Page   1
 
           
 
           
 
           
 
           
 
           
 
           
 
           
 
                     before the iowa industrial commissioner
 
           ____________________________________________________________
 
                                         :
 
           DIANE R. ROGERS,              :
 
                                         :
 
                Claimant,                :         File No. 801377
 
                                         :
 
           vs.                           :      A R B I T R A T I O N
 
                                         :
 
           ALUMINUM COMPANY OF AMERICA,  :         D E C I S I O N
 
                                         :
 
                Employer,                :
 
                Self-Insured,            :
 
                Defendant.               :
 
           ____________________________________________________________
 
           
 
                              statement of the case
 
           
 
                Claimant Diane R. Rogers filed a petition in arbitration 
 
           seeking benefits under the Iowa Workers' Compensation Act for 
 
           an admitted back injury of July 30, 1985.  Defendant Aluminum 
 
           Company of America ("Alcoa") is her self-insured employer.
 
           
 
                This cause came on for hearing in Davenport, Iowa, on 
 
           June 12, 1991.  Witnesses were claimant, Dick Gordy, Brian 
 
           Winslow and Kevin O'Brien.  Received into evidence were 
 
           defendant's exhibits 2, 3, 5, 7, 9, 11, 12, 13, 17, 18, 19 
 
           and 20 and claimant's exhibits 1 through 9.
 
           
 
                                      issues
 
           
 
                The parties stipulated that claimant sustained an injury 
 
           on July 30, 1985 arising out of and in the course of her 
 
           employment and that the injury caused both temporary and 
 
           permanent disability.  No further relief is sought for 
 
           healing period benefits and it is agreed that the 
 
           commencement date for permanent disability is February 24, 
 
           1989.  The parties stipulated to a compensation rate of 
 
           $343.79 per week, that medical benefits are not at issue and 
 
           that defendant gets credit for benefits paid.
 
           
 
                The sole issue presented for resolution is the extent of 
 
           claimant's permanent industrial disability.
 
           
 
                                 findings of fact
 
           
 
                The undersigned deputy industrial commissioner finds:
 
           
 
                Diane Rogers, a month shy of her thirty-third birthday 
 
           at hearing, is a 1976 high school graduate.  Her work history 
 
           includes employment as a sales clerk and bookkeeper for a 
 
           department store and in parts and receiving for another 
 
           business.  She took employment with Alcoa as a general 
 
           mechanic apprentice in 1979 and completed a three-year 
 
           program culminating in certification as a journeyman 
 
           mechanic.  Her duties were extremely varied, requiring such 
 
           advanced skills as welding, pipe fitting, electrical work, 
 

 
           
 
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           machine repair, blueprint reading and knowledge of 
 
           hydraulics.  Some of this work was strenuous and required 
 
           crawling on and around machinery.
 
           
 
                Claimant had a history of back pain dating back to 1983, 
 
           but no permanent medical restrictions were imposed and she 
 
           describes her back as "basically okay" until the subject work 
 
           injury.  A few days prior to July 30, 1985, she hurt her back 
 
           picking up some pipes, but felt better by the 30th.  On that 
 
           date, she fell down some steps, landing on her buttocks.  She 
 
           immediately experienced sharp pain in the lower back and 
 
           legs.
 
           
 
                Claimant saw several physicians, finally undergoing a 
 
           procedure known as chemonucleolysis on March 6, 1986.  This 
 
           procedure proved unsuccessful and was followed by a 
 
           laminectomy on June 16, 1986.  Both were performed by Ralph 
 
           H. Congdon, M.D., who testified by deposition on May 30, 
 
           1991.
 
           
 
                Claimant was returned to work on September 22, 1986 and 
 
           worked with varying medical restrictions thereafter.
 
           
 
                The surgical procedure performed by Dr. Congdon was at 
 
           L4-5.  Although claimant does not recall any specific 
 
           incident, the record shows that she later sustained another 
 
           herniated disc one level lower, at L5-S1.  Nothing in the 
 
           record ties this second disc herniation to any work activity.  
 
           A CT scan of the lumbar spine on November 20, 1985 showed a 
 
           herniated disc centrally projecting to the right at L4-5, but 
 
           mentions no defect at L5-S1.  A myelogram performed by R. W. 
 
           Hartung, M.D., on June 17, 1986 found a questionable central 
 
           extruded fragment at L4-5, but concluded the L5-S1 level was 
 
           normal.  Yet, a year later,  A. E. Berkow, M.D., performed 
 
           another CT scan and found increased density on the right at 
 
           L5-S1 compatible with herniated disc, along with a possible 
 
           herniation at L4-5, centrally and towards the left.  Dr. 
 
           Berkow then performed another myelogram on September 30, 1987 
 
           and found an amputation of the left-sided nerve root at 
 
           L5-S1.
 
           
 
                Dr. Congdon testified that the herniation at L5-S1 
 
           occurred after June 17, 1986, because of the new radiographic 
 
           findings.  He did not believe that herniation was a natural 
 
           sequela of the earlier laminectomy at L4-5, and expressed no 
 
           opinion as to what caused the herniation at the lower level.  
 
           Dr. Congdon is the sole medical practitioner of record to 
 
           discuss that issue.  Claimant agreed that any pain in her 
 
           right leg became much worse during 1987.
 
           
 
                Dr. Congdon last saw claimant on October 7, 1987, 
 
           eventually referring her to the care of Richard A. Roski, 
 
           M.D.  With the transfer of care, Dr. Congdon did not impose 
 
           permanent restrictions, deferring to Dr. Roski.  He agreed 
 
           that if claimant had residual symptoms, impairment fell in 
 
           the range of 5-10 percent of the whole person.
 
           
 
                Dr. Roski, a board-certified neurosurgeon, testified by 
 

 
           
 
           Page   3
 
           
 
           
 
           
 
           
 
           
 
           
 
           deposition on April 18, 1991.  While under Dr. Roski's 
 
           continuing treatment, claimant slipped in the company parking 
 
           lot on January 16, 1989.  She was seen by John E. Sinning, 
 
           Jr., M.D., who diagnosed acute low back strain.  Dr. Sinning 
 
           prepared a return to work slip on January 17 requiring the 
 
           ability to change positions with occasional walking.  Ms. 
 
           Rogers then returned to Dr. Roski's care, as she had not been 
 
           offered work.  By March 27, 1989, Dr. Roski testified that he 
 
           recommended a 35-pound weight limit and claimant was released 
 
           to return as needed.  Claimant had requested that her weight 
 
           restriction be raised in an attempt to return to work, an act 
 
           consistent with high motivation, but no work was proffered 
 
           within her restrictions.  She did not work again in 1989.
 
           
 
                Claimant returned to Dr. Roski on August 10 with 
 
           complaints of pain in the right hand.  She returned on 
 
           September 13 and was released to return to work.  No formal 
 
           restrictions were imposed at that time, but Dr. Roski's 
 
           testimony shows that he had informal recommendations and has 
 
           opined that claimant sustained a five percent functional 
 
           impairment to the body as a whole.  Testifying generally, he 
 
           suggested that anyone he sees with a low back problem may 
 
           wish to avoid repetitive bending and lifting and lifting from 
 
           awkward positions.  Essentially, claimant was to see what she 
 
           could tolerate and reassess her activities if the work 
 
           dramatically exacerbated pain.  Dr. Roski also pointed to a 
 
           functional capacity evaluation performed by the Quad City 
 
           Regional Spine Institute in June 1989.  That evaluation 
 
           recommended against more than occasional bending/stooping, 
 
           climbing, reaching above shoulder level (Dr. Roski, the sole 
 
           physician to express an opinion on the issue, did not believe 
 
           that complaints of shoulder pain are causally related to this 
 
           work injury) and pushing and pulling.  Claimant could 
 
           frequently lift up to 10 pounds, occasionally up to 34 
 
           pounds, and never above 35 pounds.  Pushing/pulling was not 
 
           to exceed 50 pounds.
 
           
 
                Dr. Roski and claimant's psychiatrist, Patrick G. 
 
           Campbell, M.D., recommended that she increase her activity 
 
           and try to return to work.  As no work was available from 
 
           Alcoa, she entered into a convenience store and gas station 
 
           business with her husband in December 1989.  In January 1990, 
 
           Alcoa notified her that she was deemed to have voluntarily 
 
           quit her job by virtue of taking other employment, a position 
 
           later confirmed by a board of arbitration under the NLRB.  As 
 
           of 1990, claimant had not been offered work by defendant and 
 
           in fact, maintenance manager Brian Winslow believes that no 
 
           such openings have become available to the present day.
 
           
 
                Claimant has since looked for a number of jobs without 
 
           success.  Upon first looking for work, she rather 
 
           unrealistically set a minimum acceptable wage of $15.00 per 
 
           hour, although this was apparently at the advice of Job 
 
           Service of Iowa.  This observer, formerly a Job Service 
 
           administrative law judge, believes this was the hourly wage 
 
           cited by Job Service as the minimum necessary to constitute 
 
           "suitable" work under Iowa Code section 96.5(3)(a).  Claimant 
 
           since has reduced her requirements and supposedly was seeking 
 

 
           
 
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           any work at all by the end of 1990.  Claimant believes there 
 
           are still many jobs she could physically perform, including 
 
           many at Alcoa.  As representative examples, she cited crib 
 
           attendant, fork lift operator, hand tool repairer, 
 
           whistleman, welder, truck repairer, plumber and the like.  
 
           Nonetheless, she has not worked since January 14, 1989.
 
           
 
                Claimant also complained to Dr. Roski of headache and 
 
           severe depression, and was referred to Steven C. Rasmus, 
 
           M.D., and Patrick G. Campbell, M.D., respectively.
 
           
 
                Dr. Rasmus, a board-certified neurologist, testified by 
 
           deposition on April 10, 1991.  He first saw claimant on 
 
           January 7, 1988 and diagnosed chronic muscle contraction 
 
           headaches.  He explained that, when a person's muscles are 
 
           contracted for a prolonged time, they can eventually go into 
 
           spasm and become painful.  Habitual clenching of teeth was a 
 
           probable factor.  Asked whether claimant's back problems 
 
           could cause these headaches, Dr. Rasmus indicated that any 
 
           pain, depression or anxiety can lead to the type of medical 
 
           status that increases headaches.  However, there exists no 
 
           way to sort out the particular problem that might set off or 
 
           cause tension, as claimant had several factors that might add 
 
           to her levels of anxiety and depression and the doctor could 
 
           not quantify the importance of each factor.  Regardless of 
 
           the cause, claimant should be able to alleviate the problem 
 
           through relaxation techniques.  Dr. Rasmus also examined 
 
           claimant for complaints of shooting pain in the neck and 
 
           shoulders, but could find no objective basis for symptoms.
 
           
 
                Patrick G. Campbell, M.D., a psychiatrist, testified by 
 
           deposition on May 1, 1991.  He treated claimant for 
 
           depression and psychiatric problems, problems that have been 
 
           longstanding in nature.  Claimant attempted suicide as early 
 
           as 1981.  In 1979, Donald J. Heming, M.D., saw her for 
 
           complaints of lack of menstruation soon after her 
 
           then-husband left her to stay with another woman.  His 
 
           "confident" diagnosis was of psychological amenorrhea.
 
           
 
                Dr. Campbell is of the view that claimant has a mixed 
 
           personality disturbance which is likely to require 
 
           intermittent psychiatric care with recurrent decompensation, 
 
           depression or anxiety, depending on the problems that she 
 
           deals with in the future.  At times, claimant's depression is 
 
           clearly quite disabling.   Dr. Campbell noted at one point in 
 
           his testimony that, prior to a recent psychiatric 
 
           hospitalization, claimant had not cooked a meal at home for 
 
           over a year and one-half, had not cleaned the house for at 
 
           least seven or eight months and would spend as many as 2-3 
 
           weeks without taking a bath, getting dressed or really 
 
           getting out of bed.  In general, Dr. Campbell indicated that 
 
           stresses of any kind, including stress from pain or loss of 
 
           job as in this case, is capable of causing claimant recurrent 
 
           depressive episodes, but she can be expected to return to her 
 
           former level of functioning thereafter.
 
           
 
                Claimant has a "factitious disorder" described as:
 

 
           
 
           Page   5
 
           
 
           
 
           
 
           
 
           
 
           
 
           A.  Factitious disorder is one of the disorders that we group 
 
           into a whole lot of conditions that are often referred to as 
 
           hysteria and in a general way hysteria means that it is 
 
           probably a woman and the patient is presenting with symptoms, 
 
           usually physical, sometimes psychological, for which there is 
 
           not a sufficient basis to explain it on a physical basis so 
 
           now you say all right, we have this group of people then who 
 
           are presenting with physical symptoms or psychological 
 
           symptoms.
 
           A good example of that is a patient with a somatoform 
 
           disorder, a person who has a conversion illness, a woman who 
 
           can't walk, but there is nothing wrong with her legs, we call 
 
           that a conversion disorder, it is a somatoform disorder.
 
           Another one is a somatoform pain disorder, somebody has an 
 
           unexplainable pain, it is terrible, it is incapacitation, 
 
           they are an invalid, but there is nothing wrong physically.  
 
           There's a difference between a somatoform pain disorder and a 
 
           conversion disorder.
 
           Another set of disorders called associative disorders where 
 
           people have trouble with memory and there's no reason for 
 
           this and it seems to be associated with stressful things in 
 
           their life.
 
           Another one called multiple personality which is a kind of 
 
           loss of a person's identity, another psychological thing for 
 
           which there's no physical basis.
 
           Now, over here sits another group of disorders called 
 
           factitious disorders and we refer to them as a factitious 
 
           disorder with physical symptoms or one with psychological 
 
           symptoms.
 
           Now, you say well, how do you differentiate between the lady 
 
           who has the paralyzed legs and has a somatoform conversion 
 
           disorder and a factitious disorder, a woman who is presenting 
 
           with paralyzed legs.  The difference is the conversion 
 
           patient doesn't know they're doing it, the factitious patient 
 
           doesn't know why they're doing it.  Am I clear?
 
           
 
           (Dr. Campbell deposition, page 37, line 7 through page 38, 
 
           line 25)
 
           
 
                                conclusions of law
 
           
 
                Functional impairment is an element to be considered in 
 
           determining industrial disability which is the reduction of 
 
           earning capacity, but consideration must also be given to the 
 
           injured employee's age, education, qualifications, experience 
 
           and inability to engage in employment for which he is fitted.  
 
           Olson v. Goodyear Service Stores, 255 Iowa 1112, 125 N.W.2d 
 
           251 (1963).  Barton v. Nevada Poultry, 253 Iowa 285, 110 
 
           N.W.2d 660 (1961).
 
           
 
                A finding of impairment to the body as a whole found by 
 
           a medical evaluator does not equate to industrial disability.  
 
           This is so as impairment and disability are not synonymous.  
 
           Degree of industrial disability can in fact be much different 
 
           than the degree of impairment because in the first instance 
 

 
           
 
           Page   6
 
           
 
           
 
           
 
           
 
           
 
           
 
           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 deter
 
           mination of the degree of industrial disability.
 
           
 
                There are no weighting guidelines that indicate how each 
 
           of the factors are to be considered.  There are no guidelines 
 
           which give, for example, age a weighted value of ten percent 
 
           of the total value, education a value of fifteen percent of 
 
           total, motivation - five percent; work experience - thirty 
 
           percent, etc.  Neither does a rating of functional impairment 
 
           directly correlate to a degree of industrial disability to 
 
           the body as a whole.  In other words, there are no formulae 
 
           which can be applied and then added up to determine the 
 
           degree of industrial disability.  It therefore becomes 
 
           necessary for the deputy or commissioner to draw upon prior 
 
           experience, general and specialized knowledge to make the 
 
           finding with regard to degree of industrial disability.  See 
 
           Peterson v. Truck Haven Cafe, Inc., (Appeal Decision, 
 
           February 28, 1985); Christensen v. Hagen, Inc., (Appeal 
 
           Decision, March 26, 1985).
 
           
 
                No doubt claimant feels residual pain and has recurrent 
 
           depression.  However, it is unclear to what extent her 
 
           residual pain is related to histrionic components of her 
 
           personality disorder as opposed to the subject work injury.  
 
           Neck and shoulder complaints are not shown to be related to 
 
           this injury.  If claimant has a herniated disc at L5-S1, it 
 
           is also not shown to be related.  Still, claimant has 
 
           undergone two invasive procedures, including a laminectomy 
 
           and decompression, and is assessed by qualified medical 
 
           practitioners as having sustained permanent impairment to her 
 
           body.  Restrictions suggested by Dr. Roski (note the 
 
           functional capacity evaluation results) bar claimant from 
 
           returning to her former job with Alcoa.  Those restrictions 
 
           do not appear to be significantly more onerous due to the 
 
           second, unrelated herniation.  Claimant has shown herself to 
 

 
           
 
           Page   7
 
           
 
           
 
           
 
           
 
           
 
           
 
           be motivated to return to work, even wheedling a less 
 
           limiting medical restriction from Dr. Roski.  However, it 
 
           seems clear that her recent lack of success is attributable 
 
           in large part to her recurrent depression.  That period of 
 
           depression, although doubtless exacerbated by the work 
 
           injury, does not appear to constitute a permanent loss of 
 
           earning capacity attributable to the work injury, since 
 
           claimant has an underlying personality disturbance which 
 
           predisposes her to depressive episodes on a cyclic basis.  
 
           The parties have not disputed the issue of entitlement to 
 
           healing period benefits.  the exacerbation has not been shown 
 
           to be permanent.
 
           
 
                The central fact in this case is that claimant enjoyed a 
 
           good job with a good wage prior to her work injury and now 
 
           does not.  She is foreclosed from that position as a direct 
 
           result of the work injury.  Defendant argues that the NLRB 
 
           arbitration ruling that claimant voluntarily quit her work 
 
           for purposes of her collective bargaining agreement is 
 
           dispositive on the issue of whether she quit her work.  
 
           Ruling was reserved at the time of hearing as to what 
 
           preclusive effect should be given the NLRB decision.  This 
 
           writer is of the view that any preclusive effect must be 
 
           strictly limited to the narrow issue decided.  Claimant quit 
 
           her job for purposes of the collective bargaining agreement. 
 
           This finding is insignificant in terms of assessing 
 
           industrial disability.  Iowa law is clear that the refusal of 
 
           an employer to provide any work after the injury can justify 
 
           an award of industrial disability.  McSpadden v. Big Ben Coal 
 
           Co., 288 N.W.2d 181 (Iowa 1980).  Refusal to rehire operates 
 
           to increase industrial disability.  Pigneri v. 
 
           Ringland-Johnson-Crowley, file number 838742 (App. Decn., 
 
           July 31, 1991).  To hold that the NLRB decision operates to 
 
           nullify this salutary rule of law would create a manifest 
 
           injustice.  When claimant began operating a convenience store 
 
           with her husband, she had been released by Dr. Roski without 
 
           specific formal restrictions and after weight restrictions 
 
           had been made less burdensome at her own request in a bid to 
 
           return to work.  Her treating neurosurgeon and treating 
 
           psychiatrist recommended that she return to work to keep busy 
 
           at a time when she was suffering from the effects of 
 
           depression, at least temporarily exacerbated by inability to 
 
           work (and more to the point, defendant's inability to give 
 
           her suitable work).
 
           
 
                Given the suggested restrictions contained in the 
 
           functional capacity evaluation pointed to by Dr. Roski, it 
 
           seems unlikely that claimant will ever be able to return to 
 
           such a high-paying job as she held before her injury, at 
 
           least absent extensive retraining.  If defendant is unable to 
 
           restore her to her work given a direct financial incentive to 
 
           do so (note also that defendant is self-insured for workers' 
 
           compensation), who will?
 
           
 
                However, claimant seems of at least average 
 

 
           
 
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           intelligence, is obviously capable of retraining, and agrees 
 
           that she has many salable skills.  Even with her back injury, 
 
           she is no doubt capable of being a valuable employee.  Her 
 
           recent joblessness is surely related to the low level at 
 
           which she has been coping, as described by Dr. Campbell.
 
           
 
                Considering then these factors in specific and the 
 
           record otherwise in general, it is held that claimant has 
 
           sustained a permanent industrial disability equivalent to 35 
 
           percent of the body as a whole, or 175 weeks.
 
           
 
                                      order
 
           
 
                THEREFORE, IT IS ORDERED:
 
           
 
                Defendant shall pay unto claimant one hundred 
 
           seventy-five (175) weeks of permanent partial disability 
 
           benefits at the stipulated rate of three hundred forty-three 
 
           and 79/100 dollars ($343.79) per week commencing February 24, 
 
           1989.
 
           
 
                Any accrued weekly benefits shall be paid in a lump sum 
 
           together with statutory interest thereon pursuant to Iowa 
 
           Code section 85.30.
 
           
 
                Defendant shall have credit for all payments voluntarily 
 
           made prior to the date of this decision.
 
           
 
                The costs of this action are assessed to defendant 
 
           pursuant to rule 343 IAC 4.33.
 
           
 
                Defendant 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. Michael W. Liebbe
 
           Attorney at Law
 
           116 East 6th Street
 
           P.O. Box 339
 
           Davenport, Iowa  52805-0339
 
           
 
           Mr. Thomas N. Kamp
 
           Attorney at Law
 
           600 Davenport Bank Building
 
           Davenport, Iowa  52801
 
           
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                           1803; 2906
 
                           Filed August 5, 1991
 
                           DAVID RASEY
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
                      :
 
            DIANE R. ROGERS,    :
 
                      :
 
                 Claimant, :         File No. 801377
 
                      :
 
            vs.       :      A R B I T R A T I O N
 
                      :
 
            ALUMINUM COMPANY OF AMERICA,  :         D E C I S I O N
 
                      :
 
                 Employer, :
 
                 Self-Insured,  :
 
                 Defendant.     :
 
            ____________________________________________________________
 
            
 
            1803; 2906
 
            Claimant injured back and suffered exacerbation of 
 
            depression.  Neurosurgeon and psychiatrist advised work to 
 
            keep her active, but employer did not offer suitable work.  
 
            She was a highly-skilled mechanic.
 
            While out of work, claimant assisted her husband in 
 
            operation of small business.  Defendant deemed this a 
 
            voluntary quit, and was affirmed in NLRB decision.
 
            NLRB decision was not given preclusive effect, except as to 
 
            narrow and insignificant holding that "quit" was for 
 
            purposes of the bargaining agreement.  Defendant's failure 
 
            to provide work was a factor increasing industrial 
 
            disability.
 
            
 
 
            
 
            
 
            
 
            
 
            
 
                      BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                                          :
 
            MATTHEW WEBB,                 :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :         File No. 801533
 
            HAMILTON'S RADIATOR,          :
 
                                          :      A R B I T R A T I O N
 
                 Employer,                :
 
                                          :         D E C I S I O N
 
            and                           :
 
                                          :
 
            STATE AUTOMOBILE AND          :
 
            CASUALTY UNDERWRITERS,        :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ____________________________________________________________
 
            
 
                              STATEMENT OF THE CASE
 
            
 
                 This is a proceeding in arbitration upon claimant's 
 
            petition filed December 9, 1987.  Claimant sustained a lead 
 
            poisoning injury over a period of time in his work as a 
 
            radiator repairman which eventually caused him to leave work 
 
            July 29, 1985.  He now seeks benefits under the Iowa 
 
            Workers' Compensation Act from his employer, Hamilton's 
 
            Radiator, and its insurance carrier, State Automobile and 
 
            Casualty Underwriters.
 
            
 
                 Hearing on the arbitration petition was had in Des 
 
            Moines, Iowa, on October 27, 1989.  The record consists of 
 
            joint exhibits 1 through 13 and the testimony of the 
 
            following witnesses:  claimant, Kathleen Webb, Leslie 
 
            Hamilton, Larry Hamilton, Nelson Shrank, Ada Shrank, Gil 
 
            Caldwell III, and Clark Williams.
 
            
 
                                      ISSUES
 
            
 
                 Pursuant to the prehearing report, the parties have 
 
            stipulated:  that claimant sustained an injury arising out 
 
            of and in the course of his employment with Hamilton's 
 
            Radiator effective July 29, 1985; that the injury caused 
 
            temporary disability; that the appropriate rate of weekly 
 
            compensation is $161.40; that affirmative defenses are not 
 
            applicable; that defendants paid 40 weeks, 5 days of 
 
            compensation at the stipulated rate prior to hearing.
 
            
 
                 Issues presented for resolution include:  the extent of 
 
            claimant's entitlement to compensation for temporary total 
 
            disability or healing period; whether the injury caused 
 
            permanent disability, and if so, the extent, nature and 
 
            commencement date thereof; the extent of claimant's 
 
            entitlement to medical benefits (it being stipulated that 
 
            the provider of medical services would testify in the 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            absence of contrary evidence that fees were reasonable and 
 
            necessary, but it being disputed whether the expenses were 
 
            incurred for reasonable and necessary treatment, were 
 
            causally connected to the work injury or were authorized by 
 
            defendants); whether claimant is permanently and totally 
 
            disabled under the "odd-lot" theory; whether claimant is 
 
            entitled to penalty benefits based on an unreasonable 
 
            failure to pay voluntary benefits; whether defendants are 
 
            entitled to a credit under Iowa Code section 85.22 with 
 
            regard to a settlement of certain other claims entered into 
 
            by claimant and employer; taxation of costs.
 
            
 
                                 FINDINGS OF FACT
 
            
 
                 The undersigned deputy, having heard the testimony and 
 
            considered all of the evidence, finds:
 
            
 
                 Claimant was born on November 6, 1946 and is a high 
 
            school graduate.  He has also taken night classes in 
 
            industrial electronics.  His employment history includes 
 
            farm work, working with an electrician, service station 
 
            work, manufacture of musical instruments and furniture, 
 
            driving a tow truck, janitorial work, sales, photographic 
 
            dark room work, operating a printing press, machine and 
 
            boiler maintenance, work as a bowling alley mechanic and, 
 
            for approximately three years prior to the stipulated 
 
            injury, work as a radiator repair person for defendant 
 
            Hamilton's Radiator.  Claimant has not sought employment 
 
            since July, 1985 and did not respond to an offer by 
 
            Hamilton's to return him to a position claimed by defendants 
 
            to be removed from direct exposure to lead.
 
            
 
                 Claimant's duties as a radiator repair person included 
 
            cleaning and repairing radiators.  This includes fairly 
 
            heavy lifting and, significantly, exposure to lead while 
 
            soldering.
 
            
 
                 Claimant has a life-long history of weight problems.  
 
            Physicians have recommended weight loss since at least 1976, 
 
            but claimant currently weighs some 280-300 pounds and has 
 
            weighed much more.  Claimant is also a Type 2 diabetic (diet 
 
            controlled).  However, his diabetic condition has become 
 
            uncontrolled at least once through failure to follow the 
 
            appropriate diet.
 
            
 
                 Claimant has a longstanding history of aches and pains 
 
            in various joints.  In particular, he suffered knee injuries 
 
            while playing high school football and later shoulder 
 
            injuries.  While University of Iowa Hospitals and Clinics 
 
            physicians reported a long history of joint aches and 
 
            stiffness, claimant denied that history in his deposition 
 
            taken November 25, 1986.  A Minnesota Multiphasic 
 
            Personality Inventory interpreted by Daniel Tranel, Ph.D., 
 
            indicated:
 
            
 
                 The profile is valid, although he appears to be 
 
                 significantly exaggerating his symptoms in order 
 
                 to call as much attention as possible to his 
 
                 difficulties.  He is endorsing a wide range and 
 
                 significant degree of items related to 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
                 psychological distress and unrest.  The clinical 
 
                 scale elevations are in a pattern that suggests 
 
                 someone who is likely to present themself [sic] as 
 
                 physically ill, even when there is not sufficient 
 
                 evidence of actual physical illness.  They tend to 
 
                 be extremely sensitive to bodily functioning, and 
 
                 will tend to overinterpret and overreact to most 
 
                 minor physical changes and symptoms.  They will 
 
                 tend to complain of multiple somatic problems.  
 
                 This condition usually represents a chronic level 
 
                 of functioning, to which the person has actually 
 
                 adjusted, and prognosis for change via 
 
                 psychotherapy is guarded.
 
            
 
                 Claimant also emphasizes problems with gait and balance 
 
            (falling away to his weaker left side), moves with 
 
            excruciating slowness and insists that he needs a cane to 
 
            prevent falling.  However, second cousin Ada Shrank, who has 
 
            known claimant all his life, testified convincingly that 
 
            some two weeks before hearing she had seen him leaving a 
 
            pharmacy carrying a sack and his cane in his right hand, but 
 
            upon seeing Shrank, claimant grabbed the cane with his left 
 
            hand, slumped over and continued slowly walking.  This 
 
            writer believes that claimant does engage in symptom 
 
            magnification which detrimentally affects his credibility as 
 
            a witness.  However, as shall be seen, it is also found that 
 
            claimant does suffer symptoms and signs of a very serious 
 
            nature notwithstanding his practice of exaggeration.  In 
 
            fact, the medical practitioner upon whose testimony this 
 
            decision most heavily relies indicates that such 
 
            exaggeration and preoccupation is not really unexpected.  On 
 
            the other hand, mere preoccupation with symptoms is not the 
 
            functional equivalent of engaging in deceitful behavior such 
 
            as intentionally disguising the extent of one's reliance 
 
            upon a cane for support.  Claimant's symptom magnification 
 
            is both unintentional and intentional.
 
            
 
                 Claimant saw Dale R. Onnen, M.D., his regular family 
 
            practitioner, in February, 1985 (being at that time actually 
 
            seen by his associate, Dr. Hill).  This was in consultation 
 
            for a planned arthroscopy of the knee to be performed by 
 
            William R. Boulden, M.D.  Dr. Onnen testified by deposition 
 
            taken December 6, 1988 and is now retired.  His specialty 
 
            was family practice and he considered himself qualified for 
 
            board certification, although certification was never 
 
            obtained.  Claimant complained of numbness in the smaller 
 
            toes and blood tests were eventually taken.  Skiff Hospital 
 
            determined on July 19, 1985, that claimant had a blood serum 
 
            lead level of .56 (mcg/dl, or micrograms per deciliter), the 
 
            sample apparently being later read at the Mayo Clinic in 
 
            Minnesota as .65.  Any level over .2 is considered abnormal, 
 
            and levels over .3 are considered toxic.  As a result, 
 
            claimant was taken off work on July 29, 1985.  His blood 
 
            lead level slowly dropped to .24 in December, 1985, to .21 
 
            on March 7, 1986, and to 16.9 (the writer assumes a 
 
            different decimal ratio system was used and that this is the 
 
            equivalent of .169) by June 19, 1986, almost one full year 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            later.  By September 1, 1987, claimant's blood lead level 
 
            was down to .08 and has never since risen to abnormal 
 
            levels.
 
            
 
                 Lead intoxication can be either acute or chronic.  
 
            Unfortunately, even when blood lead levels abate upon 
 
            removal from the source of exposure, lead remains in the 
 
            body, especially the bones.  An article entitled simply 
 
            "LEAD," apparently an excerpt from Courtroom Toxicology 
 
            provided by toxicologist Mark Thoman, M.D., to an attorney 
 
            on October 23, 1987, and in the record in its entirety, 
 
            indicates that immediate effects of a toxic exposure 
 
            include:  abdominal pain, vomiting, delirium, coma, 
 
            convulsions and death.  Delayed effects include:  abdominal 
 
            colic with vomiting and constipation, encephalopathy 
 
            (degenerative disease of brain), insomnia, 
 
            hyperirritability, headache, memory loss, trembling, 
 
            deafness, aphasia, aphonia, psychoses, delirium, coma, 
 
            convulsions, peripheral neuropathy, bilateral wrist drop, 
 
            anemia with basophilic stippling, nephritis (kidney 
 
            inflammation) with Fanconi's syndrome (heredity bone marrow, 
 
            musculoskeletal and genito-urinary disorder), gout, 
 
            Burtonian blue lines in gums, metallic taste and cancer of 
 
            the respiratory tract.  Only small amounts of lead are 
 
            excreted in hair, nails and urine.  Larger amounts are 
 
            eliminated in feces, but probably represent lead that has 
 
            passed unabsorbed through the intestinal tract.  Therefore, 
 
            it appears that most lead absorbed by the body will 
 
            eventually accumulate primarily in bone tissue, especially 
 
            dense bone.
 
            
 
                 A special article published in the July 23, 1987 issue 
 
            of The New England Journal of Medicine and entitled "Lead 
 
            Poisoning in Automobile Radiator Mechanics" is also in 
 
            evidence.  The article concludes that lead exposure may be 
 
            common in those individuals.
 
            
 
                 Mark Thoman, M.D., a board-certified clinical 
 
            toxicologist as well as a board-certified pediatrician (who 
 
            devotes some 15-20 percent of his practice to clinical 
 
            toxicology) testified by deposition taken May 11, 1989.  
 
            Given those qualifications and that Dr. Thoman began 
 
            treating claimant in September 1987, great weight has been 
 
            given to his opinions.  Dr. Thoman testified as to numerous 
 
            symptoms caused on a chronic or long-term basis by lead 
 
            exposure which will be discussed later in this decision.  
 
            With respect to many such symptoms, Dr. Thoman was asked on 
 
            cross-examination to cite specific literature in support of 
 
            his opinion; he was unable to do so, but in several 
 
            instances agreed to seek out the literature to be provided 
 
            to defendants at a later time.  Since he apparently did not 
 
            do so, defendants now challenge the weight to be given his 
 
            testimony, implying that no such literature exists.  This 
 
            writer has elected not to give diminished weight to his 
 
            testimony because it seems not unreasonable that he was 
 
            unable to cite to specific articles in the medical 
 
            literature during his deposition (it is not unknown for 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            attorneys to positively know how a particular point of law 
 
            has been decided in a jurisdiction, but be unable to cite 
 
            the case from memory) and it seems more likely that, as a 
 
            busy medical practitioner, the doctor simply neglected to 
 
            look up and furnish these citations than it is that the 
 
            literature does not exist.
 
            
 
                 Claimant has many, many ailments which he attributes to 
 
            his lead exposure.  These include aching joints, abdominal 
 
            pain and nausea, an enlarged liver, blurred vision, 
 
            decreased hearing, numbness and weakness to the left half of 
 
            his body (more or less from the midline out), metallic 
 
            taste, loss of balance, loss of dexterity, memory loss, 
 
            inability to concentrate, and mood disturbance (general 
 
            irritability).  He claims to no longer be able to play 
 
            musical instruments (due to memory, concentration and 
 
            dexterity loss), becomes sore and loses his balance (always 
 
            falling to the left) after prolonged standing, and states 
 
            that he must use a cane to walk due to balance problems due 
 
            to weakness and numbness on the left side.  Claimant's wife 
 
            confirmed that he has consistently made these complaints and 
 
            added that he felt cold most of the time, and that he 
 
            complained of pain upon prolonged walking, standing or 
 
            sitting.  Claimant indicated that he is unable physically to 
 
            exercise, although he tries to move each of his joints every 
 
            day to avoid becoming wheelchair bound and states that he 
 
            walks less than one block a day.  He drives a car only once 
 
            a week and feels incompetent.  He does not believe he has 
 
            control over the vehicle and is concerned that he is not 
 
            able to make quick decisions such as are necessary in the 
 
            operation of a motor vehicle.
 
            
 
                 After learning of claimant's elevated blood lead 
 
            levels, Dr. Onnen referred him for treatment to the 
 
            University of Iowa Hospitals and Clinics where he was seen 
 
            by numerous practitioners.  Meanwhile, Dr. Onnen and his 
 
            associates continued to treat claimant for other problems 
 
            not necessarily related to lead poisoning.  In September, 
 
            1987, primary care for treatment of lead intoxication passed 
 
            to Dr. Thoman.
 
            
 
                 For his vision problems, claimant was seen at the Wolfe 
 
            Clinic by John M. Graether, M.D.  For skin problems, he was 
 
            seen by Eileen M. Robb, M.D.  For gastrointestinal problems, 
 
            he was seen by John Gibson, M.D.  For psychological 
 
            evaluation, he was seen by Kevin O'Connor, M.D., and by 
 
            Jerry Lee Lewis, M.D., and his associate, Rex Shahriari, 
 
            Ed.D., a licensed psychologist.
 
            
 
                 Because claimant's symptoms are so wide ranging, 
 
            medical opinion will be reviewed on a system-by-system 
 
            basis.
 
            
 
                 Arthralgia.  Frederick W. Oehme, of Comparative 
 
            Toxicology Laboratories, Department of Surgery and Medicine 
 
            of the Veterinary Medical Center in Manhattan, Kansas, wrote 
 
            on July 23, 1987 that lead toxicity produces a variety of 
 
            effects which are in some instances permanent and that the 
 
            skeletal system retains much of absorbed lead and may 
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            provoke musculoskeletal problems which may persist even 
 
            after circulating blood lead levels have returned to normal.  
 
            From this record, it is unclear whether Frederick Oehme is a 
 
            veterinarian, a physician, or whether he has any expertise 
 
            at all.  It was he who provided The New England Journal of 
 
            Medicine article to claimant's wife and also suggested 
 
            consultation with Dr. Thoman.  Nonetheless, given the 
 
            uncertain nature of his expertise, weight has not been given 
 
            Oehme's opinion.
 
            
 
                 On September 22, 1986, a physician of illegible 
 
            signature with the University of Iowa Rheumatology 
 
            Department made a chart note reflecting his impression that 
 
            claimant suffered arthralgias of "undetermined etiology."  
 
            Further, that the longer symptoms continue, the less likely 
 
            it would be that they represented the first stage of some 
 
            systematic rheumatic disease, but that prolonged joint pain 
 
            is not described as a feature of lead poisoning (apparently 
 
            in the literature familiar to this physician).  James 
 
            Merchant, M.D., and L. Fuortes, M.D., both of the University 
 
            of Iowa Hospitals and Clinics, Department of Internal 
 
            Medicine, consistently referred to claimant's arthralgias as 
 
            of unknown etiology.  On June 19, 1986, treating physicians 
 
            Mark Goldberg, M.D., and H. F. Miller, M.D., wrote of 
 
            arthralgias of unclear etiology and specified that it was 
 
            unclear to them whether any relationship existed between 
 
            claimant's lead exposure and current complaints of 
 
            arthralgia (and other difficulties).  On December 3, 1986, 
 
            Dr. Fuortes wrote that he could not support a causal 
 
            relationship between lead exposure and claimant's 
 
            arthralgia.
 
            
 
                 On the other hand, psychiatrist Jerry Lewis wrote on 
 
            May 3, 1989 that claimant's chronic pain and peripheral 
 
            neuropathy were "certainly" related to his history of lead 
 
            poisoning.  In his deposition testimony, Dr. Thoman 
 
            specified that the arthralgias were in part caused by lead 
 
            exposure, but also were affected by claimant's obesity and 
 
            history of various joint injuries.  Dr. Thoman specified 
 
            that the lead exposure affected claimant's gait.
 
            
 
                 While there is a conflict of medical opinion on the 
 
            issue, it should be noted that the physicians who do not 
 
            believe a causal relationship exists generally find the 
 
            etiology of claimant's arthralgias to be unknown, while the 
 
            only board-certified toxicologist to render an opinion 
 
            specified that the arthralgias were in part caused by the 
 
            toxic lead exposure.  The more persuasive evidence is that a 
 
            causal relationship does exist between the stipulated lead 
 
            exposure and claimant's current arthralgias.
 
            
 
                 Peripheral neuropathy.  Drs. Goldberg and Miller were 
 
            unclear as to whether any causal relationship existed 
 
            between lead exposure and claimant's complaints of 
 
            peripheral neuropathy.  Dr. Fuortes again could not support 
 
            the existence of a causal relationship.  On the other hand, 
 
            Dr. Lewis opined that such a relationship did exist and Dr. 
 
            Thoman similarly found a causal relationship, also noting 
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
            the contribution of claimant's diabetic condition and his 
 
            habitual inactivity.  Based again on Dr. Thoman's expertise, 
 
            it is found that a causal nexus does exist between 
 
            claimant's occupational lead exposure and his peripheral 
 
            neuropathy.
 
            
 
                 Left-sided weakness and numbness.  It is a little 
 
            unclear from the record whether claimant's reported symptoms 
 
            of weakness and numbness to the left side of his body should 
 
            be treated as entirely separate from complaints of 
 
            peripheral neuropathy.  Nonetheless, since claimant's 
 
            complaints are both of neurological and muscular deficits, 
 
            this is treated as a separate category.  Three physicians 
 
            have expressed an opinion as to causation.  Dr. Fuortes 
 
            again cannot support a causal nexus.  Dr. Onnen, in his 
 
            deposition testimony, believed that these symptoms were 
 
            consistent with a light stroke, although the medical record 
 
            does not indicate that claimant has ever suffered a stroke.  
 
            Dr. Thoman, in his deposition testimony, believed that a 
 
            causal nexus existed between lead exposure and muscle 
 
            weakness.  Again relying on Dr. Thoman's opinion, a causal 
 
            nexus is hereby found to exist.
 
            
 
                 Hearing loss.  Dr. Thoman testified that claimant does 
 
            have a bilateral hearing loss.  However, there is no 
 
            evidence in the record showing a causal relationship between 
 
            lead exposure and hearing loss.  No causal relationship has 
 
            been established.
 
            
 
                 Vision impairment.  In a letter of January 7, 1986, Dr. 
 
            Onnen wrote of a probable causal relationship between 
 
            claimant's complaints of blurred vision and lead exposure.  
 
            In his deposition, Dr. Onnen also suggested that diabetes 
 
            and high blood pressure were potential factors.
 
            
 
                 Dr. Graether, a Diplomate of the American Board of 
 
            Ophthalmology, wrote on January 14, 1986 that he was unable 
 
            to say whether claimant's objective findings (a somewhat 
 
            reduced visual acuity on the left side) represented evidence 
 
            of lead toxicity.  On January 29, 1986, he cryptically 
 
            wrote:
 
            
 
                 I found no other cause to which I could attribute 
 
                 Mr. Webb's visual loss.  As I stated, the optic 
 
                 nerves were normal, and macula and periphery were 
 
                 normal, there was no optic atrophy, no papilledema 
 
                 and there certainly was no diabetic retinopathy or 
 
                 other changes which would specifically identify 
 
                 another cause for the recorded visual acuity loss.
 
            
 
                 Defendants read these letters as indicating that Dr. 
 
            Graether was unable to locate any abnormality in the eye and 
 
            was unable to state that claimant's complaints were related 
 
            to lead toxicity.  Claimant's brief asserts that Dr. 
 
            Graether implied that the loss of visual acuity was due to 
 
            lead toxicity.  Although the evidence is certainly 
 
            unsatisfactory, this writer agrees that claimant's 
 
            interpretation is most likely correct.  The January 29 
 
            letter was written to a claim examiner for defendant State 
 
            Automobile and Casualty Underwriters and was presumably in 
 

 
            
 
            Page   8
 
            
 
            
 
            
 
            
 
            response to a question not appearing of record.  In context, 
 
            the question probably was whether a causal relationship 
 
            existed between lead exposure and the loss of visual acuity.  
 
            Since Dr. Graether found a measurable loss of vision on the 
 
            left side and could find no other abnormality (in 
 
            particular, diabetic retinopathy, long implicated in vision 
 
            loss), it does appear that Dr. Graether implied that lead 
 
            exposure was the probable cause to which he attributed loss 
 
            of vision.  It is so found.  In his deposition testimony, 
 
            Dr. Thoman indicated that he was unable to state that lead 
 
            exposure solely caused loss of visual acuity, but that it 
 
            could be a causative factor along with diabetes.  It is 
 
            therefore found that claimant has suffered a blurring of 
 
            vision or loss of acuity in the left eye causally related to 
 
            lead exposure.
 
            
 
                 Skin lipomas.  Claimant suffers from nodules or lipomas 
 
            on the skin which he asserts to be causally related to toxic 
 
            exposure to lead.  On November 4, 1987, Dr. Robb wrote that 
 
            painful nodules scattered over the back and trunk had been 
 
            present for 2-3 months and becoming increasingly painful.  
 
            She described findings as possibly presenting a panniculitis 
 
            and not clearly related to claimant's prior diagnosis of 
 
            lead poisoning.  She then referred claimant to Barrett 
 
            Schwartz, M.D., who performed a biopsy on January 18, 1988, 
 
            primarily to determine whether a relationship existed 
 
            between the lesions and lead exposure, suggesting that if 
 
            the lesion proved to be nothing more than a lipoma, "very 
 
            likely" there would probably be no real association.  
 
            Pathologist R. K. Scupham, M.D., diagnosed the tissue as 
 
            angiolipoma upon microscopic examination.  Accordingly, the 
 
            best evidence is that no causal relationship exists between 
 
            claimant's lead exposure and his skin lesions.
 
            
 
                 Gastrointestinal/liver enlargement.  As has been noted, 
 
            claimant has a history of peptic ulcer causing his discharge 
 
            from the United States Navy.  On referral from Dr. Robb, Dr. 
 
            Gibson of the Gastroenterology Department of Internal 
 
            Medicine Faculty & Clinics wrote on December 30, 1987 that 
 
            claimant suffered from hepatomegaly due to fatty 
 
            infiltration of the liver from uncontrolled diabetes 
 
            mellitus and that abdominal pain complaints were entirely 
 
            compatible with that diagnosis.  He noted that the history 
 
            of lead intoxication, peptic ulcer disease, NSAID 
 
            (non-steroidal anti-inflammatory drug) use and 
 
            hypertriglyceridemia (an excess of triglycerides in the 
 
            blood) obviously raise the possibility that other diagnoses 
 
            could be considered, but that tenderness clearly localized 
 
            to the enlarged liver and a CT scan was diagnostic in his 
 
            opinion.  In his deposition testimony, Dr. Thoman did 
 
            believe there was a causal relationship between lead 
 
            exposure and constipation, cramps and abdominal pain.  
 
            Nonetheless, since Dr. Gibson is a specialist in 
 
            gastroenterology who considered the possibility of lead 
 
            intoxication as a factor but was specific as to his 
 
            diagnosis as supported by a CT scan, the best evidence is 
 

 
            
 
            Page   9
 
            
 
            
 
            
 
            
 
            that a causal relationship has not been established.  
 
            Similarly, while claimant asserts that his enlarged liver is 
 
            causally related to toxic exposure, no physician has so 
 
            opined.  No causal nexus has been established.
 
            
 
                 Clumsiness/dexterity.  Dr. Thoman suggested in his 
 
            deposition testimony that a causal relationship did exist 
 
            between claimant's history of lead poisoning and his 
 
            complaints of diminished dexterity.  Nelson Shrank, related 
 
            by marriage, has known claimant since childhood and 
 
            testified that he was always clumsy.  However, claimant 
 
            testified to a loss of dexterity that now prevents him from 
 
            engaging in various hobby activities such as playing musical 
 
            instruments and working with model railroad equipment.  As 
 
            noted, claimant's credibility is very much in question and 
 
            this writer finds his testimony unreliable.  However, there 
 
            was nothing inherently unreliable about Kathleen Webb's 
 
            testimony, and as claimant's wife for 15 years, she has 
 
            certainly had an opportunity to observe him both before and 
 
            after his employment with Hamilton's Radiator.  She 
 
            testified to weakness and coordination problems that have 
 
            developed since the stipulated work injury, and on this 
 
            basis along with Dr. Thoman's professional opinion, it is 
 
            found that claimant has suffered a loss of dexterity and 
 
            coordination causally related to lead exposure.
 
            
 
                 Mental impairment.  This division considers claimant's 
 
            complaints of diminished memory, concentration deficit and 
 
            mood alteration (irritability and depression).  Kathleen 
 
            Webb testified that claimant has suffered impairment in 
 
            these areas since his exposure to lead.  Asked whether 
 
            claimant had a history of forgetfulness, Nelson Shrank 
 
            testified, "Not a whole lot."
 
            
 
                 Testing at the University of Iowa was generally in the 
 
            normal range, although notes of January 21, 1987 prepared by 
 
            Kathleen A. Welsh, Ph.D., found a continued deficit in 
 
            directed attention.  Her impression was that claimant 
 
            continued to demonstrate a significant mood disturbance and 
 
            problems with attention and concentration likely a 
 
            concomitant of the mood disturbance and noted that his 
 
            problems were "likely a combination of mild residual 
 
            cognitive impairments referable to the lead exposure and 
 
            inattention secondary to his mood disturbance."  Drs. 
 
            Merchant and Fuortes found claimant's memory to be intact.  
 
            However, Dr. Merchant wrote on October 13, 1986 that several 
 
            evaluations of claimant's neurological complaints had 
 
            revealed some decreased memory based on testing (along with 
 
            left-sided weakness and decreased sensation).  Drs. Merchant 
 
            and Fuortes wrote on October 30 of that year that long- and 
 
            short-term memory were both intact, but the reason for this 
 
            change in opinion is not readily evident.  Dr. Tranel wrote 
 
            on October 14 that his evaluation in August of that year had 
 
            shown some mild concentration problems, but no changes or 
 
            declines since an evaluation about one year previously.  On 
 
            December 3, 1986, Dr. Fuortes wrote claimant that he could 
 
            not "at this point" support a diagnosis of permanent 
 

 
            
 
            Page  10
 
            
 
            
 
            
 
            
 
            rheumatic, musculoskeletal or neurological impairment on the 
 
            basis of lead exposure, but that it would be beneficial to 
 
            repeat neurobehavioral testing with emphasis on assessing 
 
            and quantifying complaints of loss of manual dexterity, 
 
            memory, left-sided weakness and personality change.
 
            
 
                 Dr. O'Connor prepared a psychiatric evaluation in 
 
            connection with claimant's efforts to obtain Social Security 
 
            disability benefits.  On October 29, 1987, he wrote that 
 
            previous psychological testing on three occasions and his 
 
            examination demonstrated mild problems with concentration 
 
            and attention, but no memory deficits.  For Social Security 
 
            purposes (he did not believe that claimant met Social 
 
            Security criteria of severity of functional impairment for 
 
            benefits), he noted "none to mild impairment of activities 
 
            of daily living, mild to moderate impairment of social 
 
            functioning, mild to moderate impairment of attention, 
 
            persistence in pacing, and no demonstration of repeated 
 
            episodes of decompensation or deterioration at work or in 
 
            work-like environments following resignation from last job."
 
            
 
                 Dr. Shahriari, a licensed psychologist apparently in 
 
            association with Dr. Lewis, performed psychological 
 
            evaluation on January 26 and February 3, 1989.  Dr. 
 
            Shahriari found claimant's performance on general 
 
            intelligence testing to be within normal range, except that 
 
            there was an indication of relative weakness in his 
 
            immediate auditory recall and attention and a significant 
 
            decrement in his visual-motor speed and efficiency.  There 
 
            was no evidence of problems in visual perception, 
 
            visual-motor integration or higher level thought processes.  
 
            However, by contrast, claimant's performance on tests of 
 
            memory, sensory perception, dexterity and strength were 
 
            significant and consistent with history of lead poisoning.
 
            
 
                 Dr. Shahriari generally found claimant's verbal and 
 
            visual memories commensurate with his estimated intelligence 
 
            (normal) and unimpaired.  By contrast, his attention and 
 
            concentration approach a significant discrepancy level, as 
 
            did his delayed recall for both visual and meaningful verbal 
 
            material.  These findings were considered consistent with 
 
            subjective reports of inability to concentrate or to 
 
            remember newly-learned materials (although a causative 
 
            relationship with lead poisoning was not suggested).
 
            
 
                 Dr. Shahriari concluded that claimant was currently 
 
            functioning in the normal range of general intelligence, but 
 
            that neuropsychological evaluation suggested that he had 
 
            peripheral neuropathy most pronounced in the dominant, left 
 
            side and it was likely that he had some subcortical deficits 
 
            which would account for his reported memory and 
 
            concentration problems, "likely caused by the lead 
 
            poisoning."
 
            
 
                 Thereafter, Dr. Lewis stated that memory and attention 
 
            problems could also be related to lead exposure and that it 
 
            was his opinion that they were indeed so related, although 
 
            there was some history to suggest he had some mild attention 
 
            deficit problems prior to exposure.  However, he reiterated 
 

 
            
 
            Page  11
 
            
 
            
 
            
 
            
 
            his opinion that this was very unlikely.
 
            
 
                 In his deposition testimony, Dr. Onnen indicated that 
 
            claimant's complaints of lethargy were causally related to 
 
            obesity, diabetes, and possibly to lead exposure.
 
            
 
                 In his deposition testimony, Dr. Thoman expressed the 
 
            view that lead exposure was causally related to claimant's 
 
            memory, cognition and concentration deficits.
 
            
 
                 Practically any conclusion could be supported by this 
 
            welter of medical opinion.  However, given the testimony of 
 
            Kathleen Webb as to claimant's concentration and memory 
 
            deficits, this writer finds the opinion of Dr. Thoman as 
 
            supported by one of the two psychiatrists (and psychologist 
 
            Shahriari) to be the more persuasive.  This is also 
 
            consistent with the literature in evidence concerning common 
 
            sequelae of lead exposure.  It is therefore held that 
 
            claimant does suffer memory and concentration loss and mood 
 
            disturbance causally related to toxic exposure to lead.
 
            
 
                 Given the reams of medical evidence in this case, there 
 
            is a relative paucity of opinion as to what medical 
 
            restrictions should apply to claimant's activities.  Many 
 
            physicians have opined that claimant should no longer be 
 
            exposed to lead, and there appears no dispute in the record 
 
            as to this common recommendation.  In his deposition 
 
            testimony, Dr. Onnen suggested vocational rehabilitation so 
 
            that claimant could find a job where he could sit, but based 
 
            this recommendation on his history of arthritis (even though 
 
            tests were negative for arthritis) and obesity, not due to 
 
            lead exposure.
 
            
 
                 Dr. Lewis wrote:
 
            
 
                 Because of his memory problems and peripheral 
 
                 neuropathy problems he is not able to work.  He is 
 
                 not able to formulate plans, or carry out specific 
 
                 actions which are needed in a job.  I feel that 
 
                 these limitations are permanent and I do feel that 
 
                 they will prevent him from being employed.
 
            
 
                 On December 17, 1987, Dr. Thoman wrote that claimant to 
 
            date was unable to lift more than 5-10 pounds, was unable to 
 
            sit for extended periods of time, and had decreased manual 
 
            dexterity along with loss of mental acuity, decreased ocular 
 
            fields and decreased hearing.  On December 8, 1988, Dr. 
 
            Thoman wrote that claimant's permanent neuropathy loss was 
 
            estimated at 50 percent as of May 11 of that year and that 
 
            this permanent condition would have a very significant 
 
            detrimental effect on his earning potential.  He went on to 
 
            state that recommending vocational or occupational 
 
            rehabilitation might not be practical due to claimant's 
 
            marginal level of functioning.
 
            
 
                 Claimant was seen once for vocational assessment by 
 
            Clark Williams, rehabilitation consultant for an enterprise 
 
            known as Management Consulting & Rehabilitation Services, 
 
            Inc.  Based on claimant's work history, age, education and 
 
            restriction against exposure to lead, Mr. Williams reported 
 

 
            
 
            Page  12
 
            
 
            
 
            
 
            
 
            numerous occupations in which claimant might be employed, 
 
            although some required changes in his present physical 
 
            endurance levels and projected weight loss.
 
            
 
                 Claimant was also seen for extensive evaluation at the 
 
            Iowa State Vocational Rehabilitation facility.  Facility 
 
            counselor Richard Rattray reported on September 19, 1989 
 
            that claimant was not recommended for competitive employment 
 
            due to his lead poisoning disability, basing that conclusion 
 
            on reports by Dr. Thoman, Dr. Shahriari and Dr. Lewis.
 
            
 
                 The record also disclosed that claimant has incurred 
 
            medical expenses from the University of Iowa Hospitals and 
 
            Clinics ($1,915.62), Wolfe Clinic ($90.00), Pathology 
 
            Laboratory ($320.50), Dr. Thoman ($581.00), and Four Rivers 
 
            Mental Health Association ($698.00) along with mileage costs 
 
            to the University of Iowa (1,280 miles), Wolfe Clinic (144 
 
            miles) and Dr. Thoman (400 miles).  He has also incurred 
 
            prescription medicine costs of $2,474.65 for prescriptions 
 
            directly related to treatment of his various lead-related 
 
            disorders.
 
            
 
                 On March 13, 1987, in consideration of payment of 
 
            $12,000, claimant settled certain claims against Les 
 
            Hamilton, Larry Hamilton and Hamilton Radiator & Glass 
 
            Service.  The release form executed by claimant and his wife 
 
            spoke to any and all claims arising out of his employment 
 
            with defendant, including but not limited to IOSHA or OSHA 
 
            medical protection removal benefits, unemployment benefits, 
 
            and any other claims including but not limited to an action 
 
            for alleged employer gross negligence.  Specifically 
 
            excluded from the settlement were "any and all claims 
 
            arising under Workmen's [sic] Compensation statutes.  Gil 
 
            Caldwell, a practicing attorney who represented defendants 
 
            with respect to this settlement, testified that it was 
 
            intended to settle a gross negligence claim against Les and 
 
            Larry Hamilton and that other actions threatened by claimant 
 
            were listed in the release.  He indicate that there had been 
 
            no discussion between the parties as to whether a credit 
 
            would be allowed in a subsequent workers' compensation 
 
            contested case and conceded on cross-examination that no 
 
            memorandum of third party settlement under Iowa Code section 
 
            85.22 was executed or filed.
 
            
 
                                CONCLUSIONS OF LAW
 
            
 
                 The parties agree that claimant sustained an injury 
 
            arising out of and in the course of his employment, but 
 
            dispute whether the injury caused permanent disability.
 
            
 
                 The claimant has the burden of proving by a 
 
            preponderance of the evidence that the injury of July 29, 
 
            1985 is causally related to the disability on which he now 
 
            bases his claim.  Bodish v. Fischer, Inc., 257 Iowa 516, 133 
 
            N.W.2d 867 (1965).  Lindahl v. L. O. Boggs, 236 Iowa 296, 18 
 
            N.W.2d 607 (1945).  A possibility is insufficient; a 
 
            probability is necessary.  Burt v. John Deere Waterloo 
 
            Tractor Works, 247 Iowa 691, 73 N.W.2d 732 (1955).  The 
 
            question of causal connection is essentially within the 
 
            domain of expert testimony.  Bradshaw v. Iowa Methodist 
 

 
            
 
            Page  13
 
            
 
            
 
            
 
            
 
            Hospital, 251 Iowa 375, 101 N.W.2d 167 (1960). 
 
            
 
                 However, expert medical evidence must be considered 
 
            with all other evidence introduced bearing on the causal 
 
            connection.  Burt, 247 Iowa 691, 73 N.W.2d 732.  The opinion 
 
            of experts need not be couched in definite, positive or 
 
            unequivocal language.  Sondag v. Ferris Hardware, 220 N.W.2d 
 
            903 (Iowa 1974).  However, the expert opinion may be 
 
            accepted or rejected, in whole or in part, by the trier of 
 
            fact.  Id. at 907.  Further, the weight to be given to such 
 
            an opinion is for the finder of fact, and that may be 
 
            affected by the completeness of the premise given the expert 
 
            and other surrounding circumstances.  Bodish, 257 Iowa 516, 
 
            133 N.W.2d 867.  See also Musselman v. Central Telephone 
 
            Co., 261 Iowa 352, 154 N.W.2d 128 (1967).
 
            
 
                 As has been seen, medical opinion varies widely as to 
 
            whether various complaints are causally connected to his 
 
            admitted lead poisoning.  This writer has in particular 
 
            relied heavily upon Dr. Thoman's opinions in resolving 
 
            factual disputes; in essence, the causation issue is a mixed 
 
            question of fact and law.  Pursuant to the previously 
 
            discussed Findings Of Fact, it is held that claimant has 
 
            sustained his burden of proof in establishing that the 
 
            following complexes of symptomatology are causally related 
 
            to the work injury:  memory loss/concentration/mood 
 
            disruption; peripheral neuropathy and left-sided weakness 
 
            and numbness; arthralgia; loss of visual acuity; loss of 
 
            dexterity.
 
            
 
                 Claimant has failed to meet his burden of proof in 
 
            establishing that the following complaints are causally 
 
            related to the work injury:  gastrointestinal problems; 
 
            hearing loss; liver enlargement; skin lipomas.
 
            
 
                 The wide ranging complaints that are found causally 
 
            related to the work injury clearly establish permanent 
 
            impairment.  Defendants note that Dr. Thoman was in many 
 
            instances unable to specify the expected duration of various 
 
            impairments.  However, a "permanent" disability or 
 
            impairment is an impairment that is expected to last for an 
 
            indefinite or undeterminable period and does not require 
 
            proof of absolute perpetuity.  Wallace v. Brotherhood, 230 
 
            Iowa 1127, 300 N.W. 322 (1941).  Claimant's psychological 
 
            impairments are also compensable.  Deaver v. Armstrong 
 
            Rubber Co., 170 N.W.2d 455 (Iowa 1969).  Claimant's 
 
            assortment of complaints, especially including the 
 
            peripheral neuropathy which extends to the midline of his 
 
            body, clearly affect his body as a whole rather than merely 
 
            various scheduled members.  Accordingly, this is a claim for 
 
            industrial disability rather than scheduled member benefits.  
 
            In fact, this case may involve an occupational disease under 
 
            Chapter 85A rather than an injury under Chapter 85, Frit 
 
            Indus. v. Langenwalter, 443 N.W.2d 88 (Iowa App. 1989), but 
 
            the result is the same.
 
            
 
                 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
 

 
            
 
            Page  14
 
            
 
            
 
            
 
            
 
            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).
 
            
 
                 This writer normally considers medical restrictions to 
 
            be perhaps the most important factor in evaluating 
 
            industrial disability.  In this case, claimant has been 
 
            widely advised to avoid further exposure to lead and Dr. 
 
            Thoman at one time noted he was limited to lifting 5 or 10 
 
            pounds.  It is unclear whether this limitation was intended 
 
            to be in the nature of a permanent restriction or merely a 
 
            description of claimant's current capability.  In any event, 
 
            Dr. Thoman stated that recommending vocational or 
 

 
            
 
            Page  15
 
            
 
            
 
            
 
            
 
            occupational rehabilitation might not be practical due to 
 
            claimant's marginal level of functioning.  Although this 
 
            writer believes that claimant has engaged in a course of 
 
            deception by magnifying his symptoms, the medical evidence 
 
            also indicates that his true capability of functioning is 
 
            also marginal at best.  To a very significant degree this is 
 
            due to his exposure to lead.  Prior to his employment with 
 
            Hamilton's Radiator, claimant maintained himself in 
 
            employment in very many fields of endeavor.  Now, as Dr. 
 
            Lewis points out, he is not able to formulate plans or carry 
 
            out specific actions which are needed in a job.  Dr. Lewis 
 
            further stated that claimant's memory problems and 
 
            peripheral neuropathy alone disable him entirely from work 
 
            on a permanent basis.  This evaluation does not even take 
 
            into account claimant's mood disruption, arthralgia, loss of 
 
            dexterity (except to the extent related to peripheral 
 
            neuropathy) and loss of visual acuity.  Taking this record 
 
            as a whole then, it is held that claimant is now and for the 
 
            foreseeable future will be totally disabled from gainful 
 
            employment.  Therefore, he is entitled to permanent total 
 
            disability benefits.  See Diederich v. Tri-City Ry. Co., 219 
 
            Iowa 587, 258 N.W.2d 899 (1935).  Those benefits shall be 
 
            paid at the stipulated rate commencing July 29, 1985.
 
            
 
                 Claimant has also established his entitlement to 
 
            medical, mileage and prescription expenses as set forth in 
 
            the Findings of Fact section of this decision.
 
            
 
                 Claimant also asserts entitlement to penalty benefits 
 
            under Iowa Code section 86.13, unnumbered paragraph 4.  
 
            However, given the wildly conflicting medical evidence in 
 
            this record, this writer does not believe it unreasonable of 
 
            defendants to deny liability for permanent disability.  This 
 
            record would also support a conclusion that all of 
 
            claimant's symptomatology is constructed out of whole cloth 
 
            and that his only permanent impairment is the injunction to 
 
            avoid continued exposure to lead, which would lead to 
 
            minimal industrial disability.  Penalty benefits shall not 
 
            be awarded.
 
            
 
                 Defendants also claim credit in the sum of $12,000 
 
            based on claimant's settlement of certain other claims 
 
            against defendant and Les and Larry Hamilton.  Les Hamilton 
 
            was owner of the business from 1953 to 1985 and sold the 
 
            business to Larry, his son (who testified that he became the 
 
            owner in 1986).  In any event, all of these parties are 
 
            either the employer or an employee of that employer as 
 
            provided in section 85.20.
 
            
 
                 Iowa Code section 85.22 sets forth certain rights and 
 
            duties when an employee receives an injury or incurs an 
 
            occupational disease caused under circumstances "creating a 
 
            legal liability against some person, other than the 
 
            employee's employer or any employee of such employer as 
 
            provided in section 85.20 to pay damages, * * *."  [Emphasis 
 
            added.]  In such a case, the injured worker may take 
 
            proceedings against the employer for compensation and may 
 
            maintain an action against a third party.  None of the 
 

 
            
 
            Page  16
 
            
 
            
 
            
 
            
 
            individuals to whom the release was executed is a third 
 
            party within the meaning of section 85.22.  Therefore, the 
 
            statute does not apply and credit shall not be granted.
 
            
 
                 The parties stipulated at hearing that claimant was 
 
            married with five exemptions and entitled to a weekly 
 
            compensation rate of $161.40.  However, the Guide to Iowa 
 
            Workers' Compensation Claim Handling effective July 1, 1985 
 
            reflects that a claimant who is married with five exemptions 
 
            and has a gross weekly wage of $235.00 is entitled to a 
 
            weekly compensation rate of $161.41.  The compensation rate 
 
            of $161.41 per week will therefore be adopted in this 
 
            decision.
 
            
 
                                      ORDER
 
            
 
                 THEREFORE, IT IS ORDERED:
 
            
 
                 Defendants shall pay unto claimant permanent total 
 
            disability benefits at the rate of one hundred sixty-one and 
 
            41/100 dollars ($161.41) per week commencing July 29, 1985 
 
            and continuing during such time as claimant remains 
 
            permanently and totally disabled.
 
            
 
                 Defendants shall pay the following medical bills:
 
            
 
                 University of Iowa Hospitals and Clinics  $ 1,915.62
 
                 Wolfe Clinic                                   90.00
 
                 Pathology Laboratory                          320.50
 
                 Dr. Thoman                                    581.00
 
                 Four Rivers Mental Health Association         698.00
 
                 Total                                     $ 3,605.12
 
            
 
            In addition, defendants shall pay claimant mileage totalling 
 
            three hundred eighty-three and 04/100 dollars ($383.04).  In 
 
            addition, defendants shall pay prescription expenses to 
 
            Power Drug of Newton, Iowa (or to the extent actually paid 
 
            by claimant, to him personally) totalling two thousand four 
 
            hundred seventy-four and 65/100 dollars ($2,474.65).
 
            
 
                 All accrued benefits shall be paid in a lump sum 
 
            together with statutory interest thereon pursuant to Iowa 
 
            Code section 85.30.
 
            
 
                 Defendants shall have credit for all benefits paid 
 
            voluntarily prior to hearing.
 
            
 
                 The costs of this action shall be assessed to 
 
            defendants pursuant to Division of Industrial Services Rule 
 
            343-4.33.
 
            
 
                 Defendants shall file claim activity reports as 
 
            requested by this agency pursuant to Division of Industrial 
 
            Services Rule 343-3.1.
 
            
 
                 Signed and filed this ______ day of ____________, 1990.
 
            
 
                 
 
            
 
                 
 

 
            
 
            Page  17
 
            
 
            
 
            
 
            
 
                 
 
                                          ______________________________
 
                                          DAVID RASEY
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr. Dennis L. Hanssen
 
            Attorney at Law
 
            Suite 111, Terrace Center
 
            2700 Grand Avenue
 
            Des Moines, Iowa  50312
 
            
 
            Mr. Thomas Henderson
 
            Mr. Timothy J. Walker
 
            Attorneys at Law
 
            1300 First Interstate Bank Building
 
            Des Moines, Iowa  50309
 
            
 
            
 
            
 
 
         
 
 
 
 
 
 
 
 
 
 
 
                        1108.30; 1108.40; 1704; 1804;
 
                        2203; 2205; 3400; 4000.2
 
                        Filed November 16, 1990
 
                        DAVID RASEY
 
         before the iowa industrial commissioner
 
         ____________________________________________________________
 
                   :
 
         MATTHEW WEBB,  :
 
                   :
 
              Claimant, :
 
                   :
 
         vs.       :
 
                   :         File No. 801533
 
         HAMILTON'S RADIATOR,     :
 
                   :      A R B I T R A T I O N
 
              Employer, :
 
                   :         D E C I S I O N
 
         and       :
 
                   :
 
         STATE AUTOMOBILE AND     :
 
         CASUALTY UNDERWRITERS,   :
 
                   :
 
              Insurance Carrier,  :
 
              Defendants.    :
 
         ____________________________________________________________
 
         
 
         1108.30; 1108.40; 1804; 2203; 2205
 
         Claimant developed lead intoxication working as a radiator 
 
         mechanic.  He was obese, diabetic, a symptom magnifier, and had 
 
         some preexisting similar symptomatology.
 
         Medical evidence was voluminous and wildly conflicting.  Causal 
 
         connection was found as to:  memory loss/ concentration/mood 
 
         disruption; peripheral neuropathy and left-sided 
 
         weakness/numbness; arthralgia; loss of visual acuity; loss of 
 
         dexterity.  Causal connection was found not established as to:  
 
         gastrointestinal problems; hearing loss; liver enlargement; skin 
 
         lipomas.
 
         Based largely on psychiatrist's opinion, claimant found 
 
         permanently and totally disabled.
 
         
 
         1704; 3400
 
         Claimant settled various unrelated claims (OSHA, unemployment, 
 
         etc.), but excluding workers' compensation claims with employer 
 
         and its owners.  No 85.22 credit was allowed because these 
 
         entities were not third parties as required by the statute.
 
         
 
         4000.2
 
         No penalty assessed for failure to pay permanency benefits where 
 
         medical evidence was in conflict.
 
         
 
 
         
 
 
 
 
 
 
 
 
 
 
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         BRENT LUDWICK,
 
         
 
              Claimant,
 
         
 
         VS.
 
                                               File No. 801619
 
         
 
         GEORGE A. HORMEL & COMPANY,
 
                                               A R B I T R A T I 0 N
 
         
 
              Employer,
 
                                                  D E C I S I 0 N
 
         and
 
         
 
         LIBERTY MUTUAL INSURANCE COMPANY,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
                              STATEMENT OF THE CASE
 
         
 
              This is a proceeding in arbitration upon the petition of 
 
         claimant, Brent Ludwick, against his employer, George A. Hormel & 
 
         Company, its insurance carrier, Liberty Mutual, defendants.  The 
 
         case was heard on December 20, 1989 in Des Moines, Iowa at the 
 
         office of the industrial commissioner.  The record consists of 
 
         the testimony of claimant.  The record also consists of the 
 
         testimony of claimant's father, Pearl Ludwick, and the testimony 
 
         of claimant's wife.  Additionally, the record consists of the 
 
         following exhibits: Joint 1, 2, 3, 4, 5a, 5b, 6a-f, 7a, 7b, 8a, 
 
         8b, 8c, 8d, 8e, 8f, 8g, 8h, 8i; and, defendants' exhibit 1.
 
         
 
                                      ISSUES
 
         
 
              The issues to be determined are: 1) whether there is a 
 
         casual relationship between the alleged injury and the 
 
         disability; and, 2) whether claimant is entitled to temporary 
 
         disability/healing period benefits or permanent partial 
 
         disability benefits.
 
         
 
                                 FINDINGS OF FACT
 
         
 
              Claimant was 37 years old at the time of the hearing.  He 
 
         commenced his employment with defendant-employer on November 11, 
 
         1979.  Claimant's job at the time of his injury was "skinning 
 
         picnics" on the cut floor.  He was required to pick up 5 - 7
 
         
 
         
 
         
 
         LUDWICK V. GEORGE A. HORMEL & COMPANY 
 
         Page 2
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         
 
         pound picnic hams and to remove the skins.  This occurred 10 to 
 
         15 times per minute and claimant worked 8 to 9 hours per day.  He 
 
         was paid $9.18 per hour.
 
         
 
              On July 22, 1985, the date of this injury, claimant was 
 
         picking up hams.  He felt a pull in his lower back and leg and he 
 
         felt a knot in his lower abdomen. on August 9, 1985, claimant 
 
         visited the plant nurse.  She in turn referred claimant to W. H. 
 
         Gregory, M.D., who performed a hernia repair on August 30, 1985.  
 
         Claimant returned to half days on September 30, 1985 and to 
 
         regular duty on October 7, 1985.
 
         
 
              Claimant began experiencing pain in his left lower 
 
         extremity.  Claimant was examined by J. B. Worrell, M.D.  He 
 
         diagnosed claimant as having, "irritation Lt. anterior femoral 
 
         latarreous [sic] nerve."  Dr. Worrell opined claimant's only 
 
         "disability" was discomfort.  He was referred to Marc E. Hines, 
 
         M.D., by Dr. Gregory.  The initial appointment with Dr. Hines was 
 
         August 5 1986.  A report dated August 5, 1986 was drafted.  
 
         Because of poor duplicating, the undersigned could not read the 
 
         report.  In his report of September 5, 1986, Dr. Hines opined:
 
         
 
              Brent came back in today.  Unfortunately the Prednisone and 
 
              Physical Therapy have been unhelpful for him, and he 
 
              continues to have problems.  Although I initially told him 
 
              that I do not feel this is related to his herniorrhaphy I 
 
              cannot say this with 100% confidence, particularly in view 
 
              of the fact that I have no certain diagnosis at the moment.  
 
              Certainly, I have felt that it is related to his back.  He 
 
              informs me that he had a back injury approximately 3 to 4 
 
              years ago while he was working in the hog kill at Hormel.  
 
              If this is the case, there is no way in which I can state 
 
              that his current problem could not be related to his 
 
              previous back injury or a exacerbation of it.  Whatever the 
 
              case may be it certainly seems feasible that either of these 
 
              hypothesis would lead one to believe that his problem may 
 
              now currently be work related.  For this reason, I do feel 
 
              that he probably should re-contact Hormel regarding this.  
 
              Nonetheless, I feel that medically he should go on with 
 
              further diagnostic evaluation.  I feel that he needs a set 
 
              of new lumbosacral spine films, and I need to compare these 
 
              to the previous x-rays of several years ago that are 
 
              apparently.available in Radiology.  I also feel that a CT 
 
              Scan of the lumbosacral area would be indicated.  I have 
 
              asked him to taper his Prednisone 10 mg. every other day for 
 
              1 week and then discontinue it, and I've asked to see him 
 
              again in approximately:   2 weeks.
 
         
 
         
 
         
 
         LUDWICK V. GEORGE A. HORMEL & COMPANY 
 
         Page 3
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              Later, Dr. Hines modified his diagnosis.  In his report of 
 
         October 29, 1986, he opined:
 
         
 
              I have obtained previous records for Brent concerning Dr. 
 
              Worrell's and Dr. Gregory's notes from Dr. Gregory, 
 
              concerning the operative dictation history (physical and 
 
              discharge summary) from his left inguinal herniorrhaphy, and 
 
              the consultation record from Dr. Worrell.
 
              
 
              It is apparent from the consultation record of Dr. Worrell 
 
              that the patient had an abnormality in the left anterior 
 
              femoral cutaneous nerve following his surgery.  This seems 
 
              to be a problem that has persisted to a lesser extent than 
 
              it did originally, but he had a change in a symptomatology 
 
              around the time that he first saw me.  Since around that 
 
              time, he feels that his symptoms have changed and were the 
 
              ones which led to my diagnosis of a herniated lumbar disc.  
 
              A CT Scan does reveal that the patient does have a herniated 
 
              nucleus pulposus at L5-Sl with probable calcification within 
 
              the protruded disc.  It is also conceivable that this 
 
              represents hemorrhage rather than calcification, and perhaps 
 
              a repeat CT Scan to evaluate whether this was hemorrhage or 
 
              calcification might be helpful.  If it was calcium, than the 
 
              disc has clearly been there for a long standing period, and 
 
              it.will be difficult to state its exact age and the duration 
 
              that the disc has been there.  On the other hand, if it is 
 
              hemorrhage, than this may well have caused some acute 
 
              worsening around or some short time previous to the CT Scan 
 
              being obtained.
 
              
 
              It is clear in any case, from review of the complete records 
 
              that Brent has two problems.
 
              
 
                 1. Around the time or shortly before the time he, began 
 
              seeing me, he developed symptoms that subsequently led to 
 
              the diagnosis of a L5-Sl herniated disc which has been 
 
              documented on CT Scan.
 
              
 
                 2. Additionally, the patient has an anterior femoral 
 
              cutaneous nerve irritation which he states came on 
 
              immediately following the surgery for his inguinal 
 
              herniorrhaphy.  The anterior femoral cutaneous nerve 
 
              certainly does pass near this area, and could have been 
 
              irritated at that time.  It is apparent that this symptom 
 
              has improved although not totally resolved since then.  
 
              Perhaps increasing the difficulty in his leg generally is 
 
              the fact that he has two problems, both of which seem to be 
 
              capable of exacerbating the other to some extent.
 
         
 
         
 
         
 
         LUDWICK V. GEORGE A. HORMEL & COMPANY 
 
         Page 4
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              Mr. Ludwig [sic] is extremely concerned about the 
 
              relationship of all of these symptoms to his work.  He has 
 
              previously injured himself, he states, in the hog kill in 
 
              approximately 1981, and hurt his back.  Subsequent to his 
 
              inguinal hernia which was also stated to be work-related, he 
 
              has developed some irritation of the left anterior femoral 
 
              cutaneous nerve which has continued to be a nuisance to him.  
 
              It certainly seems appropriate to state and support him in 
 
              the assessment that any of the problem related to the left 
 
              anterior femoral cutaneous nerve irritation could possibly 
 
              be related to the inguinal herniorrhaphy, and, therefore, 
 
              possibly Workman's Compensation related.  The problems in 
 
              his low back are more difficult to assess in this regard.  
 
              The duration in which he has had these symptoms and the 
 
              duration in which the herniated disc has been present in his 
 
              back are somewhat more difficult to assess.  He states he 
 
              injured his back in 1981, and this could have been a time in 
 
              which he had a herniated disc which partially resolved, and 
 
              he could have had additional symptoms subsequent to this, 
 
              but it is impossible to ascertain with certainly [sic] the 
 
              duration of the disc's presence, and the history is more 
 
              suggestive of a recent onset.
 
              
 
              I do feel that in order to assess the duration in which he 
 
              has had the herniated disc in his low back, a repeat CT Scan 
 
              might be extremely useful in this regard.  However, there is 
 
              no medical necessity for it other than resolving these 
 
              issues, and, therefore, it will not be ordered at this time.  
 
              I do feel that Mr. Ludwig's [sic] problems, in regard to the 
 
              left anterior femoral cutaneous nerve problems, can be 
 
              related to irritation at the time of the surgery, an 
 
              unfortunate but unforeseeable and not preventable 
 
              occasionally seen.  However, I am unable at this time to 
 
              justify any clear-cut relationship between the lumbar disc 
 
              disease and a work-related injury, although there is 
 
              certainly suggestive evidence that he has previously had 
 
              back problems, and it may indeed be related.  Nonetheless, 
 
              because of the indeterminate age of the disc on CT Scan, the 
 
              unusual circumstances of its.occurrence, and the occurrence 
 
              of this problem, I am unable to make any certain 
 
              determination.
 
              
 
              With regards to Brent's symptoms of his low back and leg 
 
              pain, they do seem to be improving with traction, and, 
 
              therefore, we will continue his 20 pounds traction 1 hour 
 
              on/1 hour off as often as he can do it.  He is not working 
 
              now, and will be attempting to find a job.
 
         
 
         
 
         
 
         LUDWICK V. GEORGE A. HORMEL & COMPANY 
 
         Page 5
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
              Therefore, the patient will use the traction when he has the 
 
              opportunity, hopefully, at least 2-4 hours q.d.
 
         
 
              Dr. Hines again modified his diagnosis in his report of 
 
         October 20, 1988.
 
         
 
              Brent comes back in today.  He had a repeat CT scan. done, 
 
              because of significant and continued difficulties that he 
 
              has been having.  He had a previous scan on 10/6/86, which 
 
              demonstrated a large disc on the left, at L-5-S-1, and has 
 
              had, subsequently, a disc removed at that level.  Despite 
 
              this, however, he continues to have some impingement at 
 
              L-5-S-1 nerve root on the left, which appears to be due to a 
 
              bony projection or spur arising posteriorally from the 
 
              vertebral body.  This is not surprising, in that there was 
 
              calcification of the disc material in the spine before, and 
 
              it is entirely possible that this has progressed from that 
 
              time to the present.  He has never been completely relieved 
 
              of his symptoms, and continues to have pain in his leg, 
 
              particularly after sitting, when his leg will sometimes 
 
              become entirely numb.  These symptoms are not unexpected 
 
              [sic], and I certainly feel that these are related to the 
 
              previous accident and injury that led to the disc herniation 
 
              that led to the operation, and the secondary genesis of this 
 
              bony spur in the low back.  It is my opinion, therefore, 
 
              that @his entire process and problem is entirely related to 
 
              his previous injury, including his current symptomotology 
 
              [sic].  I think that there is little question whatsoever 
 
              that the problem that is present on the CT scan could easily 
 
              give this patient significant symptoms, and is an ongoing 
 
              problem that is a continuation of his previous injury 
 
              and.insult to that area, and subsequent necessary surgery.
 
              
 
              I find that the patient is doing construction work,, and, 
 
              with the type of abnormality he has in his back, he probably 
 
              should not be doing any heavy lifting above 50 lbs, and no 
 
              repetitive [sic] lifting above 30-40 lbs.  I feel that it 
 
              would be wisest for Brent to get back in with vocational 
 
              Rehabilitation and see what skills could be used to obtain 
 
              other types of jobs.  I am gladdened by the fact that he is 
 
              able to continue to work, but he does this at risk of 
 
              reinjury of his back.
 
         
 
              As of January 21, 1989, Dr. Hines opined that claimant's 
 
         problems were casually related to his work injury of July 22, 
 
         1985.
 
         
 
         
 
         
 
         LUDWICK V. GEORGE A. HORMEL & COMPANY 
 
         Page 6
 
         
 
         
 
              Dr. Hines performed an examination and an evaluation on 
 
         June 8, 1989.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              The patient's current lingering difficulties, therefore, 
 
              seem to be related to the femoral nerve involvement on the 
 
              left side.
 
              
 
              Using the Guides to the Evaluation of Permanent Medical 
 
              Impairment, 2nd Edition by the AMA, the patient falls under 
 
              Table 4-Grading scheme and procedure for determining 
 
              impairment of effected body part due to pain, discomfort, or 
 
              loss of sensation, page 73.  He has decreased sensation, 
 
              with or without pain, that may prevent activity; this is 
 
              Description #4, which gives a 65-80% grade.  He has effects 
 
              that seem to be expressing themselves in discomfort and 
 
              difficulties secondary to both ilioinguinal nerve 
 
              involvement, as well as femoral nerve involvement.  
 
              According to Table 13-Unilateral spinal nerve root 
 
              impairment effecting the inguinal region, ilioinguinal nerve 
 
              involvement gives a maximum percent loss of function due to 
 
              sensory deficit, pain, or discomfort, of 5%.  Using the 80% 
 
              grade, this gives a 4% loss of function secondary to this.
 
              
 
              In addition, the femoral nerve has similar maximum percent 
 
              loss of function, using Table 14, page 82, of 5%, giving a 
 
              4% loss of function.  This gives an 8% loss of function to 
 
              the lower extremity for the involvement anteriorally [sic].  
 
              The patient has continued L-5-S-1 involvement, with pain and 
 
              dysfunction, also falling under Description #4, Table 4, 
 
              page 73, and attributable to the L-5-S-1 nerve root 
 
              impairment, which also gives a 5% loss of function due to 
 
              sensory deficit, pain, and discomfort for both L-5 and S-1, 
 
              which, using the 80% grade, gives a 4% per nerve, for a 
 
              total of 8% for the lower extremity, due to the residual 
 
              disease in the back and the L-5-S-1 nerve root irritation 
 
              that is secondary to pain and discomfort.
 
              
 
              Finally, the patient does have weakness in the anterior 
 
              thigh area, particularly with iliopsoas function, which 
 
              falls under Table 5, Description #2-Complete range of motion 
 
              against gravity and some resistance, or reduced fine 
 
              movements and motor control, giving a grade of 20%.
 
              
 
              Using the maximum percent loss of function due to loss of 
 
              strength, Table 14- Specific unilateral spinal nerve 
 
              impairment effecting the lower extremity, this gives a 7% 
 
              impairment of the lower extremity, which, when added
 
         
 
         
 
         
 
         LUDWICK V. GEORGE A. HORMEL & COMPANY 
 
         Page 7
 
         
 
         
 
              to the 16% already present, gives a 23% impairment to the 
 
              lower extremity.  This gives a 9% impairment to the whole 
 
              person, but a 23% impairment to the left lower extremity, 
 
              according to the Guides, Table 15- Relation of impairment of 
 
              the lower extremity to impairment of the whole person, page 
 
              82.
 

 
              
 
 
 
 
 
 
 
 
 
 
 
         
 
              Claimant was examined and evaluated by David J. Boarini, 
 
         M.D., per defendants' request.  The examination occurred on April 
 
         7, 1988.
 
         
 
              Upon examination, the patient has a well-healed surgical 
 
              scar.  I did not examine him to see if there was any 
 
              evidence of recurrent hernia.  The patient complained of 
 
              just a bit of slight tenderness just inferior to the 
 
              incision but I could palpate no abnormality.  The leg 
 
              appears unremarkable with no evidence of atrophy or 
 
              fasciculations and no obvious size difference between the 
 
              two legs.  The patient has a normal range of motion 
 
              throughout the leg and hip.  Strength testing was entirely 
 
              normal except for a question in the left iliopsoas.  On 
 
              specific testing, there was some break away weakness but the 
 
              patient was able to squat and rise using that leg without 
 
              any difficulty.  On sensory testing, the patient complained 
 
              of decreased touch and pinprick sensation over the entire 
 
              lateral leg on the left.  In addition to the fact that this 
 
              is difficult to explain on a physiologic basis and certainly 
 
              could not be related to any superficial nerve in the area of 
 
              his incision, the patient also rather remarkably split a 
 
              tuning fork between medial and lateral on that leg.  This is 
 
              clearly nonphysiologic and a functional finding.  Knee and 
 
              ankle reflexes were symmetrical.
 
              
 
              In summary, I have no explanation for this patient's 
 
              complaints.  I clearly am convinced that it's not related to 
 
              the hernia surgery and in fact his complaints did not seem 
 
              to me to be physiologic or explainable on any basis that I 
 
              know of.  I think there is a strong functional overtones 
 
              here.  I think it is quite possible that there is a bit of 
 
              dysesthetic sensation around the incision but I don't think 
 
              that needs any treatment nor should it cause any significant 
 
              difficulty.
 
         
 
              Because of a plant closing on January 27, 1986, claimant's 
 
         position terminated with defendant employer.  The termination was 
 
         not related to claimant's work injury.  At the time of claimant's 
 
         hearing, he was working at M and M Construction for $6.25 per 
 
         hour.
 
         
 
         
 
         
 
         LUDWICK V. GEORGE A. HORMEL & COMPANY
 
         Page 8
 
         
 
         
 
                                CONCLUSIONS OF LAW
 
         
 
              The claimant has the burden of proving by a preponderance 
 
         of the evidence that the injury of July 22, 1985, is casually 
 
         related to the disability on which he now bases his claim.  
 
         Bodish v. Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867 (1965). 
 
         Lindahl v. L. 0. Boggs, 236 Iowa 296, 18 N.W.2d 607 (1945).  A 
 
         possibility is insufficient; a probability is necessary.  Burt v. 
 
         John Deere Waterloo Tractor Works, 247 Iowa 691, 73 N.W.2d 732 
 
         (1955).  The question of casual connection is essentially within 
 
         the domain of expert testimony.  Bradshaw v. Iowa Methodist 
 
         Hospital, 251 Iowa 375, 101 N.W.2d 167 (1960).
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              The opinions of experts need not be couched in definite, 
 
         positive or unequivocal language.  Sondag v. Ferris 
 
         Hardware, 220 N.W.2d 903 (Iowa 1974).  An opinion of an expert 
 
         based upon an incomplete history is not binding upon the 
 
         commissioner, but must be weighed together with the other 
 
         disclosed facts and circumstances.  Bodish, 257 Iowa 516, 133 
 
         N.W.2d 867 (1965).  The expert medical evidence must be 
 
         considered with all other evidence introduced bearing on the 
 
         casual connection between the injury and the disability.  
 
         Burt, 247 Iowa 691, 73 N.W.2d 732 (1955).  In regard to medical 
 
         testimony, the commissioner is required to state the reasons on 
 
         which testimony is accepted or rejected.  Sondag, 220 N.W.2d 903 
 
         (1974).
 
         
 
              However, expert medical evidence must be considered with 
 
         all other evidence introduced bearing on the casual 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, 220 N.W.2d 903 (Iowa 1974).  However, the expert opinion 
 
         may be accepted or rejected, in whole or in part, by the trier of 
 
         fact.  Id. at 907.  Further, the weight to be given to such an 
 
         opinion is for the finder of fact, and that may be affected by 
 
         the completeness of the premise given the expert and other 
 
         surrounding circumstances.  Bodish. 257 Iowa 516, 133 N.W.2d 867. 
 
         See also Musselman v. Central Telephone Co., 261 Iowa 352, 154 
 
         N.W.2d 128 (1967).
 
         
 
              In the case at hand, claimant has proven by a preponderance 
 
         of the evidence that his hernia is related to his work injury of 
 
         July 22, 1985.  However, claimant has not proven that the 
 
         condition of his left lower extremity is related to the incident 
 
         on July 22, 1985, or to the resulting hernia surgery.
 
         
 
              Dr. Hines, claimant's treating neurologist kept vacillating 
 
         in his opinions.  He changed or modified his opinions on several 
 
         occasions.  Initially, Dr. Hines did not casually relate 
 
         claimant's leg condition to his herniorrhaphy.  In his report of 
 
         August 5, 1986, he writes, "Current back problem not related to 
 
         hernia surg.[sic] or not plant related condition.  Then Dr. Hines
 
         
 
         
 
         
 
         LUDWICK V. GEORGE A. HORMEL & COMPANY 
 
         Page 9
 
         
 
         
 
         modified his opinion and noted there was a herniated disc and a 
 
         later developed spur which he related to the injury of July 22, 
 
         1985.  Next, Dr. Hines stated in his deposition that the spur 
 
         could be causing some nerve root damage.  Dr. Hines did not 
 
         casually relate claimant's condition to his work injury until 
 
         more than three years after the incident.  In that three year 
 
         period, many intervening events could have taken place to have 
 
         caused claimant's spur.  It is difficult for this deputy to 
 
         comprehend how the July 22, 1985 injury could cause both a hernia 
 
         and a later developing spur which did not originally appear on 
 
         the tests performed.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              Additionally, Dr. Boarini, a board certified neurosurgeon, 
 
         did not casually relate claimant's lower extremity condition to 
 
         claimant's work injury., Dr. Boarini opined:
 
         
 
              Q.  Did you understand how long those symptoms had occurred 
 
              from that point to the time you saw him?
 
              
 
              A.  He told me it had been present from immediately after 
 
              the operation until the present time.
 
              
 
              Q.  What explanation would you have for those symptoms, 
 
              then?
 
              
 
              A.  I can't find anything to explain all of his symptoms.
 
              
 
              Q.  Are you suggesting he's either exaggerating or that 
 
              there are not real symptoms, then?
 
              
 
              A.  I can't come up with any other explanation.  As I said, 
 
              there may be some underlying real findings here of some 
 
              numbness in the thigh; that would be quite understandable of 
 
              a hernia surgery.  But the whole com-  plex he's presenting 
 
              with, I can't relate either to herniated disks or the hernia 
 
              surgery.
 
              
 
                 ...
 
              
 
              Q.  (BY MR. HEDBERG)  --he talks about a continuous nerve 
 
              irritation.  Would that be the symptom of a ruptured disk:  
 
              I'm on October 29th.
 
              
 
              A.  I have October 29th.  A cutaneous nerve irritation, no, 
 
              that could not be from a ruptured disk.
 
               
 
              Q.  What would that indicate to you?
 
              
 
              A.  Well, that's the question.  The femoral cutaneous nerve 
 
              is close to the skin and thigh, which is
 
         
 
         
 
         LUDWICK V. GEORGE A. HORMEL & COMPANY 
 
         Page 10
 
         
 
         
 
              near the--passes very close to where the hernia incision is.  
 
              The question is whether or not that nerve was irritated by 
 
              the hernia surgery.  This is not related to disks in any 
 
              way.
 
         
 
              Q.  So that is a symptom that you found too, or something 
 
              similar, I take it?
 
              
 
              A.  Yes.  The trouble is that that is somewhat of a fine 
 
              point.  But the anterior cutaneous nerve--the nerves where 
 
              the meralgia parestheticas [sic] symptomatology is is [sic] 
 
              the lateral cutaneous, those nerves are not the same.  And, 
 
              in fact, the one he's complaining of now is not right where 
 
              the hernia incision is, which is also puzzling to me.
 

 
              
 
 
 
 
 
 
 
 
 
 
 
              
 
              Q.  Of course, he goes.on to say in the next sentence, "The 
 
              anterior femoral cutaneous nerve certainly does pass near 
 
              this area."
 
              
 
              A.  Yes, the anterior one; the lateral doesn't.  The trouble 
 
              is that where he's complaining of now is where the lateral 
 
              goes, not the anterior.
 
         
 
              Dr. Boarini testified that claimant's complaints were 
 
         inconsistent with nerve problems resulting from a hernia surgery.  
 
         Therefore, in light of the foregoing, it is the determination of 
 
         this deputy that claimant has not established by a preponderance 
 
         of the evidence that he has sustained any injury other than the 
 
         left inguinal hernia.  The hernia was repaired on August 20, 1985 
 
         and it has resulted in a temporary total disability but there has 
 
         been no permanent partial disability as a result of the July 22, 
 
         1985 work injury.
 
         
 
              Because of injury, claimant is entitled to weekly benefits 
 
         from August 20, 1985 to September 29, 1985 at the stipulated rate 
 
         of $217.58 per week and for temporary partial disability benefits 
 
         for the week of September 30, 1985.  It has been previously 
 
         stipulated by the parties that claimant has been paid for these 
 
         benefits and that defendants have been given credit for the same.
 
         
 
                                      ORDER
 
         
 
              THEREFORE, IT IS ORDERED:
 
         
 
              Claimant is entitled to temporary total disability benefits 
 
         from August 20, 1985 to September 29, 1985 at the stipulated rate 
 
         of $217.58 per week and for the relevant temporary partial 
 
         disability benefits for the week of September 30, 1985.
 
         
 
         
 
         
 
         LUDWICK V. GEORGE A. HORMEL & COMPANY
 
         Page 11
 
         
 
         
 
              Defendants shall be given credit for all benefits 
 
         previously paid and not credited.
 
         
 
              Costs of this action shall be assessed to defendants 
 
         pursuant to Division of Industrial Services Rule 343 IAC 4.33.
 
         
 
              Defendants shall file a claim activity report as requested 
 
         by this division pursuant to Division of Industrial Services Rule 
 
         343 IAC 3.1.
 
         
 
         
 
         
 
              Signed and filed this 10th day of December, 1990.
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         
 
         
 
         
 
         
 
                                               MICHELLE A. McGOVERN
 
                                               DEPUTY INDUSTRIAL 
 
         COMMISSIONER
 
         
 
         Copies To:
 
         
 
         Mr. Arthur C. Hedberg
 
         Attorney at Law
 
         840 Fifth Ave
 
         Des Moines IA 50309
 
         
 
         Mr. Walter F. Johnson 
 
         Attorney at Law 
 
         111 W Second St 
 
         P 0 Box 716 
 
         Ottumwa IA 52501
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
 
         
 
 
 
 
 
 
 
 
 
 
 
                                               5-1108
 
                                               Filed December 10, 1990
 
                                               MICHELLE A. McGOVERN
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         BRENT LUDWICK,
 
         
 
              Claimant,
 
         
 
         vs.                                                  File No. 
 
         801619
 
         
 
         GEORGE A. HORMEL & COMPANY,                          A R B I T R 
 
         A T I O N
 
         
 
              Employer,                                       D E C I S I 
 
         O N
 
         
 
         and
 
         
 
         LIBERTY MUTUAL INSURANCE
 
         COMPANY,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         
 
         
 
         
 
         5-1108
 
         
 
              Claimant was unable to casually relate his left lower 
 
         extremity and back condition to an injury where claimant 
 
         sustained a hernia and later had hernia surgery.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
 
         
 
 
 
 
 
 
 
 
 
 
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
          ROBERT GOMEZ,                  :
 
         
 
              Claimant,                  :
 
              :                          File No. 801620
 
          VS.
 
         
 
          SUPER VALU STORES, INC.,       :A R B I T R A T I 0 N
 
         
 
              Employer,                  D E C I S I 0 N
 
         
 
          and
 
         
 
          LIBERTY MUTUAL INSURANCE CO.,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         
 
                              STATEMENT OF THE CASE
 
         
 
              This is a proceeding in arbitration wherein Robert Gomez 
 
         seeks compensation for permanent partial disability benefits in 
 
         excess of benefits already paid to him based upon a cervical back 
 
         injury occurring on August 11, 1985.  The case was heard in Des 
 
         Moines, Iowa, on May 31, 1990.  The record in the proceeding 
 
         consists of the testimony of claimant, Robert Gomez, and Jeffrey 
 
         Luce; Joint Exhibits A, B, C, D and E; and claimant's Exhibit 1.
 
         
 
         ISSUES
 
         
 
              The issues for resolution are:
 
         
 
              1. The extent of claimant's permanent disability;
 
         
 
              2. Whether claimant's permanent disability is causally 
 
         connected to his injury;
 
         
 
                                 FINDINGS OF FACT
 
         
 
              The undersigned deputy having heard the testimony and 
 
         considered all the evidence finds that:
 
         
 
              Claimant is a 37-year-old high school graduate who has no 
 
         other formal education nor any other special job experience or 
 
         skills.  He has continuously worked at the Super Valu warehouse 
 
         since 1972 and has had no other jobs during that time.  
 
         Claimant's jobs and job duties at Super Valu have involved fork 
 
         lift operating, loading and unloading, produce, dairy, meat, 
 
         cigarette and grocery order filler.  These jobs involve extensive 
 
         lifting of from 8 to 10 pounds to 100 pounds except when he was a
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         
 
         GOMEZ V. SUPER VALU 
 
         Page 2
 
         
 
         
 
         fork lift operator and cigarette order filler, which involved 
 
         only a maximum of 30 pounds of lifting.  Most of the jobs require 
 
         repeated lifting, twisting, bending and climbing.  Claimant 
 
         described in detail the nature of his jobs and requirements.  
 
         Claimant said he never had a white collar-type position with 
 
         defendant employer except when he was temporarily injured and was 
 
         put on light duty.
 
         
 
              Claimant described his 1976 work injury in which he suffered 
 
         a back strain and indicated he fully recovered and returned to 
 
         work with no restrictions or impairments from this injury.  He 
 
         said this injury bothered him until 1978 but he has had no 
 
         problems since that time.  Claimant recalled two other work 
 
         injuries, a carpal tunnel in 1973 from which he has no impairment 
 
         and a 1984 left shoulder injury resulting in clavicle surgery.  
 
         He said his left shoulder still bothers him at times, 
 
         particularly if he has done a lot of lifting of produce.
 
         
 
              Claimant described his August 11, 1985 work injury which 
 
         resulted in an overhead door coming off the tracks and falling on 
 
         claimant's head.  Claimant was taken to the hospital and eight 
 
         stitches were needed for his head wound.  Claimant hurt his right 
 
         shoulder at the Sports Medicine Centre while undergoing 
 
         rehabilitation in August 1986 in an attempt to increase his upper 
 
         extremity strength due to his August 11, 1985 injury.  Claimant 
 
         had neck surgery, an anterior cervical interbody fusion at C5-6 
 
         level in February 1986, performed by John T. Bakody, M.D. Dr. 
 
         Bakody opined a 20 percent permanent partial impairment to 
 
         claimant's body as a whole based on the orthopedic guideline.  He 
 
         additionally indicated claimant had evidence of a right shoulder 
 
         tendonitis and referred claimant.to Marshall Flapan, M.D. (Joint 
 
         Exhibit A, page 91).
 
         
 
              Claimant was involved in a two car motor vehicle accident on 
 
         October 9, 1986, in which he received a mild paracervical strain.  
 
         On October 13, 1986, Raymond L. Webster, M.D., wrote that this 
 
         paracervical strain from the automobile accident contributed very 
 
         minimal to claimant's condition and he expected claimant to 
 
         overcome the mal-effects of that accident within the next five or 
 
         six days (Jt. Ex. A, p. 11).  On October 16, 1987, Dr. Flapan 
 
         wrote that "I did not see at that time that he had sustained any 
 
         permanent impairment to the functioning of his right upper 
 
         extremity as a result [sic] of the shoulder problem."  (Jt. Ex. 
 
         C, p. 102)
 
         
 
              Claimant had acromioplasty-right shoulder surgery on January 
 
         19, 1989.
 
         
 
              Ronald K. Bunten, M.D., opined on August 30, 1989 that 
 
         claimant did not sustain permanent impairment to his shoulder as 
 
         a result of his work-related injury and subsequent surgery (Jt. 
 
         Ex. A, p. 67).  Thomas Bower agreed with Dr. Bakody's 20 percent 
 
         impairment based on the orthopedic guidelines, but Bower 
 
         indicated claimant had an 11 percent permanent partial impairment
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         
 
         
 
         GOMEZ V. SUPER VALU 
 
         Page 3
 
         
 
         
 
         based on motion' loss and one disk under the AMA Guides (Jt. Ex. 
 
         A, p. 106).  Donald W. Blair, M.D., reviewed claimant's medical 
 
         records, including Dr. Bakody's report, and disagreed with Dr. 
 
         Bakody.  Dr..Blair opined a 2 percent permanent impairment to 
 
         claimant's body as a whole.
 
         
 
              Claimant contends that since the August 1985 injury, he is 
 
         unable to bend as much now and has stiffness and tightness.  
 
         Claimant acknowledged he has no medical restrictions or lifting 
 
         limitations resulting from his August 1985 injury.  He said he 
 
         has no other neck problems other than headaches and stiffness 
 
         when he gets a knot in the back of his neck.  Claimant does the 
 
         same activity now that he did before his injuries and does not 
 
         restrict himself.  He contends his shoulder is sore afterwards 
 
         when he does these activities now.
 
         
 
              Claimant has no decrease in wages resulting from his August 
 
         1985 injury. Claimant agreed he is in no danger of losing his job 
 
         because of his work injury.  In fact, claimant was making $12.50 
 
         per hour in August 1985 and is now making $14 per hour.  He can 
 
         work the same amount of hours now that he could in 1985.
 
         
 
              Claimant is not currently working because of another injury 
 
         that is not involved herein.
 
         
 
              Jeffrey Luce, a fifth shift supervisor for defendant 
 
         employer, described claimant as a good worker.  He said defendant 
 
         employer has no complaint of claimant's work performance.  Mr. 
 
         Luce did defendant employer's periodic performance check on 
 
         claimant in February 1990 and claimant did very well.  There were 
 
         no injury problems he could determine.  He emphasized claimant 
 
         was a highly motivated employee capable of doing a good job.
 
         
 
              Although defendants raised an issue as to whether claimant's 
 
         permanent disability is causally connected to the injury, it is 
 
         obvious their basic complaint was the extent of claimant's 
 
         permanent disability.  It is obvious from the record and the 
 
         testimony that claimant's August 11, 1985 injury did, in fact, 
 
         cause claimant's back injury that ultimately resulted in a C5-6 
 
         cervical fusion and that this injury also resulted in claimant's 
 
         ultimate right shoulder injury and acriomioplasty surgery in 
 
         January 1989.
 
         
 
              We have a disagreement in the medical testimony as to the 
 
         extent of claimant's permanent impairment.  There seems to be no 
 
         disagreement that any problem claimant had with his right 
 
         shoulder which resulted in surgery is not causing any impairment 
 
         to the claimant at this time.  Although claimant obviously 
 
         disagrees with this conclusion or finding, claimant has failed in 
 
         his burden to prove that he currently has any impairment to his 
 
         right shoulder resulting from his August 11, 1985 injury.  The 
 
         undersigned finds that claimant had injured his shoulder doing 
 
         exercises to strengthen his upper extremity which was weakened as 
 
         a result of his August 11, 1985 injury, but claimant has
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         
 
         
 
         GOMEZ V. SUPER VALU 
 
         Page 4
 
         
 
         
 
         recovered from any temporary impairment that may have existed 
 
         regarding his right shoulder which resulted form his August 11, 
 
         1985 injury.
 
         
 
              The dispute on impairment arises as to claimant's cervical 
 
         neck injury and the fusion.  Dr. Bakody performed the surgery and 
 
         he is in a better position to determine the extent of claimant's 
 
         impairment since he had the opportunity to actually observe and 
 
         perform the fusion itself.
 
         
 
              Dr. Blair opined a 2 percent permanent impairment to 
 
         claimant's body as a whole and this is based strictly on his 
 
         reviewing the medical records including Dr. Bakody's report.  He 
 
         never personally saw or observed claimant.
 
         
 
              The undersigned finds that claimant has a 20 percent 
 
         permanent partial impairment to his body as a whole as a result 
 
         of his August 11, 1985 injury to his back and that there is no 
 
         additional permanent impairment resulting from any injury to 
 
         claimant's right shoulder.  The undersigned further finds that 
 
         claimant's August 11, 1985 work injury caused this 20 percent 
 
         permanent partial impairment to his body as a whole and resulted 
 
         in his cervical C5-6 fusion.
 
         
 
              Claimant is young.  He is performing and able to perform the 
 
         same work now as he was performing at the time of his August 11, 
 
         1985 injury.  Claimant, in fact, is making more money per hour 
 
         now than he was at the time of his injury.  Claimant has no 
 
         medical restrictions and has not limited his activities in both 
 
         work and nonwork. obviously, he still has some complaints and 
 
         residue of his injury and that is why there has been an 
 
         impairment found.
 
         
 
              It is undisputed that claimant has had a neck fusion and 
 
         that is a condition that affects claimant's earning capacity.  He 
 
         is fortunate now to be employed and his seniority obviously helps 
 
         him.  Although right at this moment claimant is not employed, 
 
         that has nothing to do with the injury in question herein as it 
 
         appears claimant has been injured again and his present 
 
         employment situation is not the result of his August 11, 1985 
 
         injury.  Claimant was working and fully employed until this 
 
         apparent recent unrelated injury.
 
         
 
              While the loss or no loss of income is an element to 
 
         consider in determining industrial disability, that is only one 
 
         of the criteria.  Claimant is young, which is to his benefit.  
 
         Since there is a fusion surgery, there will always be a fusion 
 
         existing.  Claimant is in a job in which his back and his 
 
         condition is very important.  Once there has been a fusion of 
 
         vertebra in one's back, this puts additional strain on the 
 
         adjoining vertebrae.  Claimant's earning capacity has been 
 
         affected even though at this time his actual income has not been 
 
         diminished.  Taking into consideration claimant's age, education, 
 
         motivation, prior injuries, the severity of his injury, healing
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         
 
         
 
         GOMEZ V. SUPER VALU 
 
         Page 5
 
         
 
         
 
         period, functional impairment and those other criteria to be 
 
         considered in determining industrial disability, the undersigned 
 
         finds that claimant has a 20 percent loss of earning capacity.
 
         
 
                                CONCLUSIONS OF LAW
 
         
 
              The claimant has the burden of proving by a preponderance of 
 
         the evidence that the injury of August 11, 1985 is causally 
 
         related to the disability on which he now bases his claim.  
 
         Bodish v. Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867 (1965). 
 
         Lindahl v. L. 0. Boggs, 236 Iowa 296, 18 N.W.2d 607 (1945).  A 
 
         possibility is insufficient; a probability is necessary.  Burt v. 
 
         John Deere Waterloo Tractor Works, 247 Iowa 691, 73 N.W.2d 732 
 
         (1955).  The question of causal connection is essentially within 
 
         the domain of expert testimony.  Bradshaw v. Iowa Methodist 
 
         Hospital, 251 Iowa 375, 101 N.W.2d 167 (1960).
 
         
 
              Expert medical evidence must be considered with all other 
 
         evidence introduced bearing on the causal connection.  Burt, 247 
 
         Iowa 691, 73 N.W.2d 732.  The opinion of experts need not be 
 
         couched in definite, positive or unequivocal language.  Sondag v. 
 
         Ferris Hardware, 220 N.W.2d 903 (Iowa 1974).  However, the expert 
 
         opinion may be accepted or rejected, in whole or in part, by the 
 
         trier of fact.  Id. at 907.  Further, the weight to be given to 
 
         such an opinion is for the finder of fact, and that may be 
 
         affected by the completeness of the premise given the expert and 
 
         other surrounding circumstances.  Bodish, 257 Iowa 516, 133 
 
         N.W.2d 867.  See also Musselman v. Central Telephone Co., 261 
 
         Iowa 352, 154 N.W.2d 128 (1967).
 
         
 
              If claimant has an impairment to the body as a whole, an 
 
         industrial disability has been sustained.  Industrial disability 
 
         was defined in Diederich v. Tri-City Railway Co., 219 Iowa 587, 
 
         593, 258 N.W.2d 899, 902 (1935) as follows: "It is therefore 
 
         plain that the legislature intended the term 'disability' to mean 
 
         "industrial disability' or loss of earning capacity and not a 
 
         mere 'functional disability' to be computed in the terms of 
 
         percentages of the total physical and mental ability of a normal 
 
         man."
 
         
 
              Functional impairment is an element to be considered in 
 
         determining industrial disability which is the reduction of 
 
         earning capacity, but consideration must also be given to the 
 
         injured employee's age, education, qualifications, experience and 
 
         inability to engage in employment for which he is fitted.  Olson 
 
         v. Goodyear Service Stores, 255 Iowa 1112, 1121, 125 N.W.2d 251, 
 
         257 (1963).
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
              It is further concluded that claimant's August 11, 1985 
 
         injury arose out of and in the course of his employment and his 
 
         work-related injury caused claimant to incur a 20 percent 
 
         permanent partial impairment to his body as a whole and caused 
 
         claimant to have a cervical C5-6 fusion and subsequent shoulder 
 
         injury resulting in an acriomiplasty.  Claimant's shoulder injury
 
         
 
         
 
         
 
         GOMEZ V. SUPER VALU 
 
         Page 6
 
         
 
         
 
         did not result in any further additional permanent impairment to 
 
         his body as a whole.  Claimant's 20 percent impairment is 
 
         strictly in relation to the injury to his cervical area and the 
 
         resulting surgery.  Claimant has a 20 percent loss of earning 
 
         capacity.
 
         
 
                                      ORDER
 
         
 
              THEREFORE, it is ordered:
 
         
 
              That claimant is entitled to one hundred (100) weeks of 
 
         permanent partial disability benefits at the weekly rate of three 
 
         hundred forty-nine and 31/100 dollars ($349.31) beginning January 
 
         17, 1988.  The parties stipulated as to the healing period, which 
 
         has been paid.
 
         
 
              That defendants shall pay accrued weekly benefits in a lump 
 
         sum and shall receive credit against the award for weekly 
 
         benefits previously paid.  The parties stipulated that defendants 
 
         have already paid one hundred nine point two eight six (109.286) 
 
         weeks of permanent partial disability benefits.  Defendants have 
 
         paid everything to which claimant is entitled and, therefore, 
 
         claimant is to take nothing further from these proceedings.
 
         
 
              That defendants shall pay the costs of this action, pursuant 
 
         to Division of Industrial Services Rule 343-4.33.
 
         
 
              That defendants shall file an activity report upon payment 
 
         of this award as required by this agency, pursuant to Division of 
 
         Industrial Services Rule 343-3.1
 
         
 
         
 
              Signed and filed this 15th day of June, 1990.
 
         
 
         
 
         
 
         
 
         
 
         
 
                                         BERNARD J. O'MALLEY
 
                                         DEPUTY INDUSTRIAL COMMISSIONER
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         Copies to:
 
         
 
         Mr James J Beery
 
         Attorney at Law
 
         1122 Main St
 
         Norwalk IA 50211
 
         
 
         Mr Joseph S Cortese
 
         Mr Richard G Book
 
         Attorneys at Law
 
         500 Liberty Bldg
 
         Des Moines IA 50309
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
 
         
 
 
 
 
 
 
 
 
 
 
 
                                         5-1803
 
                                         Filed June 15, 1990
 
                                         Bernard J. O'Malley
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         ROBERT GOMEZ,
 
         
 
              Claimant,
 
         
 
          VS.                            :            File No. 801620
 
         
 
          SUPER VALU STORES,INC.,        :       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.
 
         
 
         
 
         
 
         5-1803
 
         
 
              Found claimant has a 20% industrial disability.  Defendants 
 
         already paid this much industrial disability, so claimant took 
 
         nothing further from these proceedings.
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                       BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         _________________________________________________________________
 
         
 
         LARRY SCHEUERMANN,
 
         
 
             Claimant,
 
         
 
         VS.
 
                                                 File No. 801630
 
         OSCAR MAYER FOODS CORPORATION,
 
                                                  A P P E A L
 
         
 
                                                  R U L I N G
 
              Employer,
 
              Self-Insured,
 
              Defendant.
 
         
 
         _________________________________________________________________
 
         
 
              On August 24, 1987 defendant filed an appearance and motion 
 
         to dismiss appeal.  The claimant having filed a resistance 
 
         thereto the same comes on for determination.
 
         
 
              A review of the file shows that there is presently on file a 
 
         petition for review-reopening and further medical benefits. it is 
 
         obvious that request for independent medical exam by claimant is 
 
         interlocutory at this time.  Claimant's filing a review-reopening 
 
         petition and the application in two different documents does 
 
         change the interlocutory nature of the ruling.
 
         
 
              Rule 343-4.27 states in part: "No appeal shall be separately 
 
         taken under this or 4.25(17A,86) from an interlocutory decision, 
 
         order or ruling of a deputy industrial commissioner.  A decision, 
 
         order or ruling is interlocutory if it does not dispose of the 
 
         contested case."
 
         
 
              The.ruling filed July 10, 1987 which is the subject matter
 
         of this appeal is not dispositive of the contested case and 
 
         therefore interlocutory.
 
         
 
              THEREFORE, the appeal filed August 6, 1987 is hereby dismissed.
 
         
 
         
 
              Signed and filed this 21st day of September, 1987.
 
         
 
         
 
         
 
         
 
                                                     DAVID E. LINQUIST
 
                                                 INDUSTRIAL COMMISSIONER
 
         
 
         
 
         Copies to:
 
         
 
         Mr. Steven C. Jayne
 
         Att,orney at Law
 
         5835 Grand Ave., Suite 201
 
         Des Moines, Iowa 50312
 

 
                                                         
 
         
 
         
 
         SCHEUERMANN V. OSCAR MAYER FOODS CORPORATION
 
         Page 2
 
         
 
         
 
         Mr. Harry W. Dahl
 
         Attorney at Law
 
         974 73rd St., Suite 16
 
         Des Moines, Iowa 50312