1804 - 4100
 
                                            Filed September 20, 1989
 
                                            DAVID E. LINQUIST
 
         
 
                  BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         GENNY E. MCCLELLAN,
 
         
 
              Claimant,
 
                                                    File No. 802020
 
         vs.
 
         
 
         MIDWEST BISCUIT COMPANY,                      A P P E A L
 
         
 
              Employer,
 
                                                    D E C I S I 0 N
 
         and
 
         
 
         WAUSAU INSURANCE COMPANY,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         1804, 4100
 
         
 
         
 
              Claimant, age 59, who initially showed good motivation to 
 
         return to her job but who later appeared to have sought work only 
 
         at the urging of her attorney and just prior to the hearing found 
 
         not to be odd lot, but nevertheless was found to be permanently 
 
         and totally disabled where her restrictions of not working more 
 
         than 4 hours per day and likelihood she would be frequently 
 
         absent from work due to back pain made her unemployable.
 
         
 
         
 
         
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
                                                
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         
 
         GENNY E. McCLELLAN,
 
         
 
              Claimant,
 
                                                 FILE NO.  802020
 
         VS.
 
                                             A R B I T R A T I 0 N
 
         MIDWEST BISCUIT COMPANY,
 
                                                D E C I S I O N
 
              Employer,
 
         
 
         and
 
         
 
         WAUSAU INSURANCE COMPANY,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         
 
                              STATEMENT OF THE CASE
 
         
 
              This is a proceeding in arbitration brought by Genny E. 
 
         McClellan, claimant, against Midwest Biscuit Company, employer 
 
         (hereinafter referred to as Midwest), and Wausau Insurance 
 
         Company, insurance carrier, for workers' compensation benefits as 
 
         a result of an alleged injury on August 8, 1985.  On March 4, 
 
         1988, 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 was received during the hearing from claimant and the 
 
         following witnesses: Richard McClellan; Jeannette Mullahy; and, 
 
         Clark Williams.  The exhibits received into the evidence at the 
 
         hearing are listed in the prehearing report.  According to the 
 
         prehearing report, the parties have stipulated to the following 
 
         matters:
 
         
 
              1.  On August 8, 1985, claimant received an injury arising 
 
         out of and in the course of her employment with Midwest;
 
         
 
              2.  Claimant's rate of weekly compensation in the event of 
 
         an award of weekly benefits from this proceeding shall be $127.83 
 
         per week;
 
         
 
              3.  Claimant is not seeking additional temporary total 
 
         disability or healing period benefits in this proceeding;
 
         
 
              4.  If the injury is found to have caused permanent 
 
         disability, the type of disability is an industrial disability to 
 
         the body as a whole; and,
 
         
 

 
         
 
         
 
         
 
         McCLELLAN V. MIDWEST BISCUIT COMPANY
 
         Page   2
 
         
 
         
 
              5.  If permanent partial disability benefits are awarded 
 
         herein, they shall begin as of February 28, 1985.
 
         
 
                                     ISSUES
 
         
 
              The parties submitted the following issues for determination 
 
         in this proceeding:
 
         
 
              I.  Whether there is a causal relationship between the work 
 
         injury and the claimed disability; and,
 
         
 
             II.  The extent of claimant's entitlement to weekly benefits 
 
         for permanent disability.
 
         
 
                             SUMMARY OF THE EVIDENCE
 
         
 
              The following is a summary of evidence presented in this 
 
         case.  For the sake of brevity, only the evidence most pertinent 
 
         to this decision is discussed.  Whether or not specifically 
 
         referred to in this summary, all of the evidence received at the 
 
         hearing was considered in arriving at this decision.  As will be 
 
         the case in any attempted summarization, conclusions about what 
 
         the evidence offered may show are inevitable.  Such conclusions, 
 
         if any, in the following summary should be considered as 
 
         preliminary findings of fact.
 
         
 
              Claimant was born February 24, 1929 and is presently 59 
 
         years of age.  Claimant weighs 185 pounds and is five foot two 
 
         inches tall.  Claimant has worked outside the home during much of 
 
         the marriage.  She held positions as a production worker, 
 
         waitress, and clerk.  Each of these jobs required standing, 
 
         lifting, and bending and paid a minimum wage or slightly higher.
 
         
 
              Claimant testified that she received no special job skills 
 
         or training on any one of these jobs.  Her formal education is 
 
         limited to high school.  She has no college, vocational training, 
 
         or post high school academic training.  Recent vocational testing 
 
         done by G. Brian Paprocki, a vocational expert retained by 
 
         claimant, indicated substantial deficiency in claimant's math 
 
         skills.
 
         
 
              Claimant said that she was first employed at Midwest Biscuit 
 
         of Burlington, Iowa in 1979.  She worked on the production line 
 
         making and packaging cookies and crackers until late 1980 when 
 
         she moved with her family to Colorado.  While in Colorado 
 
         claimant said that she worked at a production job.  In March, 
 
         1981, claimant moved back to Burlington and resumed work at 
 
         Midwest Biscuit in April.  Her employment continued at Midwest 
 
         Biscuit through August 8, 1985, the date of her injury.
 
         
 
              On August 8, 1985, near the end of her regular eight hour 
 
         shift, claimant testified that she was bending over to pick up a 
 
         can of crackers.  The can was located close to the floor and 
 
         weighed between 10 and 20 pounds.  She explained that as she 
 
         lifted the can, she felt pain in her low back or she felt 
 
         something give way.  She said that she looked for the foreman to 
 
         report the injury but could not locate him.  Claimant stated that 
 
         she did not pursue him at the time because she did not think then 
 
         that the injury was likely to be serious.  Claimant testified 
 

 
         
 
         
 
         
 
         McCLELLAN V. MIDWEST BISCUIT COMPANY
 
         Page   3
 
         
 
         
 
         that when she awoke the following day, she was in terrible pain 
 
         and could not get out of bed.
 
         
 
              Claimant then reported her injury to her employer and was 
 
         referred to Gordon Baustian, M.D.  She saw Dr. Baustian the first 
 
         Monday following her injury.  Dr. Baustian later referred 
 
         claimant to Koert Smith, M.D., an orthopedic surgeon.  Dr. Smith 
 
         has been claimant's primary treating physician since that time.
 
         
 
              Dr. Baustian saw claimant on August 12, 1985.  He concluded 
 
         she suffered "acute back syndrome" due to the injury on August 8, 
 
         1985.  Dr. Baustian prescribed Indocin, an anti-inflammatory 
 
         drug, and Tylenol for pain.  He also referred claimant to 
 
         physical therapy at Burlington Medical Center.  The physical 
 
         therapy was discontinued because the therapist feared that he was 
 
         making the back problem worse.
 
         
 
              Dr. Baustian's examination on August 12 1985, showed 
 
         straight leg raising to 30 degrees on the right, 45 degrees on 
 
         the left.  There was some decreased pin prick and vibratory 
 
         sensation of the right lower extremity.  There was noted 
 
         tenderness in the low lumbosacral junction and along the S-1 
 
         joint on the right.
 
         
 
              Further examination on August 26, 1985, by Dr. Baustian 
 
         indicated that claimant complained of being worse physically.  
 
         Dr. Baustian switched her medications and kept her off work until 
 
         September 19, 1985.
 
         
 
              Then, on September 4, 1985, Dr. Baustian reported that 
 
         claimant was somewhat better and that the medication switch 
 
         helped but her back symptoms remained unchanged.  Claimant was 
 
         unable to straight leg raise more than 45 degrees bilaterally.
 
         
 
              On September 12, 1985, claimant saw the doctor and insisted 
 
         she wanted to return to work.  Although the doctor has some 
 
         reservations, he released claimant to work.  Claimant then 
 
         returned to work on September 16, 1985.
 
         
 
              Upon her return to work, claimant said that she could not 
 
         handle the work and worked only a short time before her back pain 
 
         forced her to seek medical help again.  She left work the morning 
 
         of the 17th due to increasing pain in her low back and into the 
 
         right S-1 joint area.  Claimant was then referred to Dr. Koert 
 
         Smith, an orthopedic surgeon.
 
         
 
              Dr. Koert Smith examined claimant on September 19, 1985.  He 
 
         found limited range of motion in the lumbar spine.  He found 
 
         tenderness at L-5 and S-1 and marked tenderness over the right 
 
         sacroiliac joint and proximal gluteal area.  Dr. Smith gave 
 
         claimant an injection of Marcaine and Celestone and ordered her 
 
         to remain off work.
 
         
 
              Dr. Smith saw claimant again on September 25, 1985.  At that 
 
         time she reported continued pain in the back but not in the leg.  
 
         She indicated she had been attempting to take short walks each 
 
         day.  Straight leg raising at 80 degrees on the right side caused 
 
         pain behind the knee.  The doctor observed a slight sensory 
 
         deficit on the right side.  Claimant was again advised to stay 
 

 
         
 
         
 
         
 
         McCLELLAN V. MIDWEST BISCUIT COMPANY
 
         Page   4
 
         
 
         
 
         off work.
 
         
 
              On October 7, 1985, Dr. Smith examined claimant and found 
 
         considerable tenderness over the S-1 joint on the right side.  
 
         Claimant reported continuing to take Tylenol No. 3 (pain 
 
         medication) on an intermittent basis.  Dr. Smith ordered Motrin 
 
         as an anti-inflammatory.
 
         
 
              Claimant was seen again on October 23, 1985, for pain in the 
 
         right S-1 joint reaching down into the right leg.  There was pain 
 
         on the right side and straight leg raising at 90 degrees revealed 
 
         tenderness on the right S-1 joint area.  Dr. Smith elected to 
 
         reinject the S-1 joint with 4cc of Marcaine and 2cc of Celestone. 
 
          This was the second such injection.
 
         
 
              Claimant was seen again on November 7, 1985 and reported 
 
         slow improvement.  She indicated she was having continued trouble 
 
         with any type of heavy housework and was unable to vacuum.  She 
 
         stated that even bed making tended to bother her back.  She 
 
         expressed difficulty with sitting.  Physical examination revealed 
 
         tenderness in the right S-1 joint area.  The doctor insisted she 
 
         remain off work at that time.
 
         
 
              On November 14, 1985, claimant called Dr. Smith and 
 
         requested a return to work slip.  The doctor authorized the same.  
 
         Claimant returned to work on November 18, 1985 and worked until 
 
         November 25, 1985.  On November 25, claimant stated that she was 
 
         only able to work an hour or so when she noted a significant 
 
         recurrence of pain in her right leg.  This pain had been 
 
         progressing over the week and she was working to the point that 
 
         she simply could not tolerate the pain and stopped working.  Dr. 
 
         Smith reported on December 5, 1985, upon examination, that 
 
         claimant continued to have pain in the back, radiating down the 
 
         leg.  Intermittently, he reported that she had sharp pain in the 
 
         right S-1 joint area as well as down into the hip.  Claimant also 
 
         reported numbness in the lateral aspect of the leg.
 
         
 
              Upon physical examination on December 5, 1985, Dr. Smith 
 
         found absent ankle jerks.  The doctor noted claimant showed more 
 
         signs of S-1 and nerve root compression on the right side.  At 
 
         that time, Dr. Smith was considering epidural steroid injection 
 
         at the L5/S-1 level based on absent ankle jerks.
 
         
 
              Claimant was seen again December 12, 1965, and ankle jerks 
 
         were again absent.  Straight leg raising at about 50 to 60 
 
         degrees caused pain in the back.  She informed the doctor she was 
 
         only able to do very light housework without pain.
 
         
 
              On December 23, 1985, claimant called the doctor to arrange 
 
         the epidural steroid injection.  The injection was completed on 
 
         December 24, 1985, at Burlington Medical Center.
 
         
 
              Dr. Smith next saw claimant on January 3, 1986, 
 
         approximately 10 days after the steroid injection.  Claimant 
 
         informed the doctor that her leg pain was better for four or five 
 
         hours after the injection but soon thereafter the symptoms 
 
         returned and she felt her back was worse after the injection.  
 
         She indicated difficulty with sleeping and stated she had given 
 
         up playing bingo since she was not able to sit.  She told the 
 

 
         
 
         
 
         
 
         McCLELLAN V. MIDWEST BISCUIT COMPANY
 
         Page   5
 
         
 
         
 
         doctor she and her husband had moved because she could not go up 
 
         and down stairs.  She expressed concern that her condition 
 
         prevented her from going to work.  At this time, the doctor 
 
         diagnosed her as suffering from neurogenic low back pain disc 
 
         injury with periodic acute episodes with persistent body lists 
 
         and sciatic pain.
 
         
 
              In early February claimant had an acute episode of back pain 
 
         brought on when she bent over to pick up an object and had sudden 
 
         severe pain in her back.  She stayed in bed over the weekend and 
 
         called the doctor the following day.  When she saw the doctor on 
 
         February 14, 1986, she indicated she was beginning to slowly get 
 
         better and was continuing to take her Motrin.  She told the 
 
         doctor she was treating her acute episodes with moist heat.  She 
 
         continued to complain of pain in her back, right leg, and calf.  
 
         Physical examination on February 14, 1986, revealed range of 
 
         motion limitations.  The doctor advised claimant to continue with 
 
         her treatment of staying down as much as possible, applying moist 
 
         heat and continuing with Motrin and Tylenol No. 3.
 
         
 
              Claimant returned for further follow up of her back and 
 
         right leg pain on February 28, 1986.  She stated she was feeling 
 
         better and had been up a little more.  She continued to complain 
 
         of rather constant pain, sharp pain if she twisted wrong.  She 
 
         continued on Motrin and Tylenol.  Physical examination revealed 
 
         range of motion limitation.  The doctor encouraged her to 
 
         continue with Motrin and to continue to try to slowly be up as 
 
         much as she could tolerate.
 
         
 
              When claimant next returned to the doctor on March 20, 1986, 
 
         she advised that she had experienced an increase in pain.  She 
 
         stated that she was able to stand only about ten minutes at a 
 
         time doing activities such as washing dishes.  She described the 
 
         pain as being in her back and in the lateral aspect of the right 
 
         calf.  She denied any numbness.
 
         
 
              Physical examination again revealed absent ankle jerks.  
 
         Range of motion was limited.  A second epidural steroid injection 
 
         was discussed with claimant but was not prescribed by the doctor 
 
         at that time.
 
         
 
              On April 8, 1986, claimant had another acute episode.  She 
 
         was reaching across the table to pick up something and noted the 
 
         sudden onset of pain in her mid back, a little bit to the right 
 
         side.  She stayed down at home, applied moist heat, took Motrin 
 
         and Tylenol and on April 22, 1986, when she saw the doctor and 
 
         reported this to him, she was just getting over that episode.  
 
         Physical examination revealed once again absent ankle jerks.  The 
 
         doctor noted a subjective sensory deficit on the right calf.  The 
 
         doctor advised her to continue trying to slowly be up more, 
 
         continue Motrin and Tylenol and return in six weeks.
 
         
 
              Claimant returned again on June 3, 1986 and indicated she 
 
         was about the same.  She complained of increasing pain in her 
 
         back due to the car ride made to Muscatine to see Dr. Kessler, 
 
         the consulting physician for the workers' compensation insurance 
 
         carrier.  Ankle jerks were again absent.  The doctor also noted 
 
         sensory deficit on the right side.
 
         
 

 
         
 
         
 
         
 
         McCLELLAN V. MIDWEST BISCUIT COMPANY
 
         Page   6
 
         
 
         
 
              On July 14, 1986, claimant again returned to the doctor.  
 
         She complained of a worsening of her condition.  She complained 
 
         of pain continuously in her low back with acute intermittent 
 
         episodes.  She complained of an acute episode on June 25th and 
 
         another on July lst and explained those to the doctor.  She also 
 
         discussed with the doctor her restrictions at home including 
 
         inability to do anything other than light housework, inability to 
 
         vacuum, inability to do the laundry, inability to make the bed, 
 
         inability to do grocery shopping, and inability to walk more than 
 
         a block at a time.  On July 14, 1986, the doctor found limited 
 
         range of motion and also absent ankle jerks.  At that time, the 
 
         doctor opined that she suffered from right S-1 radiculopathy.  He 
 
         stated claimant could not tolerate working eight hours a day even 
 
         with minimal lifting. he felt that she simply could not tolerate 
 
         standing on her feet that long.
 
         
 
              Dr. Smith also on July 14, 1984, estimated claimant's 
 
         functional capacities over an eight hour period would permit her 
 
         to sit for intervals as long as two hours as well as stand for 
 
         two hours or walk for two hours at a time with some rest in 
 
         between.  She would be able to lift ten pounds occasionally, 
 
         carry ten pounds occasionally, as well as squat and climb 
 
         occasionally and she could frequently reach above shoulder level 
 
         and would have no trouble in simple grasping, pushing, pulling or 
 
         performing fine manipulations.  She could also use her feet for 
 

 
         
 
         
 
         
 
         McCLELLAN V. MIDWEST BISCUIT COMPANY
 
         Page   7
 
         
 
         
 
         repetitive movements as in operating foot controls with only mild 
 
         restrictions in the operation of automotive equipment or being 
 
         around moving machinery.
 
         
 
              In Dr. Smith's letter of August 25, 1986, he stated:
 
         
 
              ... As indicated in the letter, I did last evaluate 
 
              Mrs. McClellan on July 14, 1986.  At that time, 
 
              although she had intermittent good and bad days with 
 
              intermittent acute episodes, her condition overall has 
 
              remained stable since January of 1986.  At that time, I 
 
              indicated that I felt she had a 5% whole man impairment 
 
              and I feel that rating continues to apply today.  As 
 
              indicated in your letter, she did have a CT scan that 
 
              was normal, but continues to have some symptoms 
 
              suggestive of a herniated disc.  Occasionally a 
 
              myelogram can detect a herniated disc that is not 
 
              apparent on a CT scan, but because of her intermittent 
 
              and at this time tolerable symptoms, no further studies 
 
              are planned.
 
         
 
              ... At this point with the degree of her symptoms and 
 
              her age, it is her choice to not work as opposed to 
 
              proceed with additional testing and potential surgery 
 
              and I certainly can not [sic] disagree with that 
 
              decision.
 
         
 
              The doctor then concluded that settlement of the case at 
 
         this time would be the most appropriate course for all parties.
 
         
 
              With respect to the duration of claimant's condition, Dr. 
 
         Smith stated in his report of March 10, 1986:
 
         
 
              ...I would hope that gradually in the future, that her 
 
              condition would improve and that she ultimately would 
 
              be able to certainly return to four hours a day and 
 
              hopefully back to her regular job....
 
         
 
              He also indicated that the x-rays indicated minimal evidence 
 
         of degenerative disease and degenerative arthritis.
 
         
 
              The doctor also indicated in his deposition that claimant's 
 
         obesity causes weakness and loss of tone of the muscles of her 
 
         back and that extra weight is transmitted through the spine and 
 
         certainly into the low back and puts additional stress or strain 
 
         on the low back area.  He also conceded that people that are 
 
         obese are likely to have complaints similar to claimant's, even 
 
         though sometimes seen in people who are not obese, and even in 
 
         the absence of trauma.
 
         
 
              The doctor further concluded in the deposition:
 
         
 
                 A.  In July of O86, she did report, between the time 
 
              I evaluated her in June of O86 and July of O86, two 
 
              episodes where she had had acute episodes.  During 
 
              those episodes, she indicated she wasn't doing anything 
 
              particularly heavy; simply twisted wrong and bad the 
 
              onset of sudden, severe pain.
 
         
 

 
         
 
         
 
         
 
         McCLELLAN V. MIDWEST BISCUIT COMPANY
 
         Page   8
 
         
 
         
 
              Claimant testified that she has not returned to Dr. Smith 
 
         since July of 1986.  Claimant states that her back condition is 
 
         "about the same" since the date of injury and that she has pain 
 
         all of the time but it becomes severe during periodic episodes 
 
         and a list of these episodes was submitted into evidence.  
 
         Despite these problems, she explained that she has not returned 
 
         to Dr. Smith because she is doing simply what Dr. Smith tells her 
 
         to do when pain episodes occur. on cross-examination claimant 
 
         admitted that she became upset with Dr. Smith due to his 
 
         assessment that she is obese.
 
         
 
              Claimant denies any prior back problems and only admits to 
 
         occasional backaches before the work injury in this case.
 
         
 
              In May, 1986, claimant was evaluated by Patrick Kessler, 
 
         M.D., another orthopedic surgeon retained by defendants.  In his 
 
         report of June 26, 1986, Dr. Kessler stated:
 
         
 
              I feel Ms. McClellan is suffering from a chronic, fairly 
 
              severe low back strain with some chronic degenerative 
 
              changes, but no evidence of significant radiculopathy or 
 
              disc disease.  She was somewhat difficult to evaluate 
 
              because of her gross inconsistencies, somewhat in her 
 
              history but primary in her exam.
 
         
 
              He further concluded that he felt she would be able to 
 
         perform the occupation in which she had been engaged and had 
 
         reached maximum improvement with no more than a 5 percent 
 
         permanent partial impairment from the chronic pain and decreased 
 
         motion.
 
         
 
              In Dr. Kessler's return to work evaluation, there was no 
 
         restrictions with respect to either sitting or standing for a 
 
         period of six to eight hours, except for alternating the two 
 
         positions occasionally.  There were no restrictions with respect 
 
         to repetitive movement and the only weight restriction was over 
 
         20 pounds.
 
              Claimant testified that she has not been employed since her 
 
         last day at Midwest Biscuit.  She states that she wants to work 
 
         and does not want to "sit around."  However, she does not believe 
 
         that she can perform any meaningful job and Dr. Smith agrees with 
 
         this attitude.  Claimant states that she is registered with Job 
 
         Service of Iowa and periodically checks want ads.  She has 
 
         applied for a job at Walgreen's.  None of her efforts to date 
 
         have proven successful.
 
         
 
              Evidence was submitted from two vocational rehabilitation 
 
         consultants.  Claimant retained G. Brian Paprocki.  From a 
 
         telephone interview and educational testing Paprocki opines that 
 
         claimant is not employable.  His assessment of claimant's 
 
         industrial disability was excluded at hearing as not within his 
 
         expertise as a vocational consultant.  Paprocki points to 
 
         claimant's age, lack of educational skills, especially in math 
 
         and claimant's extensive disability as unsurmountable barriers to 
 
         employment.  He notes that Dr. Smith has indicated that claimant 
 
         can only work less than four hours per day and then in only 
 
         certain physical positions.  He also felt that period absences 
 
         from work during claimant's frequent flare-ups of back problems 
 
         also restricts her employability.
 

 
         
 
         
 
         
 
         McCLELLAN V. MIDWEST BISCUIT COMPANY
 
         Page   9
 
         
 
         
 
         
 
              Clark Williams was retained by defendants.  Williams stated 
 
         at hearing that suitable employment is available in the area of 
 
         claimant's residence with restrictions imposed by physicians.  He 
 
         then lists various jobs in the Dictionary of Occupational Titles 
 
         contained in Job Services' job listing in the Burlington area.  
 
         He also described various ads in the local newspapers for certain 
 
         types of jobs he felt claimant could perform.  In arriving at 
 
         this list, Williams states that he formulated a work capabilities 
 
         analysis from the restrictive views of Dr. Smith and the more 
 
         liberal views of Dr. Kessler.  Williams did not contact any 
 
         potential employer to determine claimant's physical ability to 
 
         perform any of the positions nor did he refer any job leads to 
 
         claimant.  Williams states that placement was not his job.  He 
 
         perceived his job as only providing assistance to persons seeking 
 
         employment.
 
         
 
              Claimant's appearance and demeanor at the hearing and that 
 
         of her husband indicated that they were testifying in a candid 
 
         and truthful manner.
 
         
 
                           APPLICABLE LAW AND ANALYSIS
 
         
 
              1.  The claimant has the burden of proving by a 
 
         preponderance of the evidence that the work injury is a cause of 
 
         the claimed disability.  A disability may be either temporary or 
 
         permanent.  In the case of a claim for temporary disability, the 
 
         claimant must establish that the work injury was a cause of 
 
         absence from work and lost earnings during a period of recovery 
 
         from the injury.  Generally, a claim of permanent disability 
 
         invokes an initial determination of whether the work injury was a 
 
         cause of permanent physical impairment or permanent limitation in 
 
         work activity. however, in some instances, such as a job transfer 
 
         caused by a work injury, permanent disability benefits can be 
 
         awarded without a showing of a causal connection to a physical 
 
         change of condition.  Blacksmith v. All-American, Inc., 290 
 
         N.W.2d 348, 354 (Iowa 1980); McSpadden v. Big Ben Coal Co.,288 
 
         N.W.2d 181 (Iowa 1980).
 
         
 
              The question of causal connection is essentially within the 
 
         domain of expert medical opinion.  Bradshaw v. Iowa Methodist 
 
         Hospital, 251 Iowa 375, 101 N.W.2d 167 (1960).  The opinion or 
 
         experts need not be couched in definite, positive or unequivocal 
 
         language and the expert opinion may be accepted or rejected, in 
 
         whole or in part, by the trier of fact.  Sondag v. Ferris 
 
         Hardware, 220 N.W.2d 903 (Iowa 1974).  The weight to be given to 
 
         such an opinion is for the finder of fact, and that may be 
 
         affected by the completeness of the premise given the expert and 
 
         other surrounding circumstances.  Bodish v. Fischer, Inc., 257 
 
         Iowa 516, 133 N.W.2d 867 (1965).
 
         
 
              Furthermore, if the available expert testimony is 
 
         insufficient alone to support a finding of causal connection, 
 
         such testimony may be coupled with nonexpert testimony to show 
 
         causation and be sufficient to sustain an award.  Giere v. Aase 
 
         Haugen Homes, Inc., 259 Iowa 1065, 146 N.W.2d 911, 915 (1966).  
 
         Such evidence does not, however, compel an award as a matter of 
 
         law.  Anderson v. Oscar Mayer & Co., 217 N.W.2d 531, 536 (Iowa 
 
         1974).  To establish compensability, the injury need only be a 
 

 
         
 
         
 
         
 
         McCLELLAN V. MIDWEST BISCUIT COMPANY
 
         Page  10
 
         
 
         
 
         significant factor, not be the only factor causing the claimed 
 
         disability.  Blacksmith, 290 N.W.2d 348, 354.  In the case of a 
 
         preexisting condition, an employee is not entitled to recover for 
 
         the results of a preexisting injury or disease but can recover 
 
         for an aggravation thereof which resulted in the disability found 
 
         to exist.  Olson v. Goodyear Service Stores, 255 Iowa 1112, 125 
 
         N.W.2d 251 (1963).
 
         
 
              In the case sub judice, the evidence established that 
 
         claimant has suffered a permanent impairment as a result of the 
 
         work injury.  Claimant's testimony that she had no chronic back 
 
         problems before August 8, 1985, is uncontroverted and claimant is 
 
         found to be credible.  Both orthopedic surgeons rendering 
 
         opinions in this case indicate that claimant has at least a five 
 
         percent permanent partial impairment to the body as a whole.  Dr. 
 
         Smith's causal connection views are uncontroverted as Dr. Kessler 
 
         did not specifically render a causal connection opinion.  To the 
 
         extent that Dr. Kessler's views are not favorable to claimant the 
 
         views of Dr. Smith, the primary treating physician, are given 
 
         greater weight in this proceeding due to his more extensive 
 
         clinical involvement in claimant's case.  Claimant's obesity 
 
         probably aggravated her back problems, but an employer takes an 
 
         employee as he is with his or her personal attributes and 
 
         frailties.
 
         
 
              II.  Claimant must establish by a preponderance of the 
 
         evidence the extent of weekly benefits for permanent disability 
 
         to which claimant is entitled.  As the claimant has shown that 
 
         the work injury was a cause of a permanent physical impairment or 
 
         limitation upon activity involving the body as a whole, the 
 
         degree of permanent disability must be measured pursuant to Iowa 
 
         Code section 85.34(2)(u).  However, unlike scheduled member 
 
         disabilities, the degree of disability under this provision is 
 
         not measured solely by the extent of a functional impairment or 
 
         loss of use of a body member.  A disability to the body as a 
 
         whole or an "industrial disability" is a loss of earning capacity 
 
         resulting from the work injury.  Diederich v. Tri-City Railway 
 
         Co., 219 Iowa 587, 593, 258 N.W. 899 (1935).  A physical 
 
         impairment or restriction on work activity may or may not result 
 
         in such a loss of earning capacity.  The extent to which a work 
 
         injury and a resulting medical condition has resulted in an 
 
         industrial disability is determined from examination of several 
 
         factors.  These factors include the employee's medical condition 
 
         prior to the injury, immediately after the injury and presently; 
 
         the situs of the injury, its severity and the length of healing 
 
         period; the work experience of the employee prior to the injury, 
 
         after the injury and potential for rehabilitation; the employee's 
 
         qualifications intellectually, emotionally and physically; 
 
         earnings prior and subsequent to the injury; age; education; 
 
         motivation; functional impairment as a result of the injury; and 
 
         inability because of the injury to engage in employment for which 
 
         the employee is fitted.  Loss of earnings caused by a job 
 
         transfer for reasons related to the injury is also relevant.  
 
         Olson, 255 Iowa 1112, 1121, 125 N.W.2d 251, 257 (1963).  See 
 
         Peterson v. Truck Haven Cafe, Inc., (Appeal Decision, February 
 
         28, 1985).
 
         
 
              Claimant's medical condition before the work injury was 
 
         excellent and she had no functional impairments or ascertainable 
 

 
         
 
         
 
         
 
         McCLELLAN V. MIDWEST BISCUIT COMPANY
 
         Page  11
 
         
 
         
 
         disabilities.  Claimant's testimony and her extensive work 
 
         history indicate that claimant was fully able to perform physical 
 
         tasks involving such things as repetitive lifting, bending, 
 
         twisting and stooping, and prolonged standing and sitting.
 
         
 
              Claimant's treating physician, Dr. Smith, has given claimant 
 
         a permanent impairment rating to the body as a whole.  More 
 
         importantly, however, in an industrial disability case is an 
 
         assessment of claimant's physical capabilities.  Again, Dr. 
 
         Smith's views are found to be the most credible due to the longer 
 
         clinical involvement in claimant's case and his views are most 
 
         consistent with claimant's credible testimony.  Dr. Kessler has 
 
         only seen claimant once for a brief period of time.  According to 
 
         Dr. Smith, claimant cannot work eight hours a day and is able to 
 
         only work, assuming an optimistic prognosis, four hours a day it 
 
         there is no heavy lifting, repetitive lifting, bending, twisting 
 
         and stooping; or, prolonged sitting or standing.
 
         
 
              Claimant's medical condition and the physician imposed work 
 
         restrictions prevents claimant from returning to her former work 
 
         or any other work which requires claimant to violate those 
 
         restrictions.  Claimant's severe work restrictions appear to 
 
         prohibit most types of work claimant has performed in the past 
 
         and to any other work for which claimant is best suited given her 
 
         age, education and work history.  Claimant remains unemployed 
 
         despite a reasonable effort to seek alternative employment with 
 
         Job Service of Iowa.  According to the Supreme Court, such a 
 
         factual setting gives rise to an application of the so-called 
 

 
         
 
         
 
         
 
         McCLELLAN V. MIDWEST BISCUIT COMPANY
 
         Page  12
 
         
 
         
 
         "odd-lot" doctrine.  This doctrine is a procedure device designed 
 
         to shift the burden of going forward with respect to 
 
         employability to the employer when claimant demonstrates a 
 
         reasonable but unsuccessful effort to look for work.  Klein v. 
 
         Furnas Elec. Co., 384 N.W.2d 370, 375 (Iowa 1986).  A worker 
 
         becomes an "odd-lot" employee when an injury makes a worker 
 
         incapable of obtaining employment in any well known branch of the 
 
         labor market.  Guyton v. Irving Jensen Co., 373 N.W.2d 101, 105 
 
         (Iowa 1985).  An odd-lot worker can only perform services that 
 
         are so limited in quality, dependability or quantity that a 
 
         reasonably stable market for them does not exist. id.  In Guyton, 
 
         the Supreme Court held that under the odd-lot doctrine, there is 
 
         no presumption that merely because the worker is physically able 
 
         to do certain work, such work is available.  Where a worker makes 
 
         a prima facie case of total disability by producing substantial 
 
         evidence that the worker is not employable in the competitive 
 
         labor market, the burden to produce evidence shifts to the 
 
         employer.  If the employer fails to produce such evidence and if 
 
         the trier of fact finds that the worker does fall into the 
 
         odd-lot category, the worker is entitled to a finding of total 
 
         disability.  Id. at 106.
 
         
 
              In the case sub judice, claimant made a reasonable effort to 
 
         find suitable work and produced expert evidence of her lack of 
 
         employability in the competitive labor market.  However, 
 
         defendants did go forward with the evidence with the testimony of 
 
         Clark Williams who opines that claimant does not tall into the 
 
         odd-lot category.  However, a review of all the factors of 
 
         industrial disability clearly place claimant into the odd-lot 
 
         category despite defendants' evidence.
 
         
 
              Regardless of the evidence dealing with the reasons 
 
         surrounding claimant's leaving Midwest's employment, such 
 
         evidence is not particularly important because it is clear that, 
 
         given Dr. Smith's views, claimant is not working at Midwest today 
 
         because of her disability.  Defendants attempted to escape 
 
         odd-lot liability with the views of Dr. Kessler and Clark 
 
         Williams, but such evidence was not convincing.  Dr. Kessler 
 
         again did not spend enough time with claimant to be convincing 
 
         with reference to his views on the authenticity of claimant's 
 
         objective complaints.  The testimony of Williams is likewise 
 
         shallow.  First, his views must be rejected because they are 
 
         based upon a physical capabilities assessment which he, not any 
 
         particular physician, developed from a reading of both the 
 
         reports of Dr. Smith and Dr. Kessler.  This deputy feels that the 
 
         views of Dr. Smith and Dr. Kessler are extremely divergent and do 
 
         not lend themselves to any sort of blending.  Second, the listing 
 
         of available jobs is not convincing.  There was no attempt to 
 
         actually determine for the jobs listed if claimant is physically 
 
         or mentally suitable for such jobs and whether such jobs would be 
 
         regularly available to claimant.  There was actually no contact 
 
         by Williams with any of the potential employers.  Williams 
 
         appears to have a rather restricted view of his role in a 
 
         workers' compensation proceeding and distinguishes between 
 
         placing claimant into a job and assisting claimant in finding a 
 
         job.
 
         
 
              The claim by Williams that claimant was uncooperative in 
 
         failing to fill out exhibit 10 consisting of over 30 pages of 
 

 
         
 
         
 
         
 
         McCLELLAN V. MIDWEST BISCUIT COMPANY
 
         Page  13
 
         
 
         
 
         questions is equally not convincing.  Any person, including the 
 
         undersigned, would have difficulty in completing the form and 
 
         more importantly understanding the nature of some of the 
 
         questions imposed.  Many of these questions are personal and 
 
         could be perceived as harassment rather than an attempt at 
 
         vocational rehabilitation.  The undersigned believes that seeking 
 
         such information was not harassment, but this does not change the 
 
         fact that it could be perceived as such.  Given claimant's lack 
 
         of educational abilities which Williams himself found, it is 
 
         understandable that she may have misconceived his purpose and 
 
         refused to cooperate.
 
         
 
              The undersigned was likewise not impressed with the report 
 
         of Paprocki whose only testing involved math skills and who 
 
         arrived at his conclusions after a telephone interview.  It would 
 
         appear that both Williams and Paprocki where hired for the 
 
         purpose of litigation rather than for any true vocational 
 
         rehabilitation.  Consequently, their views are considered 
 
         accordingly.
 
         
 
              Regardless of the role of the vocational counselors in this 
 
         case, the fact remains that claimant remains unemployed today and 
 
         nothing defendants have done has changed this fact.
 
         
 
              Claimant is 59 years of age and nearing the end of her 
 
         working career.  However, in Diederich v. Tri-City Railway Co., 
 
         219 Iowa 587, 258 N.W. 899 (1935), which also involved a 59 year 
 
         old person, the court held that advanced age did not prohibit a 
 
         finding of permanent total disability.  In this case, claimant 
 
         had no plans of retirement before the work injury.  Working life 
 
         does not end at age 59 or 60 years of age.  It must be recognized 
 
         that older persons are in the work force who are beyond the age 
 
         of 59 years of age.  Older persons regularly become employed even 
 
         after retirement from their lifelong career jobs.
 
              Claimant has shown motivation to remain employed and has 
 
         attempted on more than one occasion to return to her job at 
 
         Midwest but was unable to do so because of her disability.
 
         
 
              Although claimant has a high school education, she exhibited 
 
         below average scholastic aptitudes from testing by vocational 
 
         counselors.  Most of the vocational rehabilitation consultants 
 
         agree in this case that claimant is not a good prospect for 
 
         vocational retraining due to her age and disability.
 
         
 
              After examination of all the factors, it is found as a 
 
         matter of fact that claimant falls into the "odd-lot" category 
 
         and is 100 percent permanently and totally disabled in that there 
 
         is no suitable or stable work available for claimant in the 
 
         geographical area of her residence.  Based upon such a finding, 
 
         claimant is entitled as a matter of law to permanent total 
 
         disability benefits under Iowa Code section 85.34(3) during the 
 
         period of her disability which, in all likelihood, will be the 
 
         rest of her life.
 
         
 
              In light of the finding of permanent total disability, the 
 
         question of credit for benefits paid is moot.
 
         
 
                                 FINDINGS OF FACT
 
         
 

 
         
 
         
 
         
 
         McCLELLAN V. MIDWEST BISCUIT COMPANY
 
         Page  14
 
         
 
         
 
              1.  Claimant and her husband were credible witnesses.
 
         
 
              2.  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 standing, sitting and walking but only with periods 
 
         of rest and not over two hours at any one point in time.  Also, 
 
         claimant can do no lifting or carrying above 10 pounds.  Claimant 
 
         can only occasionally bend or crawl and at no time can she squat. 
 
          She cannot work in areas of unprotected heights; work in marked 
 
         temperature changes; work around machinery; or drive an 
 
         automobile on a prolonged basis.  In the future, claimant may be 
 
         able to work up to four hours per day if she improves as 
 
         anticipated.
 
         
 
              3.  The work injury of August 8, 1985, was a cause of a 100 
 
         percent loss of earning capacity.  Claimant is 59 years of age 
 
         but had no retirement plans before her work injury.  Claimant has 
 
         not returned to work and has made a reasonable but unsuccessful 
 
         effort to find suitable work within the geographical area of her 
 
         residence.  Due to her lack of education and her disability, 
 
         claimant is only able to perform services which are so limited in 
 
         quality, dependability, or quantity that a reasonable stable 
 
         market for them does not exist.  Claimant is not employable at 
 
         any competitive labor market within the geographical area of her 
 
         residence.  Claimant is a high school graduate but due to her age 
 
         and disability, vocational retraining is not a feasible 
 
         alternative.
 
         
 
                                CONCLUSIONS OF LAW
 
         
 
              Claimant has established by @ preponderance of the evidence 
 
         entitlement to permanent total disability benefits.
 
         
 
                                      ORDER
 
         
 
              1.  Defendants shall pay to claimant permanent total 
 
         disability benefits for an indefinite period of time in the 
 
         future during the period of her disability at the rate of one 
 
         hundred twenty-seven and 83/100 dollars ($127.83) per week from 
 
         August 8, 1985.
 
         
 
              2.  Defendants shall pay accrued weekly benefits in a lump 
 
         sum and shall receive a credit against this award for all weekly 
 
         benefits previously paid.
 
         
 
              3.  Defendants shall pay interest on weekly benefits awarded 
 
         herein as set forth in Iowa Code section 85.30.
 
         
 
              4.  Defendants shall pay the costs of this action pursuant 
 
         to Division of industrial Services Rule 343-4.33.
 
         
 
              5.  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 26th day of May, 1988.
 
         
 

 
         
 
         
 
         
 
         McCLELLAN V. MIDWEST BISCUIT COMPANY
 
         Page  15
 
         
 
         
 
         
 
         
 
         
 
         
 
                                          LARRY P. WALSHIRE
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
         
 
         Copies To:
 
         
 
         Mr. Michael J. Schilling
 
         Attorney at Law
 
         205 Witte Bldg.
 
         Box 1111
 
         Burlington, Iowa 52601
 
         
 
         Mr. E. J. Kelly
 
         Attorney at Law
 
         2700 Grand Ave.
 
         Terrace Center, STE 111
 
         Des Moines, Iowa 50312
 
         
 
         
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                                  4100
 
                                                  Filed May 26, 1988
 
                                                  LARRY P. WALSHIRE
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         GENNY E. McCLELLAN,
 
         
 
              Claimant,
 
                                                    FILE NO. 802020
 
         VS.
 
                                                 A R B I T R A T I 0 N
 
         MIDWEST BISCUIT COMPANY,
 
                                                    D E C I S I 0 N
 
              Employer,
 
         
 
         and
 
         
 
         WAUSAU INSURANCE COMPANY,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         4100
 
         
 
              Claimant found to be an odd-lot employee.  She has remained 
 
         unemployed since her leaving of her employment and she is unable 
 
         to return to her past employment because of her disability.  
 
         Despite a reasonable effort to look for work she has failed to 
 
         find suitable employment.  Defendants' evidence that she was 
 
         employable in the local labor market was not convincing.
 
 
 
         
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
            _____
 
                                          :
 
            MARJORIE BALDWIN,             :
 
                                          :
 
                 Claimant,                :      File No. 802083
 
                                          :
 
            vs.                           :        A P P E A L
 
                                          :
 
            WILSON FOODS CORPORATION,     :      D E C I S I O N
 
                                          :
 
                 Employer,                :
 
                 Self-Insured,            :
 
                 Defendant.               :
 
            ____________________________________________________________
 
            _____
 
            
 
            The record, including the transcript of the hearing before 
 
            the deputy and all exhibits admitted into the record, has 
 
            been reviewed de novo on appeal.  The decision of the deputy 
 
            filed July 31, 1991 is affirmed and is adopted as the final 
 
            agency action in this case with the following additional 
 
            analysis:
 
            Upon review-reopening, claimant has the burden to show that 
 
            he has suffered a change in his condition since the original 
 
            award was made.  Henderson v. Iles, 250 Iowa 787, 96 N.W.2d 
 
            321 (1959).  A mere difference of opinion of experts as to 
 
            the percentage of disability arising from an original injury 
 
            would not be sufficient to justify a different determination 
 
            on a petition for review-reopening.  Rather, such a finding 
 
            must be based on a worsening or deterioration of the 
 
            claimant's condition not contemplated at the time of the 
 
            first award.  Bousfield v. Sisters of Mercy, 249 Iowa 64, 86 
 
            N.W.2d 109 (1957).  A failure of a condition to improve to 
 
            the extent originally anticipated may also constitute a 
 
            change of condition.  Meyers v. Holiday Inn of Cedar Falls, 
 
            Iowa, 179 N.W.2d 24 (Iowa App. 1978).
 
            Claimant shall pay the costs of the appeal, including the 
 
            preparation of the hearing transcript.
 
            Signed and filed this ____ day of December, 1991.
 
            
 
            
 
            
 
            
 
                      ________________________________
 
                               BYRON K. ORTON
 
                          INDUSTRIAL COMMISSIONER
 
            
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            Copies To:
 
            
 
            Mr. Harry H. Smith
 
            Attorney at Law
 
            P.O. Box 1194
 
            Sioux City, Iowa 51102
 
            
 
            Mr. David L. Sayre
 
            Attorney at Law
 
            P.O. Box 535
 
            Cherokee, Iowa 51012
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                          9999
 
                                          Filed December 17, 1991
 
                                          BYRON K. ORTON
 
                                          MGT
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            MARJORIE BALDWIN,             :
 
                                          :
 
                 Claimant,                :      File No. 802083
 
                                          :
 
            vs.                           :        A P P E A L
 
                                          :
 
            WILSON FOODS CORPORATION,     :       D E C I S I O N
 
                                          :
 
                 Employer,                :
 
                 Self-Insured,            :
 
                 Defendant.               :
 
            ___________________________________________________________
 
            
 
            
 
            9999
 
            Summary affirmance of deputy's decision filed July 31, 1991, 
 
            with short additional analysis.
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                          9999
 
                                          Filed December 17, 1991
 
                                          BYRON K. ORTON
 
                                          MGT
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            MARJORIE BALDWIN,             :
 
                                          :
 
                 Claimant,                :      File No. 802083
 
                                          :
 
            vs.                           :        A P P E A L
 
                                          :
 
            WILSON FOODS CORPORATION,     :       D E C I S I O N
 
                                          :
 
                 Employer,                :
 
                 Self-Insured,            :
 
                 Defendant.               :
 
            ___________________________________________________________
 
            
 
            
 
            9999
 
            Summary affirmance of deputy's decision filed July 31, 1991, 
 
            with short additional analysis.
 
            
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            MARJORIE BALDWIN,             :
 
                                          :         File No. 802083
 
                 Claimant,                :
 
                                          :          R E V I E W -
 
            vs.                           :
 
                                          :        R E O P E N I N G
 
            WILSON FOODS CORPORATION,     :
 
                                          :         D E C I S I O N
 
                 Employer,                :
 
                 Self-Insured,            :
 
                 Defendant.               :
 
            ____________________________________________________________
 
            
 
                              statement of the case
 
            
 
                 This is a proceeding in review-reopening from an 
 
            agreement for settlement brought by Marjorie Baldwin against 
 
            Wilson Foods Corporation, her self-insured former employer, 
 
            based upon an injury that occurred on July 10, 1985.  The 
 
            primary issues to be determined are whether there has been a 
 
            change of condition which was proximately caused by the 
 
            original injury which warrants reopening of the disability 
 
            awarded under the agreement for settlement and, if so, 
 
            redetermination of the extent of disability which was 
 
            proximately caused by the July 10, 1985 injury.
 
            
 
                 The case was heard and fully submitted at Storm Lake, 
 
            Iowa on June 3, 1991.  The evidence in the case consists of 
 
            testimony from Marjorie Baldwin and James Putnum.  The 
 
            record also contains jointly offered exhibits 1 through 32.
 
            
 
                                 findings of fact
 
            
 
                 Having considered all the evidence received, together 
 
            with the appearance and demeanor of the witnesses, the 
 
            following findings of fact are made.
 
            
 
                 Marjorie Baldwin is a 38-year-old lady who lives at 
 
            Larrabee, Iowa.  She is a 1970 graduate of Fonda, Iowa High 
 
            School.  Following high school, she worked as a cook and 
 
            waitress in a restaurant.  She has performed babysitting and 
 
            walked beans.  In approximately 1971, she worked several 
 
            months in a garment factor sewing jeans, but developed an 
 
            allergic reaction to chemicals found in the fabrics she 
 
            sewed.  She has worked as a maid at a resort hotel.  
 
            Marjorie has been a cook and waitress at hamburger and pizza 
 
            restaurants.  She filled orders at a craft material 
 
            warehouse.  She worked briefly in a liquor store.  In 1982, 
 
            she attempted sewing for K-Products, but had to quit due to 
 
            her allergic condition.
 
            
 
                 After performing odd jobs for a time, she obtained 
 
            employment at Wilson Foods in August 1983.  Marjorie had not 
 
            experienced any difficulties with her hands or arms prior to 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            
 
            
 
            the time she commenced employment with Wilson.  Most of her 
 
            prior jobs had paid approximately minimum wage.  At Wilson, 
 
            she started at $6.50 per hour and was earning $9.00 per hour 
 
            when she eventually left the employment in 1989.  Wilson 
 
            Foods was clearly the best paying job she has ever held.
 
            
 
                 Marjorie's first job at Wilson Foods was stacking boxes 
 
            of meat on pallets.  After approximately a month, she 
 
            obtained a job where she placed hams into casings and 
 
            screens and then hung them on trees for the smoking and 
 
            curing process.  The approximate weight of a screen loaded 
 
            with three hams was 60 pounds.  After approximately one 
 
            year, Marjorie began having problems with her right hand 
 
            going numb and being painful.  She treated conservatively 
 
            under the direction of the company physician, but eventually 
 
            was referred to an orthopaedic surgeon.  On January 9, 1987, 
 
            orthopaedic surgeon Walter O. Carlson, M.D., performed a 
 
            Neer decompressive acromioplasty on Marjorie's right 
 
            shoulder (exhibits 3 and 4).  After an appropriate period 
 
            for recovery, therapy and a functional capacity evaluation, 
 
            Marjorie resumed work at the Wilson plant (exhibits 9, 17 
 
            and 18).  On August 17, 1987, Dr. Carlson rated claimant as 
 
            having a two percent impairment of the whole person based 
 
            upon the right shoulder.
 
            
 
                 Marjorie returned to work with restrictions and 
 
            eventually entered into a settlement agreement with the 
 
            employer which provided her ten weeks of permanent partial 
 
            disability compensation based upon a two percent permanent 
 
            partial disability of the body as a whole (exhibit 30).  
 
            Marjorie's job after she resumed work following her shoulder 
 
            surgery paid approximately $.20 per hour less than what she 
 
            earned prior to the injury.  She continued to have 
 
            difficulties with her hands and shoulder (exhibits 22, 23 
 
            and 29).  She eventually underwent right carpal tunnel 
 
            release surgery on June 21, 1988 (exhibit 11).  On August 5, 
 
            1988, she was released to full-time work (exhibit 14).  
 
            Marjorie did return to work, but was then laid off.  Her 
 
            last actual day of work was January 27, 1989.  On June 12, 
 
            1989, she resigned.  The reason given for her termination 
 
            was that she did not want to injure her arms any further 
 
            (exhibit 32).  At hearing, she stated that Dr. Wolbrink had 
 
            advised her to find other employment.
 
            
 
                 In April 1989, Marjorie was evaluated by orthopaedic 
 
            surgeon A. J. Wolbrink, M.D.  Dr. Wolbrink rated her as 
 
            having a 13 percent impairment of the right upper extremity, 
 
            an amount which he stated was equivalent to 8 percent of the 
 
            whole person.  The ranges of motion shown in his report are 
 
            not, however, substantially different from those found by 
 
            Dr. Carlson when he provided the two percent impairment 
 
            rating.  There is nothing in the report issued by Dr. 
 
            Wolbrink to indicate that he advised Marjorie that she 
 
            should not resume work at Wilson Foods as she asserted in 
 
            her testimony at hearing (exhibit 1).
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
                 According to the record, when viewed as a whole, it is 
 
            found that the shoulder surgery was relatively successful 
 
            and that the primary reason Marjorie chose to terminate her 
 
            employment was the continuing problems with her hands rather 
 
            than the problems with her shoulder.  The problems described 
 
            by James Putnum are essentially hand problems, more than 
 
            shoulder problems.  Those hand problems are the subject of 
 
            another case.  The record in this case fails to show that 
 
            there has been any substantial change in the physiological 
 
            condition of Marjorie's right shoulder since the settlement 
 
            agreement was entered into in 1987.  The record further 
 
            fails to show that Marjorie has experienced any substantial 
 
            change in her economic circumstances, which were proximately 
 
            caused by the shoulder injury, since the settlement was 
 
            entered into in 1987.
 
            
 
                                conclusions of law
 
            
 
                 In a review-reopening proceeding, the claimant has the 
 
            burden of establishing that, since the original agreement 
 
            for settlement, she has suffered an impairment or lessening 
 
            of her earning capacity as a proximate result of the 
 
            original injury.  Deaver v. Armstrong Rubber Co., 170 N.W.2d 
 
            455, 457 (Iowa 1969).  The change may result from a change 
 
            in earning capacity without a corresponding change in 
 
            physical condition.  Blacksmith v. All-American, Inc., 290 
 
            N.W.2d 348, 350 (Iowa 1980).  A cause is proximate if it is 
 
            a substantial factor in bringing about the result; it need 
 
            not be the only cause.  Blacksmith, 290 N.W.2d at 354.  In 
 
            this case, the greater weight of the evidence tends to 
 
            indicate that Marjorie resigned her employment due to the 
 
            condition of her hands and her extended layoffs rather than 
 
            due to any physical disability related to her shoulder.  
 
            When exhibit 10, the report showing the original rating from 
 
            Dr. Carlson in 1987, is compared with exhibit 1, the report 
 
            from Dr. Wolbrink dated April 21, 1989, it appears as though 
 
            Marjorie's shoulder has actually improved rather than 
 
            worsened when the objective range of motion measurements are 
 
            compared.  Her statements that it is as bad now as it was 
 
            prior to undergoing the surgery and that Dr. Wolbrink 
 
            advised her to cease working for Wilson's are not 
 
            corroborated by any other evidence in the record.  Her 
 
            statements are essentially hearsay transmission of expert 
 
            medical opinion testimony.  Without corroboration, her 
 
            statements are entitled to little weight since reasonable 
 
            individuals would not be expected to rely upon hearsay 
 
            statements from individuals who are not medically trained 
 
            when dealing with important medical issues.  Her testimony 
 
            in that regard is not entitled to sufficient weight in order 
 
            to permit her to succeed in meeting the burden of proving 
 
            the change of condition needed in order to permit 
 
            reconsideration of her permanent partial disability award.
 
            
 
                 It is therefore concluded that the claimant has failed 
 
            to prove, by a preponderance of the evidence, that there has 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            
 
            
 
            been a substantial change in her condition, which was 
 
            proximately caused by the original injury, since entering 
 
            into the original agreement for settlement.  She is 
 
            therefore not entitled to have her permanent partial 
 
            disability award reconsidered.
 
            
 
                                      order
 
            
 
                 IT IS THEREFORE ORDERED that claimant take nothing from 
 
            this proceeding.
 
            
 
                 IT IS FURTHER ORDERED that each party shall pay the 
 
            costs incurred by that party in this proceeding pursuant to 
 
            rule 343 IAC 4.33.
 
            
 
                 Signed and filed this ______ day of ____________, 1991.
 
            
 
                 
 
            
 
                 
 
                 
 
                                          ______________________________
 
                                          MICHAEL G. TRIER
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr. Harry H. Smith
 
            Attorney at Law
 
            P.O. Box 1194
 
            Sioux City, Iowa  51102
 
            
 
            Mr. David L. Sayre
 
            Attorney at Law
 
            233 Pine Street
 
            P.O. Box 535
 
            Cherokee, Iowa  51012
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                           1302.1; 2905
 
                           Filed July 31, 1991
 
                           MICHAEL G. TRIER
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
                      :
 
            MARJORIE BALDWIN,   :
 
                      :         File No. 802083
 
                 Claimant, :
 
                      :          R E V I E W -
 
            vs.       :
 
                      :        R E O P E N I N G
 
            WILSON FOODS CORPORATION,     :
 
                      :         D E C I S I O N
 
                 Employer, :
 
                 Self-Insured,  :
 
                 Defendant.     :
 
            ____________________________________________________________
 
            
 
            1302.1; 2905
 
            Claimant's testimony that her condition had worsened and 
 
            that a physician had recommended she change employment was 
 
            not entitled to sufficient weight to permit reopening of the 
 
            amount of permanent partial disability awarded to her under 
 
            an agreement for settlement where her statements were not 
 
            corroborated by other evidence in the record.
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                    BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         EDITH C. WHEELER
 
         
 
              Claimant,
 
         
 
         vs.
 
         
 
         SELDIN PROPERTIES d/b/a                    File No.  802285
 
         HERITAGE INN,
 
                                                 A R B I T R A T I 0 N
 
              Employer,
 
                                                    D E C I S I 0 N
 
         and
 
         
 
         AETNA LIFE AND CASUALTY CO.,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         
 
                                   INTRODUCTION
 
         
 
              This is a proceeding in arbitration brought by Edith C. 
 
         Wheeler, claimant, against Seldin Properties, d/b/a Heritage Inn, 
 
         employer, and Aetna Life and Casualty Company, insurance carrier, 
 
         for benefits as a result of an alleged injury that occurred on 
 
         July 28, 1985.  A hearing was held on July 15, 1987 at Council 
 
         Bluffs, Iowa and the case was fully submitted at the close of the 
 
         hearing.  The record consists of the testimony of Edith C. 
 
         Wheeler (claimant), Nellie Harms (head housekeeper), Ann Miller 
 
         (assistant head housekeeper), Phyllis Rajcevich (employer's 
 
         manager) and exhibits one through 26.
 
         
 
                               RULINGS ON EXHIBITS
 
         
 
              Initially, exhibits one through 25 were proposed as joint 
 
         exhibits.  Claimant objected to joint exhibit 22, a medical 
 
         report of Richard D. Smith, M.D., because he had not deposed the 
 
         witness.  This objection was overruled and exhibit 22 was 
 
         admitted into evidence.
 
         
 
              The original exhibit list was initially prepared by claimant 
 
         and marked as claimant's exhibit list.  At the hearing, 
 
         defendants' counsel agreed that it could be called a joint 
 
         exhibit list with the understanding that a joint exhibit list was 
 
         to avoid duplication of exhibits to which neither party had any 
 
         objection.  Later, defendants' counsel learned that the exhibit 
 
         list and the exhibits contained a personal home calendar prepared 
 
         by claimant (Exhibit 25).  Defendants' counsel objected to 
 
         exhibit 25 for the reason that he had never seen it before July 
 
         14, 1987, the day before the hearing.  Defendants' counsel added 
 
         that claimant had not served the calendar or the exhibit list 
 
         within 15 days prior to the hearing as required by paragraph six 
 
         of the hearing assignment order which provides as follows.
 
         
 
                 Witness and Exhibit Lists.  A list of all witnesses 
 
              to be called at the hearing and a list of all proposed 
 

 
              exhibits to be offered into the evidence at the hearing 
 
              along with copies of all written exhibits not 
 
              previously served shall be served upon opposing parties 
 
              no later than fifteen (15) days prior to the date of 
 
              hearing.  Only those witnesses listed will be permitted 
 
              to testify at the hearing unless their testimony is 
 
              clearly rebuttal or sur-rebuttal.  Medical records, 
 
              practitioners reports and all other written evidence 
 
              shall not be admitted as exhibits at the hearing unless 
 
              they have been served upon an opposing party as ordered 
 
              herein.
 
         
 
              Defendants' counsel introduced into evidence the envelope 
 
         and exhibit list used by claimant's attorney to transmit the 
 
         exhibit list (Ex. 26).  The certificate of service on the exhibit 
 
         list was dated July 7, 1987.  The envelope was postmarked July 7, 
 
         1987.  Furthermore, the envelope was marked return to sender.  
 
         ClaimantOs counsel admitted that he had sent it to the wrong 
 
         address and that it was returned to him.  Defendants' counsel 
 
         then stated that he had never seen the exhibit list or exhibit 25 
 
         until July 14, 1987, the day before the hearing.  He added that 
 
         he never knew of the existence of exhibit 25 and had never seen 
 
         it until July 14, 1987.  Defendants' counsel then did not sign 
 
         the joint exhibit list.  Defendants' objection to exhibit 25 was 
 
         sustained.  Exhibit 25 was not admitted into evidence and was not 
 
         considered in the decision of this case.  It will remain a part 
 
         of the record as an offer of proof.
 
         
 
                                   STIPULATIONS
 
         
 
              The parties stipulated to the following matters.
 
         
 
              That an employer-employee relationship existed between 
 
         claimant and employer at the time of the alleged injury.
 
         
 
              That the type of disability, if the injury is found to be a 
 
         cause of permanent disability, is industrial disability to the 
 
         body as a whole.
 
         
 
              That the commencement date for permanent partial disability 
 
         benefits, in the event such benefits are awarded, is to be 
 
         January 12, 1987.
 
              
 
              That the rate of compensation, in the event of an award of 
 
         weekly benefits, is $68.78 per week.
 
         
 
              That the fees charged for medical services or supplies 
 
         rendered are fair and reasonable.
 
         
 
              That the expenses for medical services or supplies were 
 
         incurred for reasonable and necessary medical treatment.
 
         
 
              That the medical expenses were caused by the condition upon 
 
         which claimant is now basing her claim.
 
         
 
              That defendants seek no credit under Iowa Code section 
 
         85.38(2) for the previous payment of benefits under an employee 
 
         nonoccupational group plan.
 
         
 
              That defendants are entitled to a credit for benefits paid 
 
         to claimant prior to hearing for 30.86 weeks of compensation at 
 
         the rate of $68.78 per week.
 
         
 
              That in the event of an award claimant is entitled to costs 
 
         as shown by claimant's affidavit of taxable costs attached to the 
 

 
         
 
         
 
         
 
         WHEELER V. HERITAGE INN
 
         Page   3
 
         
 
         
 
         prehearing report in the total amount of $450.86.
 
         
 
                                      ISSUES
 
         
 
              The parties submitted the following issues for determination 
 
         at the time of the hearing.
 
         
 
              Whether claimant sustained an injury on July 28, 1985 which 
 
         arose out of and in the course of employment with employer.
 
         
 
              Whether the alleged injury was the cause of temporary 
 
         disability during a period of recovery.
 
         
 
              Whether the alleged injury was the cause of permanent 
 
         disability.
 
         
 
              Whether claimant is entitled to temporary disability 
 
         benefits during a period of recovery, and if so, to what extent.
 
         
 
              Whether claimant is entitled to permanent disability 
 
         benefits and if so, to what extent.
 
         
 
              Whether claimant is entitled to certain medical benefits 
 
         under Iowa Code section 85.27.
 
         
 
                             SUMMARY OF THE EVIDENCE
 
         
 
              All of the evidence was examined and considered.  The 
 
         following is a summary of the pertinent evidence.
 
              
 
              The first report of injury was prepared on August 23, 1985 
 
         by Phyllis A. Rajcevich.  She also testified that this was the 
 
         same day that claimant reported the injury to her.  The first 
 
         report states, and Rajcevich testified, that claimant did not 
 
         know what date the injury occurred, but believed that it occurred 
 
         in July of 1985 as noted on the first report of injury.
 
         
 
              A petition was filed on February 27, 1986, alleging that the 
 
         injury occurred on June 29, 1985.  A hearing was scheduled for 
 
         October 9, 1986.  Claimant moved to dismiss her claim without 
 
         prejudice on the grounds that her recollection of,the date of the 
 
         occurrence of the injury differed from the injury date alleged on 
 
         the petition.  This motion was granted and the claim was 
 
         dismissed without prejudice.  A new petition was filed on October 
 
         15, 1986 alleging that the injury occurred on July 14, 1985.
 
         
 
              Then, on February 5, 1987 claimant moved to amend the second 
 
         petition to change the injury date from July 14, 1985 to July 28, 
 
         1985.
 
         
 
              Claimant testified that she is 55 years old.  She has a 
 
         ninth grade education with no additional education or training.  
 
         She is married and her husband has received social security since 
 
         1981.
 
         
 
              Claimant testified that she had a cervical fusion using a 
 
         bone from her hip about 11 or 12 years ago in the mid 1970's.  
 
         She said this was a work related injury, however, she did not 
 
         file a workers' compensation claim for it.  Claimant denied that 
 
         she had any lumbar problems prior to this alleged injury.  She 
 

 
         
 
         
 
         
 
         WHEELER V. HERITAGE INN
 
         Page   4
 
         
 
         
 
         did admit that her hip often aches from where the bone was 
 
         removed for her cervical fusion.
 
         
 
              Past employments include motel maid and dairy-ice cream 
 
         store clerk and manager.  Claimant started to work for employer 
 
         on May 30, 1985, Memorial Day, as a housekeeper cleaning rooms.  
 
         She obtained this job through her neighbor, Nellie Harms, who 
 
         also works for this employer.  Claimant testified that she was 
 
         looking for part-time work.  She only wanted weekend work, but 
 
         agreed to work four days a week --- Wednesday, Thursday, Saturday 
 
         and Sunday --- at the minimum wage to supplement her husband's 
 
         social security income.
 
         
 
              Sometimes, disgruntled tenants leave a motel room in 
 
         disarray.  Such rooms are described as "trashed" or "messed" or 
 
         "tossed".  Claimant recalls a trashed room in June of 1985, but 
 
         the one involved in her injury was in July of 1985.  The tenants 
 
         in room number 209, on the night of July 27, 1985, left the room 
 
         trashed.  There was hairspray on the mirror and spilled liquids.  
 
         The mattress was turned over and the linens were underneath it.  
 
         Claimant testified that she got the linens out and looked for 
 
         help to turn the mattress over.  She did not find any help in the 
 
         hallway and tried to do it herself.  She had be enable to do it 
 
         in the past on other occasions.  While endeavoring to turn the 
 
         mattress over she felt a hit in her low back.  She went down on 
 
         her knees in pain for several minutes.  She thought she strained 
 
         her back.  She had never had back problems before.  She did not 
 
         know what it was for sure.  She pulled herself up, went into the 
 
         bathroom, sat on the stool and washed her face.
 
         
 
              At lunch time, in the linen room, claimant told a group of 
 
         employees, including her supervisor, Ann Miller, that she hurt 
 
         her back on a mattress in a trashed room.  Claimant contended 
 
         that Miller asked her why she didn't go and get help.  Claimant 
 
         added that she mentioned this incident two or three times in 
 
         conversation at that time.
 
         
 
              Claimant said she had pain in her back and right leg down to 
 
         her toes but continued to work.  In August she told one of her 
 
         supervisors that she had to take some time off due to the pain in 
 
         her back.  She told Rajcevich the same thing and Rajcevich told 
 
         her to go to the doctor.
 
         
 
              Claimant went to see her personal physician, James L. 
 
         Whalen, M.D.  He told her not to work until she got better.  
 
         Claimant then called Rajcevich and told her she wanted to file a 
 
         workers' compensation claim but she did not recall what day it 
 
         happened.  Rajcevich told her that they would look at a calendar 
 
         and try to figure it out.  When claimant came to the motel office 
 
         to make the report, Rajcevich told her that if there were no 
 
         witnesses, she would not get any money from the insurance 
 
         company.
 
         
 
              Nellie Harms testified that she is the head housekeeper.  
 
         She has worked at this location for nine years.  She has been a 
 
         neighbor of claimant for 17 years.  At the time of the injury, 
 
         Harms was the laundress.  She said that she helped claimant get 
 
         this job.  They had been good friends at home and at work, but 
 
         this case and Harms testimony at this hearing has affected their 
 

 
         
 
         
 
         
 
         WHEELER V. HERITAGE INN
 
         Page   5
 
         
 
         
 
         friendship.  Harms testified that claimant had complained of a 
 
         backache for a long time prior to July and August of 1985.  Harms 
 
         added that claimant never reported to her that claimant had 
 
         injured her back until a long time after August of 1985.  Harms 
 
         admitted that all of the housekeepers complain about backaches 
 
         because they do a lot of bending and stooping.  Claimant denied 
 
         that she told Harms that she had a backache, but admitted that 
 
         she did complain about her hip.
 
         
 
              Ann Miller, a 21 year employee of employer, testified that 
 
         she is assistant head housekeeper.  Injuries are reported to her 
 
         and she reports them to the manager.  Claimant, like all of the 
 
         housekeepers, complained about her back.  Claimant never reported 
 
         a back injury to her at break time or at any other time that she 
 
         can recall.  Miller believes that if claimant had told her that 
 
         she injured her back that she would remember it.  Miller did not 
 
         know if claimant had been trained in how to report an injury or 
 
         accident.
 
         
 
              Phyllis Rajcevich, a 20 year employee of employer, testified 
 
         that she had been manager for three years.  Claimant started to 
 
         work again for this employer on May 30, 1985.  She had worked 
 
         there earlier but quit on August 18, 1980.  Claimant first 
 
         reported the injury to her on August 23, 1985.  Claimant had not 
 
         reported it to her prior to that time.  Claimant did not know the 
 
         date of the injury, but did state that it was,in July sometime.  
 
         Claimant described an incident in a room that was torn up with a 
 
         mattress off the bed.  When this happens, the housekeeper is 
 
         supposed to tell the head housekeeper.  The last time there is a 
 
         recorded incident of a trashed room, it occurred on June 15, 
 
         1985.  Claimant had cleaned that room.  The witness stated that 
 
         she strongly believes that if claimant had reported the injury to 
 
         Miller, then Miller would have reported it to her.  Rajcevich 
 
         said she did not know if claimant was trained in how to report an 
 
         accident or injury.  They did not have a handbook or written 
 
         instructions at that time.
 
         
 
              Claimant testified her current situation is that she has a 
 
         burning and a crawling sensation in her right leg.  She stated 
 
         that she cannot lift anything.  She said that she is limited as 
 
         to how long she can sit.  She cannot bend or stoop.  She cannot 
 
         do her old housekeeping job.  She has no current income.  She has 
 
         not tried to find work.  She does do some housework at home.  She 
 
         knows of nothing other than this injury that could have caused 
 
         her back problems.
 
         
 
              Dr. Whalen, summarized claimant's early condition for the 
 
         insurance carrier in these words on September 16, 1985.
 
         
 
                 This patient came to see me on August 22, 1985 with 
 
              a back pain which she said occurred as a result of a 
 
              work related injury on the job several weeks before 
 
              that time.  She does a lot of heavy lifting at work and 
 
              developed the pain while she was working.  She 
 
              continued to try and work with this for several weeks 
 
              prior to coming to see me; however, it got to the point 
 
              where she had to come in because of the persistent 
 
              nature of the pain.  The pain was going down to the 
 
              right leg to some extent.  She was unable to work the 
 

 
         
 
         
 
         
 
         WHEELER V. HERITAGE INN
 
         Page   6
 
         
 
         
 
              week of my initial examination.  Physical findings 
 
              revealed paravertebral muscle spasm, decreased range of 
 
              motion but no neurological deficits.  She was treated 
 
              conservatively with anti-inflammatories, muscle 
 
              relaxants and physical therapy.  X-ray of the lumbar 
 
              spine did not reveal any abnormalities.  The patient 
 
              was treated conservatively and was followed on a weekly 
 
              basis.  She continued to do poorly and as a result she 
 
              was finally referred to Dr. B. Rassekh for his 
 
              evaluation from a neurosurgical point of view.  Dr. 
 
              Rassekh [sic] saw her in consultation after she was 
 
              admitted to the hospital because of severe and acute 
 
              exacerbation of the pain and she was admitted to Jenny 
 
              (sic] Edmundson Hospital.  During her stay in the 
 
              hospital a myelogram was carried out which did not 
 
              conclude any significant herniated disc enough to 
 
              warrant surgical procedure.  As a result, Dr. Rassekh 
 
              recommended that she, continue to be treated 
 
              conservatively with rest, ROM exercises and 
 
              anti-inflammatories and a TNS unit as an outpatient.  
 
              She continues with the conservative treatment at this 
 
              time, I am not certain at this point whether she will 
 
              have any permanent disability from the injury; however, 
 
              she is not able to go back to her previous employment 
 
              and I am not certain about how soon she will be able to 
 
              do this.  We will keep you posted on her progress.  I 
 
              will follow her along with Dr. B. Rassekh.
 
         
 
         (Ex. 1)
 
         
 
              Dr. Whalen reported later that Dr. Rassekh did make some 
 
         objective findings but that there was no nerve root impingement 
 
         at that time.  Dr. Whalen said:
 
         
 
                 The patient was initially sent to Dr. B. Rassekh, 
 
              who felt that the patient had a possibility of a 
 
              herniated lumbar disc and admitted the patient to Jenny 
 
              [sic] Edmundson Hospital and performed a lumbar 
 
              myelogram.  She had bulging of the L-4 lumbar disc with 
 
              a transitional Sl segment but at the time there was not 
 
              felt to be any nerve root impingement and as a result, 
 
              the patient was dismissed from the hospital with a 
 
              diagnosis of likely musculoskeletal vasuloskeletal 
 
              lumbar sprain to continue with conservative treatment.  
 
              Dr. Rassekh at this point referred the patient back to 
 
              my office again.
 
         
 
         (Ex. 9)
 
         
 
              Dr. Whalen said that when claimant failed to make any 
 
         progress and was not able to work he then referred her to Patrick 
 
         Bowman, M.D., an orthopedic surgeon.  Dr. Bowman reported on 
 
         November 20, 1985 that claimant's workup and physical exam did 
 
         not show any sign of active disc disease, however, she did 
 
         complain of right leg pain.  He felt the workers' compensation 
 
         claim was an influence on her condition and recommended that she 
 
         settle it.  Dr. Bowman concluded as follows on November 20, 1985.  
 
         "I think she has enough objective findings on physical exam as 
 
         well as radiographic changes to justify back pain, although quite 
 

 
         
 
         
 
         
 
         WHEELER V. HERITAGE INN
 
         Page   7
 
         
 
         
 
         candidly, her level of impairment seems a bit out of proportion 
 
         to what these would suggest.  I hope we can do Edie some good.O 
 
         (Ex. 3).
 
         
 
              Claimant was next examined by Richard D. Smith, M.D., at the 
 
         request of defendants on December 6, 1985.  Claimant said that 
 
         she saw Dr. Smith for five minutes.  It took three minutes to 
 
         tell him why she was there and two minutes to be examined by him.  
 
         Dr. Smith said that claimant told him that she could not bend, 
 
         sit or stand.  She hurt like the devil and was all around 
 
         miserable.  Dr. Smith stated that he felt that claimant's 
 
         responses to his examination were voluntarily altered.  Dr. Smith 
 
         concluded as follows in his letter to the insurance carrier.  "I 
 
         really do not feel that Mrs. Wheeler has significant pathology.  
 
         I think she should receive no further treatment, and if at all 
 
         possible she should be returned to work so that she might be 
 
         rehabilitated.  I do not feel that Mrs. Wheeler has any permanent 
 
         disability.O (Ex. 22).
 
         
 
              Claimant had been receiving workers' compensation benefits. 
 
         She testified that after she saw Dr. Smith her workers' 
 
         compensation benefits were terminated.
 
         
 
              Dr. Bowman reported again on April 2, 1986 that he continued 
 
         to treat claimant and administered three caudal blocks which 
 
         seemed to help temporarily but not permanently.  He said he could 
 
         not establish a pinched nerve, but he did feel that she had 
 
         legitimate back disease.  He stated that her complaints were out 
 

 
         
 
         
 
         
 
         WHEELER V. HERITAGE INN
 
         Page   8
 
         
 
         
 
         of proportion to what he could find medically.  Dr. Bowman 
 
         thought she could be gainfully employed if she did not lift more 
 
         than 15 pounds and avoided excessive bending, lifting or 
 
         stooping.  He also suggested that she wear an abdominal binder 
 
         (Ex. 4).
 
         
 
              Claimant testified that she was unable to get out of bed on 
 
         June 22, 1986.  She was taken to the emergency room at Jennie 
 
         Edmundson Hospital and seen by D. P. Moffett, M.D.  He concluded 
 
         his history and physical with the following words.
 
         
 
         
 
              ASSESSMENT:  Chronic low back pain with negative
 
                           [sic] extensive evaluation in the 
 
                           past, unable to cope with it at home.  
 
                           Status post cervical fusions times two 
 
                           in the past; status post appendectomy 
 
                           and vaginal hysterectomy with repair 
 
                           of rectocele and cystocele.
 
         
 
              Patient has had extensive evaluation in the past 
 
              including CT scan of the back, EMGS with nerve 
 
              conduction studies, myelography, numerous radiographic 
 
              plain films, physical therapy, caudal blocks, TNS, and 
 
              now admitted to the hospital for control of her pain.
 
         
 
              At this time, I would recommend MRI and if negative 
 
              could treat with TNS, moist heat, further physical 
 
              therapy, and possibly pain schooling.
 
         
 
         (Ex. 5)
 
         
 
              Claimant was hospitalized on June 22, 1986 and at that time 
 
         was examined by R. Schuyler Gooding, M.D., a neurosurgeon.  A 
 
         magnetic resonance imaging (MRI) was subsequently performed on 
 
         June 24, 1986 (Ex. 20).  After his examination on June 25, 1986 
 
         he gave the history that claimant was injured while putting a 
 
         mattress back on the bed at the motel.  He said that she had a 
 
         tendency to stand bending forward and appeared to be in marked 
 
         distress.  Dr. Gooding summarized the history of her radiologic 
 
         examinations as follows.
 
         
 
              X-ray of the lumbar spine reveal partial lumbarization 
 
              of Sl.  A lumbar myelogram revealed a mild L4-L5 
 
              bulging disk which tended to bulge more as the patient 
 
              was raised to an erect posture.  A CT scan of the 
 
              lumbar spine was suggestive of a mild L4-L5 disk 
 
              protrusion.  A more recent MRI also confirms the 
 
              presence of an L4-L5 disk protrusion.
 
         
 
         (Ex. 6)
 
         
 
              The MRI demonstrated some herniation of the L-4, L-5 disk 
 
         space with some nerve root impingement (Ex. 8).  Dr. Gooding 
 
         ended his examination on June 25, 1986 as follows.
 
         
 
              When I initially evaluated her in February of 1986, I 
 
              was not impressed that she had a surgical condition, 
 
              even though she did have an obvious protruding disk at 
 

 
         
 
         
 
         
 
         WHEELER V. HERITAGE INN
 
         Page   9
 
         
 
         
 
              the L4-L5 level.
 
         
 
              She describes herself as not having been able to return 
 
              to work since the original injury and that her pain is 
 
              increasingly localizing to the right hip, where as 
 
              previously it was primarily in her lower back.
 
         
 
              In view of the overall progressive picture, I would 
 
              suggest that we surgically remove the offending disk at 
 
              the L4-L5 level from a right-sided approach.
 
         
 
         (Ex. 6)
 
         
 
              On June 27, 1986 Dr. Gooding performed an interlaminal 
 
         excision of herniated L-4-5, right posterolateral approach with 
 
         removal of a small free fragment in the right L-5 root foramina 
 
         (Ex. 7).
 
         
 
              Dr. Gooding stated on February 20, 1987 that claimant is 
 
         impaired and that the impairment is a product of the injury to 
 
         her lower back and subsequent surgery.  His final evaluation is 
 
         as follows.
 
         
 
              I have released her to progressively return to all 
 
              activities without restrictions, but I did caution her 
 
              about using good judgement with regards to bending, 
 
              lifting, carrying and prolonged sitting.
 
         
 
              I would place her permanent partial disability with 
 
              regards to the whole person as the product of the 
 
              injury to her lower back and the subsequent surgery, at 
 
              15%.  This is because the lower back has not been 
 
              returned to a normal anatomical condition by virtue of 
 
              this surgery, even though she has clinically been 
 
              significantly helped by this surgery.  The permanent 
 
              alteration of her lower back, does place her at a 
 
              slightly greater risk with regards to another injury in 
 
              the future, were she never have had the injury and 
 
              subsequent surgery in the first place.
 
         
 
         (Ex. 10)
 
         
 
              Dr. Whalen in his final report of September 22, 1986 related 
 
         the entire history from the beginning until after her surgery and 
 
         he stated that she did sustain a job injury and that she has been 
 
         totally disabled since the original injury.  His exact words are 
 
         as follows.
 
         
 
              From my previous experience from dealing with Mrs. 
 
              Wheeler as well as following the progress of this 
 
              particular injury through the last year, I have no 
 
              doubts that she, indeed, suffered a significant injury 
 
              to her lumbar spine on the job in 1985.  It was our 
 
              feeling all along tht [sic] this patient indeed has a 
 
              significant component of lumbar disc injury compounded 
 
              by musculoskeletal ligament sprain and muscle sprain; 
 
              however, it was only after studying the patient with 
 
              nuclear magnetic resonance imaging that we were able to 
 
              prove our diagnosis.  This [sic] patient has been 
 

 
         
 
         
 
         
 
         WHEELER V. HERITAGE INN
 
         Page  10
 
         
 
         
 
              totally disabled since this original injury and I feel 
 
              quite confident that the patient has no significant 
 
              component of malingering.
 
         
 
         (Ex. 9)
 
         
 
              Claimant presented the following medical expenses for 
 
         payment.
 
         
 
         
 
              Midlands Family Medicine (Dr. Whalen)        $950.00
 
              Abby Medical (TENS Unit)                       80.00
 
              Medical Anesthesia Associates                 400.00
 
              American Ambulance Service                    195.00
 
              Dr. Gooding                                 2,655.00
 
              The Pharmacy                                   11.99
 
              The Pharmacy                                   16.99
 
              Johnson Pharmacy & Home Health Care           402.28
 
              Jennie Edmundson Memorial Hospital          1,703.10
 
              Jennie Edmundson Memorial Hospital            398.55
 
              Jennie Edmunsdon Memorial Hospital          5,416.80
 
                                                        $12,229.71
 
         
 
              The parties stipulated that the fees charged for medical 
 
         services and supplies are fair and reasonable; that the expenses 
 
         were incurred for reasonable and necessary medical treatment and 
 
         that the expenses were caused by the condition upon which 
 
         claimant is basing her claim.
 
         
 
              The office notes of Dr. Whalen, who began seeing claimant in 
 
         1980 as her personal physician, do not show a history of any 
 
         treatment for her back prior to this injury on July 28, 1985.  On 
 
         August 17, 1984 Dr. Whalen did record that the patient complains 
 
         of some low backaches and leg aches as one of many things he 
 
         discussed on that date.  Her main complaints and treatment on 
 
         that date was actually for sweats, depression, and female 
 
         problems.  He administered no treatment for her back but simply 
 
         mentioned her back and legs in passing.
 
         
 
              The next time he saw claimant was on August 22, 1985 for 
 
         this injury.  At that time, this is what he recorded.
 
         
 
              Patient has an on the job injury to her lumbar spine 
 
              approximately 3 or 4 weeks ago.  She has been trying to 
 
              work with this and work it out since it occurred.  She 
 
              is now having pain going down to the right leg.  She is 
 
              having constant discomfort and has been unable to work 
 
              this week.  
 
              P/E Limping gait, paravertebral muscle spasm of the 
 
              lumbar spine with decreased flexion an extension of the 
 
              lumbar spine.  Rotation and lateral flexion and 
 
              extension is normal.
 
              RX Physical therapy, x-rays lumbar spine, Motrin 400 4 
 
              x a day and Robaxin 500 4 x a day, reck 1 week.
 
         
 
              IMPRESSION.:  Lumbar sprain possibly herniated
 
                            lumbar disc.
 
         
 
         (Ex. 23)
 

 
         
 
         
 
         
 
         WHEELER V. HERITAGE INN
 
         Page  11
 
         
 
         
 
         
 
              Even though Dr. Smith said that claimant could return to 
 
         work after he examined her on December 6, 1985, Dr. Whalen said 
 
         on January 21, 1986 that he would continue with her disability.  
 
         Dr. Whalen said again on June 23, 1986 that she was unable to 
 
         work (Ex. 23).  Dr. Gooding performed surgery on June 27, 1986 
 
         and released claimant to return to all activities without 
 
         restrictions on January 12, 1987 (Ex. 10).
 
         
 
                           APPLICABLE LAW AND ANALYSIS
 
         
 
              An employee is entitled to compensation for any and all 
 
         personal injuries which arise out of and in the course of the 
 
         employment.  Section 85.3(l).
 
         
 
              Claimant has the burden of proving by a preponderance of the 
 
         evidence that she received an injury on July 28, 1985 which arose 
 
         out of and in the course of her employment.  McDowell v. Town of 
 
         Clarksville, 241 N.W.2d 904 (Iowa 1976); Musselman v. Central 
 
         Telephone Co., 261 Iowa 352, 154 N.W.2d 128 (1967).
 
         
 
              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 claimant has the burden of proving by a preponderance of 
 
         the evidence that the injury of July 28, 1985 is causally related 
 
         to the disability on which she now bases her claim.  Bodish v. 
 
         Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867 (1965).  Lindahl v. 
 
         L. 0. Boggs, 236 Iowa 296, 18 N.W.2d 607 (1945).  A possibility 
 
         is insufficient; a probability is necessary.  Burt v. John Deere 
 
         Waterloo Tractor Works, 247 Iowa 691, 73 N.W.2d 732 (1955).  The 
 
         question of causal connection is essentially within the domain of 
 
         expert testimony.  Bradshaw v. Iowa Methodist Hospital, 251 Iowa 
 
         375, 101 N.W.2d 167 (1960).
 
         
 
              However, expert medical evidence must be considered with all 
 
         other evidence introduced bearing on the causal connection.  
 
         Burt, 247 Iowa 691, 73 N.W.2d 732.  The opinion of experts need 
 
         not be couched in definite, positive or unequivocal language.  
 
         Sondag v. Ferris Hardware, 220 N.W.2d 903 (Iowa 1974).  However, 
 
         the expert opinion may be accepted or rejected, in whole or in 
 
         part, by the trier of fact.  Id. at 907.  Further, the weight to 
 
         be given to such an opinion is for the finder of fact, and that 
 
         may be affected by the completeness of the premise given the 
 
         expert and other surrounding circumstances.  Bodish, 257 Iowa 
 
         516, 133 N.W.2d 867.  See also Musselman v. Central Telephone 
 
         Co., 261 Iowa 352, 154 N.W.2d 128 (1967).
 
         
 
              If claimant has an impairment to the body as a whole, an 
 
         industrial disability has been sustained.  Industrial disability 
 
         was defined in Diederich v. Tri-City Railway Co., 219 Iowa 587, 
 
         593, 258 N.W. 899, 902 (1935) as follows:  "It is therefore plain 
 
         that the legislature intended the term 'disability' to mean 
 
         'industrial disability' or loss of earning capacity and not a 
 
         mere 'functional disability' to be computed in the terms of 
 

 
         
 
         
 
         
 
         WHEELER V. HERITAGE INN
 
         Page  12
 
         
 
         
 
         percentages of the total physical and mental ability of a normal 
 
         man."
 
         
 
              Functional impairment is an element to be considered in 
 
         determining industrial disability which is the reduction of 
 
         earning capacity, but consideration must also be given to the 
 
         injured employee's age, education, qualifications, experience and 
 
         inability to engage in employment for which he is fitted.  Olson 
 
         v. Goodyear Service Stores, 255 Iowa 1112, 1121, 125 N.W.2d 251, 
 
         257 (1963).
 
         
 
              Claimant did satisfy the burden of proof by a preponderance 
 
         of the evidence that she sustained an injury on July 28, 1985, or 
 
         sometime close to that date, which arose out of and in the course 
 
         of her employment with the employer.  Defendants argue that 
 
         claimant is a poor historian.  This is an understatement, but it 
 
         is no basis for denying an otherwise compensable claim.  Claimant 
 
         caused many problems for herself, her attorney, defendants' 
 
         attorney and this agency because she could not determine the 
 
         exact date of her injury.  This may well have defeated her case 
 
         except for the fact that her personal physician, Dr. Whalen, and 
 
         her surgeon, Dr. Gooding, gave a clear and unequivocal opinion 
 
         that her work injury caused her back condition and subsequent 
 
         surgery.
 
         
 
              Dr. Whalen traced the entire history of claimant's symptoms 
 
         and treatment from the date she first saw him on August 22, 1985 
 
         until the surgery on June 27, 1986 and even beyond.  His last 
 

 
         
 
         
 
         
 
         WHEELER V. HERITAGE INN
 
         Page  13
 
         
 
         
 
         office note is dated February 24, 1987.  Dr. Whalen is convinced 
 
         that claimant injured her back at work as she described and that 
 
         it caused the eventual surgery.  He makes out a case that cannot 
 
         be ignored and is extremely difficult to discount or refute (Ex. 
 
         9). Furthermore, Dr. Gooding said the surgery was the product of 
 
         the injury (Ex. 10).  No other physician disputed or challenged 
 
         the opinions of Dr. Whalen and Dr. Gooding.  No physician 
 
         disputed that claimant had a work injury --- Dr. Rassekh, Dr. 
 
         Bowman, Dr. Smith, or Dr. Moffett.  Dr. Bowman and Dr. Smith 
 
         thought that claimant's complaints exceeded their objective 
 
         medical findings.  Dr. Smith could not find much if anything 
 
         wrong with claimant and told her to go back to work.  Dr. Whalen 
 
         said that he felt all along that claimant's complaints were 
 
         justified and he implied that medical science simply had not 
 
         determined the medical cause of her complaints until the MRI on 
 
         June 24, 1986 which described the bulging annulus with what 
 
         appeared to be a disc protrusion or herniation at L-4, L-5 (Ex. 
 
         20).  In this case, the written opinions of the treating 
 
         physician, Dr. Whalen, and the surgeon, Dr. Gooding, are clear, 
 
         unequivocal and convincing.  Also, these two physicians were 
 
         responsible for the success or failure of claimant's care and 
 
         their opinions were not disputed by any other physician.  
 
         Rockwell Graphics Systems, Inc. v. Prince, 366 N.W.2d 189, 192 
 
         (Iowa 1985).
 
         
 
              Claimant was not a persuasive witness on her own behalf.  
 
         Nevertheless, it is understandable that if she did in fact strain 
 
         her back, and expected it to go away, which is a frequent and 
 
         common human experience, then she probably did not make a record 
 
         of the exact date of the injury.
 
         
 
              The fact that the defendants have a record of only one 
 
         tossed room in 1985, on June 15, 1985, is not necessarily 
 
         absolute proof that there were not other tossed rooms on other 
 
         dates.  Claimant's testimony indicated that she had a tossed room 
 
         in June of 1985.  She also testified that there were two tossed 
 
         room two days in a row at the time of her injury in July 1985.  
 
         It is doubtful if June 15, 1985 was the only date that the motel 
 
         had a tossed room in 1985 or that the motel record is perfectly 
 
         accurate or infallible on this point.
 
         
 
              Miller and Harms testified that claimant did complain of her 
 
         back prior to the injury date in 1985.  Claimant denied it and 
 
         said she complained about her hip.  Dr. Whalen recorded backaches 
 
         and leg aches on August 17, 1984.  It is entirely possible that a 
 
         54 year old motel maid/housekeeper might have back complaints.  
 
         There was no evidence however, that claimant had ever injured her 
 
         back or had sought treatment for a back injury prior to this 
 
         incident.
 
         
 
              Defendants assert that the length of time between June 15, 
 
         1985 or July 28, 1985 and when claimant first sought treatment on 
 
         August 22, 1985, demonstrates that claimant did not in fact 
 
         sustain a back injury as she alleges because of the time interval 
 
         between the alleged injury date and the date that she sought 
 
         treatment.  This is definitely an element to consider in this 
 
         case.  Claimant testified however, that she had increasing back 
 
         problems from the date of the injury until the time she went to 
 
         see Dr. Whalen.  Dr. Whalen corroborated this testimony by his 
 

 
         
 
         
 
         
 
         WHEELER V. HERITAGE INN
 
         Page  14
 
         
 
         
 
         office notes, his medical report and his deposition.  Dr. Whalen 
 
         stated that claimant reported that she sustained the injury three 
 
         or four weeks ago and had been trying to work with it since it 
 
         occurred but she then had pain going down her right leg.  He felt 
 
         that she was unable to work.  The interval between any of the 
 
         injury dates which have been suggested (June 15, 1985; June 29, 
 
         1985; July 14, 1985; and July 28, 1985) is not in itself 
 
         sufficient to warrant a decision in favor of defendants in the 
 
         face of the testimony of Dr. Whalen and Dr. Gooding that the 
 
         injury and resulting surgery were caused by work and their 
 
         testimony is not contradicted, rebutted or refuted by any other 
 
         medical practitioner.  Therefore, it is determined that claimant 
 
         did sustain the burden of proof by a preponderance of the 
 
         evidence that she sustained an injury on or about July 28, 1985 
 
         which arose out of and in the course of her employment which was 
 
         the cause of both temporary and permanent disability.
 
         
 
              Dr. Whalen took claimant off work on June 26,,1985.  Dr. 
 
         Gooding did not return claimant to work until January 12, 1987.  
 
         Even though Dr. Smith thought claimant could work on December 6, 
 
         1985, Dr. Whalen said on January 21, 1986 and June 23, 1986 that 
 
         claimant should remain off work.  After the surgery on June 27, 
 
         1986 Dr. Gooding did not release claimant to return to work until 
 
         January 12, 1987.  Therefore, it is determined that claimant is 
 
         entitled to healing period benefits from June 23, 1985 to January 
 
         12, 1987.
 
         
 
              Claimant is 55 years old and has a 9th grade education.  Her 
 
         past employments are store clerk and motel housekeeper.  Claimant 
 
         testified at the hearing that she is still unable to work.  Dr. 
 
         Whalen did not think that she was able to perform gainful 
 
         employment on February 24, 1987 (Ex. 23).  Nevertheless, Dr. 
 
         Gooding, the surgeon, did release claimant to return to all 
 
         activities without restrictions with only the admonition that she 
 
         be careful because she is more predisposed to a greater risk of 
 
         injury than if she had not had the surgery.  Claimant conceded 
 
         that she had not tried to work since the injury.  When claimant 
 
         took this job for employer she only wanted part-time work on the 
 
         weekends only.  Claimant's husband is retired.  Claimant's work 
 
         pattern appears as though she might also be partially retired.  
 
         Age and proximity to retirement affect a claimant's entitlement 
 
         to industrial disability.  Beck v. Turner-Busch, Inc., 
 
         Thirty-fourth Biennial Report of the Industrial Commissioner 34, 
 
         36 (1979); Walton v. B & H Tank Co., II Iowa Industrial 
 
         Commissioner Reports 426 (1981).
 
         
 
              The operative phrase in industrial disability is loss of 
 
         earning capacity.  VerSteegh v. Rolscreen Company, IV Iowa 
 
         Industrial Commissioner Reports 377 (1984).  Since Dr. Gooding 
 
         placed no formal restrictions or limitations on claimant's 
 
         activities but returned her to all activities, claimant's 
 
         industrial disability would not be great.  She was working for 
 
         the minimum wage prior to the injury.  If she finds additional 
 
         employment at the minimum wage it would not constitute a loss of 
 
         income.  Industrial disability need not exceed functional 
 
         impairment.  Birmingham v. Firestone Tire and Rubber Co., II Iowa 
 
         Industrial Commissioner Report 39 (1981).  Industrial disability 
 
         can be equal to, less than or greater than functional impairment.  
 
         Lawyer & Higgs, Iowa Workers' Compensation --, Law & Practice, 
 

 
         
 
         
 
         
 
         WHEELER V. HERITAGE INN
 
         Page  15
 
         
 
         
 
         section 13-5, page 116 and 1987 supplement page 20.
 
         
 
              It would appear that claimant could return to work as a 
 
         motel housekeeper if she does not attempt to lift mattresses.  
 
         The evidence was that she was not supposed to lifting the 
 
         mattress by herself in the first place when this injury occurred 
 
         according to her own testimony.
 
         
 
              Based upon the foregoing evidence and discussion and all of 
 
         the factors that go into a determination of industrial 
 
         disability, it is determined that claimant has sustained a 15 
 
         percent industrial disability to the body as a whole.
 
         
 
              Claimant is entitled to recover $12,229.71 in medical 
 
         expense as stipulated to by the parties.
 
         
 
              In addition the parties stipulated that in the event of an 
 
         award claimant was entitled to costs in the amount of $450.86 as 
 
         shown in the affidavit of taxable costs presented by claimant's 
 
         attorney.
 
         
 
                                 FINDINGS OF FACT
 
         
 
              WHEREFORE, based upon the evidence presented the following 
 
         findings of fact are made.
 
         
 
              That claimant sustained an injury to her back on or about 
 
         July 28, 1985 while lifting a mattress while at work for employer 
 
         as a housekeeper.
 
         
 
              That the injury caused claimant to be off work from August 
 
         23, 1985 to January 12, 1987.
 
         
 
              That claimant suffered a 15 percent impairment to the body 
 
         as a whole.
 
         
 
              That claimant sustained a 15 percent industrial disability 
 
         to the body as a whole.
 
         
 
              That claimant incurred $12,229.71 in medical costs.
 
         
 
                                CONCLUSIONS OF LAW
 
         
 
              WHEREFORE, based upon the evidence presented and the 
 
         foregoing principles of law the following conclusions of law are 
 
         made.
 
         
 
              That claimant sustained an injury on or about July 28, 1985 
 
         which arose out of and in the course of her employment with 
 
         employer.
 
         
 
              That the injury was the cause of both temporary and 
 
         permanent disability.
 
         
 
              That claimant is entitled to 72.429 weeks of healing period 
 
         benefits from August 23, 1985 to January 12, 1987.
 
         
 
              That claimant is entitled to 75 weeks of permanent partial 
 
         disability benefits as industrial disability.
 

 
         
 
         
 
         
 
         WHEELER V. HERITAGE INN
 
         Page  16
 
         
 
         
 
         
 
              That claimant is entitled to medical expenses in the amount 
 
         of $12,229.71.
 
         
 
              That claimant is entitled to costs in the amount of $450.86 
 
         as stipulated.
 
         
 
              That defendants are entitled to a credit of 30.86 weeks of 
 
         workers' compensation benefits paid prior to hearing.
 
         
 
                                      ORDER
 
         
 
              THEREFORE, IT IS ORDERED:
 
         
 
              That defendants pay to claimant seventy-two point four two 
 
         nine (72.429) weeks of healing period benefits for the period 
 
         from August 23, 1985 to January 12, 1987 at the rate of 
 
         sixty-eight and 78/100 dollars ($68.78) per week in the total 
 
         amount of four thousand nine hundred eighty-one and 67/100 
 
         dollars ($4,981.67).
 
         
 
              That defendants pay to claimant seventy-five (75) weeks of 
 
         permanent partial disability benefits as industrial disability at 
 
         the rate of sixty-eight and 78/100 dollars ($68.78) per week in 
 
         the total amount of five thousand one hundred fifty-eight and 
 
         50/100 dollars ($5,158.50) commencing on January 12, 1987.
 
         
 
              That defendants are entitled to a credit of thirty point 
 
         eighty-six (30.86) weeks of workers' compensation benefits at the 
 
         rate of sixty-eight and 78/100 dollars ($68.78) per week paid to 
 
         claimant prior to hearing in the total amount of two thousand one 
 
         hundred twenty-two 55/100 dollars ($2,122.55).
 
         
 
              That all accrued benefits are to paid in a lump sum.
 
         
 
              That interest will accrue pursuant to Iowa Code section 
 
         85.30.
 
         
 
              That defendants pay to claimant or the provider of services 
 
         twelve thousand two hundred twenty-nine and 71/100 dollars 
 
         ($12,229.71) in medical expenses introduced at the hearing.
 
         
 
              That defendants pay to claimant four hundred fifty and 
 
         86/100 ($450.86) in costs as stipulated to at the time of the 
 
         hearing and that claimant is entitled to costs pursuant to 
 
         Division of Industrial Services Rule 343-4.33.
 
         
 
              That defendants file claim activity reports as requested by 
 
         this agency pursuant to Division of Industrial Services Rule 
 
         343-3.1.
 
         
 
              Signed and filed this 17th day of March, 1988.
 
         
 
         
 
         
 
         
 
         
 
                                          WALTER R. McMANUS, JR.
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 

 
         
 
         
 
         
 
         WHEELER V. HERITAGE INN
 
         Page  17
 
         
 
         
 
         
 
         Copies To:
 
         
 
         Mr. Jacob John Peters
 
         Attorney at Law
 
         P.O. Box 1078
 
         Council Bluffs, Iowa 51502
 
         
 
         Mr. Theodore Stouffer
 
         Mr. David Blagg
 
         Attorneys at Law
 
         8805 Indian Hills Dr.
 
         STE 300
 
         Omaha, Nebraska 68114
 
         
 
         
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            EDITH C. WHEELER,             :
 
                                          :         File No. 802285
 
                 Claimant,                :
 
                                          :          R E V I E W -
 
            vs.                           :
 
                                          :        R E O P E N I N G
 
            SELDIN PROPERTIES d/b/a       :
 
            HERITAGE INN,                 :         D E C I S I O N
 
                                          :
 
                 Employer,                :
 
                                          :
 
            and                           :
 
                                          :
 
            AETNA LIFE & CASUALTY CO.,    :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
            
 
                              STATEMENT OF THE CASE
 
            
 
                 This is a proceeding in review-reopening upon the 
 
            petition of claimant, filed, April 24, 1989.  On July 28, 
 
            1985, claimant sustained an injury which arose out of and in 
 
            the course of her employment with defendant-employer.  An 
 
            arbitration decision was filed on March 17, 1988, whereby 
 
            defendants were ordered to pay healing period benefits, 
 
            medical benefits and 15 percent permanent partial disability 
 
            benefits.  All of the aforementioned benefits were paid 
 
            prior to the filing of the review-reopening petition.
 
            
 
                 The hearing on the petition for review-reopening was 
 
            held in Council Bluffs, Iowa on May 4, 1990.  The additional 
 
            record consists of joint exhibits 1-8.  The witnesses who 
 
            have testified are Alfred J. Marchisio, Jr., Patricia Conway 
 
            and claimant.
 
            
 
                                      issues
 
            
 
                 The issues presented for determination are whether 
 
            claimant has experienced a change of condition since the 
 
            prior arbitration hearing and, if so, the extent of her 
 
            current industrial disability.
 
            
 
                     
 
            
 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            findings of fact
 
            
 
                 The deputy, having heard the testimony and considered 
 
            all the evidence, finds:
 
            
 
                 Claimant was 58 at the time of her review-reopening 
 
            hearing.  She had completed the ninth grade but had never 
 
            obtained her GED.  After raising her family, claimant 
 
            returned to the work-force in approximately 1983.
 
            
 
                 Following her work injury of July 28, 1985, claimant 
 
            attempted to return to work.  She obtained employment at a 
 
            Bonanza Restaurant where she was hired to maintain the salad 
 
            bar.  She held the job for one week.  R. Schuyler Gooding, 
 
            M.D., the treating surgeon, assessed a 15% impairment rating 
 
            to claimant's condition.
 
            
 
                 In the fall of 1988, claimant commenced employment with 
 
            Hy-Vee in the bakery.  She worked 10-15 hours per week.  She 
 
            voluntarily terminated her employment.  Since that period of 
 
            employment, claimant had not attempted work.
 
            
 
                 Claimant testified that since 1987, her pain had 
 
            worsened.  She described her pain as occurring in her low 
 
            back and radiating down to her right foot.  Claimant stated 
 
            she is incapable of gainful employment.
 
            
 
                 The evidence establishes that prior to and after 
 
            February 26, 1987, claimant had sought medical treatment 
 
            from James Whalen, M.D., a physician in family practice.  He 
 
            testified by deposition that since claimant's surgery, she 
 
            had been unable to work.
 
            
 
                 Dr. Whalen testified that:
 
            
 
                    A.  Based upon my most recent encounters with 
 
                 Mrs. Wheeler, she continues to complain of chronic 
 
                 pain.  She continues to periodically take pain 
 
                 medicine and anti-inflammatory type medications.  
 
                 She continues to complain that she's unable to do 
 
                 even housework and vacuuming and sweeping and what 
 
                 would be considered by most people to be everyday, 
 
                 nonstrenuous activities.  And she feels that even 
 
                 those activities make her pain worse and as a 
 
                 result, she's unable to do it and doesn't want to 
 
                 do them.  And based on those subjective symptoms, 
 
                 I don't feel there's been a change in her status.
 
            
 
            (Exhibit 5, pages 6-7, lines 16-1)
 
            
 
     
 
            
 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            Additionally, Dr. Whalen noted that as of June 5, 1989:
 
            
 
                 Patient continues to be symptomatic.  Patient will 
 
                 be given a trial of Voltaren 75 mgs twice a day, I 
 
                 don't PT [sic] at this point is going to help her 
 
                 any, her pain is basically chronic and been 
 
                 persistent ever since injury and subsequent 
 
                 surgery.
 
            
 
                 Finally, in his written report of May 24, 1989, Dr. 
 
            Whalen opined:
 
            
 
                 Thank you for your correspondence of May 4, 1989 
 
                 regarding Mrs. Edith Wheeler.  As you indicated 
 
                 Mrs. Wheeler did injure her back on July 28, 1985.  
 
                 The nature of this injury was that of herniated 
 
                 lumbar disc with nerve entrapment.  After 
 
                 extensive attempts at conservative management the 
 
                 patient did undergo surgery in June of 1986.  Her 
 
                 postoperative course has been somewhat 
 
                 disappointing in that she continues to have 
 
                 significant pain.  She's been unable to return to 
 
                 any kind of gainful employment.  Symptomatically 
 
                 she states that the pain is exacerbated by most 
 
                 activities including house cleaning, cooking, 
 
                 she's unable to walk for any significant distance 
 
                 and has been unable to do most activities that she 
 
                 was able to do prior to the injury.  I feel that 
 
                 the injury from 1985 is probably the sole cause of 
 
                 her current disability as she has not had any 
 
                 other ongoing medical problems nor did she have 
 
                 any medical problems prior to this particular 
 
                 accident.
 
            
 
                 The limitations that have been placed on this 
 
                 patient at this point are more from the point of 
 
                 view of symptom control.  She has been advised 
 
                 doing any activity which requires lifting, 
 
                 bending, or stooping but her general activities 
 
                 are being restricted more by her exacerbated 
 
                 symptoms than anything else as she has not been 
 
                 employed.  I do not feel this patient is capable 
 
                 of any gainful employment at this time.  As a 
 
                 result of these ongoing symptoms I feel she is 
 
                 totally disabled.
 
            
 
                 On September 21, 1989, claimant had an independent 
 
            medical exam from Anil K. Agarual, M.D.  The orthopedic 
 
            physician opined in his report of December 11, 1989:
 
            
 
                 Her range of motion of the lumbar spine shows 80% 
 
                 mobility.  She has no scoliosis of kyphosis.  She 
 
                 has normal knee and ankle reflexes and no gross 
 
                 motor, sensory losses.  Straight leg raising shows 
 
                 some tightness at 70 degrees in both sides.
 
            
 
                 Discussion:  I believe she has reached her maximum 
 
                 medical improvement.  I believe her permanent 
 
                 partial disability rating of 15% is satisfactory.  
 
                 Usually a disability rating after a lumbar 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
                 laminectomy is only 10%.  I do not believe she is 
 
                 totally disabled for any gainful employment.  I 
 
                 believe she can return to any work that does not 
 
                 require any heavy lifting beyond 20 to 25 pounds.  
 
                 I believe prolonged bending and stooping should be 
 
                 kept to a minimum also.
 
            
 
                 Claimant also participated with two vocational 
 
            rehabilitation specialists.  Alfred J. Marchisio, Jr., of 
 
            Midlands Rehabilitation Consultants found that claimant did 
 
            not have the capacity to engage in regular employment.  The 
 
            other specialist, Patricia G. Conway, determined claimant 
 
            was employable at the same rate of pay she earned in 1988 
 
            while she was employed at Hy-Vee.
 
            
 
                                conclusions of law
 
            
 
                 Pursuant to Iowa Code section 86.14(2), in a proceeding 
 
            to reopen an award for payments, inquiry is to be made into 
 
            whether or not the condition of the employee warrants an end 
 
            to, diminishment of, or increase of compensation previously 
 
            awarded.  A change in condition must be shown to justify 
 
            changing the original award.  Henderson v. Iles, 250 Iowa 
 
            787, 96 N.W.2d 321 (1959).  It is not proper to merely 
 
            redetermine the condition of the employee as adjudicated by 
 
            the former award.  Stice v. Consol. Indus. Coal Co., 228 
 
            Iowa 1031, 291 N.W.2d 452 (1940).
 
            
 
                 A mere difference of opinion of experts or competent 
 
            observers as to the degree of disability arising from the 
 
            original injury is insufficient to justify a different 
 
            determination on a petition for review-reopening; there must 
 
            be substantial evidence of a worsening of the condition not 
 
            contemplated at the time of the first award.  Bousfield v. 
 
            Sisters of Mercy, 249 Iowa 64, 86 N.W.2d 109 (1957).  Or, a 
 
            change in condition may be found where claimant has failed 
 
            to improve to the extent initially anticipated, Meyers v. 
 
            Holiday Inn of Cedar Falls, Iowa, 272 N.W.2d 24 (Iowa App. 
 
            1978).  Additionally, in cases not involving scheduled 
 
            members, a change in earning capacity subsequent to the 
 
            original award which is proximately caused by the original 
 
            injury may constitute a change in condition.  Blacksmith v. 
 
            All-American, Inc., 290 N.W.2d 348 (Iowa 1980).
 
            
 
                 In the Meyers case, supra, the Iowa Court of Appeals 
 
            held at page 26:
 
            
 
                 It makes little difference from the standpoint of 
 
                 the injured claimant whether a physical condition 
 
                 resulting from an injury progressively worsens 
 
                 beyond what was anticipated or fails to improve to 
 
                 the extent anticipated.  Either situation results 
 
                 in the industrial commissioner being unable to 
 
                 fairly evaluate the claimant's condition at the 
 
                 time of the arbitration hearing.
 
            
 
                 In deciding this question it is important to note 
 
                 that the determination to be made is industrial 
 
                 disability not functional physical disability.  
 
                 Where, as in the present case, the evaluation is 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
                 made before the claimant attempts to return to 
 
                 work the extent of industrial disability is not 
 
                 certain.  When passage of time and subsequent 
 
                 events show the true extent of industrial 
 
                 disability there should be some vehicle for 
 
                 adjusting a prior award....
 
            
 
                 At the time this arbitration decision was rendered, it 
 
            is evident that claimant's condition was anticipated to 
 
            improve and that claimant would return to full time gainful 
 
            employment at minimum wage or better.  Claimant did, in 
 
            fact, return to work.  She held two different positions for 
 
            very short periods of time.  In one situation, claimant 
 
            could work only one week.  In the other situation, claimant 
 
            worked for three months but only part-time hours.  She was 
 
            unable to work full time.  Eventually, claimant terminated 
 
            her position at Hy-Vee after she had cut her employment back 
 
            to six hours per week.  Claimant had not sought employment 
 
            since then.  She is incapable of performing household 
 
            chores.
 
            
 
                 In light of the foregoing, it is the determination of 
 
            the undersigned that claimant has failed to improve as 
 
            anticipated and that this failure to improve constitutes a 
 
            change of condition.
 
            
 
                 Claimant argues she is permanently and totally 
 
            disabled, or that in the alternative, she is an odd-lot 
 
            employee under Guyton v. Jensen, 373 N.W.2d 101 (Iowa 1985).
 
            
 
                 The undersigned is in agreement with claimant.  She is 
 
            an odd-lot employee under the rationale of Guyton.
 
            
 
                 Under the odd-lot doctrine, which was formally adopted 
 
            by the Iowa Supreme Court in Guyton v. Irving Jensen Co., 
 
            373 N.W.2d 101 (Iowa 1985), a worker becomes an odd-lot 
 
            employee when an injury makes the worker incapable of 
 
            obtaining employment in any well-known branch of the labor 
 
            market.  An odd-lot worker is thus totally disabled if the 
 
            only services the worker can perform are so limited in 
 
            quality, dependability, or quantity that a reasonably stable 
 
            market for them does not exist.  Id., citing Lee v. 
 
            Minneapolis Street Railway Company, 230 Minn. 315, 320, 41 
 
            N.W.2d 433, 436 (1950).  The rule of odd-lot allocates the 
 
            burden of production of evidence.  If the evidence of degree 
 
            of obvious physical impairment, coupled with other facts 
 
            such as claimant's mental capacity, education, training or 
 
            age, places claimant prima facie in the odd-lot category, 
 
            the burden should be on the employer to show that some kind 
 
            of suitable work is regularly and continuously available to 
 
            the claimant.  Certainly in such a case it should not be 
 
            enough to show that claimant is physically capable of 
 
            performing light work and then round out the case for 
 
            non-compensable by adding a presumption that light work is 
 
            available.  Guyton, 373 N.W.2d at 105.
 
            
 
                 When a worker makes a prima facie case of total 
 
            disability by producing substantial evidence that the worker 
 
            is not employable in the competitive labor market, the 
 
            burden to produce evidence of suitable employment shifts to 
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            the employer.  If the employer fails to produce such 
 
            evidence and the trier of fact finds the worker falls in the 
 
            odd-lot category, the worker is entitled to a finding of 
 
            total disability.  Even under the odd-lot doctrine, the 
 
            trier of fact is free to determine the weight and 
 
            credibility of the evidence in determining whether the 
 
            worker's burden of persuasion has been carried.  Only in an 
 
            exceptional case would evidence be sufficiently strong to 
 
            compel a finding of total disability as a matter of law.  
 
            Guyton, 373 N.W.2d at 106.  The court went on to state:
 
            
 
                 The commissioner did not in his analysis address 
 
                 any of the other factors to be considered in 
 
                 determining industrial disability.  Industrial 
 
                 disability means reduced earning capacity.  Bodily 
 
                 impairment is merely one factor in a gauging 
 
                 industrial disability.  Other factors include the 
 
                 worker's age, intelligence, education, 
 
                 qualifications, experience, and the effect of the 
 
                 injury on the worker's ability to obtain suitable 
 
                 work.  See Doerfer Division of CCA v. Nicol, 359 
 
                 N.W.2d 428, 438 (Iowa 1984).  When the combination 
 
                 of factors precludes the worker from obtaining 
 
                 regular employment to earn a living, the worker 
 
                 with only a partial functional disability has a 
 
                 total disability.  See McSpadden v. Big Ben Coal 
 
                 Co., 288 N.W.2d 181, 192 (Iowa 1980).
 
            
 
                 Claimant had attempted employment on two separate 
 
            occasions.  She was only capable of working one week in one 
 
            of the positions.  In the other job, claimant only worked 
 
            part-time.  Prior to her termination, she was working only 
 
            six hours per week.  This was not meaningful and gainful 
 
            employment at $4.00 per hour.  This was not competitive 
 
            employment.
 
            
 
                 Claimant is 59 years old.  Her age is working against 
 
            her.  She has a ninth grade education.  She has no GED or 
 
            formalized education.  She has no special skills.  She is 
 
            not even capable of performing certain household chores, 
 
            such as vacuuming.  It is doubtful she can hold a position 
 
            as a maid or hotel housekeeper.  Claimant is restricted from 
 
            lifting 20-25 pounds.  She can not engage in prolonged 
 
            stooping and bending.  She is limited to sedentary work.
 
            
 
                 Defendants have been unable to produce any well known 
 
            branch of the labor market for which claimant is capable of 
 
            obtaining employment.  Defendants' expert, Ms. Conway, 
 
            testified she had never met claimant.  At best, she hoped 
 
            claimant could return to sporadic-occasional work.  This is 
 
            not competitive employment.
 
            
 
                 It is the determination of the undersigned that 
 
            claimant is totally disabled under Guyton, supra.  The only 
 
            services claimant can perform are so limited in quality, 
 
            dependability, or quantity that a stable labor market for 
 
            her is non-existent.
 
            
 
                                      order
 
            
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
                 THEREFORE, IT IS ORDERED:
 
            
 
                 Defendant is to pay unto claimant weekly benefits for 
 
            the duration of claimant's period of permanent total 
 
            disability with said benefits commencing on August 23, 1989 
 
            and running continuously at the stipulated rate of 
 
            sixty-eight and 78/l00 dollars ($68.78) per week.
 
            
 
                 Accrued benefits are to be paid in a lump sum together 
 
            with statutory interest at the rate of ten percent (10%) per 
 
            year pursuant to section 85.30, Iowa Code, as amended.
 
            
 
                 Costs are taxed to defendants pursuant to rule 343 IAC 
 
            4.33.
 
            
 
                 Defendants shall file a claim activity report.
 
            
 
            
 
            
 
                 Signed and filed this ____ day of February, 1991.
 
            
 
            
 
            
 
            
 
            
 
                                          ______________________________               
 
            MICHELLE A. McGOVERN
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 

 
            
 
            Page   8
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
            Copies To:
 
            
 
            Mr. Jacob John Peters
 
            Attorney at Law
 
            233 Pearl St
 
            P O Box 1078
 
            Council Bluffs  IA  51502
 
            
 
            Mr. Theodore Stouffer
 
            Mr. David A. Blagg
 
            Attorneys at Law
 
            8805 Indian Hills Dr
 
            Suite 300
 
            Omaha  NE  68114
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                               1106; 1108.50; 1402.20;
 
                                               1402.30; 1402.40; 1402.60;
 
                                               1802; 1803; 2500; 2907
 
                                               Filed March 17, 1988
 
                                               WALTER R. McMANUS, JR.
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         EDITH C. WHEELER,
 
         
 
              Claimant,
 
         
 
         vs.
 
         
 
         SELDIN PROPERTIES d/b/a                   File No.  802285
 
         HERITAGE INN,
 
                                                A R B I T R A T I 0 N
 
              Employer,
 
                                                   D E C I S I 0 N
 
         and
 
         
 
         AETNA LIFE AND CASUALTY CO.,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         1106; 1108.50; 1402.20; 1402.30; 1402.40; 1402.60
 
         
 
              Part time motel housekeeper found to have sustained an 
 
         injury arising out of and in the course of employment by turning 
 
         over a mattress that caused a back injury that eventuated into a 
 
         herniated disc based on the strong, clear, firm evidence of her 
 
         personal physician and the operating neurosurgeon which was not 
 
         controverted.
 
         
 
         1802; 1803
 
         
 
              Claimant awarded healing period and permanent partial 
 
         disability.  Permanent function impairment rating was 15 percent 
 
         by neuosurgeon and claimant was awarded 15 percent industrial 
 
         disability.  Claimant was age 55, worked sporadically and only 
 
         part time basically on weekends to supplement her husbands social 
 
         security income.  Neurosurgeon returned her to all activities 
 
         with admonition to be careful.
 
         
 
         2500; 2907
 
         
 
              Claimant awarded $12,229.71 in medical expenses and costs as 
 
         stipulated between counsel.
 
         
 
         
 
         
 
                                                
 
 
         
 
 
 
                        4100
 
                        Filed February 20, 1991
 
                        MICHELLE A. McGOVERN
 
         
 
                     before the iowa industrial commissioner
 
         ____________________________________________________________
 
                                       :
 
         EDITH C. WHEELER,             :
 
                                       :         File No. 802285
 
              Claimant,                :
 
                                       :          R E V I E W -
 
         vs.                           :
 
                                       :        R E O P E N I N G
 
         SELDIN PROPERTIES d/b/a       :
 
         HERITAGE INN,                 :         D E C I S I O N
 
                                       :
 
              Employer,                :
 
                                       :
 
         and                           :
 
                                       :
 
         AETNA LIFE & CASUALTY CO.,    :
 
                                       :
 
              Insurance Carrier,       :
 
              Defendants.              :
 
         ___________________________________________________________
 
         
 
         
 
         4100
 
         In a review-reopening proceeding, claimant was determined to be 
 
         an odd-lot employee under Guyton,.
 
         
 
              Claimant had attempted employment on two separate occasions.  
 
         She was only capable of working one week in one of the positions.  
 
         In the other job, claimant only worked part-time.  Prior to her 
 
         termination, she was working only six hours per week.  This was 
 
         not meaningful and gainful employment at $4.00 per hour.  This 
 
         was not competitive employment.
 
         
 
              Claimant is 59 years old.  Her age is working against her.  
 
         She has a ninth grade education.  She has no GED or formalized 
 
         education.  She has no special skills.  She is not even capable 
 
         of performing certain household chores, such as vacuuming.  It is 
 
         doubtful she can hold a position as a maid or hotel housekeeper.  
 
         Claimant is restricted from lifting 20-25 pounds.  She can not 
 
         engage in prolonged stooping and bending.  She is limited to 
 
         sedentary work.
 
         
 
              Defendants have been unable to produce any well known branch 
 
         of the labor market for which claimant is capable of obtaining 
 
         employment.  Defendants' expert, Ms. Conway, testified she had 
 
         never met claimant.  At best, she hoped claimant could return to 
 
         sporadic-occasional work.  This is not competitive employment.
 
         
 
              It is the determination of the undersigned that claimant is 
 
         totally disabled under Guyton, supra.  The only services claimant 
 
         can perform are so limited in quality, dependability, or quantity 
 
         that a stable labor market for her is non-existent.
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         __________________________________________________________________
 
         
 
         LARRY D. OTTEN,
 
         
 
             Claimant,
 
         VS.
 
                                                    FILE NO. 802386
 
         LEHIGH PORTLAND CEMENT CO.,
 
                                                 A R B I T R A T I 0 N
 
              Employer,
 
                                                    D E C I S I 0 N
 
         and
 
         
 
         TRAVELERS INSURANCE COMPANY,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         _________________________________________________________________
 
         
 
                                   INTRODUCTION
 
         
 
              This is a proceeding in arbitration brought by Larry D. 
 
         Otten, claimant, against Lehigh Portland Cement Company, 
 
         employer, and Travelers Insurance Company, insurance carrier, for 
 
         benefits as a result of an alleged injury on August 28, 1985.  A 
 
         hearing was held in Mason City, Iowa on September 4, 1986 and the 
 
         case was fully submitted at the close of the hearing.  The record 
 
         consists of the testimony of Larry D. Otten (claimant); 
 
         claimant's exhibit 1 (consisting of 17 pages); and defendants' 
 
         exhibits 1 through 32 which include also exhibit 13A and exhibit 
 
         14A, B, C, and D.
 
         
 
                                   STIPULATIONS
 
         
 
              At the time of the hearing the parties stipulated to the 
 
         following matters:
 
         
 
              That an employer/employee relationship existed between the 
 
         claimant and the employer at the time of the alleged injury.
 
         
 
              That the rate of compensation in the event of an award is 
 
         $322.64 per week.
 
         
 
              That the time off work for which the claimant seeks 
 
         temporary disability benefits is from August 28, 1985 to November 
 
         22, 1985.
 
         
 
              That in the event of an award the defendants are entitled to 
 
         a credit under Iowa Code section 85.38(2) for the previous 
 
         payment of disability income under an employee non-occupational
 
         group health plan in the amount of $1,955.40.
 
         
 
                                      ISSUES
 
         
 

 
         OTTEN V. LEHIGH PORTLAND CEMENT CO.                             
 
         Page   2
 
 
 
 
 
              The issues presented by the parties for determination at the 
 
         time of the hearing are as follows:
 
         
 
              Whether the claimant sustained an injury on August 28, 1985 
 
         which arose out of and in the course of his employment with the 
 
         employer.
 
         
 
              Whether the alleged injury is the cause of either temporary 
 
         or permanent disability benefits.
 
         
 
              Whether the claimant is entitled to either temporary or 
 
         permanent disability benefits.
 
         
 
              Whether the claimant is entitled to medical benefits under 
 
         Iowa Code section 85.27.
 
         
 
                        SUMMARY OF THE EVIDENCE
 
         
 
              Claimant is 39 years old, married and has two sons ages 16 
 
         and 12.  He graduated from high school in 1966.  The following 
 
         year in 1967 he completed a one year course at Hawkeye Tech for 
 
         which he received a diploma.  In 1966 and 1968 he did turret 
 
         lathe work and machine work and some welding.  He started to work 
 
         for the employer on July 23, 1968 and terminated there on August 
 
         28, 1985.  While working for the employer he also completed a two 
 
         year course at Northern Iowa Area Community College and received 
 
         an AA (Associate Arts) Degree in 1971.  Claimant performed a 
 
         number of jobs for the employer.  From 1976 to 1985 he was a 
 
         sheetmetal welder in the maintenance department.  Claimant denies 
 
         any problems with allergies or breathing prior to working for the 
 
         employer.  Claimant's extensive medical records clearly indicate 
 
         a lot of trouble with allergies, breathing, and nasal congestion 
 
         and drainage from 1970 until the claimant terminated his 
 
         employment on August 28, 1985.  Numerous allergy tests were taken 
 
         but nothing ever conclusively established the etiology of the 
 
         allergies.  A number of doctors at the Park Clinic over the years 
 
         stated that they suspected his breathing problems were associated 
 
         with cement dust at his place of employment.  However, when 
 
         claimant was tested for a reaction to nickel and chromium, two 
 
         ingredients related to cement dust, the tests were negative 
 
         (Claimant's Exhibit 1, page 3).
 
         
 
              On January 13, 1983, claimant began to see R. L. Cooley, 
 
         M.D., an allergy and pulmonary medicine specialist at the Park 
 
         Clinic in Mason City for complaints of nasal congestion, sneezing 
 
         and drainage.  Claimant could only breath out of the right side 
 
         of his nose.  The left side of his nose was completely obstructed 
 
         due to a deviated septum.  Nasal surgery was performed by a Dr.
 
         
 
         Smith (full name unknown) of the Park Clinic in the early 1970's. 
 
          However, this surgery did not improve his condition.  Dr. Cooley 
 
         found that claimant suffered from a deviated septum and chronic 
 
         sinusitis for many years.  The doctor also thought his long-term 
 
         nasal problem was related to cement dust (Cl.  Ex. 1, pp. 1-3).
 
         
 
              Dr. Cooley recorded this statement in his office notes on 
 
         July 31, 1985:
 
         
 
              ...In discussing with him in the past, I firmly believe 
 

 
         OTTEN V. LEHIGH PORTLAND CEMENT CO.                             
 
         Page   3
 
 
 
 
 
              that his symptoms are related to the cement dust, 
 
              whether it is directly due to the irritant affect, 
 
              which is, I suspect, what's causing it or possibly, to 
 
              some contact sensitivity.  I'm quite convinced that it 
 
              is the cement dust gases and fumes that are causing 
 
              difficulty. (Cl. 1, p. 3)
 
         
 
              Dr. Cooley summarized the claimant's situation in a letter 
 
         addressed "To Whom It May Concern" on August 15, 1985:
 
         
 
              This is a 38 year old man who has been followed in this 
 
              Clinic since 1970.  He has been followed for recurrent 
 
              sinus problems, nasal congestion, and nasal drainage.  
 
              I first evaluated the man in 1983 when he came because 
 
              of his nasal symptoms.  Studies at that time showed 
 
              minimal allergic reactions to some house dust antigens 
 
              with no other significant findings.  He's continued to 
 
              have symptoms, increasing in nature and becoming more 
 
              severe.  He's had recurrent episodes of sinus 
 
              infection, the most recent occurring in May of 1985.
 
         
 
              His physical examination is significant in that there 
 
              is marked pallor of the nasal mucosa, marked swelling 
 
              of the nasal mucosa and a very significant septal 
 
              deviation present.  He has difficulty getting any air 
 
              through the right side because of the nasal septal 
 
              deviation and because of the nasal polyp.  X-rays have 
 
              shown a chronic maxillary sinusitis.
 
         
 
              In reviewing his history and his physical examination, 
 
              I believe that his nasal symptoms are due to the 
 
              chronic exposure to cement dust and gases in his work 
 
              situation.  The symptoms occurred for the first time 
 
              within three years of his first being employed at the 
 
              plant.  They have progressed in severity and in 
 
              frequency throughout the years that he has been at the 
 
              plant.  His symptoms tend to improve on weekends, 
 
              worsen when he returns to the plant in the beginning of 
 
              the week.  He's had at least one extended lay-off 
 
              period due to a traumatic
 
         
 
              [sic] injury in late 1983 and early 1984, during which 
 
              time he states that he cleared completely.
 
         
 
              I believe that at this time he needs to avoid any 
 
              further exposure to the cement dust.  We have suggested 
 
              surgery for correcting the nasal septal deviation.  We 
 
              have suggested retraining into some other field of 
 
              occupation. (Cl.  Ex. 1, p. 5)
 
         
 
              Claimant testified that in August, 1985, he could not breath 
 
         out of either side of his nose and that it became necessary to 
 
         breath through his mouth.
 
         
 
              Dr. Cooley took the claimant off work on August 28, 1985, 
 
         for a severe respiratory problem associated with exposure to 
 
         cement dust (Cl.  Ex. 1, p. 11).
 
         
 
              Claimant was referred to R. E. Schurtz, M.D., a surgeon, in 
 

 
         OTTEN V. LEHIGH PORTLAND CEMENT CO.                             
 
         Page   4
 
 
 
 
 
         1983.  Dr. Schurtz recommended surgery at that time for 
 
         claimant's chronic sinus problems and septoplasty for the 
 
         deviated septum to enable the claimant to breath (Cl.  Ex. 1, p. 
 
         3).  In September, 1985, the claimant decided to have the surgery 
 
         done and it was performed at St. Joseph's Hospital in Mason City 
 
         on September 26, 1985 (Cl.  Ex. 1, pp. 12-16).  On September 26, 
 
         1985, Dr. Schurtz found that claimant did not have any nasal 
 
         passage at all on the left side and on the right side it was a 
 
         very small inferior passageway (Cl.  Ex. 1, p. 12).  The 
 
         presurgical impression and surgical plan of Dr. Schurtz were 
 
         stated by him as follows:
 
         
 
                 IMPRESSION:  Severely deviated nasal septum and nasal
 
                              obstruction.  Nasal polyposis and chronic 
 
                              maxillary sinusitis.
 
         
 
                 PLAN:        Septoplasty.
 
                              Polypectomy.
 
                              Formation of nasal antral windows.
 
                 (Cl.  Ex. 1,   p. 11)
 
         
 
              Claimant was discharged two days later on September 28, 
 
         1985.  The discharge summary states claimant received a 
 
         septoplasty for a nasal obstruction and rhinosinusitis and 
 
         bilateral anterior meatal windows to correct a septal deviation 
 
         that has plugged the claimant's nasal airway since birth (Cl.  
 
         Ex. 1, p. 16).  No polyp was found.  Claimant, in his testimony, 
 
         denied that he told Dr. Schurtz that he had this problem since 
 
         birth.
 
         
 
              Claimant was returned to work by Dr. Cooley on November 22, 
 
         1985 (Cl.  Ex. 1, p. 17).
 
         
 
         
 
              Neither Dr. Cooley nor Dr. Schurtz stated that the claimant 
 
         was permanently impaired nor did either doctor assign any 
 
         permanent impairment rating.
 
         
 
              Claimant testified that as a result of the surgery he can 
 
         now breath out of both sides of his nose and that he can smell 
 
         again.   His tongue, which had become sore when he had to breath 
 
         through his mouth, has cleared up also.  There was no polyp, but 
 
         Dr. Schurtz reconstructed the structure of his nose.  Even though 
 
         his breathing problems had been corrected, claimant felt that he 
 
         did not believe he could work at the plant again.  He was off 
 
         work at the time of the hearing due to another work related 
 
         injury for which a claim was pending.   Due to the period of time 
 
         he was off work claimant had lost his employee benefits.  
 
         Claimant testified that he was exploring a new occupation.  He 
 
         had talked to vocational rehabilitation people and was 
 
         considering going to college to learn teaching or banking.  
 
         Claimant did not apply for a disability pension from the 
 
         employer, but he did draw temporary disability benefits.  
 
         Claimant conceded that his deviated septum might be a congenital 
 
         problem or that he might have broken his nose at sometime 
 
         earlier.  He did not say how or when he first noticed it or when 
 
         it occurred.
 
         
 
              Claimant testified that he personally paid $275.00 of 
 

 
         OTTEN V. LEHIGH PORTLAND CEMENT CO.                             
 
         Page   5
 
 
 
 
 
         medical expenses to Dr. Cooley, Dr. Schurtz and J. H. Brinkman, 
 
         M.D. Claimant testified that he had the cancelled checks at home, 
 
         but that he failed to bring them to the hearing.  The cancelled 
 
         checks were not included in the exhibits.  Claimant did not know 
 
         how much he paid to each doctor.  These expenses in the amount of 
 
         $275.00 were like a deductible amount that he was forced to pay 
 
         before the group medical insurance would pay.  Other than this 
 
         $275.00 all of his bills have been paid.
 
         
 
                        APPLICABLE LAW AND ANALYSIS
 
         
 
              An employee is entitled to compensation for any and all 
 
         personal injuries which arise out of and in the course of the 
 
         employment.  Section 85.3(l).
 
         
 
              Claimant has the burden of proving by a preponderance of the 
 
         evidence that he received an injury on August 28, 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 l28 (1967).
 
         
 
              The injury must both arise out of and be in the course of 
 
         the employment.  Crowe v. DeSoto Consol.  Sch.  Dist., 246 Iowa 
 
         402, 68 N.W.2d 63 (1955) and cases cited at pp. 405-406 of the 
 
         Iowa Report.  See also Sister Mary Benedict v. St. Mary's Corp.,
 
         255 Iowa 847, 124 N.W.2d 5 and Hansen v. State of Iowa, 249 Iowa 
 
         1147, 91 N.w.2d 555 (1958).
 
         
 
              The words "Out of" refer to the cause or source of the 
 
         injury.  Crowe, 246 Iowa 402, 68 N.W.2d 63.
 
         
 
              The words "in the course of" refer to the time and place and
 
         circumstances of the injury.  McClure v. Union et al. Counties, 
 
         188 N.W.2d 283 (Iowa 1971); Crowe, 246 Iowa 402, 68 N.W.2d 63.
 
         
 
              "An injury occurs in the course of the employment when it is 
 
         within the period of employment at a place the employee may 
 
         reasonably be, and while he is doing his work or something 
 
         incidental to it." Cedar Rapids Comm.  Sch.  Dist. v. Cady, 278 
 
         N.W.2d 298 (Iowa 1979), McClure v. Union et al.  Counties, 188 
 
         N.W.2d 283 (Iowa 1971), Musselman, 261 Iowa 352, 154 N.W.2d 128.
 
         
 
              The supreme court of Iowa in Almquist v. Shenandoah 
 
         Nurseries, 218 Iowa 724, 731-32, 254 N.W. 35, 38 (1934), 
 
         discussed the definition of personal injury in workers' 
 
         compensation cases as follows:
 
         
 
              While a personal injury does not include an 
 
              occupational disease under the Workmen's Compensation 
 
              Act, yet an injury to the health may be a personal 
 
              injury. [Citations omitted.] Likewise a personal injury 
 
              includes a disease resulting from an injury.... The 
 
              result of changes in the human body incident to the 
 
              general processes of nature do not amount to a personal 
 
              injury.  This must follow, even though such natural 
 
              change may come about because the life has been devoted 
 
              to labor and hard work.  Such result of those natural 
 
              changes does not constitute a personal injury even 
 

 
                        OTTEN V. LEHIGH PORTLAND CEMENT CO.                             age   6
 
              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 August 28, 1985 is causally 
 
         related to the disability on which he now bases his claim.  
 
         Bodish v. Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867 (1965).  
 
         Lindahl v. L. 0. Boggs, 236 Iowa 296, 18 N.W.2d 607 (1945).
 
         
 
         A possibility is insufficient; a probability is necessary.  Burt 
 

 
         OTTEN V. LEHIGH PORTLAND CEMENT CO.                             
 
         Page   7
 
 
 
 
 
         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, 261 Iowa 352, 154 
 
         N.W.2d 128.
 
         
 
              While a claimant is not entitled to compensation for the 
 
         results of a preexisting injury or disease, the mere existence at 
 
         the time of a subsequent injury is not a defense.  Rose v. John 
 
         Deere Ottumwa Works, 247 Iowa 900, 908, 76 N.W.2d 756, 760-761 
 
         (1956).  If the claimant had a preexisting condition or 
 
         disability that is aggravated, accelerated, worsened or lighted 
 
         up so that it results in disability, claimant is entitled to 
 
         recover.  Nicks v. Davenport Produce Co., 254 Iowa 130, 115 
 
         N.W.2d 812, 815 (1962).
 
         
 
              An employer takes an employee subject to any active or 
 
         dormant health impairments, and a work-connected injury which 
 
         more than slightly aggravates the condition is considered to be a 
 
         personal injury.  Ziegler v. United States Gypsum Co., 252 Iowa 
 
         613, 620, 106 N.W.2d 591 (1960), and cases cited.
 
         
 
              When an aggravation occurs in the performance of an 
 
         employer's .work and a causal connection is established, claimant 
 
         may recover to the extent of the impairment.  Ziegler, 252 Iowa 
 
         613, 620, 106 N.W.2d 591, 595.
 
         
 
              Claimant established by a preponderance of the evidence that 
 
         he sustained an injury on August 28, 1985.  There was no evidence 
 
         that this was an occupational disease.  An injury to health may 
 
         be a personal injury.  The effect of cement dust on a claimant's 
 
         nasal problems due to a deviated septum, sinusitis and rhinitis. 
 
         comes about not through the natural building up or tearing down 
 
         of the human body, but rather is something that acts extraneous 
 
         to the natural processes of nature.  Although it was not proven 
 
         that cement dust caused the deviated septum, sinusitis or 
 
         rhinitis, there was evidence that it aggravated the nasal 
 
         problems which the claimant was suffering from these otherwise 
 
         preexisting conditions.
 
         
 
              Dr. Cooley stated that he was convinced that cement dust 
 
         gases and the fumes were causing breathing difficulties (Cl.  Ex. 
 
         1, p. 3).  Again, he stated in his letter of August 15, 1985, 
 
         that the nasal symptoms are due to chronic exposure to cement 
 
         dust and gases in his work situation (Cl.  Ex. 1, p. 5).
 
         
 
              Dr. Cooley's medical opinion is weakened by the fact that he 
 

 
         OTTEN V. LEHIGH PORTLAND CEMENT CO.                             
 
         Page   8
 
 
 
 
 
         gives no cause and effect relationship between cement dust and 
 
         gases and the claimant's nasal problems.  Dr. Cooley cites 
 
         nothing from medical literature and he does not base his opinion 
 
         on his own experience as a medical practitioner with,any other 
 
         similar cases. on the contrary, his own laboratory tests showed 
 
         that the claimant had no adverse reaction to nickel or chromium 
 
         which are related to cement dust (Cl.  Ex. 1, p. 3).  The factual 
 
         basis for his opinion, to wit: (1) that his symptoms first 
 
         appeared within three years after being employed at the plant; 
 
         and (2) that his symptoms were worse at the plant and less when 
 
         he was away from the plant are not different from the opinion 
 
         that any layman could give with the same information.  Dr. Cooley 
 
         gives no medical facts in support of his opinion and he gives no 
 
         medical reasoning to support his opinion as to how or why cement 
 
         dust or gases impaired or aggravated the claimant's condition.  
 
         However, it is the opinion of a medical doctor.  Also, it is the 
 
         opinion of a medical doctor who specializes in allergy and 
 
         pulmonary medicine.  Therefore, it may be based upon medical 
 
         knowledge and experience not expressed in his written notes or in 
 
         his letter.
 
         
 
              In addition, it is the only evidence from a medical 
 
         practitioner that directly addresses the issue of causal 
 
         connection.  It stands alone as the only medical evidence 
 
         directly on this point.  Dr. Cooley's opinion is not rebutted, 
 
         controverted or contradicted by any other opposing medical 
 
         evaluator.  Dr. Schurtz did not purport to comment on the 
 
         claimant's overall nasal complaints and their relationship to 
 
         cement dust or gases.  Dr. Schurtz simply describes the deviated 
 
         symptom and the corrective measures he took to reconstruct the 
 
         claimant's nose to eliminate his breathing problems which he 
 
         thought the claimant had since birth.
 
         
 
              A number of doctors over the years at the Park Clinic in 
 
         Mason City where Dr. Cooley is situated stated in their office 
 
         notes that they suspected cement dust was a source of the 
 
         claimant's nasal problems.  Dr. Cooley had access to these 
 
         historic comments.  Also, Dr. Cooley's opinion is a very honest. 
 
         and sincere opinion.  Otherwise, he would not have recommended 
 
         that a 38 year old man with a wife and two dependent growing 
 
         children give up a good paying job and try to find another one 
 
         away from cement dust and gases.
 
         
 
              This appears to be a cumulative injury that occurred over a 
 
         period of time and therefore, it is correct to state that the 
 
         injury date is the date the claimant was first forced to leave
 
         his employment which was August 28, 1985.  McKeever Custom 
 
         Cabinets v. Smith, 379 N.W.2d 368 (Iowa 1985).
 
         
 
              In conclusion, the claimant has established by a 
 
         preponderance of the evidence that he did sustain an.injury on 
 
         August 28, 1985 due to the aggravation of his nasal problems 
 
         which were probably primarily caused by a deviated septum and 
 
         other faulty structures in the claimant's nose that blocked his 
 
         nasal air passage on the left completely and severely restricted 
 
         the nasal air passage on the right side.
 
         
 
              The evidence of temporary disability is quite clear.  Dr. 
 
         Cooley ordered claimant to be off work due to severe respiratory 
 

 
         OTTEN V. LEHIGH PORTLAND CEMENT CO.                             
 
         Page   9
 
 
 
 
 
         problems associated with exposure to cement dust on August 28, 
 
         1985 (Cl.  Ex. 1, p. 11).  He also ordered him to return to his 
 
         regular duties on November 22, 1985 (Cl.  Ex. 1, p. 17).  This 
 
         evidence is not rebutted, controverted or contradicted by any 
 
         other medical evidence or any opposing physician.  Therefore, 
 
         claimant is entitled to temporary total disability from August 
 
         28, 1985 to November 22, 1985.  It should be noted that 
 
         defendants' exhibit 18 is a return to work slip signed by Dr. 
 
         Cooley returning the claimant to regular duties on November 4, 
 
         1985 without any restrictions.  However, at the hearing both 
 
         parties seemed to be in agreement that the proper return to work 
 
         date was November 22, 1985.
 
         
 
              Neither Dr. Cooley nor Dr. Schurtz made a finding of any 
 
         permanent impairment or gave any impairment rating.  There is no 
 
         other evidence of permanent impairment in the record.  Claimant 
 
         testified that he has not tried to find any other employment 
 
         since he left work on August 28, 1985 up until the time of the 
 
         hearing on September 4, 1986.  Therefore, of necessity, it must 
 
         be determined that claimant has not sustained any permanent 
 
         disability for this injury.
 
         
 
              Claimant, by his testimony which was not rebutted, 
 
         established that he paid $275.00 in medical expenses from his 
 
         personal funds in order to satisfy the deductible requirement of 
 
         his group medical insurance policy.  However, since he did not 
 
         present written evidence or testimonial evidence of how much he 
 
         paid to what doctors for what treatment, it is not possible for 
 
         this decision to make a definite finding of his entitlement to 
 
         medical expenses.  However, it is found that he is entitled to 
 
         recover any amount that he paid to Dr. Cooley for treatment on 
 
         July 31, 1985 and August 14, 1985 for the aggravation of his 
 
         breathing problems and defendants are ordered to pay him the 
 
         reasonable costs of these two office visits.  The claimant's 
 
         payments to Dr. Schurtz are not recoverable because Dr. Schurtz 
 
         treated him for the deviated symptom which was not proven to be 
 
         caused by his employment with the employer.
 
         
 
              Claimant testified that he drove his own personal 
 
              automobile
 
         
 
         to see Dr. Cooley from the plant and returned, a distance of four 
 
         miles round trip, on July 31, 1985 and again on August 14, 1985.  
 
         His entitlement then for his mileage expense is $1.92 (8 miles x 
 
         $.24). The trips to Dr. Schurtz are not allowable as treatment 
 
         for a work related injury.
 
         
 
                                 FINDINGS OF FACT
 
         
 
              WHEREFORE, based upon the evidence presented, the following 
 
         findings of fact are made:
 
         
 
              That claimant was employed by the employer from duly 23, 
 
         1968 until August 28, 1985.
 
         
 
              That since approximately 1970, claimant suffered nasal 
 
         problems due to a deviated septum of unknown origin.  He also 
 
         suffered sinusitis and rhinitis since approximately 1970.
 
         
 

 
         OTTEN V. LEHIGH PORTLAND CEMENT CO.                             
 
         Page  10
 
 
 
 
 
              That a number of doctors at Park Clinic over the years who 
 
         treated the claimant suspected that the breathing and nasal 
 
         problems were associated with cement dust at the plant.
 
         
 
              That Dr. Cooley stated that his nasal congestion and 
 
         drainage problems were due to chronic exposure to cement dust and 
 
         gases and fumes encountered in his employment.
 
         
 
              That Dr. Cooley took him off work for the aggravation of his 
 
         nasal condition on August 28, 1985 and returned him to work on 
 
         November 22, 1985.
 
         
 
              That claimant had his deviated septum repaired and other 
 
         nose reconstructive surgery on September 26, 1985.
 
         
 
              That this surgery corrected the claimant's breathing 
 
         problems in both nostrils.
 
         
 
              That cement dust, gases and fumes at work did aggravate the 
 
         claimant's preexisting condition of nasal problems due to a 
 
         deviated septum, sinusitis and rhinitis.
 
         
 
              That there was no evidence from Dr. Cooley, Dr. Schurtz or 
 
         any other medical practitioner that claimant suffered any 
 
         permanent impairment nor was he given an impairment rating by any 
 
         physician.
 
         
 
              That the claimant saw Dr. Cooley for the aggravation of his 
 
         nasal condition on July 31, 1985 and August 14, 1985.
 
         
 
                             CONCLUSIONS OF LAW
 
         
 
              WHEREFORE, based upon the evidence presented and the 
 
         principles of law previously stated, the following conclusions of 
 
         law are made:
 
         
 
              That the claimant sustained an injury on August 28, 1985 due 
 
         to an aggravation of his preexisting nasal problems due to a 
 
         deviated septum, sinusitis and rhinitis.
 
         
 
              That the injury was the cause of temporary total disability 
 
         from August 28, 1985 to November 22, 1985.
 
         
 
              That the claimant is entitled to 12 3/7 weeks of temporary 
 
         total disability benefits from August 28, 1985 to November 22, 
 
         1985.
 
         
 
              That the claimant did not prove by a preponderance of the 
 
         evidence that the injury was the cause of any permanent 
 
         disability.
 
         
 
              That the claimant is not entitled to any permanent 
 
         disability benefits.
 
         
 
              That the claimant is entitled to be reimbursed for the 
 
         reasonable cost of his treatment by Dr. Cooley on July 31, 1985 
 
         and August 14, 1985.
 
         
 
              That the claimant is entitled to $1.92 in mileage expenses 
 

 
         OTTEN V. LEHIGH PORTLAND CEMENT CO.                             
 
         Page  11
 
 
 
 
 
         to see Dr. Cooley on the above two dates.
 
         
 
                                        ORDER
 
         
 
              THEREFORE, IT IS ORDERED:
 
         
 
              That the defendants pay to the claimant twelve point 
 
         four-two-nine (12.429) weeks of temporary total disability 
 
         benefits for the period from August 28, 1985 to November 22, 1985 
 
         at the rate of three hundred twenty-two and 64/100 dollars 
 
         ($322.64) per week for a total amount of four thousand ten and 
 
         09/100 dollars ($4,010.09).
 
         
 
              That the defendants are entitled to a credit in the amount 
 
         of one thousand nine hundred fifty-five and 40/00 dollars 
 
         ($1,955.40) under Iowa Code section 85.38(2) for disability 
 
         benefits paid to the claimant under an employee non-occupational 
 
         income disability group plan.
 
         
 
              That the defendants pay to the claimant the reasonable 
 
         amount for the charges of Dr. Cooley on July 31, 1985 and August 
 
         14, 1985.
 
         
 
              That the defendants pay to claimant one and 92/100 dollars 
 
         ($1.92) for his round trip mileage to see Dr. Cooley on the above 
 
         dates.
 
         
 
              That the defendants pay these amounts in a lump sum.
 

 
         OTTEN V. LEHIGH PORTLAND CEMENT CO.                             
 
         Page  12
 
 
 
 
 
              That interest shall accrue under Iowa Code section 85.30 on 
 
         the temporary total disability amount.
 
         
 
              That the defendants will pay the costs of this action in 
 
         accordance with Division of Industrial Services Rule 343-4.33, 
 
         formerly Iowa Industrial Commissioner Rule 500-4.33.
 
         
 
              That the defendants file claim activity reports as required 
 
         by Division of Industrial Services Rule 343-3.1, formerly Iowa 
 
         Industrial Commissioner Rule 500-3.1.
 
         
 
         
 
              Signed and filed this 30th day of December, 1986.
 
         
 
         
 
         
 
         
 
         
 
                                          WALTER R. McMANUS, JR.
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
         Copies To:
 
         
 
         Mr. Robert W. Pratt
 
         Attorney at Law
 
         1913 Ingersoll Avenue
 
         Des Moines, Iowa 50309-3320
 
         
 
         Mr. Jon Stuart Scoles
 
         Attorney at Law
 
         30 Fourth St., N.W.
 
         P. 0. Box 1953
 
         Mason City, Iowa 50401
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                                 1801; 1808.30; 1402.20
 
                                                 1402.30; 1402.40
 
                                                 Filed December 30, 1986 
 
                                                 WALTER R. McMANUS, JR.
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         _________________________________________________________________
 
         
 
         LARRY D. OTTEN,
 
         
 
             Claimant,
 
         
 
         VS.
 
                                                 FILE NO. 802386 
 
         LEHIGH PORTLAND CEMENT CO.,
 
                                              A R B I T R A T I 0 N
 
              Employer,
 
                                                 D E C I S I 0 N 
 
         and
 
         
 
         TRAVELERS INSURANCE COMPANY,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         _________________________________________________________________
 
         
 
         1801; 1808.30; 1402.20; 1402.30; 1402.40
 
         
 
              Claimant with a deviated septum, sinusitis and rhinitis was 
 
         found to have an aggravation of these preexisting conditions in 
 
         the way of nasal congestion, drainage and sneezing by long-term 
 
         exposure to cement dust, gases and fumes.  Treating physician 
 
         said it was causally connected.  He was the only physician who 
 
         expressed an opinion.  Physician's opinion did not have a strong 
 
         medical basis and appeared to be based on facts from which a 
 
         layman could arrive at the same opinion, but it was the only 
 
         opinion on causal connection.  Claimant allowed 12.429 weeks of 
 
         temporary total disability.  No doctor said he was permanently 
 
         impaired or gave a permanent impairment rating.
 
 
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         FRANK E. INGERSOLL,
 
         
 
              Claimant
 
         
 
         VS.
 
         
 
                                                        File No. 802399
 
         SUNSHINE BISCUIT COMPANY,
 
                                                          A P P E A L
 
              Employer,
 
                                                          R U L I N G
 
          and
 
          
 
          TRAVELERS INSURANCE,
 
          
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         
 
                              STATEMENT OF THE CASE
 
         
 
              The Veterans Administration (hereinafter VA) appeals from a 
 
         proposed ruling denying the VA's claim for medical services 
 
         provided to Frank E. Ingersoll.  The deputy ruled that under Iowa 
 
         Code section 85.26(4), the VA lacked standing to maintain a claim 
 
         for medical services.  The deputy also ruled that no statutory 
 
         hospital lien in workers' compensation matters exists in Iowa 
 
         law.
 
         
 
              Both parties filed briefs on appeal.
 
         
 
                                      ISSUE
 
         
 
              The VA states the following issue on appeal: "Did the Deputy 
 
         Industrial Commissioner err in holding that SS85.26(4) precludes 
 
         a direct action by the VA to recover for the value of medical 
 
         services provided?"
 
         
 
                              REVIEW OF THE EVIDENCE
 
         
 
              The VA has submitted a copy of a bill for medical treatment 
 
         provided to Frank E. Ingersoll from March 18, 1985 to May 13, 
 
         1985.  The total amount of this bill is $7,890.00.
 
         
 
                                  APPLICABLE LAW
 
         
 
              "No claim or proceedings for benefits shall be maintained by 
 
         any person other than the injured employee, his or her dependent 
 
         or his or her legal representative if entitled to benefits."
 
         Iowa Code section 85.26(4), 1983.
 
         
 
              The industrial commissioner has interpreted section 
 

 
         
 
         
 
         
 
         INGERSOLL V. SUNSHINE BISCUIT COMPANY
 
         Page   2
 
         
 
         
 
         85.26(4) in Poindexter v. Grant's Carpet Service and Milbank 
 
         Insurance Co., Appeal Ruling, filed August 10, 1984.
 
         
 
                 Appellant is a professional corporation seeking payment 
 
              of medical costs incurred by Brian Poindexter, the injured 
 
              worker.  Appellant contends that Mr. Poindexter has executed 
 
              a valid assignment of his workers' compensation medical 
 
              benefits to the corporation, and it thus has an economic 
 
              interest that renders it an indispensable party to the 
 
              claim.
 
         
 
                 The dispute arises from a petition and accompanying 
 
              application for determination filed by the employer and 
 
              insurance carrier which questioned the reasonableness of 
 
              medical fees which were submitted in conjunction with a work 
 
              injury.  A previously filed memorandum of agreement has 
 
              established an employment relationship between Poindexter 
 
              and Grant's Carpet Service, and that the injury arose out of 
 
              and in the course of employment.  The employer's final 
 
              report indicates that healing period and permanent partial 
 
              disability benefits have been paid.
 
         
 
                 It is established law that the claimant has the burden of 
 
              proving his claim for benefits.  By the filing of a 
 
              memorandum of agreement, the injured worker is relieved of a 
 
              showing that the injury was work related, but his burden of 
 
              proving medical costs remains.  If the injured employee 
 
              seeks payment of medical benefits and the costs are in 
 
              dispute, it is his responsibility, by statute, to initiate a 
 
              proceeding which gives him the opportunity to prove his 
 
              claim against the employer.  He must show that the medical 
 
              costs are causally related to the work injury and that they 
 
              are reasonable and necessary.  No party can make this 
 
              showing for him, and the employer is under no obligation to 
 
              render payment until the worker has sustained his burden.
 
         
 
                 In the instant case, no claim for medical payment has 
 
              been filed by Brian Poindexter.  Review of the applicable 
 
              statutory provisions reveals no statutory authority which 
 
              gives P.S.I. standing to proceed under compensation law 
 
              directly against the employer.  The Iowa Supreme Court in 
 
              Brauer v. J. C. White Concrete Co., 253 Iowa 1304, 115 
 
              N.W.2d 702 (1962) ruled that a party who rendered medical or 
 
              hospital services could assert a claim therefor before the 
 
              industrial commissioner.  The legislature acted with utmost 
 
              celerity to overturn the holding of the Iowa Supreme Court 
 
              in the Brauer decision in the session of the general 
 
              assembly immediately after the filing of the decision.  They 
 
              enacted: "No claim or proceedings for benefits shall be 
 
              maintained by any person other than the injured employee 
 
              his dependent or his legal representative, if entitled 
 
              to benefits."  Acts of  the Regular Session 60 GA 
 
              (1963), Chapter 87, SS3.
 
         
 
                 This provision remains in the law today in the same form 
 
              (although with gender reference corrected) as Code of Iowa 
 
              section 85.26(4).
 

 
         
 
         
 
         
 
         INGERSOLL V. SUNSHINE BISCUIT COMPANY
 
         Page   3
 
         
 
         
 
         
 
                 Although appellant, like any creditor, has a financial 
 
              interest in expediting a determination of payment due, such 
 
              interest does not confer standing to participate in an 
 
              action that has not properly been initiated or to attempt to 
 
              relieve a potential claimant of his rightful burden of proof 
 
              by initiating a discovery proceeding against the employer 
 
              and the insurer.  The deputy was correct in finding that 
 
              P.S.I. is not a party to this action and has no standing to 
 
              sue in claimant's name.
 
         
 
              See also Veteran's Administration v. Chase Manufacturing, 
 
         Appeal Decision tiled September 9, 1987.
 
         
 
                                     ANALYSIS
 
         
 
              As indicated, the Poindexter rationale continues to be this 
 
         agency's interpretation of section 85.26(4). The deputy was 
 
         correct in ruling that the VA lacks standing to maintain their 
 
         claim before this agency.
 
         
 
              This agency has no jurisdiction to interpret whether federal 
 
         law preempts 85.26(4).
 
         
 
              WHEREFORE, the decision of the deputy is affirmed.
 
         
 
              THEREFORE, it is ordered that the Veterans Administration's 
 
         petition for hospital lien is dismissed.
 
         
 
         
 
              Signed and filed this 29th day of October, 1987.
 
         
 
         
 
         
 
         
 
         
 
                                                DAVID E. LINQUIST
 
                                                INDUSTRIAL COMMISSIONER
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
         Copies To:
 
         
 
         Mr. Steven L. Udelhofen
 
         Attorney at Law
 
         1000 Des Moines Bldg.
 
         Des Moines, Iowa 50309
 
         
 
         Mr. William D. Scherle
 
         Attorney at Law
 
         803 Fleming Bldg.
 
         Des Moines, Iowa 50309
 
         
 
         Mr. Ronald A. Bowerman
 
         Attorney at Law
 

 
         
 
         
 
         
 
         INGERSOLL V. SUNSHINE BISCUIT COMPANY
 
         Page   4
 
         
 
         
 
         Veterans Administration
 
         210 Walnut St.
 
         Des Moines, Iowa 50309
 
         
 
         
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                                  1402.60 - 2700
 
                                                  Filed October 29, 1987
 
                                                  DAVID E. LINQUIST
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         FRANK E. INGERSOLL,
 
         
 
              Claimant,
 
         
 
         VS.
 
                                                    File No. 802399
 
         SUNSHINE BISCUIT COMPANY,
 
                                                      A P P E A L
 
              Employer,
 
                                                      R U L I N G
 
         and
 
         
 
         TRAVELERS INSURANCE,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         
 
         1402.60 - 2700
 
         
 
              Veterans Administration brought this proceeding to recover 
 
         payment for medical services provided to Frank Ingersoll.  
 
         Section 85.26(4) limits claims for benefits to injured employees.  
 
         See Poindexter v. Grant's Carpet Service and Milbank Insurance 
 
         Co., Appeal Ruling, filed August 10, 1984.  See also Veterans 
 
         Administration v. Chase Manufacturing Co., Appeal Ruling 1987.  
 
         This agency does not have jurisdiction to determine whether 
 
         federal law preempts 85.26(4).
 
 
 
         
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            DENNIS ANGERMAN,              :
 
                                          :
 
                 Claimant,                :         File No. 802436
 
                                          :
 
            vs.                           :      A R B I T R A T I O N
 
                                          :
 
            K-MART CORPORATION,           :         D E C I S I O N
 
                                          :
 
                 Employer,                :
 
                 Self-Insured,            :
 
                 Defendant.               :
 
            ___________________________________________________________
 
            
 
                              statement of the case
 
            
 
                 This is a proceeding in arbitration brought by claimant 
 
            Dennis Angerman against defendant employer K-Mart 
 
            Corporation to recover benefits under the Iowa Workers' 
 
            Compensation Act as the result of an injury sustained on 
 
            August 19, 1985.  This matter came on for hearing before the 
 
            undersigned in Sioux City, Iowa, on April 4, 1989.  The 
 
            matter was considered fully submitted at the close of 
 
            evidence.
 
            
 
                 The record in this proceeding consists of claimant's 
 
            exhibits 1 through 13 and defendant's exhibits 1 through 11, 
 
            both inclusive (an objection to defendant's exhibit 12 was 
 
            sustained) and the testimony of the following witnesses:  
 
            claimant, Dorothy Angerman, Debbie Angerman and Patricia 
 
            Thomas.
 
            
 
                 Defendant also filed a Motion to Strike claimant's 
 
            response to request for admissions on the basis that the 
 
            response was untimely served.  Defendant's exhibit 11 shows 
 
            that ten requests for admission were served on claimant's 
 
            counsel on September 24, 1987.  Claimant's answers to those 
 
            requests are in the record as claimant's exhibit 4 and 
 
            reflect service on March 31, 1989.
 
            
 
                 Pursuant to Iowa Rule of Civil Procedure 127 each 
 
            matter of which an admission is requested is admitted 
 
            unless, within thirty days after service of the request the 
 
            party to whom the request is directed serves a written 
 
            answer or objection.  Under I.R.C.P. 128 any matter so 
 
            admitted is conclusively established in the pending action 
 
            unless the agency on motion permits withdrawal or amendment 
 
            of the admission.
 
            
 
                 Claimant's answers to the request for admissions are 
 
            clearly untimely.  Claimant has not sought enlargement of 
 
            the time to respond, nor has he sought permission to 
 
            withdraw or amend answers.  Therefore, defendant's Motion to 
 
            Strike claimant's response is moot because the requests for 
 
            admissions are deemed admitted by operation of law under 
 
            I.R.C.P. 128.  Mere service of untimely answers does not 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            operate as a withdrawal of the admissions.
 
            
 
                                      issues
 
            
 
                 Pursuant to the prehearing report submitted by the 
 
            parties and approved at hearing, the following issues have 
 
            been stipulated:  that an employment relationship existed 
 
            between claimant and employer at the time of the injury; 
 
            that claimant sustained an injury on August 19, 1985, 
 
            arising out of and in the course of that employment; that 
 
            the injury caused both temporary and permanent disability; 
 
            that claimant's entitlement to compensation for healing 
 
            period is from August 19, 1985 to November 26, 1985 and from 
 
            November 17, 1987 to September 1, 1988; that the appropriate 
 
            rate of compensation is $103.23; that all requested medical 
 
            benefits have been or will be paid by defendant, except 
 
            Edward N. Wiltgen, D.P.M., ($119.00) and Stone Avenue 
 
            Medical Clinic ($185.00); that defendant paid healing period 
 
            benefits to claimant per his stipulated entitlement at the 
 
            stipulated rate prior to hearing.
 
            
 
                 Issues presented for resolution include:  the nature 
 
            and extent of claimant's entitlement to compensation for 
 
            permanent disability and the commencement date thereof; 
 
            whether the two unpaid medical bills were incurred for 
 
            reasonable and necessary treatment, were authorized, or are 
 
            causally connected to the work injury.
 
            
 
                              review of the evidence
 
            
 
                 Claimant testified that his injury occurred 
 
            approximately 4:00 p.m. while he was pushing a customer's 
 
            motor vehicle that had stalled on a local highway.  Claimant 
 
            was attempting to steer the vehicle while two other 
 
            individuals pushed; claimant slipped and fell and the car 
 
            ran up on his left leg.
 
            
 
                 Claimant had his leg cast and eventually underwent 
 
            fusion surgery involving a bone graft from the hip.  
 
            Claimant complains that he still has pain in the foot "like 
 
            pins," and that his limitations include an inability to move 
 
            the ankle to the right or left, extend the foot or pivot on 
 
            the toe.  Claimant stated that he also has problems with his 
 
            hip when he stretches and that it is painful at the seam of 
 
            his trousers.  He indicated that the pain in his hip 
 
            prevents him from undertaking some activities, but was not 
 
            specific as to which.  He also indicated that the hip and 
 
            foot together cause him to limp.
 
            
 
                 Among other physicians, claimant visited a podiatrist, 
 
            Edward N. Wiltgen, D.P.M.  Dr. Wiltgen's unpaid bill 
 
            indicates that claimant was seen on September 12, September 
 
            18, December 26, 1986 and January 27, 1987.  Total charges 
 
            were $119.00.  Claimant testified that he called defendant 
 
            for authorization at the home office in Troy, Michigan 
 
            before seeing Dr. Wiltgen and that the visit was authorized 
 
            at that time.  In addition, the individual to whom claimant 
 
            spoke wanted to know if John J. Dougherty, M.D., (the 
 
            primary treating physician) wanted claimant to visit the 
 
            University of Iowa Hospitals and Clinics.
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            
 
                 Claimant also testified by deposition taken March 22, 
 
            1989.  His deposition testimony as to this authorization was 
 
            as follows:
 
            
 
                 Q.  Did you clear that with K-Mart before you went 
 
                 to see Wiltgen or did you ask if he was an 
 
                 authorized doctor?
 
            
 
                 A.  From -- Yes.  Yeah.  I called Detroit, 
 
                 Michigan, I believe it was and asked at that time 
 
                 I think it was -- it wasn't Kathy View it was 
 
                 another lady.  Maybe it was Kathy View at that 
 
                 time.  I think it was.  They got a Kathy DuPrie 
 
                 now.
 
            
 
                 Q.  That's the same girl now.  She's married.
 
            
 
                 A.  Okay.
 
            
 
                 Q.  And before Kathy I think it was Jean somebody?
 
            
 
                 A.  Jeannie Ellof, E-L-L-O-F something like that.
 
            
 
                 Q.  What did Jean or Kathy tell you about going to 
 
                 see Wiltgen?
 
            
 
                 A.  They just said it was fine, and that was it.
 
            
 
                 Q.  Did they say fine, they would pay for his 
 
                 services then?
 
            
 
                 A.  Well, they said that they would have to find 
 
                 out, you know, if it was -- I more or less called 
 
                 to tell them I was going to have it done, to have 
 
                 it looked at because I was still having problems 
 
                 after going to Dr. Dougherty.
 
            
 
            (Dennis Angerman deposition, page 52, line 6 through page 
 
            53, line 5)
 
            
 
                 When asked in his deposition if he had sought 
 
            authorization before seeing Dr. Cunningham (Stone Avenue 
 
            Medical Clinic, P.C.) claimant responded that he could not 
 
            remember.
 
            
 
                 Claimant testified to a number of misdemeanor 
 
            convictions, none of which apparently involved a lack of 
 
            honesty.
 
            
 
                 Dorothy Angerman testified to being claimant's mother 
 
            and a nurse for some 23 years.  She indicated that claimant 
 
            favors his left side, does not walk straight and complains 
 
            of pain in his hip.  She further indicated that claimant's 
 
            iliac crest feels bumpy to her.
 
            
 
                 Debbie Angerman testified to being claimant's wife 
 
            since 1978.  She indicated that claimant still complains of 
 
            pain to the hip and foot, although the foot is much better 
 
            and the ankle swells much less since fusion surgery.
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            
 
                 Patricia Thomas testified to being defendant's 
 
            personnel manager.  She indicated that defendant had 
 
            voluntarily paid two percent permanent partial disability of 
 
            the foot prior to hearing.  Claimant had conceded in his 
 
            testimony having been paid benefits equivalent to two 
 
            percent of the foot.
 
            
 
                 Records of the University of Iowa Hospitals and Clinics 
 
            reflect that claimant was first seen in October, 1987.  
 
            Clinical notes of October 6, 1987 show that claimant was 
 
            still complaining of pain and swelling and was extremely 
 
            tender to palpation.  X-ray revealed a questionable area in 
 
            the joint space between the talus navicular and calcaneous 
 
            which appeared to be sclerotic.  Tomograms revealed what 
 
            appeared to be a fracture through the anterior process of 
 
            the calcaneous that had subsequently gone on to a vascular 
 
            necrosis.
 
            
 
                 Following unsuccessful and more conservative treatment, 
 
            claimant underwent a subtalar arthrodesis on February 22, 
 
            1988.  James Nepola, M.D., an assistant professor or 
 
            orthopaedic surgery, noted a significant gap in the subtalar 
 
            joint region and elected to take a bone graft from the left 
 
            iliac crest.  A 4 centimeter incision was created and 
 
            carried down to expose the iliac crest.
 
            
 
                 Dr. Nepola wrote claimant's attorney on February 14, 
 
            1989.  He opined that claimant had sustained a permanent 
 
            partial impairment of 15 percent of the lower extremity 
 
            translated into 6 percent of the body as a whole.  He noted 
 
            that one who has a fused subtalar joint loses some of the 
 
            flexibility in the foot impairing the ability to easily 
 
            negotiate uneven terrain.  One has difficulty going from 
 
            side to side, especially when not standing straight up.  
 
            While noting that this will pass with time, claimant would 
 
            still notice slight difficulty over uneven ground.  The 
 
            impairment rating was prepared pursuant to the American 
 
            Medical Association Guides to the Evaluation of Permanent 
 
            Impairment, Second Edition, and "takes into account both the 
 
            fused subtalar joint and the hip discomfort that he has."
 
            
 
                           applicable law and analysis
 
            
 
                 The parties have stipulated that claimant sustained an 
 
            injury arising out of and in the course of his employment 
 
            and that the injury is causally related to both temporary 
 
            and permanent disability.  Further, the parties have 
 
            stipulated to the extent of claimant's temporary impairment, 
 
            or healing period.
 
            
 
                 To determine the extent of claimant's permanent 
 
            disability, it is first necessary to determine whether 
 
            claimant is to be compensated for a scheduled member 
 
            disability or on an industrial basis for an injury to the 
 
            body as a whole.
 
            
 
                 If claimant's injury only impairs a scheduled member, 
 
            he is limited to disability benefits based upon the schedule 
 
            only, regardless of what industrial disability he may have 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            sustained.  Graves v. Eagle Iron Works, 331 N.W.2d 116 (Iowa 
 
            1983); Dailey v. Pooley Lumber Co., 233 Iowa 758, 10 N.W.2d 
 
            569 (1943).
 
            
 
                 Claimant's initial injury was to the lower extremity.  
 
            To be compensated industrially, claimant must establish 
 
            either that the injury or its sequelae have caused him 
 
            impairment to the body as a whole, or that the surgical 
 
            intrusion to the iliac crest for a bone graft so extends the 
 
            injury.
 
            
 
                 Claimant complains of pain to the hip.  Dr. Nepola 
 
            based his impairment rating in (undisclosed) part on 
 
            impairment to the hip, but did so only on the basis of 
 
            "discomfort."  However, absent objective findings, pain is 
 
            not equivalent to impairment.  Waller v. Chamberlain Mfg., 
 
            II Iowa Industrial Commissioner Report 419 (1981).  While 
 
            the hip is not a scheduled member but is part of the body as 
 
            a whole, Lauhoff Grain Co. v. McIntosh, 395 N.W.2d 834 (Iowa 
 
            1986), there must be a finding of impairment to the hip 
 
            beyond merely pain in order to find that claimant's 
 
            impairment extends to the body as a whole.  For example, 
 
            pain in the forearm arising from carpal tunnel syndrome has 
 
            been found not to extend the injury into the arm from the 
 
            hand absent evidence of impairment to the arm.  Streeter v. 
 
            Iowa Meat Processing Co., file number 730461 (App. Decn. 
 
            March 31, 1989).
 
            
 
                 It has been held that a skin graft from the hip to the 
 
            hand did not, in the absence of earning capacity, convert a 
 
            scheduled member injury to a body as a whole injury.  Lauden 
 
            v. Walker Mfg. Co., I Iowa Industrial Commissioner Report 
 
            202 (1981).  Similarly, a bone graft from the wrist 
 
            
 
                 Dr. Nepola rated claimant in part on hip "discomfort."  
 
            Claimant continues to complain of hip discomfort.  However, 
 
            as has been seen, complaints of pain alone are not 
 
            indicative of impairment in the absence of objective 
 
            findings.  In this case, there are no such objective 
 
            findings.  Claimant has failed to establish that his injury 
 
            extends to the body as a whole.
 
            
 
                 Both the foot and leg are scheduled members.  See Iowa 
 
            Code section 85.34(2)(n) and (o).  The subtalar area is in 
 
            the ankle between the talus and calcaneous.  As the wrist is 
 
            considered part of the hand as opposed to the arm, Elam v. 
 
            Midland Mfg., II Iowa Industrial Commissioner Report 141 
 
            (1981), extending to the distal end of the radius and ulna, 
 
            it must also be held that the ankle, at least distal to the 
 
            fibula and tibia, is part of the foot rather than the leg.
 
            
 
                 The only physician of record to have rated claimant's 
 
            impairment is Dr. Nepola.  He found that claimant had 
 
            sustained an impairment of 15 percent of the lower extremity 
 
            (leg).  Unfortunately, Dr. Nepola did not separate out the 
 
            portion of that impairment rating attributable to the 
 
            subtalar fusion as opposed to "hip impairment," even though 
 
            he specified that both factors were taken into account.  Dr. 
 
            Nepola did cite the American Medical Association Guides to 
 
            the Evaluation of Permanent Impairment in forming his 
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            opinion.  Under the guides, a 15 percent impairment of the 
 
            lower extremity is equivalent to a 21 or 22 percent 
 
            impairment of the foot.  Given that some unspecified portion 
 
            of Dr. Nepola's impairment rating was based on hip 
 
            discomfort, but on the further assumption that mere 
 
            discomfort without quantifiable loss of range of motion was 
 
            a minor factor, it is held that claimant has established a 
 
            20 percent impairment of his left foot by reason of this 
 
            work injury.  Compensation is payable during 150 weeks for 
 
            the loss of a foot under Iowa Code section 85.34(2)(n).  
 
            Therefore, claimant shall be awarded 30 weeks of permanent 
 
            partial disability benefits.
 
            
 
                 Also to be determined is whether claimant's medical 
 
            expenses with Dr. Wiltgen and Stone Avenue Medical Clinic 
 
            are payable under Iowa Code section 85.27.  Under that 
 
            section, the employer has the right to choose the care.  
 
            Claimant has not applied for alternate care and it has not 
 
            been shown that the care was provided in an emergency.  
 
            Therefore, these expenses are compensable only if authorized 
 
            by defendant, although unauthorized treatment which improves 
 
            an employee's condition and ultimately may mitigate the 
 
            employer's liability may subsequently be found reasonable 
 
            and necessary for treatment of an injury.  Butcher v. Valley 
 
            Sheet Metal, IV Iowa Industrial Commissioner Report 49 
 
            (1983).
 
            
 
                 Defendant disputes that authorization was granted with 
 
            respect to either of these bills.  Neither course of 
 
            treatment has been shown to have improved claimant's 
 
            condition.  With respect to Stone Avenue Medical Clinic, 
 
            claimant admitted in his deposition that he could not recall 
 
            whether he had sought authorization.  With respect to Dr. 
 
            Wiltgen, claimant testified at hearing that he had obtained 
 
            such authorization by telephone, but this is inconsistent 
 
            with his deposition testimony, where he indicated that he 
 
            "more or less called them to tell them I was going to have 
 
            it done" and defendant's representative indicated "that they 
 
            would have to find out, you know, if it was."  This implies 
 
            to any reasonable person that authorization had not been 
 
            granted, but would only be considered.
 
            
 
                 Claimant's deposition was taken on March 22, 1989, 
 
            shortly before his testimony at hearing.  The inconsistency 
 
            remains unexplained.  Some of claimant's other testimony was 
 
            inconsistent with his deposition (for example, whether he 
 
            finished tenth grade or not).  Claimant's testimony at 
 
            hearing indicated that he has a poor memory.  On this basis, 
 
            his credibility is suspect.  However, the undersigned has 
 
            not considered claimant's criminal record as undermining his 
 
            credibility, since none of his convictions appeared to 
 
            reflect adversely on his personal honesty.  Nonetheless, 
 
            given his credibility problems by reason of poor memory, it 
 
            is held that claimant has failed to meet his burden of proof 
 
            in establishing that Dr. Wiltgen's medical treatment was 
 
            authorized by defendant.  Therefore, claimant's claim for 
 
            benefits under Iowa Code section 85.27 fails.
 
            
 
                 As indicated in the Statement of the Case above, 
 
            claimant has been held to have admitted certain facts by 
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
            reason of his untimely response to a request for admissions.  
 
            However, all of those admissions relate to claimant's 
 
            potential industrial disability, and are not relevant to 
 
            this decision because industrial disability has not been 
 
            awarded, since claimant has shown only that he sustained a 
 
            scheduled member injury.
 
            
 
                                 findings of fact
 
            
 
                 THEREFORE, based on the evidence presented, the 
 
            following ultimate facts are found:
 
            
 
                 1.  As stipulated, claimant sustained an injury arising 
 
            out of and in the course of his employment with defendant on 
 
            August 19, 1985.
 
            
 
                 2.  As stipulated, claimant's injury caused a healing 
 
            period from August 19, 1985 to November 26, 1985 and from 
 
            November 17, 1987 through September 1, 1988, for which 
 
            claimant has previously been compensated.
 
            
 
                 3.  Claimant's injury was an injury to the left foot to 
 
            the extent of 20 percent of that scheduled member.
 
            
 
                 4.  As stipulated, claimant's appropriate rate of 
 
            weekly compensation is $103.23.
 
            
 
                 5.  Defendant has not been shown to have authorized 
 
            claimant's alternate medical care with Dr. Wiltgen and Stone 
 
            Avenue Medical Clinic.
 
            
 
                 6.  Defendant has compensated claimant prior to hearing 
 
            for his healing period benefits and to the extent of two 
 
            percent of the foot, or three weeks.
 
            
 
                                conclusions of law
 
            
 
                 WHEREFORE, based on the principles of law previously 
 
            cited, the following conclusions of law are made:
 
            
 
                 1.  Claimant has met his burden of proof in 
 
            establishing a permanent partial disability to his left foot 
 
            of 20 percent by reason of his stipulated work injury of 
 
            August 19, 1985.
 
            
 
                 2.  Claimant has failed to establish his entitlement to 
 
            medical benefits under Iowa Code section 85.27.
 
            
 
                                      order
 
            
 
                 THEREFORE, IT IS ORDERED:
 
            
 
                 Defendant shall pay to claimant thirty (30) weeks of 
 
            permanent partial disability at the stipulated rate of one 
 
            hundred three and 23/100 dollars ($103.23) per week 
 
            commencing September 2, 1988.
 
            
 
                 Defendant shall be entitled to credit of three (3) 
 
            weeks of permanent partial disability benefits paid 
 
            voluntarily prior to hearing.
 

 
            
 
            Page   8
 
            
 
            
 
            
 
            
 
            
 
                 As all benefits have accrued they shall be paid in a 
 
            lump sum together with statutory interest.
 
            
 
                 Costs of this action shall be assessed to defendant 
 
            pursuant to Division of Industrial Services Rule 343-4.33.
 
            
 
                 Defendant shall file claim activity reports as 
 
            requested by this agency pursuant to Division of Industrial 
 
            Services Rule 343-3.1.
 
            
 
                 Signed and filed this ______ day of ____________, 1990.
 
            
 
                 
 
            
 
                 
 
                 
 
                                          ______________________________
 
                                          DAVID RASEY
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr. Robert L. Sikma
 
            Attorney at Law
 
            402 Benson Building
 

 
            
 
            Page   9
 
            
 
            
 
            
 
            
 
            Sioux City, Iowa  51102
 
            
 
            Mr. Joel T. S. Greer
 
            Attorney at Law
 
            112 West Church Street
 
            Marshalltown, Iowa  50158
 
            
 
            
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                               1803, 1803.1, 2906
 
                                               Filed February 20, 1990
 
                                               DAVID RASEY
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            DENNIS ANGERMAN,              :
 
                                          :
 
                 Claimant,                :         File No. 802436
 
                                          :
 
            vs.                           :      A R B I T R A T I O N
 
                                          :
 
            K-MART CORPORATION,           :         D E C I S I O N
 
                                          :
 
                 Employer,                :
 
                 Self-Insured,            :
 
                 Defendant.               :
 
            ___________________________________________________________
 
            
 
            2906
 
            Untimely response to request for admissions did not operate 
 
            to withdraw the admissions, which were deemed imposed by 
 
            operation of law under Iowa Rule of Civil Procedure 127 and 
 
            128.  Motion to Strike the untimely response was therefore 
 
            moot.
 
            
 
            1803.1
 
            Bone graft taken from hip, causing pain but no impairment, 
 
            did not convert ankle injury to body as a whole.
 
            
 
            1803
 
            Ankle held part of the foot, not leg.