell v. Town of Clarksville, 241 N.W.2d 904 (Iowa 
 
            1976); Musselman v. Cent. Tel. Co., 261 Iowa 352, 154 N.W.2d 
 
            128 (1967). 
 
            
 
                 The words "out of" refer to the cause or source of the 
 
            injury.  Crowe v. DeSoto Consol. School Dist., 246 Iowa 402, 
 
            68 N.W.2d 63 (1955). 
 
            
 
                 "An injury occurs in the course of the employment when 
 
            it is within the period of employment at a place the 
 

 
            
 
            Page   8
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
            employee may reasonably be, and while he is doing his work 
 
            or something incidental to it."  Cedar Rapids Community 
 
            School Dist. v. Cady, 278 N.W.2d 298 (Iowa 1979), McClure v. 
 
            Union, et al., Counties, 188 N.W.2d 283 (Iowa 1971); 
 
            Musselman v. Cent. Tel. Co., 261 Iowa 352, 154 N.W.2d 128 
 
            (1967). 
 
            
 
                 The supreme court of Iowa in Almquist v. Shenandoah 
 
            Nurseries, 218 Iowa 724, 731-32, 254 N.W. 35, 38 (1934) 
 
            discussed the definition of personal injury in workers' 
 
            compensation cases as follows:
 
            
 
                 While a personal injury does not include an 
 
                 occupational disease under the Workmen's 
 
                 Compensation Act, yet an injury to the health may 
 
                 be a personal injury.  [Citations omitted.]  
 
                 Likewise a personal injury includes a disease 
 
                 resulting from an injury....The result of changes 
 
                 in the human body incident to the general 
 
                 processes of nature do not amount to a personal 
 
                 injury.  This must follow, even though such 
 
                 natural change may come about because the life has 
 
                 been devoted to labor and hard work.  Such result 
 
                 of those natural changes does not constitute a 
 
                 personal injury even though the same brings about 
 
                 impairment of health or the total or partial 
 
                 incapacity of the functions of the human body. 
 
            
 
                    ....
 
                 
 
                 A personal injury, contemplated by the Workmen's 
 
                 Compensation Law, obviously means an injury to the 
 
                 body, the impairment of health, or a disease, not 
 
                 excluded by the act, which comes about, not through the 
 
                 natural building up and tearing down of the human body, 
 
                 but because of a traumatic or other hurt or damage to 
 
                 the health or body of an employee.  [Citations 
 
                 omitted.]  The injury to the human body here 
 
                 contemplated must be something, whether an accident or 
 
                 not, that acts extraneously to the natural processes of 
 
                 nature, and thereby impairs the health, overcomes, 
 
                 injures, interrupts, or destroys some function of the 
 
                 body, or otherwise damages or injures a part or all of 
 
                 the body.
 
            
 
                 The claimant has the burden of proving by a 
 
            preponderance of the evidence that her injury or injuries 
 
            are causally related to the disability on which she now 
 
            bases her claim.  Bodish v. Fischer, Inc., 257 Iowa 516, 133 
 
            N.W.2d 867 (1965).  Lindahl v. L. O. Boggs, 236 Iowa 296, 18 
 
            N.W.2d 607 (1945).  A possibility is insufficient; a 
 
            probability is necessary.  Burt v. John Deere Waterloo 
 
            Tractor Works, 247 Iowa 691, 73 N.W.2d 732 (1955).  The 
 
            question of causal connection is essentially within the 
 

 
            
 
            Page   9
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
            domain of expert testimony.  Bradshaw v. Iowa Methodist 
 
            Hosp., 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. Cent. Tel. 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, 760-61 (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).
 
            
 
                 The 1985 injury occurred as the result of a traumatic 
 
            incident while claimant was bending and lifting.  Claimant 
 
            was off work from July 5 through July 12 and returned to 
 
            work effective July 15 with no medical restrictions 
 
            whatsoever.  She was voluntarily paid weekly benefits, 
 
            receiving the last of those on July 19, 1985.  Defendants 
 
            have raised a limitations defense under Iowa Code section 
 
            85.26.  The statute provides that an original proceeding for 
 
            benefits shall not be maintained in any contested case where 
 
            weekly compensation benefits have been paid unless the 
 
            proceeding is commenced within three years from the date of 
 
            the last such payment.  Because the petition in this case 
 
            was filed on December 29, 1988, further relief is barred 
 
            under section 85.26.  Claimant contends that the running of 
 
            limitations under 85.26 was stopped by failure to file a 
 
            commencement of payments notice pursuant to section 86.13.  
 
            However, official notice of timely filing of that notice has 
 
            been taken.  Accordingly, other issues involved with this 
 
            injury (e.g., interest and penalty) are rendered moot.  
 
            However, because this decision finds that claimant is 
 
            entitled to industrial disability for the 1987 injury, it is 
 
            necessary to consider the extent of her 1985 industrial 
 
            disability, because any such should be apportioned out from 
 
            the award attributable to that later injury.
 
            
 
                 Functional impairment is an element to be considered in 
 

 
            
 
            Page  10
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
            determining industrial disability which is the reduction of 
 
            earning capacity, but consideration must also be given to 
 
            the injured employee's age, education, qualifications, expe
 
            rience 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 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 
 
            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, 1985).
 
            
 
                 Because claimant returned to her same job without 
 

 
            
 
            Page  11
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
            medical restrictions and continued working for years 
 
            thereafter, it is held that she sustained no permanent 
 
            reduction in earning capacity as a result of the 1985 
 
            injury.
 
            
 
                 The 1986 injury did not result from an identifiable 
 
            traumatic incident.  Rather, it is in the nature of a 
 
            cumulative injury.  In cases of cumulative injury, the 
 
            injury date is deemed to be when due to pain or physical 
 
            inability claimant is no longer able to work.  McKeever 
 
            Custom Cabinets v. Smith, 379 N.W.2d 368 (Iowa 1985).  
 
            Expert testimony is of particular importance in determining 
 
            whether a condition of disability is causally related to the 
 
            work or "arose out of" the same.  Dr. Drown, upon a 
 
            diagnosis of spinal subluxation and strain, concluded that 
 
            claimant's condition resulted from fatigue causally related 
 
            to lifting at work.  No contrary evidence appears of record.  
 
            Claimant has clearly met her burden of proof in establishing 
 
            the 1986 work injury and causal connection to, at least, a 
 
            period of temporary disability.
 
            
 
                 Claimant was forced to miss work from November 6 
 
            through November 17 and was returned to work without 
 
            restrictions on November 18, 1986.  Once again, she returned 
 
            to the same work and continued for at least some months in 
 
            the absence of any medical restriction whatsoever.  Claimant 
 
            is entitled to temporary total disability benefits, but did 
 
            not sustain industrial disability arising from any permanent 
 
            impairment.  Accordingly, no portion of claimant's current 
 
            industrial disability is attributable to this injury.
 
            
 
                 Pursuant to Iowa Code sections 85.32 and 85.33, 
 
            temporary total disability that does not extend beyond 
 
            fourteen days is compensable beginning on the fourth day of 
 
            disability and continuing until the employee has returned to 
 
            work.  Accordingly, claimant is entitled to nine days of 
 
            temporary total disability benefits commencing November 9, 
 
            1986.  The parties stipulated that claimant's gross weekly 
 
            earnings as of November 6, 1986 averaged $404.80.  Pursuant 
 
            to the Guide to Iowa Workers' Compensation Claim Handling 
 
            effective July 1, 1986, a married claimant entitled to five 
 
            exemptions and those average earnings is entitled to a rate 
 
            of $260.58 per week.  Accordingly, claimant is entitled to 
 
            an award of $335.11 with respect to the 1986 injury.
 
            
 
                 Since defendants voluntarily paid less than claimant's 
 
            entitlement, it is necessary to consider their affirmative 
 
            defenses under Iowa Code sections 85.23 and 85.26.  Both 
 
            fail.
 
            
 
                 Claimant's petition filed on December 29, 1988 was 
 
            clearly within three years of the last payment of weekly 
 
            benefits.  Accordingly, the 85.26 defense fails.
 
            
 
                 Under Iowa Code section 85.23, no compensation will be 
 
            allowed unless the employer or its representative shall have 
 

 
            
 
            Page  12
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
            actual knowledge of the occurrence of an injury or be given 
 
            notice by claimant or someone on her behalf within 90 days 
 
            from the date of the occurrence of the injury.  Dr. Drown's 
 
            letter of December 9, 1986 furnished actual knowledge.  
 
            Accordingly, the 85.23 defense fails.
 
            
 
                 Claimant asserts entitlement to penalty under Iowa Code 
 
            section 86.13, unnumbered paragraph 4.  Under the statute, 
 
            if a delay in commencement of benefits occurs without 
 
            reasonable or probable cause or excuse, the industrial 
 
            commissioner shall award benefits up to 50 percent of the 
 
            amount unreasonably delayed.  The word "shall" indicates a 
 
            mandatory duty.  The check compensating claimant for her 
 
            temporary total disability during 1986 is dated January 12, 
 
            1987, a delay of nearly two months.  No reasonable cause or 
 
            excuse has been offered.  As shall be seen, defendants have 
 
            established a pattern of late payment of accrued benefits.  
 
            Accordingly, defendants shall be ordered to pay a penalty of 
 
            $167.55, a full 50 percent of the benefits unreasonably 
 
            delayed.
 
            
 
                 Come at last we must to the 1987 injury.  As shall be 
 
            seen, this also is a cumulative injury, not one resulting 
 
            from an identifiable specific trauma.  Under McKeever, the 
 
            date of injury is when claimant first left work.  Claimant 
 
            takes the position that this occurred on April 28, when she 
 
            apparently missed 1.8 hours to see Dr. Kellenberger.  
 
            However, claimant apparently worked at least three more days 
 
            (April 29 through May 1) before being off on leave of 
 
            absence commencing May 4, 1987.  It is held that the injury 
 
            occurred on May 4, 1987, when claimant missed five 
 
            consecutive days, her first substantial lost time.
 
            
 
                 The primary treating physician, Dr. Nelson, has opined 
 
            that claimant's condition was probably due to a cumulative 
 
            injury relating to her work.  Dr. Drown had previously 
 
            rendered a similar opinion.  The University of Iowa spine 
 
            team found impairment and recommended restrictions, although 
 
            not rendering an opinion as to whether the injury was work 
 
            related.
 
            
 
                 Only Dr. Wirtz has opined otherwise.  Dr. Wirtz saw 
 
            claimant only once as an evaluating physician, as compared 
 
            to the numerous times claimant was seen by Dr. Nelson for 
 
            treatment.  Dr. Wirtz's initial opinion appears internally 
 
            inconsistent in that he finds no impairment, but recommends 
 
            physical restrictions.  Then, without seeing claimant again, 
 
            he reversed even that opinion on the basis of testing 
 
            performed by a physical therapist which the therapist 
 
            himself thought invalid.  Dr. Wirtz's opinion is 
 
            unpersuasive.  Claimant has met her burden of proof in 
 
            establishing an injury arising out of and in the course of 
 
            her employment.  Even if claimant had a preexisting 
 
            condition (as apparently believed by Dr. Wirtz), it was 
 

 
            
 
            Page  13
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
            clearly aggravated and lighted up by the subject cumulative 
 
            work injury.
 
            
 
                 Pursuant to Iowa Code section 85.34(1), healing period 
 
            is payable beginning on the date of injury and continuing 
 
            until the employee has returned to work, it is medically 
 
            indicated that significant improvement from the injury is 
 
            not anticipated, or until the employee is medically capable 
 
            of returning to substantially similar employment, whichever 
 
            first occurs.  Healing period can be interrupted or 
 
            intermittent.  Willis v. Lehigh Portland Cement Co., Vol.  
 
            2-1, State of Iowa Industrial Commissioner Decisions 485 
 
            (1984).
 
            
 
                 Beginning at the end, it is held that claimant's 
 
            healing period ended May 25, 1988, when the treating 
 
            physician opined that claimant had reached maximum 
 
            recuperation.  Although Dr. Nelson had rendered a similar 
 
            opinion a month earlier, claimant had improved in the 
 
            interim, thus indicating that the first opinion was 
 
            premature.  Although claimant attempted to work on a number 
 
            of occasions during her interrupted healing period, each of 
 
            these attempts proved unsuccessful.  She never did return to 
 
            work on any permanent basis and it is clear that she will 
 
            for the foreseeable future be medically incapable of 
 
            returning to employment substantially similar to that in 
 
            which she was engaged at the time of injury (else why would 
 
            defendant discharge her).
 
            
 
                 Claimant's healing period was intermittent through May 
 
            25, 1988 because of her attempted returns to work.  In May 
 
            1987, claimant missed work on the 4th through 8th, 10th and 
 
            11th (seven days); in July, on the 21st through 24th and 
 
            27th through 31st (nine days).  In August, claimant worked 
 
            half-days on the 3rd through 6th, 10th, 11th and 13th (eight 
 
            half-days) and temporary total benefits on the 17th through 
 
            21st, 24th through 28th, and 31st (eleven days).  Except for 
 
            a very few days and parts of days, claimant was subsequently 
 
            off work from September 1, 1987 through May 25, 1988, the 
 
            end of her healing period.  This span totals 38 weeks, 2 
 
            days.  However, defendants shall be given dollar-for-dollar 
 
            credit for those scattered wages claimant earned during that 
 
            span.  Peterson v. Gary Olson Constr., file number 858921 
 
            (Arb. Decn., March 29, 1989).  Accordingly, claimant is 
 
            entitled to 42 weeks, 5 days of healing period benefits 
 
            counting the eight half-days.
 
            
 
                 Claimant has also sustained substantial industrial 
 
            disability.  She was age 35 at hearing and, although not 
 
            having a high school diploma, appears to be of an 
 
            intelligence very suitable for retraining.  Dr. Nelson 
 
            suggests that she should not work on an assembly line or any 
 
            type of job which requires her to constantly bend, twist, 
 
            pull, or lift.  She can probably lift 35-40 pounds 
 

 
            
 
            Page  14
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
            occasionally (according to the University of Iowa spine 
 
            team, about half of that frequently) and can stand or sit 
 
            for long periods of time.  Claimant is clearly foreclosed 
 
            from her work with Snap-On Tools and, due to the lifting 
 
            restrictions, presumably could not function as a nurse's 
 
            aide.  However, there appears no reason why she could not 
 
            act as a telephone solicitor or waitress, the other jobs she 
 
            has previously held.  Her ability to work long hours and to 
 
            manage and run her own tavern/restaurant show commendable 
 
            stamina and numerous transferrable skills.
 
            
 
                 Although both parties expended substantial energy 
 
            developing evidence as to the success or lack thereof of the 
 
            tavern business, this is of very limited relevance.  
 
            Numerous factors go into the level of success of a privately 
 
            operated business, including location, competition and the 
 
            "business head" of the proprietor, all factors that do not 
 
            directly relate to earning capacity as an employee.  It is 
 
            an apples and oranges comparison.  On the other hand, 
 
            defendants have failed to provide continued employment, 
 
            which in and of itself can justify an award of industrial 
 
            disability.  McSpadden v. Big Ben Coal Co., 288 N.W.2d 181 
 
            (Iowa 1980).  Similarly, vocational rehabilitation services 
 
            were precipitously withdrawn prior to the time claimant 
 
            entered into self-employment.
 
            
 
                 Considering then these factors in specific and the 
 
            record otherwise in general, it is held that claimant has 
 
            sustained an industrial disability equivalent to 35 percent 
 
            of the body as a whole.
 
            
 
                 Thirty-five percent of 500 weeks is 175 weeks.  
 
            Claimant has creatively argued that an individual's 
 
            projected life expectancy [as set forth in rule 343 IAC 
 
            6.3(1)] should be multiplied by the percentage of industrial 
 
            disability; if the product exceeds 500 weeks, the award 
 
            should be 500 weeks.  In innumerable cases, the industrial 
 
            commissioner has calculated permanent partial disability to 
 
            the body as a whole as a percentage of 500 weeks rather than 
 
            as a percentage of the anticipated balance of life 
 
            expectancy.  Precedent from the industrial commissioner is 
 
            binding in this office.  Any such precipitous change as 
 
            claimant suggests must be sought from a higher authority.
 
            
 
                 The parties stipulated to gross weekly earnings of 
 
            $427.80 with respect to the 1987 injury.  In their brief, 
 
            defendants have sought to renege on that stipulation.  This 
 
            is patently unfair and shall not be allowed.  Although the 
 
            actual injury date has been found to be May 4, 1987, the 
 
            record does not contain wage information between April 27 
 
            and that date.  Therefore, the stipulation of the parties 
 
            shall be adopted as establishing rate.  The Guide to Iowa 
 
            Workers' Compensation Claim Handling effective July 1, 1986 
 
            reflects that a married individual with those earnings and 
 

 
            
 
            Page  15
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
            entitlement to five exemptions has a compensation rate of 
 
            $273.47.
 
            
 
                 Defendants also assert affirmative defenses under 
 
            sections 85.23 and 85.26.  This action was clearly commenced 
 
            within two years of the date of injury and defendants' own 
 
            records reflect that it was promptly reported.  Both 
 
            defenses fail.
 
            
 
                 As set forth in the findings of fact, claimant shall 
 
            also be awarded $133.87 in unreimbursed mileage.  Defendants 
 
            have stipulated agreement to reimburse claimant for section 
 
            85.39 expenses.
 
            
 
                 Claimant also asserts entitlement to penalty benefits 
 
            under separate theories.  She alleges that unreasonable 
 
            delays occurred in processing weekly claims and further 
 
            alleges that defendants' failure to pay voluntary benefits 
 
            to the extent she believes appropriate was unreasonable.  
 
            The undersigned has now concluded that he committed error by 
 
            permitting evidence of settlement negotiations into the 
 
            record.  The proper standard should be the level of benefits 
 
            actually paid, rather than the level of benefits offered 
 
            during settlement negotiations.  Accordingly, all evidence 
 
            of settlement negotiations has been disregarded.
 
            
 
                 In determining entitlement to penalty benefits, the 
 
            appropriate standard is whether defendants' claim is fairly 
 
            debatable.  Where defendants assert a claim that is fairly 
 
            debatable, denial of payment is not unreasonable.  Stanley 
 
            v. Wilson Foods Corp., file number 753405 (App. Decn., 
 
            August 23, 1990).
 
            
 
                 With respect to the amount of benefits voluntarily 
 
            paid, defendants' position is fairly debatable.  Dr. Wirtz 
 
            opined (eventually) that claimant had no impairment or 
 
            restrictions.  Results of a Minnesota Multiphasic 
 
            Personality Inventory during claimant's treatment for an 
 
            unrelated matter reflect the view of psychologist Daniel 
 
            Davis that "exaggeration of symptoms is a possibility."  
 
            Accordingly, no penalty benefits shall be awarded with 
 
            respect to the degree of claimant's industrial disability.
 
            
 
                 However, it should not be inferred from this holding 
 
            that the opinion of an evaluating physician operates as a 
 
            fail-safe inoculation against a finding that denial of 
 
            liability is not fairly debatable.  It is commonly known in 
 
            the agency that certain Iowa physicians demonstrate 
 
            predilections in forming opinions that evidence a consistent 
 
            pattern over time, such that, in the idiom of the practicing 
 
            bar, such physicians might be referred to as "plaintiff's 
 
            doctors" or "defendants' doctors."  Indeed, it is not 
 
            entirely inconceivable that one physician in this very 
 
            action might, in a suitable case, be held to fall into one 
 
            of those categories.  Therefore, the precedential value of 
 
            this holding is limited.
 

 
            
 
            Page  16
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
                 A review of voluntary benefits paid shows that in some 
 
            cases there were delays in processing.  In other cases, 
 
            payments were prompt and, in 1988, often made before due (at 
 
            the beginning of a week in which it was anticipated that 
 
            claimant would be entitled to benefits).  On balance, 
 
            defendants' frequent delays in processing do not appear so 
 
            unreasonable as to justify an award of penalty benefits.
 
            
 
                 However, it does appear that interest has not been paid 
 
            on delayed benefits and on benefits paid at less than the 
 
            rate found herein.  Claimant correctly points out that 
 
            payments should be applied first to accrued interest up to 
 
            the date of payment, and then to principal amounts due.  
 
            Huner v. Doolittle, 3 Greene 76-77 (Iowa 1851).  The 
 
            parties shall be left to calculate interest due pursuant to 
 
            Iowa Code section 85.30.  If further intervention by this 
 
            agency is needed to resolve any dispute as to such 
 
            calculations, the parties are warned in advance of the 
 
            possibility that a certified public accountant might be 
 
            retained as an expert and the cost thereof assessed to one 
 
            or several parties as may seem just.
 
            
 
                 For purposes of determining the date upon which 
 
            payments were made, it is held that payments shall be deemed 
 
            "made" on the day deposited into the United States mail 
 
            addressed to claimant, or, if not so mailed, on the date 
 
            made available to claimant (not merely made available to 
 
            Snap-On Tools in the case of checks issued by Royal 
 
            Insurance Company).
 
            
 
                                      order
 
            
 
                 THEREFORE, IT IS ORDERED:
 
            
 
                 In file number 798628:
 
            
 
                 Claimant shall take nothing.
 
            
 
                 In file number 842007:
 
            
 
                 Defendants shall pay unto claimant one point two eight 
 
            six (1.286) weeks of temporary total disability benefits at 
 
            the rate of two hundred sixty and 58/100 dollars ($260.58) 
 
            per week commencing November 9, 1986 and totalling three 
 
            hundred thirty-five and 11/100 dollars ($335.11).
 
            
 
                 Defendants shall pay unto claimant penalty benefits of 
 
            one hundred sixty-seven and 55/100 dollars ($167.55).  
 
            Interest shall accrue on penalty benefits from the date of 
 
            this decision.
 
            
 
                 In file number 851960:
 
            
 
                 Defendants shall pay unto claimant forty-two point 
 
            seven one four (42.714) weeks of healing period benefits 
 
            beginning on May 4, 1987 and continuing intermittently as 
 

 
            
 
            Page  17
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
            set forth in the body of this decision at the rate of two 
 
            hundred seventy-three and 47/100 dollars ($273.47) per week 
 
            and totalling eleven thousand six hundred eighty-one and 
 
            00/100 dollars ($11,681.00).
 
            
 
                 Defendants shall pay unto claimant one hundred 
 
            seventy-five (175) weeks of permanent partial disability 
 
            benefits at the rate of two hundred seventy-three and 47/100 
 
            dollars ($273.47) per week commencing May 26, 1988 and 
 
            totalling forty-seven thousand eight hundred fifty-seven and 
 
            25/100 dollars ($47,857.25).
 
            
 
                 Defendants shall pay unreimbursed mileage expenses 
 
            totalling one hundred thirty-three and 87/100 dollars 
 
            ($133.87).
 
            
 
                 Defendants shall have credit for all weekly benefits 
 
            voluntarily paid prior to the filing date hereof, regardless 
 
            of how they are denominated.
 
            
 
                 All accrued weekly benefits shall be paid in a lump sum 
 
            together with statutory interest thereon pursuant to Iowa 
 
            Code section 85.30.
 
            
 
                 The costs of this action shall be assessed to 
 
            defendants pursuant to rule 343 IAC 4.33.
 
            
 
                 Defendants shall file claim activity reports as 
 
            requested by this agency pursuant to rule 343 IAC 3.1.
 
            
 
                 Signed and filed this ______ day of ____________, 1991.
 
            
 
                 
 
            
 
                 
 
                 
 
                                          ______________________________
 
                                          DAVID RASEY
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr. Mark S. Soldat
 
            Attorney at Law
 
            714 East State Street
 
            Algona, Iowa  50511
 
            
 
            Mr. Paul C. Thune
 
            Attorney at Law
 
            Suite 300, Fleming Building
 
            P.O. Box 9130
 
            Des Moines, Iowa  50306-9130
 
            
 
 
            
 
            
 
            
 
            
 
                      BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
            NANCY SIMONSON,       
 
                        
 
                 Claimant,   
 
                        
 
            vs.                              File No. 798628/842007
 
                                                      851960
 
            SNAP-ON TOOLS,   
 
                                                 R E M A N D
 
                 Employer,   
 
                                                D E C I S I O N
 
            and         
 
                        
 
            ROYAL INSURANCE COMPANY,   
 
                        
 
                 Insurance Carrier,    
 
                 Defendants.      
 
            ____________________________________________________________
 
            
 
                           STATEMENT OF THE CASE
 
            
 
            An appeal decision in this matter was filed October 31, 
 
            1991.  Judicial review was sought and ultimately the Iowa 
 
            Court of Appeals issued a decision.  Simonson v. Snap-On 
 
            Tools Corporation, No. 3-132/92-924, Iowa Court of Appeals 
 
            filed June 29, 1993.  The court of appeals decision states 
 
            in relevant parts:
 
            
 
            As to the August 3, 1987 to August 16, 1987 claim, Nancy has 
 
            been paid temporary partial disability benefits for August 3 
 
            through the fourteenth.  Respondents agree the case should 
 
            be remanded to the commissioner to determine the correct 
 
            amount of temporary partial disability under 85.33(4) for 
 
            the weekend days of August 15 and 16.  As to all other 
 
            claims on this issue, we affirm the commissioner.
 
               ....
 
               We affirm the decision of the commissioner in all 
 
            respects except we remand to the commissioner for the 
 
            limited purpose of determining partial disability under 
 
            85.33(4) for the weekend days of August 15 and 16, 1987.
 
            The findings of fact and conclusions of law given below will 
 
            be limited only to the issue on remand.
 
            
 
                                     ISSUE
 
            
 
            The sole issue on remand is the amount of temporary partial 
 
            disability for August 15 and 16, 1987.
 
            
 
                               FINDINGS OF FACT
 
            
 
            An office note of Brian W. Nelson, M.D., on July 21, 1987 
 
            noted that claimant should continue to work light duty, 
 
            claimant should be considered temporarily partially disabled 
 
            at that time, and claimant was working four hours per day at 
 
            Dr. Nelson's direction (Exhibit 8, page 2).  Claimant worked 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            from August 3rd through August 6th, 10th, 11th and 13th (Ex. 
 
            18, p. 52).  Dr. Nelson took claimant off work on August 17, 
 
            1987 (Ex. 8, p. 3).  August 15 and 16, 1987 was Saturday and 
 
            Sunday respectively.  Claimant was paid temporary partial 
 
            disability during the period August 2, 1987 through August 
 
            14, 1987.
 
            
 
                               CONCLUSIONS OF LAW
 
            
 
            Iowa Code section 85.33(3) and (4) provides in relevant 
 
            part:
 
            3.  If an employee is temporarily, partially disabled and 
 
            the employer for whom the employee was working at the time 
 
            of injury offers to the employee suitable work consistent 
 
            with the employee's disability the employee shall accept the 
 
            suitable work, and be compensated with temporary partial 
 
            benefits.  If the employee refuses to accept the suitable 
 
            work the employee shall not be compensated with temporary 
 
            partial, temporary total, or healing period benefits during 
 
            the period of the refusal.
 
            4.  If an employee is entitled to temporary partial benefits 
 
            under subsection 3 of this section, the employer for whom 
 
            the employee was working at the time of injury shall pay to 
 
            the employee weekly compensation benefits, as provided in 
 
            section 85.32, for and during the period of temporary 
 
            partial disability.
 
            Claimant was eligible for temporary partial disability 
 
            benefits for the time she worked in August 1987.  She was in 
 
            a temporary partial disability status until Dr. Nelson took 
 
            her off work on August 17, 1987.  The entitlement to 
 
            temporary partial disability status continued until August 
 
            17, 1987.  August 15 and 16, 1987 should be included in 
 
            calculating claimant's entitlement to temporary partial 
 
            disability benefits.  The prior appeal decision is modified 
 
            to include these two days as temporary partial disability.
 
            
 
                                      ORDER
 
            
 
            THEREFORE, it is ordered:
 
            That defendants pay claimant temporary partial disability 
 
            benefits for August 15 and 16, 1987.  
 
            That all other aspects of the appeal decision and the order 
 
            filed October 31, 1991 are applicable.
 
            Signed and filed this ____ day of April, 1994.
 
            
 
            
 
            
 
            
 
                                   ________________________________
 
                                           BYRON K. ORTON
 
                                      INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr. Mark S. Soldat
 
            Attorney at Law
 
            714 E. State St.
 
            Algona, Iowa 50511
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            
 
            Mr. Paul C. Thune
 
            Attorney at Law
 
            P.O. Box 9130
 
            Des Moines, Iowa 50306
 
            
 
            
 
 
            
 
 
 
 
 
 
 
                                                5-1801.1
 
                                                Filed April 21, 1994
 
                                                BYRON K. ORTON
 
            
 
                      BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
            NANCY SIMONSON,       
 
                        
 
                 Claimant,   
 
                        
 
            vs.                              File No. 798628/842007
 
                                                      851960
 
            SNAP-ON TOOLS,   
 
                                                  R E M A N D
 
                 Employer,   
 
                                                D E C I S I O N
 
            and         
 
                        
 
            ROYAL INSURANCE COMPANY,   
 
                        
 
                 Insurance Carrier,    
 
                 Defendants.      
 
            ____________________________________________________________
 
            
 
            5-1801.1
 
            On remand it was found that claimant was entitled to two 
 
            additional days of temporary partial disability benefits.  
 
            Her entitlement to temporary partial disability benefits 
 
            continued until doctor said she was unable to work.
 
            
 
 
         
 
         
 
         
 
         
 
         
 
         
 
                    BEFORE THE IOWA INDUSTRIAL COMMISSIONER         
 
         _________________________________________________________________
 
                                       :
 
         IN RE: JACK H. KOHLMEYER,     :
 
         a/k/a JACK KOHLMEYER, DEC.,   :
 
                                       :
 
              Claimant,                :
 
                                       :
 
         vs.                           :
 
                                       :      File No. 798651
 
         IOWA-ILLINOIS GAS & ELECTRIC, :
 
         SELF-INSURED,                 :
 
                                       :        A P P E A L
 
              Employer,                :
 
                                       :      D E C I S I O N
 
         and                           :
 
                                       :
 
         JEANNINE MCINTIRE, a/k/a      :
 
         JEANNINE KOHLMEYER, SUSAN     :
 
         KOHLMEYER, Guardian, LARRY L. :
 
         KOHLMEYER,                    :
 
                                       :
 
              Defendants.              :
 
         _________________________________________________________________
 
         Attorney, Thomas J. Currie, has appealed a decision by a deputy 
 
         industrial commissioner filed September 23, 1991.  The record in 
 
         this matter shows the following, pertinent chronological sequence 
 
         of events:
 
         
 
              July 16, 1990 - Attorney Currie attempted to file a notice 
 
              of attorney's lien.
 
         
 
              July 30, 1990 - This agency informed Attorney Currie that 
 
              the lien must be consented to by claimant and that if 
 
              claimant did not consent to the lien, Attorney Currie could 
 
              file a contested case to determine the appropriateness of 
 
              the attorney's fees.
 
         
 
              August 17, 1990 - Attorney Currie requested a contested case 
 
              proceeding because claimant would not consent to the lien.
 
         
 
              March 14, 1991 - Attorney Currie filed an affidavit in proof 
 
              of delivery in response to orders from this agency filed 
 
              January 15, 1991 and March 4, 1991.
 
         
 
              July 22, 1991 - The hearing assignment order was issued and 
 
              characterized this proceeding as an attorney fee dispute.
 
         Attorney, Currie submitted evidence in the form of an affidavit 
 
         and supplemental information as follows: 
 
         
 
              City National Bank loan principal
 
            paid by Tom Riley Law Firm           $2,500.00
 
         
 
              City National Bank loan interest
 
            paid by Tom Riley Law Firm              318.07
 
         
 
              Balance of expenses less payments
 

 
         
 
         Page   2
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
            received (including City
 
            National Bank loan proceeds)            131.37
 
         
 
         Total                                   $2,949.44
 
         
 
         (Exhibit A)
 
                                 FINDINGS OF FACT
 
         
 
         1.  Attorney Currie initiated a contested case proceeding.
 
         
 
         2.  The contested case proceeding in this matter is an attorney 
 
         fee dispute.
 
         
 
         3.  Attorney Currie claims reimbursement for alleged expenses in 
 
         the amount of $2,949.44.
 
         
 
         4.  It is impossible to tell what expenses Attorney Currie has 
 
         incurred.
 
         
 
                                 CONCLUSIONS OF LAW
 
 
 
         Iowa Code section 86.39 provides:
 
         
 
                 All fees or claims for legal, medical, hospital, and 
 
              burial services rendered under this chapter and 
 
              chapters 85, 85A, 85B, and 87 are subject to the 
 
              approval of the industrial commissioner, and no lien 
 
              for such service is enforceable without the approval of 
 
              the amount of the lien by the industrial commissioner.  
 
              For services rendered in the district court and 
 
              appellate courts, the attorney's fee is subject to the 
 
              approval of a judge of the district court.
 
         
 
         Attorney Currie who initiated this contested case proceeding has 
 
         the burden of proving entitlement to the relief sought.  Although 
 
         it is not entirely clear from the appeal brief of Attorney 
 
         Currie, it must be concluded that he seeks approval of certain 
 
         legal expenses.  The hearing assignment order in this matter 
 
         characterized this case as a case for attorney fee dispute.  
 
         Attorney Currie made no attempt to modify the hearing assignment 
 
         order.  He submitted no itemization supporting the alleged 
 
         expenses totalling $2,949.44.  The affidavit filed in this matter 
 
         sheds no light on what the expenses were but merely gives an 
 
         alleged total amount.  The affidavit unsupported by any 
 
         indication of what the alleged expenses were can be given little, 
 
         if any, weight.  See Iowa Code section 17A.14.  It is impossible 
 
         to approve the alleged expenses in the amount of $2,949.44.
 
         
 
         THEREFORE, it is ordered that:
 
         
 
         Attorney Currie's claim for legal services in the amount of two 
 
         thousand nine hundred forty-nine and 44/100 dollars ($2,949.44) 
 
         is denied.
 
         All costs of this proceeding are assessed to Attorney Currie.
 
         
 
         Signed and filed this ____ day of February, 1992.
 
         
 
         
 
         
 
         
 
                                     ________________________________
 
                                            BYRON K. ORTON
 
                                       INDUSTRIAL COMMISSIONER
 
         
 
         Copies To:
 
         
 

 
         
 
         Page   3
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
         Ms. Jeannine Kohlmeyer
 
         908 West Green
 
         Champaign, IL  61821
 
         (REGULAR & CERTIFIED MAIL)
 
         
 
         Mr. Thomas J. Currie
 
         Attorney at Law
 
         P.O. Box 998
 
         Cedar Rapids, Iowa 52406
 
         
 
         Mr. Steven C. Jayne
 
         Attorney at Law
 
         5835 Grand Ave., Ste 201
 
         Des Moines, Iowa 50312
 
         
 
         Mr. Tito W. Trevino
 
         Attorney at Law
 
         P.O. Box 1680
 
         Fort Dodge, Iowa 50501
 
         
 
         Mr. Ronald L. Mueller
 
         Attorney at Law
 
         P.O. Box 4350
 
         Davenport, Iowa 52808
 
         
 
         
 
 
            
 
            
 
            
 
            
 
            
 
                   BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                                          :
 
            IN RE: JACK H. KOHLMEYER,     :
 
            a/k/a JACK KOHLMEYER,         :
 
                                          :
 
                 Deceased,                :
 
                                          :
 
            IOWA-ILLINOIS GAS & ELECTRIC, :
 
                                          :      File No. 798651
 
                 Employer,                :
 
                 Self-Insured,            :        A P P E A L
 
                 Petitioner,              :
 
                                          :      D E C I S I O N
 
            vs.                           :
 
                                          :
 
            JEANNINE MCINTIRE, a/k/a,     :
 
            JEANNINE KOHLMEYER, SUSAN     :
 
            KOHLMEYER, GUARDIAN, LARRY L. :
 
            KOHLMEYER,.                   :
 
                                          :
 
                 Respondents.             :
 
            ___________________________________________________________
 
            
 
                 
 
            
 
                              STATEMENT OF THE CASE
 
            
 
                 Claimant appeals from a dependency decision finding 
 
            that she was not the common-law wife of Jack Kohlmeyer, 
 
            deceased.  The record on appeal consists of the transcript 
 
            of the dependency proceeding; Jeannine McIntire a/k/a 
 
            Jeannine Kohlmeyer's exhibits 1, 4,5, 7-14, 17-22, 24-89, 
 
            92-112; employer's exhibits 1 through 14; and Larry 
 
            Kohlmeyer and Susan Kohlmeyer's exhibits 1 through 51.
 
            
 
                                      ISSUES
 
            
 
                 Jeannine Kohlmeyer states the following issues on 
 
            appeal:
 
            
 
                 1.  That the Deputy Industrial Commissioner erred 
 
                 in giving "little weight" to the testimony of 
 
                 Jeannine Kohlmeyer.
 
            
 
                 2.  That the Deputy Industrial Commissioner erred 
 
                 in finding the testimony of James Burm 
 
                 "unreliable."
 
            
 
                 3.  That the Deputy Industrial Commissioner erred 
 
                 in failing to give substantial weight to the 
 
                 testimony of Russell Nading regarding joint 
 
                 tenancy.
 
            
 
                 4.  That the Deputy Industrial Commissioner erred 
 
                 in failing to give substantial weight to the 
 
                 testimony of Phillip Gunderson regarding providing 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
                 information to the newspaper for the obituary of 
 
                 Jack Kohlmeyer.
 
            
 
                 5.  That the Deputy Industrial Commissioner erred 
 
                 in failing to give weight to the testimony 
 
                 regarding "divorce" and custody of Eric.
 
            
 
                 6.  That the Deputy Industrial Commissioner erred 
 
                 in failing to consider the biases of certain 
 
                 witnesses in assessing their credibility.
 
            
 
                 7.  That the Deputy Industrial Commissioner erred 
 
                 in finding credible the testimony regarding 
 
                 introductions made at a Christmas party in 
 
                 December 1984.
 
            
 
                 8.  That the Deputy Industrial Commissioner erred 
 
                 in finding credible the testimony of Christopher 
 
                 Parker.
 
            
 
                 9.  That the Deputy Industrial Commissioner erred 
 
                 in finding that Jack Kohlmeyer made an 
 
                 "intentional misrepresentation" to Florence Hoover 
 
                 regarding his marital staonsideration the interest in the outcome of any witness.  
 
            The interest in the outcome of other witnesses in the case 
 
            was also appropriately considered.  The testimony of 
 
            Jeannine McIntire, a/k/a Jeannine Kohlmeyer, was considered 
 
            by the deputy and considered de novo on appeal and given 
 
            appropriate weight.
 
            
 
                 Claimant raises on appeal a request that she be found 
 
            to be a partial dependent of the deceased.  Claimant cannot 
 
            raise this request for the first time on appeal.  Chamberlin 
 
            v. Ralston Purina (Appeal Decision, October 29, 1987); 
 
            Marcks v. Richman Gordman, (Appeal Decision June 29, 1988).  
 
            In addition, even if claimant's request could be considered, 
 
            there is ample evidence in the record to show that claimant 
 
            at various times applied for public assistance and listed 
 
            herself as a single head of household, as well as other 
 
            indications that claimant did not consider herself to be a 
 
            dependent of the deceased.  Finally, the fact that the 
 
            deceased may have contributed to claimant financially in 
 
            some degree does not, by itself, establish dependency.
 
            
 
                 The analysis of the deputy is adopted herein in all 
 
            other respects.
 
            
 
                                 FINDINGS OF FACT
 
            
 
                 1.  Jack Kohlmeyer was married to Susan Kohlmeyer from 
 
            1972 until that marriage was terminated by divorce in 
 
            February 1983.
 
            
 
                 2.  Jack Kohlmeyer and Jeannine McIntire cohabited 
 
            continuously from approximately May of 1982 until Jack's 
 
            death on June 27, 1985.
 
            
 
                 3.  Although Jack and Jeannine cohabited, they did not 
 
            have a present intent or agreement to be married.  They 
 
            intended to cohabit without being married.
 
            
 
                 4.  Jack and Jeannine did not publically declare 
 
            themselves to be husband and wife.
 
            
 
                 5.  Jack and Jeannine's representation to Florence 
 
            Hoover of being married was an intentional misrepresentation 
 
            made for the sole purpose of inducing Hoover to rent an 
 
            apartment to Jack.
 
            
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
                 6.  The testimony from James Burm is unreliable.
 
            
 
                 7.  The testimony from Kathy Palzkile is unreliable.
 
            
 
                 8.  The testimony from Jeannine is given little weight 
 
            due to her interest in the outcome and to the conflicts 
 
            between her testimony and her actions.
 
            
 
                 9.  The testimony from the other witnesses is found to 
 
            be generally credible.
 
            
 
                 10. Jack and Jeannine did not own any real or personal 
 
            property in any form of joint or common ownership.
 
            
 
                 11. Jack and Jeannine consistently indicated that they 
 
            were unmarried whenever either of them executed any written 
 
            instrument of apparent importance.
 
            
 
                 12. Since Jack's death and at the time of hearing, 
 
            Jeannine has frequently used Kohlmeyer as her surname.  
 
            Prior to Jack's death, she consistently used McIntire as her 
 
            surname, except for one magazine subscription ordered 
 
            shortly prior to Jack's death.
 
            
 
                 13. Jack consistently represented Jeannine to be his 
 
            girlfriend or fiancee rather than his wife or spouse.
 
            
 
                 14. Jack issued checks to Jeannine McIntire on several 
 
            occasions, including the day he died, but he never issued a 
 
            check to her using the name of Jeannine Kohlmeyer.
 
            
 
                 15. Jack and Jeannine had separate mailboxes at Fairfax 
 
            and no joint or common mailbox.
 
            
 
                 16. Jack and Jeannine maintained separate bank accounts 
 
            and had no joint or common bank account.
 
            
 
                 17. Jack and Jeannine had no joint or common debts, 
 
            charge accounts or credit cards except for the loan for the 
 
            rings which were purchased on February 2, 1985.  In the 
 
            documents made as part of that transaction, Jack and 
 
            Jeannine represented that they were not husband and wife.
 
            
 
                 18. Neither Jack nor Jeannine had made any arrangements 
 
            to provide for the other in the event of one's death.  The 
 
            evidence includes no wills or joint property ownership.  
 
            None of Jack's life insurance was payable to Jeannine.  Jack 
 
            had discussed joint home ownership with Russell Nading, but 
 
            the plan as disclosed by Nading was that Jack would purchase 
 
            the property in his own name and then later place Jeannine's 
 
            name on it as a joint tenant.
 
            
 
                 19. The appearance and design of the ring displayed by 
 
            Jeannine at hearing is as consistent with the ring being an 
 
            engagement ring or a piece or ornamental jewelry as it is 
 
            with the ring being a wedding band.
 
            
 
                 20. Jack and Jeannine probably planned to marry after 
 
            Jeannine moved to Fort Dodge, but Jack died before the 
 
            marriage occurred.
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            
 
                                CONCLUSIONS OF LAW
 
            
 
                 This agency has jurisdiction of the subject matter of 
 
            this proceeding and its parties.
 
            
 
                 Jeannine McIntire has failed to prove by a 
 
            preponderance of the evidence that a common law marriage 
 
            existed between her and Jack Kohlmeyer at or prior to the 
 
            time of his death on June 27, 1985.
 
            
 
                 WHEREFORE, the decision of the deputy is affirmed.
 
            
 
                                      ORDER
 
            
 
                 THEREFORE, it is ordered:
 
            
 
                 That the employer, Iowa-Illinois Gas & Electric, pay 
 
            weekly compensation in the amount of three hundred forty-six 
 
            and 34/100 dollars ($346.34) to Susan Kohlmeyer, guardian 
 
            for Misty and Christopher Kohlmeyer, Jack's children and 
 
            only dependents.
 
            
 
                 Signed and filed this ____ day of February, 1990.
 
            
 
                 
 
            
 
                 
 
            
 
                 
 
                                          ______________________________
 
                                                 DAVID E. LINQUIST
 
                                              INDUSTRIAL COMMISSIONER
 
            
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            
 
            Copies to:
 
            
 
            Mr. Tito Trevino
 
            Attorney at Law
 
            503 Snell Building
 
            P.O. Box 1680
 
            Fort Dodge, Iowa 50501
 
            
 
            Mr. Ronald J. Mueller
 
            Attorney at Law
 
            206 East Second Street
 
            P.O. Box 4350
 
            Davenport, Iowa 52808
 
            
 
            Mr. Thomas J. Currie
 
            Attorney at Law
 
            3401 Williams Blvd. SW
 
            P.O. Box 998
 
            Cedar Rapids, Iowa 52406-0998
 
            
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
            1000
 
            Filed February 24, 1992
 
            Byron K. Orton
 
            PJL
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
            _____
 
                                          :
 
            IN RE: JACK H. KOHLMEYER,     :
 
            a/k/a JACK KOHLMEYER, DEC.,   :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :      File No. 798651
 
            IOWA-ILLINOIS GAS & ELECTRIC, :
 
            SELF-INSURED,                 :
 
                                          :        A P P E A L
 
                 Employer,                :
 
                                          :      D E C I S I O N
 
            and                           :
 
                                          :
 
            JEANNINE MCINTIRE, a/k/a      :
 
            JEANNINE KOHLMEYER, SUSAN     :
 
            KOHLMEYER, Guardian, LARRY L. :
 
            KOHLMEYER,                    :
 
                                          :
 
                 Defendants.              :
 
            ____________________________________________________________
 
            _____
 
            
 
            1000
 
            Attorney's request for approval of expenses was denied 
 
            because attorney failed to submit evidence indicating what 
 
            expenses had been incurred.  It was held that attorney who 
 
            initiated the contested case proceeding which was determined 
 
            to be an attorney fee dispute had the burden of proving 
 
            entitlement to reimbursement.  A mere submission of a 
 
            particular dollar amount did not meet the burden of proof.
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                          1901, 2904
 
                                          Filed February 22, 1990
 
                                          DAVID E. LINQUIST
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            IN RE: JACK H. KOHLMEYER,     :
 
            a/k/a JACK KOHLMEYER,         :
 
                                          :
 
                 Deceased,                :
 
                                          :
 
            IOWA-ILLINOIS GAS & ELECTRIC, :
 
                                          :      File No. 798651
 
                 Employer,                :
 
                 Self-Insured,            :        A P P E A L
 
                 Petitioner,              :
 
                                          :      D E C I S I O N
 
            vs.                           :
 
                                          :
 
            JEANNINE MCINTIRE, a/k/a,     :
 
            JEANNINE KOHLMEYER, SUSAN     :
 
            KOHLMEYER, GUARDIAN, LARRY L. :
 
            KOHLMEYER,.                   :
 
                                          :
 
                 Respondents.             :
 
            ___________________________________________________________
 
            
 
            1901
 
            Affirmed deputy's determination that claimant was not 
 
            married by common-law to deceased worker.  Deceased and 
 
            claimant, although living together part of the time, 
 
            maintained separate post office boxes, separate bank 
 
            accounts, filed separate tax returns, etc.  Claimant used 
 
            her own last name until decedent's death, then started using 
 
            his last name.
 
            
 
            2904
 
            On appeal, claimant maintained, for the first time, that if 
 
            she was not the common-law wife of decedent she was at least 
 
            a dependent.  Ruling on this issue declined as being raised 
 
            for the first time on appeal.
 
            
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
                      :
 
            IN RE: JACK H. KOHLMEYER,     :
 
            a/k/a JACK KOHLMEYER, DEC.,   :
 
                      :
 
                 Claimant, :      File No. 798651
 
                      :
 
            vs.       :      D E C I S I O N
 
                      :
 
            IOWA-ILLINOIS GAS & ELECTRIC, :           O N
 
            SELF-INSURED,  :
 
                      :      A T T O R N E Y
 
                 Employer, :
 
                      :         F E E
 
            and       :
 
                      :       D I S P U T E
 
            JEANNINE MCINTIRE, a/k/a :
 
            JEANNINE KOHLMEYER, SUSAN     :
 
            KOHLMEYER, Guardian, LARRY L. :
 
            KOHLMEYER,     :
 
                      :
 
                 Defendants.    :
 
            ___________________________________________________________
 
            
 
            Attorney Thomas J. Currie has filed a request for an 
 
            attorney's lien with respect to costs advanced to Jeannine 
 
            McIntire.
 
            A hearing was scheduled for August 28, 1991, at Des Moines, 
 
            Iowa.  Neither party appeared, although Attorney Currie 
 
            submitted evidence in the form of an affidavit and 
 
            supplemental information, as follows:
 
            City National Bank loan principal
 
               paid by Tom Riley Law Firm           $2,500.00
 
            City National Bank loan interest
 
               paid by Tom Riley Law Firm              318.07
 
            Balance of expenses less payments
 
               received (including City
 
               National Bank loan proceeds)            131.37
 
            Total                                   $2,949.44
 
            
 
            (Exhibit A)
 
            Iowa Code section 85.39 addresses liens in a workers' 
 
            compensation case:
 
               All fees or claims for legal, medical, hospital, and 
 
            burial services rendered under this chapter and chapters 85, 
 
            85A, 85B, and 87 are subject to the approval of the 
 
            industrial commissioner, and no lien for such service is 
 
            enforceable without the approval of the amount of the lien 
 
            by the industrial commissioner.  For services rendered in 
 
            the district court and appellate courts, the attorney's fee 
 
            is subject to the approval of a judge of the district court.
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            The administrative rules address appropriate costs:
 
               Costs taxed by the industrial commissioner or a deputy 
 
            commissioner shall be (1) attendance of a certified 
 
            shorthand reporter or presence of mechanical means at 
 
            hearings and evidential depositions, (2) transcription costs 
 
            when appropriate, (3) costs of service of the original 
 
            notice and subpoenas, (4) witness fees and expenses as 
 
            provided by Iowa Code sections 622.69 and 622.72, (5) the 
 
            costs of doctors' and practitioners' deposition testimony, 
 
            provided that said costs do not exceed the amounts provided 
 
            by Iowa Code sections 622.69 and 622.72, (6) the reasonable 
 
            costs of obtaining no more than two doctors'' or 
 
            practitioners' reports, (7) filing fees when appropriate.  
 
            Costs of service of notice and subpoenas shall be paid 
 
            initially to the serving person or agency by the party 
 
            utilizing the service.  Expenses and fees of witnesses or of 
 
            obtaining doctors' or practitioners' reports initially shall 
 
            be paid to the witnesses, doctors or practitioners by the 
 
            party on whose behalf the witness is called or by whom the 
 
            report is requested.  Witness fees shall be paid in 
 
            accordance with Iowa Code section 622.74.  Proof of payment 
 
            of any costs shall be filed with the industrial commissioner 
 
            before it is taxed.  The party initially paying the expense 
 
            shall be reimbursed by the party taxed with the costs.  If 
 
            the expense is unpaid, it shall be paid by the party taxed 
 
            with the cost.  Costs are to be assessed at the discretion 
 
            of the deputy commissioner or industrial commissioner 
 
            hearing the case unless otherwise required by the rules of 
 
            civil procedure governing discovery.
 
            
 
            (See, rule 343 IAC 4.33).
 
            The undersigned finds that Attorney Currie has not provided 
 
            a sufficiently detailed accounting of the costs incurred 
 
            while pursuing the workers' compensation claim of Jeannine 
 
            McIntire.  As a result, Attorney Currie's lien is denied.
 
            
 
                 Signed and filed this ____ day of September, 1991.
 
            
 
            
 
            
 
            
 
                                          
 
            ________________________________
 
                                          PATRICIA J. LANTZ
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Ms Jeannine Kohlmeyer
 
            908 West Green
 
            Champaign IL 61821
 
            (REGULAR & CERTIFIED MAIL)
 
            
 
            Mr Thomas J Currie
 
            Attorney at Law
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            3401 Williams Blvd SW
 
            PO Box 998
 
            Cedar Rapids Iowa 52406
 
            
 
            Mr Steven C Jayne
 
            Attorney at Law
 
            5835 Grand Ave., Ste 201
 
            Des Moines Iowa 50312
 
            
 
            Mr Tito W Trevino
 
            Attorney at Law
 
            801 Carver Building
 
            PO Box 1680
 
            Ft Dodge Iowa 50501
 
            
 
            Mr Ronald L Mueller
 
            Attorney at Law
 
            206 E Second Street
 
            PO Box 4350
 
            Davenport Iowa 52808
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                      5-1000
 
                      Filed September 23, 1991
 
                      PATRICIA J. LANTZ
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
                      :
 
            IN RE:  JACK H. KOHLMEYER,    :
 
            a/k/a JACK KOHLMEYER, DEC.,   :
 
                      :
 
                 Claimant, :       File No. 798651
 
                      :
 
            vs.       :       D E C I S I O N
 
                      :
 
            IOWA-ILLINOIS GAS & ELECTRIC, :             O N
 
            SELF-INSURED,  :
 
                      :       A T T O R N E Y
 
                 Employer, :
 
                      :           F E E
 
            and       :
 
                      :        D I S P U T E
 
            JEANNINE MCINTIRE, a/k/a :
 
            JEANNINE KOHLMEYER, SUSAN     :
 
            KOHLMEYER, Guardian, LARRY L. :
 
            KOHLMEYER,     :
 
                      :
 
                 Defendants.    :
 
            ___________________________________________________________
 
            
 
            5-1000
 
            Claimant's attorney failed to show that expenses incurred 
 
            were related to pursuit of workers' compensation claim.
 
            
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            RICHARD L. MORRISON,          :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :       File No. 798794
 
            UNIVERSITY OF IOWA,           :
 
                                          :    A R B I T R A T I O N
 
                 Employer,                :
 
                                          :       D E C I S I O N
 
            and                           :
 
                                          :
 
            STATE OF IOWA,                :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
                                   introduction
 
            
 
                 This is a proceeding in arbitration brought by Richard 
 
            Morrison, claimant, against the University of Iowa, 
 
            employer, and the State of Iowa, insurance carrier, for 
 
            benefits as a result of an alleged injury which occurred on 
 
            May 30, 1985.  A hearing was held in Cedar Rapids, Iowa, on 
 
            May 25, 1989 and the case was fully submitted at the close 
 
            of the hearing.  Claimant was represented by Thomas J. 
 
            Currie; defendants were represented by Shirley Ann Steffe.  
 
            The record consists of the testimony of Richard L. Morrison, 
 
            claimant, Virginia M. Scheetz, house manager; Terrance L. 
 
            Ruff, painter and co-employee; claimant's exhibits A through 
 
            G and J through L; defendants' exhibit 1, consisting of 
 
            pages 1 through 97.  The parties made several objections to 
 
            each other's evidence.  The result of these objections are 
 
            as follows:  (1) claimant withdrew claimant's exhibits H and 
 
            I and they are not a part of the record;  (2) pages 9 and 10 
 
            of claimant's exhibit E were excluded from evidence because 
 
            they admittedly were not timely served but these two pages 
 
            do remain with the record;  (3) pages 1 through 9 of 
 
            claimant's exhibit G, claimant's 1980 income tax return 
 
            information, were excluded for the reason that they were 
 
            admittedly not timely served but these pages do remain with 
 
            the record.  The excluded exhibit pages were not examined 
 
            and were not considered in the determination of the issues 
 
            in this case.  All other objections were either withdrawn or 
 
            the exhibits were admitted over the objection of the 
 
            opposing party.  With the prehearing report claimant 
 
            submitted:  (1) claimant's contentions on disputed issues;  
 
            (2) claimant's disputed medical expenses;  (3) claimant's 
 
            objections to defendants' exhibits;             (4) 
 
            claimant's requested taxation of costs.  Defendants 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            submitted:  (1) defendants' description of disputes;  (2) 
 
            defendants' objections to claimant's exhibits;  (3) 
 
            defendants' requested taxation of costs.  The deputy ordered 
 
            a transcript of the hearing.  Both attorneys submitted good 
 
            post hearing briefs.
 
            
 
                               preliminary matters
 
            
 
                 Defendants asserted the affirmative defenses of:  (1) 
 
            notice under Iowa Code section 85.23, and (2) untimely claim 
 
            under Iowa Code section 85.26 as to any claim for 
 
            psychological injury made by claimant.  Defendants' attorney 
 
            pointed out her amended answer filed on July 19, 1988 
 
            asserted these defenses.  Claimant objected to defendants 
 
            asserting these two affirmative defenses because they were 
 
            not raised at the prehearing conference and designated as 
 
            hearing issues on the hearing assignment order.  Claimant's 
 
            objection was sustained and this decision will not address 
 
            these two issues.  Industrial Commissioner Robert E. Landess 
 
            pointed out in the case of Presswood v. Iowa Beef 
 
            Processors, Inc., file number 732442 (Appeal Decision 
 
            November 14, 1986) that limitations issues are affirmative 
 
            defenses.  As such, they must not only be pleaded in the 
 
            answer but are also subject to pretrial procedures.  If a 
 
            defendant amends its answer but fails to raise limitations 
 
            issues at the prehearing conference, then these issues are 
 
            waived at the arbitration hearing.  As a result of the 
 
            Presswood decision, the policy of the agency is that 
 
            deputies determine only issues which are raised at the 
 
            prehearing conference and which are designated as hearing 
 
            issues on the hearing assignment order.  (Transcript Pages 
 
            11-15).
 
            
 
                 Defendants objected to claimant asserting the issue of 
 
            whether claimant is an odd-lot employee as shown on 
 
            claimant's written prehearing report contentions on disputed 
 
            issues because this issue was not designated as a hearing 
 
            issue on the hearing assignment order.  Claimant agreed that 
 
            defendants' objection was correct and agreed that odd-lot 
 
            was not to be an issue decided by this hearing.  (Tr. PP. 30 
 
            & 31).
 
            
 
                                      issues
 
            
 
                 The parties submitted the following issues for 
 
            determination at the time of the hearing.
 
            
 
                 Whether claimant sustained an injury on May 30, 1985 
 
            which arose out of and in the course of employment with 
 
            employer.
 
            
 
                 Whether the alleged injury was the cause of either 
 
            temporary or permanent disability.
 
            
 
                 Whether claimant is entitled to temporary or permanent 
 
            disability benefits and if so, the extent of benefits to 
 
            which he is entitled.
 
            
 
                 What is the proper rate of compensation.
 
            
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
                 Whether claimant is entitled to medical expenses.
 
            
 
                 Whether claimant is entitled to penalty benefits under 
 
            Iowa Code section 86.13.
 
            
 
                 Whether defendants are entitled to a credit under Iowa 
 
            Code section 85.38(2) for employee non-occupational group 
 
            health plan benefits paid to claimant prior to hearing.
 
            
 
                 Whether defendants are entitled to a credit for 7 days 
 
            of workers' compensation benefits paid to claimant prior to 
 
            hearing in the amount $209.44 because this payment was 
 
            erroneously paid and therefore amounts to an overpayment of 
 
            claimant.
 
            
 
                                 findings of fact
 
            
 
                                      injury
 
            
 
                 It is determined that claimant did sustain an injury on 
 
            May 30, 1985 which arose out of and in the course of his 
 
            employment with employer.
 
            
 
                 Claimant was employed as a painter for employer.  He 
 
            testified that he injured his back on Thursday, May 30, 
 
            1985.  After descending a stepladder claimant stepped on a 
 
            telephone that was covered up by the dropcloth and he fell 
 
            and landed on the floor half on his side and half on his 
 
            back in a twisted position.  (Tr. PP. 60-63)  A short time 
 
            later, Terry Ruff, another painter, came by to go on break 
 
            with claimant.  Claimant told Ruff that he had slipped and 
 
            twisted his back.  (Tr. PP. 65-66)  Ruff testified that he 
 
            found claimant laying on the floor.  The witness said that 
 
            claimant told Ruff that he had come off the ladder, stepped 
 
            on a telephone and twisted his back.  Ruff testified that he 
 
            advised claimant to fill out an accident report.  (Tr. PP. 
 
            134-135)  Virginia Scheetz, a house manager at the 
 
            university, testified that she did not witness the accident 
 
            but claimant told her that he stepped off a ladder onto a 
 
            telephone and was injured.  (Tr. PP. 125-133)  Claimant 
 
            testified that when he got composed he cleaned up the mess 
 
            and went home at the end of the work day.  (Tr. PP. 66-67)
 
            
 
                 On the following day, Friday, May 31, 1985 claimant 
 
            related that he was so stiff he could hardly move.  He 
 
            called his assistant supervisor that he slipped, fell off 
 
            the ladder, and twisted his back and that he was going to 
 
            take the day off.  (Tr. PP. 67-68)  When the supervisor 
 
            asked claimant why he did not report it when it occurred, 
 
            claimant replied that he figured he might be feeling well on 
 
            the following day.  (Tr. P. 69)  
 
            
 
                 Claimant did not account for what he did on Saturday, 
 
            June 1st and Sunday, June 2nd but stated that he reported to 
 
            staff screening for medical treatment on Monday, June 3, 
 
            1985.  Claimant testified that the medical examiner 
 
            instructed him to go home for a week.  (Tr. P. 70)  Claimant 
 
            testified that he returned to work on Friday, June 7, 1985 
 
            and worked until July 2, 1985.  (Tr. PP. 98-101)
 
            
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
                 Claimant signed an accident report which described that 
 
            on May 30, 1985 he stepped off a ladder onto a telephone 
 
            causing a twisted back and pulled muscles.  Terry Ruff was 
 
            shown as a witness.  The lower portion of this form was 
 
            completed by David Askelson, PAC, physician assistant, at 
 
            the University of Iowa Hospitals and Clinics on June 3, 
 
            1985.  On the clinical resume Askelson wrote, "Pt noted he 
 
            accidently stepped on a phone while dismounting a ladder on 
 
            30 May 85 and developed low back pain and stayed home on 31 
 
            May 85."  He diagnosed low back pain.  (Claimant's Exhibit 
 
            A, P. 66; Defendants' Ex. 1, P. 64).  
 
            
 
                 Wherefore, it is determined that claimant sustained an 
 
            injury of low back pain on Thursday, May 30, 1985 which 
 
            arose out and in the course of his employment with employer.
 
            
 
             causal connection/entitlement/disability/medical expense
 
            
 
                 Claimant did not sustain the burden of proof by a 
 
            preponderance of the evidence that the injury of May 30, 
 
            1985 was the cause of temporary disability, permanent 
 
            disability or his medical expenses.
 
            
 
                 Physicians Assistant Askelson continued his report by 
 
            stating,  "He had improved and was up over the weekend and 
 
            stepped on a toy car & twisted his back & felt pins & 
 
            needles in both legs & feet.  This resolved with floor rest, 
 
            but back pain has persisted."  (Cl. Ex. A, P. 66)
 
            
 
                 Claimant admitted in his testimony that he did improve 
 
            over the weekend.  (Tr. P. 99)  Claimant adamantly denied 
 
            that he stepped on a toy car and twisted his back again.  
 
            (Tr. P. 100)  Claimant testified, "I don't remember ever, 
 
            ever stepped on a toy -- I don't know where this information 
 
            come from.  I've never stepped on a toy car, to my 
 
            knowledge."  (Tr. P. 101)
 
            
 
                 An x-ray taken on June 3, 1985, disclosed mild anterior 
 
            slipping of the body of L4 on L3, and also L5 on L4 
 
            consistent with spondylolisthesis at these two levels.  The 
 
            radiologist commented that these findings are not 
 
            significantly changed from May 10, 1983.  (Cl. Ex. A, P. 65, 
 
            Def. Ex. 1, P. 65)  Claimant had previously injured his back 
 
            coincidentally on the Wednesday before Memorial weekend in 
 
            May of 1983.  At that time he was getting down off a ladder 
 
            and fell backwards and caught himself.  By the end of the 
 
            day he had low back pain.  He was treated on June 13, 1983 
 
            and June 17, 1983.  R. A. Brand, M.D., diagnosed low back 
 
            pain, etiology uncertain.  (Def. Ex. 1, P. 56)  On July 22, 
 
            1983 Dr. Brand noted that claimant had multiple positive 
 
            answers on his general health surveys and life events 
 
            checklist.  He diagnosed low back pain of undetermined 
 
            etiology.  (Cl. Ex. A, P. 27; Def. Ex. 1, P. 59)  This 
 
            injury was eventually treated as work-related on August 22, 
 
            1983.  (Cl. Ex. A, P. 30; Def. Ex. 1, P. 62)  The x-ray 
 
            examination of claimant on May 10, 1983 showed:  (1) 
 
            Incomplete ossification of the posterior neural arch of L5; 
 
            (2) Anterior slipping of L4 on L3 with a similar degree of 
 
            anterior slipping of L5 on L4 consistent with mild 
 
            spondylolisthesis.  (Def. Ex. 1, P. 53)
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            
 
                 Claimant returned to staff screening again on July 2, 
 
            1985 with pain and tingling in his feet after sneezing 
 
            yesterday which made his back pain worse.  Examination 
 
            disclosed pain on L4-5.  His straight leg raising test was 
 
            positive at 30 degrees bilaterally.  He was diagnosed with 
 
            recurrent low back pain with spondylolisthesis.  Physician 
 
            Assistant Askelson referred claimant to the orthopedic 
 
            clinic with an appointment on July 8, 1985.  (Cl. Ex. A, P. 
 
            68; Def. Ex. 1, P. 67)
 
            
 
                 At the orthopedic clinic, a physician, whose signature 
 
            is not discernable, working with Reginald Cooper, M.D., 
 
            assessed low back pain of unclear etiology, probably related 
 
            to spondylytic spondylolysthesis and instability.  He found 
 
            no evidence of disc protrusion.  (Cl. A, PP. 69 & 70; Def. 
 
            Ex. 1, P. 68)  This same physician completed a surgeon's 
 
            report on July 8, 1985.  At item 6 he gave this description 
 
            of the injury -- low back pain with muscular spasm.  Exam 
 
            and x-ray show vertebral malalignment and spondylolytic 
 
            spondylolysthesis.  Probable instability of lumbar spine.  
 
            In item 8, he said that the injury was not the only cause of 
 
            claimant's condition.  He showed as contributing causes 
 
            chronic repetitive sprain to lower back, decreased muscle 
 
            tone, previous strain.  (Cl. Ex. 8, P. 71; Def. Ex. 1, P. 
 
            69)
 
            
 
                 Also on July 8, 1985, Dr. Cooper and Dr. McClain (full 
 
            name unknown) at the university clinic recorded:  "Mr. 
 
            Morrison is a gentlemen who presents for evaluation of low 
 
            back pain.  He gives a history of several years of moderate 
 
            low back pain of a recurrent episodic nature.  He states 
 
            that he has never had neurologic symptoms in the past."  
 
            (Cl. Ex. A, P. 67; Def. Ex. 1, P. 70)  Claimant gave the 
 
            history of falling off the ladder but did not give the 
 
            history of stepping on the toy.  X-rays disclosed a L2-L3 
 
            retrolysthesis and L4-L5 grade I sponylolysthesis.  This 
 
            impression was recorded:  "The patient with back pain of 
 
            unclear etiology probably due to a mechanical instability 
 
            problem.  There is also a probable spondylolytic lesion at 
 
            the L5 level."  (Cl. Ex. A, P. 67; Def. Ex. 1, P. 70)
 
            
 
                 Claimant saw Dr. Lehmann and Dr. Adams, full names 
 
            unknown, at the university clinic on October 10, 1985.  The 
 
            history records low back pain since a fall from a ladder, 
 
            but does not mention stepping on a toy car and twisting his 
 
            back and feeling pins and needles in both legs and feet as 
 
            reported by Physician Assistant Askelson when claimant first 
 
            sought medical care on June 3, 1985.  These doctors 
 
            diagnosed a retrolisthesis L4-5, questionable 
 
            sponylolysthesis L5-S1.  (Cl. Ex. A, P. 82; Def. Ex. 1, P. 
 
            76)  A return to work slip without restrictions was issued 
 
            by Dr. Adams on that date.  (Def. Ex. 1, P. 79)
 
            
 
                 On February 4, 1986, James N. Weinstein, D.O., gave an 
 
            estimated impairment rating of 12 percent but did not give 
 
            the cause of this impairment.  (Cl. Ex. A, P. 82; Def. Ex. 
 
            1, P. 80)
 
            
 
                 Claimant saw Dr. Weinstein again on June 12, 1987 after 
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            he stepped in a hole and twisted his low back.  Dr. 
 
            Weinstein stated he has definite abnormalities on x-rays, 
 
            namely retrolisthesis of L4-5 and spondylolisthesis at L5-S1 
 
            which may be causing his back pain.  Dr. Weinstein added 
 
            that the patient has a number of complicating factors 
 
            including depression, litigation and apparently chronic pain 
 
            behavior.  He said he could return as needed but there was 
 
            nothing else that he could do for him until he gets other 
 
            problems straightened out including litigation.  (Cl. Ex. A, 
 
            PP. 105-106; Def. Ex. 1, PP. 83-84)
 
            
 
                 On September 2, 1987, Dr. Weinstein wrote that the 
 
            combination of these factors makes it difficult to tell 
 
            exactly what is causing Mr. Morrison's pain.  (Cl. Ex. A., 
 
            P. 113; Def. Ex. 1, P. 85)
 
            
 
                 On September 19, 1988, Reginold R. Cooper, M.D., wrote 
 
            to claimant's counsel that he saw claimant on July 8, 1985 
 
            with a history of low back pain of several years.  Dr. 
 
            Cooper thought he probably had a mechanical instability and 
 
            probably a spondylitic lesion.  He said claimant was 
 
            referred to Dr. Weinstein.  (Cl. Ex. A, P. 123; Def. Ex. 1, 
 
            P. 86)
 
            
 
                 A functional capacity assessment was made at the 
 
            University of Iowa physical therapy department on September 
 
            21 and 22, 1988.  Dr. Glaser (full name unknown) commented 
 
            that claimant was an overweight person who was well known at 
 
            the clinic.  Dr. Glaser assessed a ten percent impairment 
 
            rating of the entire body but did not specifically state 
 
            what was the cause of the impairment.  Dr. Glaser did 
 
            comment that he discussed claimant's activity level, that he 
 
            should continue exercises, make attempts to lose weight and 
 
            they discussed that the retrolisthesis may be the source of 
 
            his back pain but should not stop him from all attempts to 
 
            increase his activity and his fitness level.  (Cl. Ex. A, P. 
 
            124-129; Def. Ex. 1, P. 87 & 89-1, 92-95)  The physical 
 
            capacities' exam showed that claimant was 70 1/2 inches tall 
 
            and weighed 221 pounds.
 
            
 
                 The medical records also show that on March 23, 1987 
 
            claimant reported to the hospital emergency room for back 
 
            pain after sitting at a country western concert.  (Def. Ex. 
 
            1, P. 90)  Claimant was examined by Gary P. Hayes, M.D., a 
 
            family practice physician for a social security disability 
 
            application.  The disability diagnosis was spondlyolisthesis 
 
            with incidental plain film disc space narrowing, and also 
 
            reactive depression.  Dr. Hayes did not make a specific 
 
            statement about the cause of these two aliments.  (Cl. Ex. 
 
            B, PP. 1-3)
 
            
 
                 As defendants' counsel pointed out in her brief, no 
 
            physician has causally related claimant's back problems to 
 
            the work incident of May 30, 1985.  Nor did any physician 
 
            state that claimant's medical treatment was caused by the 
 
            fall from the ladder on May 30, 1985.  Therefore, since (1) 
 
            claimant is overweight; (2) claimant has suffered from back 
 
            complaints for many years some of which were prior to this 
 
            injury; (3) since the only definitive objective finding was 
 
            retrolisthesis and spondylolisthesis which are usually 
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
            congenital or developmental back problems; (4) claimant's 
 
            answers to the general health survey and life events 
 
            checklist indicated a predisposition for low back pain; (5) 
 
            that physicians assistant Askelson said that claimant's fall 
 
            from the ladder was improved and then after that he slipped 
 
            on the toy and felt pins and needles in both legs and feet, 
 
            then claimant should clearly show some evidence from a 
 
            physician that his medical treatment and his disability was 
 
            caused from the fall from the ladder at work on May 30, 
 
            1985.  Claimant has failed to produce even one specific 
 
            statement from one physician out of several physicians who 
 
            have examined him that his medical treatment or disability 
 
            was caused by this injury.  When so many different causes 
 
            were possible claimant should have produced some medical 
 
            evidence that the injury of May 30, 1985 was the cause of 
 
            his medical treatment and disability.  Therefore, claimant 
 
            did not sustain the burden of proof by a preponderance of 
 
            evidence that the fall of May 30, 1985 was the cause of any 
 
            of his medical treatment or any of his disability.
 
            
 
                 Claimant also asserted a psychological injury.  The 
 
            evidence shows that claimant has been treated extensively by 
 
            the psychiatry department of the University of Iowa 
 
            Hospitals and Clinics for several years both before and 
 
            after this injury for a generalized anxiety disorder.  There 
 
            is evidence of extensive treatment prior to this injury for 
 
            anxiety.  ( Def. Ex. 1, PP. 1-18)  Claimant continued to 
 
            receive extensive treatment after this injury.  (Def. Ex. 1, 
 
            P. 18-50)  Defendants' counsel stated in her brief that no 
 
            physician has causally related claimant's psychological 
 
            problems to this particular May 30, 1985 work incident.  
 
            Defendants' counsel is correct.  There is no statement from 
 
            any physician that the injury of May 30, 1985 caused 
 
            claimant's psychological problems.
 
            
 
                 As defendants' counsel pointed out, without a specific 
 
            statement on causal connection it is just as easy to view 
 
            claimant's back problems were caused by any one of a number 
 
            of other injuries he sustained which are in evidence such as 
 
            stepping on a toy, falling in a hole, falling off a car 
 
            bumper, slipping down a bank while mowing a yard, sitting at 
 
            a country western concert or from children jumping on his 
 
            back causing pain.  Likewise it would be as easy to say that 
 
            his psychiatric care was due to a variety of unfortunate 
 
            social and environmental stressors related in those reports.
 
            
 
                 Claimant did not sustain the burden of proof by a 
 
            preponderance of the evidence that the fall incident from 
 
            the ladder on May 30, 1985 was the cause of: (1) his medical 
 
            treatment of any kind; (2) the impairment and disability in 
 
            his back, and (3) any disability from generalized anxiety or 
 
            major depression.  Therefore, claimant likewise is not 
 
            entitled to recover any the medical expenses presented, (Cl. 
 
            Ex. D) or any temporary disability benefits or any permanent 
 
            disability benefits.
 
            
 
                 In view of claimant's failure to establish causal 
 
            connection, then the issues of the proper rate of 
 
            compensation, whether claimant is entitled to penalty 
 
            benefits under Iowa Code section 86.13, and whether 
 

 
            
 
            Page   8
 
            
 
            
 
            
 
            
 
            defendants are entitled to a credit for benefits paid to 
 
            claimant either as: (1) employee nonoccupational group 
 
            health plan benefits or as: (2) erroneously paid workers' 
 
            compensation benefits are moot.
 
            
 
                                conclusions of law
 
            
 
                 Wherefore based upon the foregoing and following 
 
            principles of law these conclusions of law are made.
 
            
 
                 That claimant did sustain an injury to his back on May 
 
            30, 1985 which arose out of and in the course of employment 
 
            with employer.  Iowa Code section 85.3(1)  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).  
 
            
 
                 That claimant did not sustain the burden of proof by a 
 
            preponderance of the evidence that the injury of May 30, 
 
            1985 was the cause of any medical treatment, temporary 
 
            disability or permanent disability.  Bodish v. Fischer, 
 
            Inc., 257 Iowa 516, 133 N.W.2d 867 (1965); Lindahl v. L.O. 
 
            Boggs Co., 236 Iowa 296 18 N.W.2d 607 (1945).
 
            
 
                 That claimant is not entitled to medical benefits, 
 
            temporary disability benefits or permanent disability 
 
            benefits.  Iowa Code sections 85.27, 85.34(1), and 
 
            85.34(2)(u).
 
            
 
                                      order
 
            
 
                 THEREFORE, IT IS ORDERED:
 
            
 
                 That no monies are owed by defendants to claimant for 
 
            medical benefits or temporary or permanent disability.
 
            
 
                 That the cost of the attendance of the court reporter 
 
            at hearing and the cost of the transcript of hearing are 
 
            charged to defendants pursuant to rule 343 IAC 4.33.  
 
            Otherwise both parties are to pay their own individual costs 
 
            of this action, including the costs requested by claimant 
 
            attached to the prehearing report.
 
            
 
                 That defendants file any claim activity report which 
 
            may be requested by this agency pursuant to rule 343 IAC 
 
            3.1.
 
            
 
                 Signed and filed this ____ day of February, 1991.
 
            
 
            
 
            
 
            
 
                                          
 
            ________________________________
 
                                          WALTER R. MCMANUS, JR.
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr Thomas J Currie
 
            Attorney at Law
 

 
            
 
            Page   9
 
            
 
            
 
            
 
            
 
            3401 Williams Blvd SW
 
            PO Box 998
 
            Cedar Rapids Iowa 52406
 
            
 
            Ms Shirley Ann Steffe
 
            Assistant Attorney General
 
            Tort Claims Division
 
            Hoover State Office Building
 
            Des Moines Iowa 50319
 
            
 
                 
 
            
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
                      5-1100; 5-1106; 5-1108.50; 5-1401
 
                      5-1402.20; 5-1402.30; 5-2206
 
                      5-2207; 5-2601.10; 5-2902; 5-1801
 
                      5-1402.40; 5-1402.60; 5-1402.10
 
                      5-1802; 5-1803; 5-2501; 5-2602;
 
                      5-2700
 
                      Filed February 20, 1991
 
                      WALTER R. MCMANUS, JR.
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
                      :
 
            RICHARD L. MORRISON,     :
 
                      :
 
                 Claimant, :
 
                      :
 
            vs.       :
 
                      :      File No. 798794
 
            UNIVERSITY OF IOWA, :
 
                      :   A R B I T R A T I O N
 
                 Employer, :
 
                      :      D E C I S I O N
 
            and       :
 
                      :
 
            STATE OF IOWA, :
 
                      :
 
                 Insurance Carrier,  :
 
                 Defendants.    :
 
            ___________________________________________________________
 
            
 
            5-1100;5-1106;5-1108.50;5-1401;5-1402.20;5-1402.30;5-2206;5-
 
            2207; 5-2601.10; 5-2902
 
            Claimant stepped off of a ladder onto a telephone under the 
 
            dropcloth and injured his back.  He reported the injury and 
 
            went to employers' medical clinic.  The examining physician 
 
            recorded that claimant had also stepped on a toy car over 
 
            the weekend and this caused back pain also and pins and 
 
            needles down his legs into his foot.  A co-employee 
 
            testified he came by and found claimant laying on his back 
 
            and claimant told him he had just fallen off of the ladder.  
 
            The house manager testified claimant told her he fell off of 
 
            a ladder and injured his back.  It was determined that 
 
            claimant sustained an injury to his back arising out of and 
 
            in the course of employment with employer.  Claimant did not 
 
            prove a psychological injury from this fall or from this 
 
            back injury.
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            
 
            5-1108.50;5-1402.40;5-1402.60;5-1402.10;5-1801;5-1802;5-1803
 
            ;5-2501;5-2602;5-2700;5-2902
 
            It was determined that claimant did not prove that the fall 
 
            was the cause of his medical treatment, his time off work, 
 
            or any permanent disability.  Claimant was overweight, had a 
 
            history of back problems, and had stepped on a toy between 
 
            the time he fell and the time he saw the doctor.  A number 
 
            of other back incidents occurred to claimant after this 
 
            injury.  Claimant saw numerous physicians, but not one 
 
            physician said the fall caused claimant's back disability or 
 
            his medical treatment.  He had been treated for acute 
 
            anxiety by the psychiatry department for a long time before 
 
            and after this injury.  No physician attributed the cause of 
 
            his psychological problems to this injury.  In view of these 
 
            findings, rate, penalty benefits and credits became moot 
 
            issues.
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                    BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         KLAUS ANDRESEN,
 
         
 
              Claimant,
 
                                                File No. 798873
 
         vs.
 
         
 
         PAYNE & KELLER,                     A R B I T R A T I 0 N
 
         
 
              Employer,                         D E C I S I 0 N
 
         
 
         and
 
         
 
         NATIONAL UNION FIRE INSURANCE
 
         COMPANY,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
                              STATEMENT OF THE CASE
 
         
 
              This is a proceeding in arbitration brought by Klaus 
 
         Andresen, claimant, against Payne & Keller, employer, and 
 
         National Union Fire Insurance Company, insurance carrier, to 
 
         recover benefits under the Iowa Workers' Compensation Act as a 
 
         result of an injury sustained on June 24, 1985.  This matter came 
 
         on for hearing before the undersigned deputy industrial 
 
         commissioner December 19, 1988 and was considered fully submitted 
 
         at the close of the hearing.  The record in this case consists of 
 
         the testimony of claimant and joint exhibits 1 through 9.
 
         
 
                                      ISSUES
 
         
 
               Pursuant to the prehearing report and order submitted and 
 
         approved December 19, 1988, the following issues are presented 
 
         for resolution:
 
         
 
              1.  The extent of claimant's entitlement to permanent 
 
              partial disability benefits for an industrial disability; 
 
              and,
 
         
 
              2.  The appropriate rate of compensation.
 
         
 
                                 FACTS PRESENTED
 
         
 
              Claimant sustained an injury which arose out of and in the 
 
         course of his employment on June 24, 1985 when, while driving a 
 
         tractor with his body in a twisted position, he felt his hip 
 
         "pop" and pain in his back and groin.  Claimant recalled he 
 
         reported to first aid and was referred to a Dr. Wulf who 
 
         diagnosed a pulled muscle and recommended a two week physical 
 
         therapy course.  Claimant stated he continued to experience pain 
 
         which he felt was aggravated by the physical therapy and was 
 
         referred to D. H. Webber, M.D., who diagnosed bone fragments in 
 
         the hip joint and presented claimant with the options of fusion, 
 
         a one-half hip replacement, surgery to "clean out the fragments" 
 
         and waiting.  Claimant explained he elected to wait during which 
 
         time he saw Richard L. Kreiter, M.D., and went to the University 
 

 
         of Iowa Hospitals and Clinics and stated that both Dr. Kreiter 
 
         and the doctors at the University of Iowa rendered the same 
 
         diagnoses and provided him with the same treatment options as Dr. 
 
         Webber.  Claimant testified that after six months he felt he was 
 
         getting worse and saw Dr. Kreiter in February 1986 to make 
 
         arrangements for surgery.  Claimant underwent a total hip 
 
         replacement on May 9, 1986, was released to return to work with 
 
         restrictions in December 1986 and last saw his physician in 
 
         January 1988.
 
         
 
              Claimant stated that he can now walk comfortably for 
 
         approximately a mile, that sitting causes some discomfort but 
 
         more discomfort comes on when rising, that it takes two or three 
 
         minutes after sitting any amount of time to loosen up his hip, 
 
         that walking up steps and climbing up a ladder are difficult and 
 
         that running, Dogging and jumping are "out of the question" for 
 
         fear of popping out his hip.  Claimant testified to having some 
 
         trouble tying his shoes and that in order to do so he must sit or 
 
         lean against a wall.  Claimant stated that although he "pretty 
 
         much so" has defeated his limp, a limp will return with 
 
         irritation to the hip.  Claimant explained he must, while 
 
         standing, balance on his right leg to keep as much weight as 
 
         possible off his left leg.
 
         
 
              Claimant was discharged from his employment with defendant 
 
         employer in October 1985 because of his injury and excessive 
 
         absenteeism and tardiness.  Claimant denied being excessively 
 
         absent or tardy from work and denied receiving any type of 
 
         reprimand or warning concerning it.  Claimant was unemployed from 
 
         December 1986 until December 1987 when he secured employment as a 
 
         welder at Domestic Plumbing.  Claimant explained he was contacted 
 
         by a friend and advised of a temporary thirty day position 
 
         fabricating materials at Domestic Plumbing.  Claimant testified 
 
         he originally turned down the offer of employment because he did 
 
         not like its temporary nature, but after consulting with his 
 
         attorney and others, accepted the job which paid $12 per hour.  
 
         Claimant stated he had "pretty steady work" with Domestic 
 
         Plumbing and that he eventually left that employment to work for 
 
         Plant Services, Inc. as a welder where he is paid $13 per hour.  
 
         Claimant testified he is "pretty content" with his employment, 
 
         that things "look good" as far as continued employment, that he 
 
         has not been looking for any other work and that he is satisfied 
 
         "over the long term."
 
         
 
              John M. Hoffman, M.D., who performed a total hip 
 
         arthroplasty on claimant on May 8, 1986, opined on March 3, 
 
         1987:
 
         
 
              I do not expect that there will be significant further 
 
              improvement in his range of motion following the surgery.  
 
              Secondly, with regard to permanent work restrictions, work 
 
              restrictions in this regard are somewhat arbitrary.  There 
 
              is clear evidence that the length of time that a total hip 
 
              arthroplasty lasts is influenced by the amount of stress 
 
              that it sees.  My recommendation to the patient is that he 
 
              not participate in any activities which would require 
 
              repetitive lifting of more than 20 pounds.  Clearly I cannot 
 
              envision all the possible occupations the patient may have, 
 
              certainly carrying 25 boxes in and out of a truck for eight 
 
              hours a day would not be reasonable whereas lifting a 40-50 
 
              lb. object once or twice per day would not be unreasonable.  
 
              All in all, however, the less the amount of walking the 
 
              patient is required to do and the less the repetitive stress 
 
              the hip joint seens [sic], presumably the longer the joint 
 
              will last.
 
         
 

 
         
 
         
 
         
 
         
 
         ANDRESEN V. PAYNE & KELLER
 
         PAGE   3
 
         
 
         
 
         (Joint Exhibit 1, page 1)
 
         
 
              Richard L. Kreiter, M.D., who practices with Dr. Hoffman, 
 
         diagnosed claimant as having significant degenerative 
 
         osteoarthritis of the left hip secondary to probable avascular 
 
         necrosis with multiple loose bodies.  On March 6, 1986, Dr. 
 
         Kreiter opined:
 
         
 
                 It would be my opinion that the minimum percentage of 
 
              physical impairment based on his left hip at the present 
 
              time would possibly be somewhere around 20-25% but that I 
 
              really feel that he will come to an arthroplasty of the hip 
 
              with the use of a prosthesis and this would then give him 
 
              approximately 40% permanent physical impairment, loss of 
 
              physical function to the lower extremity.
 
         
 
         (Jt. Ex. 1, p. 13)
 
         
 
                           APPLICABLE LAW AND ANALYSIS
 
         
 
               An employee is entitled to compensation for any and all 
 
         personal injuries which arise out of and in the course of the 
 
         employment.  Section 85.3(l).
 
         
 
              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.
 
         
 
              As the parties have stipulated that claimant sustained in 
 
         injury arising out of and in the course of his employment which 
 
         is the cause of both temporary and permanent disability, the 
 
         essential question for resolution is the extent of claimant's 
 
         stipulated industrial disability.  Claimant has been compensated 
 
         for 76.143 weeks of healing period benefits and has been paid 75 
 
         weeks of permanent partial disability benefits.
 
         
 
              The parties do not dispute that claimant, as a result of the 
 
         injury, has both a permanent impairment and permanent 
 
         restrictions on his employability.
 
         
 
              Functional disability is an element to be considered in 
 
         determining industrial disability which is the reduction of 
 
         earning capacity, but consideration must also be given to the 
 
         injured employee's age, education, qualifications, experience and 
 
         inability to engage in employment for which he is fitted.  Olson 
 
         v. Goodyear Service Stores, 255 Iowa 1112, 125 N.W.2d 251 (1963).  
 
         Barton v. Nevada Poultry, 253 Iowa 285, 110 N.W.2d 660 (1961).
 
         
 
              A finding of impairment to the body as a whole found by a 
 
         medical evaluator does not equate to industrial disability.  This 
 
         is so as impairment and disability are not synonymous.  Degree of 
 
         industrial disability can in fact be much different than the 
 
         degree of impairment because in the first instance reference is 
 

 
         
 
         
 
         
 
         
 
         ANDRESEN V. PAYNE & KELLER
 
         PAGE   4
 
         
 
         
 
         to loss of earning capacity and in the later to anatomical or 
 
         functional abnormality or loss.  Although loss of function is to 
 
         be considered and disability can rarely be found without it, it 
 
         is not so that a degree of industrial disability is 
 
         proportionally related to a degree of impairment of bodily 
 
         function.
 
         
 
              Factors to be considered in determining industrial 
 
         disability include the employee's medical condition prior to the 
 
         injury, immediately after the injury, and presently; the situs of 
 
         the injury, its severity and the length of healing period; the 
 
         work experience of the employee prior to the injury, after the 
 
         injury and potential for rehabilitation; the employee's 
 
         qualifications intellectually, emotionally and physically; 
 
         earnings prior and subsequent to the injury; age; education; 
 
         motivation; functional impairment as a result of the injury; and 
 
         inability because of the injury to engage in,employment for which 
 
         the employee is fitted.  Loss of earnings,caused by a job 
 
         transfer for reasons related to the injury is also relevant.  
 
         These are matters which the finder of fact considers collectively 
 
         in arriving at the determination of the degree of industrial 
 
         disability.
 
         
 
              There are no weighting guidelines that indicate how each of 
 
         the factors are to be considered.  There are no guidelines which 
 
         give, for example, age a weighted value of ten percent of the 
 
         total value, education a value of fifteen percent of total, 
 
         motivation - five percent; work experience - thirty percent, etc.  
 
         Neither does a rating of functional impairment directly correlate 
 
         to a degree of industrial disability to the body as a whole.  In 
 
         other words, there are no formulae which can be applied and then 
 
         added up to determine the degree of industrial disability.  It 
 
         therefore becomes necessary for the deputy 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 currently 33 years old with a high school 
 
         education and no other formal education outside of a nine week 
 
         building maintenance class taken at Scott County Community 
 
         College after his injury.  Claimant had a scant medical history 
 
         prior to this injury and appeared able to engage in any and all 
 
         activities, without restrictions, as he chose.  Claimant has 
 
         previous work experience making pallets, with a plastic 
 
         manufacturer lifting and stacking 100 pound bags from a conveyor 
 
         belt and as a boilermaker beginning in 1977 where he worked 
 
         mainly at power plants all over the state of Iowa.  Claimant 
 
         began working as a pipefitter in the fall of 1980 which involved 
 
         bringing in and placing materials to be welded.  Claimant 
 
         described his work as physically demanding with a lot of climbing 
 
         and "jumping around" to set everything up for the welder to weld.  
 
         Claimant also,worked as a welder, the position he currently holds 
 
         with Plant Services, Inc. and did 20 percent of the time with 
 
         defendant employer, which claimant felt did not require too much 
 
         physical exertion as it consists mainly of working off of a 
 
         fabrication table with materials at table top level.  Claimant 
 
         also possesses skills in masonry, carpentry, concrete and 
 

 
         
 
         
 
         
 
         
 
         ANDRESEN V. PAYNE & KELLER
 
         PAGE   5
 
         
 
         
 
         electricity and worked in self-employment for a period of time in 
 
         1982 and 1983.  Claimant, based on current work restrictions, is 
 
         clearly precluded from engaging in many of these occupations 
 
         although he admittedly retains the knowledge garnered from his 
 
         time working in these areas.
 
         
 
              Claimant, who described himself as a "good  pipefitter" in 
 
         an area where there "aren't many" is precluded from engaging in 
 
         this occupation.  Claimant still retains the ability to do the 
 
         work of a welder as evidenced by his current employment.  It is 
 
         unfortunate that defendant employer, who obviously had provided 
 
         welding work for claimant during the period of his employment, 
 
         saw fit to discharge claimant on account of his injury as early 
 
         as October 1985.  It has been held that a defendant employer's 
 
         refusal to give any sort of work to a claimant after he suffers 
 
         his affliction may justify an award of disability.
 
         
 
         McSpadden v. Big Ben Coal Co., 288 N.W.2d 181 (Iowa 1980).
 
         
 
              Claimant was unemployed from December 1986 to December 1987 
 
         and has therefore notwithstanding the fact he is now earning $13 
 
         per hour, suffered an actual loss of earnings as well as a loss 
 
         of earning capacity as a result of this injury.
 
         
 
              The undersigned is impressed with the evidence presented on 
 
         claimantOs work search which speaks well for his motivation.  The 
 
         undersigned is equally impressed with the efforts of the 
 
         vocational rehabilitation counselor assigned to work with 
 
         claimant.  Although defendants make issue of claimant's failure 
 
         to accept an offer of employment in building maintenance at $3.75 
 
         per hour for 20 hours per week in the summer and 40 to 60 hours 
 
         per week in the winter, claimant has satisfactorily explained the 
 
         reasons for this refusal and it does not reflect poorly on his 
 
         motivation.  Further, on sound advice from both his counsel and 
 
         defendants, claimant was wise to accept the position with 
 
         Domestic Plumbing, particularly in light of the number of welders 
 
         "on the bench" waiting for jobs.  Claimant's position at this 
 
         time appears to be quite stable.  Although the industrial 
 
         commissioner stated in Umphress v. Armstrong Rubber Co., Appeal 
 
         Decision filed August 27, 1987 that for a deputy to consider what 
 
         may happen to the claimant in the future is pure speculation and 
 
         not a proper area of inquiry, the commissioner also stated in 
 
         Harrison v. Buesing Automotive, Inc., Appeal Decision filed July 
 
         27, 1987 that "[t]he fact that claimant may not ever have to seek 
 
         employment from other employers does not completely negate the 
 
         effect of the injury on claimant's earning capacity."  
 
         Considering then all the elements of industrial disability, it is 
 
         determined that claimant has sustained a permanent partial 
 
         disability of .25 percent for industrial purposes as a result of 
 
         the injury of June 24, 1985, thus, entitling him to 125 weeks of 
 
         permanent partial disability benefits.
 
         
 
              Iowa Code subsection 85.36(6) provides:
 
         
 
                 In the case of an employee who is paid on a daily, or 
 
              hourly basis, or by the output of the employee, the weekly 
 
              earnings shall be computed by dividing by thirteen the 
 
              earnings, not including overtime or premium pay, of said 
 

 
         
 
         
 
         
 
         
 
         ANDRESEN V. PAYNE & KELLER
 
         PAGE   6
 
         
 
         
 
              employee earned in the employ of the employer in the last 
 
              completed period of thirteen consecutive calendar weeks 
 
              immediately preceding the injury.
 
         
 
              The final issues for resolution is the appropriate rate of 
 
         compensation.  The parties have stipulated "that the weekly rate 
 
         is either $308.46 or 318.70 depending on whether the week ending 
 
         4/28/85 (308.46), or the week ending 3/24/85 (318.70) is included 
 
         in the 13 week rate calculation."  Claimant testified that for 
 
         the pay period ending April 28, 1985, he worked 14.5 hours as he 
 
         was unable to work a full week due to dental problems.
 
         
 
              It is clear from a review of claimant's pay records that 
 
         this was an abnormally low number of hours to have worked.  Iowa 
 
         Code subsection 85.36(6) calls for the employee's earnings, from 
 
         that employer, in the last completed period of thirteen 
 
         consecutive calendar weeks immediately preceding the injury to be 
 
         used in the calculation of rate.  It has been this agency's 
 
         interpretation in an advisory opinion that a "...completed period 
 
         of thirteen consecutive calendar weeks..." means the most recent 
 
         thirteen-weeks prior to the injury, in which the employee worked 
 
         for that employer the hours regularly required by that employer.
 
         
 
              Applying that interpretation, any week during the thirteen 
 

 
         
 
         
 
         
 
         
 
         ANDRESEN V. PAYNE & KELLER
 
         PAGE   7
 
         
 
         
 
         weeks immediately preceding the injury which was not completed 
 
         due to reasons personal to the employee such as illness or 
 
         vacation are not included in the thirteen week calculation.  Any 
 
         such noncompleted week should be removed from the calculation and 
 
         another prior completed week should be added to arrive at a 
 
         period of thirteen weeks.
 
         
 
              Therefore, it is concluded that the week ending April 25, 
 
         1985 should be excluded from the thirteen week period and the 
 
         week ending March 24, 1985 should be included thus giving 
 
         claimant an appropriate rate of compensation of $318.70.
 
         
 
         
 
                                 FINDINGS OF FACT
 
         
 
              Wherefore, based on the principles of law previously stated, 
 
         the following conclusions of law are made:
 
         
 
              1.  Claimant sustained an injury arising out of and in the 
 
         course of his employment on June 24, 1985.
 
         
 
              2.  As a result of the injury, claimant underwent a total 
 
         hip arthroplasty on May 8, 1986.
 
         
 
              3.  Claimant had a healing period from June 25, 1985 through 
 
         and including December 9, 1986.
 
         
 
              4.  Claimant has a permanent impairment and permanent work 
 
         restrictions as a result of the injury.
 
         
 
              5.  Claimant's capacity to earn has been hampered as a 
 
         result of the injury.
 
         
 
              6.  Claimant was discharged from his employment with 
 
         defendant in October 1985 at least in part because of his 
 
         injury.
 
         
 
              7.  Claimant was unemployed for approximately one year after 
 
         his release to return to work.
 
         
 
              8.  Claimant, age 33, with a high school education and a 
 
         scant medical history prior to this injury, is precluded from 
 
         engaging in many of the occupations for which he is fitted on 
 
         account of his injury.
 
         
 
              9.  Claimant is currently working in stable employment 
 
         paying $13.00 per hour.
 
         
 
             10.  Claimant was well motivated to secure employment.
 
         
 
             11.  Claimant, as a result of the injury of June 24, 1985, 
 
         has sustained a permanent partial disability of 25 percent for 
 
         industrial purposes.
 
         
 
             12.  Claimant, during the week ending April 28, 1985, worked 
 
         14.5 hours due to dental problems.
 
         
 
             13.  Any week during the thirteen weeks immediately preceding 
 

 
         
 
         
 
         
 
         
 
         ANDRESEN V. PAYNE & KELLER
 
         PAGE   8
 
         
 
         
 
         an injury which was not completed due to personal reasons is not 
 
         included in the thirteen week calculation.
 
         
 
             14.  Claimant's appropriate rate of compensation is $318.70.
 
         
 
         
 
                                CONCLUSIONS OF LAW
 
         
 
              Therefore, based on the principles of law previously stated, 
 
         the following conclusions of law are made:
 
         
 
              1.  Claimant has established he sustained a permanent 
 
         partial disability of 25 percent for industrial purposes as a 
 
         result of the injury of June 24, 1985.
 
         
 
              2. Claimant has established that the week ending April 28, 
 
         1985 should be excluded from the thirteen week period used for 
 
         the purposes of calculating rate and that the week ending March 
 
         24, 1985 should be included thus arriving at a rate of $318.70.
 
         
 
                                      ORDER
 
         
 
              THEREFORE, IT IS ORDERED:
 
         
 
              Defendants shall pay unto claimant seventy-six point one 
 
         four three (76.143) weeks of healing period benefits for the 
 
         period from June 25, 1985 through and including December 9, 1986 
 
         at the appropriate rate of compensation of three hundred eighteen 
 
         and 70/100 dollars ($318.70).
 
         
 
              Defendants shall pay unto claimant one hundred twenty-five 
 
         (125) weeks of permanent partial disability benefits commencing 
 
         December 10, 1986 at the appropriate rate of three hundred 
 
         eighteen and 70/100 dollars ($318.70).
 
         
 
              Defendants shall receive full credit for all disability 
 
         benefits previously paid.
 
         
 
              Payments that have accrued shall be paid in a lump sum 
 
         together with statutory interest thereon pursuant to Iowa Code 
 
         section 85.30.
 
         
 
              Defendants shall file a claim activity report upon payment 
 
         of this award.
 
         
 
              Costs of this action are assessed against defendants 
 
         pursuant to Division of Industrial Services Rule 343-4.33.
 
         
 
              Signed and filed this 30th day of December, 1988.
 
         
 
         
 
         
 
         
 
         
 
                                          DEBORAH A. DUBIK
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 

 
         
 
         
 
         
 
         
 
         ANDRESEN V. PAYNE & KELLER
 
         PAGE   9
 
         
 
 
 
 
 
         Copies to:
 
         
 
         Mr. Channing L. Dutton
 
         Attorney at Law
 
         West Towers Office
 
         1200 35th St, Ste 500
 
         West Des Moines, IA 50265
 
         
 
         Mr. Roger L. Ferris
 
         Attorney at Law
 
         1900 Hub Tower
 
         699 Walnut
 
         Des Moines, IA 50309
 
 
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                               1803; 3000
 
                                               Filed December 30, 1988
 
                                               Deborah A. Dubik
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         KLAUS ANDRESEN,
 
         
 
              Claimant,
 
                                               File No. 798873
 
         vs.
 
         
 
         PAYNE & KELLER,                   A R B I T R A T I 0 N
 
         
 
              Employer,                        D E C I S I 0 N
 
         
 
         and
 
         
 
         NATIONAL UNION FIRE INSURANCE
 
         COMPANY,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         1803
 
         
 
              Claimant, who underwent a total hip arthroplasty as a result 
 
         of an injury arising out of and in the course of employment, 
 
         found to have an industrial disability of 25 percent.
 
         
 
         3000
 
         
 
              Where claimant worked an unusually low number of hours 
 
         during one week of the thirteen weeks prior to his injury due to 
 
         personal reasons, that week was not used to calculate rate and 
 
         another week was included giving claimant a rate of $318.70.