BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         BETTY MILLIGAN,
 
         
 
               Claimant,
 
         
 
         VS.                                          File No. 804023
 
         
 
         BLACK HAWK COUNTY, IOWA,                   A R B I T R A T I O N
 
         
 
               Employer,                                D E C I S I O N
 
         
 
         and
 
         
 
         U.S. FIDELITY & GUARANTY CO.,
 
         
 
               Insurance Carrier,
 
               Defendants.
 
         
 
         
 
         
 
                              STATEMENT OF THE CASE
 
         
 
              This is a proceeding in arbitration brought by Betty 
 
         Milligan, claimant, against Black Hawk County, employer, and U S 
 
         F & G, insurance carrier, to recover benefits under the Iowa 
 
         Workers' Compensation Act as a result of an injury of September 
 
         4, 1985.  This matter came on for hearing before the undersigned 
 
         deputy industrial commissioner on February 6, 1989 and was con- 
 
         sidered fully submitted upon the close of the record.  The record 
 
         in this case consists of the testimony of claimant, Sheila 
 
         Wilcox, her daughter, Sharon Little, and Tom Pounds; and Joint 
 
         Exhibits 1 through 4, inclusive, except for the report of John 
 
         Walker, M.D., dated January 19, 1989 and the statement of 
 
         Orthopaedic Specialists dated January 4, 1988, as those were 
 
         offered beyond the deadline for exchanging exhibits as set by the 
 
         hearing assignment order.
 
         
 
                                      ISSUES
 
         
 
              Pursuant to the prehearing report and order submitted and 
 
         approved February 6, 1989, the following issues are presented for 
 
         resolution:
 
         
 
              1. Whether the injury of September 4, 1985 is causally 
 
         connected to the disability on which claimant now bases her 
 
         claim;
 
         
 
         
 
         
 
         MILLIGAN V. BLACK HAWK COUNTY, IOWA
 
         Page 2
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
              2. The extent of claimant's entitlement to weekly benefits 
 
         including temporary total disability/healing period and permanent 
 
         partial disability benefits; 
 
         
 
              3. The nature of claimant's permanent partial disability, if  
 
         any;
 
         
 
              4. Claimant's entitlement to certain medical benefits as 
 
         provided by Iowa Code section 85.27; and
 
         
 
              5. The applicability of the odd-lot doctrine.
 
         
 
                                 FACTS PRESENTED
 
         
 
              Claimant sustained an injury which arose out of and in the 
 
         course of her employment on September 4, 1985, when, while 
 
         attending to an 18 year old resident, she fell onto a dresser and 
 
         heard her back "pop."  Claimant testified she felt "real bad" 
 
         pain in her lower back and down her left leg.  Claimant recalled 
 
         she finished her shift that evening and then went to Urgent Care 
 
         where she was advised to remain off work for one week.  Claimant 
 
         stated that she was not getting any better staying home and that 
 
         she did return to work approximately one week later, but that her 
 
         back kept getting progressively worse through December of 1985. 
 
         Claimant submitted her resignation to defendant employer 
 
         effective December 13, 1985 because she "was not feeling good," 
 
         her "back hurt," and her doctor wanted her to quit "approximately  
 
         20 years ago."  Claimant's notice of resignation states she left 
 
         her employment because "Dr. Roth advised due to my present health 
 
         status I am unable to work."
 
         
 
              Claimant acknowledged she has had a diabetic condition for 
 
         about 17 years which is "pretty well" under control and has had 
 
         failing eyesight since 1985 but that neither condition has 
 
         stopped her from doing her work.  Claimant testified that since 
 
         she quit she has gotten worse with regard to her back, that she 
 
         cannot dress herself from the waist down, cannot "walk far," 
 
         cannot stand long enough to do dishes, and is able to do "very 
 
         little" around the house.  Claimant asserted that if her back was 
 
         better she could return to work.
 
         
 
              On cross-examination, claimant revealed that she has had 
 
         problems with her legs and feet as a result of poor circulation 
 
         but that that condition is not now "any worse than it ever was" 
 
         and that walking became difficult for her "quite a long while 
 
         ago."  Claimant admitted her vision problems began in 1985, that 
 
         she has had laser treatments therefor and that "beginning a 
 
         couple of years ago" she can read just the bold type in the 
 
         newspaper.  Claimant acknowledged she has not followed her 
 
         diabetic diet strictly through the years and that she has been 
 
         "rapidly going down." Claimant testified she saw a health care
 
         
 
         
 
         
 
         MILLIGAN V. BLACK HAWK COUNTY, IOWA
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         Page 3
 
         
 
         
 
         provider specifically for her back on only two occasions (at the 
 
         Urgent Care center immediately after the injury and again at the 
 
         Urgent Care center to get a release to return to work) and has 
 
         not requested any authorization from defendant to seek additional 
 
         medical care.  Claimant was asked about injuring her back at home 
 
         on September 9, 1985 while doing laundry but could not recall any 
 
         such incident although she did not deny it may have happened as 
 
         she supposed she "may have done laundry" while off work with her 
 
         back injury.
 
         
 
              Claimant acknowledged that when she was released to return 
 
         to work it was to full duty, without restriction or limitation, 
 
         and that she was able to do her job without missing any work due 
 
         to her back up until the time she resigned her employment.
 
         
 
              Sheila Wilcox, who identified herself as claimant's 
 
         daughter, testified that she lives with her mother and was aware 
 
         claimant injured her back on September 4, 1985.  Ms. Wilcox 
 
         stated claimant's back has gotten worse, that she cannot do 
 
         "really anything," has to sit on a folding chair in the shower, 
 
         and that claimant did not, when she came home from work, feel 
 
         like doing much because her back hurt.  Ms. Wilcox stated 
 
         claimant had no back complaints prior to the injury of September 
 
         4, 1985 and that although claimant was complaining that her eyes 
 
         were getting worse, she was not complaining of a loss of feeling 
 
         in her legs and feet.
 
         
 
              Sharon Little, who identified herself as a registered nurse 
 
         and claimant's supervisor for three years (although she is not 
 
         currently employed), testified that claimant was an average to 
 
         below average employee who experienced difficulty doing her job 
 
         in that her diabetic condition and circulatory problems made 
 
         walking difficult and her vision did not allow her to see labels.  
 
         Ms. Little stated that claimant's health problems were always 
 
         present and were worse toward the end of her employment.  Ms. 
 
         Little testified that claimant did not complain about her back 
 
         hurting, did not ask to see a doctor for her back, and did not 
 
         ask for a change in her duties because of her back.  Ms. Little 
 
         expressed her understanding that claimant resigned her employment 
 
         due to diabetes, her eyes, and poor circulation and that she did 
 
         not feel claimant's back was any problem.
 
         
 
              Tom Pounds, who identified himself as the personnel and 
 
         affirmative action director for defendant employer, testified 
 
         that subsequent to the Urgent Care given claimant in September of 
 
         1985 claimant made no other requests for treatment or for lighter 
 
         or restricted duty.  Mr. Pounds testified to his  understanding 
 
         that claimant left her employment due to diabetes and not her 
 
         back.
 
         
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         MILLIGAN V. BLACK HAWK COUNTY, IOWA
 
         Page 4
 
         
 
         
 
              Claimant sought social security disability benefits 
 
         describing her disabling condition as "diabetes - complicated by 
 
         oncoming blindness and numbness of extremities."  Although 
 
         originally denied these benefits, by decision of the 
 
         administrative  law judge on October 1, 1986, claimant was found 
 
         entitled to a period of disability commencing September 14, 1985 
 
         on the basis that "the claimant would be unable to perform more 
 
         than a  limited range of light work and that because of her 
 
         visual acuity, there would not be a significant number of jobs in 
 
         existence in the economy which she could perform."  (Joint 
 
         Exhibit 1, page 54)
 
         
 
              Claimant's regular physician, Ronald R. Roth, M.D., 
 
         summarized her medical condition in a letter dated June 26, 1986 
 
         as:
 
         
 
                   Mrs. Milligan suffers from exogenous obesity.  She
 
              has attempted to diet but has not been successful.  The
 
              exogenous obesity limits her ability to bend, lift and
 
              to have prolonged standing. It also aggravates or ac-
 
              centuates her diagnosis of essential hypertension and
 
              diabetes.  She is working hard on the problem and is
 
              being followed in Iowa City for this as well.
 
         
 
                   Mrs. Milligan also suffers from essential hyperten-
 
              sion. Her blood pressures [sic] are controlled at this
 
              time in the range of 138/86.
 
         
 
                   The patient suffers from diabetes mellitus, type  I,
 
              or insulin dependent diabetes. She has had the compli-
 
              cations of diabetes to include eye problems, as noted
 
              in the records from Iowa City. These eye problems make
 
              it difficult for her to see well.  I feel she is
 
              limited in driving as she states that she cannot see
 
              well enough to drive, and based on her reports from
 
              Iowa City this seems entirely realistic. She feels the
 
              eye problem are becoming worse.
 
         
 
                 The patient is presently being actively followed in
 
              the Iowa City Diabolic Clinic, because of the difficul-
 
              ties in control and the difficulties with her complica-
 
              tions. Complications also include diabetic neuropathy.
 
              This is manifested by numbness of her ankles.  This
 
              makes it difficult for her to walk as she is uncertain
 
              as to ground contact.  These problems occasionally
 
              improve with improved diabetic control or other medica-
 
              tions, but very often do not. The patient is not, at
 
              this point, improved.
 
         
 
                 The patient also suffers from peripheral vascular
 
              disease which I believe is associated with her
 

 
         
 
 
 
 
 
 
 
 
 
 
 
              diabetes.  I have not been able to find good
 
         
 
         
 
         
 
         MILLIGAN V. BLACK HAWK COUNTY, IOWA
 
         Page 5
 
         
 
         
 
              circulatory pulses in her feet.  The patient reports
 
              that Iowa City was also unable to find pulses.
 
         
 
                 She continues on a variable dose of insulin trying
 
              to achieve as good a control as possible, and her
 
              medications continue to be adjusted by Iowa City.
 
         
 
         
 
         
 
                 The patient also suffers from a chronic low back
 
              pain manifested by pain in the sacroiliac joints, going
 
              down her leg on the left side. Iowa City has found no
 
              evidence of a disc, and I feel this is mechanical low
 
              back pain. Mechanical low back pain occurs because of
 
              her posture, obesity and degenerative changes associ-
 
              ated with age. The patient should not do any bending,
 
              which she is unable to do, because of her obesity and
 
              the chronic low back pain.  I do not expect this to
 
              improve.
 
         
 
                   The patient does not suffer from back or injured
 
              toes at this time, but I feel this is because she is
 
              not working, does not expose them to damage and is able
 
              to rest.  The patient should avoid prolonged standing
 
              or any type of activity that would cause damage to her
 
              feet, as with her diabetic neuropathy she cannot feel
 
              the feet well, and with her poor pulses she would tend
 
              to heal very-slowly and with great difficulty.
 
         
 
         (Jt. Ex. 3A, p. 9-10)
 
         
 
              On September 12, 1986, Dr. Roth advised claimant's counsel:
 
         
 
                 Mrs. Milligan has been seen in my office for back
 
              pain.  The back pain has occurred since last April when
 
              she was injured at work.  She was lifting up a patient,
 
              leaning forward, and developed back pain.  The  patient
 
              was a retarded patient who was not cooperative and made
 
              a rapid body motion, ie: flipped herself over as Mrs.
 
              Milligan was attempting to move her.
 
         
 
                 She continues to have pain located in the low back
 
              on the left side, moving up the lateral aspect of her
 
              back on the left, and into her hip.  She had returned
 
              to work because she had expected and hoped the pain
 
              would simply go away.  The pain has not.
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
                 She was seen in my office in April of 1985, ini-
 
              tially having been seen at an Urgent Care Center.  We
 
              sent her to Mr. Bedard for physical therapy.  I felt
 
         
 
         
 
         
 
         MILLIGAN V. BLACK HAWK COUNTY, IOWA
 
         Page 6
 
         
 
         
 
              that she had a probable disc of sacroiliac.strain,  im-
 
              proving, and she returned to work in May of 1985.
 
         
 
         (Jt. Ex. 3A, p. 11)
 
         
 
              Dr. Roth's office note of November 7, 1985 reports that:
 
         
 
                 States that Social Security told her that if she is
 
              on disability she could work and earn up to 299.99 a
 
              month and still [sic] receive her disability check she
 
              cannot live on the disability check alone and she would
 
              like to work part time, I see nothing wrong with this,
 
              although I do feel that she is disabled secondary to
 
              her diabetes, hypertension, obesity and now bleeds in
 
              the eye, she also has had diabetic neuropathy and
 
              peripheral vascular disease.
 
         
 
         (Jt. Ex. 3A, p. 5)
 
         
 
              John R. Walker, M.D., of Orthopaedic Specialists, in 
 
         Waterloo, Iowa, saw claimant for a "final examination" on 
 
         November 4, 1987 and reported:
 
         
 
                 As a recapitulation we might state that on or about
 
              September 4, 1985 she was working at the Black Hawk
 
              County Health Center which is now Pinecrest, helping an
 
              18 year old girl who was mentally  retarded.  Actually
 
              she was diapering her. At that moment, while she had
 
              one side of the diapering finished the patient then dug
 
              her heels into the bed mattress and flipped over and
 
              then flipped Betty Milligan as well.  In this process,
 
              she severely twisted her low back which, of course, has
 
              given her trouble in this left sacroiliac region  since
 
              this time.
 
         
 
                 Examination today reveals that the patient is still
 
              quite overweight and she still has her diabetic
 
              problem, of course.  She is areflexic in the lower
 
              extremity including the patellar, ankle and plantar
 
              reflexes. She has no atrophy of either calf and she
 
              has lost a good deal of sensation below the knees of
 
              both legs. The patient states, however, that this has
 
              been going on for some time.and is.a result of her
 
              diabetes.
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
                ....
 
         
 
                AP & lateral, right, left, oblique views and spot
 
              views of the lumbar spine reveal no significant change
 
              since her original x-rays.  They appear to be
 
         
 
         
 
         
 
         MILLIGAN V. BLACK HAWK COUNTY, IOWA
 
         Page 7
 
         
 
         
 
              essentially within normal limits for a l day [sic] of
 
              this age.
 
         
 
                OPINION: The diagnosis here, of course, is still a
 
              severe and chronic, painful left sacroiliac joint with
 
              telalgic radiation to the left, lower extremity.
 
         
 
                The patient obviously has some added disability and
 
              I do not know anything more to do for her at this time.
 
              From an orthopedic standpoint I would state that her
 
              permanent, partial impairment and/or disability amounts
 
              to approximately 12% of the body as a whole.  This, of
 
              course, must be added to her diabetic problems and
 
              other general health problems.
 
         
 
         (Jt. Ex. 3F, pp. 5-6)
 
         
 
                           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).
 
         
 
              The parties do not dispute that on September 4, 1985 
 
         claimant sustained an injury which arose out of and in the course 
 
         of her employment.  The essential question presented for 
 
         resolution is whether claimant has shown a causal connection 
 
         between this injury and the disability on which she now bases her 
 
         claim.
 
         
 
              The claimant has the burden of proving by a preponderance of 
 
         the evidence that the injury of September 4, 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).
 
         
 
              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
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         
 
         
 
         MILLIGAN V. BLACK HAWK COUNTY, IOWA
 
         Page 8
 
         
 
         
 
         N.W.2d 867.  See also Musselman v. Central Telephone Co., 261 
 
         Iowa 352, 154 N.W.2d 128 (1967).
 
         
 
              As the question of causal connection is essentially within 
 
         the domain of expert testimony, attention is first turned to the 
 
         medical opinions of Drs. Roth and Walker.
 
         
 
              Dr. Roth found claimant to be suffering from mechanical low 
 
         back pain which "occurs because of her posture, obesity and 
 
         degenerative changes associated with age."  When Dr. Roth 
 
         rendered this opinion in June 1986, he did not associate 
 
         claimant's problems with her employment in any way.  In September 
 
         of 1986,  Dr. Roth makes note of an incident "last April when she 
 
         (claimant) was injured at work."  It is unclear to what Dr. Roth 
 
         refers since claimant was not employed by defendant in April of  
 
         1986 (having last worked in December 1985) and claimant seeks 
 
         benefits herein as a result of an injury in September 1985 rather 
 
         than April.  Initially, it may be thought that Dr. Roth merely 
 
         mixed up dates; however, his office notes of April 25, 1985 
 
         indicate that claimant was "Seen with pain low back on the right, 
 
         goes down the back of her leg, worse when she bends over to 
 
         pick-up children at work." (Jt. Ex. 3A, p. 4) It must  therefore 
 
         be concluded that Dr. Roth's opinions cannot support claimant on 
 
         the question of causal connection as Dr. Roth does not associate 
 
         any disability which claimant may have to any work injury of 
 
         September 4, 1985.
 
         
 
              A review of the opinions of Dr. Walker also does not lend 
 
         credence to claimant's position on causal connection.  Dr. 
 
         Walker's initial consultation report dated January 22, 1987 shows 
 
         that claimant was complaining of "severe radiculitis of the left 
 
         upper extremity and a lot of neck pain" and Dr. Walker  
 
         commented:
 
         
 
                My exam today reveals her neck motion is rather
 
              markedly limited. All flexion and extension is  more or
 
              less cogwheel and she complains of pain going down the
 
              upper arm not well localized on the left side,
 
              however....
 
         
 
                Basically, I would treat her symptomatically until
 
              you can get her over this severe pain.  We should order
 
              a MRI of the cervical spine next Wednesday.
 
         
 
         (Jt. Ex. 3F, p. 2)
 
         
 
              Dr. Walker diagnosed "cervical disc herniation with left 
 
         upper extremity radiculitis" and it was not until April 13, 1987
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         
 
         
 
         MILLIGAN V. BLACK HAWK COUNTY, IOWA
 
         Page 9
 
         
 
         
 
         that Dr. Walker refers to any back pain.  He reported at that 
 
         time:
 
         
 
              Now she has a very bad low back ache, left sacroiliac
 
              and lumbosacral as well and this is really a problem
 
              for her.  She is a diabetic and we can't really do too
 
              much about it medically but we can give her some Motrin
 
              and certainly we can give her a back support. (Emphasis
 
              added)
 
         
 
         (Jt. Ex. 3F, p. 1)
 
         
 
              In July 1987, Dr. Walker advised claimant's counsel that: 
 
         "You will see in my latter examinations that the patient had 
 
         sacroiliac pain radiating in to the left buttock again but I have 
 
         not made any real determination concerning this patients alleged 
 
         workmen's [sic] compensation injury.  (Jt. Ex. 3F, p. 3)  Dr. 
 
         Walker saw claimant in August and still had not indicated his 
 
         opinion on causal connection.  It was not until after the "final 
 
         examination" of November 4, 1987 that Dr. Walker refers to the 
 
         injury and September 4, 1985 and the fact that claimant's low 
 
         back had given her trouble in the left sacroiliac region since 
 
         that time.
 
         
 
              Dr. Walker's comments in his letter of November 4, 1987 are 
 
         inconsistent with earlier comments; his records reflect an 
 
         indecision in July of 1987 concerning a causal connection and yet 
 
         a finding thereof in November 1987 is made without any apparent 
 
         explanation for his conclusion.  Therefore, the undersigned 
 
         cannot conclude that Dr. Walker's opinion lends credence to 
 
         claimant's assertions on the question of causal connection.  A 
 
         review of the other medical records submitted also do not support 
 
         claimant's position.  Accordingly, as the expert testimony does 
 
         not support claimant's contention, attention is given to other 
 
         evidence in the record.
 
         
 
              What this record establishes is that claimant was injured on 
 
         September 4, 1985, was seen at Urgent Care on that date, and 
 
         returned to work on September 12, 1985 having secured a release 
 
         from Urgent Care without restriction or limitation.  The record 
 
         establishes that claimant continued to work in her regular job as 
 
         a nurse's aide until her resignation effective December 13, 1985; 
 
         that claimant did not miss any work on account of this injury 
 
         after she returned to work on September 12, 1985; that claimant 
 
         did not request any change in her duties or make any specific 
 
         complaint to supervision about her back or any back pain; and 
 
         that claimant did complain about her other physical impairments.  
 
         Claimant also reported to her employer on September 10, 1985 that 
 
         she "couldn't come into work tonite 9-9-85 11-7 as she hurt her 
 
         back again doing some laundry - stated she would see Dr. again." 
 
         (Jt. Ex. 2, p. 10)  Claimant did not deny this occurred and the
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         
 
         
 
         MILLIGAN V. BLACK HAWK COUNTY, IOWA
 
         Page 10
 
         
 
         
 
         medical evidence does not refer to any such intervening incident 
 
         thereby causing a question as to whether the physicians had a 
 
         complete and accurate history.  It is therefore questionable 
 
         whether claimant's problems are causally connected to what 
 
         occurred at work, what occurred at home or are simply 
 
         attributable to the fact that claimant is generally in poor 
 
         health.
 
         
 
              Claimant has been diabetic for approximately 17 years and 
 
         candidly acknowledged that she has not always taken proper care 
 
         of herself.  Claimant suffers from serious visual acuity problems 
 
         as well as circulatory problems in her legs which result in 
 
         numbness in the extremities and swelling of her feet.  Sharon 
 
         Little, who was claimant's supervisor, had the opportunity to 
 
         observe claimant's progress throughout claimant's period of 
 
         employment and testified to claimant's rapid deterioration in the 
 
         months just prior to claimant's separation from employment.  Dr. 
 
         Roth also makes note of claimant's deterioration during late 
 
         1985.
 
         
 
              Claimant repeatedly identified her diabetic condition (and 
 
         the ramifications thereof) as the cause of her disability and not 
 
         any work injury of September 4, 1985.  Yet, at the same time, 
 
         claimant asserts that if her back is better she could return to 
 
         work.  Claimant appears to change her reasons for her disability 
 
         with each change in benefits tribunal.  Claimant's 
 
         inconsistencies simply do not instill credibility.
 
         
 
              The greater weight of evidence therefore fails to show that 
 
         the injury of September 4, 1985 is causally connected to the 
 
         disability on which claimant now bases her claim.  Accordingly, 
 
         except for an entitlement to a period of temporary total 
 
         disability, claimant has failed to establish the requisite causal 
 
         connection and shall take nothing from these proceedings.
 
         
 
              Iowa Code section 85.33 provide, in part, that an employer 
 
         shall pay to an employee for injury producing temporary total 
 
         disability weekly compensation benefits until the employee 
 
         returns to work or is medically capable of returning to 
 
         substantially similar employment.  Iowa Code section 85.32 
 
         dictates that compensation shall begin on the fourth day of 
 
         disability after the injury.
 
         
 
              There is no dispute that claimant was injured in an incident 
 
         arising out of and in the course of her employment on September 
 
         4, 1985 or that the dispute caused a period of temporary 
 
         disability.  As previously noted, claimant was injured on 
 
         September 4, 1985 and returned to work without limitation or 
 
         restriction on September 12, 1985.  Claimant has failed to show 
 
         entitlement to any other temporary or permanent disability 
 
         benefits.  In accordance with the above referenced section of the 
 
         Iowa Code, claimant would be entitled to temporary total 
 
         disability benefits for the five days of September 7, 8, 9, 10 
 
         and 11.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         
 
         
 
         MILLIGAN V. BLACK HAWK COUNTY, IOWA
 
         Page 11
 
         
 
         
 
         The Form 2a filed by defendants with the industrial commissioner 
 
         on October 15, 1985 shows claimant was paid temporary total 
 
         disability benefits for this period of time.  Therefore, claimant 
 
         is not entitled to anything further as a result of these 
 
         proceedings.
 
         
 
              The final issue for resolution is the extent, if any, of 
 
         claimant's entitlement to benefits under Iowa Code section 85.27.  
 
         That section of the law provides, in part:
 
         
 
                The employer, for all injuries compensable under
 
              this chapter or chapter 85A, shall furnish reasonable
 
              surgical, medical, dental, osteopathic, chiropractic,
 
              podiatric, physical rehabilitation, nursing, ambulance
 
              and hospital services and supplies therefor and shall
 
              allow reasonably necessary transportation expenses in-
 
              curred for such services.
 
         
 
              The record establishes defendants have paid for the medical 
 
         expenses incurred with Urgent Care and with Dr. Roth for the 
 
         treatment of claimant's back condition.  Claimant specifically 
 
         requests payment of Dr. Walker's bill in the amount of $741.  The 
 
         employer, having accepted this injury as compensable, has the 
 
         right to direct the medical care.  Claimant did not request 
 
         authorization from defendants to seek treatment with Dr. Walker. 
 
         Indeed, subsequent to her care at Urgent Care, claimant made no 
 
         request for any further treatment for her back.  Claimant has 
 
         failed to show, therefore, that Dr. Walker's care was authorized.  
 
         Claimant has failed to show such care was causally connected to 
 
         her injury and further has failed to show that Dr. Walker's care 
 
         improved her condition.  Accordingly, defendants are exonerated 
 
         from the payment of Dr. Walker's bill.
 
         
 
              In light of the above, no other issue presented for 
 
         resolution need be addressed.
 
         
 
                                 FINDINGS OF FACT
 
         
 
              Wherefore, based on all of the evidence presented, the 
 
         following findings of fact are made.
 
         
 
              1. Claimant sustained an injury which arose out of and in 
 
         the course of her employment on September 4, 1985, when, while 
 
         attending to an 18 year old resident, she fell onto a dresser and 
 
         injured her back.
 
         
 
              2. Following her shift, claimant was seen at Urgent Care and 
 
         advised not to return to work for one week.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              3. Claimant remained off work until she returned on 
 
         September 12, 1985 without limitation or restriction.
 
         
 
         
 
         
 
         MILLIGAN V. BLACK HAWK COUNTY, IOWA
 
         Page 12
 
         
 
         
 
              4. While off work as a result of this injury, claimant 
 
         advised defendant employer that she had injured her back at home 
 
         while doing laundry.
 
         
 
              5. After claimant returned to work, she continued to work in 
 
         her regular job as a nurse's aide until her resignation on 
 
         December 13, 1985.
 
         
 
              6. Claimant did not miss any work on account of her injury 
 
         after her return of September 12, 1985.
 
         
 
              7. Claimant did not request any change in her duties or make 
 
         any specific complaint to supervision about her back or any back 
 
         pain.
 
         
 
              8. Claimant did make complaints concerning her other 
 
         physical impairment.
 
         
 
              9. Claimant has been diabetic for approximately 17 year and 
 
         has not always taken proper care of herself.
 
         
 
              10. Claimant suffers from serious visual acuity problems as 
 
         well as circulatory problems in her legs which result in numbness 
 
         in the extremities and swelling of her feet.
 
         
 
              11. Claimant was diagnosed by her regular family physician 
 
         as having mechanical low back pain which he attributed to 
 
         posture, obesity and degenerative changes associated with age.
 
         
 
              12. Medical evidence submitted fails to show claimant's 
 
         disability is causally connected to the injury of September 4, 
 
         1985.
 
         
 
              13. Claimant has shown an entitlement to temporary total 
 
         disability benefits for five days from September 7 through 
 
         September 11, inclusive.
 
         
 
              14. Claimant has failed to show that the injury of September 
 
         4, 1985 resulted in any permanent disability.
 
         
 
              15. The employer, having accepted claimant's injury of 
 
         September 4, 1985 as compensable, has the right to control and 
 
         direct the medical care.
 
         
 
              16. Claimant failed to show Dr. Walker's care, whose bill 
 
         she seeks payment, was authorized, that it was causally connected 
 
         to her injury, or that Dr. Walker's care improved her condition.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         
 
         
 
         MILLIGAN V. BLACK HAWK COUNTY, IOWA
 
         Page 13
 
         
 
         
 
                                CONCLUSIONS OF LAW
 
         
 
              Therefore, based on the principles of law previously stated, 
 
         the following conclusions of law are made.
 
         
 
              1. Claimant has failed to show that the injury of September 
 
         4, 1985 is the cause of the disability on which she now bases her 
 
         claim.
 
         
 
              2. Except for a five day period of temporary total 
 
         disability, for which claimant has already been compensated, 
 
         claimant has failed to show an entitlement to any further 
 
         benefits either weekly or medical.
 
         
 
                                      ORDER
 
         
 
              THEREFORE, it is ordered:
 
         
 
              As the record has shown claimant has already received all 
 
         that to which she is entitled, claimant shall take nothing 
 
         further as a result of these proceeding.
 
         
 
              Costs are assessed against defendants, pursuant to Division 
 
         of Industrial Services Rule 343-4.33.
 
         
 
         
 
              Signed and filed this 19th day of January, 1990.
 
         
 
         
 
         
 
                                         DEBORAH A. DUBIK
 
                                         DEPUTY INDUSTRIAL COMMISSIONER
 
         
 
         
 
         
 
         
 
         Copies to:
 
         
 
         Mr John S Pieters
 
         Attorney at Law
 
         2315 Falls Ave  Ste 3
 
         Waterloo IA 50701
 
         
 
         Mr David R Mason
 
         Attorney at Law
 
         315 Clay St
 
         P 0 Box 627
 
         Cedar Falls IA 50613
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         
 
         
 
 
         
 
 
 
 
 
 
 
 
 
 
 
                                         1108; 1803
 
                                         Filed January 19, 1990
 
                                         Deborah A. Dubik
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         BETTY MILLIGAN,
 
         
 
              Claimant,
 
         
 
         VS.
 
                                                  File No. 804023
 
         BLACK HAWK COUNTY, IOWA,
 
                                                 A R B I T R A T I 0 N
 
              Employer,
 
                                                  D E C I S I 0 N
 
         and
 
         
 
         U.S. FIDELITY & GUARANTY CO.,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         1108; 1803
 
         
 
              Claimant denied benefits over and above temporary total 
 
         disability already paid as she failed to establish a causal 
 
         connection between injury and disability.  Claimant has been 
 
         diabetic for 17 years, has not taken very good care of herself, 
 
         and suffers from serious visual acuity problems, as well as 
 
         circulatory problems in her legs which result in numbness in the 
 
         extremities and swelling in her feet.  Following the work injury, 
 
         claimant was released to return to work without restriction or 
 
         limitation, never missed any work due to her back, never made any 
 
         complaint about back problems and had an incident at home 
 
         involving back strain.  Claimant failed to establish requisite 
 
         causal connection to alleged disability.
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
 
         
 
 
 
 
 
 
 
 
 
 
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         JERRY L. FERRISS,
 
         
 
              Claimant                         File Nos. 804053
 
                                                         825705
 
         vs.                                             840448
 
         
 
         DAHL'S FOODS, INC.,                 A R B I T R A T I O N
 
         
 
              Employer,                         D E C I S I 0 N
 
         
 
         and                                       F I L E D
 
         
 
         MARYLAND CASUALTY COMPANY,               JUN 28 1989
 
         
 
              Insurance Carrier,              INDUSTRIAL SERVICES
 
              Defendants.
 
         
 
         
 
                                   INTRODUCTION
 
         
 
              This is a proceeding in arbitration brought by Jerry L. 
 
         Ferriss, claimant, against Dahl's Foods, Inc., employer, and 
 
         Maryland Casualty Company, insurance carrier, defendants, for 
 
         benefits as the result of three separately reported lower back 
 
         injuries:  (1) August 23, 1985 (file number 804053); (2) May 20, 
 
         1986 (file number 825705); and (3) June 16, 1986 (file number 
 
         840448).  A hearing was held in Des Moines, Iowa, on May 18, 
 
         1988, and the case was fully submitted at the close of the 
 
         hearing.  The record consists of the testimony of Jerry L. 
 
         Ferriss, claimant, David Johnson, store manager, William 
 
         Nordstrom, vocational rehabilitation specialist and Kenneth C. 
 
         Stroud, executive vice president, and joint exhibits 1 through 8.  
 
         Claimant was represented by Jim R. Lawyer.  Defendants were 
 
         represented by Richard G. Book.  Both parties ordered a 
 
         transcript of the hearing and a copy was supplied for the 
 
         industrial commissioner's file. Claimant presented a statement of 
 
         position and trial brief at the time of the hearing and also a 
 
         posthearing brief.  Defendants submitted a posthearing brief.  
 
         All of these documents by both attorneys were comprehensive, 
 
         informative, succinct and helpful.
 
         
 
                                   STIPULATIONS
 
         
 
              The parties stipulated to the following matters:
 
         
 
              That an employer-employee relationship existed between 
 
         claimant and employer at the time of all three injuries.
 
         
 
              That claimant sustained injuries on August 23, 1985, May 20, 
 
         1986, and June 16, 1986, which arose out of and in the course of 
 
         employment with employer.
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
              That no claim is made temporary disability benefits for the 
 
         injuries which occurred on August 23, 1985 and May 20, 1986, even 
 
         though claimant lost a few days from work due to these injuries.
 
         
 
              That the injury of June 16, 1986 was the cause of temporary 
 
         disability.
 
         
 
              That claimant was off work from June 17, 1986 to February 
 
         23, 1987 and that this is the only period for which claimant 
 
         seeks either temporary total disability or healing period 
 
         benefits.
 
         
 
              That the type of permanent disability, if the injury is 
 
         found to be a cause of permanent disability, is industrial 
 
         disability to the body as a whole.
 
         
 
              That claimant's need for back surgery and the resulting 
 
         impairment of 7 percent to the body as a whole is the result of 
 
         claimant's injury which occurred in June 16, 1986 for the purpose 
 
         of determining industrial disability and there is no need to 
 
         allocate the impairment over all three injuries.
 
         
 
              That the commencement date for permanent disability benefits 
 
         and the so-called conversion date from temporary to permanent 
 
         disability benefits is to be based on the injury of June 16, 
 
         1986.
 
         
 
              That the rate of compensation is to be based upon the 
 
         earnings of claimant at the time of the injury of June 16, 1986.
 
         
 
              That claimant is married and is entitled to five exemptions.
 
         
 
              That the provider of medical services and supplies would 
 
         testify that the fees charges are reasonable and defendants are 
 
         not offering contrary evidence.
 
         
 
              That the provider of medical services would testify that the 
 
         treatment was for reasonable and necessary medical treatment for 
 
         the work injury.
 
         
 
              That defendants make no claim for credit under Iowa Code 
 
         section 85.38(2) for employee nonoccupational group health plan 
 
         benefits paid prior to hearing.
 
         
 
              That defendants paid claimant 58 1/7 weeks of workers' 
 
         compensation benefits at the rate of $278.44 per week prior to 
 
         hearing and that defendants are entitled to a credit for these 
 
         benefits which.were paid prior to hearing.
 
         
 
              That there are no bifurcated claims.
 
         
 
              That employer will pay the mileage claims made by claimant, 
 
         which are attached to the prehearing report, in the amount of 
 
         $101.10 and that this is no longer a disputed issue in this case 
 
         (exhibit 2, pages 1 & 2).
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
                                      ISSUES
 
         
 
              The parties submitted the following issues for determination 
 
         at the time of the hearing.
 
         
 
              Whether claimant is entitled to temporary disability 
 
         benefits for the period from June 17, 1986 to February 23, 1987.
 
         
 
              Whether the injury of June 16, 1986 was the cause of 
 
         permanent disability.
 
         
 
              Whether claimant is entitled to permanent disability 
 
         benefits, and if so, the extent of benefits to which he is 
 
         entitled.
 
         
 
              What is the proper rate of compensation.
 
         
 
              Whether claimant is entitled to certain medical expenses.
 
         
 
              Whether claimant is entitled to penalty benefits under Iowa 
 
         Code section 86.13.
 
         
 
              Whether claimant's attorney should be sanctioned under Iowa 
 
         Rules of Civil Procedure 80 for asserting a claim for Iowa Code 
 
         section 86.13 penalty benefits on the original notice and 
 
         petition on January 7, 1987 when workers' compensation benefits 
 
         were being paid at that time.
 
         
 
                             SUMMARY OF THE EVIDENCE
 
         
 
              Of all of the evidence that was introduced, the following is 
 
         a summary of the evidence most pertinent to this decision.
 
         
 
              Claimant is 28 years old, married and has three dependent 
 
         minor children.  Claimant completed the eleventh grade of high 
 
         school, quit school, got married and started to work for employer 
 
         on February 20, 1978.  He has no additional formal education or 
 
         training.  This employment has been his only full-time employment 
 
         during his entire adult working lifetime of approximately 11 
 
         years.  Foods, Inc., where that term is used, means the Dahl's 
 
         grocery store chain in Des Moines, Iowa.  Claimant has always 
 
         worked at the Merle Hay store.  Claimant's job was described 
 
         variously as:  (1) night stock; (2) night stock person; and (3) 
 
         night stock clerk.  This job was described as:  (1) unloading 
 
         pallets of groceries in boxes from a semi truck with a hydraulic 
 
         floor jack; (2) removing the boxes of groceries by hand from the 
 
         pallets and stacking them on the floor according to which aisle 
 
         they are to be taken to; (3) delivering the stacked boxes of 
 
         groceries by a two wheel cart and spotting them in front of the 
 
         shelves where they are to be stocked; and (4) stocking the 
 
         shelves.  The night stock person also crushes the boxes, and 
 
         performs night cleanup which involves sweeping, dusting, mopping, 
 
         stripping and waxing the floors and cleaning the restrooms.  The 
 
         average box of groceries weighs approximately 40 pounds.  Some 
 
         boxes weigh as much as 80 pounds.  Claimant has always worked on 
 
         the night shift from 10 p.m. to 6:30 a.m. (ex. 8, pp. 2-14; 
 
         transcript pp. 31-36).
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              Claimant injured his back on August 23, 1985 while removing 
 
         boxes from the pallet and stacking them on the floor in front of 
 
         the meat counter.  He bent over to pick up a box and felt a 
 
         sudden sharp pain in his lower back on the right hand side.  He 
 
         reported this injury to his boss and saw J.W. Hatchitt, D.O., on 
 
         August 26, 1985.  Claimant was off work from August 27, 1985 to 
 
         August 29, 1985 (ex. 1-5, pp. 40, 44, & 46-48).  This injury was 
 
         diagnosed as acute lumbar strain.  Claimant was released to 
 
         return to work without restrictions (ex. 8, pp. 14-18).  X-rays 
 
         showed no fracture or pathological involvement (ex. 1-6, P. 51).
 
         
 
              On May 20, 1986, claimant was pulling cases off of the 
 
         pallet again, he bent over, picked up a case, got it half way up 
 
         and felt a sharp pain in the same area of his lower back.  He 
 
         reported the injury to his supervisors and saw Harold E. Eklund, 
 
         M.D., at Mercy Medical Clinic.  Again he was treated with 
 
         medications and bed rest and returned to work two or three days 
 
         later without any restrictions or problems (ex. 8, pp. 18-23; ex. 
 
         1-6, p. 48).
 
         
 
              The third back injury occurred on June 16, 1986.  Again 
 
         claimant was breaking down the boxes from the pallets into 
 
         stacks, he bent over to pick up a case, and felt a sharp pain in 
 
         his lower back on the right hand side which went into his right 
 
         hip area. Claimant said this injury was more severe.  He felt 
 
         numbness in his right leg.  Claimant reported the injury to his 
 
         supervisors and was sent home early at approximately 4 a.m. or 
 
         4:30 a.m. Claimant again saw Dr. Eklund (ex. 8, pp. 23-26; ex. 
 
         1-6, p. 49; tr. pp. 40-42).
 
         
 
              Dr. Eklund referred claimant to Scott Neff, D.O., an 
 
         orthopedic surgeon.  On July 14, 1986 a CT scan disclosed a large 
 
         herniated disc and herniated nucleus pulposus to the central left 
 
         side of L5, S1 (ex. 1-7, pp. 53, 58 & 60).  On July 16, 1986 Dr. 
 
         Neff predicted that there was a 50-50 chance claimant could 
 
         return to work to his old employment unloading freight from semi 
 
         trailers after surgery (ex. 1-1, p. 4).
 
         
 
              Claimant was hospitalized on July 22, 1986.  The admitting 
 
         history and physical examination described claimant as a slim 26 
 
         year old who had worked at Dahl's for nine years and injured his 
 
         back while lifting (ex. 1-7, p. 60).  Dr. Neff performed a 
 
         bilateral laminectomy and disc excision at L5, S1 and also an S1 
 
         nerve loop foraminotomy for right sided nerve root entrapment and 
 
         mild left sided nerve root entrapment on July 22, 1986 (ex. 1-6, 
 
         pp. 58 & 68; ex. 8, pp. 26 & 27; tr. pp. 42 & 43).  Following 
 
         surgery claimant attended back school as recommended by Dr. Neff 
 
         to learn proper lifting techniques in September of 1986 (ex. 8, 
 
         pp. 28 & 29; ex. 1-1, pp. 32 & 33; tr. p. 43).
 
         
 
              On November 5, 1986, Dr. Neff ordered a functional capacity 
 
         evaluation (ex. 1-1, p. 7).  Also on November 5, 1986, Dr. Neff 
 
         said that he wanted to see claimant following the functional 
 
         capacity examination and review further recommendations for work 
 
         hardening (ex. 1-1, p. 15).  On November 26, 1986, Dr. Neff and 
 
         Thomas W. Bower, L.P.T., jointly signed a letter to the insurance 
 
         carrier enclosing the functional capacity evaluation and 
 
         specifically recommended that claimant perform the work hardening 
 
         program.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              Mr. Ferriss was seen in our office on your referral for a 
 
              Functional Capacity Evaluation.  Enclosed you will find the 
 
              complete evaluation that was performed on this date.
 
         
 
              We would encourage you to review the entire exam but 
 
              specifically the recommendations of a work hardening program 
 
              generally utilized in aiding and developing the upper 
 
              extremities, since this appears to be where the majority of 
 
              the patient's problems are.  Also, we would concentrate on 
 
              an endurance activity program as opposed to a true 
 
              strengthening program.
 
         
 
              Also, we have been asked to arrive at an impairment rating 
 
              for this gentleman.  Based on his motion loss which is 
 
              incorporated into this report, this patient has incurred a 2 
 
              percent impairment and adding it with the residuals from the 
 
              disc which is an additional 5 percent, this would total to a 
 
              7 percent impairment to the body as a whole.
 
         
 
         (ex. 1-1, p. 19)
 
              On December 4, 1986, Dr. Neff wrote to the insurance carrier 
 
         as follows:
 
              
 
              Jerry Ferriss is seen today in follow up, [sic] I have 
 
              reviewed the functional capacity evaluation.  He works at 
 
              the Dahl's warehouse, and has to unload by hand cases of 
 
              food from pallets, and this is a significantly strenuous 
 
              job.
 
         
 
              I am not certain whether he will ever be able to return to 
 
              that job, but I would recommend that we try and increase his 
 
              work capacity with a work hardening type program.
 
         
 
              Certainly it is not fair to have him recovering from a 
 
              surgical situation, and then simply return him back to work 
 
              without preparing him for the work place.
 
         
 
              I understand there is some difficulty with the insurance 
 
              company,  and they have felt that that is not an acceptable 
 
              recommendation.
 
         
 
              Apparently he has now retained counsel, and I will forward 
 
              copies of my recommendations and the functional capacity to 
 
              that individual.
 
         
 
              Hopefully this situation can be straightened out so that he 
 
              can be improved and returned to the work place in some 
 
              capacity.
 
         
 
         (ex. 1-1, p. 8)
 
         
 
              Claimant testified that Dr. Neff recommended a work 
 
         hardening program, but the insurance company refused to pay for 
 
         it.  A functional capacity examination was scheduled.  Claimant 
 
         testified that after he completed the functional capacity 
 
         evaluation Dr. Neff again recommended a work hardening program 
 
         but the insurance carrier refused to authorize it (tr. pp. 
 
         43-45).  Claimant testified as follows:
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
                Q.  When was that that that happened?
 
                
 
                A.  Doctor--I seen Dr. Neff in the mid part (sic] of 
 
              November, and he recommended the work-hardening [sic] 
 
              program.
 
                
 
                Q.  Okay.  Was that approved by the insurance company at 
 
              that time?
 
                
 
                A.  Well, I went down to Tom Bower's office and set it 
 
              up, and they called me later that day and said that the 
 
              insurance company wanted me to run a functional capability 
 
              test; that they would not pay for a work-hardening program 
 
              (sic].
 
         
 
         (tr. p. 43)
 
         
 
              Claimant then added:
 
         
 
                Q.  (BY MR. LAWYER) Jerry, did you go through that 
 
              functional capacity test?
 
                
 
                A.  Yes, sir.
 
                
 
                Q.  What was the next medical care or course of action 
 
              that was taken?
 
                
 
                A.  I was to have a reappointment to see Dr. Neff on 
 
              December 4th, but before that period, I believe it was, I 
 
              received a letter from Maryland Casualty saying that they 
 
              had switched me over to permanent impairment ratings as of 
 
              November 26th, and that the temporary healing benefits had 
 
              stopped as of that day.
 
         
 
                Q.  Had you received any release from the doctor to 
 
              return to work or anything of that nature at that point?
 
                
 
                A.  No, sir.
 
                
 
         (tr. pp. 44 & 45)
 
         
 
              Dr. Neff issued a return to work slip on December 11, 1986 
 
         that contained restrictions of no lifting and no bending over 
 
         (ex. 1-7, p. 17).  Dr. Neff then wrote a letter to the insurance 
 
         carrier of December 15, 1986 as follows:
 
         
 
              I believe that Mr. Ferris has reached his maximum benefit 
 
              and medical improvement from his surgery.
 
         
 
              The 7% rating that he has been given is to his body as a 
 
              whole, and is the result of his work injury.
 
         
 
              Please find enclosed a copy of a functional capacity 
 
              evaluation as performed by Mr. Tom Bower and reviewed by our 
 
              office.
 

 
              
 
 
 
 
 
 
 
 
 
 
 
         
 
              I would recommend that he be involved in a work hardening 
 
              program, so that his strength can be increased in his 
 
              tolerance for work activity.
 
         
 
         (ex. 1-1, p. 1)
 
         
 
              Claimant's account of,what happened is as follows:
 
                
 
                Q.  When you saw Dr. Neff the first part of December, 
 
              what happened at that exam?
 
                
 
                A.  I explained to him that the functional capability 
 
              test had been ran, and he once again emphasized that there 
 
              was a need for a work-hardening (sic] program, and once 
 
              again sent me down to set it up, and said that he would call 
 
              the insurance company personally and recommend the program 
 
              to them.
 
                
 
                Q.  Okay. Were you released to return to work at that 
 
              time?
 
                
 
                A.  No, sir.
 
                
 
                Q.  When did you next have contact with the medical care 
 
              providers?
 
                
 
                A.  The next time I heard from any of the doctors was, 
 
              Mr. Bower's office called me once again and cancelled the 
 
              appointment for the work-hardening [sic) program, so I put a 
 
              call in to Dr. Neff and told him the situation, and the next 
 
              thing I know, I received a release in the mail.
 
                
 
                Q.  From Dr. Neff?
 
                
 
                A.  From Dr. Neff.
 
                
 
                Q.  Was it a full release?
 
                
 
                A.  No, sir.
 
                
 
                Q.  Was it an unrestricted release?
 
                
 
                A.  No, sir.  There were restrictions on it.
 
         
 
                THE DEPUTY COMMISSIONER:  What kind of release was this?
 
                
 
                THE WITNESS:  No lifting, no bending over.
 
                
 
                THE DEPUTY COMMISSIONER:  As a release to return to work, 
 
              that kind of release?
 
                
 
                THE WITNESS:  Yes, sir.
 
                
 
                Q.  (BY MR. LAWYER) Exhibit 1, page 17, Jerry, is a 
 
              release dated December 11, 1986.  It says, "Patient is 
 
              released back to work with restrictions of no lifting and no 
 
              bending over."
 

 
              
 
 
 
 
 
 
 
 
 
 
 
                
 
                Is that the release that was sent to you in the mail?
 
                
 
                A.  Yes, sir.
 
                
 
                Q.  What did you do at that time?
 
                
 
                A.  I took the work release out to Foods, Incorporated.
 
                
 
                Q.  Who did you talk to?
 
                
 
                A.  I gave the work release to Dave Johnson, the store 
 
              manager, and he said that he would have to go upstairs and 
 
              have a conference with Mr. Stroud, and that he would be back 
 
              down shortly; to wait for him.
 
         
 
                Q.  When he came back down, what did he tell you?
 
                
 
                A.  He told me that Mr. Stroud had said that, due to the 
 
              restrictions of the release, they had no other choice but to 
 
              terminate me.
 
         
 
         (tr. pp. 45-47)
 
         
 
              Claimant was terminated on December 15, 1986 (tr. pp 78 & 
 
              79).  When claimant was terminated he received the money in 
 
              the company's retirement plan which is called Dahl's 
 
              Employee Stock Ownership Plan and Trust (E.S.O.P) (tr. p. 
 
              47; ex. 8, pp. 37 & 39).
 
         
 
              Claimant testified that he tried to find employment at 
 
         several different places, but that he was unsuccessful due to Dr. 
 
         Neff's restrictions (tr. p. 47).  He said that the jobs which 
 
         were available for him to apply for paid between $3.50 and $4 per 
 
         hour (tr. p. 48).
 
         
 
              Defendants then hired Bill Nordstrom, M.S., a vocational 
 
         rehabilitation consultant at Resource Opportunities, Inc., to 
 
         assist claimant find work.  Nordstrom saw claimant on December 
 
         18, 1986.  He interviewed and tested claimant (ex. 3-1, pp. 
 
         1-24).  On January 2, 1987, Nordstrom thought that claimant's 
 
         strong motivation to work eliminated the necessity of a work 
 
         hardening program (ex. 1-3, p. 25), but Nordstrom changed his 
 
         mind on January 19, 1987, when he decided to work out an 
 
         arrangement for claimant to return to work for employer (ex. 1-3, 
 
         p. 27). Nordstrom then reported as follows:
 
         
 
              PROGRESS REPORT:
 
         
 
              On January 20, 1987 the consultant visited with Mr. Kenny 
 
              Stroud, Supervisor, at Dahl's Foods.  Mr. Stroud stated that 
 
              he would rehire Mr. Ferriss if he could successfully 
 
              complete a work hardening program and be released to 
 
              full-duty.
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
              On February 2, 1987 the client began work hardening at 
 
              Physical Therapy Consultants....
 
         
 
         (ex. 3-2, p. 3)
 
         
 
              Claimant then testified that Nordstrom had obtained 
 
         permission from the insurance company for him to take the work 
 
         hardening program and had also obtained an agreement from Dahl's 
 
         to rehire him if he successfully completed the work hardening 
 
         program and received a 100 percent unrestricted release (tr. p. 
 
         49).  Claimant described what Nordstrom told him as follows:
 
         
 
                Q.  What did he tell you?
 
                
 
                A.  He come to me, I believe it was, at the end of 
 
              January of '87, and said that he had been out to Mr. 
 
              Strouds' and had a work-hardening [sic] program approved for 
 
              February of that same year, and that if I went through that 
 
              work-hardening [sic] program and ascertained a 100 percent 
 
              unrestricted release, then Mr. Stroud would take me back to 
 
              work.
 
         
 
         (ex. 8, p. 31)
 
         
 
              At his deposition, claimant added these remarks:
 
         
 
                Q.  Now, you were later contacted by Mr. Nordstrom, and 
 
              it's my understanding from your testimony that he told you 
 
              that he would like to put you through a work-hardening [sic] 
 
              program, and if it was successful, you would get back on at 
 
              Dahl's (sic), is that correct?
 
                
 
                A.  The work-hardening (sic] program was recommended 
 
              several times by Dr. Neff, and it was turned down every time 
 
              by Dahl's (sic) or Maryland Casualty--I do not know which 
 
              one--and Mr. Nordstrom somehow seemed to get it approved 
 
              after they had terminated me.
 
         
 
         (ex. 8, p. 39)
 
         
 
              Nordstrom obtained a job description signed by Stroud on 
 
         January 20, 1987 and a written agreement "employer is willing to 
 
         rehire following work hardening program with unrestricted 
 
         release."  The paper showed an hourly wage of $10.95 per hour and 
 
         that claimant could start to work as soon as possible (ex. 3-2, 
 
         pp. 35-37).
 
         
 
              The work hardening program consisted of procedures at the 
 
         YMCA and at Bower's office.  The general outline of the program 
 
         was:  (1) one hour of exercise at the physical therapy office; 
 
         (2) a walk on the track at the YMCA for an hour; (3) 
 
         approximately one hour in the weight room; and (4) an hour in the 
 
         swimming pool (tr. p. 52).  When claimant had completed the work 
 
         hardening program, a new functional capacity evaluation was 
 
         performed and Dr. William Boulden, Dr. Neff's partner, gave 
 
         claimant an unrestricted release dated February 23, 1987 (tr. p. 
 
         54).
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              Claimant testified that he successfully completed the work 
 
         hardening program and received an unrestricted release from Dr. 
 
         Bolden.  When claimant completed the work hardening program, 
 
         Bower wrote the following report dated February 23, 1987:
 
         
 
              Enclosed you will find the return to work assessment and 
 
              poundages that this gentleman lifted on February 20, 1987, 
 
              for a final exam.
 
         
 
              He has made extremely good progress through the entire work 
 
              hardening program.  Also, we have enclosed a hand written 
 
              [sic] achievement record that was detailed during the work 
 
              hardening program over the two and one-half week period.  As 
 
              you can see, this gentleman has increased his upper body 
 
              strength by 35 percent and his overall lower body strength 
 
              by 27 1/2 percent.  This is an extremely good result and he 
 
              should do well back in the work place.
 
         
 
              It is my understanding that he has received a return to work 
 
              slip for today, February 23, 1987, and will be returning 
 
              this evening.
 
         
 
         (ex. 1-3, p. 28)
 
         
 
              Dr. Boulden issued a release to return to work on February 
 
         23, 1987, without any restrictions of any kind (ex. 1-1, p. 18).
 
         
 
              Nordstrom's final progress report read as follows:
 
         
 
              PROGRESS REPORT:
 
         
 
              On February 20, 1987, the client was released to full duty 
 
              by Dr. Boulden.  The consultant then contacted Kenny Stroud, 
 
              Supervisor, at Dahl's Foods.  On February 23, 1987 the 
 
              consultant met with Kenny Stroud and the client at the 
 
              Dahl's corporate offices.  Mr. Stroud stated that he would 
 
              rehire Mr. Ferriss beginning March 2, 1987.  Mr. Ferriss was 
 
              to be reassigned to the Merle Hay Dahl's store and work the 
 
              same night shift that he worked in the past.
 
         
 
              On March 10, 1987 the consultant contacted the client at his 
 
              home.  The client stated that he felt the return to work was 
 
              going well and that he was happy to be back at work.  On 
 
              March 26, 1987 the consultant contacted Kenny Stroud.  Mr. 
 
              Stroud said that he felt that Mr. Ferriss' return to work 
 
              was going very well and that he was pleased with Mr. 
 
              Ferriss' work.
 
         
 
         (ex. 3-2, p. 34)
 
         
 
              Nordstrom then wrote to claimant on March 2, 1987 as 
 
              follows:
 
         
 
              I would like to congratulate you for the outstanding way for 
 
              which you have conducted yourself during the work hardening 
 
              program and also during your re-hiring [sic] interviews with 
 
              Dahl's [sic].  I feel that your determination is admirable 
 
              and I would like to commend you for that.
 

 
              
 
 
 
 
 
 
 
 
 
 
 
         
 
              I know how anxious you are to get back to work, and I wish 
 
              you well in your re-employment [sic] with Dahl's [sic].  In 
 
              the next thirty days I will call you periodically to 
 
              determine how your re-hire [sic] is going.
 
         
 
              It has been my pleasure to work with you.  I admire your 
 
              drive and determination.  You are an exceptional client and 
 
              I wish you the best of everything now and in the future.
 
         
 
         (ex. 3-2, p. 33)
 
         
 
              Claimant said that when he gave the 100 percent release to 
 
         Stroud on February 23, 1987, Stroud seemed to be "in the gray" 
 
         about the hourly rate, but Nordstrom had told claimant he would 
 
         be rehired at $10.95 per hour.  The agreement that Stroud signed 
 
         for Nordstrom specified $10.95 per hour.  Claimant testified that 
 
         Stroud told him on February 23, 1987, at the time of his rehire, 
 
         that he would have to find out whether claimant came under the 
 
         two tier pay system.  Claimant did not immediately receive an 
 
         answer from Stroud, but was actually paid $10.95 per hour during 
 
         the first six weeks that he was back to work and so claimant 
 
         presumed that it was decided to pay him $10.95 per hour.  Under 
 
         the two tier system, employees hired before a certain date 
 
         (January 1, 1985) retained the salaries that they were earning on 
 
         that date, but new employees hired after that date were hired at 
 
         a lower wage scale (ex. 8, pp. 41, 42 & 49).
 
         
 
              On February 27, 1987, claimant testified that Stroud told 
 
         him that he would start to work at the Merle Hay store on March 
 
         2, 1987 at 10 p.m.  Claimant was to work a 20-hour week from 10 
 
         p.m. until 2 a.m. for the first two weeks.  Claimant was then to 
 
         work a 30-hour week from 10 p.m. to 4 a.m. for one week.  If 
 
         claimant had no problems, he would return to a 40-hour week from 
 
         10 p.m. to 6:30 a.m.  Claimant also testified that Stroud told 
 
         him that if he reinjured himself, he would have to fire him (ex. 
 
         8, pp. 44 .& 45).  Claimant testified that Stroud did not say 
 
         what the hourly rate would be at his meeting with him on February 
 
         27, 1987 because it was still undecided (ex. 8,.pp. 44 & 45; tr. 
 
         pp. 55 & 56). Claimant testified that he met again with Stroud in 
 
         March of 1987 for an evaluation before he began working 40-hour 
 
         weeks.  Claimant averred that Stroud reminded him that if he 
 
         reinjured himself that he would have to fire claimant because of 
 
         his own stupidity (ex. 8, p. 48; tr. pp. 61 & 77).
 
         
 
              Claimant further alleged that on the night of August 5, 
 
         1987, Stroud came to the store at 12:30 a.m. and asked claimant 
 
         who told him that he would be fired if he had any problems.  
 
         Claimant testified that he told Stroud that it was Stroud who 
 
         told him that (ex. 8, p. 50), to which Stroud made no reply (ex. 
 
         8, p. 52).
 
         
 
              Claimant related that he was told on April 15, 1987, by 
 
         Johnson, the store manager, that there had been a clerical 
 
         mistake.  The wrong information had been fed into the computer. 
 
         He told claimant that his new pay rate would be $9 per hour 
 
         (tr. p. 51).
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              Claimant testified that he is capable of performing his job 
 
         and has been performing his job 100 percent since he returned to 
 
         work on March 2, 1987.  Claimant said that he works 40 hours a 
 
         week plus eight hours of overtime for a total of approximately 48 
 
         hours per week (ex. 8, p. 39, 40, 47 & 48).  Claimant admitted 
 
         that he experienced a temporary aggravation of his right hip and 
 
         leg numbness in June of 1987.  He went back to see Dr. Neff in 
 
         July of 1987.  A magnetic resonance imaging (MRI) was eventually 
 
         performed after a dispute with the insurance company about who 
 
         was going to pay for it (tr. p. 60).
 
         
 
              Claimant said his aggravation occurred while stacking the 
 
         boxes of groceries.  He lost no time from work.  His boss and 
 
         coworkers took him off stacking and he got better.  He is still 
 
         working under a full release.  Usually only two people stack. The 
 
         two persons who are most physically able to do it usually perform 
 
         the stacking.  The women do not stack.  Claimant said that in the 
 
         past he was the regular stacker.  Claimant maintained that he can 
 
         stack now, but it does agitate his pain.  Claimant repeated that 
 
         he had lost no time from work since his return to work on March 
 
         2, 1987 until his deposition on December 1, 1987 (ex. 8, pp. 
 
         58-65). At the time of this hearing, claimant was stacking again 
 
         and doing all of the jobs of the night stock clerk (tr. pp. 
 
         74-80).  Claimant conceded that there have been times when 
 
         temporarily he could not do the unloading or stacking and was 
 
         accommodated by other employees on these occasions (tr. pp. 82 & 
 
         84).
 
         
 
              Claimant testified that he does suffer some residual pain 
 
         and numbness in his right leg.  Claimant testified that he is 
 
         awakened almost every night while sleeping with tightness in his 
 
         right hip. He finds it necessary to get up, stretch it and limber 
 
         it up (tr. pp. 61 & 62).  Claimant testified that since this 
 
         injury, he has not been able to bowl or play pool due to his back 
 
         injury.  He does mow the yard and run the vacuum (ex. 8, pp. 65, 
 
         66 & 69; tr. pp. 54, 62, 63 & 69).  Claimant said that he is 
 
         learning to live with it (tr. p. 81).
 
         
 
              Claimant testified that the prescriptions shown at exhibit 
 
         2-2, pp. 3 & 4, five prescriptions at $3 each for a total of $15, 
 
         were prescribed by Dr. Neff for this injury, but that he has not 
 
         been paid for them (tr. p. 66).
 
         
 
              Claimant testified that Dr. Neff recommended that he buy a 
 
         recliner following his back surgery for ease in standing up and 
 
         sitting down.  Claimant testified that he paid for the recliner 
 
         and he used it and it was helpful during his recovery, but that 
 
         he has not used it since (tr. pp. 68 & 69).  Claimant also 
 
         testified that he purchased an ultra firm water mattress on the 
 
         recommendation of the physical therapist and other patients in 
 
         the physical therapy program.  Claimant testified that he paid 
 
         for it himself and has found it helpful (tr. pp. 69 & 70).
 
         
 
              Claimant said that he believed that he could never be 
 
         increased from $9 per hour back to $10.95 per hour under the two 
 
         tier new hire policy even though he had nine years of prior 
 
         service (tr. pp. 38, 70 & 71).  Stroud agreed that $9 was the top 
 
         pay in that category for a night stock clerk.  Stroud added that 
 
         no matter how high claimant might be advanced in the company, he 
 
         would still only be entitled to second tier wages (ex. 7, pp. 20 
 
         & 21).  Stroud averred that claimant had a good job at $9 per 
 
         hour and could not earn anymore than that any place else in the 
 
         city of Des Moines (ex. 7, p. 31).
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              Stroud admitted that he had the power to interpret the 
 
         policy under which he took claimant back to work and that the 
 
         decision was made to reinstate claimant as a new hire (ex. 7, pp. 
 
         34 & 34). Stroud said employer intends to continue the two tier 
 
         system.  It is necessary to compete with the box stores which are 
 
         cut rate grocery stores (ex. 7, pp. 39 & 40; tr. p. 138).  Stroud 
 
         concluded his deposition as follows:
 
         
 
                 The two tier system was a system we put in effect in 
 
              1983 as a management tool and it was not a penalty for 
 
              anybody.  It was still better than anybody else was paying, 
 
              and he was just a victim.
 
                 
 
                 I'm sorry that Jerry got hurt, but, you know, we can't 
 
              help that either.  Maybe he was careless.  Maybe he was 
 
              stupid.  We don't know that, you know.  I like Jerry.  We 
 
              don't know.
 
         
 
         (ex. 7, pp. 40 & 41)
 
         
 
              Claimant repeated that he got the letter from the insurance 
 
         company at the end of November 1986 which stated that they were 
 
         converting his benefits from temporary to permanent (tr. p.-80).
 
         
 
              David Johnson testified that he is the store manager at the 
 
         Merle Hay store.  He understood that claimant quit by mutual 
 
         agreement because claimant knew that he could not perform the 
 
         night stock job if he could not bend or lift.  Johnson maintained 
 
         he believed that claimant quit by mutual agreement even though 
 
         claimant was a married man with three minor children and it was 
 
         only 10 days before Christmas; and even though claimant had been 
 
         in the store just a few days earlier requesting that the job be 
 
         modified to allow claimant to perform a former night porter job 
 
         cleaning the restrooms and floors.  This job had been eliminated 
 
         in recent years and was now being performed by the whole night 
 
         crew.  Johnson further testified that since claimant had returned 
 
         to work he had performed all of his duties as a night stock clerk 
 
         100 percent (tr. pp. 91-96).  The termination of employment sheet 
 
         prepared by Johnson at the time of the termination supported his 
 
         testimony at the hearing (ex. 5-3, pp. 18 & 19).
 
         
 
              William Nordstrom, a vocational consultant, employed by 
 
         Resource Opportunities Incorporated, was hired by the insurance 
 
         carrier in late 1986 to do an initial assessment of claimant's 
 
         return to work potential.  As part of his routine procedure, 
 
         Nordstrom contacted employer to see if he could be reemployed 
 
         there if claimant completed a work hardening program and was 
 
         released to full duty even though the work hardening program had 
 
         previously been denied.  Nordstrom testified that Stroud said 
 
         that if claimant completed the program he would consider a 
 
         rehire. Nordstrom then wrote out the job description of night 
 
         stock clerk with Stroud (ex. 3-2, p. 37).  Nordstrom said he then 
 
         asked Stroud how much claimant was earning at the time of his 
 
         release from his duties.  Nordstrom said Stroud told him $10.95 
 
         per hour. Nordstrom stated that he then wrote that amount on the 
 
         sheet which he requested Stroud to sign. Nordstrom arranged for 
 
         the work hardening and the insurance company paid for it.  
 
         Nordstrom said that when he asked claimant about the work 
 
         hardening that claimant replied as follows:
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
                Q.  What did he advise you?
 
                
 
                A.  He told me it was very strenuous, he hurt an awful 
 
              lot, it was very, very difficult, and yet he willingly 
 
              cooperated and completed the program, knowing that it would 
 
              mean reemployment.
 
         
 
         (tr. p. 104)
 
         
 
              Nordstrom testified that claimant's work hardening program 
 
         was successful because of claimant's desire to return to 
 
         employment as well as claimant's stick-to-itiveness with the 
 
         program (tr. p. 104).  Nordstrom said that claimant completed the 
 
         work hardening program, obtained a full release from Dr. Boulden 
 
         and returned to his former job as night stock clerk (tr. p. 109). 
 
         Nordstrom added that Stroud was unwilling to modify the job to 
 
         accommodate claimant (tr. p. 114)..
 
         
 
              Nordstrom related that he was not aware of employer's two 
 
         tier wage system when he talked to Stroud about the work 
 
         hardening program (tr. p. 106).  Nordstrom testified that he 
 
         believed that he did tell claimant that he would return to work 
 
         at $10.95 per hour after completion of the work hardening 
 
         program.  Nevertheless, after claimant was rehired he was told:  
 
         (1) that he would be paid $9 per hour instead of $10.95 per hour; 
 
         (2) that he would lose vacation benefits; (3) that he would have 
 
         to pay for his family health insurance in its entirety for the 
 
         first six months of reemployment as a new hire; and (4) that he 
 
         would have to requalify for the E.S.O.P. (tr. pp. 107 & 108).
 
         
 
              At the hearing, Stroud testified that he is a 25-year 
 
         employee of employer.  He has been executive vice president for 
 
         one year having risen through the ranks in various management 
 
         jobs over the years.  He related that injured employees must 
 
         bring in evidence that they can perform their job when they 
 
         return to work after an injury or illness.  Stroud testified that 
 
         he formally performed the night stock clerk job himself for one 
 
         and one-half years.  He said that claimant could not perform this 
 
         job with restrictions of no lifting and no bending.  There were 
 
         no other jobs at the store that Stroud knew of that claimant 
 
         could perform. Stroud admitted that claimant was terminated.  
 
         Stroud confirmed that he agreed to and did take claimant back to 
 
         work when the restrictions were removed (tr. pp. 115-123).
 
         
 
              Stroud told that the two tier system became effective 
 
         January 1, 1985 for all new hires.  This new pay system was 
 
         necessary to compete with competitors in the market place.  He 
 
         said that when claimant was terminated in 1986 he was no longer 
 
         an employee of employer.  Stroud verified that all employees who 
 
         have been rehired after January 1, 1985 are treated as new hires.  
 
         He denied that it had anything to do with the fact that claimant 
 
         was injured and received workers' compensation benefits.  Stroud 
 
         said that claimant did not lose any vesting in the E.S.O.P due to 
 
         internal revenue service rules.  Stroud admitted that claimant 
 
         will have less going into the E.S.O.P. now because he is making 
 
         less money since being rehired (tr. pp. 132 & 133).  Stroud 
 
         confirmed that claimant is at the top of his wage scale at $9 per 
 
         hour and can never make more than that unless he would be 
 
         promoted to some other job (tr. p. 123-126).
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              Stroud conceded that if claimant had not been injured he 
 
         would still be earning $10.95 per hour, he would still have nine 
 
         years of seniority for days off, he would still have three weeks 
 
         of vacation and claimant would not have had to pay the first six 
 
         months of initial health insurance premiums a second time as a 
 
         rehire (tr. pp. 126-131).  Stroud admitted that the persons in 
 
         authority, including himself, had determined that claimant had to 
 
         return to work as a rehire even though claimant's termination 
 
         came about due to an injury while working for Dahl's (tr.  P. 
 
         132).
 
         
 
              Stroud said that claimant was not currently being considered 
 
         for promotion.  He also denied that claimant had been considered 
 
         for termination.  Stroud acknowledged that it would not have 
 
         created a financial hardship for Dahl's to.return claimant to 
 
         work at his former wage of $10.95 per hour after his injury on 
 
         the job (tr. pp. 134-136).  Stroud claimed that hiring the 
 
         claimant back at the rehire rate was a matter of how the company 
 
         treats all employees and not just one individual (tr. p. 137).  
 
         Claimant testified that he only received four and one-half days 
 
         of vacation in 1987 and that he would receive six days of 
 
         vacation in 1988 and thereafter.  Claimant estimated that he 
 
         would have to work 10 years to get back to three weeks of 
 
         vacation per year (ex. 8, pp. 57 & 58).  Stroud estimated it 
 
         would take claimant approximately six years before he would earn 
 
         three weeks of vacation again (ex. 7, p. 23).
 
         
 
              Claimant testified that the full cost of the medical 
 
         premiums that he was required to pay during the first six months 
 
         of his rehire amount to approximately $700 (ex. 8,.p. 54, 58 & 
 
         59).
 
         
 
              Claimant testified that loss of seniority means that you 
 
         will loose the choice of the type of job that you will be given 
 
         to do. The bummer jobs are unloading the trucks and crushing the 
 
         boxes (ex. 8, pp. 53 & 56).  Loss of seniority also means the 
 
         last choice of days off on holidays.  Claimant said he is now 
 
         lowest in seniority in a crew of eight people.  Previously his 
 
         seniority was only exceeded by the crew chief and second man (ex. 
 
         8, p. 59).
 
         
 
              Facts relative to the computation of the proper rate of 
 
         compensation are as follows.  This data is taken from exhibit 
 
         1-4, page 2.
 
         
 
           DATE       REGULAR HOURS      OVERTIME HOURS      TOTAL HOURS
 
         
 
         6-14-86           39                  8                 47
 
         6-07-86           43.5                8                 51.5
 
         5-31-86           42                  0                 42
 
         5-24-86           14.75               8                 22.75
 
         5-17-86           40                  8                 48
 
         5-10-86           40                  8                 48
 
         5-03-86           40                  8                 48
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         4-26-86           40                  8                 48
 
         4-19-86           40                  8                 48
 
         4-12-86           40                  0                 40
 
         4-05-86            0                  0                  0
 
         3-29-86           40                  8                 48
 
         3-22-86           40                  8                 48
 
         3-15-86           40                  0                 40
 
         3-08-86            8.25               8.25              16.5
 
         3-01-86           40                  8                 48
 
         
 
              The irregular weeks are as follows:  (1) March 8, 1986, when 
 
         claimant was on vacation; (2) April 5, 1986, when claimant was on 
 
         vacation; (3) May 24, 1986, when claimant was off work for the 
 
         injury of May 26, 1986.  When these three irregular weeks are 
 
         eliminated from the calculation, the total hours worked for the 
 
         remaining weeks are 604.5 hours.  When 604.5 hours are multiplied 
 
         by $10.95 per hour the total gross earnings are $6,619.275.  When 
 
         these gross earnings are divided by 13, the gross weekly earnings 
 
         amount to $509.18 per week.  The workers' compensation payment 
 
         for these gross weekly earnings for a married person with five 
 
         exemptions, in the workers' compensation benefit schedule for 
 
         July 1, 1985, amount to a weekly workers' compensation rate of 
 
         $316.87.
 
         
 
                           APPLICABLE LAW AND ANALYSIS
 
         
 
              The parties stipulated and the evidence amply supports the 
 
         stipulation that claimant sustained back injuries on August 23, 
 
         1985, May 20, 1986 and June 16, 1986, all of which arose out of 
 
         and in the course of employment with employer as a night stock 
 
         person.  On each of these occasions, claimant was attempting to 
 
         lift a box when he experienced severe pain that required medical 
 
         treatment on each of these occasions.
 
         
 
              Claimant sustained the burden of proof by a preponderance of 
 
         the evidence that the injury of June 16, 1986 was the cause of 
 
         healing period disability from the date after the injury of June 
 
         17, 1986 until February 23, 1987, when he completed the work 
 
         hardening program and was released to return to work without any 
 
         restrictions.  Claimant is entitled to healing period benefit's 
 
         until:  (1) he has returned to work; or (2) it is medically 
 
         indicated that significant improvement from the injury is not 
 
         anticipated; or (3) he is medically capable of returning to 
 
         employment substantially similar to the employment at the time of 
 
         the injury, whichever occurs first.  [Iowa Code section 
 
         85.34(1)].
 
         
 
              Dr. Neff stated on December 15, 1986 that claimant had 
 
         reached his maximum benefit and medical improvement from the 
 
         surgery; however, this is not the same as reaching maximum 
 
         medical improvement from the injury in all of its aspects.  
 
         Furthermore, it is not true that claimant had reached his maximum 
 
         medical improvement on December 15, 1986, because when claimant 
 
         was given the opportunity to receive the work hardening program, 
 
         which Dr. Neff had recommended several times and the insurance 
 
         company refused to authorize several times, claimant did achieve 
 
         his true maximum medical improvement and was given a return to 
 
         work release without any restrictions.  Therefore, the statement 
 
         in the letter of December 15, 1986, that claimant reached his 
 
         maximum medical benefits and medical improvement is proven 
 
         incorrect by the actual facts that occurred in this case.  
 
         Claimant is entitled to healing period benefits for the entire 
 
         course of the treatment, including work hardening, which was 
 
         recommended by Dr. Neff and ended on February 23, 1987, when 
 
         claimant was released to return to work without any restrictions.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              The right of the employer to choose the care as provided in 
 
         Iowa Code section 85.27 gives the employer and its insurance 
 
         carrier the right to select a treating physician, but it does not 
 
         give them the right to invade the province of the medical 
 
         professionals to determine what diagnostic tests and methods of 
 
         treatment are reasonable from a medical point of view.  Pote vs. 
 
         Mickow Corporation (Harret Corp.), file number 694639 
 
         (review-reopening decision filed June 17, 1986); Martin vs. 
 
         Armour-Dial, Inc., Vol. II No. I State of Iowa Industrial 
 
         Commissioner Decisions 253, 258 (1985).
 
         
 
              Iowa Code section 85.27 requires the defendants to furnish 
 
         reasonable care and medical treatment.  The work hardening 
 
         program was reasonable care and defendants were required to 
 
         furnish it. Without work hardening claimant could not return to 
 
         his old job. With work hardening, claimant was returned to his 
 
         old job. Defendants violated their duty to provide reasonable 
 
         care by rejecting the professional recommendations of the 
 
         treating physician, who was their own personal choice of 
 
         physician to treat the injury, to provide claimant with a work 
 
         hardening program in order to restore him to full duty.  Dr. Neff 
 
         explained fully why work hardening was needed on two occasions in 
 
         writing.
 
         
 
              Defendant, insurance carrier, did not give a reasonable 
 
         explanation, or any explanation for that matter, either by the 
 
         introduction of evidence or through the argument of counsel, as 
 
         to why they refused the work hardening program.  If defendants 
 
         had a reasonable explanation they should have asserted it.  In 
 
         absence of any explanation of any kind, then there is no good 
 
         reason or any reason in the record to justify the refusal to 
 
         provide the care which was recommended by the treating physician. 
 
         Consequently, claimant is entitled to healing period benefits 
 
         from June 17, 1986 to February 23, 1987.  The parties stipulated 
 
         that claimant was off work during this period of time and it is 
 
         now determined that the injury of June 16, 1986 was the cause of 
 
         this time off work.  Claimant was not able to work after the 
 
         injury on June 16, 1986.  He was not released to returned to work 
 
         without restrictions until February 23, 1987.
 
         
 
              The claimant has the burden of proving by a preponderance of 
 
         the evidence that the injuries of August 23, 1985, May 20, 1986 
 
         and June 16, 1986, are causally related to the disability on 
 
         which he now bases his claim.  Bodish v. Fischer, Inc., 257 Iowa 
 
         516, 133 N.W.2d 867 (1965).  Lindahl v. L.O. Boggs, 236 Iowa 296, 
 
         18 N.W.2d 607 (1945).  A possibility is insufficient; a 
 
         probability is necessary.  Burt v. John Deere Waterloo Tractor 
 
         Works, 247 Iowa 691, 73 N.W.2d 732 (1955).  The question of 
 
         causal connection is essentially within the domain of expert 
 
         testimony.  Bradshaw v. Iowa Methodist Hospital, 251 Iowa 375, 
 
         101 N.W.2d 167 (1960).
 
         
 
              However, expert medical evidence must be considered with all 
 
         other evidence introduced bearing on the causal connection.  
 
         Burt, 247 Iowa 691, 73 N.W.2d 732.  The opinion of experts need 
 
         not be couched in definite, positive or unequivocal language.  
 
         Sondag v. Ferris Hardware, 220 N.W.2d 903 (Iowa 1974).  However, 
 
         the expert opinion may be accepted or rejected, in whole or in 
 
         part, by the trier of fact.  Id. at 907.  Further, the weight to 
 
         be given to such an opinion is for the finder of fact, and that 
 
         may be affected by the completeness of the premise given the 
 
         expert and other surrounding circumstances.  Bodish, 257 Iowa 
 
         516, 133 N.W.2d 867.  See also Musselman v. Central Telephone 
 
         Co., 261 Iowa 352, 154 N.W. d 128 (1967).
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              The injury of June 16, 1986 was the cause of permanent 
 
         disability.  Dr. Neff said claimant's impairment was a result of 
 
         his work injury on this date (ex. 1-1, p. 1).
 
         
 
              Claimant is entitled to substantial permanent partial 
 
         disability benefits.  First of all, claimant sustained a physical 
 
         impairment, a loss of total body function, of 7 percent of the 
 
         body as whole.  This rating was not reduced after claimant had 
 
         finished the work hardening program and claimant could work 
 
         without restrictions.  Therefore, this rating of Dr. Neff, stands 
 
         as the only rating in this case.  If a lower rating was in order, 
 
         defendants should have obtained it and placed it in evidence.
 
         
 
              In addition to the permanent physical impairment, claimant 
 
         has sustained extensive actual wage losses as the direct and 
 
         immediate result of the injury and the manner in which it was 
 
         treated by the insurance company and the employer in addition to 
 
         claimant's loss of earning capacity.
 
         
 
              As a claimant has an impairment to the body as a whole, an 
 
         industrial disability has been sustained.  Industrial disability 
 
         was defined in Diederich v. Tri-City Railway Co., 219 Iowa 587, 
 
         593, 258 N.W. 899, 902 (1935) as follows:  "It is therefore plain 
 
         that the legislature intended the term 'disability' to mean 
 
         'industrial disability' or loss of earning capacity and not a 
 
         mere 'functional disability' to be computed in the terms of 
 
         percentages of the total physical and mental ability of a normal 
 
         man."
 
         
 
              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).
 
         
 
              In Parr v. Nash Finch Co., (Appeal Decision, October 31, 
 
         1980) the industrial commissioner, after analyzing the decisions 
 
         of McSpadden v. Big Ben Coal Co., 288 N.W. 2d 181 (Iowa 1980) and 
 
         Blacksmith v. All-American, Inc., 290 N.W.2d 348 (Iowa 1980), 
 
         stated:
 
         
 
              Although the court stated that they were looking for the 
 
              reduction in earning capacity it is undeniable that it was 
 
              the "loss of earnings" caused by the job transfer for 
 
              reasons related to the injury that the court was indicating 
 
              justified a finding of "industrial disability."  Therefore, 
 
              if a worker is placed in a position by his employer after an 
 
              injury to the body as a whole and because of the injury 
 
              which results in an actual reduction in earning, it would 
 
              appear this would justify an award of industrial disability.  
 
              This would appear to be so even if the worker's "capacity" 
 
              to earn has not been diminished.
 

 
              
 
 
 
 
 
 
 
 
 
 
 
         
 
              The Supreme Court of Iowa held that where employer refused 
 
         to give any work to claimant after he suffered a work injury, 
 
         this may be taken into consideration as a factor in determining 
 
         defendants' liability [McSpadden, 288 N.W.2d 181 (Iowa 1980)].  
 
         The supreme court has also held that an increase in industrial 
 
         disability may occur without a change in physical condition where 
 
         claimant was transferred to a lower paying job after a work 
 
         injury.  [McSpadden, 288 N.W.2d 181 (Iowa 1980)].
 
         
 
              In this case, claimant was earning $10.95 per hour at the 
 
         time of the injury.  The defendant insurance carrier refused to 
 
         authorize work hardening in violation of the recommendation of 
 
         the treating physician in order to restore claimant's ability to 
 
         perform his job as a night stock clerk.  The defendant employer 
 
         then terminated claimant because the treating physician imposed 
 
         restrictions of no lifting and no bending over.  The defendant, 
 
         insurance carrier, then authorized work hardening, claimant's 
 
         restrictions were removed, and claimant was rehired by defendant 
 
         employer at the second tier new hire rate of $9 per hour to 
 
         perform the same job that paid him $10.95 per hour at the time of 
 
         the injury.  Through no fault of his own, claimant has sustained 
 
         an actual wage loss of $1.95 per hour, not only for the period 
 
         for which workers' compensation benefits can be awarded in this 
 
         case, but for the rest of his working career with this employer.  
 
         It should be noted that claimant is in fact a career employee of 
 
         Dahl's.  There is no evidence that claimant was careless or did 
 
         anything stupid.  The actual wage loss amounts to approximately 
 
         18 percent ($1.95 divided by 10.95 = 17.8%).  This must be added 
 
         to claimant's permanent physical loss of function in the amount 
 
         of 7 percent of the body as whole.  Furthermore, claimant has 
 
         other actual losses and claimant has also lost earning capacity.
 
         
 
              Claimant lost nine years of seniority and started over over 
 
         with zero years of seniority on March 2, 1987.  His paid vacation 
 
         has been reduced from three weeks per year to six days per year. 
 
         Claimant estimated that it would take ten years before he would 
 
         regain three weeks of paid vacation.  Stroud estimated that it 
 
         would be six years before claimant would regain three weeks of 
 
         paid vacation per year.
 
         
 
              Employers contribution to the E.S.O.P. on behalf of claimant 
 
         will be less due to the 18 percent loss of actual wages since the 
 
         rehire.  This loss will continue on for the balance of claimant's 
 
         working career with employer which could be 30 years or more 
 
         before normal retirement.  Claimant is locked into the second 
 
         tier wage scale no matter what job claimant might eventually 
 
         perform for Dahl's.
 
         
 
              Claimant was forced to pay the first six months of the 
 
         initial premium for health insurance a second time after his 
 
         rehire which he testified amounted to approximately $700.  This 
 
         was not controverted.
 
         
 
              Addressing earning capacity, claimant's employability market 
 
         is reduced because he is a a back injury which required surgery 
 
         compensation benefits.  Claimant's without a G.E.D. reduces his 
 
         employability market.  Claimant continues to suffer right leg.  
 
         His sleep is interrupted practically every night.  It is more 
 
         difficult for him to perform a strenuous job than it is for an 
 
         employee who does not have pain and numbness in his right leg.  
 
         Claimant had a flare-up in June of 1987 which caused him to see 
 
         Dr. Neff again in July of 1987.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              Credit must be given to defendant insurance carrier for 
 
         providing claimant with a very ,effective vocational 
 
         rehabilitation specialist who actually restored claimant to his 
 
         former job.  Consideration must be given to the insurance carrier 
 
         for providing claimant with work hardening when it was 
 
         recommended by the vocational rehabilitation specialist.  
 
         Consideration must be given to the fact that defendant employer 
 
         cooperated with the vocational rehabilitation consultant and gave 
 
         claimant the opportunity to return to his old job.
 
         
 
              Wherefore, based upon the foregoing considerations and all 
 
         of the factors used to determine industrial disability and 
 
         applying agency expertise [Iowa Administrative Procedure 
 
         17A.14(5)], it is determined that claimant has sustained a 35 
 
         percent industrial disability to the body as whole.  This award 
 
         still may be far less than claimant's projected actual wage and 
 
         E.S.O.P. contribution losses over the balance of his working 
 
         career.
 
         
 
              Turning to the proper rate of compensation, paragraph two of 
 
         the hearing assignment order stated that the parties will attempt 
 
         to stipulate to the rate.  However, a stipulation was not reached 
 
         by the parties.  Defendants objected to the rate being an issue 
 
         in this case for the reason that claimant first notified them of 
 
         the rate issue on the day before the hearing.  It is determined 
 
         that this was sufficient time for defendants to defend on the 
 
         rate issue.  If claimant had the wage figures for the 13 weeks 
 
         prior to hearing, then defendants should have had access to them 
 
         also. Furthermore, the original notice and petition alleged that 
 
         rate was an issue.
 
         
 
              With respect to the rate, Iowa Code section 85.36, Basis of 
 
         computation, provides as follows:
 
         
 
                   The basis of compensation shall be the weekly earnings 
 
              of the injured employee at the time of the injury.  Weekly 
 
              earnings means gross salary, wages, or earnings of an 
 
              employee to which such employee would have been entitled had 
 
              the employee worked the customary hours for the full pay 
 
              period in which the employee was injured, as regularly 
 
              required by the employee's employer for the work or 
 
              employment for which the employee was employed, computed or 
 
              determined as follows and then rounded to the nearest 
 
              dollar: 
 
         
 
                   6.  In the case of an employee who is paid on a daily, 
 
              or hourly basis, or by the output of.the employee, the 
 
              weekly earnings shall be computed by dividing by thirteen 
 
              the earnings, not including overtime or premium pay, of said 
 
              employee earned in the employ of the employer in the last 
 
              completed period of thirteen consecutive calendar weeks 
 
              immediately preceding the injury.
 
         
 
              Claimant contends that irregular weeks of pay should be 
 
         eliminated from the rate calculation and defendants contend that 
 
         the irregular weeks should be included in the rate calculation. 
 
         The case of Lewis vs. Aalfs Manufacturing Co., I Iowa Industrial 
 
         Commissioner Report 206 (Appeal Decision December 30, 1980) 
 
         provides as follow:
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              ...Claimant did not work 13 consecutive weeks between May 6, 
 
              1978 and the date of the injury in September 1978.  However, 
 
              it is clear that the requirement of 13 consecutive weeks 
 
              must be interpreted in light of the first unnumbered 
 
              paragraph of section 85.36 which mandates that,one determine 
 
              the weekly earnings "at the time of the injury," and that 
 
              said earnings are those to which the employee "would have 
 
              been entitled had he worked the customary hours for the full 
 
              pay period in which he was injured,..."  Here, as in many 
 
              other cases, claimant had vacations and layoffs which broke 
 
              the string.of weeks.
 
         
 
                   The requisite action, then, is to determine what 
 
              claimant was earning when she was hurt; subsection 6 
 
              qualifies this requirement by stating a method of 
 
              computation.  Reading the first unnumbered paragraph and 
 
              subsection 6 together, the best method of calculation would 
 
              be to determine the last 13 completed consecutive weeks....
 
         
 
              In addition Lawyer and Higgs, Iowa 
 
         Workers'.Compensation--Law and Practice, section 12-4, at pages 
 
         97 & 98 provides as follows:
 
         
 
                   Iowa Code section 85.36(6) sets out the basis for 
 
              determining the weekly earnings at the time of the injury 
 
              when the employee is paid by the hour, by day, or by output. 
 
              To compute the gross weekly earnings in these situations, 
 
              the earnings from the employer for the "last [thirteen] 
 
              completed consecutive weeks" prior to the injury are added 
 
              together and divided by thirteen.  Premium pay is not 
 
              included in this calculation.  Overtime hours are included 
 
              at the straight time pay scale.
 
                   It is not uncommon in determining the rate under 
 
              section 85.36(6) for a non-salaried [sic] employee to find 
 
              that here are weeks within the thirteen consecutive weeks 
 
              prior to the injury that contain absences due to illness, 
 
              vacation or other causes.  Since the worker often does not 
 
              get paid unless he works, these weeks are not representative 
 
              of his earnings.  The agency has consistently ruled that 
 
              these weeks are not included in the thirteen weeks for 
 
              determining the rate under Iowa Code section 85.36(6).  
 
              Instead, the "short" weeks are skipped and additional weeks 
 
              are included until thirteen completed consecutive weeks are 
 
              accumulated for the calculation.  The rationale for this 
 
              method of determining the weekly earnings is based on the 
 
              mandate of the first unnumbered paragraph of Iowa Code 
 
              section 85.36 which requires a determination of earnings to 
 
              which an employee "would have been entitled had he worked 
 
              the customary hours for the full pay period in which he was 
 
              injured..." (footnotes omitted)
 
         
 
              The weight of authority on this issue favors claimant. 
 
         Therefore, eliminating the week of March 8, 1986, when claimant 
 
         was on vacation, the week of April 5, 1986, when claimant was on 
 
         vacation and the week of May 24, 1986, when claimant lost time 
 
         for the injury of May 20, 1986.  The total hours worked in the 13 
 
         representative consecutive weeks total 604.5 hours.  This number 
 
         times $10.95 per hour amounts to gross wages of $6,619.275 earned 
 
         during the 13 representative weeks.  The gross amount earned 
 
         divided by 13 produces a gross weekly earnings of $509.18 per 
 
         week which results in a workers' compensation benefit for a 
 
         married person with five exemptions in the amount of $316.87 
 
         based on the workers' compensation benefits schedule for July 1, 
 
         1985.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              Claimant is not entitled to penalty benefits under the 
 
         fourth unnumbered paragraph of Iowa Code section 86.13 which 
 
         reads as follows:
 
         
 
                   If a delay in commencement or termination of benefits 
 
              occurs. without reasonable or probable cause or excuse, the 
 
              industrial commissioner shall award benefits in addition to 
 
              those benefits payable under this chapter, or chapter 85, 
 
              85A, or 85B, up to fifty percent of the amount of benefits 
 
              that were unreasonably delayed or denied.
 
         
 
              Since the insurance carrier had an impairment rating signed 
 
         by Dr. Neff as of November 26, 1986, a return to work slip signed 
 
         by Dr. Neff on December 11, 1986 and a letter signed by Dr. Neff 
 
         on December 15, 1986 stating that claimant had attained maximum 
 
         medical improvement and defendants continued to pay benefits from 
 
         shortly after the injury until July of 1987, then there is some 
 
         evidence that there was no delay in the commencement or premature 
 
         denial of benefits.  Under these circumstances it is not possible 
 
         to say that benefits were unreasonably delayed or denied without 
 
         reasonable or probable cause or excuse.
 
         
 
              Paying an incorrect rate lower than claimant's entitlement 
 
         can be the basis for a penalty under Iowa Code section 86.13 if 
 
         it is proven by the proponent of the issue that it was a delay or 
 
         denial without reasonable or probable cause or excuse.  Claimant 
 
         did not sustain that burden of proof in this case.  Defendants 
 
         contended that they paid claimant on the basis of 40 hours per 
 
         week at his hourly wage of $10.95 per hour.  This was not the 
 
         correct rate and claimant was grossly underpaid.  Defendant 
 
         insurance carrier should have calculated the rate based upon the 
 
         actual hours that claimant worked and wages received in the 13 
 
         customary weeks prior to injury rather than use an arbitrary 
 
         calculation of 40 hours times claimant's hourly rate of pay.  But 
 
         since there is some basis in fact for the insurance carrier's 
 
         calculation it cannot be said that it was without reasonable or 
 
         probable cause or excuse.  Claimant did not prove that the 
 
         calculation was without reasonable or probable cause or excuse.
 
         
 
              Penalty benefits are not imposed where there is a legitimate 
 
         dispute.  Just vs. HyGrade Food Products Corp., IV Iowa 
 
         Industrial Commissioner Report 190 (Appeal Decision January 31, 
 
         1984).
 
         
 
              Since defendants paid at least the amount of the impairment 
 
         rating it is difficult to say that benefits were unreasonably 
 
         delayed or denied without reasonable or probable cause or excuse.
 
         
 
              Wherefore, no penalty benefits under Iowa Code section 86.13 
 
         are awarded to claimant on any of the alleged grounds asserted by 
 
         claimant for them.
 
         
 
              A determination as to whether penalties should be imposed 
 
         upon claimant under Division of Industrial Services Rule 343-4.35 
 
         and Iowa Rules of Civil Procedure 80 for asserting a claim for 
 
         Iowa Code section 86.13 benefits on the original notice and 
 
         petition dated January 7, 1987 when claimant was in fact being 
 
         paid workers' compensation benefits at that time was not asserted 
 
         as a hearing issue at the prehearing conference and was not 
 
         designated a hearing issue on the hearing assignment order. 
 
         Hearing deputies normally determine only issues raised at the 
 
         prehearing conference and designated as hearing issues on the 
 
         hearing assignment order.  Presswood vs. Iowa Beef Processors, 
 
         Inc., file no. 735442 (Appeal Decision November 14, 1986).
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              Furthermore, the hearing deputy in this case declines to 
 
         impose a penalty on his own initiative pursuant to Rule 80.  In 
 
         this case, the individual action of defendant insurance carrier 
 
         and defendant employer combined to place claimant in a double 
 
         bind.  Defendant employer refused to take claimant back to work 
 
         because of Dr. Neff's restrictions.  Defendant insurance carrier 
 
         refused to allow claimant to perform the work hardening program 
 
         in order to remove Dr. Neff's restrictions.  Under these 
 
         circumstances, claimant might well have suspected that discovery 
 
         would develop the grounds for a penalty under Iowa Code section 
 
         86.13 when the original notice and petition was filed on January 
 
         7, 1987.
 
         
 
              Claimant is not entitled to payment for the recliner in the 
 
         amount of $440.97 or the ultra firm water mattress in the amount 
 
         of $139.99 because there was no medical evidence that these items 
 
         were prescribed, recommended or suggested by Dr. Neff who was the 
 
         treating physician.
 
         
 
              Claimant is entitled to payment of the five prescriptions at 
 
         $3 each in the total amount of $15 which were prescribed by Dr. 
 
         Neff for claimant's back injury.
 
         
 
                                 FINDINGS OF FACT
 
         
 
              Wherefore, based upon the evidence presented the following 
 
         findings of fact are made.
 
         
 
              That claimant was an employee of employer on August 23, 
 
         1985, May 20, 1986 and June 16, 1986 as stipulated by the 
 
         parties.
 
         
 
              That claimant sustained an injury to his back on these three 
 
              dates as stipulated by the parties.
 
         
 
              That the injury of June 16, 1986.was the cause of claimant's 
 
         time off work for the healing period from June 17, 1986 to 
 
         February 23, 1987.
 
         
 
              That back surgery was performed on claimant on July 22, 1986 
 
         and claimant has also sustained a loss of motion in his back.
 
         
 
              That claimant:  (1) continued to have pain and numbness in 
 
         his leg; (2) suffers sleep disturbance and leg stiffness; (3) 
 
         suffers occasional flare-ups; and (4) finds that stacking boxes 
 
         agitates his condition, even though he has been able to perform 
 
         his job since returning to work.
 
         
 
              That claimant sustained a physical injury or loss of body 
 
         function in the amount of 7 percent of the body as a whole as a 
 
         result of the injury of June 16, 1986.
 
         
 
              That claimant is approximately 30 years old,.has an eleventh 
 
         grade education and has not obtained a G.E.D.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              That claimant, a career employee of employer, sustained an 
 
         approximate 18 percent loss of actual earnings as long as he 
 
         continues his career at Dahl's.  This period could extend well 
 
         beyond the period of the award in this case and deprive claimant 
 
         of substantial earnings between now and claimant's normal 
 
         retirement.
 
         
 
              That if claimant should be promoted or change jobs within 
 
         the company, he would still receive tier two wages rather than 
 
         tier one wages because defendant employer treated him as a rehire 
 
         when he returned to work from this injury.
 
         
 
              That employer's contribution to claimant's E.S.O.P. will be 
 
         less over the period of his entire employment with employer 
 
         because of the 18 percent reduction in his wages and his 
 
         permanent status as a tier two employee.
 
         
 
              That claimant sustained a reduction in paid vacation from 
 
         three weeks per year to six days per year.
 
         
 
              That claimant was forced to pay approximately $700 in the 
 
         initial health insurance premiums as new employee when he was 
 
         treated as a rehire in the two tier employment system of 
 
         employer.
 
         
 
              That claimant's seniority was reduced from nine years to 
 
         zero years when he returned to work as a rehire on March 2, 1987.
 
         
 
              That claimant sustained a 35 percent industrial disability 
 
         to the body as a whole.
 
         
 
              That the proper rate of compensation is $316.87 per week.
 
         
 
              That defendants prematurely converted claimant to permanent 
 
         partial disability benefits, but that defendants action in doing 
 
         so was not without reasonable or probable cause or excuse.
 
         
 
              That defendants grossly erred in the calculation of the 
 
         proper rate of compensation, but defendants' error was not 
 
         without reasonable or probable cause or excuse.
 
         
 
              That defendants payment of only 7 percent permanent partial 
 
         disability benefits was a gross under payment of the proper 
 
         amount of permanent partial disability to which claimant was 
 
         entitled, but defendants action is not without reasonable or 
 
         probable cause or excuse.
 
         
 
              That the allegation of entitlement to Iowa Code section 
 
         86.13 penalty benefits was premature, but it was not without 
 
         reasonable or probable suspicion that subsequent discovery might 
 
         support the allegation.
 
         
 
              That no factual basis exists for sanctioning claimant for 
 
         alleging section 86.13 penalty benefits while defendants were 
 
         making payments of workers' compensation benefits, because it 
 
         could be determined that if defendants prematurely converted 
 
         temporary benefits to permanent benefits then claimant was also 
 
         prematurely denied permanent benefits.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              That claimant provided no medical evidence to support his 
 
         claim for a recliner in the amount of $440.97 or an ultra firm 
 
         water mattress in the amount of $139.99.
 
         
 
              That claimant did incur $15 in prescription drug expense for 
 
         medications prescribed by Dr. Neff for his back condition.
 
         
 
                                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 back injuries on August 23, 1985, 
 
         May 20, 1986, and June 16, 1986 which arose out of and in the 
 
         course of employment with employer.
 
         
 
              That claimant is entitled to 36 weeks of healing period 
 
         benefits for the period from June 17, 1986 to February 23, 1987.
 
         
 
              That claimant's injury of June 16, 1986 was the cause of 
 
         permanent disability.
 
         
 
              That claimant is entitled to 175 weeks of permanent partial 
 
         disability benefits based upon a 35 percent industrial disability 
 
         to the body as a whole.
 
         
 
              That the proper rate of compensation is $316.87 per week.
 
         
 
              That claimant is not entitled to penalty benefits under Iowa 
 
         Code section 86.13.
 
              
 
              That defendants are not entitled to the imposition of 
 
         sanctions under Iowa Rule of Civil Procedure 80.
 
              
 
              That claimant is entitled to $15 in medical benefits for 
 
         prescription drugs.
 
         
 
                                      ORDER
 
         
 
              THEREFORE, IT IS ORDERED:
 
         
 
              That defendants pay to claimant thirty-six (36) weeks of 
 
         healing period benefits at the rate of three hundred sixteen and 
 
         87/100 dollars ($316.87) per week in the total amount of eleven 
 
         thousand four hundred seven and 32/100 dollars ($11,407.32) for 
 
         the period June 17, 1986 to February 23, 1987.
 
         
 
              That defendants pay to claimant one hundred seventy-five 
 
         (175) weeks of permanent partial disability benefits at the rate 
 
         of three hundred sixteen and 87/100 dollars ($316.87) per week in 
 
         the total amount of fifty-five thousand four hundred fifty-two 
 
         and 25/100 dollars ($55,452.25) commencing on March 23, 1987.
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
              That defendants are entitled to a credit for fifty-eight and 
 
         one-sevenths (58 1/7) weeks of workers' compensation benefits 
 
         paid to claimant prior to hearing at the rate of two hundred 
 
         seventy-eight and 44/100 dollars ($278.44) per week.
 
         
 
              That all accrued benefits are to be paid in a lump sum.
 
         
 
              That interest will accrue pursuant to Iowa Code section 
 
         85.30.
 
         
 
              That defendants pay to claimant fifteen dollars ($15) in 
 
         medical expenses for prescription drugs.
 
         
 
              That the costs of this action are charged to defendants 
 
         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 28th day of June, 1989.
 
         
 
         
 
         
 
         
 
         
 
         
 
                                       WALTER R. McMANUS, JR.
 
                                       DEPUTY INDUSTRIAL COMMISSIONER
 
         
 
         Copies to:
 
         
 
         Mr. Jim R. Lawyer
 
         Attorney at Law.
 
         West Towers Office
 
         1200 35th St. STE 500
 
         West Des Moines, IA  50265
 
         
 
         Mr. Richard Book
 
         Attorney at Law
 
         500 Liberty Bldg
 
         Des Moines, IA  50309
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
 
                                       
 
 
 
 
 
 
 
 
 
 
 
                                       1401, 1402.40, 1402.60, 18021
 
                                       1803, 2501, 2505, 2700, 30011
 
                                       3002, 3003, 4000,
 
                                       Filed June 28, 1989
 
                                       WALTER R. McMANUS, JR.
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         JERRY L. FERRISS,
 
         
 
              Claimant,                        File Nos. 804053
 
                                                         825705
 
         vs.                                             840448
 
         
 
         DAHL'S FOODS, INC.,                 A R B I T R A T I 0 N
 
         
 
              Employer,                         D E C I S I 0 N
 
         
 
         and
 
         
 
         MARYLAND CASUALTY COMPANY,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         1401, 1402.40, 1402.60, 1802, 1803
 
         
 
              Claimant awarded healing period and permanent partial 
 
         disability for a back injury that resulted in a laminectomy.
 
         
 
         2501, 2505, 2700
 
         
 
              Defendants violated the right of choosing the care by 
 
         refusing a work hardening program recommended by the treating 
 
         physician.  The right to choose the care is not the right to 
 
         invade the province of the medical professionals and dictate what 
 
         constitutes reasonable medical care for treatment of claimant's 
 
         injury.
 
         
 
         3001, 3002, 3003
 
         
 
              Irregular weeks are eliminated to calculate the rate of an 
 
         hourly employee.
 
         
 
         4000
 
         
 
              Claimant did not prove that:  (1) premature conversion of 
 
         temporary disability benefits to permanent disability benefits; 
 
         (2) gross error in calculation of the rate of compensation; and 
 
         (3) gross under payment of permanent disability was without 
 
         reasonable or probable cause or excuse and claimant was not 
 
         awarded Iowa Code section 86.13 penalty benefits.
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         4000
 
         
 
              Defendants were not entitled to an imposition of Iowa Rule 
 
         of Civil Procedure 80, penalties on claimant attorney, for 
 
         alleging Iowa Code section 86.13 penalty benefits on the petition 
 
         while claimant was receiving workers' compensation benefits.
 
         
 
         1803
 
         
 
              Insurance carrier would not authorize work hardening as 
 
         urged strenuously by treating physician who was defendant 
 
         insurance carrier's own choice of physician.  Physician then 
 
         imposed restrictions of no lifting and no bending over.  
 
         Defendant employer would not rehire claimant with restrictions of 
 
         any kind or modify the job, but instead terminated claimant.  
 
         Rehabilitation specialist then persuaded insurance company to 
 
         authorize work hardening and employer to take claimant back to 
 
         work after all restrictions were removed.  However, claimant was 
 
         rehired as a new employee with an 18 percent loss of income and 
 
         reduced contributions to his retirement plan for the rest of his 
 
         career. His vacation was reduced from three weeks to six days.  
 
         Claimant had to pay the first six months of medical insurance 
 
         premiums out of his own pocket again as a new employee.  Claimant 
 
         lost nine years of seniority for employee privileges.  Claimant 
 
         sustained a 7 percent permanent physical impairment.  Even though 
 
         claimant could perform his old job 100 percent he was awarded 35 
 
         percent industrial disability.  His actual losses were wage and 
 
         pension plan losses of (18%) indefinitely, his physical 
 
         impairment (7%), his vacation, health insurance premiums and 
 
         seniority losses.  His earnings capacity losses were:  (1) 
 
         continued pain and numbness in his leg; (2) sleep disturbance and 
 
         leg stiffness; (3) occasional flare-ups; (4) aspects of work 
 
         agitate his condition; (5) eleventh grade education without 
 
         G.E.D.; and (6) claimant is a manual labor type of employee with 
 
         a back injury that required surgery and had a workers' 
 
         compensation claim as a future competitor in the competitive 
 
         labor market.
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                      5-1800
 
                      Filed August 15, 1991
 
                      PATRICIA J. LANTZ
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
                      :
 
            STEPHEN V. GREENHORN,    :
 
                      :
 
                 Claimant, :
 
                      :
 
            vs.       :
 
                      :      File No. 804084
 
            SAVE-U-MORE FOOD STORE,  :
 
                      :    A R B I T R A T I O N
 
                 Employer, :
 
                      :      D E C I S I O N
 
            and       :
 
                      :
 
            EMPLOYERS MUTUAL CASUALTY,    :
 
                      :
 
                 Insurance Carrier,  :
 
                 Defendants.    :
 
            ___________________________________________________________
 
            
 
            5-1800
 
            Claimant fell from ladder and the eventual diagnosis was 
 
            aggravation of spondylolithesis.
 
            Claimant awarded 10 percent industrial disability.
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                            
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         DANIEL J. CAMPBELL,
 
         
 
              Claimant,
 
         
 
         VS.
 
                                                       FILE NO. 804104
 
         UMTHUN TRUCKING CO.,
 
                                                    A R B I T R A T I 0 N
 
              Employer,
 
                                                       D E C I S I 0 N
 
          and
 
         
 
         INTERCONTINENTAL INSURANCE,
 
         MGRS.,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
                                   INTRODUCTION
 
         
 
              This is a proceeding in arbitration brought by Daniel J. 
 
         Campbell against Umthun Trucking Company, his former employer, 
 
         and Intercontinental Insurance Managers.  The case was heard at 
 
         Burlington, Iowa on November 3, 1986 and was fully submitted upon 
 
         conclusion of the hearing.  The record in the proceeding consists 
 
         of testimony from Daniel J. Campbell and Kenneth A. Scott.  The 
 
         record also includes exhibits 1 & 2, 4 through 25, and 29 & 30.  
 
         Claimant's objection to exhibit 3 is sustained.  The offense of 
 
         fraudulent practice in the third degree is an aggravated 
 
         misdemeanor under Code section 714.11, not a felony.  In view of 
 
         the nature of the proceeding the matters obtained in exhibit 3 
 
         are likewise not shown to be relevant as character evidence.
 
         
 
                                      ISSUES
 
         
 
              Claimant seeks benefits as the result of an alleged injury 
 
         of August 8, 1985.  The case carries a full slate of issues 
 
         including whether or not claimant received an injury which arose 
 
         out of and in the course of employment; whether a causal 
 
         relationship exists between the alleged injury and any 
 
         disability; determination of entitlements to compensation for 
 
         temporary total disability or healing period; and determination 
 
         of liability for section 85.27 benefits.  Defendants urge that 
 
         claimant made a false representation on his application for 
 
         employment which relieves the employer from liability.  The 
 
         employer's position is supported by an excellent brief filed by 
 
         defense counsel.
 
         
 
         
 
                             SUMMARY OF EVIDENCE
 
         
 
              The following is only a brief summary of pertinent evidence. 
 

 
         
 
         
 
         
 
         CAMPBELL V. UMTHUN TRUCKING CO.
 
         Page   2
 
         
 
         
 
         All evidence received at the hearing was considered when 
 
         deciding this case.
 
         
 
              Daniel J. Campbell is a 43 year old married truck driver.  
 
         Campbell testified that on a date of which he was uncertain, 
 
         while at a town in Missouri of which he was uncertain, he fell 
 
         from his truck when an "O" ring broke while he was tightening a 
 
         tarp.  Campbell stated that he fell against the tractor and then 
 
         to the ground.  He stated that it happened so fast that he could 
 
         not be certain of how he actually fell.  He testified that he was 
 
         taken by a colored man to a clinic where an examination found 
 
         nothing abnormal but he was provided with a sling.  Campbell 
 
         stated that he experienced and made complaints of stiffness and 
 
         numbness in his right arm.
 
         
 
              Campbell testified that he notified the employer of the 
 
         incident and then drove the truck home where he entered into a 
 
         course of medical care administered by a number of employer 
 
         authorized physicians including Donald MacKenzie, M.D., Jerry M. 
 
         Jochims, M.D., Koert Smith, M.D., G. W. Howe, M.D., and James V. 
 
         Worrell, M.D.
 
         
 
              Claimant testified that the care has not relieved his 
 
         complaints and that he continues to experience headaches and 
 
         numbness in his arm.  Drs. Howe, Smith, MacKenzie and Worrell 
 
         have diagnosed claimant as having herniated cervical discs at the 
 
         C5-6 and C6-7 levels (Exhibits 18 & 24, Exhibit 25, page 6 and 
 
         Exhibit 30, pages 17 & 18).
 
         
 
              At one point in time Dr. Jochims declined to provide further 
 
         care to claimant because he perceived claimant to be 
 
         misrepresenting things to him.  In exhibit 9, a report from Dr. 
 
         Jochims dated January 7, 1985, he indicates that he had treated 
 
         claimant for an alleged work injury with J. I. Case Company in 
 
         1977 and was later called as an expert witness in the case.  When 
 
         claimant saw Dr. Jochims for the currently litigated injury he 
 
         denied ever having seen Dr. Jochims previously and further denied 
 
         ever having been employed by J. I. Case (Ex. 9).
 
         
 
              Drs.  MacKenzie, Howe and Worrell are all of the opinion 
 
         that claimant's condition is such that surgery is indicated (Ex. 
 
         23,. 24 & 25, p. 7).  Dr. Worrell felt that there was a causal 
 
         connection between the condition he found in claimant's cervical 
 
         spine and the alleged injury of August 8, 1985, but he was 
 
         unaware that claimant had seen Dr. MacKenzie for neck pain in 
 
         1984 (Ex. 25, pp. 8-10).  Dr. Worrell felt that the spurring that 
 
         he observed in diagnostic tests concerning claimant's cervical 
 
         spine had existed prior to August 8, 1985, but that the cause of 
 
         disc herniation could be anything (Ex. 25, p. 6).  Dr. MacKenzie 
 
         felt that the spurring and degeneration observed in claimant's 
 
         cervical spine was a progressive condition that had occurred 
 
         subsequent to a traumatic injury and that would have occurred at 
 
         least nine to 12 months before November 7, 1985.  X-rays from 
 
         January, 1985, did not show spurring (Ex. 30, pp. 24-26).  Dr. 
 
         MacKenzie stated that the accident of August, 1985, may have 
 
         excerbated and accelerated the need for surgery but that he was 
 
         certain that by the time the August, 1985, alleged injury 
 
         occurred that disc degeneration was well underway (Ex. 30, p. 
 
         28).
 

 
         
 
         
 
         
 
         CAMPBELL V. UMTHUN TRUCKING CO.
 
         Page   3
 
         
 
         
 
         
 
              When claimant applied for employment with Umthun,Trucking 
 
         Company, he made several misrepresentations of fact on his 
 
         employment application.  He denied ever having been injured on 
 
         the job yet his testimony has revealed at least three claims for 
 
         workers' compensation benefits, some of which resulted in 
 
         payments to him.  He also denied ever receiving workers' 
 
         compensation on the application form.  Claimant misrepresented 
 
         his prior employment history by indicating approximately 10 years 
 
         of continuous employment with Earl Lumsden Trucking, a business 
 
         which he admitted had never existed.  At hearing claimant 
 
         admitted that he had been employed by several employers.  On the 
 
         application claimant indicated that he had received his last 
 
         physical examination by a Dr. Seitz on May 16, 1984, when in fact 
 
         he had been examined by Dr. MacKenzie on January 29, 1985, only 
 
         two days prior to the date he filled out the application.  
 
         Exhibit 7 shows claimant to have made complaints on January 29, 
 
         1985, which are similar to those he urges arose from the alleged 
 
         injury of August, 1985.  When claimant took his preemployment 
 
         physical for Umthun he failed to disclose the previous problems 
 
         he had been having with his back and neck.  Claimant's 
 
         misrepresentations made to Dr. Jochims have already been referred 
 
         to.
 
         
 
                           APPLICABLE LAW AND ANALYSIS
 
         
 
              Claimant has the burden of proving by a preponderance of the 
 
         evidence that he received an injury on August 8, 1985 which arose 
 
         out of and in the course of his employment.  McDowell v. Town of 
 
         Clarksville, 241 N.W.2d 904 (Iowa 1976); Musselman v. Central 
 
         Telephone Co., 261 Iowa 352, 154 N.W.2d 128 (1967).
 
         
 
              Claimant's petition sets forth an alleged injury date of 
 
         July 8, 1985.  The first report of injury on file indicates an 
 
         injury date of August 8, 1985.  There is reference in the record 
 
         in the first report of injury and in some medical reports that 
 
         indicates that claimant was seen and x-rayed at a clinic in 
 
         Murphy, Missouri.  No records, however, from that institution are 
 
         in evidence.  The condition of which claimant complains is one 
 
         which is not obvious from simple observation.  Whether the 
 
         alleged incident on which he bases his claim occurred on August 8 
 
         or July 8, 1985 is not of particular importance when the evidence 
 
         from the medical practitioners indicates that the cervical spine 
 
         spurring was a condition which would have preexisted either date. 
 
          Exhibit 6 clearly shows that claimant complained of an injury 
 
         arising from falling off a truck on November 28, 1984 and then 
 
         made complaints of pain involving his neck and numbness in his 
 
         right hand on January 29, 1985 (Ex. 7).  From the objective 
 
         evidence in the record, it would appear that the condition of 
 
         claimant's cervical spine is as likely related to the November, 
 
         1984, incident as to any alleged incident from July or August of 
 
         1985.
 
         
 
              It is only by claimant's subjective complaints that a 
 
         determination can be made regarding the source or sources of the 
 
         problem in his cervical spine.  Claimant appeared at hearing 
 
         where his appearance and demeanor were observed.  The record is 
 
         replete with instances of where he has made misrepresentations in 
 
         order to get whatever it may have been that he wanted.  At 
 

 
         
 
         
 
         
 
         CAMPBELL V. UMTHUN TRUCKING CO.
 
         Page   4
 
         
 
         
 
         hearing he stated that his memory is unreliable.  It is found 
 
         that claimant has failed to establish his credibility as a 
 
         witness.  Accordingly, his testimony cannot be relied upon.  The 
 
         complaints of which Campbell testified at hearing are not greatly 
 
         different from those which appear in the progress notes of Dr. 
 
         MacKenzie for January 29, 1985 found in exhibit 7.  Claimant has 
 
         been employed as a truck driver subsequent to July and August of 
 
         1985 and the fact that he was employed with Umthun for 
 
         approximately five months is not a particularly persuasive 
 
         indication that his condition has in any way worsened beyond the 
 
         normal progressive nature of the degenerative condition as 
 
         indicated by Dr. MacKenzie.  The alleged injury of July or 
 
         August, 1985, appears quite similar to the injury alleged to have 
 
         occurred in November, 1984, as both appear to deal with falling 
 
         from a truck.  The alleged injury was unwitnessed and is not 
 
         corroborated by any evidence confirming that claimant fell from 
 
         the truck.  When all of the evidence as a whole is considered and 
 
         given the weight which it deserves, it is found that claimant has 
 
         failed to prove by a preponderance of the evidence that he fell 
 
         from a truck in July or August of 1985.   He has failed to prove 
 
         by a preponderance of the evidence that he sustained an injury 
 
         that arose out of and in the course of his employment in July or 
 
         August of 1985.  He has failed to prove that the complaints which 
 
         he voiced at hearing and for which he has received medical 
 
         treatment are related in any way to any injury that occurred 
 
         while he was employed by Umthun Trucking Company.
 
         
 
              The fact that the employer and its insurance carrier have 
 
         paid benefits to claimant does not constitute an admission of 
 
         liability.  Code sections 85.26 and 86.13.
 
         
 
                                 FINDINGS OF FACT
 
         
 
              1.  Daniel J. Campbell is a resident of the State of Iowa 
 
         who was employed by Umthun Trucking Company as a truck driver 
 
         from February, 1985 through August, 1985.
 
         
 
              2.  Daniel J. Campbell misrepresented facts dealing with his 
 
         medical history and employment history when he applied for 
 
         employment with Umthun Trucking Company.  He misrepresented 
 
         material facts concerning his medical history when seen by Dr. 
 
         Harding for his preemployment physical and when seen by Dr. 
 
         Jochims for purposes of treatment for the alleged injury upon 
 
         which this claim is based.
 
         
 
              3.  Claimant is not a credible witness and his testimony 
 
         cannot be relied upon.
 
         
 
              4.  Daniel J. Campbell has failed to prove that he sustained 
 
         any injury by falling off a truck in July or August of 1985 while 
 
         he was employed by Umthun Trucking Company.
 
         
 
                                CONCLUSIONS OF LAW
 
         
 
              1.  This agency has jurisdiction of the subject matter of 
 
         this proceeding and its parties.
 
         
 
              2.  Claimant has failed to prove by a preponderance of the 
 
         evidence that he sustained an injury which arose out of and in 
 

 
         
 
         
 
         
 
         CAMPBELL V. UMTHUN TRUCKING CO.
 
         Page   5
 
         
 
         
 
         the course of his employment with Umthun Trucking Company.
 
         
 
                                      ORDER
 
         
 
              IT IS THEREFORE ORDERED that claimant take nothing from this 
 
         proceeding.  The costs of this proceeding are assessed to the 
 
         parties with each responsible for payment of the cost incurred.
 
         
 
         
 
              Signed and filed this 16th day of January, 1987.
 
         
 
         
 
         
 
         
 
                                          MICHAEL G. TRIER
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
         
 
         Copies To:
 
         
 
         Mr. James P. Hoffman
 
         Attorney at Law
 
         Middle Road
 
         Keokuk, Iowa 52632
 
         
 
         Mr. Craig D. Warner
 
         Attorney at Law
 
         321 North Third Street
 
         Burlington, Iowa 52601
 
         
 
 
            
 
 
 
 
 
 
 
 
 
                                                 1402.20
 
                                                 Filed January 16, 1987
 
                                                 MICHAEL G. TRIER
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         DANIEL J. CAMPBELL,
 
         
 
              Claimant,
 
         
 
         VS.
 
                                                    FILE NO. 804104
 
         UMTHUN TRUCKING CO.,
 
                                                 A R B I T R A T I 0 N
 
              Employer,
 
                                                    D E C I S I 0 N
 
         and
 
         
 
         INTERCONTINENTAL INSURANCE
 
         MGRS.,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         
 
         1402.20
 
         
 
              The record was replete with misrepresentations that claimant 
 
         had made to his employer.  The record further showed that a prior 
 
         injury had produced symptoms similar to those of which claimant 
 
         complained at hearing and would have brought him to the point of 
 
         having symptoms similar to those of which he voiced complaint at 
 
         hearing.  Where the alleged injury was unwitnessed and generally 
 
         uncorroborated by any objective evidence or disinterested 
 
         witness, claimant was found to have failed to have carried the 
 
         burden of proving that he sustained an injury that arose out of 
 
         and in the course of employment.
 
 
 
         
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            FRANK WILLIAMS,               :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :      File No. 804198
 
            IOWA PAVING CONTRACTORS, INC.,:
 
            (IOWA PAVERS),                :
 
                                          :        A P P E A L
 
                 Employer,                :
 
                                          :      D E C I S I O N
 
            and                           :
 
                                          :
 
            AETNA CASUALTY & SURETY CO.,  :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
                                        
 
            
 
                              statement of the case
 
            
 
                 Claimant appeals from an arbitration decision denying 
 
            claimant benefits for an alleged injury which occurred on or 
 
            about September 12, 1985.
 
            
 
                 The record on appeal consists of the transcript of the 
 
            arbitration and defendants' exhibits 1 through 24.  Both 
 
            parties filed briefs on appeal.  Claimant filed a reply 
 
            brief.
 
            
 
                                      issues
 
            
 
                 Claimant states the issues on appeal are:
 
            
 
                 1.  Whether the deputy erred in refusing to admit 
 
            claimant's witness and exhibits into evidence.
 
            
 
                 2.  Whether the deputy erred in ruling that the 
 
            claimant failed to prove that his injury arose out of and in 
 
            the course of his employment.
 
            
 
                              review of the evidence
 
            
 
                 The arbitration decision dated August 26, 1988 
 
            adequately and accurately reflects the pertinent evidence 
 
            and it will not be reiterated herein.
 
            
 
                                  applicable law
 
            
 
                 The citations of law in the arbitration decision 
 
                 are appropriate to the issues and evidence.
 
            
 
                                     analysis
 
            
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
                 The analysis of the evidence in conjunction with the 
 
            law in the arbitration decision is adopted.
 
            
 
                 Doerfer Division of CCA v. Nicol, 359 N.W.2d 428 (Iowa 
 
            1984), states that the statute is to be liberally construed 
 
            in favor of the worker.  It does not, however, stand for the 
 
            proposition that the facts should be liberally construed.  
 
            Inconsistent facts are resolved by the trier of fact based 
 
            upon his or her expertise and special knowledge.  The 
 
            statues, not facts, are construed liberally.
 
            
 
                                 findings of fact
 
            
 
                 1.  Claimant was not a credible witness.
 
            
 
                 2.  At hearing, claimant alleged that on or about 
 
            September 12, 1985 while he was working with three other 
 
            employees of Iowa Paving Contractors, a screet weighing 
 
            approximately 400-600 pounds fell on his right shoulder.
 
            
 
                 3.  Claimant could identify September 12, 1985 only as 
 
            a "possible" injury date.
 
            
 
                 4.  Claimant provided various explanations of how his 
 
            injury occurred.
 
            
 
                 5.  Claimant provided various histories with regard to 
 
            the course of his pain and symptoms.
 
            
 
                 6.  Claimant failed to present credible evidence to 
 
            sustain his burden that he incurred an injury which arose 
 
            out of and in the course of his employment.
 
            
 
                                conclusion of law
 
            
 
                 Claimant failed to sustain his burden that he incurred 
 
            an injury which arose out of and in the course of his 
 
            employment.
 
            
 
                 WHEREFORE, the decision of the deputy is affirmed.
 
            
 
                                      order
 
            
 
                 THEREFORE, it is ordered:
 
            
 
                 That claimant is entitled to take nothing from this 
 
            proceeding
 
            
 
                 That claimant pay the costs of this action including 
 
            the costs of transcription of the arbitration hearing.
 
            
 
                 Signed and filed this ______ day of February, 1990.
 
            
 
            
 
            
 
                                         ___________________________
 
                                              DAVID E. LINQUIST
 
                                           INDUSTRIAL COMMISSIONER
 
            
 
                 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            Copies To:
 
            
 
            Mr. Donald Gonnerman
 
            Attorney at Law
 
            212 Equitable Bldg.
 
            Des Moines, Iowa 50309
 
            
 
            Ms. Lorraine J. May
 
            Attorney at Law
 
            4th Flr., Equitable Bldg.
 
            Des Moines, Iowa 50309
 
            
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                          1401, 1402.20
 
                                          Filed February 26, 1990
 
                                          DAVID E. LINQUIST
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            FRANK WILLIAMS,               :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :      File No. 804198
 
            IOWA PAVING CONTRACTORS, INC.,:
 
            (IOWA PAVERS),                :
 
                                          :        A P P E A L
 
                 Employer,                :
 
                                          :      D E C I S I O N
 
            and                           :
 
                                          :
 
            AETNA CASUALTY & SURETY CO.,  :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
            1401, 1402.20
 
            Claimant was not a credible witness.  Claimant could 
 
            identify September 12, 1985 as a "possible" injury date and 
 
            provided various explanations of how his injury occurred.  
 
            Since claimant was unable to provide a consistent 
 
            explanation, he failed to sustain his burden that he 
 
            incurred an injury which arose out of and in the course of 
 
            his employment.
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                    BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         FRANK WILLIAMS,
 
         
 
              Claimant,
 
                                                  File No. 804198
 
         vs.
 
         
 
         IOWA PAVING CONTRACTORS, INC.,       A R B I T R A T I O N
 
         (IOWA PAVERS)
 
                                                 D E C I S I O N
 
              Employer,
 
         
 
         and
 
         
 
         AETNA CASUALTY & SURETY CO.,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
                              STATEMENT OF THE CASE
 
         
 
              This is a proceeding in arbitration brought by Frank 
 
         Williams, claimant, against Iowa Pavers, employer, and Aetna 
 
         Casualty & Surety Co., insurance carrier, to recover benefits 
 
         under the Iowa Workers' Compensation Act as a result of an 
 
         alleged injury of September 11, 1985.  This matter came on for 
 
         hearing before the undersigned deputy industrial commissioner 
 
         February 18, 1988.  The record was considered fully submitted 
 
         upon the receipt of the parties' briefs April 4, 1988.
 
         
 
              At the time of the hearing, defendants objected to all of 
 
         claimant's witnesses and exhibits on the basis that claimant 
 
         failed to serve a witness/exhibit list on defendants until 
 
         February 10, 1988, some nine days before hearing.  The hearing 
 
         assignment order, entered October 29, 1987, provides, in 
 
         pertinent part:
 
         
 
              6.  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 timely served upon an opposing party as 
 
              ordered herein. (Emphasis Original)
 
         
 
              Compliance with this order is clearly not optional.  This 
 
         order was not entered by the undersigned and is not, therefore, 
 
         subject to alteration or modification by the undersigned as one 
 
         industrial commissioner has neither the authority nor the 
 
         jurisdiction to overrule or change another deputy's order.  Swift 
 
         v. Allied Construction Services, Inc., (Appeal Decision filed 
 
         June 24, 1988).  Therefore, as there is no dispute claimant did 
 
         not serve a witness and exhibit list in accordance with the 
 
         hearing assignment order, defendants' objection to all of 
 

 
         
 
         
 
        WILLIAMS V. IOWA PAVING CONTRACTORS 
 
        PAGE 2
 
 
 
         
 
         claimant's witnesses and exhibits is sustained.  Claimant's 
 
         exhibits A, B, C, D, E and F and the testimony of Leslie Duncan 
 
         are not admitted into evidence and were not considered in 
 
         arriving at this decision.  It is, however, reasonable to assume 
 
         that a complainant in any matter will testify on their own behalf 
 
         even absent the service of a witness list.  Therefore, claimant's 
 
         testimony will be accepted.  Accordingly, the record in this 
 
         matter consists of the testimony of claimant, Andrea Ferm and 
 
         Douglas Ackerman; claimant's exhibits G and H; and defendants' 
 
         exhibits 1 through 24, inclusive.
 
         
 
                                  ISSUES
 
         
 
              Pursuant to the prehearing report and order submitted and 
 
         approved February 18, 1988, the following issues are presented 
 
         for resolution:
 
         
 
              1.  Whether the claimant sustained an injury which arose out 
 
         of and in the course of his employment;
 
         
 
              2.  Whether the alleged injury is the cause of temporary 
 
         and/or permanent disability;
 
         
 
              3.  Claimant's entitlement to weekly benefits;
 
         
 
              4.  The applicability of the odd-lot doctrine;
 
         
 
              5.  The appropriate rate of compensation; and
 
         
 
              6.  Claimant's entitlement to certain medical expenses 
 
         provided by Iowa Code section 85.27.
 
         
 
                                 FACTS PRESENTED
 
         
 
              Claimant testified that on or about September 12, 1985 
 
         (which he identified as a "possible" date), he was working with 
 
         three other employees of Iowa Paving Contractors helping to put a 
 
         screet onto a cart when another employee slipped and claimant 
 
         caught the weight of the machinery on his shoulder.  Claimant 
 
         stated he felt "very little" burning sensation in his right 
 
         shoulder and that he continued to work out his shift that day, 
 
         assisting to pour concrete.  Claimant explained he later advised 
 
         his foreman that his shoulder was "killing" him.  On October 24, 
 
         1985, claimant gave a statement to Marji Shade of the employer's 
 
         insurance company concerning how the alleged injury happened 
 
         stating:
 
         
 
         
 
              Q.  O.K. Can you tell me how the accident happened?  
 
              From start to finish.
 
         
 
              A.  Well, I really don't know really how it happened.  
 
              We just picked --picking up a lot of heavy stuff, 
 
              picked up a log 29 feet long and we had to pick it up 
 
              over our heads with the motors on it.  And we was 
 
              picking up 10 inch forms and throwing them to the 
 
              people and they weigh             400 pounds.  That's 
 
              the only thing I know I done.  That's--I cannot say one 
 
              situation was--you know, what caused it cause I don't 
 
              know.
 
         
 
              Q.  O.K.  There wasn't a specific occurrence?
 
         
 
              A.  No, maam. [sic]
 
         
 
              Q.  O.K.
 
         
 
              A.  Far as I know, I mean I felt good when we was 
 
     
 
         
 
         
 
         
 
         
 
         WILLIAMS V. IOWA PAVING CONTRACTORS
 
         PAGE   3
 
         
 
         
 
              picking up the forms and when we picked the shortly 
 
              after that I had a hurting in my shoulder and it got 
 
              worse nobody could even touch it.
 
         
 
              Q.  O.K.  About how long was that, sir?
 
         
 
              A.  I worked rest of that week and went to a doctor in 
 
              Oskaloosa and he said I pulled a muscle.
 
         
 
         (Defendants' Exhibit 17)
 
         
 
              At hearing, claimant could not recall whether or not he 
 
         worked the day following this incident but did remember that on 
 
         the weekend, while cleaning closets for a rummage sale with his 
 
         wife, his wife reached for his shoulder for support and that he, 
 
         at that time, "went to the ground."  Claimant offered that he 
 
         went to the emergency room at Mahaska Hospital but did not 
 
         identify any treatment rendered there.
 
         
 
              Claimant testified that he worked for about three days after 
 
         this but that his shoulder was very painful.  He stated he sought 
 
         treatment at the University of Iowa Hospitals and Clinics at a 
 
         time when he was in Iowa City where he was advised to rest and 
 
         given a sling and cervical collar to wear.  Claimant denied 
 
         working during the month of October 1985 but he admitted he 
 
         "might have hauled wood" during November 1985.  Claimant stated 
 
         he tried to go out and do what he used to be able to do but that 
 
         he could not due to headaches, hand swelling to where he could 
 
         not close his fist and pain in his shoulder and neck.  Claimant 
 
         denied that he has worked anywhere since December 1985 although 
 
         he applied for and was granted unemployment insurance benefits in 
 
         1986.
 
         
 
              Claimant testified he continued to seek treatment for his 
 
         pain and that he was released by his doctor in approximately May 
 
         1986 after his doctor told him to retire and that the physician 
 
         "could not do anything more" for him in the way of treatment.  
 
         Claimant maintained he continues to suffer from serious headaches 
 
         and that he takes up to 38 aspirins per day.  Claimant stated 
 
         that in September 1986 after attempting a job which required he 
 
         unload water softener he was "down for two days" and that in the 
 
         summer of 1986 he tried to sell loads of wood in Colo, Iowa, but 
 
         he could not drive, his arms swelled and his neck hurt after only 
 
         two hours of work.  Claimant explained that in the winter of 1987 
 
         each attempt he made at cutting firewood (i.e. using a chain saw 
 
         from 15 minutes to four hours per day) caused him to "go down" 
 
         and that at most he could average two loads of wood per week.
 
         
 
              Claimant testified that prior to this September 1985 
 
         incident his health was good and that he was able to lift a 
 
         "couple hundred pounds."  Claimant alleges that as a result of 
 
         the September 1985 incident he continues to experience problems 
 
         with his hands, arm, shoulder, neck, headaches, back, legs and 
 
         with high blood pressure.
 
         
 
              Andrea Ferm, who identified herself as a rehabilitation 
 
         analyst and nurse with Principal Financial, testified she first 
 
         made contact with claimant in late January 1988 and set a goal to 
 
         place claimant in a job suitable to his capabilities.  She 
 
         explained she reviewed all available medical records and that 
 
         based on the restrictions placed on claimant by his physicians, 
 
         claimant would be able to do work in the sedentary, light or 
 
         medium work categories.  Ms. Ferm stated that when she contacted 
 

 
         
 
         
 
         
 
         WILLIAMS V. IOWA PAVING CONTRACTORS
 
         PAGE   4
 
         
 
         
 
         claimant's physician to inquire into whether or not claimant 
 
         would be able to perform "light" delivery work or "light" 
 
         fabrication work, no objection was raised by the doctor (Hines).
 
         
 
              Ms. Ferm testified claimant was advised of a part-time 
 
         position as a motor route driver with the Ottumwa courier (for 
 
         which claimant has not applied according to claimant's testimony) 
 
         and a position with Norris Asphalt Paving as a flagman-pilot car 
 
         driver on main and side roads.  (Note:  At the time of the 
 
         hearing, this employer had been called out of town and an 
 
         intention was expressed that a follow-up on this job would be 
 
         made).  Ms. Ferm explained this position paid between $5.25 and 
 
         $6.50 per hour and that the lower wage mentioned to claimant was 
 
         deemed unsatisfactory by him.
 
         
 
              Douglas Ackerman, who identified himself as a senior claim 
 
         representative with Aetna Casualty & Surety, testified he is 
 
         currently "in charge" of claimant's claim and that claimant had 
 
         been paid $189.84 per week since September 12, 1985 for a total 
 
         payment of $11,741.84.
 
         
 
              Thomas Carlstrom, M.D., Neurosurgeon, testified he saw 
 
         claimant on one occasion, August 11, 1985, during which time he 
 
         attempted to take a history, conducted a physical and 
 
         neurological examination and took the opportunity to review 
 
         previous test results and treatment records.  Dr. Carlstrom 
 
         stated the physical examination was generally normal except for 
 
         some objective sensory changes in the arm and that the only "true 
 
         objective abnormality" he was able to find was that one reflex 
 
         was slightly hypoactive on the right side in the right arm.  Dr. 
 
         Carlstrom explained claimant gave a history that in September 
 
         1985, 400 to 600 pounds fell on his right shoulder.  However, Dr. 
 
         Carlstrom also stated during the course of his deposition that:
 
         
 
              A.  ...He described to me a variety of symptoms that 
 
              were changed during the exam, and I after talking with 
 
              him used the art of medicine to convince myself that I 
 
              wasn't going to get very far with him in terms of 
 
              trying to figure out from his history exactly what had 
 
              happened;...
 
         
 
         (Def. Ex. 1, p. 25)
 
         
 
              With the history of 400 to 600 pounds falling on claimant's 
 
         shoulder, Dr. Carlstrom opined that any complaints claimant might 
 
         have relative to his low back and leg pain, headaches, numbness 
 
         and high blood pressure would not be related to any such 
 
         incident.  Dr. Carlstrom concluded claimant's symptoms and test 
 
         results were consistent with a brachial plexus injury and 
 
         originally opined on August 19, 1987 that claimant had an 
 
         impairment of five to ten percent of the upper right extremity 
 
         and two to three percent of the body as a whole.  However, Dr. 
 
         Carlstrom had no recommendation for any specific further 
 
         treatment, encouraged rather than discouraged activity, did not 
 
         place any restrictions on claimant and finally testified that 
 
         according to the AMA Guidelines "I shouldn't have given him 
 
         anything. (Def. Ex. 1, p. 30)  Discussing the nature of a 
 
         brachial plexus injury, Dr. Carlstrom explained that it is just 
 
         about always associated with a traumatic event and that it would 
 
         be "just about impossible" to have a time lapse of any sort 
 
         between the traumatic event and the onset of symptoms as 
 
         described by claimant in that pain should begin immediately.  Dr. 
 
         Carlstrom concluded:
 

 
         
 
         
 
         
 
         WILLIAMS V. IOWA PAVING CONTRACTORS
 
         PAGE   5
 
         
 
         
 
         
 
              Q.  Doctor Carlstrom, if, in fact, the history that Mr. 
 
              Williams gave that the onset of his pain was several 
 
              hours after the alleged incident -- and this time, I'm 
 
              talking about his history where he said an object four- 
 
              to six-hundred pounds fell on his shoulder -- if there 
 
              was no onset of pain for a few hours after that injury, 
 
              would it still be your opinion that the brachial plexus 
 
              injury which has been the working diagnosis in his case 
 
              resulted from that incident?
 
         
 
              A.  Well, if that were, in fact, the case, I would 
 
              think that, no, it did not occur with that incident.
 
         
 
         (Def. Ex. 1, p. 43)
 
         
 
              The medical records of the University of Iowa Hospitals and 
 
         Clinics give a history that claimant was originally injured in 
 
         early September 1985 when he "felt a pop in his shoulder and had 
 
         pain and discomfort in the region of the AC joint" as he was 
 
         working on the job while lifting a heavy weight.  When seen 
 
         September 26, 1985 by William F. Blair, M.D., claimant was 
 
         diagnosed as having a first degree AC separation and placed in a 
 
         sling to wear on an as-needed basis.  One month later, claimant 
 
         was found to have full range of motion of the shoulder but 
 
         maximal tenderness over the right AC joint.  When seen on 
 
         November 5, 1985, claimant stated he had had cervical spine pain 
 
         located primarily over the,left side since mid-September 1985 
 
         which the doctors opined was not related to the right arm pain.  
 
         Claimant received an injection into the right AC joint and when 
 
         next seen on November 26, 1985 was encouraged to return to work 
 
         December 9, 1985 after refusing a further non-steroidal 
 
         injection.  Claimant returned to see Dr. Blair April 8, 1986 and 
 
         an arthrogram, to rule out the possibility of rotator cuff 
 
         pathology, was scheduled for April 22, 1986.  Review of the right 
 
         shoulder arthrogram radiographs showed:
 
         
 
              1)  right AC joint arthritis, 2) s/p right shoulder 
 
              injury by history with no evidence of tear or 
 
              arthrographic examination.  In addition, there was 
 
              noted to be small osteophytes present on the inferior 
 
              margin of the humeral head and some narrowing of the 
 
              cartilage shadow on the arthrogram.
 
         
 
         (Def. Ex. 5)
 
         
 
              On May 26, 1986, Dr. Blair concluded:
 
         
 
                 Mr. Williams' basic problem, degenerative joint 
 
              disease of the right glenohumeral and acromial 
 
              clavicular joints, are not directly related to the 
 
              accident that he experienced at work.  However, this 
 
              accident may well have exacerbated his underlying 
 
              condition, resulting in an increased pain experience.  
 
              His physical findings and symptoms have been suggestive 
 
              of an inflammatory process in his rotator cuff and in 
 
              his biceps tendon, both of which are features of the 
 
              exacerbation of his underlying condition.  In my 
 
              opinion, Mr. Williams has a permanent impairment of the 
 
              right upper extremity and of the whole man.
 
         
 
                 Generally, I rely on the AMA Guidelines to the 
 
              Evaluation of Permanent Impairment.  In Mr. Williams' 
 

 
         
 
         
 
         
 
         WILLIAMS V. IOWA PAVING CONTRACTORS
 
         PAGE   6
 
         
 
         
 
              circumstance, his range of motion, although 
 
              intermittently painful, has been nearly normal.  This 
 
              observation has varied with the examination, depending 
 
              upon his pain experience and his determination to 
 
              particpate [sic] in the range of motion assessment.  
 
              Therefore, I am going to depart from guidelines and 
 
              give my impairment rating on an experience based 
 
              opinion.  I estimate his impairment of the right upper 
 
              extremity to be 10% which is equivalent to a 6% 
 
              impairment of the whole man.
 
         
 
         (Def. Ex. 5)
 
         
 
              Marc Edward Hines, M.D., Neurologist, in a letter dated 
 
         January 15, 1987, discussing the results of an EMG nerve 
 
         conduction velocity, relayed claimant's history as:
 
         
 
                 This patient is a 50-year-old, non-hypertensive, 
 
              non-diabetic, non-smoker, non-drinker, and tobacco 
 
              chewer who, on September 11, 1985, had a 400-600 pound 
 
              "screet" fall on his right shoulder.  He had no 
 
              immediate problem, but about 5:30 - 6 P.M., began 
 
              having the onset of soreness in his right shoulder.
 
         (Def. Ex. 6)
 
         
 
              Dr. Hines could not relate claimant's high blood pressure to 
 
         the injury or medications he was taking as claimant's blood 
 
         pressure was very consistently and persistently elevated.  Dr. 
 
         Blair stated: "Frankly, I think that he has a spontaneous 
 
         essential hypertension and that this is a separate and distinct 
 
         condition not related to his injury or his treatment for his 
 
         injury." (Def. Ex. 3, p. 26)  With regard to claimant's 
 
         complaints of low back pain, Dr. Hines stated that while the 
 
         alleged event of September 1985 may have caused such pain, he 
 
         "would have a much harder time drawing a direct relationship 
 
         between the back pain that is in his injury--I would be hesitant 
 
         to do so.  I don't think I have sufficient information to make 
 
         that connection." (Def. Ex. 3, pp. 39-40) When asked whether or 
 
         not the lower back pain could be caused by degenerative disc 
 
         disease, Dr. Hines stated that claimant does not have a herniated 
 
         or slipped disc but that in no way excludes the fact that he has 
 
         arthritis in his back causing the back pain.  Dr. Hines stated 
 
         that:
 
         
 
              Q.  I guess what you're saying is that it's possible 
 
              either way.  It is possible that if he did have a 
 
              degenerative condition that was causing these symptoms, 
 
              that whatever occurred on September 11th did not 
 
              exacerbate the condition.
 
         
 
                  A.  Well, it's possible.
 
         
 
         (Def. Ex. 3, p. 47)
 
         
 
              With regard to claimant's headaches being related to a 
 
         brachial plexus stretch injury, Dr. Hines stated that it was 
 
         entirely possible that the pain claimant was experiencing 
 
         triggered his migraines but for claimant to have migraines it 
 
         would be assumed that claimant must have had some underlying 
 
         tendency to them.
 
         
 
              The report of Steven A. Adelman, D.O., of Neurological 
 
         Associates of Des Moines, P.C., shows claimant was seen by him in 
 

 
         
 
         
 
         
 
         WILLIAMS V. IOWA PAVING CONTRACTORS
 
         PAGE   7
 
         
 
         
 
         December 1987 and gave a history of:
 
         
 
              Mr. William [sic] relates the onset of his difficulties 
 
              on September 11, 1985 when he was picking up a 400-600 
 
              pound slab of cement with another worker when the 
 
              worker slipped and Mr. William's [sic] right arm was 
 
              pulled downward.  He felt an aching, but went back to 
 
              work and drove home.  Later that evening he noted that 
 
              his right shoulder was extremely painful ....
 
         (Def. Ex. 15)
 
         
 
                                  APPLICABLE LAW
 
         
 
              An employee is entitled to compensation for any and all 
 
         personal injuries which arise out of and in the course of the 
 
         employment.  Section 85.3(l).
 
         
 
              The claimant must prove by a preponderance of the evidence 
 
         that his injury arose out of and in the course of his employment. 
 
          Musselman v. Central Telephone Co., 261 Iowa 352, 154 N.W.2d 128 
 
         (1967).
 
         
 
              In the course of employment means that the claimant must 
 
         prove his injury occurred at a place where he reasonably may be 
 
         performing his duties.  McClure v. Union, et al., Counties, 188 
 
         N.W.2d 283 (Iowa 1971).
 
         
 
              Arising out of suggests a causal relationship between the 
 

 
         
 
         
 
         
 
         WILLIAMS V. IOWA PAVING CONTRACTORS
 
         PAGE   8
 
         
 
         
 
         employment and the injury.  Crowe v. DeSoto Consolidated School 
 
         District, 246 Iowa 402, 68 N.W.2d 63 (1955).
 
         
 
                                     ANALYSIS
 
         
 
              Of first concern is whether or not claimant sustained an 
 
         injury which arose out of and in the course of his employment.  
 
         Although claimant argues that since defendants have filed a 
 
         "memorandum of agreement" and paid compensation that a good faith 
 
         dispute over whether or not an injury arose out of and in the 
 
         course of employment could not be found, claimant is clearly in 
 
         error.  First, no "memorandum of agreement" was filed in this 
 
         case as claimant's alleged injury took place in September 1985 
 
         well after the memorandum of agreement was abandoned in the state 
 
         of Iowa.  The Iowa Code was amended effective July 1, 1982, to 
 
         abolish the memorandum of agreement system for all injuries 
 
         occurring after that date.  Iowa Code sections 85.27 and 86.13.  
 
         Second, it is a well settled principle in workers, compensation 
 
         in Iowa that the mere payment of compensation benefits does not 
 
         establish liability on behalf of the employer. See, e.g., Ward v. 
 
         North Iowa Express, Inc., 34 Biennial Report of the Iowa 
 
         Industrial Commissioner 338 (1979).  From the time its answer was 
 
         filed to the time of hearing, defendants have disputed that 
 
         claimant sustained an injury which arose out of and in the course 
 
         of his employment.  There has been no admission of liability,
 
         
 
              By observation of the claimant and his demeanor, claimant 
 
         was not a credible witness.  In addition, claimant has given 
 
         various accounts of how this incident occurred and the pattern of 
 
         his symptoms thereafter.  All of this calls into question not 
 
         only claimant's credibility but the credibility of the physicians 
 
         who rendered opinions in this case.
 
         
 
              A review of the evidence shows claimant has given various 
 
         accounts of this alleged injury.  At hearing and at the time that 
 
         he filed his original notice and petition, claimant alleged that 
 
         the injury occurred when he was helping to lift a screet onto a 
 
         cart and it fell on his shoulder.  Claimant relayed to Dr. 
 
         Carlstrom that his symptoms began following an incident where 
 
         400-600 pounds fell on his right shoulder.  However, Dr. 
 
         Carlstrom found claimant to be such a poor historian that little 
 
         weight was given to claimant's explanation.  The emergency room 
 
         record from the University of Iowa Hospitals and Clinics reflects 
 
         a history of shoulder problems beginning when claimant was 
 
         carrying heavy equipment on the job one week prior to his being 
 
         seen at the hospital which resulted in right arm and shoulder 
 
         pain.  Other records reflect that claimant was injured when he 
 
         felt a "pop" in his shoulder and had pain and discomfort in the 
 
         AC joint.  Dr. Hines relays a history that 600 pounds dropped on 
 
         claimant's right shoulder.  Dr. Adelman's history shows claimant 
 
         was injured when his right arm was pulled downward while picking 
 
         up a slab of cement.  When claimants statement was given to a 
 
         representative of defendants' insurance company, he could not 
 
         relay exactly how an accident happened but appeared to have been 
 
         emphatic that there was no specific occurrence which resulted in 
 
         his symptoms.  There either was or was not a specific occurrence.  
 
         When there is only one person testifying as to how something 
 
         occurred and that one person gives a different version of the 
 
         story depending on who he is speaking to, the question does not 
 
         boil down to the "greater weight of evidence."  It boils down to 
 
         a question of credibility and screams for an answer to:  When is 
 
         the witness, if at all, telling the true version of the story?
 
         
 

 
         
 
         
 
         
 
         WILLIAMS V. IOWA PAVING CONTRACTORS
 
         PAGE   9
 
         
 
         
 
              Further, certain medical histories reflect that after the 
 
         "incident" claimant experienced immediate pain while others 
 
         reflect claimant experienced an ache while still others reflect 
 
         that hours passed before the onset of soreness in the shoulder.  
 
         Notwithstanding counsel's attempts to elicit testimony to the 
 
         contrary, Dr. Carlstrom was emphatic that a brachial plexus 
 
         injury results in immediate pain and that it would be just about 
 
         impossible to have a time lapse of any sort between the time of 
 
         injury and the onset of pain.  Thus, the question inevitably 
 
         arises as to exactly when and where this injury occurred and the 
 
         evidence fails to answer that question.  The record is obviously 
 
         replete with inconsistencies and evidence which cannot be 
 
         reconciled.  Claimant testified at the time this alleged injury 
 
         occurred he was working with three other employees and maintained 
 
         that another employee's fall or stumble caused his injury.  
 
         Claimant even identified these individuals by name but clearly 
 
         failed to present any testimony from any of these coworkers which 
 
         might tend to corroborate his story.  Although the statute is to 
 
         be construed liberally in favor of the injured worker, this 
 
         principle cannot be extended so far so as to require an 
 
         adjudicator to resort to assumption, innuendo, speculation and 
 
         "guess work" to arrive at a decision.  There are not small 
 
         variations in claimant's story but rather large inconsistencies 
 
         which simply cannot be ignored.  Perhaps it could be said that 
 
         claimant's failure to stick with one story has led to his own 
 
         demise.  Generally, if a party has the power to produce more 
 
         explicit and direct evidence than it chooses to, it may be fairly 
 
         inferred that the other evidence would lay open deficiencies in 
 
         that party's case.  Crosser v. Iowa Dept. of Public Safety, 240 
 
         N.W.2d 682, 685 Iowa 1976).  Such an inference is appropriate in 
 
         a case where even claimant can identify only a "possible" date of 
 
         injury.
 
         
 
              While the undersigned may not dispute that "something" 
 
         occurred during claimant's employment, "something" is 
 
         insufficient to establish claimant sustained an injury which 
 
         arose out of and in the course of his employment.  It is 
 
         concluded, therefore, that claimant has failed to sustain his 
 
         burden of establishing an injury which arose out of and in the 
 
         course of his employment and accordingly is entitled to nothing 
 
         further from these proceedings.
 
         
 
                                 FINDINGS OF FACT
 
         
 
              Wherefore, based on all the evidence presented, the 
 
         following findings of fact are made.
 
         
 
              1.  Claimant was not a credible witness.
 
         
 
              2.  At hearing, claimant alleged that on or about September 
 
         12, 1985 while he was working with three other employees of Iowa 
 
         Paving Contractors,a screet weighing approximately 400-600 pounds 
 
         fell on his right shoulder.
 
         
 
              3.  Claimant could identify September 12, 1985 only as a 
 
         "possible" injury date.
 
         
 
              4.  Claimant provided various explanations of how his injury 
 
         occurred.
 
         
 
              5.  Claimant provided various histories with regard to the 
 
         course of his pain and symptoms.
 
         
 

 
         
 
         
 
         
 
         WILLIAMS V. IOWA PAVING CONTRACTORS
 
         PAGE  10
 
         
 
         
 
              6.  Claimant failed to present credible evidence to sustain 
 
         his burden that he incurred an injury which arose out of and in 
 
         the course of his employment.
 
         
 
                                CONCLUSION OF LAW
 
         
 
              Wherefore, based on the principles of law previously stated, 
 
         the following conclusion of law is made:
 
         
 
              Claimant has failed to sustain his burden that he incurred 
 
         an injury which arose out of and in the course of his employment 
 
         and is therefore entitled to nothing further from these 
 
         proceedings.
 
         
 
                                      ORDER
 
         
 
              THEREFORE, IT IS ORDERED:
 
         
 
              Claimant is entitled to nothing further from these 
 
         proceedings.
 
         
 
              Costs of this action are assessed against claimant pursuant 
 
         to Division of Industrial Services Rule 343-4.33.
 
         
 
              Signed and filed this 26th day of August, 1988.
 
         
 
         
 
         
 
         
 
                                        DEBORAH A. DUBIK
 
                                        DEPUTY INDUSTRIAL COMMISSIONER
 
         
 
         
 
         
 
         Copies to:
 
         
 
         Mr. Donald Gonnerman
 
         Attorney at Law
 
         212 Equitable Bldg.
 
         Des Moines, IA 50309
 
         
 
         Ms. Lorraine J. May
 
         Attorney at Law
 
         404 Equitable Bldg.
 
         Des Moines, IA 50309
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                              1402.30
 
                                              Filed August 26, 1988
 
                                              Deborah A. Dubik
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         FRANK WILLIAMS,
 
         
 
              Claimant,
 
                                                 File No. 804198
 
         vs.
 
                                              A R B I T R A T I O N
 
         IOWA PAVING CONTRACTORS, INC.,
 
         (IOWA PAVERS)
 
                                                D E C I S I O N
 
              Employer,
 
         
 
         and
 
         
 
         AETNA CASUALTY & SURETY CO.,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         1402.30
 
         
 
              Claimant, who gave various accounts of how his alleged 
 
         injury occurred and various accounts of the onset of pain and 
 
         symptoms, was found not to be a credible witness.  This, coupled 
 
         with the exclusion of claimant's evidence for failure to comply 
 
         with the hearing assignment order, led to the conclusion claimant 
 
         failed to sustain his burden of establishing an injury arising 
 
         out of and in the course of his employment.
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                  BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         WAYNE ALLEN QUILLEN,
 
                                                      File No. 804235
 
              Claimant,
 
                                                   A R B I T R A T I O N
 
         vs.
 
                                                      D E C I S I O N
 
         SMITHWAY MOTOR EXPRESS,
 
         
 
              Employer,                                  F I L E D
 
         
 
         and                                            OCT 27 1989
 
         
 
         LIBERTY MUTUAL INSURANCE CO.,              INDUSTRIAL SERVICES
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
                                   INTRODUCTION
 
         
 
              This is a proceeding in arbitration brought by the claimant 
 
         Wayne Allen Quillen against Smithway Motor Express employer and 
 
         Liberty Mutual Insurance Company insurance carrier, defendants, 
 
         to recover benefits as the result of an alleged injury sustained 
 
         on September 10, 1985.  This matter came on for hearing before 
 
         the undersigned deputy industrial commissioner in Fort Dodge, 
 
         Iowa on the 7th day of September, 1989.  The record consists of 
 
         the testimony of the claimant, claimant's wife, Doris Quillen, 
 
         and Lewis Vierling and claimant's exhibits 1 through 31 and 
 
         defendants' exhibits A, subparts 1 through 9.
 
         
 
                                    ISSUES
 
         
 
              The only issue for resolution is the extent of claimant's 
 
         permanent disability.
 
         
 
                          REVIEW OF THE EVIDENCE
 
         
 
              Claimant testified he completed the eighth grade in 1957 and 
 
         then quit school to support his family by performing farm work. 
 
         Claimant described the various jobs he had prior to becoming 
 
         employed with the defendant employer in 1980.  Claimant's prior 
 
         jobs were basically manual labor involving farm work, general 
 
         labor construction, railroad section crewman, brick and tile 
 
         manufacturing, glove manufacturing, assistant manager and 
 
         mechanic at Standard Oil, brick layer and truck driver.  Claimant 
 
         said he also was in the United States military service three 
 
         years.
 
         
 
              Claimant was first employed by the defendant employer in 
 
         1980 as an over-the-road truck driver.  Claimant said he had no 
 
         additional special or formal education prior to September 10, 
 
                                                
 
                                                         
 
         1985.  Claimant stated he had no injuries prior to September 10, 
 
         1985, except he suffered two broken ribs in a car accident in 
 
         1983.  Claimant said he has never filed a workers' compensation 
 
         case prior to September 10, 1985.  Claimant emphasized he never 
 
         experienced a range of motion problem in his left arm or shoulder 
 
         prior to September 10, 1985.
 
         
 
              Claimant testified that on September 10, 1985 he had a load 
 
         of sheet rock he was delivering for the defendant employer. 
 
         Claimant said he slipped on the edge of the tarp while trying to 
 
         cover his load and fell to the ground.  Claimant said he felt no 
 
         immediate pain until he got on the trailer again to unload. 
 
         Claimant stated his left side and shoulder were hurting.  
 
         Claimant said that he rolled up the tarp after he finished 
 
         unloading.
 
         
 
              Claimant testified that he drove to a truck stop and sought 
 
         medical help.  Claimant indicated he had two broken ribs which 
 
         were the same two ribs he previously broke.  Claimant stated his 
 
         shoulder was dislocated, but that it popped back into place.
 
         
 
              Claimant said he obtained some medicine and called defendant 
 
         employer who told him to wait and see if he could continue 
 
         driving.  Claimant said he felt better and decided to continue 
 
         driving because if he left the truck in Pennsylvania, he would 
 
         not see it again.  Claimant described difficulty driving.  
 
         Eventually, another driver rode with claimant to the home base in 
 
         Fort Dodge, Iowa.
 
         
 
              Claimant sought medical help which included ultrasound and 
 
         physiotherapy.  Claimant said he continued to have pain in his 
 
         left shoulder, down his arm and at the base of his neck.  
 
         Claimant indicated that he had trouble lifting and that he felt a 
 
         very light numbness and tingling.  Claimant testified that Scott 
 
         Neff, D.O., diagnosed a torn rotator cuff, but suggested that 
 
         Robert J. Weatherwax, M.D., in Fort Dodge perform the surgery 
 
         since claimant lived in Fort Dodge.  Surgery was performed by Dr. 
 
         Weatherwax on November 6, 1985.
 
         
 
              Claimant said he has better range.of motion since the 
 
         surgery, but still has the same pain and numbness.  Claimant 
 
         emphasized that he would not have had the surgery if he could 
 
         choose now.  Claimant contends the surgery did not help.
 
         
 
              Claimant said he last visited Dr. Weatherwax in February of 
 
         1988.  Claimant stated his restrictions are:  No lifting over 
 
         5-15 pounds, no overhead motion in lifting, and never drive a 
 
         truck again.
 
         
 
              Claimant said Dr. Weatherwax recommended vocational 
 
         rehabilitation for the claimant approximately six months after 
 
         the surgery.  After completing vocational rehabilitation, 
 
         claimant said he went to Iowa Lakes Community College and 
 
         obtained a GED.
 
         
 
                                                
 
                                                         
 
              Claimant acknowledged he tested at the vocational 
 
         rehabilitation as having cooking aptitude.  Claimant trained in 
 
         the rehabilitation kitchen.  He said he learned to prepare food 
 
         and bake.  Claimant said he had trouble handling the big pots and 
 
         could not hold them to wash.  Claimant said the dishwasher was 
 
         also hard to open.  Claimant's training period was four months, 
 
         September 1986 to January 22, 1987.
 
         
 
              Claimant acknowledged he made no job search since his 
 
         termination with Iowa Community Industries around January 22, 1987 
 
         until he obtained his Coastal Mart job in July of 1988.  
 
         Claimant's workers' compensation ended in April of 1988.
 
         
 
              Claimant emphasized he wanted to be a cook so he followed up 
 
         in the rehabilitation program.  Claimant said he and his wife 
 
         wanted to operate a place of their own.  Claimant explained that 
 
         Iowa Community Industries referred him to Red Lobster in Omaha 
 
         and Cedar Falls.  Claimant contends there was no special training 
 
         or authority given him.  Claimant related a possible job 
 
         interview mix-up between Cedar Rapids and Cedar Falls and Iowa 
 
         Community Industries could not tell the claimant which place was 
 
         correct. Claimant indicated he would have accepted a position 
 
         with the Red Lobster, but decided to go to college in Ankeny in 
 
         August of 1988. Claimant acknowledged that he never did go to 
 
         school as he needed money.  Claimant said he does not intend to 
 
         go to.college.
 
         
 
              Claimant stated he started working for Coastal Mart in July 
 
         of 1988 at $3.35 per hour, 20-30 hours  per week.  Claimant 
 
         indicated he was unable to do this job alone as he has no help and 
 
         the job required loading the cooler, stocking shelves, sweeping 
 
         and mopping in addition to receiving money from customers.  
 
         Claimant said he is having a hard time handling this job.  
 
         Claimant admitted he does not intend to stay at this Coastal Mart 
 
         job forever.  Claimant indicated that since July of 1988, he has 
 
         worked an average of 22.25 hours per week.  Claimant stated he has 
 
         applied for several jobs since he has worked for Coastal Mart, but 
 
         they all paid minimum wage.  Claimant emphasized that defendant 
 
         employer did not offer claimant any other job.
 
         
 
              Claimant related the present activities he is unable to do 
 
         because of his September 10, 1985 injury, namely:  Gardening, 
 
         working on his car, changing motor oil, mowing the yard, bowling, 
 
         fishing, camping, riding a motorcycle, driving a car and 
 
         sleeping. Claimant contends he could never safely drive a truck 
 
         again as he could not pass a DOT physical.  Claimant acknowledged 
 
         that he now has a lazy left eye problem and a left eye cataract.  
 
         Claimant admitted he has had two accidents since the September 
 
         10, 1985 accident, but that neither has caused any current injury 
 
         residue.
 
         
 
              Claimant acknowledged that a Mr. Lewis Vierling, a 
 
         vocational rehabilitation consultant, discussed a Country Kitchen 
 
         job with him.  Claimant indicated he was familiar with some of 
 
         the problems with the job description and prior workers' 
 
                                                
 
                                                         
 
         dissatisfaction. Claimant said he decided to continue with 
 
         Coastal Mart rather than quit and take another job and then end 
 
         up with no job at all. Claimant admitted that he did tell Mr. 
 
         Vierling that he would contact Country Kitchen November 22, 1988 
 
         regarding employment. Claimant did not make the contact.  
 
         Claimant gave high turnover as the reason for no contact.  
 
         Claimant also said that he understood he could be washing dishes 
 
         and mopping floors instead of cooking. Claimant said this was the 
 
         only potential employer to whom Mr. Vierling referred him.
 
         
 
              Doris Quillen, claimant's wife, testified that claimant was 
 
         in good health and exhibited no left shoulder problems prior to 
 
         September 10, 1985.  She emphasized that claimant was always on 
 
         the go helping people, bowling, fishing, riding a motorcycle, 
 
         vacuuming and.working around the house prior to September 10, 
 
         1985.  Mrs. Quillen testified that claimant's pain continued 
 
         after the 1985 surgery and that the claimant is still unable to 
 
         do most of the activities he performed prior to September 10, 
 
         1985.
 
         
 
              Mr. Lewis Vierling, a vocational rehabilitation consultant, 
 
         testified he works with people to get them back to work.  He said 
 
         his first contact with claimant was late May 1988.  He indicated 
 
         that through the various tests given to claimant, he showed 
 
         interest in the culinary arts.  Vierling testified he personally 
 
 
 
                          
 
                                                         
 
         contacted Country Kitchen on behalf of claimant.  In October of 
 
         1988, he suggested claimant contact the manager of Country 
 
         Kitchen.  Vierling said the starting wage was $5.00 per hour and 
 
         after training, the job would pay $270-275 per week.  Vierling 
 
         stated claimant did not contact Country Kitchen.  Vierling said 
 
         claimant told him that claimant had talked to another person 
 
         employed with Country Kitchen and that there was a problem as to 
 
         the job description, as to what a cook would actually do, and job 
 
         turnover.  He said claimant told him he had talked to someone 
 
         hired as a cook who is in fact washing dishes.
 
         
 
              Vierling said he concluded claimant was not interested in 
 
         other employment outside his current employment.  Vierling 
 
         indicated that claimant was concerned that if he left the Coastal 
 
         Mart job and if the Country Kitchen job was not successful, he 
 
         would be out of a job entirely.  Vierling opined that claimant's 
 
         potential is in the restaurant field.  Vierling agreed that based 
 
         on the information provided to him and his contact with the 
 
         claimant, claimant could not drive a truck.  Vierling admitted he 
 
         had a question himself as to cooking being claimant's choice.  He 
 
         acknowledged claimant wanted to work.
 
         
 
              Vierling testified that 85 is the suggested aptitude in the 
 
         cooking area and that claimant scored a 54 on the manual 
 
         dexterity.  Vierling admitted that he still tried to find 
 
         claimant a job at Country Kitchen, even though claimant was way 
 
         below the minimum aptitude.  Vierling emphasized there were no 
 
         other opportunities to the claimant other than the Country 
 
         Kitchen job. Vierling said that in November of 1988 he told his 
 
         client, defendant insurance company, there was no use for him to 
 
         do any further work in claimant's case.
 
         
 
              On October 23, 1985, Dr. Neff wrote:
 
         
 
              The patient categorically denies any previous difficulty 
 
              with his shoulder, and it must be my opinion that the 
 
              rotator cuff tear is the direct result of the fall off the 
 
              back of his trailer, based on the information that I have 
 
              been given.
 
         
 
              Because he is only 43 years old and laboring person, I think 
 
              repair is warranted, combined with subacromial 
 
              decompression, acromioplasty, and resection of the 
 
              coracoacromial ligament.
 
         
 
         (Defendants' exhibit A, part 3, page 1)
 
         
 
              The patient had surgery performed by Dr. Weatherwax on 
 
         November 6, 1985.  Trinity Regional Hospital records reflect:
 
         
 
              NAME OF OPERATION:  Manipulation of left shoulder with 
 
              resection of distal clavicle, coraco and coracoacromial 
 
              ligament, anterior acromioplasty and repair of rotator cuff 
 
              tendon, left shoulder.
 
         
 
                                                
 
                                                         
 
         (Defendants' exhibit A, part 5, page 3)
 
         
 
              Dr. Weatherwax's notes of November 4, 1986 reflect:
 
         
 
              Wayne is a year post repair of massively ruptured rotator 
 
              cuff tendon.  Essentially.functional range of active and 
 
              passive motion, only mildly restricted at extremes, 
 
              particularly rotation.  Still lacks a great,deal of strength 
 
              which is slowly improving.  Mild to moderate discomfort with 
 
              crepitance.  I think he's achieved maximum improvement in 
 
              regard to pain but may see improvement in regard to 
 
              strength. I would rate him at 15% whole-man permanent 
 
              impairment based on both AMA and American Academy of 
 
              Orthopedic Surgeons Guidelines for Rating Permanent 
 
              Impairment, with 5% for mild loss of motion, 5% for loss of 
 
              distal clavicle, and 5% because of weakness and persistent 
 
              pain.  He is now discharged from follow-up.  To return on as 
 
              needed basis. Radiographically today there's no evidence of 
 
              complication with well-seated staple in the humeral head.
 
         
 
         (Defendants' exhibit A, part 5, page 13)
 
         
 
              Dr. Weatherwax's notes of February 23, 1988 reflect:
 
         
 
              Mr. Quillen is back for a recheck on his left shoulder which 
 
              underwent surgical repair of the torn rotator cuff in 
 
              November of 1985.
 
         
 
              Wayne has good motion in his shoulder with fair strength.  
 
              He continues to have a great deal discomfort along the 
 
              scapular muscles and base of the neck particularly with 
 
              activity. There's sufficient discomfort and weakness in his 
 
              shoulder that on our evaluation today, would make truck 
 
              driving out of the question including dealing with the load 
 
              on a flatbed but also turning the wheel on a big truck.
 
         
 
              Because of the findings today, I would certainly recommend 
 
              that this man is not capable to returning to truck driving 
 
              and it's not likely that these findings will change 
 
              significantly to ever allow this.
 
         
 
              At this point, I've started him on Feldene in the hopes that 
 
              this might resolve some of the irritation around the 
 
              shoulder although I have very little else to offer him at 
 
              this point.
 
         
 
         (Defendants' exhibit A, part 5, page 16)
 
         
 
              Lewis Vierling, the vocational rehabilitation consultant, 
 
         wrote in a report on June 15, 1988:
 
         
 
              SUMMARY:
 
         
 
              Mr. Quillen stated several times that he is not sure, at 
 
              this point in time, what he is capable of doing vocationally 
 
                                                
 
                                                         
 
                   due to his injury.  He was very cooperative during the 
 
              meeting and appeared to be wanting to find work, however, 
 
              there was not a,great deal of structure involved in his job 
 
              development efforts.  He seemed somewhat confused about 
 
              where to go from here in his efforts to secure employment.  
 
              It is unfortunate that he did not apply for unemployment 
 
              benefits as soon as he was receiving permanent-partial 
 
              disability payments, instead of waiting until past the 
 
              application expiration date.  This consultant also has some 
 
              concerns about the choice of career fields that he has 
 
              entered into through training as a cook. The physical 
 
              demands of that job appear to be in conflict with his 
 
              capabilities at this point.
 
         
 
         (Defendants' exhibit A, part 8, page 4)
 
         
 
                           APPLICABLE LAW AND ANALYSIS
 
         
 
              Claimant has the burden of proving by a preponderance of the 
 
         evidence that he received an injury on September 10, 1985 which 
 
         arose out of and in the course of his employment.  McDowell v. 
 
         Town of Clarksville, 241 N.W.2d 904 (Iowa 1976); Musselman v. 
 
         Central Telephone Co., 261 Iowa 352, 154 N.W.2d 128 (1967).
 
         
 
              "An 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 v. Central Telephone Co., 261 
 
         Iowa 352, 154 N.W.2d 128 (1967).
 
         
 
              The claimant has the burden of proving by a preponderance of 
 
         the evidence that the injury of September 10, 1985 is causally 
 
         related to the disability on which he now bases his claim.  
 
         Bodish v. Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867 (1965).  
 
         Lindahl v. L.O. Boggs, 236 Iowa 296, 18 N.W.2d 607 (1945).  A 
 
         possibility is insufficient; a probability is necessary.  Burt v. 
 
         John Deere Waterloo Tractor Works, 247 Iowa 691, 73 N.W.2d 732 
 
         (1955).  The question of causal connection is essentially within 
 
         the domain of expert testimony.  Bradshaw v. Iowa Methodist 
 
         Hospital, 251 Iowa 375, 101 N.W.2d 167 (1960).
 
         
 
              However, expert medical evidence must be considered with all 
 
         other evidence introduced bearing on the causal connection.  
 
         Burt, 247 Iowa 691, 73 N.W.2d 732.  The opinion of experts need 
 
         not be couched in definite, positive or unequivocal language.  
 
         Sondag v. Ferris Hardware, 220 N.W.2d 903 (Iowa 1974).  However, 
 
         the expert opinion may be accepted or rejected, in whole or in 
 
         part, by the trier of fact.  Id. at 907.  Further, the weight to 
 
         be given to such an opinion is for the finder of fact, and that 
 
         may be affected by the completeness of the premise given the 
 
         expert and other surrounding circumstances.  Bodish, 257 Iowa 
 
         516, 133 N.W.2d 867.  See also Musselman v. Central Telephone 
 
         Co., 261 Iowa 352, 154 N.W.2d 128 (1967).
 
                                                
 
                                                         
 
         
 
              As claimant has an impairment to the body as a whole, an 
 
         industrial disability has been sustained.  Industrial disability 
 
         was defined in Diederich v. Tri-City Railway Co., 219 Iowa 587, 
 
         593, 258 N.W. 899, 902 (1935) as follows:  "It is therefore plain 
 
         that the legislature intended the term 'disability' to mean 
 
         'industrial disability' or loss of earning capacity and not a 
 
         mere 'functional disability' to be computed in the terms of 
 
         percentages of the total physical and mental ability of a normal 
 
         man."
 
         
 
              Functional impairment is an element to be considered in 
 
         determining industrial disability which is the reduction of 
 
         earning capacity, but consideration must also be given to the 
 
         injured employee's age, education, qualifications, experience and 
 
         inability to engage in employment for which he is fitted.  Olson 
 
         v. Goodyear Service Stores, 255 Iowa 1112, 1121 125 N.W.2d 251, 
 
         257 (1963).
 
         
 
              Iowa Code section 85.34(2) provides that compensation for 
 
         permanent partial disability shall begin at the termination of 
 
         the healing period.  Iowa Code section 85.34(2)(u) provides that 
 
         compensation for a nonscheduled or body as a whole injury shall 
 
         be paid in relation to 500 weeks that the disability bears to the 
 
         body as a whole.
 
         
 
              Claimant is 47 years old.  Claimant did not graduate from 
 
         high school, but later obtained a GED.
 
         
 
              It is undisputed that claimant can no longer drive a truck 
 
         for a living.  Claimant has no real transferable skills from 
 
         prior jobs.  Claimant's vocational tests showed he had an 
 
         aptitude for cooking.  It appears claimant does not disagree with 
 
 
 
                          
 
                                                         
 
         this. Claimant said his wife and he have thought about opening 
 
         their own restaurant.  Claimant has no apparent administrative 
 
         skills or prior experience running his own business.  Claimant 
 
         has been working since July 1988 at a Coastal Mart handling 
 
         money, stocking shelves, loading the cooler, sweeping and 
 
         mopping.  He averages approximately 22 hours per week.  It is not 
 
         clear whether he could work more hours than this.  Claimant is 
 
         earning $3.35 per hour.
 
         
 
              Defendants question claimant's motivation to work.  There is 
 
         considerable testimony as to claimant not following up on a 
 
         possible job opportunity at Country Kitchen.  Claimant seems to 
 
         be familiar with the Country Kitchen operation before it closed 
 
         and knew someone who was hired as a cook when it reopened under 
 
         new management.  It appears that claimant felt he would end up as 
 
         a dishwasher and not solely as a cook.  Claimant was fearful of 
 
         giving up his Coastal Mart job and then ultimately having no job 
 
         at all if the Country Kitchen job did not work out as he thought. 
 
         The evidence shows that claimant has limitations in handling 
 
         heavy pots.  Claimant has a limitation in lifting over 20 pounds 
 
         and with activity requiring overhead work.  Claimant was asked to 
 
         lift him arms to show his range of motion.  It was obvious to the 
 
         undersigned that the claimant attempted to lift his arm beyond 
 
         the point that he should.  The undersigned noticed claimant's 
 
         breath suddenly being taken away.  The undersigned believes that 
 
         the circumstance under which this occurred was real and was not 
 
         being faked by the claimant.
 
         
 
              Mr. Vierling, the defendants' vocational rehabilitation 
 
         consultant, commented in his evaluation summary that he "also has 
 
         some concerns about the choice of career fields that he has 
 
         entered into through training as a cook.  The physical demands of 
 
         that job appear to be in conflict with his capabilities at this 
 
         point."  (Defendants' exhibit A, part 8, page 4).  Mr. Vierling 
 
         said that claimant scored 54 on a manual dexterity test whereas 
 
         85 is the suggested aptitude in this area.  The job claimant 
 
         presently has pays $3.35 per hour.  If claimant took the job that 
 
         Mr. Vierling suggested claimant seek as a prep-cook at Country 
 
         Kitchen, notwithstanding whether claimant could perform it, it 
 
         paid $5.00 per hour beginning pay and $270-275 per week after a 
 
         training period (defendants' exhibit A, part 9, page 9).
 
         
 
              The undersigned can understand the dilemma that claimant is 
 
         in.  He is obviously limited in skills and intelligence.  He has 
 
         an aptitude for cooking, but it is apparent that the job as cook 
 
         entails activity that could violate claimant's restrictions. 
 
         Claimant has a job presently that he does not want to lose until 
 
         he finds a better paying job that he can perform.  The vocational 
 
         rehabilitation consultant has come up with no other concrete jobs 
 
         that he can say fit claimant's aptitude and ability to perform. 
 
         Claimant has sought other jobs without success.  Assuming 
 
         claimant took the job defendants feel he should have sought, 
 
         namely the Country Kitchen job, and assuming after training 
 
         claimant was making $275 per week ($14,300 per year), this is 
 
         approximately 50 percent less than the average income claimant 
 
                                                
 
                                                         
 
         was making in 1983, 1984 and 1985 before his injury and after 
 
         annualizing his 1985 income.  After taking into consideration 
 
         claimant's age, the length of healing period, medical condition 
 
         prior to and after the September 10, 1985 injury, the location 
 
         and severity of the injury, claimant's education, work 
 
         experience, motivation, functional impairment and claimant's 
 
         inability because of the injury to engage in employment for which 
 
         he is fitted, and other applicable factors, the undersigned finds 
 
         that claimant has a 50 percent reduction in earning capacity.
 
         
 
                             FINDINGS OF FACT
 
         
 
              Claimant's September 10, 1985 injury was work related as 
 
         stipulated by the parties.
 
         
 
              Claimant's permanent disability was the result of claimant's 
 
         injury on September 10, 1985 as stipulated by the parties.
 
         
 
              Claimant reached maximum improvement on November 4, 1986.
 
         
 
              Claimant has been paid 59.429 weeks of healing period as 
 
         stipulated by the parties.
 
         
 
              Claimant has incurred a 15 percent permanent partial 
 
         impairment to his whole body as a result of his work-related 
 
         injury on September 10, 1985.
 
         
 
              Claimant's annualized income for 1985 was $31,318.  
 
         Claimant's average income for 1983, 1984 and 1985 after 
 
         annualizing his 1985 income was $28,150.
 
         
 
              Claimant's maximum anticipated annual income based on a 
 
         40-hour week is projected to be between $12,400 and $14,300.
 
         
 
              Claimant has a reduction in earning capacity.
 
         
 
                                CONCLUSIONS OF LAW
 
         
 
              Claimant's injury arose out of and in the course of his 
 
         employment.
 
         
 
              Claimant's permanent disability was causally connected to 
 
         claimant's September 10, 1985 injury.
 
         
 
              Claimant has incurred a 15 percent permanent partial 
 
         impairment to his whole body as a result of the work-related 
 
         injury on September 10, 1985.
 
         
 
              Claimant has a 50 percent industrial disability.
 
         
 
                                      ORDER
 
         
 
              THEREFORE, IT IS ORDERED:
 
         
 
              Defendants shall be given credit for the fifty-nine point 
 
                                                
 
                                                         
 
         four two nine (59.429) weeks of healing period which they have 
 
         already paid the claimant and which is the total amount of 
 
         healing period benefits to which the claimant is entitled.
 
         
 
              Defendants shall pay unto the claimant two hundred fifty 
 
         (250) weeks of permanent partial disability benefits at the rate 
 
         of three hundred eleven and 53/100 dollars ($311.53) per week 
 
         beginning November 4, 1986.
 
         
 
              Defendants shall pay the accrued weekly benefits in a lump 
 
         sum and shall receive credit against the award for weekly 
 
         benefits previously paid.  The defendants have paid seventy-five 
 
         (75) weeks of permanent partial disability benefits as of this 
 
         date.
 
         
 
              Defendants shall pay interest on the benefits awarded herein 
 
         as set forth in Iowa Code section 85.30.
 
         
 
              Defendants shall pay the costs of this action pursuant to 
 
         Division of Industrial Services Rule 343-4.33.
 
         
 
              Defendants shall file a claim activity report upon payment 
 
         of this award as required by this agency pursuant to Division of 
 
         Industrial Services Rule 343-3.1
 
         
 
              Signed and filed this 27th day of October, 1989.
 
         
 
         
 
         
 
         
 
         
 
         
 
                                            BERNARD J. O'MALLEY
 
                                            DEPUTY INDUSTRIAL 
 
                                            COMMISSIONER
 
         
 
         Copies To:
 
         
 
         Mr. Neven J. Mulholland
 
         Attorney at Law
 
         600 Boston Centre
 
         P.O. Box 1396
 
         Fort Dodge, Iowa  50501
 
         
 
         Mr. Tito Trevino
 
         Attorney at Law
 
         503 Snell Building
 
         P.O. Box 1680
 
         Fort Dodge, Iowa  50501
 
         
 
         
 
         
 
 
 
 
 
                                                
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                            5-1803
 
                                            Filed October 27, 1989
 
                                            BERNARD J. O'MALLEY
 
         
 
                   BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         WAYNE ALLEN QUILLEN,
 
         
 
              Claimant,
 
         
 
         vs.                                        File No. 804235
 
         
 
         SMITHWAY MOTOR EXPRESS,                 A R B I T R A T I 0 N
 
         
 
              Employer,                             D E C I S I 0 N
 
         
 
         and
 
         
 
         LIBERTY MUTUAL INSURANCE CO.,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         5-1803
 
         
 
              Claimant awarded 50 percent industrial disability.