BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         MAX ELLIOTT
 
         
 
              Claimant,
 
                                              File No. 801741
 
         vs.
 
                                           A R B I T R A T I 0 N
 
         GEORGIA PACIFIC,
 
                                               D E C I S I 0 N
 
              Employer,
 
              Self-Insured,                      F I L E D
 
              Defendant.
 
                                                 APR 2 1989
 
         
 
                                            INDUSTRIAL SERVICES
 
         
 
         
 
                              STATEMENT OF THE CASE
 
         
 
              This is a proceeding in arbitration brought by claimant Max 
 
         Elliott against defendant self-insured employer Georgia Pacific 
 
         Corporation to recover benefits under the Iowa Workers' 
 
         Compensation Act as the result of an injury allegedly sustained 
 
         on January 9, 1985.  This matter came on for hearing before the 
 
         undersigned deputy industrial commissioner in Dubuque, Iowa, on 
 
         December 9, 1988.  The matter was considered fully submitted upon 
 
         receipt of two depositions on December 12, 1988.  The parties 
 
         thereafter submitted briefs in support of their respective 
 
         positions.
 
         
 
              The record in the proceeding consists of the testimony of 
 
         claimant, joint exhibits 1, 2 and 3 and claimant's exhibits B, C 
 
         and D.  Ruling as to admissibility of claimant's exhibit A was 
 
         reserved.  Claimant's exhibit A is hereby admitted into evidence 
 
         and objections thereto are overruled.
 
         
 
                                      ISSUES
 
         
 
              Pursuant to the prehearing report submitted by the parties 
 
         and approved by the deputy, the parties have stipulated:  To the 
 
         existence of an employer-employee relationship at the time of the 
 
         alleged injury; that in the event of an award of benefits, 
 
         claimant's rate of weekly compensation is $208.54; that the fees 
 
         charged for medical services or supplies are fair and reasonable; 
 
         that the provider of medical services would testify that the 
 
         treatment was reasonable and necessary and defendant is not 
 
         offering contrary evidence; that employer defendant is entitled 
 
         to credit for disability and medical/hospitalization paid to 
 
         claimant under Iowa Code section 85.38(2).
 
         
 
              Identified as issues to be resolved include:  Whether 
 
         claimant sustained an injury on January 9, 1985 arising out of 
 
         and in the course of his employment; whether the alleged injury 
 
         caused temporary or permanent disability; the extent of 
 
         claimant's entitlement to compensation for temporary total 
 
         disability, healing period benefits or permanent partial 
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         disability; the commencement date for permanent partial 
 
         disability, if awarded; whether claimant's injury is a scheduled 
 
         member disability or an industrial disability to the.body as a 
 
         whole; whether claimant's petition is untimely under Iowa Code 
 
         section 85.26; whether claimant failed to give timely notice 
 
         under Iowa Code section 85.23; whether claimant is entitled to 
 
         medical benefits under Iowa Code section 85.27; taxation of 
 
         costs.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              The undersigned also ruled that defendant's affirmative 
 
         defense of lack of notice under Iowa Code section 85.23 was not a 
 
         part of the case because it was not identified as an issue on the 
 
         hearing assignment order filed July 1, 1988.
 
         
 
                              REVIEW OF THE EVIDENCE
 
         
 
              Claimant testified that he began his employment with a 
 
         predecessor employer, St. Regis, in approximately 1971 and that 
 
         he worked from 1973 until 1985 as an assistant press operator. 
 
         Defendant Georgia Pacific purchased the plant where claimant was 
 
         employed in 1984 and claimant was hired by that business 
 
         following an application process and a physical examination.  His 
 
         duties included setting up presses, assisting in printing and 
 
         feeding machines with heavy paper or cardboard stock.
 
         
 
              Claimant testified to a lengthy history of arm problems 
 
         diagnosed as chronic epicondylitis bilaterally, sometimes 
 
         referred to popularly as "tennis elbow."  Claimant first sought 
 
         medical attention for these problems in 1982 when he suffered 
 
         pain .after chopping wood.  Claimant sought medical attention on 
 
         numerous occasions for pain both to the inside and outside of 
 
         both elbows. He was treated conservatively and with cortisone 
 
         injections and immobilizers, eventually undergoing surgery at the 
 
         hands of orthopaedic surgeon Scott C. McCuskey, M.D., on March 
 
         27, 1984. The surgery was a modified Bosworth procedure to the 
 
         right lateral elbow under a diagnosis of chronic lateral 
 
         epicondylitis of the right elbow.  Although claimant complains of 
 
         his left elbow, he has not undergone surgery on that side.  At 
 
         the time of his surgery, claimant was still employed by St. 
 
         Regis.
 
         
 
              Claimant returned to work with Georgia Pacific and remained 
 
         in that employment through the alleged date of injury, January 9, 
 
         1985.  Claimant indicated that on that day, he undertook filling 
 
         an extremely large order of double or triple wall cardboard in 
 
         sheets approximately 90 inches by 100 inches.  Claimant described 
 
         "normal" pain after a few hours of this work, becoming much 
 
         greater as the day wore on.  He further testified that after 
 
         returning home, he sat and elevated his arms, but was unable to 
 
         sleep due to the intense pain.  Although claimant has a lengthy 
 
         history of elbow problems, he described the pain on that day as 
 
         different from previous occasions.  Claimant went to see Dr. 
 
         McCuskey, but he was not in and he saw an associate, David S. 
 
         Field, M.D.  Dr. Field returned him to work on January 14, 1985. 
 
         He eventually saw Dr. McCuskey who referred him to a neurologist 
 
         (Patrick R. Sterrett, M.D.) and sent him home to rest, elevate 
 
         his elbows and undergo physical therapy.  Claimant did not work 
 
         from January 29 through March 18, 1985.  However, he was released 
 
         to return to work by Dr. McCuskey effective March 18, 1985 with 
 
         restrictions.  The record shows that those restrictions were: 
 
         "Repeated lifting of weights greater than 20#, repeated twisting 
 
         & torquing motions of both elbows."  The restrictions were 
 
         indefinite in duration.  Claimant took his return to work to 
 
         defendant Georgia Pacific and was advised that he could not 
 
         perform his job with those restrictions.  Claimant eventually 
 
         took a position with,Boy Scouts of America effective November 1, 
 
         1985 and resigned his employment with Georgia Pacific effective 
 
         October 18, 1985.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              Claimant indicated that his restrictions have never been 
 
         lifted and that he has not seen his regular physician since 1985. 
 
         Claimant testified that he did not file any workers' compensation 
 
         claim against his former employer because he did not know whether 
 
         the epicondylitis was caused by the work.
 
         
 
              Claimant further testified that his.surgery did provide 
 
         relief to the arm and that the pain was gone entirely, and also 
 
         that the pain relief continued until January 9, 1985.  However, 
 
         he conceded that this testimony contradicted testimony given in 
 
         his deposition, in which he testified that his pain was at the 
 
         time of deposition less severe than before his surgery, but that 
 
         surgery "didn't help" and was "not successful."
 
         
 
              The records of Dr. McCuskey show that claimant was seen 
 
         around November, 1982 with complaints of soreness around the 
 
         medial epicondyle of the left elbow.  He was given a steroid 
 
         injection and restricted.  After several more visits, claimant 
 
         was again injected with steroid on January 31, 1983.  He was 
 
         returned to full work activities on February 14.
 
         
 
              Claimant was seen again on October 26, 1983 complaining of 
 
         right elbow lateral epicondylitis.  He was treated with 
 
         anti-inflammatory pills and seen again on November 10, 1983.  He 
 
         at that time was injected with a steroid medication and treated 
 
         similarly again in January, 1984 after recurrence of pain.  He 
 
         was seen in February, 1984 with further recurrence and given a 
 
         third injection.  When next seen in March, 1984 after another 
 
         flare-up, claimant was treated surgically on the right side.  The 
 
         left elbow was not at that time troubling claimant.
 
         
 
              Claimant was next seen (by Dr. Field) on January 10, 1985 
 
         with bilateral complaints, and seen by Dr. McCuskey on January 29 
 
         and February 14.  Claimant was treated with steroid injection on 
 
         February 21, 1985 and had complete relief of his symptoms when 
 
         seen on March 14, 1985.  Dr. McCuskey's letter to Paul Oddy of 
 
         Metropolitan Life Insurance Company dated June 10, 1985 reflected 
 
         Dr. McCuskey's view that claimant should be permanently 
 
         restricted against lifting greater than 20 pounds repeatedly or 
 
         twisting, torquing activities bilaterally.
 
         
 
              In a letter to claimant's attorney of September 23, 1985, 
 
         Dr. McCuskey stated:
 
         
 
              These different problems have all originated while he was at 
 
              work although they have not been involved with a specific 
 
              injury.  Indeed, most epicondylitis does not involve a 
 
              specific injury but an accumulated (sic] stress to the 
 
              elbow.  In each case after initial treatment of these and 
 
              improvement of the epicondylitis, return to work has once 
 
              again resulted in him having recurrence of his 
 
              epicondylitis. Therefore, I believe there is a causal 
 
              relationship between his work activities and use of his arms 
 
              for lifting and twisting motions and his chronic, recurrent 
 
              symptoms.
 

 
              
 
 
 
 
 
 
 
 
 
 
 
         
 
              Dr. McCuskey expressed his view in that letter that each 
 
         episode of recurrence represented an aggravation of a preexisting 
 
         condition.  He was of the view that claimant had suffered a 15% 
 
         impairment to each arm which converted to a 17% impairment of the 
 
         whole person.
 
         
 
              Dr. Sterrett saw claimant upon referral by Dr. Faber, a 
 
         company physician, shortly after the alleged injury.  Dr. 
 
         Sterrett found no neurological deficit, including weakness of any 
 
         of the muscles of the upper extremities.  Interestingly, Dr. 
 
         Sterrett's notes include the following comment:
 
         
 
              Because of the poor response to injections, he underwent a 
 
              surgical Bosworth procedure of the right lateral epicondyle, 
 
              which was done by Dr. McCuskey on 3-27-84.  Several weeks 
 
              after the procedure and with rest, the patient's pain 
 
              subsided.  However, in September of this year, the patient 
 
              then developed similar pain in both the left and the right 
 
              elbow.  He tells me that it always would start after he 
 
              would begin working after lifting, pushing and pulling with 
 
              his extremities.  Recently, however, the pain is also noted, 
 
              even on those days which he is not working.
 
         
 
              Dr. McCuskey's deposition taken September 8, 1987 is also in 
 
         evidence.  He noted that claimant first presented with a 
 
         complaint of injuring his left elbow six to eight weeks before 
 
         November 15, 1982 while cutting wood.  His first diagnosis was 
 
         that of chronic medial epicondylitis.  When asked whether 
 
         claimant's condition was one that could be cured completely or 
 
         whether it simply went into remission or a dormant stage, Dr. 
 
         McCuskey replied:
 
         
 
              A.  If we're talking about cure in terms of symptoms where 
 
              people no longer have symptoms that bother them, yes, we 
 
              have a lot of patients that are cured from that.  If we talk 
 
              about injuries, any injuries we do not heal up with new 
 
              muscle.  If you tear some of the muscles or some of its 
 
              muscle-tendon junction, that heals up with scar tissue, 
 
              doesn't heal up with new muscle and tendon.  If you were a 
 
              tadpole you would make a new muscle or tendon.  Humans don't 
 
              have that ability to regenerate original tissue, they put 
 
              everything back together with scar tissue, and scar tissue 
 
              does a very good job, but we know that it doesn't do the 
 
              same thing as the original tissue and sometimes this is why 
 
              people have sensitivities around joint injuries in 
 
              particular where there may be scar tissue around an ankle 
 
              strain and it's tender with weather changes or activities 
 
              [sic] for several years later.
 
         
 
              We also know people have ankle strains and don't have any 
 
              problems anymore.  I don't know what those differences are. 
 
              Certainly the scar tissue tends to mature and become more 
 
              stable over several years, but it's still scar tissue, not 
 
              the original tissue, and if you want to say physiologically 
 
              does this elbow ever go back to perfectly completely normal, 
 
              I don't believe it does, but if you ask symptomatically are 
 
              the patients cured and they don't have any problem that 
 
              limits their activity, a certain number of them are and a 
 
              certain number of them aren't.
 

 
              
 
 
 
 
 
 
 
 
 
 
 
         
 
         (Joint exhibit 2, page 12, line 3 through page 13, line 5)
 
         
 
              When asked why surgical repair was not attempted on 
 
         claimant's left elbow, Dr. McCuskey testified:
 
         
 
              A.  Well, I kind of came to the feeling that with his 
 
              unusual number of different inflammations, medial 
 
              epicondylitis, lateral epicondylitis, both elbows, he always 
 
              did well when he was off work, as soon as he went back to 
 
              his work he had a flare-up again and I kind of felt that 
 
              there was something in his scar tissue or his way of 
 
              responding to this whole thing that no matter what I did 
 
              surgically or otherwise, he was not going to successfully 
 
              get rid of his symptoms and return back to the kind of work 
 
              he was doing, which was fairly muscular work.  He had strong 
 
              forearms and he was working on the wood and chopping and 
 
              twisting, and things he described to me were fairly 
 
              stressful to the arm, to the elbow in particular, and I 
 
              really thought that without having a good result on that 
 
              side I was pretty pessimistic of having a good result on the 
 
              other side, and that's what I told him.
 
         
 
         (Joint exhibit 2, page 16, line 22 through page 17, line 13)
 
         
 
              When asked whether the problem for which claimant was 
 
         treated following his alleged injury was the same problem for 
 
         which he had been treated since 1982, Dr. McCuskey agreed that 
 
         "they're all part of the same picture, yes."  When asked whether 
 
         his problem preexisted June, 1984, (when Georgia Pacific employed 
 
         claimant), Dr. McCuskey replied:
 
         
 
              A.  Well, in March of 185 we were seeing him for both 
 
              elbows, and he had had symptoms in both epicondyles and then 
 
              he had them in the medial epicondyle, at least on the right 
 
              side, and those -- well, just kind of take a quick look 
 
              here. November of '82 was the left elbow, medial, and in 
 
              October of '83 he had right elbow pain, he saw Dr. Field 
 
              then, and in November of '83 it was right elbow and January 
 
              of '84 his left elbow is doing pretty well, but his right 
 
              was bothering him.  In March of '84 his right elbow was 
 
              better and then February of '84 his right elbow flared up 
 
              once again and that's when he had his modified Bosworth on 
 
              the right.  He saw Dr. Field in January of '85 for both 
 
              elbows with the right being worse than the left, so he's had 
 
              right and left elbows both documented before whatever that 
 
              date was of '84. What was the date?
 
         
 
              Q.  June of '84.
 
              
 
              A.  June of '84.
 
              
 
         (Joint exhibit 2, page 23, line 11 through page 24, line 3)
 
         
 
              Dr. McCuskey described his view that after surgery the 
 
         stages of healing had been completed and claimant had achieved a 
 
         range of motion and strength compatible with a return to work.  
 
         He described it as "sort of a trial by fire."  You "return them 
 
         to their activities and see how they do."  When asked whether he 
 
         would anticipate that subsequent to surgery claimant would 
 
         experience recurrent difficulties with his elbows, Dr. McCuskey 
 
         replied:
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              A.  Based on the fact that he had had symptoms on both 
 
              medial and lateral epicondyles and on both elbows and we 
 
              only operated on the right lateral epicondyle, it would not 
 
              have surprised me if he had developed symptoms in the other 
 
              areas, and based on Bosworth procedures being done on 
 
              patients who have not responded to everything else and, no, 
 
              we don't get hundred percent cures with that, it wouldn't 
 
              have surprised me if he developed symptoms in that same area 
 
              which of interest to me was that it was apparently nine 
 
              months before he did have any complaints after his surgery.
 
         
 
         (Joint exhibit 2, page 27, line 15 through line 25)
 
         
 
              When asked whether a causal connection existed between 
 
         claimant's employment and his recurring epicondylitis, Dr. 
 
         McCuskey opined that there was such a causal connection, noting 
 
         that claimant had specific twisting and lifting activities that 
 
         caused the problem, and that when those activities are 
 
         restricted, he seems to get better.  He further opined that 
 
         claimant's condition was permanent:
 
         
 
              A.  My opinion is that it is permanent, and it's based on 
 
              the physiologic fact that scar tissue is a permanent way of 
 
              healing injured tissue and that his -- that he has been 
 
              through the whole gambit of surgical and conservative 
 
              treatments over a three year period of time and his symptoms 
 
              reoccur every time he returns to his lifting, twisting 
 
              activities of his arms.
 
              
 
         (Joint exhibit 2, page 36, line 18 through line 24)
 
         
 
              When specifically asked whether the alleged injury caused a 
 
         new physiological or pathological change to claimant's elbows, 
 
         Dr. McCuskey answered:
 
         
 
              Well, if you make the assumption that the last time he had 
 
              symptoms in that area was May 8 of 1984, that he hadn't seen 
 
              a doctor, to my knowledge, with complaints of his elbow 
 
              after he returned to work following that Bosworth procedure, 
 
              from May 8 until January 10th when he then said, "The day 
 
              before I got pain in my elbow," then I'd have to say that he 
 
              -- that that kind of historic causal relationship between 
 
              effect and result would be consistent with exacerbation of 
 
              some old scar tissue.  Whether he pulled new tissue, whether 
 
              he re-irritated the existing scar tissue which does not have 
 
              the elasticity or the resilience of the normal tissue or 
 
              not, I don't know, because I don't have any way of putting a 
 
              microscope in there and seeing it and nobody ever did and 
 
              nobody ever does, but you're really kind of left with the 
 
              historic fact, the time relationship, but as I indicated in 
 
              my earlier testimony, I think it is of interest that for 
 
              nine months after having had a series of problems he did 
 
              apparently well according to the clinic record.
 
              
 

 
              
 
 
 
 
 
 
 
 
 
 
 
         (Joint exhibit 2, page 40, line 6 through line 25)
 
         
 
              On further questioning as to whether the injury was a "new" 
 
         injury or condition, Dr. McCuskey stated:
 
         
 
              A.  I don't know.  I would have to know whether he tore some 
 
              tissue creating a new injury, and I suspect he probably did, 
 
              and at that point he had a new injury reaction, swelling, 
 
              irritation, inflow of fibrocytes, all different, and now 
 
              granulation tissue, which becomes easily irritated with 
 
              activities and does or does not respond to all different 
 
              conservative measures, otherwise why would he be able to do 
 
              the same activities with that old scar tissue not flaring up 
 
              for so long?  The scar tissue must have stabilized (sic], it 
 
              must have been fairly stable, and he could twenty pounds and 
 
              do his twisting held up, it didn't get injured, it didn't 
 
              cause a reaction, whereas, something happened on January 9th 
 
              and it may have been something very innocuous, but the right 
 
              twisting movements got the scar tissue caught in the way. 
 
              Maybe the tissues weren't as pliable, I don't know what 
 
              those factors may have been, but it suddenly wasn't a matter 
 
              of just overstraining it, everything caused it to be sore 
 
              and irritable.  So I would picture it as old stable scar 
 
              tissue, but tolerating his work activities, suddenly 
 
              suffering a tear of injury, a sudden exacerbation of that 
 
              pre-existing injury and now everything is an inflamed and --
 
         
 
              Q.  Would it be fair to say he has a predisposition towards 
 
              this problem?
 
         
 
              A.  I think he probably had a predisposition, because we 
 
              knew he had surgery and old scar tissue and knew he had a 
 
              chronic elbow problem in that area.
 
         
 
         (Joint exhibit 2, page 42, line 19 through page 43, line 22)
 
         
 
              When asked whether his physical impairment rating was a 
 
         direct result of the January 9 exacerbation or his general 
 
         condition, Dr. McCuskey responded:
 
         
 
              A.  That's a tough question, and I don't know of any real 
 
              good way to separate out.  I mean it's always a problem with 
 
              injuries on top of injuries, what did the second injury 
 
              contribute.  In fact, trying to assign physical impairment 
 
              to this situation is tough, because most of the standard 
 
              tables use range of motion.  This isn't a range of motion 
 
              problem, this is a recurrent pain problem that certainly 
 
              limits his lifting ability, and that's why I used -- I tried 
 
              to use a guideline that I thought was fair, and people who 
 
              have had had [sic] their radial head removed have good 
 
              motion, but they also have limits as to what they can pick 
 
              up and pull, so I used that number.  If you would ask me on 
 
              January 8 looking at a man who had had previous surgery to 
 
              his elbow and who had been back to work and was lifting 
 
              things and twisting things without any particular problems 
 
              and asked me what his physical impairment was, I would say 
 
              minimal, maybe two or three percent, because I knew there 
 
              was scar tissue there that might flare up down the road, so 
 
              you want to subtract two or three percent from fifteen, I 
 
              should say maybe that's what the change in my opinion would 
 
              be between January 8 had I seen him with a good functioning 
 
              elbow and some scar tissue and now where he doesn't tolerate 
 
              lifting twenty pounds and has recurrent flare-ups every time 
 
              he goes back to his job.
 

 
              
 
 
 
 
 
 
 
 
 
 
 
         
 
         (Joint exhibit 2, page 44, line 7 through page 45, line 7)
 
         
 
              Claimant was also seen for evaluation by Julian G. Nemmers, 
 
         M.D., on July 15, 1988.  Dr. Nemmers was deposed on October 25, 
 
         1988 and expressed opinions at substantial variance from those of 
 
         Dr. McCuskey.  He testified that he took a history from claimant 
 
         at the time of examination (claimant testified that no history 
 
         was taken) and that upon examination, claimant did not 
 
         demonstrate either of the two diagnostic signs of epicondylitis:  
 
         Tenderness over the epicondyle and pain when the wrist is 
 
         extended against resistance.  He stated:
 
         
 
              A.  The only diagnostic signs of tennis elbow are tenderness 
 
              over the epicondyle and also pain when you extend the wrist 
 
              against resistance.  Those are the two, the two physical 
 
              signs of tennis elbow.
 
         
 
              Q.  And did I understand you correctly to say you did not 
 
              find those symptoms present with Mr. Elliott?
 
         
 
              A.  That is correct.
 
              
 
              Q.  Did the absence of those symptoms indicate anything to 
 
              you?
 
         
 
              A.  The absence of those symptoms would indicate that he's 
 
              not suffering from any acute changes in his extensor tendon 
 
              that would produce him pain.  In other words, I basically do 
 
              not find epicondylitis at the present time.
 
              
 
              Q.  At the time you examined him?
 
              
 
              A.  Yes, sir.
 
         
 
         (Joint exhibit 3, page 10, line 22 through page 11, line 12)
 
         
 
              When asked directly whether he believed that claimant's 
 
         symptomatology of January, 1985 was a continuum of the 
 
         epicondylitis problem or new injury, Dr. Nemmers opined that it 
 
         would probably be a continuum and that his opinion was based on a 
 
         reasonable degree of medical certainty.
 
         
 
              Dr. Nemmers expressed the view that claimant had no evidence 
 
         of current epicondylitis at the time of evaluation and further, 
 
         that claimant was malingering and exaggerating symptoms.  He 
 
         noted:
 
         
 
              A.  When I examined him he did not exhibit any tenderness in 
 
              the elbow.  There was no swelling in the elbow.  He did not 
 
              exhibit pain in the elbow with extension or flexion of the 
 
              wrist against resistance, but I asked him to straighten his 
 
              elbows and he could not straighten his elbows beyond 70 
 
              degrees on the left elbow and 58 degrees on the right elbow, 
 
              and that position is untenable with daily living.  He 
 
              couldn't tend to his ordinary toilet functions with that 
 
              degree of limitation of motion in his elbow.  He would have 
 
              somebody have to go to the bathroom with him every time he 
 
              went.  So I don't believe he was making the best efforts to 
 
              show me what his problem was.
 

 
              
 
 
 
 
 
 
 
 
 
 
 
         
 
              * * *
 
         
 
              Q.  Would you conclude then based on your findings, and 
 
              again assuming he did have epicondylitis when he was being 
 
              treated by Dr. McCuskey, that that problem had resolved?
 
         
 
              A.  The problem of epicondylitis as I saw it had resolved. 
 
              Why he can't straighten his elbows, I have -- my only 
 
              explanation for that is a lack of effort.  I x-rayed his 
 
              elbows to make sure there was no pathology in the joint that 
 
              would limit extension of his elbows, and his elbow x-rays 
 
              are normal, so he does not have joint pathology that would 
 
              limit extension.
 
         
 
              Q.  I take it you found no pathological explanation or 
 
              physical explanation for why he couldn't extend his elbows?
 
         
 
              A.  That's correct.
 
         
 
              * * *
 
         
 
              Q.  Is muscle atrophy a symptom or condition associated with 
 
              epicondylitis?
 
         
 
              A.  In the usual case of epicondylitis it would not be a 
 
              physical finding, but in somebody who professed that he 
 
              couldn't use his arm I would expect his muscles to be 
 
              atrophied.  For somebody who is moving his arm to a range 
 
              only to 70 degrees extension I would expect considerable 
 
              atrophy, but I did not find the atrophy on this patient.
 
         
 
              Dr. Nemmers made no attempt to evaluate disability or 
 
         impairment because of his belief that claimant was malingering.
 
         
 
              Dr. McCuskey wrote to claimant's attorney on November 1, 
 
         1988 with his response to the findings of Dr. Nemmers.  He noted 
 
         that Dr. Nemmers' examination was almost a year after his own and 
 
         represented one single day in claimant's life, whereas Dr. 
 
         McCuskey had seen claimant over a considerable period of time.  
 
         He believed that Dr. Nemmers' view as to the general population 
 
         suffering from untreated lateral epicondylitis was not applicable 
 
         to claimant, in that he had significant pain and difficulty using 
 
         his arms.  Dr. McCuskey did not understand claimant's failure to 
 
         fully extend the elbows and did not believe this was true of 
 
         claimant when he was seen originally, and might represent an 
 
         acquired soft tissue contracture secondary to chronic pain 
 
         immobilization.  Dr. McCuskey suggested a third surgeon 
 
         evaluation as potentially able to answer that question, and that 
 
         if it was true, claimant's impairment was significantly greater 
 
         than originally calculated.
 
         
 
              The petition in this case was filed,on September 18, 1985.
 
         
 
                           APPLICABLE LAW AND ANALYSIS
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              Pursuant to Iowa Code section 85.26(l), an original 
 
         proceeding for benefits shall not be maintained unless the 
 
         proceeding is commenced within two years from the date of the 
 
         occurrence.  As this case was filed on September 18, 1985, and an 
 
         answer was filed on September 27, 1985, it is evident that the 
 
         cause was commenced within the statutory time.  The statute of 
 
         limitations is an affirmative defense.  Dart v. Sheller-Globe 
 
         Corporation, II Iowa Industrial Commissioner Report, 99 (1982). 
 
         Defendant has failed to meet its burden of proof in establishing 
 
         this affirmative defense.
 
         
 
              Claimant has the burden of proving by a preponderance of the 
 
         evidence that he received an injury on January 9, 1985 which 
 
         arose out of and in the course of his employment.  McDowell v. 
 
         Town of Clarksville, 241 N.W.2d 904 (Iowa 1976); Musselman .v. 
 
         Central Telephone Co., 261 Iowa 352, 154 N.W.2d 128 (1967).
 
         
 
              An employee is entitled to compensation for any and all 
 
         personal injuries which arise out of and in the course of the 
 
         employment.  Section 85.3(l).
 
         
 
              The injury must both arise out of and be in the course of 
 
         the employment.  Crowe v. DeSoto Consol.Sch. Dist., 246 Iowa 402, 
 
         68 N.W.2d 63 (1955) and cases cited at pp. 405-406 of the Iowa 
 
         Report.  See also Sister Mary Benedict v. St. Mary's Corp., 255 
 
         Iowa 847, 124 N.W.2d 548 (1963) and Hansen v. State of Iowa, 249 
 
         Iowa 1147, 91 N.W.2d 555 (1958).
 
         
 
              The words "out of" refer to the cause or source of the 
 
         injury.  Crowe v. DeSoto Consol. Sch. Dist., 246 Iowa 402, 68 
 
         N.W.2d 63 (1955).
 
         
 
              The supreme court of Iowa in Almquist v. Shenandoah 
 
         Nurseries, 218 Iowa 724, 254 N.W. 35 (1934) at 731-32, discussed 
 
         the definition of personal injury in workers' compensation cases 
 
         as follows:
 
         
 
              While a personal injury does not include an occupational 
 
              disease under the workmen's Compensation Act, yet an injury 
 
              to the health may be a personal injury [Citations omitted.] 
 
              Likewise a personal injury includes a disease resulting from 
 
              an injury....The result of changes in the human body 
 
              incident to the general processes of nature do not amount to 
 
              a personal injury.  This must follow, even though such 
 
              natural change may come about because the life has been 
 
              devoted to labor and hard work.  Such result of those 
 
              natural changes does not constitute a personal injury even 
 
              though the same brings about impairment of health or the 
 
              total or partial incapacity of the functions of the human 
 
              body.
 
              
 
                 ....
 
              
 
              A personal injury, contemplated by the Workmen's 
 
              Compensation Law, obviously means an injury to the body, the 
 
              impairment of health, or a disease, not excluded by the act, 
 
              which comes about, not through the natural building up and 
 
              tearing down of the human body, but because of a traumatic 
 
              or other hurt or damage to the health or body of an 
 
              employee.  [Citations omitted.]  The injury to the human 
 
              body here contemplated must be something, whether an 
 
              accident or not, that acts extraneously to the natural 
 
              processes of nature and thereby impairs the health, 
 
              overcomes, injures, interrupts, or destroys some function of 
 
              the body, or otherwise damages or injures a part or all of 
 

 
              
 
 
 
 
 
 
 
 
 
 
 
              the body.
 

 
              
 
 
 
 
 
 
 
 
 
 
 
              
 
              The claimant has the burden of proving by a preponderance of 
 
         the evidence that the injury of January 9, 1985 is causally 
 
         related to the disability on which he now bases his claim.  
 
         Bodish v. Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867 (1965).  
 
         Lindahl v. L.O. Boggs, 236 Iowa 296, 18 N.W.2d 607 (1945).  A 
 
         possibility is insufficient; a probability is necessary.  Burt v. 
 
         John Deere Waterloo Tractor Works, 247 Iowa 691, 73 N.W.2d 732 
 
         (1955).  The question of causal connection is essentially within 
 
         the domain of expert testimony.  Bradshaw v. Iowa Methodist 
 
         Hospital, 251 Iowa 375, 101 N.W.2d 167 (1960).
 
         
 
              However, expert medical evidence must be considered with all 
 
         other evidence introduced bearing on the causal connection.  
 
         Burt, 247 Iowa 691, 73 N.W.2d 732.  The opinion of experts need 
 
         not be couched in definite, positive or unequivocal language.  
 
         Sondag v. Ferris Hardware, 220 N.W.2d 903 (Iowa 1974).  However, 
 
         the expert opinion may be accepted or rejected, in whole or in 
 
         part, by the trier of fact.  Id. at 907.  Further, the weight to 
 
         be given to such an opinion is for the finder of fact, and that 
 
         may be affected by the completeness of the premise given the 
 
         expert and other surrounding circumstances.  Bodish, 257 Iowa 
 
         516, 133 N.W.2d 867.  See also Musselman v. Central Telephone 
 
         Co., 261 Iowa 352, 154 N.W.2d 128 (1967).
 
              
 
              While a claimant is not entitled to compensation for the 
 
         results of a preexisting injury or disease, the mere existence at 
 
         the time of a subsequent injury is not a defense.  Rose v. John 
 
         Deere Ottumwa Works, 247 Iowa 900, 908, 76 N.W.2nd 756 (1956).  
 
         If the claimant had a preexisting condition or disability that is 
 
         aggravated, accelerated, worsened or lighted up so that it 
 
         results in disability, claimant is entitled to recover.  Nicks v 
 
         Davenport Produce Co., 254 Iowa 130, 115 N.W.2d 812 (1962).
 
         
 
              The evidence in this case clearly shows that claimant 
 
         originally developed bilateral epicondylitis in a nonwork 
 
         situation and while working for a prior and nonparty employer. 
 
         There is a clear pattern of epicondylitis right and left along 
 
         with medial and lateral.  Dr. McCuskey has indicated that these 
 
         recurrent episodes are related to the physical effort claimant 
 
         has put forth in his work, both with St. Regis and with Georgia 
 
         Pacific.  The fighting issue in this case is whether the problems 
 
         that developed on January 9, 1985 consist of a mere temporary 
 
         aggravation or flare-up of symptoms relating to a preexisting 
 
         condition, or whether this is actually a new injury in terms of 
 
         aggravation, acceleration, worsening or "lighting up" of a 
 
         preexisting injury such as to result in disability.  Nicks, id.
 
         
 
              Dr. McCuskey and Dr. Nemmers have each expressed opinions on 
 
         this issue.  Unfortunately, the opinions are contradictory.  It 
 
         is not the case that a treating physician's testimony is 
 
         necessarily of greater weight than that of a physician who 
 
         examines claimant in anticipation of litigation.  Rockwell 
 
         Graphics Systems, Inc. v. Prince, 366 N.W.2d 187 (Iowa 1985).  
 
         Rather, factors such as education, compensation (Dr. Nemmers was 
 
         paid by defendant for his evaluation, but did not know the 
 
         amount), date of examination and experience all go to the value 
 
         of testimony.  The determination of which physician's testimony 
 
         is to be accepted is a question of fact, not law.  Rockwell 
 
         Graphics Systems, Inc., id.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              Both physicians are board-certified orthopaedic surgeons. 
 
         There is no showing that either physician's educational 
 
         background is superior to the other.  It is true that Dr. 
 
         McCuskey had the opportunity of viewing claimant over an extended 
 
         period of time, while Dr. Nemmers did not.  On the other hand, 
 
         Dr. Nemmers had the advantage of seeing claimant much more 
 
         recently than Dr. McCuskey.
 
         
 
              Dr. Nemmers was paid by defendant for his evaluation, but 
 
         Dr. McCuskey was presumably paid for his treatment of claimant.  
 
         Dr. Nemmers' testimony at his deposition was to the effect that 
 
         he has only a very limited number of evaluations in such cases; 
 
         he clearly does not depend upon such evaluations for a 
 
         substantial portion of his income.
 
         
 
              However, there are some substantial reasons for accepting 
 
         the opinion of Dr. Nemmers over that of Dr. McCuskey.  For one 
 
         thing, Dr. McCuskey's testimony as to whether claimant suffered a 
 
         "new" injury was relatively tentative when compared to that of 
 
         Dr. Nemmers.  Significantly, Dr. Nemmers' opinion is backed up by 
 
         clear clinical evidence to the effect that claimant was 
 
         malingering and does not suffer at the present time from 
 
         epicondylitis.  That is, claimant would be unable to perform his 
 
         normal toilet functions if his range of motion was so restricted 
 
         as he presented, claimant's range of motion was greater when 
 
         x-rays were taken than was the case upon examination, claimant's 
 
         arms were not atrophied as would be expected if he were limited 
 
         to the degree he presented, and claimant demonstrated neither of 
 
         the two diagnostic tests for epicondylitis:  Tenderness over the 
 
         epicondyle or pain while extending the hand against resistance.
 
         
 
              It should be noted at this point that claimant's demeanor 
 
         while testifying did not convince the undersigned that he was 
 
         testifying truthfully.  At various critical junctures during his 
 
         testimony, claimant appeared to this observer to be hesitant and 
 
         evasive.
 
         
 
              Yet, the most important factor in choosing between the 
 
         testimony of two physicians in this case is that Dr. McCuskey was 
 
         apparently given a faulty history in a very important respect.  A 
 
         review of Dr. McCuskey's testimony as set forth above indicates 
 
         the importance Dr. McCuskey assigned to the fact that claimant 
 
         was pain-free from his release to return to work in May, 1984 
 
         until the flare-up of January 9, 1985.  Claimant has himself 
 
         testified inconsistently as to this issue in hearing and in his 
 
         deposition. More significantly, the history claimant gave to Dr. 
 
         Sterrett is that of recurrence of pain in September, 1984.  While 
 
         Dr. Sterrett referred to September "of this year," that 
 
         observation was made in January, 1985, and certainly could not 
 
         have referred to any September but September, 1984.  It would be 
 
         speculative to consider what Dr. McCuskey's opinion would have 
 
         been if he had been aware that claimant's bilateral problems 
 
         recurred perhaps four months prior to the alleged injury date.
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
              Based on the foregoing, it is held that claimant has failed 
 
         to meet his burden of proof in establishing an injury arising out 
 
         of and in the course of his employment with defendant Georgia 
 
         Pacific, or disability caused by the same.  Therefore, the other 
 
         issues presented for resolution are moot.
 
         
 
                                 FINDINGS OF FACT
 
         
 
              THEREFORE, based on the evidence presented, the following 
 
         ultimate facts are found:
 
         
 
              1.  As stipulated, claimant was employed by defendant 
 
         Georgia Pacific on January 9, 1985.
 
              
 
              2.  Claimant was not a credible witness.
 
              
 
              3.  The opinions of Dr. Nemmers are more persuasive than the 
 
         opinions of Dr. McCuskey because of an inadequate history given 
 
         to Dr. McCuskey and by reason of clinical evidence supportive of 
 
         the opinions of Dr. Nemmers.
 
         
 
              4.  Claimant suffers from chronic bilateral epicondylitis 
 
         which began prior to the date he accepted employment with 
 
         defendant..
 
         
 
              5.  Claimant has not shown a work injury of January 9, 1985 
 
         that aggravated or worsened his preexisting condition.
 
         
 
              6.  Claimant filed his petition within two years of the 
 
         alleged date of injury.
 
         
 
                                CONCLUSIONS OF LAW
 
         
 
              WHEREFORE, based upon the principles of law previously 
 
         cited, the following conclusions are made:
 
         
 
              1.  Defendant has failed to establish its affirmative 
 
         defense of limitations under Iowa Code section 85.26.
 
              
 
              2.  Claimant has failed to meet his burden of proof in 
 
         establishing an injury arising out of and in the course of his 
 
         employment on or about January 9, 1985.
 
         
 
                                      ORDER
 
         
 
              THEREFORE, IT IS ORDERED:
 
         
 
              That claimant shall take nothing from this proceeding.
 
         
 
              That costs of this action shall be assessed against claimant 
 
         pursuant to Division of Industrial Services Rule 343-4.33.
 
         
 
              Signed and filed this 21st day of April 1989.
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         
 
         
 
         
 
         
 
                                         DAVID RASEY
 
                                         DEPUTY INDUSTRIAL COMMISSIONER
 
                                         
 
         Copies To:
 
         
 
         Mr. Nick J. Avgerinos
 
         Attorney at Law
 
         101 North Wacker Drive
 
         Suite 740
 
         Chicago, Illinois  60606
 
         
 
         Mr. David C. Bauer
 
         Mr. James M. Heckmann
 
         Attorneys at Law
 
         One CyCare Plaza, Suite 216
 
         Dubuque, Iowa  52001
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
 
                                            
 
 
 
 
 
 
 
 
 
 
 
                                            1402.30, 1402.40, 2206
 
                                            51403.30, 52402
 
                                            Filed April 21, 1989
 
                                            DAVID RASEY
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         MAX ELLIOTT,
 
         
 
              Claimant,
 
                                                File No. 801741
 
         vs.
 
                                             A R B I T R A T I 0 N
 
         GEORGIA PACIFIC,
 
                                                 D E C I S I 0 N
 
              Employer,
 
              Self-Insured,
 
              Defendant.
 
         
 
         
 
         51403.30, 52402
 
         
 
              Defendant failed to meet its burden of proof on limitations 
 
         defense where petition was filed within two years of alleged 
 
         injury.
 
         
 
         1402.30, 1402.40, 2206
 
         
 
              Claimant failed to meet burden of proof in showing injury 
 
         arising out of employment, where he suffered flare-up of symptoms 
 
         relating to preexisting bilateral chronic epicondylitis.
 
         
 
              Treating physician's testimony was given less weight than 
 
         examining physician's due to faulty history given the former and 
 
         consistent physical findings of the latter.
 
         
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
 
         
 
 
 
 
 
 
 
 
 
 
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         GENEVA L. YOUNG,
 
         
 
              Claimant,                                File No. 801790
 
         
 
         vs.                                        A R B I T R A T I O N
 
                                                 
 
         DOERR ELECTRIC,                               D E C I S I O N
 
                                            
 
              Employer,
 
                                                          F I L E D
 
         and
 
                                                         MAR 28 1990
 
         AETNA CASUALTY & SURETY
 
         COMPANY,                              IOWA INDUSTRIAL 
 
         COMMISSIONER
 
                                                      
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
                              STATEMENT OF THE CASE
 
         
 
              This is a proceeding in arbitration brought by Geneva L. 
 
         Young, claimant, against Doerr Electric, employer (hereinafter 
 
         referred to as Doerr), and Aetna Casualty & Surety Company, 
 
         insurance carrier, defendants, for workers' compensation benefits 
 
         as a result of an alleged injury on August 5, 1985.  On September 
 
         7, 1989, a hearing was held on claimant's petition and the matter 
 
         was considered fully submitted at the close of this hearing.
 
         
 
              The parties have submitted a.prehearing report of contested 
 
         issues and stipulations which was approved and accepted as a part 
 
         of the record of this case at the time of hearing.  Oral 
 
         testimony and written exhibits were received during the hearing 
 
         from the parties.  The exhibits offered into the evidence are 
 
         listed in the prehearing report.
 
         
 
              According to the prehearing report, the parties have 
 
         stipulated to the following matters:
 
         
 
              1.  On August 5, 1985, claimant received an injury which 
 
         arose out of and in the course of his employment with Doerr.
 
         
 
              2.  Claimant is seeking additional healing period benefits 
 
         from May 29, 1986 through August 18, 1986 and defendants agree 
 
         she was not working during this period of time.  Defendants also 
 
         agree that claimant is entitled to healing period benefits from 
 
         the date of injury to May 28, 1986.
 
         
 
              3.  The work injury is a cause of permanent disability and 
 
         the type of disability is an industrial disability to the body as 
 
         a whole.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              4.  Claimant's rate of weekly compensation in the event of 
 
         an award of weekly benefits from this proceeding shall be 
 
         $138.85.
 
         
 
              5.  The issue of entitlement to medical bills is no longer 
 
         in dispute.
 
         
 
                                      ISSUES
 
         
 
              The only issue submitted by the parties for determination in 
 
         this proceeding is the extent of claimant's entitlement to weekly 
 
         benefits for permanent disability.
 
         
 
                              STATEMENT OF THE FACTS
 
         
 
              The following is a brief statement highlighting some of the 
 
         more pertinent evidence presented.  Whether or not specifically 
 
         referred to in this statement, all of the evidence received at 
 
         the hearing was independently reviewed and considered in arriving 
 
         at this decision.  Any conclusions about the evidence received 
 
         contained in the following statement shall be viewed as 
 
         preliminary findings of fact.
 
         
 
              Claimant testified that she worked for Doerr for 
 
         approximately four to five years prior to her injury.  She earned 
 
         $5.05 per hour in her job at the time of the injury.  This job 
 
         consisted of assembly work in which she tucked and taped 
 
         electrical wires on to a stator which is a part of an electrical 
 
         motor.
 
         
 
              The facts surrounding the work injury are not in dispute. 
 
         While reaching for a stator at shoulder level, claimant stated 
 
         that she began to experience "terrific" pain.  She described this 
 
         pain as a tearing or popping sensation to her physicians after 
 
         the injury.  Claimant sought initial treatment from her 
 
         chiropractor but eventually received treatment from a medical 
 
         doctor who prescribed medication and bed rest.  After claimant 
 
         failed to satisfactorily improve, claimant was referred to an 
 
         orthopedic surgeon, Warren Verdeck, M.D.
 
         
 
              Dr. Verdeck treated claimant over the next several months. 
 
         Dr. Verdeck noted that claimant had prior back surgery in 1977 
 
         called a "fusion."  Claimant told him that she had no problems 
 
         after the surgery until the work injury in this case.  Dr. 
 
         Verdeck's treatment of claimant remained conservative consisting 
 
         of medication, bed rest and physical exercises.  Although the 
 
         initial intense pain subsided, claimant continued to complain of 
 
         a persistent burning pain in her low back radiating into her hips 
 
         and legs.  As he could not find any objective evidence of 
 
         mechanical problems, Dr. Verdeck referred claimant to Winthorp 
 
         Risk, M.D., a neurologist, in September 1985.
 
         
 
              Dr. Risk then treated claimant over the next several months. 
 
         According to Dr. Risk's office notes, his extensive testing 
 
         likewise did not provide objective evidence of problems.  Dr. 
 
         Risk initially could find no cause for claimant's symptoms in 
 
         that the burning pain was not typical of musculoskeletal pain.  
 
         However, in April 1986, he concluded that there could be no other 
 
         plausible explanation for claimant's difficulties given the 
 
         history and finally diagnosed a radiculopathy secondary to the 
 
         on-the-job injury of August 5, 1985.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              On one occasion in April 1986, claimant attempted to return 
 
         to work to a part-time job at Doerr which only required 
 
         repetitive lifting of bundles weighing 10 to 12 pounds.  Claimant 
 
         was able to complete four hours of this work but reported to her 
 
         physicians afterwards that severe pain at home ensued following 
 
         this activity.  Claimant stated she was not able to return to 
 
         work in any capacity after this attempt to return to work.
 
         
 
              On May 13, 1986, Dr. Risk concluded that claimant had 
 
         reached maximum neurological benefit and referred claimant back 
 
         to Dr. Verdeck.  When Dr. Verdeck examined claimant on May 28, 
 
         1986, he concluded that claimant had also reached maximum healing 
 
         from an orthopedic standpoint.  At this time, Dr. Verdeck opined 
 
         that claimant has suffered a 10 percent permanent partial 
 
         impairment as a result of the August 5, 1985 work injury.
 
         
 
              The University of Iowa Hospitals and Clinics has evaluated 
 
         claimant twice.  In 1985, these physicians concluded that 
 
         claimant had musculoskeletal pain but no evidence of 
 
         radiculopathy.  In 1987, claimant was evaluated at the Orthopedic 
 
         Back Clinic at the University Hospitals at which time a 
 
         functional capacities assessment was made.  According to this 
 
         assessment, claimant was rated as having a 10 to 12 percent 
 
         permanent partial impairment and there was a recommendation that 
 
         she not lift over 20 pounds on a single occasion or 10 pounds 
 
         repetitively.
 
         
 
              In July 1987, Dr. Risk stated that claimant is unable to 
 
         return to her former job at Doerr.  He stated that she would 
 
         require some sort of sedentary work but he felt that her 
 
         educational qualifications may preclude her from the only work 
 
         she is able to perform.
 
         
 
              In his deposition testimony, Dr. Verdeck testified that 
 
         despite his written report, he is more comfortable with an August 
 
         18, 1986 date as to the time when claimant achieved maximum 
 
         healing.  Dr. Verdeck also essentially agrees with Dr. Risk's 
 
         assessment of claimant's ability to return to work.  He stated 
 
         that she is able to perform some sedentary work such as envelope 
 
         stuffing or telephone sales work if such work is available.  Dr. 
 
         Verdeck imposes the following work restrictions:  no heavy 
 
         lifting over 10 to 15 pounds, no repetitive bending, stooping, 
 
         stretching or reaching; and no prolonged sitting or standing.  
 
         Dr. Verdeck has also stated that he believes claimant to be 
 
         motivated and honest.
 
         
 
              Claimant described her current condition as unchanged since 
 
         1986.  She complains of pain with any sort of activity and that 
 
         she must rely upon medications to function.  She denies any back 
 
         problems after the fusion surgery until August 5, 1985.
 
         
 
              Claimant testified that her employment prior to Doerr was 
 
         primarily unskilled manual labor in such jobs as house cleaning, 
 
         dish washing, office custodian and assembler in a door factory.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              Claimant is 57 years of age.  She was 53 at the time of her 
 
         injury.  Claimant has only an eighth grade education.  She said 
 
         she dropped out of school as a child to help in the family farm 
 
         operation.  Claimant stated that she has not sought suitable work 
 
         outside of Doerr but states that she does not know what kind of 
 
         work is available to her given her physical problems.
 
         
 
              A report from a vocational consultant, Thomas Magner, was 
 
         received into evidence.  It was stipulated that he is a certified 
 
         vocational rehabilitation consultant.  In his report, after 
 
         noting claimant's medical history and past work experience, 
 
         Magner concludes that claimant has no transferable skills and 
 
         that her skills are so limited that no reasonable or stable 
 
         market exists for them.  He states that it is unrealistic to 
 
         expect claimant to perform even a sitting job given her inability 
 
         to sit for extended periods of time.
 
         
 
                           APPLICABLE LAW AND ANALYSIS
 
         
 
              Note:  A credibility finding is necessary to this decision 
 
         as defendants place claimant's credibility at issue during 
 
         cross-examination as to the nature and extent of the disability.  
 
         From her demeanor while testifying, claimant will be found 
 
         credible.
 
         
 
              Claimant must establish by a preponderance of the evidence 
 
         the extent of weekly benefits for permanent disability to which 
 
         claimant is entitled.  As the claimant has shown that the work 
 
         injury was a cause of a permanent physical impairment or 
 
         limitation upon activity involving the body as a whole, the 
 
         degree of permanent disability must be measured pursuant to Iowa 
 
         Code section 85.34(2)(u).  However, unlike scheduled member 
 
         disabilities, the degree of disability under this provision is 
 
         not measured solely by the extent of a functional impairment or 
 
         loss of use of a body member.  A disability to the body as a 
 
         whole or an "industrial disability" is a loss of earning capacity 
 
         resulting from the work injury.  Diederich v. Tri-City Railway 
 
         Co., 219 Iowa 587, 593, 258 N.W. 899 (1935).  A physical 
 
         impairment or restriction on work activity may or may not result 
 
         in such a loss of earning capacity.  The extent to which a work 
 
         injury and a resulting medical condition has resulted in an 
 
         industrial disability is determined from examination of several 
 
         factors. These factors include the employee's medical condition 
 
         prior to the injury, immediately after the injury and presently; 
 
         the situs of the injury, its severity and the length of healing 
 
         period; the work experience of the employee prior to the injury, 
 
         after the injury and potential for rehabilitation; the employee's 
 
         qualifications intellectually, emotionally and physically; 
 
         earnings prior and subsequent to the injury; age; education; 
 
         motivation; functional impairment as a result of the injury; and 
 
         inability because of the injury to engage in employment for which 
 
         the employee is fitted.  Loss of earnings caused by a job 
 
         transfer for reasons related to the injury is also relevant.  
 
         Olson v. Goodyear Service Stores, 255 Iowa 1112, 1121, 125 N.W.2d 
 
         251, 257 (1963).  See Peterson v. Truck Haven Cafe, Inc., (Appeal 
 
         Decision, February 28, 1985).
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              Although claimant's medical condition before the work injury 
 
         in this case was not excellent given her prior fusion surgery and 
 
         Dr. Verdeck's deposition testimony that claimant may have had 
 
         some functional impairment prior to August 5, 1985, claimant had 
 
         no ascertainable inability to work or loss of earning capacity 
 
         prior to August 5, 1985.  Claimant was able to fully perform 
 
         repetitive physical tasks involving repetitive lifting, 
 
         stretching, reaching, twisting and stooping and prolonged 
 
         standing and sitting. Subsequent to August 5, 1985, she could no 
 
         longer perform such activities.  Claimant's physicians have 
 
         recommended that she not return to her job at Doerr and have 
 
         restricted her work activities to the extent that she cannot 
 
         return to most of the manual labor work she has performed in the 
 
         past.  Manual labor work appears to be the type of work for which 
 
         she is best suited given her past work experience and eighth 
 
         grade education.
 
         
 
              Claimant argues for application of the so-called "odd-lot" 
 
         doctrine.  This doctrine is a procedural device designed to shift 
 
         the burden of proof with respect to employability to the employer 
 
         in certain factual settings.  Klein v. Furnas Elec. Co., 384 
 
         N.W.2d 370, 375 (Iowa 1986).  Under this "odd-lot" doctrine, 
 
         claimant is able to establish a prima facie case for 
 
         unemployability and permanent total disability benefits from only 
 
         a factual showing of a reasonable but unsuccessful effort to find 
 
         suitable work.  If defendants then fail to go forward with the 
 
         evidence on the issue of availability of suitable work, claimant 
 
         is entitled to an award of permanent total disability.  Guyton v. 
 
         Irving Jensen Co., 373 N.W.2d 101, 105 (Iowa 1985).
 
         
 
              However, the industrial commissioner has directed that this 
 
         doctrine cannot be applied by a deputy without a showing of a 
 
         reasonable effort to secure suitable employment.  Collins v. 
 
         Friendship Village, Inc., case number 679258, Appeal Decision 
 
         filed October 31, 1988; Pyle v. Carstensen Freightlines, Inc., 
 
         case number 753661, Appeal Decision filed July 27, 1987.  Also, 
 
         an effort to only attempt a return to work at the location where 
 
         the injury occurred is likewise insufficient to invoke the 
 
         doctrine. Stober v. Clear Lake Bakery, case number 792635, Appeal 
 
         Decision filed December 29, 1989.  In this case, claimant did not 
 
         look for work beyond Doerr Electric.  Therefore, the odd-lot 
 
         doctrine cannot be applied pursuant to agency precedent binding 
 
         upon the undersigned.  This, however, does not preclude a finding 
 
         of permanent total disability if claimant otherwise establishes a 
 
         showing of permanent total disability.
 
         
 
              Claimant was 53 years of age at the time of injury.  She is 
 
         now 57 and nearing the end of her working career.  Her loss of 
 
         future earnings from employment due to her disability is not as 
 
         severe as would be the case for a younger individual.  However, 
 
         her age does not preclude a finding of permanent total disability 
 
         in appropriate cases.  Diederich, 219 Iowa 587, 593, 258 N.W. 899 
 
         (1935).  It should be noted that claimant had no early retirement 
 
         plans at the time of the injury.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              Claimant has only an eighth grade education and exhibited 
 
         average intelligence at the hearing.  Other than the opinions of 
 
         the vocational consultant, little was shown to indicate 
 
         claimant's potential for vocational rehabilitation.
 
         
 
              The views of the vocational consultant were not given much 
 
         weight as the report failed to explain how the consultant arrived 
 
         at his conclusions.  There was no reference to any skill testing 
 
         of the claimant.  There was apparently no actual search or study 
 
         of the local labor market with claimant's abilities in mind.  The 
 
         consultant appears to arrive at the conclusion that claimant is 
 
         not able to perform sedentary work from a review of the medical 
 
         records concerning her functional abilities.  However, both Drs. 
 
         Risk and Verdeck felt that sedentary work was possible.  Their 
 
         only concern was the availability of such work.  Essentially, the 
 
         vocational counselor did not explain why he felt such work was 
 
         not available.
 
         
 
              After examination of all the factors, claimant failed to 
 
         demonstrate that she is permanently and totally disabled.  
 
         However, she does have a very serious disability.   It is found 
 
         that claimant has suffered a 60 percent loss of her earning 
 
         capacity from her work injury.  Based upon such a finding, 
 
         claimant is entitled as a matter of law to 300 weeks of permanent 
 
         partial disability benefits under Iowa Code section 85.34(2)(u) 
 
         which is 60 percent of 500 weeks, the maximum allowable for an 
 
         injury to the body as a whole in that subsection.
 
         
 
              As claimant has established entitlement to permanent partial 
 
         disability, claimant may be entitled to weekly benefits for 
 
         healing period under Iowa Code section 85.34 from the date of 
 
         injury until claimant returns to work; until claimant is 
 
         medically capable of returning to substantially similar work to 
 
         the work she was performing at the time of the injury; or, until 
 
         it is indicated that significant improvement from the injury is 
 
         not anticipated, whichever occurs first.
 
         
 
              Although Dr. Verdeck stated initially that maximum healing 
 
         was reached on May 28, 1986, his deposition testimony clearly 
 
         indicated that he now thinks that the date should be August 18, 
 
         1986.  The additional healing period benefits will be awarded.
 
         
 
                                 FINDINGS OF FACT
 
         
 
              1.  Claimant was a credible witness.  Claimant's appearance 
 
         while testifying indicated that she was testifying truthfully.
 
         
 
              2.  The work injury of August 5, 1985, is a cause of a 10 
 
         percent permanent,partial impairment to the body as a whole and 
 
         of permanent restrictions upon claimant's physical activity 
 
         consisting of no lifting over 10 to 15 pounds, no repetitive 
 
         bending, stooping, reaching, twisting or stretching; and, no 
 
         prolonged standing or sitting.  Claimant had some ascertainable 
 
         functional impairment prior to the work injury due to her prior 
 
         back surgery.  However, claimant's credible testimony established 
 
         that she had no difficulties performing manual labor work prior 
 
         to August 5, 1985 and experienced no chronic pain prior to that 
 
         time.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              3.  The work injury of August 5, 1985 and the resulting 
 
         permanent partial impairment is a cause of a 60 percent loss of 
 
         earning capacity.  Claimant is 57 years of age and has an eighth 
 
         grade education.  Claimant has no ascertainable loss of earning 
 
         capacity prior to the work injury.  Claimant's physician imposed 
 
         work/activity restrictions prevent a return to the job she was 
 
         performing at the time of injury.  Claimant is also unable to 
 
         return to manual labor jobs she has held in the past.  Claimant's 
 
         employment in manual labor occupations, the type of occupations 
 
         for which she is best suited, is the type of occupations for 
 
         which she is best suited given her prior work history and lack of 
 
         formal education.  Despite good motivation and effort to return 
 
         to work at Doerr, claimant has not been employed since the work 
 
         injury and has suffered a severe loss of actual earnings.  
 
         Claimant's potential for vocational rehabilitation appears low 
 
         but no testing has been performed over her abilities.  Claimant 
 
         appeared to possess average communication and intellectual skills 
 
         at hearing. Claimant has not looked for suitable work outside of 
 
         Doerr Electric.  Claimant is capable of sedentary work so long as 
 
         she is able to change positions.  Claimant has failed to show 
 
         that such work is wholly unavailable to her.
 
         
 
                                CONCLUSIONS OF LAW
 
         
 
              Claimant has established under law entitlement to additional 
 
         healing period benefits in the amount of 11 5/7 weeks and to an 
 
         additional 250 weeks of permanent partial disability benefits. 
 
         Claimant failed to show by the evidence entitlement to permanent 
 
         total disability benefits.
 
         
 
                                      ORDER
 
         
 
              1.  Defendants shall pay to claimant three hundred (300) 
 
         weeks of permanent partial disability benefits at the rate of one 
 
         hundred thirty-eight and 85/100 dollars ($138.85) per week from 
 
         August 19, 1986.
 
         
 
              2.  Defendants shall pay to claimant healing period benefits 
 
         from August 5, 1985 through August 18, 1986 at the rate of one 
 
         hundred thirty-eight and 85/100 dollars ($138.85) per week
 
         
 
              3.  Defendants shall pay accrued weekly benefits in a lump 
 
         sum and shall receive credit against this award for weekly 
 
         benefits previously paid.
 
         
 
              4.  Defendants shall pay interest on weekly benefits awarded 
 
         herein as set forth in Iowa Code section 85.30.
 
              
 
              5. Defendants shall pay the cost of this action pursuant to 
 
         Division of Industrial Services Rule 343-4.33.
 
         
 
              6.  Defendants shall file activity reports on the payment of 
 
         this award as requested by this agency pursuant to Division of 
 
         Industrial Services Rule 343-3.1.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         
 
              Signed and filed this 28th day of March, 1990.
 
         
 
         
 
         
 
         
 
         
 
         
 
                                            LARRY P.WALSHIRE
 
                                            DEPUTY INDUSTRIAL COMMISSIONER
 
                                            
 
         Copies To:
 
         
 
         Mr. John L. Riccolo
 
         Attorney at Law
 
         Suite 1140 The Center
 
         425 2nd St SE
 
         Cedar Rapids, IA  52401
 
         
 
         Mr. Larry L. Shepler
 
         Attorney at Law
 
         Executive Square, Suite 102
 
         400 Main St
 
         Davenport, IA  52801
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
 
                                            
 
 
 
 
 
 
 
 
 
 
 
                                            5-1805
 
                                            Filed March 28, 1990
 
                                            LARRY P. WALSHIRE
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         GENEVA L. YOUNG,
 
         
 
              Claimant,
 
         
 
         vs.
 
                                                    File No. 801790
 
         DOERR ELECTRIC,
 
                                                 A R B I T R A T I 0 N
 
              Employer,
 
                                                     D E C I S I 0 N
 
         and
 
         
 
         AETNA CASUALTY & SURETY
 
         COMPANY,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         5-1805 - Extent of disability.
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                                           :
 
            JOYCE MILLER,                  :
 
                                           :
 
                 Claimant,                 :
 
                                           :
 
            vs.                            :      File Nos. 801804
 
                                           :                837426
 
            LAURIDSEN FOODS, INC.,         :
 
                                           :        A P P E A L
 
                 Employer,                 :
 
                                           :      D E C I S I O N
 
            and                            :
 
                                           :
 
            EMPLOYERS MUTUAL COMPANIES     :
 
            and HARTFORD INSURANCE COMPANY,:
 
                                           :
 
                 Insurance Carriers,       :
 
                 Defendants.               :
 
            ___________________________________________________________
 
            
 
            
 
                              STATEMENT OF THE CASE
 
            
 
                 Claimant appeals from an arbitration decision awarding  
 
            permanent partial disability benefits as the result of an 
 
            alleged injury on September 26, 1986.  Defendants 
 
            cross-appeal.
 
            
 
                 The record on appeal consists of the transcript of the 
 
            arbitration proceeding; claimant's exhibits A through J; and 
 
            defendants' exhibits 1 through 7.  All parties filed briefs 
 
            on appeal.  Defendants Lauridsen Foods and Employers Mutual 
 
            Insurance and claimant filed reply briefs.
 
            
 
                                      ISSUES
 
            
 
                 Claimant states the following issues on appeal:
 
            
 
                 Issue 1
 
            
 
                 Did the prehearing deputy err when she continued 
 
                 the second prehearing conference and allowed 
 
                 further discovery upon the oral request of the 
 
                 defendants and over the objections of the 
 
                 claimant?
 
            
 
                 Issue 2
 
            
 
                 Did the prehearing deputy err when she denied the 
 
                 claimant's motion for leave to amend her petition?
 
            
 
                 Issue 3
 
            
 
                 Did the hearing deputy err when at the 
 
                 commencement of the hearing he granted the 
 
                 defendants' motion to impose witness exclusion 
 
                 sanctions, which motion just had been served on 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
                 claimant moments before?
 
            
 
                 Issue 4
 
            
 
                 Did the hearing deputy err by not permitting 
 
                 claimant and her spouse the allotted and/or 
 
                 required time in which to testify?
 
            
 
                 Issue 5
 
            
 
                 Did the hearing deputy err by excluding from 
 
                 evidence claimant's side of the correspondence 
 
                 between the parties?
 
            
 
                 Issue 6
 
            
 
                 Did the hearing deputy err by determining that 
 
                 neither any injury in 1985, nor a whole body 
 
                 injury at any time had been sustained and had 
 
                 arisen out of and in the course of employment?
 
            
 
                 Issue 7
 
            
 
                 Did the hearing deputy err by not providing 
 
                 payment of permanent partial disability 
 
                 compensation during the payment of temporary 
 
                 partial benefits?
 
             award "temporary partial" disability benefits "at 
 
                 the rate of $226.65"?
 
            
 
                    3.  Was claimant entitled to healing period 
 
                 benefits for the period from 2/17/87 to 4/3/87?
 
            
 
                    4.  Were the expenses of medical reports 
 
                 properly allowed as costs and reasonable?
 
            
 
                                 FINDINGS OF FACT
 
            
 
                 The findings of fact contained in the proposed agency 
 
            decision filed April 26, 1991 are adopted as final agency 
 
            action.
 
            
 
                                CONCLUSIONS OF LAW
 
            
 
                 The conclusions of law contained in the proposed agency 
 
            decision filed April 26, 1991 are adopted as final agency 
 
            action, with the following additional analysis:
 
            
 
                 Defendants Lauridsen Foods and Employers Mutual allege 
 
            that an error was made in the calculation of claimant's 
 
            rate, specifically that overtime hours were calculated at 
 
            time and a half instead of "straight" time rate.  Claimant 
 
            appears to agree, although claimant does not accept the 
 
            September 26, 1986 injury date.  September 26, 1986 is the 
 
            appropriate date of injury.  Claimant's gross earnings at 
 
            the time of the injury were $336.65 per week, which yields a 
 
            rate of $219.27 for a married worker with four exemptions.
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            
 
                 Defendants, as cross-appellants, challenge certain 
 
            medical reports assessed as costs.  Rule 343 IAC 4.33 
 
            contemplates assessing as costs the expense of obtaining two 
 
            doctor's or practitioner's reports.  However, under Iowa 
 
            Code section 622.72, an expert witness's fee is limited to 
 
            $150.  It makes little sense to limit the costs of an in 
 
            person appearance by a physician to $150, while compensating 
 
            a written report by the physician at a higher rate.  The 
 
            charges for obtaining the reports of Dr. Meade and Dr. 
 
            Bergman will be assessed as costs up to $150 for each 
 
            physician.  
 
            
 
                 Both claimant and defendants Lauridsen Foods and 
 
            Employers Mutual agree on appeal that an error was made as 
 
            to the calculation of claimant's temporary partial 
 
            disability.  In that there is no dispute on this issue which 
 
            requires a determination by this agency, the parties will be 
 
            ordered to calculate the rate at which temporary partial 
 
            disability compensation will be paid as governed by Iowa 
 
            Code section 85.33(4).
 
            
 
                 Defendants challenge claimant's entitlement to healing 
 
            period benefits for the period February 27, 1987 through 
 
            April 3, 1987, contending that claimant was off work during 
 
            this period not as a result of her work injury, but due to 
 
            the delivery of her child.  If a claimant is otherwise 
 
            entitled to healing period benefits under Iowa Code section 
 
            85.34(1) and none of the three events enumerated in that 
 
            section have occurred to terminate the healing period, 
 
            claimant is entitled to healing period benefits even if 
 
            another factor would have prevented claimant from working as 
 
            well.  There is no reduction or apportionment of healing 
 
            period benefits simply because claimant is concurrently 
 
            disabled for other reasons or is entitled to other 
 
            disability benefits for some other reason.  Tarr v. John 
 
            Deere Waterloo Works, Arbitration Decision, March 5, 1992.   
 
            Also see Bertlshofer v. Fruehauf Corporation, Appeal 
 
            Decision, April 14, 1988 (healing period not interrupted by 
 
            layoff), and Harlow v. IBP, Inc., Arbitration Decision, 
 
            April 29, 1991 (healing period payable even though claimant 
 
            incarcerated).  
 
            
 
                 WHEREFORE, the decision of the deputy is affirmed and 
 
            modified.
 
            
 
                                      ORDER
 
            
 
                 THEREFORE, it is ordered:
 
            
 
                 As to File No. 837426 (September 26, 1986 Cumulative 
 
            Injury):
 
            
 
                 That defendants shall pay unto claimant healing period 
 
            benefits at the rate of two hundred nineteen and 27/100 
 
            dollars ($219.27) beginning November 7, 1986 through October 
 
            18, 1987; February 4, 1988 through March 14, 1988; and May 
 
            16, 1988 through May 25, 1988.
 
            
 
                 That defendants shall pay unto claimant twenty (20) 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            weeks of permanent partial disability benefits at the rate 
 
            of two hundred nineteen and 27/100 dollars ($219.27) 
 
            beginning October 19, 1987 until paid except that said 
 
            permanent partial disability benefits shall be suspended 
 
            during any subsequent healing period set out herein and 
 
            continued again until the balance of the payments are paid.
 
            
 
                 That defendants shall pay unto claimant temporary 
 
            partial disability benefits for the following periods.
 
            
 
                 10/19/87 - 10/25/87           4/11/88  - 4/17/88
 
                 10/26/87 - 11/1/87            4/18/88  - 4/24/88
 
                 11/2/87  - 11/8/87            4/25/88  - 5/1/88
 
                 11/9/87  - 11/15/87           5/2/88   - 5/8/88
 
                 11/16/87 - 11/22/87           5/9/88   - 5/15/88
 
                 11/23/87 - 11/29/87           5/26/88  - 5/29/88
 
                 3/15/88  - 3/20/88            5/30/88  - 6/5/88
 
                 3/21/88  - 3/27/88            6/6/88   - 6/12/88
 
                 3/28/88  - 4/3/88             6/12/88  - 6/14/88
 
                 4/4/88   - 4/10/88
 
            
 
                 That claimant shall be compensated for temporary 
 
            partial disability at the rate specified in Iowa Code 
 
            section 85.33(4), to be determined by the parties. 
 
            
 
                 That permanent partial disability benefits are not 
 
            payable during those times in which temporary partial 
 
            benefits or healing period benefits are being paid.
 
            
 
                 That defendants shall pay accrued weekly benefits in a 
 
            lump sum and shall receive credit against the award for 
 
            weekly bene-fits previously paid.
 
            
 
                 That defendants shall pay interest on benefits awarded 
 
            herein as set forth in Iowa Code section 85.30.
 
            
 
                 That claimant takes nothing regarding File No. 801804 
 
            (alleged August 15, 1985 injury).
 
            
 
                 That defendants shall pay the costs of these actions, 
 
            pursuant to rule 343 IAC 4.33, including the costs of 
 
            obtaining the report of Dr. Bergman up to a maximum of one 
 
            hundred fifty ($150) and for the costs of obtaining the 
 
            report of Dr. Meade up to a maximum of one hundred fifty 
 
            ($150).
 
            
 
                 That defendants shall file an activity report upon 
 
            payment of this award as required by this agency, pursuant 
 
            to rule 343 IAC 3.1.
 
            
 
                 That where defendants are referred to above in this 
 
            order, it shall not be applicable to the Hartford Insurance 
 
            Company in that there is no liability for any injury herein 
 
            regarding said Hartford Insurance Company as their insurance 
 
            coverage did not occur within the injury date determined 
 
            herein.  Therefore, defendants in this order shall only 
 
            refer to Lauridsen Foods, Inc. and Employers Mutual 
 
            Insurance Company.
 
            
 
                 Signed and filed this ____ day of June, 1992.
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
                                          
 
                                       ________________________________
 
                                                   BYRON K. ORTON
 
                                               INDUSTRIAL COMMISSIONER
 
            
 
            
 
            Copies to:
 
            
 
            Mr. Mark S. Soldat
 
            Attorney at Law
 
            714 E State Street
 
            Algona, Iowa  50511
 
            
 
            Mr. Robert C. Landess
 
            Attorney at Law
 
            Terrace Center  Ste 111
 
            2700 Grand Avenue
 
            Des Moines, Iowa  50312
 
            
 
            Mr. George H. Capps
 
            Mr. Frank A. Comito
 
            Attorneys at Law
 
            P O Box 971
 
            Des Moines, Iowa  50304
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                                 2907
 
                                                 Filed June 8, 1992
 
                                                 BYRON K. ORTON
 
            
 
            
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                                           :
 
            JOYCE MILLER,                  :
 
                                           :
 
                 Claimant,                 :
 
                                           :
 
            vs.                            :      File Nos. 801804
 
                                           :                837426
 
            LAURIDSEN FOODS, INC.,         :
 
                                           :        A P P E A L
 
                 Employer,                 :
 
                                           :      D E C I S I O N
 
            and                            :
 
                                           :
 
            EMPLOYERS MUTUAL COMPANIES     :
 
            and HARTFORD INSURANCE COMPANY,:
 
                                           :
 
                 Insurance Carriers,       :
 
                 Defendants.               :
 
            ___________________________________________________________
 
            
 
            2907
 
            
 
            Affirmed deputy on assessment of expenses of obtaining 
 
            physicians' reports as costs, but limited to $150 per 
 
            physician in light of Iowa Code 622.72.  
 
            Claimant awarded healing period for time following birth of 
 
            her child.  Although claimant would have been off work for 
 
            maternity leave anyway, nevertheless the work injury also 
 
            would have precluded her from working during this period.  
 
            Claimant is entitled to healing period benefits even if due 
 
            to concurrent causes of disability.
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                      5-1100; 1803; 1803.1
 
                      4000; 1108.20; 1108.50
 
                      1400
 
                      Filed April 26, 1991
 
                      Bernard J. O'Malley
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            JOYCE MILLER,                 :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :      File No. 801804
 
            LAURIDSEN FOODS, INC.,        :               837426
 
                                          :
 
                 Employer,                :     A R B I T R A T I O N
 
                                          :
 
            and                           :        D E C I S I O N
 
                                          :
 
            EMPLOYERS MUTUAL COMPANIES    :
 
            and HARTFORD INSURANCE        :
 
            COMPANY,                      :
 
                                          :
 
                 Insurance Carriers,      :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
            1803; 1803.1; 4000
 
            Claimant awarded 20 weeks of permanent partial disability 
 
            benefits, some healing period and temporary partial 
 
            disability on her September 26, 1986 cumulative and 
 
            simultaneous bilateral upper extremity injury under 
 
            85.34(2)(s).
 
            Claimant was not awarded 86.13 penalty benefit.
 
            
 
            5-1100; 1108.20; 1108.50; 1400
 
            Found claimant's mental problems did not arise out of and in 
 
            the course of claimant's employment and were not causally 
 
            connected to her injuries but, in fact, were rooted in her 
 
            and her sister's sexual abuse as children.  These problems 
 
            surfaced before any injury occurred.  This indigenous 
 
            personality disorder affected claimant's ability to work and 
 
            claimant's psychologic problems effected claimant's physical 
 
            complaints and true physical disability.
 
            Claimant took nothing from her alleged August 15, 1985 
 
            cumulative injury.
 
            
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                   BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         GENNY E. MCCLELLAN,
 
         
 
              Claimant,
 
                                                    File No. 802020
 
         vs.
 
                                                       A P P E A L
 
         MIDWEST BISCUIT COMPANY,
 
                                                     D E C I S I O N
 
              Employer,
 
                                                        F I L E D
 
         and
 
                                                       SEP 20 1989
 
         WAUSAU INSURANCE COMPANY,
 
                                                   INDUSTRIAL SERVICES
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
                              STATEMENT OF THE CASE
 
         
 
              Defendants appeal from an arbitration decision awarding 
 
         permanent total disability benefits as the result of an alleged 
 
         injury on August 8, 1985.
 
         
 
              The record on appeal consists of the transcript of the 
 
         arbitration hearing and joint exhibits 1 through 10.  Both 
 
         parties filed briefs on appeal.
 
         
 
                                 ISSUES
 
         
 
              Defendants state the following issues on appeal:
 
         
 
              1.  Claimant failed to prove by a preponderance of the 
 
         evidence and within a reasonable degree of medical certainty that 
 
         she sustained a personal injury on August 8, 1985 resulting in 
 
         permanent industrial disability.
 
         
 
              2.  The claimant has not sustained her burden of proof and 
 
         has not established that she is an odd lot employee and further 
 
         has not established under any scenario that she is permanently 
 
         and totally disabled.
 
         
 
                             REVIEW OF THE EVIDENCE
 
         
 
              The arbitration decision adequately and accurately reflects 
 
         the pertinent evidence and it will not be set forth herein.
 
         
 
                                  APPLICABLE LAW
 
         
 
              The citations of law in the arbitration decision are 
 
         appropriate to the.issues and the evidence.
 
         
 
                                                
 
                                                         
 
                                  ANALYSIS
 
         
 
              Defendants raise as issues on appeal whether claimant has 
 
         proven a causal connection exists between her present condition 
 
         and her work injury of August 8, 1985, and the nature and extent 
 
         of claimant's disability.
 
         
 
              The record contains the medical evidence of Gordon Baustian, 
 
         M.D., which refers to claimant's work injury as the cause of 
 
         claimant's condition.  Koert R. Smith, M.D., made a determination 
 
         that claimant's neurogenic low back pain was from a disc 
 
         "injury". Other medical evidence indicates that claimant had a 
 
         preexisting degenerative disc disease.  Claimant worked for many 
 
         years without difficulty.  Claimant had no lifting restrictions 
 
         prior to her injury of August 8, 1985.  Claimant stated she did 
 
         not have any back problems before her work injury.  After her 
 
         work injury, claimant experienced consistent symptoms, including 
 
         acute episodes of pain which were not present before the August 
 
         8, 1985 injury. Patrick Kessler, M.D., concluded that claimant's 
 
         condition was the result of a degenerative disc disease alone.  
 
         However, the testimony of Dr. Smith, who had the most direct 
 
         contact with claimant, will be given the greater weight. it is 
 
         concluded that claimant has established by a preponderance of the 
 
         evidence that her present back condition is causally connected to 
 
         her work injury of August 8, 1985.
 
         
 
              Defendants.also argue on appeal that claimant has not 
 
         established that her condition as a result of the work injury is 
 
         permanent.  Although Dr. Smith did at one point predict that 
 
         claimant's condition would improve, both Dr. Smith and Dr. 
 
         Kessler assigned claimant a rating of permanent impairment of 
 
         five percent of the body as a whole.  There is no medical 
 
         evidence indicating that claimant's back condition is not 
 
         permanent.
 
         
 
              Defendants also urge that the deputy erred in finding that 
 
         the claimant was permanently totally disabled.  The deputy made a 
 
         determination that claimant was an "odd lot" employee.  However, 
 
         in order to be an "odd lot" employee, claimant must have made a 
 
         good faith effort to seek employment.  In the instant case, 
 
         claimant initially made commendable efforts to regain her 
 
         position with employer.  Claimant twice requested medical 
 
         permission to return to work.  After discovering that she could 
 
         no longer perform the duties of her job, claimant made only 
 
         perfunctory efforts to find substitute employment.  Claimant 
 
         registered with Job Service on two occasions, but reportedly was 
 
         told that no jobs were available with her restrictions.  
 
         Claimant's only other job seeking efforts were confined to 
 
         scanning newspaper ads, and making one application to a retail 
 
         store.  Defendants point out that this application and the second 
 
         visit to Job Service did not take place until two weeks before 
 
         the hearing, and claimant has acknowledged that these occurred at 
 
         the prompting of her attorney. There is also in the record the 
 
         testimony of Dr. Smith that claimant expressed a plan not to 
 
         return to work, and Dr. Smith's agreement with that decision.  
 
                                                
 
                                                         
 
         Defendants' vocational counselor testified that he made himself 
 
         available to claimant for job placement, but claimant failed to 
 
         contact him and failed to complete a questionnaire that would 
 
         have been useful in identifying employment opportunities for 
 
         claimant.
 
         
 
              Taken as a whole, it is concluded that claimant has not made 
 
         the requisite good faith attempts to find substitute employment 
 
         to qualify her as an "odd lot" employee.  Thus, the extent of 
 
         claimant's disability will be assessed without reliance on the 
 
         odd lot doctrine.
 
         
 
              Claimant's physical impairment is a factor to be utilized in 
 
         the determination of claimant's disability.  Claimant has two 
 
         ratings of five percent permanent partial impairment of the body 
 
         as a whole.  Claimant has significant permanent restrictions, 
 
         including an inability to work for more than four hours per day. 
 
         Claimant is unable to lift more than 10 pounds.  Claimant is 
 
         likely to experience recurring episodes of acute back pain that 
 
         would require absence from work.
 
         
 
              Claimant's education consists of a high school diploma, but 
 
         standardized tests reveal that claimant has a deficiency in math 
 
         skills.  Claimant's work experience consists of several years of 
 
         work in manual labor and factory jobs.  Claimant has no special 
 
         skills, and vocational testimony in the record indicates that 
 
         claimant's age makes retraining difficult.
 
         
 
              Claimant's proximity to normal retirement age also affects 
 
         her industrial disability.  Claimant is near the end of the 
 
         normal work life.  Compared to a younger worker with the same 
 
         injury, claimant has lost less future earning capacity as a 
 
         result of her injury.
 
         
 
              Claimant has not worked since her last attempt to return to 
 
         her old job, and thus has experienced a significant loss of 
 
         wages. However, claimant might have minimized that loss by 
 
         cooperating with the vocational rehabilitation experts who 
 
         testified, or by actively seeking substitute employment on her 
 
         own.  Claimant's doctor has stated she is capable of performing 
 
         sedentary work involving sitting, standing or walking for two 
 
         hours at a time with rest in between.  Clark Williams, vocational 
 
         consultant, testified that sedentary jobs are available to 
 
         claimant, but was unable to identify a specific job.  However, 
 
         Mr. Williams was not able to complete his evaluation due to 
 
         claimant's non-cooperation. Vocational consultant, G. Brian 
 
         Paprocki, testified that claimant is unemployable.  Mr. 
 
         Paprocki's testimony was based on a telephone conversation.  The 
 
         record indicates Paprocki's involvement was for the purpose of 
 
         litigation and not to help claimant secure employment.  His 
 
         testimony is given no weight.
 
         
 
              Claimant has not shown good motivation to return to work. 
 
         Nevertheless, even if claimant had sought substitute employment, 
 
         at best her employment opportunities would have been severely 
 
                                                
 
                                                         
 
         limited.  Claimant can only work a few hours a day, and is likely 
 
         to be absent from work on a frequent basis.  The combination of 
 
         claimant's physical impairment, age, and restrictions make it 
 
         unlikely that claimant could find employment even with proper 
 
         motivation.
 
         
 
              Based on these and all other appropriate factors for 
 
         determining industrial disability, claimant is determined to be 
 
         permanently and totally disabled.
 
         
 
                             FINDINGS OF FACT
 
         
 
              1.  The work injury of August 8, 1985, was a cause of a five 
 
         percent permanent partial impairment to the body as a whole and 
 
         of permanent restrictions upon claimant's physical activity 
 
         consisting of not standing, sitting nor walking over two hours at 
 
         any time.
 
         
 
              2.  Claimant has a lifting restriction of not over 10 
 
         pounds.
 
         
 
              3.  Claimant cannot work more than four hours per day.
 
         
 
              4.  Claimant is 59 years old.
 
         
 
                             
 
                                                         
 
              5.  Claimant has a high school education.
 
         
 
              6.  Claimant has deficient math skills.
 
         
 
              7.  Claimant's work experience is limited to physical labor 
 
         and factory work.
 
         
 
              8.  Claimant has lost her capacity to earn wages.
 
         
 
                            CONCLUSIONS OF LAW
 
         
 
              Claimant has established by the greater weight of the 
 
         evidence that her present back condition is permanent and is 
 
         causally related to her work injury of August 8, 1985.
 
         
 
              Claimant is not an "odd-lot" employee.
 
         
 
              Claimant has established by the greater weight of the 
 
         evidence that she is permanently and totally disabled as a result 
 
         of her work injury of August 8, 1985.
 
         
 
              WHEREFORE, the decision of the deputy is affirmed and 
 
         modified.
 
         
 
                                  ORDER
 
         
 
              THEREFORE, it is ordered:
 
         
 
              That defendant is to pay unto claimant permanent total 
 
         disability benefits at a rate of one hundred twenty-seven and 
 
         83/100 dollars ($127.83) during the period of her disability.
 
         
 
              That defendants shall pay accrued weekly benefits in a lump 
 
         sum.
 
         
 
              That defendants shall pay interest on weekly benefits 
 
         awarded herein as set forth in Iowa Code section 85.30.
 
         
 
              That defendants are to be given credit for benefits 
 
         previously paid.
 
         
 
              That defendants are to pay the costs of this action.
 
         
 
              That defendants shall file claim activity reports as 
 
         required by this agency pursuant to Division of Industrial 
 
         Services
 
         Rule 343-3.1(2).
 
         
 
              Signed and filed this 29th day of September, 1989.
 
         
 
         
 
         
 
         
 
         
 
         
 
                                                
 
                                                         
 
                                               DAVID E. LINQUIST
 
                                            INDUSTRIAL COMMISSIONER
 
         
 
         Copies To:
 
         
 
         Mr. Michael J. Schilling
 
         Attorney.at Law
 
         205 Witte Bldg.
 
         P.O. Box 1111
 
         Burlington, Iowa  52601
 
         
 
         Mr. E. J. Kelly
 
         Attorney at Law
 
         Terrace Center, Ste. 111
 
         2700 Grand Avenue
 
         Des Moines, Iowa  50312