BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
        
 
        
 
        LESLIE DE HEER,
 
        
 
             Claimant,
 
             
 
        vs.                                      File No. 804325
 
        
 
        CLARKLIFT OF DES MOINES,                   A P P E A L
 
        
 
            Employer,                           D E C I S I O N
 
        
 
        and
 
                                                     F I L E D
 
        CIGNA,
 
                                                    MAY 12 1989
 
            Insurance Carrier,
 
            Defendants.                  IOWA INDUSTRIAL COMMISSIONER
 
        
 
        
 
                                 STATEMENT OF THE CASE
 
        
 
             Defendants appeal from an arbitration decision awarding 
 
             permanent partial disability benefits as the result of an alleged 
 
             injury on September 9, 1985. Claimant cross-appeals.
 
        
 
            The record on appeal consists of the transcript of the 
 
        arbitration hearing; joint exhibits A through K, and M through W; 
 
        claimant's exhibit l; and commissioner's exhibits 1 and 2. Both 
 
        parties filed briefs on appeal.
 
        
 
                                      ISSUES
 
        
 
             Defendants state the following issues on appeal:
 
        
 
             l. The Deputy erred in awarding benefits on the theory of 
 
             cumulative injury.
 
             
 
             2. The Deputy erred in finding that the claimant sustained 
 
             a personal injury on September 9, 1985 that arose out of his 
 
             employment.
 
             
 
             3. The Deputy erred in relying on a physician to determine 
 
             the issue of credibility.
 
             
 
             4. The Deputy erred in awarding healing period benefits 
 
             beyond the date stipulated by the parties.
 
             
 
             5. The Deputy erred in awarding industrial disability on 
 
             the basis of 70 percent of the body as a whole.
 
            Claimant states the following issues on cross-appeal:
 
        
 
             1. Whether or not Claimant met the requirements of the 
 
             Odd-Lot Doctrine.
 
             
 
             2. If Claimant did not meet the Odd-Lot Doctrine, whether 
 
             Claimant's disability is greater than 70%.
 
             
 
                                 REVIEW OF THE EVIDENCE
 
        
 
             The following is a brief statement of the evidence pertinent 
 

 
        
 
 
 
 
 
             to this decision.
 
        
 
            Claimant, 50 years old at the time of the hearing, testified 
 
        that he commenced working for Clarklift of Des Moines 
 
        (hereinafter Clarklift) as a forklift mechanic in September 1972. 
 
        Claimant's work involved overhauling motors and hydraulic lifts, 
 
        and involved the lifting of heavy equipment, repetitive bending, 
 
        stooping, lifting, twisting and prolonged standing. In September 
 
        of 1985 claimant was earning $11.15 per hour.
 
        
 
            Claimant alleges he was injured on September 9, 1985 while 
 
        in the act of transporting a "saddle" to a wash area. Claimant, 
 
        in his deposition, testified that the pain did not develop until 
 
        after he began to carry the saddle, weighing 20 pounds or less, 
 
        and after taking only a few steps. In the history claimant 
 
        provided to his initial treating physician and shortly thereafter 
 
        to an insurance representative, he stated that the pain began 
 
        while he was in the act of lifting. Claimant testified that, 
 
        while lifting the "saddle" weighing approximately 25-30 pounds, 
 
        he felt a pop in his back. Claimant stated that the pain started 
 
        in his lower back and radiated down into his left leg compelling 
 
        him to fall. Claimant then returned to his work station, but the 
 
        pain became worse and claimant eventually informed the foreman 
 
        that he could no longer work.
 
        
 
            Claimant's supervisor, Donald Bryant, testified that the 
 
        saddle claimant was carrying actually weighed 14 pounds and that 
 
        the claimant, prior to the time of his work injury, stated that 
 
        he was going to a chiropractor to "pop joints."
 
        
 
            On September 9 the claimant sought treatment from the Mater 
 
        Clinic, P.C. Bernard C. Hillyer, M.D., admitted claimant to the 
 
        hospital for traction, medication, physical therapy and bedrest. 
 
        Eventually, Dr. Hillyer diagnosed claimant as suffering from an 
 
        aggravation of a prior spondylolisthesis condition and referred 
 
        claimant to Jerome G. Bashara, M.D., a board certified orthopedic 
 
        surgeon. Claimant remained in the hospital for three to four 
 
        days before returning to work for approximately one week on a 
 
        trial basis. Claimant continued to feel pain and as a result was 
 
        readmitted to the hospital for testing and surgery. Dr. Bashara 
 
        performed a gill laminectomy and fusion at the L5-Sl level of 
 
        claimant's spine in November 1985. Claimant underwent recovery 
 
        until July 3, 1986, approximately eight months later when, 
 
        according to Dr. Bashara, claimant's recovery had "reached a 
 
        plateau," and claimant was ready to return to light duty work 
 
        activities with permanent restrictions of no lifting over 20 
 
        pounds; no excessive bending, stooping or twisting of the 
 
        lumbosacral spine.
 
        
 
             Claimant admitted that he had back problems before September 
 
             1985, but indicated these problems were in the upper back and 
 
             shoulders for which he received chiropractic treatment. Jeffrey 
 
             Meyer, D.C., indicated that claimant had treatment for both upper 
 
             and lower back difficulties since 1982, but the treatment was 
 
             mainly for the upper back. Claimant's earliest low back 
 
             complaints occurred in June 1983, brought on by his coughing. In 
 
             histories given to other physicians, claimant stated that he had 
 
             back problems all of his life which have become worse over the 
 
             past few years.
 
        
 
            Dr. Bashara rates claimant's impairment as consisting of a 
 
        25 percent permanent partial impairment to the body as a whole 
 
        but that five percent of this is due to prior existing low back 
 
        difficulty. Dr. Bashara attributes the remaining 20 percent 
 
        impairment to the work injury in September 1985. In his 
 
        deposition Dr. Bashara opined that the work incident described by 
 

 
        
 
 
 
 
 
        claimant induced the spondylolisthesis condition and the 
 
        resultant impairment and also opined that it was likely that 
 
        claimant's heavy work at Clarklift over the 13 years was a likely 
 
        cause of the spondylolisthesis condition. Dr. Bashara stated 
 
        that even if he were to assume that the spondylolisthesis 
 
        condition preexisted the alleged work injury or claimant's work 
 
        at Clarklift, such an assumption would not change his opinion 
 
        that the surgery and impairment were work related. Dr. Bashara 
 
        stated in his deposition that it was not unusual for the onset of 
 
        symptoms to occur several minutes after the injury and the fact 
 
        that claimant had been carrying the saddle rather than lifting 
 
        the saddle at the time of the onset of pain did not change his 
 
        causal connection opinions.
 
        
 
            At the request of defendants, claimant was evaluated by 
 
        William R. Boulden, M.D., another board certified orthopedic 
 
        surgeon, in May 1986. Initially, Dr. Boulden rated the claimant 
 
        as suffering from a 25 percent permanent partial impairment to 
 
        the body as a whole, 15 percent of which constituted the 
 
        preexisting spondylolisthesis condition. In his deposition, Dr. 
 
        Boulden changed his causal connection opinion after reading the 
 
        testimony given by claimant in his deposition that the pain did 
 
        not begin until after he began to carry the saddle. Such an act 
 
        of carrying the saddle did not, in the opinion of Dr. Boulden, 
 
        consist of traumatic event sufficient to cause the onset of pain 
 
        and the resultant surgery. Dr. Boulden felt that the onset in 
 
        such case would be the natural course of events in any 
 
        spondylolisthesis condition.
 
             
 
             Dr. Hillyer, the general practitioner physician at the Mater 
 
             Clinic who initially treated claimant, opines that claimant's low 
 
             back difficulties were work related either due to the heavy work 
 
             at Clarklift over the years or due to the September 1985 
 
             incident. Dr. Hillyer testified it is not unusual for orthopedic 
 
             patients to blur the events and be unable to precisely indicate 
 
             or describe an orthopedic injury or when pain begins.
 
        
 
            After his release by Dr. Bashara, claimant returned to 
 
        Clarklift to inquire as to returning to work and was told that 
 
        there was no job available within his physical restrictions 
 
        imposed by Dr. Bashara. Claimant has made two applications for 
 
        employment in the Knoxville area and states that he monitors ads 
 
        for available jobs in local newspapers. Claimant has not as yet 
 
        found suitable replacement employment. Claimant began to receive 
 
        vocational rehabilitation counseling from Intercorp, a 
 
        rehabilitation service retained by defendants in the summer of 
 
        1986. A part of this counseling consisted of an evaluation of 
 
        claimant's abilities by the state of Iowa rehabilitation 
 
        facilities located in Des Moines. To date, claimant has not 
 
        located suitable employment from any vocational rehabilitation 
 
        activity.
 
        
 
            Claimant has an eighth grade education and a GED and was 
 
        able to demonstrate in the state tests a vocabulary equivalency 
 
        at the 12.7 grade level, reading comprehension at the 9.9 grade 
 
        level, general reading performance at the 11.4 grade level and 
 
        math skills at grade level 10. Claimant demonstrated an ability 
 
        to keep accurate bookkeeping records but had difficulty with 
 
        understanding the concepts of double entry bookkeeping. At the 
 
        state rehabilitation facility claimant expressed a desire for 
 
        training in gunsmithing and small engine repair. The state 
 
        evaluation found that claimant had sufficient knowledge and 
 
        transferable skills to pursue vocational training in gunsmithing 
 
        and small engine repair but the counselors question the viability 
 
        of these goals due to claimant's physical limitations. The state 
 
        rehabilitation testing also indicated some aptitude for low grade 
 

 
        
 
 
 
 
 
        clerical, bookkeeping or office type of employment but this was 
 
        not pursued with any vigor as claimant did not express an 
 
        interest in such employment.
 
        
 
            Richard Rattray, a state vocational rehabilitation 
 
        counselor, testified at the hearing that it is unlikely that 
 
        claimant will be able to obtain light industrial employment due 
 
        to his physical intolerance for activity and an inability to work 
 
        eight hours a day. Rattray further testified that he felt that 
 
        claimant was not a good candidate for retraining due to the 
 
        constant back pain which would affect his thought processes. 
 
        Finally, Rattray did not believe that gunsmithing was a viable 
 
        vocational goal within this area.
 
        
 
            Mary Kathleen Schauwecker of Intercorp testified that 
 
        claimant can be employed as he possesses considerable 
 
        transferable skills in the area of mechanics and that he 
 
        possesses a good work record. She believes that suitable 
 
        employment can be found with proper vocational counseling 
 
        including a program to improve job seeking skills, assistance in 
 
        contacting employers and a proper identification of job goals. 
 
        She identified various light duty positions which fall into 
 
        claimant's work abilities such as gunsmithing, retail and 
 
        sporting goods, inspection, shipping and receiving, small engine 
 
        repair and supervision of auto and truck mechanics.
 
        
 
             Claimant testified that his past employment primarily 
 
             consisted of carpentry, work as a glass cutter and assembler, 
 
             farming, and a truck driver/mechanic.
 
        
 
            Claimant currently works without pay as the treasurer and 
 
        bookkeeper of the Eagles Club in Knoxville for several hours each 
 
        day.
 
        
 
                                 APPLICABLE LAW
 
        
 
             Claimant has the burden of proving by a preponderance of the 
 
             evidence that he received an injury on September 9, 1985, which 
 
             arose out of and in the course of his employment. McDowell v. 
 
             Town of Clarksville, 241 N.W.2d 904 (Iowa 1976); Musselman v. 
 
             Central Telephone Co., 261 Iowa 352, 154 N.W.2d 128 (1967).
 
        
 
            The injury must both arise out of and be in the course of 
 
        the employment. Crowe v. DeSoto Consol. Sch. Dist., 246 Iowa 
 
        402, 68 N.W.2d 63 (1955) and cases cited at pp. 405-406 of the 
 
        Iowa Report. See also Sister Mary Benedict v. St. Mary's Corp., 
 
        255 Iowa 847, 124 N.W.2d 548 (1963) and Hansen v. State of Iowa, 
 
        249 Iowa 1147, 91 N.W.2d 555 (1958).
 
        
 
            The words "out of" refer to the cause or source of the 
 
        injury. Crowe, 246 Iowa 402, 68 N.W.2d 63.
 
        
 
            The words "in the course of" refer to the time and place and 
 
        circumstances of the injury. McClure v. Union et al. Counties, 
 
        188 N.W.2d 283 (Iowa 1971)i Crowe, 246 Iowa 402, 68 N.W.2d 63.
 
        
 
            "An injury occurs in the course of the employment when it is 
 
        within the period of employment at a place the employee may 
 
        reasonably be, and while he is doing his work or something 
 
        incidental to it." Cedar Rapids Comm. Sch. Dist. v. Cady, 278 
 
        N.W.2d 298 (Iowa 1979); McClure, 188 N.W.2d 283; Musselman, 261 
 
        Iowa 352, 154 N.W.2d 128.
 
        
 
            While a claimant is not entitled to compensation for the 
 
        results of a preexisting injury or disease, the mere existence at 
 
        the time of a subsequent injury is not a defense. Rose v. John 
 

 
        
 
 
 
 
 
        Deere Ottumwa Works, 247 Iowa 900, 908, 76 N.W.2d 756, 760-761 
 
        (1956). If the claimant had a preexisting condition or 
 
        disability that is aggravated, accelerated, worsened or lighted 
 
        up so that it results in disability, claimant is entitled to 
 
        recover. Nicks v Davenport Produce Co., 254 Iowa 130, 115 N.W.2d 
 
        812, 815 (1962).
 
        
 
             Functional impairment is an element to be considered in 
 
             determining industrial disability which is the reduction of 
 
             earning capacity, but consideration must also be given to the 
 
             injured employee's age, education, qualifications, experience and 
 
             inability to engage in employment for which he is fitted. Olson 
 
             v. Goodyear Service Stores, 255 Iowa 1112, 125 N.W.2d 251 (1963). 
 
             Barton v. Nevada Poultry, 253 Iowa 285, 110 N.W.2d 660 (1961).
 
        
 
            A finding of impairment to the body as a whole found by a 
 
        medical evaluator does not equate to industrial disability. This 
 
        is so as impairment and disability are not synonymous. Degree of 
 
        industrial disability can ie 
 
        transferable skills in the area of mechanics and that he 
 
        possesses a good work record. She believes that suitable 
 
        employment can be found with proper vocational counseling 
 
        including a program to improve job seeking skills, assistance in 
 
        contacting employers and a proper identification of job goals. 
 
        She identified various light duty positions which fall into 
 
        claimant's work abilities such as gunsmithing, retail and 
 
        sporting goods, inspection, shipping and receiving, small engine 
 
        repair and supervision of auto and truck mechanics.
 
        
 
             Claimant testified that his past employment primarily 
 
             consisted of carpentry, work as a glass cutter and assembler, 
 
             farming, and a truck driver/mechanic.
 
        
 
            Claimant currently works without pay as the treasurer and 
 
        bookkeeper of the Eagles Club in Knoxville for several hours each 
 
        day.
 
        
 
                                 APPLICABLE LAW
 
        
 
             Claimant has the burden of proving by a preponderance of the 
 
             evidence that he received an injury on September 9, 1985, which 
 
             arose out of and in the course of his employment. McDowell v. 
 
             Town of Clarksville, 241 N.W.2d 904 (Iowa 1976); Musselman v. 
 
             Central Telephone Co., 261 Iowa 352, 154 N.W.2d 128 (1967).
 
        
 
            The injury must both arise out of and be in the course of 
 
        the employment. Crowe v. DeSoto Consol. Sch. Dist., 246 Iowa 
 
        402, 68 N.W.2d 63 (1955) and cases cited at pp. 405-406 of the 
 
        Iowa Report. See also Sister Mary Benedict v. St. Mary's Corp., 
 
        255 Iowa 847, 124 N.W.2d 548 (1963) and Hansen v. State of Iowa, 
 
        249 Iowa 1147, 91 N.W.2d 555 (1958).
 
        
 
            The words "out of" refer to the cause or source of the 
 
        injury. Crowe, 246 Iowa 402, 68 N.W.2d 63.
 
        
 
            The words "in the course of" refer to the time and place and 
 
        circumstances of the injury. McClure v. Union et al. Counties, 
 
        188 N.W.2d 283 (Iowa 1971)i Crowe, 246 Iowa 402, 68 N.W.2d 63.
 
        
 
            "An injury occurs in the course of the employment when it is 
 
        within the period of employment at a place the employee may 
 
        reasonably be, and while he is doing his work or something 
 
        incidental to it." Cedar Rapids Comm. Sch. Dist. v. Cady, 278 
 
        N.W.2d 298 (Iowa 1979); McClure, 188 N.W.2d 283; Musselman, 261 
 
        Iowa 352, 154 N.W.2d 128.
 
        
 
            While a claimant is not entitled to compensation for the 
 
        results of a preexisting injury or disease, the mere existence at 
 
        the time of a subsequent injury is not a defense. Rose v. John 
 

 
        
 
 
 
 
 
        Deere Ottumwa Works, 247 Iowa 900, 908, 76 N.W.2d 756, 760-761 
 
        (1956). If the claimant had a preexisting condition or 
 
        disability that is aggravated, accelerated, worsened or lighted 
 
        up so that it results in disability, claimant is entitled to 
 
        recover. Nicks v Davenport Produce Co., 254 Iowa 130, 115 N.W.2d 
 
        812, 815 (1962).
 
        
 
             Functional impairment is an element to be considered in 
 
             determining industrial disability which is the reduction of 
 
             earning capacity, but consideration must also be given to the 
 
             injured employee's age, education, qualifications, experience and 
 
             inability to engage in employment for which he is fitted. Olson 
 
             v. Goodyear Service Stores, 255 Iowa 1112, 125 N.W.2d 251 (1963). 
 
             Barton v. Nevada Poultry, 253 Iowa 285, 110 N.W.2d 660 (1961).
 
        
 
            A finding of impairment to the body as a whole found by a 
 
        medical evaluator does not equate to industrial disability. This 
 
        is so as impairment and disability are not synonymous. Degree of 
 
        industrial disability can ie 
 
        transferable skills in the area of mechanics and that he 
 
        possesses a good work record. She believes that suitable 
 
        employment can be found with proper vocational counseling 
 
        including a program to improve job seeking skills, assistance in 
 
        contacting employers and a proper identification of job goals. 
 
        She identified various light duty positions which fall into 
 
        claimant's work abilities such as gunsmithing, retail and 
 
        sporting goods, inspection, shipping and receiving, small engine 
 
        repair and supervision of auto and truck mechanics.
 
        
 
             Claimant testified that his past employment primarily 
 
             consisted of carpentry, work as a glass cutter and assembler, 
 
             farming, and a truck driver/mechanic.
 
        
 
            Claimant currently works without pay as the treasurer and 
 
        bookkeeper of the Eagles Club in Knoxville for several hours each 
 
        day.
 
        
 
                                 APPLICABLE LAW
 
        
 
             Claimant has the burden of proving by a preponderance of the 
 
             evidence that he received an injury on September 9, 1985, which 
 
             arose out of and in the course of his employment. McDowell v. 
 
             Town of Clarksville, 241 N.W.2d 904 (Iowa 1976); Musselman v. 
 
             Central Telephone Co., 261 Iowa 352, 154 N.W.2d 128 (1967).
 
        
 
            The injury must both arise out of and be in the course of 
 
        the employment. Crowe v. DeSoto Consol. Sch. Dist., 246 Iowa 
 
        402, 68 N.W.2d 63 (1955) and cases cited at pp. 405-406 of the 
 
        Iowa Report. See also Sister Mary Benedict v. St. Mary's Corp., 
 
        255 Iowa 847, 124 N.W.2d 548 (1963) and Hansen v. State of Iowa, 
 
        249 Iowa 1147, 91 N.W.2d 555 (1958).
 
        
 
            The words "out of" refer to the cause or source of the 
 
        injury. Crowe, 246 Iowa 402, 68 N.W.2d 63.
 
        
 
            The words "in the course of" refer to the time and place and 
 
        circumstances of the injury. McClure v. Union et al. Counties, 
 
        188 N.W.2d 283 (Iowa 1971)i Crowe, 246 Iowa 402, 68 N.W.2d 63.
 
        
 
            "An injury occurs in the course of the employment when it is 
 
        within the period of employment at a place the employee may 
 
        reasonably be, and while he is doing his work or something 
 
        incidental to it." Cedar Rapids Comm. Sch. Dist. v. Cady, 278 
 
        N.W.2d 298 (Iowa 1979); McClure, 188 N.W.2d 283; Musselman, 261 
 
        Iowa 352, 154 N.W.2d 128.
 
        
 
            While a claimant is not entitled to compensation for the 
 
        results of a preexisting injury or disease, the mere existence at 
 
        the time of a subsequent injury is not a defense. Rose v. John 
 

 
        
 
 
 
 
 
        Deere Ottumwa Works, 247 Iowa 900, 908, 76 N.W.2d 756, 760-761 
 
        (1956). If the claimant had a preexisting condition or 
 
        disability that is aggravated, accelerated, worsened or lighted 
 
        up so that it results in disability, claimant is entitled to 
 
        recover. Nicks v Davenport Produce Co., 254 Iowa 130, 115 N.W.2d 
 
        812, 815 (1962).
 
        
 
             Functional impairment is an element to be considered in 
 
             determining industrial disability which is the reduction of 
 
             earning capacity, but consideration must also be given to the 
 
             injured employee's age, education, qualifications, experience and 
 
             inability to engage in employment for which he is fitted. Olson 
 
             v. Goodyear Service Stores, 255 Iowa 1112, 125 N.W.2d 251 (1963). 
 
             Barton v. Nevada Poultry, 253 Iowa 285, 110 N.W.2d 660 (1961).
 
        
 
            A finding of impairment to the body as a whole found by a 
 
        medical evaluator does not equate to industrial disability. This 
 
        is so as impairment and disability are not synonymous. Degree of 
 
        industrial disability can ie 
 
        transferable skills in the area of mechanics and that he 
 
        possesses a good work record. She believes that suitable 
 
        employment can be found with proper vocational counseling 
 
        including a program to improve job seeking skills, assistance in 
 
        contacting employers and a proper identification of job goals. 
 
        She identified various light duty positions which fall into 
 
        claimant's work abilities such as gunsmithing, retail and 
 
        sporting goods, inspection, shipping and receiving, small engine 
 
        repair and supervision of auto and truck mechanics.
 
        
 
             Claimant testified that his past employment primarily 
 
             consisted of carpentry, work as a glass cutter and assembler, 
 
             farming, and a truck driver/mechanic.
 
        
 
            Claimant currently works without pay as the treasurer and 
 
        bookkeeper of the Eagles Club in Knoxville for several hours each 
 
        day.
 
        
 
                                 APPLICABLE LAW
 
        
 
             Claimant has the burden of proving by a preponderance of the 
 
             evidence that he received an injury on September 9, 1985, which 
 
             arose out of and in the course of his employment. McDowell v. 
 
             Town of Clarksville, 241 N.W.2d 904 (Iowa 1976); Musselman v. 
 
             Central Telephone Co., 261 Iowa 352, 154 N.W.2d 128 (1967).
 
        
 
            The injury must both arise out of and be in the course of 
 
        the employment. Crowe v. DeSoto Consol. Sch. Dist., 246 Iowa 
 
        402, 68 N.W.2d 63 (1955) and cases cited at pp. 405-406 of the 
 
        Iowa Report. See also Sister Mary Benedict v. St. Mary's Corp., 
 
        255 Iowa 847, 124 N.W.2d 548 (1963) and Hansen v. State of Iowa, 
 
        249 Iowa 1147, 91 N.W.2d 555 (1958).
 
        
 
            The words "out of" refer to the cause or source of the 
 
        injury. Crowe, 246 Iowa 402, 68 N.W.2d 63.
 
        
 
            The words "in the course of" refer to the time and place and 
 
        circumstances of the injury. McClure v. Union et al. Counties, 
 
        188 N.W.2d 283 (Iowa 1971)i Crowe, 246 Iowa 402, 68 N.W.2d 63.
 
        
 
            "An injury occurs in the course of the employment when it is 
 
        within the period of employment at a place the employee may 
 
        reasonably be, and while he is doing his work or something 
 
        incidental to it." Cedar Rapids Comm. Sch. Dist. v. Cady, 278 
 
        N.W.2d 298 (Iowa 1979); McClure, 188 N.W.2d 283; Musselman, 261 
 
        Iowa 352, 154 N.W.2d 128.
 
        
 
            While a claimant is not entitled to compensation for the 
 
        results of a preexisting injury or disease, the mere existence at 
 
        the time of a subsequent injury is not a defense. Rose v. John 
 

 
        
 
 
 
 
 
        Deere Ottumwa Works, 247 Iowa 900, 908, 76 N.W.2d 756, 760-761 
 
        (1956). If the claimant had a preexisting condition or 
 
        disability that is aggravated, accelerated, worsened or lighted 
 
        up so that it results in disability, claimant is entitled to 
 
        recover. Nicks v Davenport Produce Co., 254 Iowa 130, 115 N.W.2d 
 
        812, 815 (1962).
 
        
 
             Functional impairment is an element to be considered in 
 
             determining industrial disability which is the reduction of 
 
             earning capacity, but consideration must also be given to the 
 
             injured employee's age, education, qualifications, experience and 
 
             inability to engage in employment for which he is fitted. Olson 
 
             v. Goodyear Service Stores, 255 Iowa 1112, 125 N.W.2d 251 (1963). 
 
             Barton v. Nevada Poultry, 253 Iowa 285, 110 N.W.2d 660 (1961).
 
        
 
            A finding of impairment to the body as a whole found by a 
 
        medical evaluator does not equate to industrial disability. This 
 
        is so as impairment and disability are not synonymous. Degree of 
 
        industrial disability can ie 
 
        transferable skills in the area of mechanics and that he 
 
        possesses a good work record. She believes that suitable 
 
        employment can be found with proper vocational counseling 
 
        including a program to improve job seeking skills, assistance in 
 
        contacting employers and a proper identification of job goals. 
 
        She identified various light duty positions which fall into 
 
        claimant's work abilities such as gunsmithing, retail and 
 
        sporting goods, inspection, shipping and receiving, small engine 
 
        repair and supervision of auto and truck mechanics.
 
        
 
             Claimant testified that his past employment primarily 
 
             consisted of carpentry, work as a glass cutter and assembler, 
 
             farming, and a truck driver/mechanic.
 
        
 
            Claimant currently works without pay as the treasurer and 
 
        bookkeeper of the Eagles Club in Knoxville for several hours each 
 
        day.
 
        
 
                                 APPLICABLE LAW
 
        
 
             Claimant has the burden of proving by a preponderance of the 
 
             evidence that he received an injury on September 9, 1985, which 
 
             arose out of and in the course of his employment. McDowell v. 
 
             Town of Clarksville, 241 N.W.2d 904 (Iowa 1976); Musselman v. 
 
             Central Telephone Co., 261 Iowa 352, 154 N.W.2d 128 (1967).
 
        
 
            The injury must both arise out of and be in the course of 
 
        the employment. Crowe v. DeSoto Consol. Sch. Dist., 246 Iowa 
 
        402, 68 N.W.2d 63 (1955) and cases cited at pp. 405-406 of the 
 
        Iowa Report. See also Sister Mary Benedict v. St. Mary's Corp., 
 
        255 Iowa 847, 124 N.W.2d 548 (1963) and Hansen v. State of Iowa, 
 
        249 Iowa 1147, 91 N.W.2d 555 (1958).
 
        
 
            The words "out of" refer to the cause or source of the 
 
        injury. Crowe, 246 Iowa 402, 68 N.W.2d 63.
 
        
 
            The words "in the course of" refer to the time and place and 
 
        circumstances of the injury. McClure v. Union et al. Counties, 
 
        188 N.W.2d 283 (Iowa 1971)i Crowe, 246 Iowa 402, 68 N.W.2d 63.
 
        
 
            "An injury occurs in the course of the employment when it is 
 
        within the period of employment at a place the employee may 
 
        reasonably be, and while he is doing his work or something 
 
        incidental to it." Cedar Rapids Comm. Sch. Dist. v. Cady, 278 
 
        N.W.2d 298 (Iowa 1979); McClure, 188 N.W.2d 283; Musselman, 261 
 
        Iowa 352, 154 N.W.2d 128.
 
        
 
            While a claimant is not entitled to compensation for the 
 
        results of a preexisting injury or disease, the mere existence at 
 
        the time of a subsequent injury is not a defense. Rose v. John 
 

 
        
 
 
 
 
 
        Deere Ottumwa Works, 247 Iowa 900, 908, 76 N.W.2d 756, 760-761 
 
        (1956). If the claimant had a preexisting condition or 
 
        disability that is aggravated, accelerated, worsened or lighted 
 
        up so that it results in disability, claimant is entitled to 
 
        recover. Nicks v Davenport Produce Co., 254 Iowa 130, 115 N.W.2d 
 
        812, 815 (1962).
 
        
 
             Functional impairment is an element to be considered in 
 
             determining industrial disability which is the reduction of 
 
             earning capacity, but consideration must also be given to the 
 
             injured employee's age, education, qualifications, experience and 
 
             inability to engage in employment for which he is fitted. Olson 
 
             v. Goodyear Service Stores, 255 Iowa 1112, 125 N.W.2d 251 (1963). 
 
             Barton v. Nevada Poultry, 253 Iowa 285, 110 N.W.2d 660 (1961).
 
        
 
            A finding of impairment to the body as a whole found by a 
 
        medical evaluator does not equate to industrial disability. This 
 
        is so as impairment and disability are not synonymous. Degree of 
 
        industrial disability can ie 
 
        transferable skills in the area of mechanics and that he 
 
        possesses a good work record. She believes that suitable 
 
        employment can be found with proper vocational counseling 
 
        including a program to improve job seeking skills, assistance in 
 
        contacting employers and a proper identification of job goals. 
 
        She identified various light duty positions which fall into 
 
        claimant's work abilities such as gunsmithing, retail and 
 
        sporting goods, inspection, shipping and receiving, small engine 
 
        repair and supervision of auto and truck mechanics.
 
        
 
             Claimant testified that his past employment primarily 
 
             consisted of carpentry, work as a glass cutter and assembler, 
 
             farming, and a truck driver/mechanic.
 
        
 
            Claimant currently works without pay as the treasurer and 
 
        bookkeeper of the Eagles Club in Knoxville for several hours each 
 
        day.
 
        
 
                   
 
 
            
 
        
 
 
 
                
 
                    
 
                 BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         LESLIE DE HEER,
 
         
 
              Claimant,
 
         
 
         vs.                                       File No. 804325
 
         
 
         CLARKLIFT OF DES MOINES,                    A P P E A L
 
         
 
              Employer,                           D E C I S I O N
 
         
 
         and
 
                                                       F I L E D
 
         CIGNA,
 
                                                      MAY 12 1989
 
              Insurance Carrier,
 
              Defendants.                   IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
                            STATEMENT OF THE CASE
 
         
 
              Defendants appeal from an arbitration decision awarding 
 
         permanent partial disability benefits as the result of an alleged 
 
         injury on September 9, 1985.  Claimant cross-appeals.
 
         
 
              The record on appeal consists of the transcript of the 
 
         arbitration hearing; joint exhibits A through K, and M through W; 
 
         claimant's exhibit l; and commissioner's exhibits 1 and 2.  Both 
 
         parties filed briefs on appeal.
 
         
 
                                      ISSUES
 
         
 
              Defendants state the following issues on appeal:
 
         
 
              l.  The Deputy erred in awarding benefits on the theory of 
 
              cumulative injury.
 
         
 
              2.  The Deputy erred in finding that the claimant sustained 
 
              a personal injury on September 9, 1985 that arose out of his 
 
              employment.
 
         
 
              3.  The Deputy erred in relying on a physician to determine 
 
              the issue of credibility.
 
         
 
              4.  The Deputy erred in awarding healing period benefits 
 
              beyond the date stipulated by the parties.
 
         
 
              5.  The Deputy erred in awarding industrial disability on 
 
              the basis of 70 percent of the body as a whole.
 
              Claimant states the following issues on cross-appeal:
 
         
 
              1.  Whether or not Claimant met the requirements of the 
 
                                                
 
                                                         
 
                   Odd-Lot Doctrine.
 
         
 
              2.  If Claimant did not meet the Odd-Lot Doctrine, whether 
 
              Claimant's disability is greater than 70%.
 
         
 
                              REVIEW OF THE EVIDENCE
 
         
 
              The following is a brief statement of the evidence pertinent 
 
         to this decision.
 
         
 
              Claimant, 50 years old at the time of the hearing, testified 
 
         that he commenced working for Clarklift of Des Moines 
 
         (hereinafter Clarklift) as a forklift mechanic in September 1972.  
 
         Claimant's work involved overhauling motors and hydraulic lifts, 
 
         and involved the lifting of heavy equipment, repetitive bending, 
 
         stooping, lifting, twisting and prolonged standing.  In September 
 
         of 1985 claimant was earning $11.15 per hour.
 
         
 
              Claimant alleges he was injured on September 9, 1985 while 
 
         in the act of transporting a "saddle" to a wash area.  Claimant, 
 
         in his deposition, testified that the pain did not develop until 
 
         after he began to carry the saddle, weighing 20 pounds or less, 
 
         and after taking only a few steps.  In the history claimant 
 
         provided to his initial treating physician and shortly thereafter 
 
         to an insurance representative, he stated that the pain began 
 
         while he was in the act of lifting.  Claimant testified that, 
 
         while lifting the "saddle" weighing approximately 25-30 pounds, 
 
         he felt a pop in his back.  Claimant stated that the pain started 
 
         in his lower back and radiated down into his left leg compelling 
 
         him to fall.  Claimant then returned to his work station, but the 
 
         pain became worse and claimant eventually informed the foreman 
 
         that he could no longer work.
 
         
 
              Claimant's supervisor, Donald Bryant, testified that the 
 
         saddle claimant was carrying actually weighed 14 pounds and that 
 
         the claimant, prior to the time of his work injury, stated that 
 
         he was going to a chiropractor to "pop joints."
 
         
 
              On September 9 the claimant sought treatment from the Mater 
 
         Clinic, P.C.  Bernard C. Hillyer, M.D., admitted claimant to the 
 
         hospital for traction, medication, physical therapy and bedrest. 
 
         Eventually, Dr. Hillyer diagnosed claimant as suffering from an 
 
         aggravation of a prior spondylolisthesis condition and referred 
 
         claimant to Jerome G. Bashara, M.D., a board certified orthopedic 
 
         surgeon.  Claimant remained in the hospital for three to four 
 
         days before returning to work for approximately one week on a 
 
         trial basis.  Claimant continued to feel pain and as a result was 
 
         readmitted to the hospital for testing and surgery.  Dr. Bashara 
 
         performed a gill laminectomy and fusion at the L5-Sl level of 
 
         claimant's spine in November 1985.  Claimant underwent recovery 
 
         until July 3, 1986, approximately eight months later when, 
 
         according to Dr. Bashara, claimant's recovery had "reached a 
 
         plateau," and claimant was ready to return to light duty work 
 
         activities with permanent restrictions of no lifting over 20 
 
         pounds; no excessive bending, stooping or twisting of the 
 
                                                
 
                                                         
 
         lumbosacral spine.
 
         
 
              Claimant admitted that he had back problems before September 
 
         1985, but indicated these problems were in the upper back and 
 
         shoulders for which he received chiropractic treatment.  Jeffrey 
 
         Meyer, D.C., indicated that claimant had treatment for both upper 
 
         and lower back difficulties since 1982, but the treatment was 
 
         mainly for the upper back.  Claimant's earliest low back 
 
         complaints occurred in June 1983, brought on by his coughing.  In 
 
         histories given to other physicians, claimant stated that he had 
 
         back problems all of his life which have become worse over the 
 
         past few years.
 
         
 
              Dr. Bashara rates claimant's impairment as consisting of a 
 
         25 percent permanent partial impairment to the body as a whole 
 
         but that five percent of this is due to prior existing low back 
 
         difficulty.  Dr. Bashara attributes the remaining 20 percent 
 
         impairment to the work injury in September 1985.  In his 
 
         deposition Dr. Bashara opined that the work incident described by 
 
         claimant induced the spondylolisthesis condition and the 
 
         resultant impairment and also opined that it was likely that 
 
         claimant's heavy work at Clarklift over the 13 years was a likely 
 
         cause of the spondylolisthesis condition.  Dr. Bashara stated 
 
         that even if he were to assume that the spondylolisthesis 
 
         condition preexisted the alleged work injury or claimant's work 
 
         at Clarklift, such an assumption would not change his opinion 
 
         that the surgery and impairment were work related.  Dr. Bashara 
 
         stated in his deposition that it was not unusual for the onset of 
 
         symptoms to occur several minutes after the injury and the fact 
 
         that claimant had been carrying the saddle rather than lifting 
 
         the saddle at the time of the onset of pain did not change his 
 
         causal connection opinions.
 
         
 
              At the request of defendants, claimant was evaluated by 
 
         William R. Boulden, M.D., another board certified orthopedic 
 
         surgeon, in May 1986.  Initially, Dr. Boulden rated the claimant 
 
         as suffering from a 25 percent permanent partial impairment to 
 
         the body as a whole, 15 percent of which constituted the 
 
         preexisting spondylolisthesis condition.  In his deposition, Dr. 
 
         Boulden changed his causal connection opinion after reading the 
 
         testimony given by claimant in his deposition that the pain did 
 
         not begin until after he began to carry the saddle.  Such an act 
 
         of carrying the saddle did not, in the opinion of Dr. Boulden, 
 
         consist of traumatic event sufficient to cause the onset of pain 
 
         and the resultant surgery.  Dr. Boulden felt that the onset in 
 
         such case would be the natural course of events in any 
 
         spondylolisthesis condition.
 
         
 
              Dr. Hillyer, the general practitioner physician at the Mater 
 
         Clinic who initially treated claimant, opines that claimant's low 
 
         back difficulties were work related either due to the heavy work 
 
         at Clarklift over the years or due to the September 1985 
 
         incident. Dr. Hillyer testified it is not unusual for orthopedic 
 
         patients to blur the events and be unable to precisely indicate 
 
         or describe an orthopedic injury or when pain begins.
 
                                                
 
                                                         
 
         
 
              After his release by Dr. Bashara, claimant returned to 
 
         Clarklift to inquire as to returning to work and was told that 
 
         there was no job available within his physical restrictions 
 
         imposed by Dr. Bashara.  Claimant has made two applications for 
 
         employment in the Knoxville area and states that he monitors ads 
 
         for available jobs in local newspapers.  Claimant has not as yet 
 
         found suitable replacement employment.  Claimant began to receive 
 
         vocational rehabilitation counseling from Intercorp, a 
 
         rehabilitation service retained by defendants in the summer of 
 
         1986.  A part of this counseling consisted of an evaluation of 
 
         claimant's abilities by the state of Iowa rehabilitation 
 
         facilities located in Des Moines.  To date, claimant has not 
 
         located suitable employment from any vocational rehabilitation 
 
         activity.
 
         
 
              Claimant has an eighth grade education and a GED and was 
 
         able to demonstrate in the state tests a vocabulary equivalency 
 
         at the 12.7 grade level, reading comprehension at the 9.9 grade 
 
         level, general reading performance at the 11.4 grade level and 
 
         math skills at grade level 10.  Claimant demonstrated an ability 
 
         to keep accurate bookkeeping records but had difficulty with 
 
         understanding the concepts of double entry bookkeeping.  At the 
 
         state rehabilitation facility claimant expressed a desire for 
 
         training in gunsmithing and small engine repair.  The state 
 
 
 
                            
 
                                                         
 
         evaluation found that claimant had sufficient knowledge and 
 
         transferable skills to pursue vocational training in gunsmithing 
 
         and small engine repair but the counselors question the viability 
 
         of these goals due to claimant's physical limitations.  The state 
 
         rehabilitation testing also indicated some aptitude for low grade 
 
         clerical, bookkeeping or office type of employment but this was 
 
         not pursued with any vigor as claimant did not express an 
 
         interest in such employment.
 
         
 
              Richard Rattray, a state vocational rehabilitation 
 
         counselor, testified at the hearing that it is unlikely that 
 
         claimant will be able to obtain light industrial employment due 
 
         to his physical intolerance for activity and an inability to work 
 
         eight hours a day.  Rattray further testified that he felt that 
 
         claimant was not a good candidate for retraining due to the 
 
         constant back pain which would affect his thought processes.  
 
         Finally, Rattray did not believe that gunsmithing was a viable 
 
         vocational goal within this area.
 
         
 
              Mary Kathleen Schauwecker of Intercorp testified that 
 
         claimant can be employed as he possesses considerable 
 
         transferable skills in the area of mechanics and that he 
 
         possesses a good work record.  She believes that suitable 
 
         employment can be found with proper vocational counseling 
 
         including a program to improve job seeking skills, assistance in 
 
         contacting employers and a proper identification of job goals.  
 
         She identified various light duty positions which fall into 
 
         claimant's work abilities such as gunsmithing, retail and 
 
         sporting goods, inspection, shipping and receiving, small engine 
 
         repair and supervision of auto and truck mechanics.
 
         
 
              Claimant testified that his past employment primarily 
 
         consisted of carpentry, work as a glass cutter and assembler, 
 
         farming, and a truck driver/mechanic.
 
         
 
              Claimant currently works without pay as the treasurer and 
 
         bookkeeper of the Eagles Club in Knoxville for several hours each 
 
         day.
 
         
 
                                  APPLICABLE LAW
 
         
 
              Claimant has the burden of proving by a preponderance of the 
 
         evidence that he received an injury on September 9, 1985, which 
 
         arose out of and in the course of his employment.  McDowell v. 
 
         Town of Clarksville, 241 N.W.2d 904 (Iowa 1976); Musselman v. 
 
         Central Telephone Co., 261 Iowa 352, 154 N.W.2d 128 (1967).
 
         
 
              The injury must both arise out of and be in the course of 
 
         the employment.  Crowe v. DeSoto Consol. Sch. Dist., 246 Iowa 
 
         402, 68 N.W.2d 63 (1955) and cases cited at pp. 405-406 of the 
 
         Iowa Report.  See also Sister Mary Benedict v. St. Mary's Corp., 
 
         255 Iowa 847, 124 N.W.2d 548 (1963) and Hansen v. State of Iowa, 
 
         249 Iowa 1147, 91 N.W.2d 555 (1958).
 
         
 
              The words "out of" refer to the cause or source of the 
 
                                                
 
                                                         
 
         injury.  Crowe, 246 Iowa 402, 68 N.W.2d 63.
 
         
 
              The words "in the course of" refer to the time and place and 
 
         circumstances of the injury.  McClure v. Union et al. Counties, 
 
         188 N.W.2d 283 (Iowa 1971)i Crowe, 246 Iowa 402, 68 N.W.2d 63.
 
         
 
              "An injury occurs in the course of the employment when it is 
 
         within the period of employment at a place the employee may 
 
         reasonably be, and while he is doing his work or something 
 
         incidental to it."  Cedar Rapids Comm. Sch. Dist. v. Cady, 278 
 
         N.W.2d 298 (Iowa 1979); McClure, 188 N.W.2d 283; Musselman, 261 
 
         Iowa 352, 154 N.W.2d 128.
 
         
 
              While a claimant is not entitled to compensation for the 
 
         results of a preexisting injury or disease, the mere existence at 
 
         the time of a subsequent injury is not a defense.  Rose v. John 
 
         Deere Ottumwa Works, 247 Iowa 900, 908, 76 N.W.2d 756, 760-761 
 
         (1956).  If the claimant had a preexisting condition or 
 
         disability that is aggravated, accelerated, worsened or lighted 
 
         up so that it results in disability, claimant is entitled to 
 
         recover.  Nicks v Davenport Produce Co., 254 Iowa 130, 115 N.W.2d 
 
         812, 815 (1962).
 
         
 
              Functional impairment is an element to be considered in 
 
         determining industrial disability which is the reduction of 
 
         earning capacity, but consideration must also be given to the 
 
         injured employee's age, education, qualifications, experience and 
 
         inability to engage in employment for which he is fitted.  Olson 
 
         v. Goodyear Service Stores, 255 Iowa 1112, 125 N.W.2d 251 (1963). 
 
         Barton v. Nevada Poultry, 253 Iowa 285, 110 N.W.2d 660 (1961).
 
         
 
              A finding of impairment to the body as a whole found by a 
 
         medical evaluator does not equate to industrial disability.  This 
 
         is so as impairment and disability are not synonymous.  Degree of 
 
         industrial disability can in fact be much different than the 
 
         degree of impairment because in the first instance reference is 
 
         to loss of earning capacity and in the latter to anatomical or 
 
         functional abnormality or loss.  Although loss of function is to 
 
         be considered and disability can rarely be found without it, it 
 
         is not so that a degree of industrial disability is 
 
         proportionally related to a degree of impairment of bodily 
 
         function.
 
         
 
              Factors to be considered in determining industrial 
 
         disability include the employee's medical condition prior to the 
 
         injury, immediately after the injury, and presently; the situs of 
 
         the injury, its severity and the length of healing period; the 
 
         work experience of the employee prior to the injury, after the 
 
         injury and potential for rehabilitation; the employee's 
 
         qualifications intellectually, emotionally and physically; 
 
         earnings prior and subsequent to the injury; age; education; 
 
         motivation; functional impairment as a result of the injury; and 
 
         inability because of the injury to engage in employment for which 
 
         the employee is fitted. Loss of earnings caused by a job transfer 
 
         for reasons related to the injury is also relevant.  These are 
 
                                                
 
                                                         
 
         matters which the finder of fact considers collectively in 
 
         arriving at the determination of the degree of industrial 
 
         disability.
 
         
 
              There are no weighting guidelines that indicate how each of 
 
         the factors are to be considered.  There are no guidelines which 
 
         give, for example, age a weighted value of ten percent of the 
 
         total value, education a value of fifteen percent of total, 
 
         motivation - five percent; work experience - thirty percent, etc. 
 
         Neither does a rating of functional impairment directly correlate 
 
         to a degree of industrial disability to the body as a whole.  In 
 
         other words, there are no formulae which can be applied and then 
 
         added up to determine the degree of industrial disability.  It 
 
         therefore becomes necessary for the deputy or commissioner to 
 
         draw upon prior experience, general and specialized knowledge to 
 
         make the finding with regard to degree of industrial disability.  
 
         See Peterson v. Truck Haven Cafe, Inc., (Appeal Decision, 
 
         February 28, 1985); Christensen v. Hagen, Inc., (Appeal Decision, 
 
         March 26, 1985).
 
         
 
              Iowa Code section 85.34(1) states:
 
         
 
                 If an employee has suffered a personal injury causing 
 
              permanent partial disability for which compensation is 
 
              payable as provided in subsection 2 of this section, the 
 
              employer shall pay to the employee compensation for a 
 
              healing period, as provided in section 85.37, beginning on 
 
              the date of injury, and until the employee has returned to 
 
              work or it is medically indicated that significant 
 
              improvement from the injury is not anticipated or until the 
 
              employee is medically capable of returning to employment 
 
              substantially similar to the employment in which the 
 
              employee was engaged at the time of injury, whichever occurs 
 
              first.
 
         
 
              The "cumulative injury rule" may apply when disability 
 
         develops over a period of time.  The compensable injury is held 
 
         to occur at the later time. For time limitation purposes, the 
 
         injury in such cases occurs when, because of pain or physical 
 
         disability, the claimant can no longer work.  McKeever Custom 
 
         Cabinets v. Smith, 379 N.W.2d 368 (Iowa 1985).
 
         
 
                                 ANALYSIS
 
         
 
              Defendants' first issue on appeal concerns the finding by 
 
         the deputy that claimant suffered a cumulative injury.  
 
         Defendants urge that claimant is required to specifically plead a 
 
         cumulative injury theory in order to be awarded disability 
 
         benefits based on such a theory of injury.
 
         
 
              Claimant is not required to assert a theory of injury in his 
 
         pleadings.  The finder of fact is entitled to draw from the 
 
         evidence presented any finding of fact supported by the evidence. 
 
         If the evidence presented indicates that claimant's present 
 
         condition is the result of a cumulative injury, claimant is 
 
                                                
 
                                                         
 
         entitled to a finding of fact that a cumulative injury has 
 
         occurred regardless of whether that theory of recovery is 
 
         contained in the pleadings.  In addition, in this case defendants 
 
         cannot claim surprise or lack of notice when the depositions of 
 
         the doctors taken prior to the hearing discussed claimant's 
 
         conditions being the result of cumulative or repetitive trauma. 
 
         The record shows that claimant's work did involve repetitive 
 
         bending, lifting and stooping.  The medical evidence attributes 
 
         his present condition to this repetitive activity.  Claimant has 
 
         suffered a cumulative injury.
 
         
 
              Defendants also urge that claimant's injury did not arise 
 
         out of his employment.  Defendants note claimant's alleged prior 
 
         condition of spondylolisthesis, and that claimant's onset of pain 
 
         may have occurred when claimant was carrying an item weighing 14 
 
         pounds rather than when claimant was lifting the item.  The mere 
 
         fact that claimant may have had a preexisting back condition does 
 
         not preclude recovery by him if an injury has aggravated that 
 
         condition.  Claimant is entitled to recover benefits for the 
 
         extent the injury has induced a new condition or aggravated a 
 
         preexisting condition.  Similarly, although a discrepancy may 
 
         exist in the record as to just when claimant's onset of pain 
 
         occurred, it is noted that the difference in time between 
 
         claimant lifting the item and carrying it was at most only a few 
 
         seconds.
 
         
 
              Claimant's injury, whether a cumulative injury from 
 
         repetitive trauma or from a single incident of lifting or 
 
         carrying, clearly arose out of his employment.  It would appear 
 
         from defendants' arguments that the real issue raised is one of 
 
         causal connection between claimant's present condition and his 
 
         injury, rather than a causal connection between claimant's work 
 
         and his injury.  Dr. Hillyer and Dr. Bashara causally connected 
 
 
 
                                 
 
                                                         
 
         claimant's present condition to his work injury of September 9, 
 
         1985.  Dr. Boulden originally made the same causal connection, 
 
         but then retracted this opinion when asked if the fact that 
 
         claimant was not lifting at the time of the onset of pain would 
 
         alter his view.
 
         
 
              As noted above, the time gap between claimant's lifting of 
 
         the saddle and carrying it was negligible.  In addition, it is 
 
         noted that claimant's description of the injury given closest in 
 
         time to the injury did describe it as occurring while lifting the 
 
         saddle.  Finally, taken as a whole the medical evidence does 
 
         establish by the greater weight of evidence that claimant's 
 
         present condition was at least in part caused by claimant's 
 
         injury of September 9, 1985.  Claimant's work injury either 
 
         induced spondylolisthesis or aggravated an existing case of 
 
         spondylolisthesis.  Claimant's present low back condition is 
 
         causally related to his work injury.
 
         
 
              Defendants next argue that the deputy improperly relied on 
 
         Dr. Hillyer to determine claimant's credibility.  The deputy did 
 
         note Dr. Hillyer's statement that it was not unusual for a 
 
         claimant's memory of the exact onset of pain to "blur."  However, 
 
         Dr. Hillyer did not express an opinion on claimant's credibility, 
 
         but merely offered a medical explanation for claimant's allegedly 
 
         inconsistent statements.  Dr. Hillyer did not offer an opinion as 
 
         to claimant's truthfulness, and there is nothing in the record to 
 
         indicate that the deputy did not make his own independent 
 
         determination of claimant's credibility.
 
         
 
              Defendants' fourth issue states that the deputy awarded a 
 
         healing period greater than that stipulated to by the parties.  A 
 
         deputy is not bound by a matter that is not contested by the 
 
         parties, where the record indicates that the stipulation is 
 
         incorrect.  The deputy awarded healing period benefits through 
 
         July 3, 1986, when the medical evidence indicates claimant 
 
         reached a "plateau."  The parties stipulated to healing period 
 
         benefits "at least" through June 15, 1986.  The deputy was within 
 
         his authority to find a different end date for claimant's healing 
 
         period from the evidence.
 
         
 
              As a final issue on appeal, defendants urge that the award 
 
         of 70 percent industrial disability is not warranted by the 
 
         evidence. Claimant also raises the extent of disability as an 
 
         issue on appeal.  Industrial disability is determined by several 
 
         factors. Claimant has physical impairment ratings of 25 percent 
 
         of the body as a whole from two of his physicians.  Claimant also 
 
         has restrictions against repetitive lifting, bending and 
 
         stooping.
 
         
 
              Claimant's educational background consists of an 8th grade 
 
         education plus GED.  Claimant has scored higher than 8th grade 
 
         level on several standardized tests.  Claimant has undergone 
 
         vocational rehabilitation assessments, one of which indicates 
 
         claimant could perform certain light duty jobs.  Another 
 
         evaluation was based on the premise that claimant could not work 
 
                                                
 
                                                         
 
         eight hours per day, but none of the medical evidence imposes 
 
         such a restriction.  Claimant's prior work experience has 
 
         involved physical labor.  Claimant was 50 years old at the time 
 
         of the hearing.  Claimant's age makes it difficult for him to 
 
         retrain, but also indicates claimant would normally have several 
 
         years of his working life ahead of him.  Claimant is presently 
 
         working on a volunteer basis for a social club, doing book work 
 
         that consumes several hours each day.  It would therefore appear 
 
         claimant could be employed in a record-keeping position.
 
         
 
              Claimant's motivation is also a factor.  Claimant has 
 
         limited his job search to watching newspaper ads and only a few 
 
         job applications.  Claimant's lack of efforts to find replacement 
 
         work indicates he is not an odd-lot employee.
 
         
 
              Claimant is unable to return to his old job because of his 
 
         physical condition.  Claimant has lost earnings as a result of 
 
         his injury, as claimant was making $11.15 per hour prior to his 
 
         injury.  The vocational rehabilitation evidence indicates that 
 
         claimant, if he were to find employment, would earn wages in the 
 
         range of $3.35 to $5.00 per hour.
 
         
 
              It is therefore concluded that as a result of his.injury, 
 
         claimant has an industrial disability of 60 percent.  It cannot 
 
         be determined from the record what portions, if any, of 
 
         claimant's present disability may have preceded claimant's 
 
         initial employment with defendant in 1972.  An apportionment is 
 
         not appropriate.
 
         
 
                                 FINDINGS OF FACT
 
         
 
              1.  On September 9, 1985, claimant suffered an injury to the 
 
         low back which arose out of and in the course of employment with 
 
         Clarklift.
 
         
 
              2.  Claimant's work injury of September 9, 1985, was either 
 
         the result of lifting or carrying on September 9, 1985, or was 
 
         the result of repetitive trauma over the course of his 
 
         employment.
 
         
 
              3.  As a result of his in jury, claimant underwent fusion 
 
         surgery at the L5-Sl level of his spine.
 
         
 
              4.  The work injury of September 9, 1985, was a cause of a 
 
         period of total disability during recovery from the injury and 
 
         surgery beginning on September 24, 1985 and ending on July 3, 
 
         1986, at which time claimant reached maximum healing.
 
         
 
              5.  The work injury of September 9, 1985, was a cause of 15 
 
         to 20 percent permanent partial impairment to the body as a whole 
 
         and permanent restrictions upon claimant's physical activity 
 
         consisting of no lifting over 20 pounds; no repetitive lifting, 
 
         bending, stooping, or twisting; and no prolonged sitting or 
 
         standing.  Claimant had no permanent restrictions before 
 
         September 9, 1985.
 
                                                
 
                                                         
 
         
 
              6.  Claimant's employment history is limited to heavy labor 
 
         occupations.
 
         
 
              7.  Claimant was 50 years old at the time of the hearing.
 
         
 
              8.  Claimant's formal education is limited to the eighth 
 
         grade.  Claimant has a GED.
 
         
 
              9.  Claimant is able to perform light duty, clerical, or 
 
         sedentary tasks.
 
         
 
              10.  Claimant has suffered a loss of earnings as a result of 
 
         his injury of September 9, 1985.
 
         
 
              11.  Claimant has made few attempts to find employment 
 
         subsequent to his injury.
 
         
 
              12.  As a result of his injury of September 9, 1985, 
 
         claimant has a loss of earning capacity of 60 percent.
 
         
 
                                  CONCLUSIONS OF LAW
 
         
 
              On September 9, 1985, claimant suffered an injury arising 
 
         out of and in the course of his employment with defendant 
 
         Clarklift.
 
         
 
              Claimant is entitled to healing period benefits from 
 
         September 24, 1985 through July 3, 1986.
 
         
 
              As a result of his injury of September 9, 1985, claimant has 
 
         an industrial disability of 60 percent.
 
         
 
              Claimant is not an odd-lot employee.
 
         
 
              WHEREFORE, the decision of the deputy is affirmed and 
 
         modified.
 
         
 
                                     ORDER
 
         
 
              THEREFORE, it is ordered:
 
         
 
              That defendants shall pay to claimant three hundred (300) 
 
         weeks of permanent partial disability benefits at the rate of two 
 
         hundred seventy-three and 86/100 dollars ($273.86) per week.
 
         
 
              That defendants shall pay to claimant healing period 
 
         benefits from September 24, 1985 through July 3, 1986 at the rate 
 
         of two hundred seventy-three and 86/100 dollars ($273.86) per 
 
         week.
 
         
 
              That defendants shall pay accrued weekly benefits in a lump 
 
         sum and shall receive a credit against this award for all weekly 
 
         benefits previously paid.
 
         
 
                                                
 
                                                         
 
              That defendants shall pay interest on weekly benefits 
 
         awarded herein as set forth in Iowa Code section 85.30.
 
         
 
              That defendants and claimant shall each pay one-half the 
 
         costs of this action pursuant to Division of Industrial Services 
 
         Rule 343-4.33.  Defendants shall be specifically taxed the sum of 
 
         two hundred seventy-four and 59/100 dollars ($274.59) for 
 
         reporting costs in the depositions of Dr. Hillyer and Dr. Bashara 
 
         and the sum of one hundred fifty and 00/100 dollars ($150.00) 
 
         each for witness fees of Dr. Hillyer and Dr. Bashara.
 
         
 
              That defendants shall file activity reports upon payment of 
 
         this award as requested by this agency pursuant to Division of 
 
         Industrial Services Rule 343-3.1.
 
         
 
         
 
              Signed and filed this 12th day of May, 1989.
 
         
 
         
 
         
 
         
 
                                                DAVID E. LINQUIST
 
                                             INDUSTRIAL COMMISSIONER
 
         
 
          Copies To:
 
         
 
         Mr. Donald G. Beattie
 
         Attorney at Law
 
         204 8th St. SE
 
         Altoona, Iowa  50009
 
         
 
         Mr. Marvin E. Duckworth
 
         Attorney at Law
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
                                                
 
                                                         
 
         2700 Grand Ave., Suite 111
 
         Des Moines, Iowa  50312
 
         
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
                                                
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         LESLIE DE HEER,
 
         
 
              Claimant,                               File No. 804325
 
         
 
         vs.                                       A R B I T R A T I O N
 
         
 
         CLARKLIFT OF DES MOINES,                     D E C I S I O N
 
         
 
              Employer,
 
                                                        F I L E D
 
         and
 
                                                        JAN 15 1988
 
         CIGNA COMPANIES,
 
                                              IOWA INDUSTRIAL COMMISSIONER
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
                              STATEMENT OF THE CASE
 
         
 
              This is a proceeding in arbitration brought by Leslie De 
 
         Heer, claimant, against Clarklift of Des Moines, employer 
 
         (hereinafter referred to as Clarklift), and Cigna Companies, 
 
         insurance carrier, defendants, for workers' compensation benefits 
 
         as a result of an alleged injury on September 9, 1985.  On 
 
         November 24, 1987, a hearing was held on claimant's petition and 
 
         the matter was considered fully submitted at the close of this 
 
         hearing.
 
         
 
              The parties have submitted a prehearing report of contested 
 
         issues and stipulations which was approved and accepted as a part 
 
         of the record of this case at the time of hearing.  Oral 
 
         testimony was received during the hearing from claimant and the 
 
         following witnesses:  Richard Rattray, Nona De Heer, Donald 
 
         Bryant, Mary Kathleen Schauwecker (f/k/a Kathy Ward).  The 
 
         exhibits received into the evidence at the hearing are listed in 
 
         the prehearing report.  Subsequent to the hearing, the parties 
 
         have indicated that exhibit L was to be withdrawn at the time of 
 
         hearing but was erroneously listed as an exhibit in the exhibit 
 
         list attached to the prehearing report.  Therefore, exhibit L was 
 
         not submitted and was not considered in arriving at this 
 
         decision.  According to the prehearing report, the parties have 
 
         stipulated to the following matters:
 
         
 
              1.  If defendants are held liable for the alleged injury, 
 
         claimant is entitled to at least temporary total disability or 
 
         healing period benefits from September 24, 1985 through June 15, 
 
         1986 and that claimant has not been employed since September 24, 
 
         1985 to defendants' knowledge.
 
         
 
              2.  If the injury is found to have caused permanent 
 
                                                
 
                                                         
 
         disability, the type of disability is an industrial disability to 
 
         the body as a whole.
 
         
 
              3.  Claimant's rate of compensation shall be $273.86 per 
 
         week.
 
         
 
              Defendants objected at hearing to any use by claimant of a 
 
         gradual injury or cumulative trauma theory or the use of any 
 
         other injury date in the application of such a theory in this 
 
         case for compensability as such a theory was not previously 
 
         plead.  This objection is not well taken and shall be overruled.  
 
         Legal theories need not be plead, only the relevant facts.  There 
 
         was no showing that defendants were surprised in any fashion as 
 
         to any facts or opinions under which such a theory in this case 
 
         was applied.  In fact, the underlying facts and expert opinions 
 
         giving rise to such a theory of recovery was first elicited from 
 
         physicians in this case in their depositions taken on October 13, 
 
         1987 and on November 18, 1987, well before the hearing.  It is 
 
         well established that the technical rules of pleadings do not 
 
         apply to cases before this agency.  As a policy matter, it would 
 
         not be consistent with the humanitarian principles of the 
 
         workers' compensation acts or administratively efficient to 
 
         require claimant to plead each and every possible injury date 
 
         (thereby creating a large number of agency files) under a 
 
         complicated legal theory such as the cumulative trauma or gradual 
 
         injury theories. This agency by its rules takes meticulous care 
 
         to avoid surprises of facts at the hearing in requiring a list of 
 
         exhibits and witnesses 15 days prior to hearing.  This is in most 
 
         cases sufficient notice of any facts relied upon in the 
 
         application of any particular legal theory.
 
         
 
                                     ISSUES
 
         
 
              The parties submitted the following issues for determination 
 
         in this proceeding:
 
         
 
                I.  Whether claimant received an injury arising out of and 
 
         in the course of his employment;
 
         
 
               II.  Whether there is a causal relationship between the 
 
         work injury and the claimed disability; and,
 
         
 
              III.  The extent of weekly disability benefits to which 
 
         claimant is entitled.
 
         
 
                           SUMMARY OF THE EVIDENCE
 
         
 
              The following is a summary of evidence presented in this 
 
         case.  For the sake of brevity, only the evidence most pertinent 
 
         to this decision is discussed.  Whether or not specifically 
 
         referred to in this summary, all of the evidence received at the 
 
         hearing was considered in arriving at this decision.  
 
         Furthermore, any attempted summarization of evidence will 
 
         inevitably contain conclusions as to what the evidence may show.  
 
         Such conclusions in this summary should be viewed as preliminary 
 
                                                
 
                                                         
 
         findings of fact.
 
         
 
              Claimant testified that he worked for Clarklift from 
 
         September, 1972 until September, 1985, as a forklift mechanic.  
 
         He stated that his duties consisted of repairing transmissions 
 
         and differentials on forklift trucks but his work also involved 
 
         overhauling motors and hydraulic lifts.  All of his work involved 
 
         heavy lifting over 20 pounds and repetitive bending, stooping, 
 
         lifting, twisting and prolonged standing.  Claimant earned $11.15 
 
         per hour and approximately $35,000 a year annually in his job at 
 
         the time of the alleged work injury.  Claimant's employment 
 
         records indicate that claimant was considered a good to fair 
 
         employee by his supervisor.  There is no indication prior to 
 
         September, 1985, that claimant had any difficulty performing his 
 
         work as a result of any physical limitations.  Claimant stated at 
 
         the hearing that he left his employment at Clarklift following 
 
         the alleged work injury.  Claimant has not worked since leaving 
 
         Clarklift.  Claimant's absentee record shows that he was rarely 
 
         absent from work due to illness before the alleged work injury.
 
         
 
              Claimant testified that his home life or activities outside 
 
         of his employment at Clarklift was generally very sedentary and 
 
         limited to light yard or household work.  There is some evidence 
 
         to indicate that at one point in time he did cut and sell 
 
         firewood but this was for a brief period of time well before the 
 
         alleged work injury.
 
         
 
              The facts surrounding the work injury are in dispute. 
 
         Claimant testified at hearing that on September 9, 1985, he was 
 
         working on a hydraulic cylinder located on his workbench.  While 
 
         lifting a "saddle" weighing approximately 25 to 30 pounds, he 
 
         felt a pop in his back.  While attempting to carry this saddle to 
 
         the parts washing area, he experienced pain after taking only a 
 
         few steps.  This pain began in his low back and radiated down 
 
         into his left leg.  Claimant said that this pain compelled him to 
 
         fall to the floor.  Claimant said that he then made it back to 
 
         his feet and continued to the washing area to complete the 
 
         washing of the saddle and the other parts he was carrying at the 
 
         time.  He then returned to the work bench at his work station but 
 
         he said that the pain gradually became worse and he told his 
 
         foreman eventually that he could no longer work.  Claimant then 
 
         left work for the day.  Claimant admitted that he did not 
 
         specifically tell his foreman at that time what exactly had 
 
         happened before leaving work but did so a few days later.
 
         
 
              In his deposition, claimant testified that the pain did not 
 
         develop until after he began to carry the saddle weighing 
 
         approximately 20 pounds or less and only after taking a few 
 
         steps. In the history provided to his initial treating 
 
         physicians, claimant stated that the pain began while he was in 
 
         the act of lifting and that the saddle weighed approximately 30 
 
         pounds.  This account was similar to the account of the incident 
 
         given by claimant to an insurance representative in a telephone 
 
         call soon after the incident.
 
         
 
                                                
 
                                                         
 
              Donald Bryant, claimant's supervisor, testified that the 
 
         saddle actually weighs 14 pounds from his measurement using a 
 
         scale prior to the hearing.  He stated that claimant told him 
 
         that the incident happened while carrying the saddle to the 
 
         washing area and that his "back gave out."  Bryant stated that he 
 
         recalls claimant stating that he was going to a chiropractor to 
 
         "pop joints" prior to the time of his work injury but generally 
 
         he was not around claimant to hear any back complaints.  Bryant 
 
         further stated that he was first aware of claimant's back 
 
         problems in 1982.
 
         
 
              Claimant immediately sought treatment after the incident on 
 
         September 9, from the Mater Clinic from Bernard C. Hillyer, M.D., 
 
         who immediately admitted claimant to the hospital for traction, 
 
         medication, physical therapy and bedrest.  Dr. Hillyer eventually 
 
         diagnosed claimant as suffering from an aggravation of a prior 
 
         existing spondylolisthesis (hereinafter referred to as spondy) 
 
         condition and referred claimant to Jerome Bashara, M.D., a board 
 
         certified orthopedic surgeon.  Claimant's treatment over the next 
 
         several weeks remained conservative until November, 1985, when 
 
         claimant was readmitted to the hospital for additional testing and 
 
         possible surgery.  After this testing confirmed the need for 
 
         surgery, Dr. Bashara performed a gill laminectomy and fusion at 
 
         the L5-S1 level of claimant's spine.  Claimant then underwent a 
 
         slow but steady recovery over the next several months until July 
 
 
 
                         
 
                                                         
 
         3, 1986, when Dr. Bashara stated that claimant's recovery had 
 
         "reached a plateau" and that claimant was ready for work.  
 
         However, Dr. Bashara's release for work was only to light duty 
 
         activities with no lifting over 20 pounds or excessive bending, 
 
         stooping or twisting of the lumbosacral spine.  These restrictions 
 
         have not been changed by Dr. Bashara since that time and the 
 
         doctor considers them as permanent.
 
         
 
              At the hearing claimant admitted that he had back problems 
 
         before September, 1985, but indicated that these problems were in 
 
         the upper back and shoulders.  Claimant also stated that he 
 
         received chiropractic treatment for these problems.  The records 
 
         of Jeffrey Meyer, D.O., indicates that claimant had treatment not 
 
         only for upper back problems but also for lower back difficulties 
 
         since 1982, but primarily for the upper back.  The earliest low 
 
         back complaints that can be deciphered from the records of Dr. 
 
         Meyer submitted into evidence was in June of 1983 following an 
 
         incident brought on by coughing.  In histories given to 
 
         physicians in this case, claimant stated that he had back 
 
         problems all of his life and that over the past few years these 
 
         problems had become worse.  Claimant stated in his deposition 
 
         that he only had backaches before September, 1985, and certainly 
 
         not the type of pain and difficulties that he experienced in the 
 
         alleged work injury.
 
         
 
              Claimant testified that at the present time his low back 
 
         continues to hurt and in addition to the restrictions imposed by 
 
         Dr. Bashara, he has difficulty with prolonged sitting and 
 
         standing.  He stated that he does enjoy walking and does so for 
 
         extended periods of time.  Dr. Bashara rates claimant's 
 
         impairment as consisting of a 25 percent permanent partial 
 
         impairment to the body as a whole but that five percent of this 
 
         is due to a prior existing low back difficulty.  Dr. Bashara 
 
         attributes the remaining 20 percent impairment to the work injury 
 
         in September, 1985.  In his deposition Dr. Bashara opined that 
 
         the work incident described by claimant induced the spondy 
 
         condition and the resultant impairment and also opined that it 
 
         was likely that claimant's heavy work at Clarklift over 13 years 
 
         was also a likely cause of the spondy condition.  Dr. Bashara 
 
         stated that even if he were to assume that the spondy condition 
 
         preexisted the alleged work injury or claimant's work at 
 
         Clarklift, such an assumption would not change his opinion that 
 
         the surgery and impairment were work related.
 
         
 
              At the request of defendants, claimant was evaluated by 
 
         William R. Boulden, M.D., another board certified orthopedic 
 
         surgeon, in May, 1986.  Initially, Dr. Boulden relied upon the 
 
         history that claimant felt pain while lifting the saddle and 
 
         opined that claimant traumatically aggravated the preexisting 
 
         spondy condition.  He then rated the claimant as suffering from a 
 
         25 percent permanent partial impairment to the body as a whole, 
 
         15 percent of which constituted the preexisting spondy condition.  
 
         In his deposition, Dr. Boulden changed his causal connection 
 
         opinion after reading the testimony given by claimant in his 
 
         deposition that the pain did not begin until after he began to 
 
                                                
 
                                                         
 
         carry the saddle.  Such an act of carrying the saddle did not in 
 
         the opinion of Dr. Boulden consist of a traumatic event 
 
         sufficient to cause the onset of pain and the resultant surgery.  
 
         Dr. Boulden felt that the onset in such case would be the natural 
 
         course of events in any spondy condition.  Dr. Bashara stated in 
 
         his deposition that it was not unusual for the onset Of symptoms 
 
         to occur several minutes after the injury and the fact that 
 
         claimant had been carrying the saddle rather than lifting the 
 
         saddle at the time of the onset of pain did not change his causal 
 
         connection opinions.
 
         
 
              Finally, Dr. Hillyer, the general practitioner physician at 
 
         the Mater Clinic who initially treated claimant, opines that 
 
         claimant's low back difficulties were work related either due to 
 
         the heavy work at Clarklift over the years or due to the 
 
         September, 1985 incident.  Dr. Hillyer, in his deposition, stated 
 
         that he was in a residency program at a hospital in the State of 
 
         Kansas and had treated over a 1,000 orthopedic patients in the 
 
         past but that he does not considered himself a specialist in 
 
         orthopedic surgery.  However, Dr. Hillyer does perform some 
 
         limited orthopedic surgeries in the area of the hip and minor 
 
         surgery such as for carpal tunnel syndrome.  Dr. Hillyer 
 
         testified it is not unusual for orthopedic patients to blur the 
 
         events and be unable to precisely indicate or describe an 
 
         orthopedic injury or when pain begins.  Therefore, he did not 
 
         think it particularly important whether the pain began while 
 
         lifting or soon thereafter.
 
         
 
              After his release by Dr. Bashara, claimant returned to 
 
         Clarklift to inquire as to returning to work and was told that 
 
         there was no job available within his physical restrictions 
 
         imposed by Dr. Bashara.  Claimant has made two applications for 
 
         employment in the Knoxville area and states that he monitors ads 
 
         for available jobs in local newspapers.  Claimant has not as yet 
 
         found suitable replacement employment.  Claimant began to receive 
 
         vocational rehabilitation counseling from Intercorp, a 
 
         rehabilitation service retained by defendants in the summer of 
 
         1986.  A part of this counseling consisted of an evaluation of 
 
         claimant's abilities by the State of Iowa rehabilitation 
 
         facilities located in Des Moines.  To date, claimant has not 
 
         located suitable employment from any vocational rehabilitation 
 
         activity.
 
         
 
              The state vocational rehabilitation personnel extensively 
 
         evaluated claimant's job skills and rehabilitation potential. 
 
         Claimant drove to Des Moines daily for these evaluations which 
 
         lasted several days.  Despite the fact that claimant only has an 
 
         eighth grade education, he was able to demonstrate in the state 
 
         tests a vocabulary equivalency to the 12.7 GE level, reading 
 
         comprehension at the 9.9 grade level, general reading performance 
 
         at the 11.4 grade level and math skills at the 10 grade level. 
 
         Claimant demonstrated an ability to keep accurate bookkeeping 
 
         records but had difficulty with understanding the concepts of 
 
         double entry bookkeeping.  At the state rehabilitation facility 
 
         claimant expressed a desire for training in gunsmithing and small 
 
                                                
 
                                                         
 
         engine repair.  Claimant testified that he has had a long 
 
         interest and hobby in handling guns and has done minor repairs on 
 
         guns in the past such as making firing pins.  The state 
 
         evaluation found that claimant had sufficient knowledge and 
 
         transferable skills to pursue vocational training in gunsmithing 
 
         and small engine repair but the counselors question the viability 
 
         of these goals due to claimant's physical limitations.  Claimant 
 
         also did not believe that small engine repair was viable in that 
 
         he could not crank an engine during the repair work.  However, 
 
         the state rehabilitation personnel did approve an attempt to 
 
         pursue the gunsmithing training but this has not been 
 
         accomplished to date due to claimant's lack of funds.  The state 
 
         rehabilitation testing also indicated some aptitude for low grade 
 
         clerical, bookkeeping or office type of employment but this was 
 
         not pursued with any vigor as claimant did not express an 
 
         interest in such employment.
 
         
 
              Richard Rattray, a State Vocational Rehabilitation 
 
         counselor, testified at the hearing that it is unlikely that 
 
         claimant will be able to obtain light industrial employment due 
 
         to his physical intolerance for activity and an inability to work 
 
         eight hours a day.  He stated that the evaluators at the state 
 
         rehabilitation facility did observe claimant's inability to 
 
         tolerate prolonged standing and sitting and the need to 
 
         frequently change positions. Rattray further testified that he 
 
         felt that claimant was not a good candidate for retraining due to 
 
         the constant back pain which would affect his thought processes.  
 
         Finally, Rattray did not believe that gunsmithing was a viable 
 
         vocational goal as the chances of employment were unlikely in 
 
         gunsmithing within this area.
 
         
 
              Mary Kathleen Schauwecker testified for Intercorp on behalf 
 
         of the defendants.  Schauwecker testified that claimant can be 
 
         employed as he possesses considerable transferable skills in the 
 
         area of mechanics and that he possesses a good work record.  She 
 
         believes that suitable employment can be found with proper 
 
         vocational counseling including a program to improve job seeking 
 
         skills, assistance in contacting employers and a proper 
 
         identification of job goals.  She explains that further work by 
 
         Intercorp is awaiting the report from the state rehabilitation 
 
         evaluation testing.  She identified various light duty positions 
 
         which fall into claimant's work abilities such as gunsmithing, 
 
         retail and sporting goods, inspection, shipping and receiving, 
 
         small engine repair and supervision of auto and truck mechanics. 
 
         She testified that several jobs similar to these were available 
 
         last year in the Polk County area and in surrounding counties. 
 
         Schauwecker admitted that a study of job availability 
 
         specifically for claimant was not performed by her.  Many of the 
 
         openings could have exceeded claimant's physical limitations.  
 
         Finally, she stated that there are many jobs available which 
 
         allow a person to change position frequently.
 
         
 
              Claimant testified that his past employment primarily 
 
         consisted of carpentry with his father for two years after he 
 
         left high school, work as a glass cutter and assembler at 
 
                                                
 
                                                         
 
         Rolscreen, a self-employed farmer and a truck driver/mechanic at 
 
         Knoxville Ready Mix.  Claimant said his work as a farmer was 
 
         unsuccessful and he went bankrupt after two years.
 
         
 
              Claimant stated at hearing that he is 50 years of age with a 
 
         formal eighth grade education.  Claimant has completed his 
 
         requirements to obtain a GED.  Claimant and his wife testified 
 
         that his wife recently quit her job with the State of Iowa and 
 
         opened a restaurant business in the Knoxville area.  Both state 
 
         that today this business has not generated any income for the 
 
         family.  Claimant denies any participation in the business except 
 
         for running a few errands for his wife.  Claimant currently is 
 
         the treasurer and bookkeeper of the Eagles Club in Knoxville and 
 
         these duties require him to keep track of daily receipts and 
 
         expenditures and keeping books of account.  This work is however 
 
         on a volunteer basis for which he receives no compensation 
 
         despite the fact that it consumes several hours each day.
 
         
 
              Claimant's appearance and demeanor at the hearing indicated 
 
         that he was testifying in a candid and truthful manner.
 
         
 
                           APPLICABLE LAW AND ANALYSIS
 
         
 
                I.  Claimant has the burden of proving by a preponderance 
 
         of the evidence that claimant received an injury which arose out 
 
         of and in the course of employment.  The words "out of" refer to 
 
         the cause or source of the injury.  The words "in the course of" 
 
         refer to the time and place and circumstances of the injury.  
 
         See Cedar Rapids Community Sch. v. Cady, 278 N.W.2d 298 (Iowa 
 
         1979); Crowe v. DeSoto Consol. Sch. Dist., 246 Iowa 402, 68 
 
         N.W.2d 63 (1955). An employer takes an employee subject to any 
 
         active or dormant health impairments, and a work connected injury 
 
         which more than slightly aggravates the condition is considered 
 
 
 
                           
 
                                                         
 
         to be a personal injury.  Ziegler v. United States Gypsum Co., 
 
         252 Iowa 613, 620, 106 N.W.2d 591 (1960) and cases cited 
 
         therein.
 
         
 
              It is not necessary that claimant prove that his disability 
 
         results from a sudden unexpected traumatic event.  It is 
 
         sufficient to show that the disability developed gradually and 
 
         progressively from work activity over a period of time.  McKeever 
 
         Custom Cabinets v. Smith, 379 N.W.2d 368 (Iowa 1985).  The 
 
         McKeever court also held that the date of injury in a gradual 
 
         injury case is the time when the pain prevents the employee from 
 
         continuing to work.  In McKeever, the injury date coincided with 
 
         the time claimant was finally compelled to give up his job.
 
         
 
               II.  The claimant has the burden of proving by a 
 
         preponderance of the evidence that the work injury is a cause of 
 
         the claimed disability.  A disability may be either temporary or 
 
         permanent.  In the case of a claim for temporary disability, the 
 
         claimant must establish that the work injury was a cause of 
 
         absence from work and lost earnings during a period of recovery 
 
         from the injury.  Generally, a claim of permanent disability 
 
         invokes an initial determination of whether the work injury was a 
 
         cause of permanent physical impairment or permanent limitation in 
 
         work activity.  However, in some instances, such as a job 
 
         transfer caused by a work injury, permanent disability benefits 
 
         can be awarded without a showing of a causal connection to a 
 
         physical change of condition.  Blacksmith v. All-American, Inc., 
 
         290 N.W.2d 348, 354 (Iowa 1980); McSpadden v. Big Ben Coal Co., 
 
         288 N.W.2d 181 (Iowa 1980).
 
         
 
              The question of causal connection is essentially within the 
 
         domain of expert medical opinion.  Bradshaw v. Iowa Methodist 
 
         Hospital, 251 Iowa 375, 101 N.W.2d 167 (1960).  The opinion of 
 
         experts need not be couched in definite, positive or unequivocal 
 
         language and the expert opinion may be accepted or rejected, in 
 
         whole or in part, by the trier of fact.  Sondag v. Ferris 
 
         Hardware, 220 N.W.2d 903 (Iowa 1974).  The weight to be given to 
 
         such an opinion is for the finder of fact, and that may be 
 
         affected by the completeness of the premise given the expert and 
 
         other surrounding circumstances.  Bodish v. Fischer, Inc., 257 
 
         Iowa 516, 133 N.W.2d 867 (1965).
 
         
 
              Furthermore, if the available expert testimony is 
 
         insufficient alone to support a finding of causal connection, 
 
         such testimony may be coupled with nonexpert testimony to show 
 
         causation and be sufficient to sustain an award.  Giere v. Aase 
 
         Haugen Homes, Inc., 259 Iowa 1065, 146 N.W.2d 911, 915 (1966). 
 
         Such evidence does not, however, compel an award as a matter of 
 
         law.  Anderson v. Oscar Mayer & Co., 217 N.W.2d 531, 536 (Iowa 
 
         1974).  To establish compensability, the injury need only be a 
 
         significant factor, not be the only factor causing the claimed 
 
         disability.  Blacksmith, 290 N.W.2d 348, 354.  In the case of a 
 
         preexisting condition, an employee is not entitled to recover for 
 
         the results of a preexisting injury or disease but can recover 
 
         for an aggravation thereof which resulted in the disability found 
 
                                                
 
                                                         
 
         to exist.  Olson v. Goodyear Service Stores, 255 Iowa 1112, 125 
 
         N.W.2d 251 (1963).
 
         
 
              In the case sub judice, whether you use a specific injury 
 
         theory or cumulative trauma theory, claimant has shown a work 
 
         injury on September 9, 1985.  Under the cumulative injury theory 
 
         this would coincide with the time claimant was finally compelled 
 
         to give up his job due to his pain.  Although the views of Dr. 
 
         Boulden were considered and are certainly important, they cannot 
 
         overshadow the views of the two primary treating physicians, Dr. 
 
         Bashara and Dr. Hillyer.  Dr. Bashara is also board certified and 
 
         Dr. Hillyer is certainly not unfamiliar with orthopedic problems.  
 
         With reference to claimant's differing accounts as to when the 
 
         pain began, the comments of Dr. Hillyer that pain tends to blur 
 
         events were most appropriate.  Furthermore, if one must decide 
 
         what exactly happened on the date in order to make a finding of a 
 
         work injury, claimant's account given soon after the incident to 
 
         his physicians and to the insurance investigator would probably be 
 
         more correct than one given in a deposition two years later.  
 
         Under the first scenario of events given by claimant, Dr. Boulden 
 
         had no problem with a causal connection opinion.  Therefore, the 
 
         greater weight of the opinion evidence offered in this case 
 
         supports the finding that claimant suffered a work injury on 
 
         September 9, 1985. This work injury consisted of either the spondy 
 
         condition or an aggravation of this spondy condition.
 
         
 
              Aside from the causal connection issue, the orthopedic 
 
         surgeons in this case all agree that claimant currently has a 25 
 
         percent permanent partial impairment to the body as a whole.  Dr. 
 
         Bashara opines that five percent of this is due to the 
 
         preexisting spondy condition and Dr. Boulden opined initially 
 
         that 10 percent of this is due to the prior existing condition.  
 
         The greater weight of these opinions establish that claimant has 
 
         suffered a 15 to 20 percent permanent partial impairment to the 
 
         body as a whole as a result of the September 9, 1985 work 
 
         injury.
 
         
 
              III.  Claimant must establish by a preponderance of the 
 
         evidence the extent of weekly benefits for permanent disability 
 
         to which claimant is entitled.  As the claimant has shown that 
 
         the work injury was a cause of a permanent physical impairment or 
 
         limitation upon activity involving the body as a whole, the 
 
         degree of permanent disability must be measured pursuant to Iowa 
 
         Code section 85.34(2)(u).  However, unlike scheduled member 
 
         disabilities, the degree of disability under this provision is 
 
         not measured solely by the extent of a functional impairment or 
 
         loss of use of a body member.  A disability to the body as a 
 
         whole or an "industrial disability" is a loss of earning capacity 
 
         resulting from the work injury.  Diederich v. Tri-City Railway 
 
         Co., 219 Iowa 587, 593, 258 N.W. 899 (1935).  A physical 
 
         impairment or restriction on work activity may or may not result 
 
         in such a loss of earning capacity.  The extent to which a work 
 
         injury and a resulting medical condition has resulted in an 
 
         industrial disability is determined from examination of several 
 
         factors. These factors include the employee's medical condition 
 
                                                
 
                                                         
 
         prior to the injury, immediately after the injury and presently; 
 
         the situs of the injury, its severity and the length of healing 
 
         period; the work experience of the employee prior to the injury, 
 
         after the injury and potential for rehabilitation; the employee's 
 
         qualifications intellectually, emotionally and physically; 
 
         earnings prior and subsequent to the injury; age; education; 
 
         motivation; functional impairment as a result of the injury; and 
 
         inability because of the injury to engage in employment for which 
 
         the employee is fitted.  Loss of earnings caused by a job 
 
         transfer for reasons related to the injury is also relevant.  
 
         Olson, 255 Iowa 1112, 1121, 125 N.W.2d 251, 257 (1963).  See 
 
         Peterson v. Truck Haven Cafe, Inc., (Appeal Decision, February 
 
         28, 1985).
 
         
 
              Claimant's medical condition before the work injury was 
 
         certainly not excellent and he suffered from a few low back 
 
         difficulties in the years before the work injury.  Also, under 
 
         the theory of gradual injury, such a history is consistent with a 
 
         gradual increase in symptomatology.  Physicians have opined that 
 
         claimant had a five to ten percent previously existing permanent 
 
         partial impairment.  Although claimant may have had this prior 
 
         impairment, any impairment prior to the work injury is not 
 
         important as the record does not indicate that such impairment 
 
         resulted in any work disability.  Claimant was fully able to 
 
         perform all of his duties at Clarklift including heavy lifting; 
 
         repetitive lifting, bending; twisting and stooping; and, 
 
         prolonged standing and sitting.  No physician ever imposed any 
 
         permanent restrictions on claimant's activity prior to September 
 
         9, 1985. Claimant was very infrequently absent from work due to 
 
         illness. Apportionment of disability between a preexisting 
 
         condition and an injury is proper only when there is some 
 
         ascertainable disability which existed independently before the 
 
         injury occurred.  Varied Enterprises v. Sumner, 353 N.W.2d 407 
 
         (Iowa 1984).  Therefore, apportionment of industrial disability 
 
         is not appropriate in this case as none existed before September 
 
         9, 1985.
 
         
 
              As a result of the September 9, 1985 injury, claimant's 
 
         whole body has been affected and claimant was compelled to 
 
         undergo surgery which took several months to heal.  Claimant now 
 
         has permanent restrictions upon his work activities which prevent 
 
         him from returning to his employment at Clarklift and any other 
 
         employment to which he is best suited given his heavy labor 
 
         background.
 
         
 
              Apart from his lost earnings during his healing period which 
 
         will be compensated by healing period benefits, claimant has 
 
         suffered a significant permanent loss in actual earnings as a 
 
         result of his disability and inability to return to work.
 
         
 
              Claimant is middle age and should be in the most productive 
 
         employment years of his life.  His loss of future earnings from 
 
         employment due to his disability is much more severe than would 
 
         be the case for a younger or an older individual.  Becke v. 
 
         Turner-Busch, Inc., Thirty-Fourth Biennial Report of the Iowa 
 
                                                
 
                                                         
 
         Industrial Commissioner 34 (1979); also Walton v. B & H Tank 
 
         Corp., II Iowa Industrial Commissioner Report 426 (1981).
 
         
 
              Although it was shown that claimant is capable of certain 
 
         types of light duty work, claimant requests an award of permanent 
 
         total disability due to the application of the so-called 
 
         "odd-lot" doctrine.  This doctrine is a procedure device designed 
 
         to shift the burden of proof with respect to employability to the 
 
         employer in certain factual settings.  Klein v. Furnas Elec. Co., 
 
         384 N.W.2d 370, 375 (Iowa 1986).  A worker becomes an "odd-lot" 
 
         employee when an injury makes the worker incapable of obtaining 
 
         employment in any well known branch of the labor market.  Guyton 
 
         v. Irving Jensen Co., 373 N.W.2d 101, 105 (Iowa 1985).  An 
 
         odd-lot worker can only perform services that are so limited in 
 
         quality, dependability, or quantity that a reasonably stable 
 
         market for them does not exist.  Id. In Guyton the Supreme Court 
 
         held that under the odd-lot doctrine, there is no presumption 
 
         that merely because the worker is physically able to do certain 
 
         work, that such work is available.  When a worker makes a prima 
 
         facie case of total disability by producing substantial evidence 
 
         that the work is not employable in the competitive labor market, 
 
         the burden to produce evidence shifts to the employer.  If the 
 
         employer fails to produce such evidence and if the trier of fact 
 
         finds that the worker does fall into the odd-lot category, the 
 
         worker is entitled to a finding of total disability.  Id. at 106.  
 
         The Supreme Court in Guyton indicated that such a prima facie 
 
         case can be established by a showing of a reasonable but 
 
         unsuccessful effort to secure employment in the area of 
 
         claimant's residence.
 
         
 
              In the case sub judice, claimant failed to make out such a 
 
         prima facie case for application of the odd-lot doctrine. 
 
         Admittedly, the vocational rehabilitation evidence offered by 
 
 
 
                           
 
                                                         
 
         defendants was extremely lacking as there was no real attempt to 
 
         actually assess the marketability of claimant's limited skills in 
 
         the area of his residence.  However, claimant did not make a 
 
         sufficient effort in the opinion of this deputy commissioner to 
 
         find suitable replacement work.  He has been released for light 
 
         duty activity since July, 1986, and has only applied at a very 
 
         limited number of employers by his own testimony.  Limiting a job 
 
         search to monitoring newspaper ads is not the type of effort 
 
         needed to invoke the procedural aspects of odd-lot doctrine.
 
         
 
              Although claimant cooperated with what vocational counseling 
 
         was offered to him, the vocational efforts appeared to be limited 
 
         solely to the ascertaining of his disability for purposes of 
 
         presenting evidence before various tribunals rather than securing 
 
         suitable employment.  The capabilities assessment made by State 
 
         Vocational personnel was extremely limited.  The inquiry was 
 
         limited to only examining the suitability of gunsmithing and 
 
         small engine repair, despite surprisingly high scores given 
 
         claimant's eighth grade education in the area of his vocabulary, 
 
         reading and math skills.  The assessment of suitability for 
 
         office, clerical or several other sedentary work was not fully 
 
         examined because claimant did not express an interest in pursuing 
 
         such job goals. If claimant is capable of working daily on the 
 
         Eagles Club's books of account, why is he unable to do so in an 
 
         employment setting, full or part-time or make an all out effort 
 
         to find such work.
 
         
 
              The views of the state rehabilitation counselor, Rattray, 
 
         that claimant was not employable in an industrial setting was 
 
         based upon his assessment that claimant cannot work for eight 
 
         hours a day.  The record is absent of any medical opinions or 
 
         other evidence including claimant's own testimony which would 
 
         indicate that claimant is incapable of working eight hours a day 
 
         in suitable employment.
 
         
 
              However, despite the failure of claimant to make out a prima 
 
         facie case for permanent total disability under the odd-lot 
 
         doctrine, claimant has demonstrated a very severe disability. 
 
         Although claimant now has achieved his GED, he still only 
 
         possesses an eighth grade education.  Claimant only has average 
 
         intelligence and any retraining certainly will not be easy for a 
 
         50 year old person.  Admittedly, claimant's physical limitations 
 
         and intellectual skills does not limit his entry into some sort 
 
         of sedentary work such as office, sales, food service, clerical 
 
         or light bench work.  However, claimant's earning capacities in 
 
         such occupations would be extremely low compared to his $11.00 an 
 
         hour job at Clarklift at the time of the work injury.  Given the 
 
         testimony of the Intercorp counselor, claimant could earn only 
 
         from $3.35 to $5.00 per hour in most of the light duty jobs she 
 
         has examined.
 
         
 
              After consideration of all the factors, it is found as a 
 
         matter of fact that claimant has suffered a 70 percent loss in 
 
         earning capacity from his work injury.  Based upon such a 
 
         finding, claimant is entitled as a matter of law to 350 weeks of 
 
                                                
 
                                                         
 
         permanent partial disability benefits under Iowa Code section 
 
         85.34(2)(u) which is 70 percent of the 500 weeks allowable for an 
 
         injury to the body as a whole in that subsection.
 
         
 
              As claimant has established entitlement to permanent partial 
 
         disability benefits, claimant is entitled to weekly benefits for 
 
         healing period under Iowa Code section 85.34 from the date of 
 
         injury until claimant returns to work; until claimant is 
 
         medically capable of returning to substantially similar work to 
 
         the work he was performing at the time of the injury; or, until 
 
         it is indicated that significant improvement from the injury is 
 
         not anticipated, whichever occurs first.
 
         
 
              The evidence is virtually uncontroverted that claimant 
 
         reached a plateau in his healing process on July 3, 1986 in the 
 
         opinion of his primary treating orthopedic surgeon, Dr. Bashara. 
 
         The views of the treating physician and surgeon in this case 
 
         should be given greater weight over those of Dr. Boulden in such 
 
         determinations.
 
         
 
              The cost request by claimant in an application submitted 
 
         subsequent to the hearing will be granted except that the expert 
 
         witness fees are limited in the same manner as in the District 
 
         Court to the sum of $150.00 per day.
 
         
 
                              FINDINGS OF FACT
 
         
 
              1.  Claimant was a credible witness.
 
         
 
              2.  Claimant was in the employ of Clarklift at all times 
 
         material herein.
 
         
 
              3.  On September 9, 1985, claimant suffered an injury to the 
 
         low back which arose out of and in the course of employment with 
 
         Clarklift.  Claimant was injured while lifting and carrying an 
 
         object at work while performing his heavy work at Clarklift over 
 
         the last 13 years which either aggravated or caused a 
 
         spondylolisthesis condition and eventually lead to fusion surgery 
 
         at the L5-S1 level of his spine.
 
         
 
              4.  The work injury of September 9, 1985 was a cause of a 
 
         period of total disability from work during recovery from the 
 
         injury and surgery beginning on September 24, 1985 and ending on 
 
         July 3, 1986, at which time claimant reached maximum healing.
 
         
 
              5.  The work injury of September 9, 1985, was a cause of a 
 
         15 to 20 percent permanent partial impairment to the body as a 
 
         whole and permanent restrictions upon claimant's physical 
 
         activity consisting of no lifting over 20 pounds; repetitive 
 
         lifting, bending, stooping, or twisting; and, prolonged sitting 
 
         or standing.  Claimant had no permanent restrictions before 
 
         September 9, 1985.
 
         
 
              6.  The work injury of September 9, 1985 and the resulting 
 
         permanent partial impairment was a cause of a 70 percent loss of 
 
                                                
 
                                                         
 
         earning capacity.
 
         
 
              Despite his prior back problems and a prior existing 
 
         functional impairment rated by physicians as consisting of five 
 
         to 15 percent to the body as a whole, this prior impairment was 
 
         not significant from an industrial disability standpoint.
 
         
 
              He was able to fully perform his heavy work at Clarklift 
 
         with varied and frequent absences from work from illness or due 
 
         to back problems.  Claimant's employer never complained of any 
 
         inability on the part of claimant to physically perform his 
 
         duties before September 9, 1985.  Claimant had no restrictions on 
 
         his physical activity prior to September 9, 1985.  Claimant lost 
 
         no earnings as a result of any back problems prior to September 
 
         9, 1985.
 
         
 
              Due to the work injury on September 9, 1985, claimant cannot 
 
         return to his mechanic work at Clarklift or to any other work that 
 
         he has held in the past or to which he is best suited due to his 
 
         history of employment only in heavy labor occupations.  Claimant 
 
         is 50 years old with only a formal eighth grade education. 
 
         Claimant has earned his GED.  Claimant performs academically in 
 
         the mid high school range in such areas as vocabulary, reading 
 
         comprehension and math.  Claimant is able to attend vocational 
 
         retraining so long as he has an upgrading of his math skills for 
 
         such occupations as gunsmithing or other light duty machinist type 
 
         work so long as the training does not exceed his physical 
 
         limitations.  Claimant can only drive an automobile or truck for 
 
         one hour or less without stopping to change positions and rest. 
 
         Claimant is able to perform accurate bookkeeping and filing type 
 
         of work but has difficulty understanding concepts such as double 
 
         entry bookkeeping.  Claimant has numerous transferable skills in 
 
         the area of auto and tractor mechanics but his disability prevents 
 
         the use of most of these skills in an industrial setting.  
 
         Claimant is capable of light bench work such as small engine 
 
         repair if an accommodation can be made for a lack of an ability to 
 
         crank the engine at various times. Claimant is able to perform 
 
         office, clerical, or other sedentary type of work so long as he is 
 
         permitted to change positions. Claimant has average potential for 
 
         vocational rehabilitation in jobs which earn considerably less 
 
         than his income at Clarklift at the time of the work injury.
 
         
 
              It could not be found that claimant can only perform 
 
         services that are so limited in quality, dependability or 
 
         quantity that a reasonably stable market for them does not 
 
         exist.
 
         
 
                               CONCLUSIONS OF LAW
 
         
 
              Claimant has established by a preponderance of the evidence 
 
         entitlement to permanent partial disability benefits and healing 
 
         period benefits as ordered below.
 
         
 
                                    ORDER
 
         
 
                                                
 
                                                         
 
              1.  Defendants shall pay to claimant three hundred fifty 
 
         (350) weeks of permanent partial disability benefits at the rate 
 
         of two hundred seventy-three and 86/100 dollars ($273.86) per 
 
         week from July 4, 1986.
 
         
 
              2.  Defendants shall pay to claimant healing period benefits 
 
         from September 24, 1985 through July 3, 1986 at the rate of two 
 
         hundred seventy-three and 86/100 dollars ($273.86) per week.
 
         
 
              3.  Defendants shall pay accrued weekly benefits in a lump 
 
         sum and shall receive a credit against this award for all 
 
         benefits previously paid.
 
         
 
              4.  Defendants shall pay interest on benefits awarded herein 
 
         as set forth in Iowa Code section 85.30.
 
         
 
              5.  Defendants shall pay the costs of this action pursuant 
 
         to Division of Industrial Services Rule 343-4.33 and shall be 
 
         specifically taxed the sum of two hundred seventy-four and 59/100 
 
         dollars ($274.59) for reporting costs in the depositions of Dr. 
 
         Hillyer and Dr. Bashara and the sum of one hundred fifty and 
 
         no/100 dollars ($150.00) each for witness fees of Dr. Hillyer and 
 
         Dr. Bashara.
 
         
 
              6.  Defendants shall file activity reports upon payment of 
 
         this award as requested by this agency pursuant to Division of 
 
         Industrial Services Rule 343-3.1.
 
         
 
         
 
              Signed and filed this 15th day of January, 1988.
 
         
 
                                    
 
                                                         
 
         
 
         
 
         
 
         
 
                                            LARRY P. WALSHIRE
 
                                            DEPUTY INDUSTRIAL COMMISSIONER
 
         
 
         Copies To:
 
         
 
         Mr. Donald G. Beattie
 
         Attorney at Law
 
         204-8th St. SE
 
         P. 0. Box 367
 
         Altoona, Iowa  50009
 
         
 
         Mr. Marvin E. Duckworth
 
         Attorney at Law
 
         2700 Grand Avenue
 
         Suite 111
 
         Des Moines, Iowa  50312
 
 
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                                 1803; 4100
 
                                                 Filed January 15, 1988
 
                                                 LARRY P. WALSHIRE
 
         
 
                    BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         LESLIE DE HEER,
 
         
 
              Claimant,
 
         
 
         vs.
 
                                                      FILE NO. 804325
 
         CLARKLIFT OF DES MOINES,
 
                                                    A R B I T R A T I 0 N
 
              Employer,
 
                                                       D E C I S I 0 N
 
         and
 
         
 
         CIGNA COMPANIES,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         1803; 4100
 
         
 
              Claimant awarded a 70 percent industrial disability due to a 
 
         showing of a severe inability to return to work subsequent to a 
 
         work injury.  The odd-lot doctrine was not applied however 
 
         because claimant failed to demonstrate a sufficient effort to 
 
         look for suitable replacement work.  He did cooperate with 
 
         vocational counselors but such counseling was insufficient.  It 
 
         was therefore found that claimant could be employed in sedentary 
 
         light work such as clerical, office, food service or other type 
 
         of work in the pay range from $3.35 an hour to $5.00 per hour.  
 
         Claimant, however, was making over $11.00 per hour at the time of 
 
         the work injury.
 
 
 
         
 
         
 
 
        
 
 
 
 
 
        
 
        
 
                                          2209 - 3903 - 1802
 
                                          2906 - 54100 - 1803
 
                                          Filed May 12, 1989
 
                                          DAVID E. LINQUIST
 
        
 
        
 
                    BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
        
 
        
 
        LESLIE DE HEER,
 
        
 
             Claimant,
 
             
 
        vs.                                              File No. 804325
 
        
 
        CLARKLIFT OF DES MOINES,                         A P P E A L
 
        
 
            Employer,                                   D E C I S I O N
 
        
 
        and
 
        
 
        CIGNA,
 
        
 
             Insurance Carrier,
 
             Defendants.
 
             
 
             
 
        2209
 
        
 
             Deputy was not precluded from finding a cumulative injury 
 
             where pleadings alleged only a traumatic injury.
 
        
 
        2902
 
        
 
             Deputy's acceptance of physician's explanation for 
 
             claimant's "blurred" recollection of events was not an improper 
 
             delegation of determination of credibility to the physician.
 
        
 
        1802, 2906
 
        
 
             The deputy was free to find a healing period that differed 
 
             from the stipulation of the parties where the record supported 
 
             the deputy's determination.
 
        
 
        54100
 
        
 
             Claimant found not to be an odd-lot employee.
 
        
 
        1803
 
        
 
             Claimant with 25 percent impairment of the body as a whole, 
 
             restrictions against heavy lifting or bending, 50 years old, with 
 
             eighth grade education, was found to be 70 percent industrially 
 
             disabled.
 
             
 
        
 
 
        
 
 
 
 
 
                       BEFORE THE IOWA INDUSTRIAL COMISSIONER
 
        
 
        
 
        
 
        CHARLES J. RICHARDSON,
 
        
 
            Claimant,                    File No. 804544
 
        
 
        vs .                                A P P E A L
 
        
 
        JOHN DEERE,                       D E C I S I O N
 
        
 
            Employer,
 
            Self-Insured,
 
            Defendant.
 
        
 
        
 
                                 STATEMENT OF THE CASE
 
        
 
        Claimant appeals from an arbitration decision denying any further 
 
        benefits for permanent partial disability.
 
        
 
        The record on appeal consists of the transcript of the 
 
        arbitration hearing and joint exhibits 1 through 35. Both parties 
 
        filed briefs on appeal. However, defendant objected to claimant's 
 
        untimely brief and it was previously ruled that claimant's brief 
 
        would not receive consideration.
 
        
 
                                      ISSUES
 
        
 
        This matter will be considered generally without any specified 
 
        errors. The issue considered by the deputy was the nature and 
 
        extent of claimant's permanent partial disability.
 
        
 
                                 REVIEW OF THE EVIDENCE
 
        
 
        The arbitration decision 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
 
        
 
        The analysis of the evidence in conjunction with the law in the 
 
        arbitration decision is adopted.
 
        
 
                                 FINDINGS OF FACT
 
        
 
        1. Claimant sustained an injury which arose out of and in the 
 
        course of his employment on or about April 4, 1985,
 
        
 
        RICHARDSON V. JOHN DEERE
 
        Page 2
 
        
 
        
 
        when he injured his back while picking up a box of hardware 
 
        weighing approximately 150 pounds.
 
        
 
        2. Claimant was in a serious motor vehicle accident August 8, 
 
        1981, in which he sustained eye damage, a broken neck and pelvis, 
 

 
        
 
 
 
 
 
        and head injury and which affected his short term memory, his 
 
        ability to comprehend recent events, instructions, directions and 
 
        information, and which impacted his equilibrium.
 
        
 
        3. Claimant, as a result of the motor vehicle accident, continues 
 
        to suffer from impaired memory, comprehension and equilibrium.
 
        
 
        4. As a result of the work related injury of April 4, 1985, 
 
        claimant underwent a three segment laminectomy with transdural 
 
        microscopic removal of a large extruded disc.
 
        
 
        5. Claimant returned to work January 2, 1986, with restrictions 
 
        not to lift more than 25 to 35 pounds.
 
        
 
        6. Claimant returned to work in the same job he held at the time 
 
        of his injury.
 
        
 
        7. Claimant subsequently bid into other jobs and the last job he 
 
        held was in production tool (crib) which fell within his medical 
 
        lifting restrictions.
 
        
 
        8. Claimant had difficulty performing his job because of the head 
 
        trauma he sustained and brought these concerns to the attention 
 
        of defendant.
 
        
 
        9. Claimant made no mention that his back presented any problems 
 
        in his continuing to work.
 
        
 
        10. All of the positions which claimant held since his return to 
 
        work on January 2, 1986, were within his medical restrictions, 
 
        defendant had positions available that claimant could fill within 
 
        these medical restrictions and as of the time of the hearing such 
 
        positions were still available.
 
        
 
        11. Claimant left work and accepted long-term disability benefits 
 
        for a nonoccupational reason effective January 2, 1986.
 
        
 
        12. Claimant sustained a permanent partial impairment as a result 
 
        of the work injury of April 4, 1985.
 
        
 
        13. Claimant's capacity to earn has been hampered as a result of 
 
        the work injury of April 4, 1985.
 
        
 
        14. Claimant has sustained a permanent partial disability for 
 
        industrial purposes of 15 percent as a result of the work injury 
 
        of April 4, 1985.
 
        
 
        RICHARDSON V. JOHN DEERE
 
        Page 3
 
        
 
        
 
                                 CONCLUSIONS OF LAW
 
        
 
        Claimant has sustained an injury to the body as a whole as a 
 
        result of the work injury of April 4, 1985.
 
        
 
        Claimant has sustained a permanent partial disability of 15 
 
        percent for industrial purposes.
 
        
 
        WHEREFORE, the decision of the deputy is affirmed.
 
        
 
                                      ORDER
 
        
 
        THEREFORE, it is ordered:
 
        
 
        That as claimant has been paid all benefits to which he was 
 

 
        
 
 
 
 
 
        entitled, claimant shall take nothing further as a result of 
 
        these proceedings.
 
        
 
        That claimant pay the costs of the appeal including costs of 
 
        transcription of the arbitration hearing.
 
        
 
        That all other costs are assessed against defendant pursuant to 
 
        Division of Industrial Services Rule 343-4.33.
 
        
 
        Signed and filed this 15th day of May, 1989.
 
        
 
        
 
        
 
                                              DAVID E. LINQUIST 
 
                                           INDUSTRIAL COMMISSIONER
 
        
 
        
 
 
            
 
 
 
             
 
                  
 
                 BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         CHARLES J. RICHARDSON,                     File No. 804544
 
         
 
              Claimant,                               A P P E A L
 
         
 
         vs.                                        D E C I S I O N
 
         
 
         JOHN DEERE,                                   F I L E D
 
         
 
              Employer,                               MAY 15 1989
 
              Self-Insured,
 
              Defendant.                     IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
                              STATEMENT OF THE CASE
 
         
 
              Claimant appeals from an arbitration decision denying any 
 
         further benefits for permanent partial disability.
 
         
 
              The record on appeal consists of the transcript of the 
 
         arbitration hearing and joint exhibits 1 through 35.  Both 
 
         parties filed briefs on appeal.  However, defendant objected to 
 
         claimant's untimely brief and it was previously ruled that 
 
         claimant's brief would not receive consideration.
 
         
 
                                    ISSUES
 
         
 
              This matter will be considered generally without any 
 
         specified errors.  The issue considered by the deputy was the 
 
         nature and extent of claimant's permanent partial disability.
 
         
 
                           REVIEW OF THE EVIDENCE
 
         
 
              The arbitration decision 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
 
         
 
              The analysis of the evidence in conjunction with the law in 
 
         the arbitration decision is adopted.
 
         
 
                               FINDINGS OF FACT
 
         
 
              1.  Claimant sustained an injury which arose out of and in 
 
         the course of his employment on or about April 4, 1985, when he 
 
         injured his back while picking up a box of hardware weighing 
 
         approximately 150 pounds.
 
         
 
                                                
 
                                                         
 
              2.  Claimant was in a serious motor vehicle accident August 
 
         8, 1981, in which he sustained eye damage, a broken neck and 
 
         pelvis, and head injury and which affected his short term memory, 
 
         his ability to comprehend recent events, instructions, directions 
 
         and information, and which impacted his equilibrium.
 
         
 
              3.  Claimant, as a result of the motor vehicle accident, 
 
         continues to suffer from impaired memory, comprehension and 
 
         equilibrium.
 
         
 
              4.  As a result of the work related injury of April 4, 1985, 
 
         claimant underwent a three segment laminectomy with transdural 
 
         microscopic removal of a large extruded disc.
 
         
 
              5.  Claimant returned to work January 2, 1986, with 
 
         restrictions not to lift more than 25 to 35 pounds.
 
         
 
              6.  Claimant returned to work in the same job he held at the 
 
         time of his injury.
 
         
 
              7.  Claimant subsequently bid into other jobs and the last 
 
         job he held was in production tool (crib) which fell within his 
 
         medical lifting restrictions.
 
         
 
              8.  Claimant had difficulty performing his job because of 
 
         the head trauma he sustained and brought these concerns to the 
 
         attention of defendant.
 
         
 
              9.  Claimant made no mention that his back presented any 
 
         problems in his continuing to work.
 
         
 
              10.  All of the positions which claimant held since his 
 
         return to work on January 2, 1986, were within his medical 
 
         restrictions, defendant had positions available that claimant 
 
         could fill within these medical restrictions and as of the time 
 
         of the hearing such positions were still available.
 
         
 
              11.  Claimant left work and accepted long-term disability 
 
         benefits for a nonoccupational reason effective January 2, 1986.
 
         
 
              12.  Claimant sustained a permanent partial impairment as a 
 
         result of the work injury of April 4, 1985.
 
         
 
              13.  Claimant's capacity to earn has been hampered as a 
 
         result of the work injury of April 4, 1985.
 
         
 
              14.  Claimant has sustained a permanent partial disability 
 
         for industrial purposes of 15 percent as a result of the work 
 
         injury of April 4, 1985.
 
         
 
                              CONCLUSIONS OF LAW
 
         
 
              Claimant has sustained an injury to the body as a whole as a 
 
         result of the work injury of April 4, 1985.
 
         
 
                                                
 
                                                         
 
              Claimant has sustained a permanent partial disability of 15 
 
         percent for industrial purposes.
 
         
 
              WHEREFORE, the decision of the deputy is affirmed.
 
         
 
                                      ORDER
 
         
 
              THEREFORE, it is ordered:
 
         
 
              That as claimant has been paid all benefits to which he was 
 
         entitled, claimant shall take nothing further as a result of 
 
         these proceedings.
 
         
 
              That claimant pay the costs of the appeal including costs of 
 
         transcription of the arbitration hearing.
 
         
 
              That all other costs are assessed against defendant pursuant 
 
         to Division of Industrial Services Rule 343-4.33.
 
                                        
 
              Signed and filed this 15th day of May, 1989.
 
         
 
         
 
         
 
         
 
         
 
         
 
                                               DAVID E. LINQUIST
 
                                            INDUSTRIAL COMMISSIONER
 
         
 
         Copies To:
 
         
 
         Mr. Thomas R. Isaac
 
         Attorney at Law
 
         3213 E. 14th Street
 
         Des Moines, Iowa  50316
 
         
 
         Mr. Roger L. Ferris
 
         Attorney at Law
 
         1900 Hub Tower
 
         699 Walnut
 
         Des Moines, Iowa  50309
 
         
 
         
 
         
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
                                                
 
 
            
 
          
 
                
 
 
 
                                            1803
 
                                            Filed May 15, 1989
 
                                            DAVID E. LINQUIST
 
         
 
                   BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         CHARLES J. RICHARDSON,
 
         
 
              Claimant,
 
                                                     File No. 804544
 
         vs.
 
                                                       A P P E A L
 
         JOHN DEERE,
 
                                                      D E C I S I 0 N
 
              Employer,
 
              Self-Insured,
 
              Defendant.
 
         
 
         
 
         
 
         1803
 
         
 
              Claimant was employed by employer for some thirty years. 
 
         During that time and prior to the work injury claimant was 
 
         involved in a motor vehicle accident.  As a result of this 
 
         accident he lost his peripheral vision and had difficulty with 
 
         equilibrium and memory.  Claimant's work injury to his back 
 
         resulted in a 15 percent impairment to his back.  Claimant 
 
         returned to work but later left his employment and began 
 
         receiving long-term disability benefits.  It was found that 
 
         claimant was unemployed as a result of the motor vehicle accident 
 
         not because of the work injury.  Claimant was found to have 
 
         industrial disability of 15 percent but was awarded nothing 
 
         further from decision because claimant had already been paid 
 
         benefits to which he was entitled.  Deputy affirmed on appeal.
 
         
 
         
 
         
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
                                                
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                  BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         CHARLES J. RICHARDSON,
 
         
 
              Claimant,
 
                                                   File No. 804544
 
         
 
         vs.
 
                                                A R B I T R A T I O N
 
         
 
         JOHN DEERE,                               D E C I S I O N
 
         
 
              Employer,
 
              Self-Insured,
 
              Defendant.
 
         
 
         
 
         
 
                              STATEMENT OF THE CASE
 
         
 
              This is a proceeding in arbitration brought by Charles J. 
 
         Richardson, claimant, against John Deere & Company, self-insured 
 
         employer, to recover benefits under the Iowa Workers' 
 
         Compensation Act as a result of an injury sustained on or about 
 
         April 4, 1985.  This matter came on for hearing before the 
 
         undersigned deputy industrial commissioner July 28, 1988.  The 
 
         record was considered fully submitted at the close of the 
 
         hearing.  The record in this case consists of the testimony of 
 
         claimant, Mary Ann Madole and Douglas Cross; and joint exhibits 1 
 
         through 35, inclusive.
 
         
 
                                      ISSUE
 
         
 
              Pursuant to the prehearing report and order submitted and 
 
         approved July 28, 1988, the sole issue presented for 
 
         determination is the nature and extent of claimant's permanent 
 
         partial disability.
 
         
 
                                 FACTS PRESENTED
 
         
 
              Claimant began working for defendant in 1959 and, except for 
 
         a few months spent working in the "tool crib" (production tool) 
 
         worked exclusively as a welder (1959-74) and parts handler 
 
         (1974-86).  Claimant's only other work experience is as a roofer 
 
         for three months when he was about 20 years old and as a gas 
 
         station attendant in 1958 or 1959.  Claimant has a history of 
 
         being treated for back problems and he was involved in a serious 
 
         motor vehicle accident on August 8, 1981 in which he sustained 
 
         eye damage, a broken neck and pelvis and head injury.  Claimant 
 
         explained he lost his peripheral vision and that after the injury 
 
         his equilibrium was off and his short-term memory was impacted.  
 
         Claimant described his ability to recall events which were long 
 
         past but an inability to recall recent events, instructions, 
 
         directions and information.  Claimant testified that following 
 
         this motor vehicle accident he was off work for about one year 
 
         and when he returned to work he thought it was to his regular 
 
         job.  However, claimant explained that when he left this job as a 
 
         result of the accident it paid an hourly wage but when he 
 
         returned to it the pay was based on incentive.  Claimant 
 
         testified that he "knew" he was going to have difficulty with 
 
         incentive work in light of his memory problems and therefore bid 
 
         out of that job into the position of a material handler which 
 
         again paid an hourly rate and which he felt he could better 
 

 
         
 
         RICHARDSON V. JOHN DEERE
 
         PAGE 2
 
 
 
         
 
         perform.
 
         
 
              Claimant was working as a material handler on April 4, 1985 
 
         when he sustained an injury to his back which arose out of and in 
 
         the course of his employment while picking up a box of hardware 
 
         weighing approximately 150 pounds.  Claimant was off work under 
 
         medical treatment and, after surgery, returned to work as a 
 
         material handler.  Claimant, to the best of his ability, recalled 
 
         this job did not violate any medical restrictions placed on him 
 
         after his back injury.  Claimant could not recall why he left 
 
         this job but explained he ended up working in the "tool crib" for 
 
         approximately one month.  Claimant admitted he did not have 
 
         difficulty performing this job except when he worked with the 
 
         computer which he found difficult to comprehend.  Claimant again 
 
         admitted that this position was within the medical restrictions 
 
         placed on him after his back surgery.
 
         
 
              Claimant took medical retirement in approximately May, 1986 
 
         and currently receives $1,000 per month in long termed disability 
 
         benefits.  Claimant acknowledged defendant did not force this 
 
         retirement on him.  On cross-examination, claimant admitted his 
 
         back was not a problem when he was working the crib job but his 
 
         problems stemmed from memory and comprehension difficulties.  
 
         Claimant did not recall telling any one he was leaving work 
 
         because of his back or any related symptoms.  Claimant has not 
 
         sought work since accepting the long-term disability benefits and 
 
         recalled he was told by counselors at Iowa Vocational 
 
         Rehabilitation that he was "unemployable."  Claimant stated 
 
         bending over and standing bother his back and that he cannot walk 
 
         long distances although he has not really attempted much 
 
         walking.
 
         
 
              Mary Ann Madole, who identified herself as the supervisor of 
 
         employee benefits at John Deere, testified claimant approached 
 
         her in mid-April, 1986 and advised he was having trouble with his 
 
         job in the crib because of his memory and because he was afraid 
 
         he was placing things in the wrong areas.  No mention was made of 
 
         back trouble.  Ms. Madole recalled she and claimant discussed the 
 
         need for a medical statement in order to place claimant on 
 
         long-term disability benefits and all appointment was made with 
 
         claimant's doctor for the purposes of securing such a statement. 
 
          Claimant is still considered an employee of defendant employer 
 
         as of the time of the hearing and is currently receiving 
 
         nonoccupational long-term disability benefits.
 
         
 
              Ms. Madole provided a partial history of claimant's 
 
         employment stating that at the time of his August, 1981 motor 
 
         vehicle accident he was working as.a.parts handler; he was then 
 
         off work approximately one year, returned to work for a few weeks 
 
         as a parts handler, and then bid into the job of material 
 
         handler, the job he was performing when he injured his back.  Ms. 
 
         Madole stated when claimant returned to work after nine months he 
 
         was a material storage stocker, then bid into material handler 
 
         and bid again into production tool (crib) where he worked from 
 
         mid-April, 1986 until June 2, 1986.  Ms. Madole testified all of 
 
         these jobs were within claimant's weight restrictions, that 
 
         defendant could give claimant a job today within these weight 
 
         restrictions, and that at the time claimant left jobs were 
 
         available within these weight restrictions.  She opined that any 
 
         difficulty in placing claimant would center around his balance, 
 
         memory and other residual problems from the motor vehicle 
 
         accident, not around the weight limitations placed on claimant by 
 
         his physicians subsequent to the back surgery.
 
         
 
              Douglas Cross testified he was claimant's supervisor from 
 
         April through June, 1986 when claimant was working in the crib 
 
         and that claimant's job performance while there was satisfactory. 
 
          Mr. Cross denied claimant ever complained he was having problems 
 
         with his work because of his back and no such problems were ever 
 

 
         
 
         
 
         
 
         RICHARDSON V. JOHN DEERE
 
         PAGE   3
 
         
 
         
 
         observed.
 
         
 
              Stuart R. Winston, M.D., of Neuro-Associates, P.C., 
 
         accurately relayed claimant's medical history on October 10, 1986 
 
         stating:
 
         
 
              Mr. Richardson was initially involved in a motor 
 
              vehicle accident in August of 1981 in which several of 
 
              his friends were killed.  He was unconscious for a 
 
              couple of days and was treated in Iowa City and 
 
              ultimately transferred to Mercy Hospital Medical 
 
              Center.  He had post-traumatic amnesia, fractures of 
 
              the pelvis, cervical region and head injury.  As a 
 
              result of his cerebral contusion and head trauma he had 
 
              a superior oblique palsy which caused him to have 
 
              double vision and he was ultimately discharged in 
 
              September of 1981 with a walker and followed at Younker 
 
              Rehab.  Ultimately he had surgery to correct his 
 
              squint.  He was able to return to work for John Deere 
 
              as a material handler and was seen over the years with 
 
              multiple complaints.
 
         
 
              He was seen in February 1985 with some reported 
 
              personality change, dysequilibrium, memory disturbance 
 
              and obvious depression...Ancillary testing at that time 
 
              showed a normal BAER, normal EMG, essentially normal 
 
              CAT scan of the brain and minimal changes on the EEG.
 
         
 
              In April of 1985 he was lifting a box of hardware at 
 
              work and developed aching of his low back and was 
 
              admitted by others for myelography and computed 
 
              scanning of the back which was said to be negative.  He 
 
              came to see us in June of 1985 and review of the 
 
              studies raised the possibility of a tumor or an 
 
              extruded disc at the L2-3 level and he was admitted to 
 
              Mercy Hospital Medical Center where he underwent a 
 
              transdural removal of a centrally herniated disc at 
 
              that level.  Subsequently, due to problems with his 
 
              lower extremities which he had prior to the surgery, he 
 
              was treated again at Younker as an outpatient. he was 
 
              returned to work then.
 
         
 
              On 5/l/86 the patient continued to have chronic 
 
              cerebral complaints, memory loss, visual disturbance, 
 
              dizziness when turning fast and dysequilibrium.  He 
 
              also was depressed and it was felt by the patient that 
 
              his employers wanted him out on a medical retirement.  
 
              His examination neurologically at that time, save for 
 
              his vision and wide based gait along with 
 
              dyscoordination of the right upper and right lower 
 
              extremity all felt to be secondary to his head injuries 
 
              of 1981, was essentially normal.
 
         
 
              He was last seen on 9/18/86 with some back discomfort, 
 
              upper now and low back pain at night. he was given some 
 
              muscle relaxants and non-narcotic medication for his 
 
              discomfort and we recommended that perhaps he might 
 
              need some physical therapy if he didn't improve.
 
         (Joint Exhibit 4, pages 8 & 9)
 
         
 
              Dr. Winston described the surgery performed on June 25, 1985 
 
         following the April, 1985 incident as a three segment laminectomy 
 
         with transdural microscopic removal of a large extruded disc.  On 
 

 
         
 
         
 
         
 
         RICHARDSON V. JOHN DEERE
 
         PAGE   4
 
         
 
         
 
         October 1, 1985 Dr. Winston advised Mary Ann Madole on claimant's 
 
         progress stating that claimant was slowly improving and that 
 
         claimant was permitted to start increasing his activities was 
 
         tolerated save for lifting greater than 20 pounds."  Claimant was 
 
         given a light duty return to work as of January 2, 1986 and Dr. 
 
         Winston opined at this time that claimant should not lift greater 
 
         than 25 to 35 pounds.  On May 1, 1986 Dr. Winston stated:
 
         
 
              I feel that he has reached a plateau and have 
 
              recommended that he stay with the restrictions of 25 to 
 
              30 pound lifting.  He does not have much in the way of 
 
              back pain but still has funny feelings in his legs.  I 
 
              feel that to the best of my ability to separate that 
 
              from his chronic cerebral complaints that I will be 
 
              addressing in a subsequent letter that he has partial 
 
              disability related to this accident of 1985 of 10 
 
              percent.
 
              (Jt. Ex. 8, p. 13)
 
         
 
              On May 22, 1986 and again on July 15, 1986 Dr. Winston 
 
         adjusted this rating to 15 percent stating, "Sorry for the 
 
         confusion.  My records indicate that my handwritten disability is 
 
         15%.  Sorry for any problems this may have caused you."
 
         
 
                                  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).
 
         
 
              Permanent partial disabilities are classified as either 
 
         scheduled or unscheduled.  A specific scheduled disability is 
 
         evaluated by the functional method; the industrial method is used 
 
         to evaluate an unscheduled disability.  Martin v. Skelly Oil Co., 
 
         252 Iowa 128, 133, 106 N.W.2d 95, 98 (1960); Graves v. Eagle Iron 
 
         Works, 331 N.W.2d 116 (Iowa 1983); Simbro v. DeLong's Sportswear, 
 
         332 N.W.2d 886, 887 (Iowa 1983).
 
         
 
         Iowa Code section 85.34(2)(u) provides:
 
         
 
              In all cases of permanent partial disability other than 
 
              those hereinabove described or referred to in 
 
              paragraphs "a" through "t" hereof, the compensation 
 
              shall be paid during the number of weeks in relation to 
 
              five hundred weeks as the disability bears to the body 
 
              of the injured employee as a whole.
 
         
 
         ANALYSIS
 
         
 
              There is no dispute that on or about April 4, 1985, claimant 
 
         sustained an injury which arose out of and in the course of his 
 
         employment or that the work injury is the cause of both temporary 
 
         and permanent disability.  Although the nature of claimant's 
 
         disability is disputed, claimant has clearly sustained an injury 
 
         to his back which, not being a scheduled injury, is an injury to 
 
         the body as a whole to be evaluated by the industrial method.
 
         
 
              Dr. Winston, the only physician to give claimant any type of 
 
         rating in this case, opined that claimant has a permanent partial 
 
         impairment as the result of the work related back injury of 15 
 
         percent.
 
         
 
              Functional disability is an element to be considered in 
 

 
         
 
         
 
         
 
         RICHARDSON V. JOHN DEERE
 
         PAGE   5
 
         
 
         
 
         determining industrial disability which is the reduction of 
 
         earning capacity, but consideration must also be given to the 
 
         injures employees age, education, qualifications, experience and 
 
         inability to engage in employment for which he is fitted.  Olson 
 
         v. Goodyear Service Stores, 255 Iowa 1112, 125 N.W.2d 251 (1963).  
 
         Barton v. Nevada Poultry, 253 Iowa 285, 110 N.W.2d 660 (1961).
 
         
 
              A finding of impairment to the body as a whole found by a 
 
         medical evaluator does not equate to industrial disability.  This 
 
         is so as impairment and disability are not synonymous.  Degree of 
 
         industrial disability can in fact be much different than the 
 
         degree of impairment because in the first instance reference is 
 
         to loss of earning capacity and in the later to anatomical or 
 
         functional abnormality or loss.  Although loss of function is to 
 
         be considered and disability can rarely be found without it, it 
 
         is not so that a degree of industrial disability is 
 
         proportionally related to a degree of impairment of bodily 
 
         function.
 
         
 
              Factors to be considered in determining industrial 
 
         disability include the employee's medical condition prior to the 
 
         injury, immediately after the injury, and presently; the situs of 
 
         the injury, its severity and the length of healing period; the 
 
         work experience of the employee prior to the injury, after the 
 
         injury and potential for rehabilitation; the employee's 
 
         qualifications intellectually, emotionally and physically; 
 
         earnings prior and subsequent to the injury; age; education; 
 
         motivation; functional impairment as a result of the injury; and 
 
         inability because of the injury to engage in employment for which 
 
         the employee is fitted.  Loss of earnings caused by a job 
 
         transfer for reasons related to the injury is also relevant.  
 
         These are matters which the finder of fact considers collectively 
 
         in arriving at the determination of the degree of industrial 
 
         disability.
 
         
 
              There are no weighting guidelines that indicate how each of 
 
         the factors are to be considered.  There are no guidelines which 
 
         give, for example, age a weighted value of ten percent of the 
 
         total value, education a value of fifteen percent of total, 
 
         motivation - five percent; work experience - thirty percent, etc. 
 
          Neither does a rating of functional impairment directly 
 
         correlate to a degree of industrial disability to the body as a 
 
         whole.  In other words, there are no formulae which can be 
 
         applied and then added up to determine the degree of industrial 
 
         disability.  It therefore becomes necessary for the deputy to 
 
         draw upon prior experience, general and specialized knowledge to 
 
         make the finding with regard to degree of industrial disability.  
 
         See Peterson v. Truck Haven Cafe, Inc., (Appeal Decision, 
 
         February 28, 1985); Christensen v. Hagen, Inc., (Appeal Decision, 
 
         March 26, 1985).
 
         
 
              Claimant is 50 years old with a tenth grade education who 
 
         has worked for defendant employer almost 30 years and who is 
 
         currently unemployed receiving long-term disability benefits.  A 
 
         review of the evidence, however, clearly establishes that 
 
         claimant is not unemployed as a result of his back injury, 
 
         surgery and restrictions but rather is unemployed as a result of 
 
         complications stemming from the 1981 motor vehicle accident in 
 
         which he was involved and which was not work related.  Defendant 
 
         maintained and establishes.to the satisfaction of the undersigned 
 
         that following claimant's return to work after the 1985 work 
 
         injury work was available to him which fit well within his 
 
         medical (i.e. lifting) restrictions.  Claimant, himself, 
 

 
         
 
         
 
         
 
         RICHARDSON V. JOHN DEERE
 
         PAGE   6
 
         
 
         
 
         acknowledged that the problems he had with the last job he 
 
         performed were a result of his memory and comprehension 
 
         difficulties.  No mention was made that his back was troublesome 
 
         in performing this job.  Defendant cannot be held liable for 
 
         claimant's difficulties which do not stem from a work related 
 
         incident.  Claimant argues that he is now basically unemployable 
 
         because of his back and that when a 20 to 30 pound limit was 
 
         placed on him by the doctor due to the industrial injury that he 
 
         lost what industrial capacity he retained.  This argument must 
 
         fail because all of the positions which claimant held subsequent 
 
         to his return to work in January, 1986 were within his weight 
 
         restrictions.  In addition, the evidence establishes that at the 
 
         time claimant left to take long-term disability jobs were still 
 
         available within these restrictions.  The difficulty in placing 
 
         claimant within defendant employers organization centered not 
 
         around these weight limitations but rather around claimant's 
 
         equilibrium, memory and comprehension difficulties.  No evidence 
 
         establishes that defendant is responsible for claimant's lack of 
 
         employment currently.  As well, no evidence establishes that 
 
         claimant could not have retained his employment with defendant 
 
         employer notwithstanding the weight limitations placed on him 
 
         after the industrial injury.  Claimant also argues that an 
 
         employer takes a worker as he finds him and that when defendant 
 
         accepted claimant after his 1981 injury they accepted him with 
 
         the state of his health as it existed at that time.  While it is 
 
         undisputably a well settled principal of workers' compensation 
 
         law in Iowa that an employer does take a worker as he finds him, 
 
         to invoke this principal, evidence must establish that the 
 
         compensable industrial injury in some way accelerated, aggravated 
 
         or lighted up a preexisting condition.  While a claimant is not 
 
         entitled to compensation for the results of a preexisting injury 
 
         or disease, the mere existence at the time of a subsequent injury 
 
         is not a defense.  Rose v. John Deere Ottumwa Works, 247 Iowa 
 
         900, 908, 76 N.W.2d 756, 760-761 (1956).  If the claimant had a 
 
         preexisting condition or disability that is aggravated, 
 
         accelerated, worsened or lighted up so that it results in 
 
         disability, claimant is entitled to recover.  Nicks v. Davenport 
 
         Produce Co., 254 Iowa 130, 115 N.W.2d 812, 815 (1962).
 
         
 
              Claimant's unemployment in this case is due solely to the 
 
         noncompensable 1981 motor vehicle accident.  Claimant is not 
 
         entitled to recover compensation benefits for the result of a 
 
         preexisting injury or disease unless or until it is shown that 
 
         there is more than a slight aggravation of the preexisting injury 
 
         of condition which resulted in the disability.  See Olson, 255 
 
         Iowa 1112, 125 N.W.2d 251 (1963).  No evidence in the record 
 
         establishes that claimant's back injury in any way interacted 
 
         with the residuals of the 1981 motor vehicle accident to 
 
         aggravate claimant's disability.  Claimant's argument must fail.
 
         
 
              Although claimant has a scant history of prior back 
 
         problems, the record fails to show those prior problems interfere 
 
         with his ability to work or his capacity to earn.  Much evidence 
 
         was presented concerning the status of claimant's mental health 
 
         and well being which shows, again, that claimant's problems stem 
 
         from the noncompensable motor vehicle accident.  Claimant, it is 
 
         felt, would like to work but motivation is absent perhaps not 
 
         because of a lack of desire but perhaps more because of accepted 
 
         intellectual limitations.  While claimant is currently receiving 
 
         long-term disability benefits of $1,000 per month, the record 
 
         fails to establish claimant sustained any actual loss of earnings 
 
         since the April, 1985 work related injury since he returned to 
 
         work to the same job he held at the time of his injury.  
 

 
         
 
         
 
         
 
         RICHARDSON V. JOHN DEERE
 
         PAGE   7
 
         
 
         
 
         Notwithstanding the complications brought to this case because of 
 
         claimant's 1981 motor vehicle accident, claimant's work related 
 
         injury of April, 1985 has clearly hampered his capacity to earn.  
 
         Industrial disability can be more than, less than or equal to 
 
         functional impairment.  Birmingham v. Firestone Tire & Rubber 
 
         Co., 11 Iowa Industrial Commissioner Reports 39 (1981).  
 
         Considering then all of the elements of industrial disability, it 
 
         is found that claimant has sustained a permanent partial 
 
         disability of 15 percent for industrial purposes.
 
         
 
                                 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 his employment on or about April 4, 1985 when he 
 
         injured his back while picking up a box of hardware weighing 
 
         approximately 150 pounds.
 
         
 
              2.  Claimant was in a serious.motor vehicle accident August 
 
         8, 1981 in which he sustained eye damage, a broken neck and 
 
         pelvis, and head injury and which affected his short term memory, 
 
         his ability to comprehend recent events, instructions, directions 
 
         and information, and which impacted his equilibrium.
 
         
 
              3.  Claimant, as a result of the motor vehicle accident, 
 
         continues to suffer from impaired memory, comprehension and 
 

 
         
 
         
 
         
 
         RICHARDSON V. JOHN DEERE
 
         PAGE   8
 
         
 
         
 
         equilibrium.
 
         
 
              4.  As a result of the work related injury of April 4, 1985, 
 
         claimant underwent a three segment laminectomy with transdural 
 
         microscopic removal of a large extruded disc.
 
         
 
              5.  Claimant returned to work January 2, 1986 with 
 
         restrictions not to lift more than 25 to 35 pounds.
 
         
 
              6.  Claimant returned to work in the same job he held at the 
 
         time of his injury.
 
         
 
              7.  Claimant subsequently bid into other jobs and the last 
 
         job he held was in production tool (crib) which fell within his 
 
         medical lifting restrictions.
 
         
 
              8.  Claimant had difficulty performing his job because of 
 
         the head trauma he sustained and brought these concerns to the 
 
         attention of defendant.
 
         
 
              9.  Claimant made no mention that his back presented any 
 
         problems in his continuing to work.
 
         
 
             10.  All of the positions which claimant held since his 
 
         return to work on January 2, 1986, were within his medical 
 
         restrictions, defendant had positions available that claimant 
 
         could fill within these medical restrictions and as of the time 
 
         of the hearing such positions were still available.
 
         
 
             11.  Claimant left work and accepted long-term disability 
 
         benefits for a nonoccupational reason effective January 2, 1986.
 
         
 
             12.  Claimant sustained a permanent partial impairment as a 
 
         result of the work injury of April 4, 1985.
 
         
 
             13.  Claimant's capacity to earn has been hampered as a 
 
         result of the work injury of April 4, 1985.
 
         
 
             14.  Claimant has sustained a permanent partial disability 
 
         for industrial purposes of 15 percent as a result of the work 
 
         injury of April 4, 1985.
 
         
 
                                CONCLUSIONS OF LAW
 
         
 
              THEREFORE, based on the principals of law previously stated, 
 
         the following conclusions of law are made:
 
         
 
              1.  Claimant has sustained an injury to the body as a whole 
 
         as a result of the work injury of April 4, 1985.
 
         
 
              2.  Claimant has sustained a permanent partial disability of 
 
         15 percent for industrial purposes.
 
         
 
                                      ORDER
 
         
 
              THEREFORE, IT IS ORDERED:
 
         
 
              As claimant has been paid all benefits to which he was 
 
         entitled, claimant shall take nothing further as a result of 
 
         these proceedings.
 
         
 
              Costs of this action are accessed against defendant pursuant 
 
         to Division of Industrial Services Rule 343-4.33.
 

 
         
 
         
 
         
 
         RICHARDSON V. JOHN DEERE
 
         PAGE   9
 
         
 
         
 
         
 
         
 
              Signed and filed this 16th day of August, 1988.
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
                                       DEBORAH A. DUBIK
 
                                       DEPUTY INDUSTRIAL COMMISSIONER
 
         
 
         Copies to:
 
         
 
         Mr. Thomas R. Isaac
 
         Attorney at Law
 
         3213 E. 14th St.
 
         Des Moines, Iowa 50316
 
         
 
         Mr. Roger L. Ferris
 
         Mr. Joseph A. Quinn
 
         Attorneys at Law
 
         1900 Hub Tower
 
         Des Moines, Iowa 50309
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                                1803
 
                                                Filed August 16, 1988
 
                                                Deborah A. Dubik
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         CHARLES J. RICHARDSON,
 
         
 
              Claimant,
 
                                                  File No. 804544
 
         vs.
 
                                               A R B I T R A T I O N
 
         JOHN DEERE,
 
                                                  D E C I S I O N
 
              Employer,
 
              Self-Insured,
 
              Defendant.
 
         
 
         
 
         1803
 
         
 
              Claimant, who had been employed by defendant John Deere for 
 
         some thirty years, was involved in a serious motor vehicle 
 
         accident in 1981 in which he sustained eye damage, a broken neck, 
 
         and pelvis and head injuries.  As a result of this accident, 
 
         claimant lost his peripheral vision and had difficulty with 
 
         equilibrium and memory.  Claimant had an inability to recall 
 
         recent events, instructions, directions and information.  In 
 
         1985, claimant sustained an injury which arose out of and in the 
 
         course of his employment to his back while picking up a box of 
 
         hardware.  Claimant was found to have a 15% permanent partial 
 
         impairment as a result of the injury.  Claimant left his 
 
         employment voluntarily and is currently receiving long-term 
 
         disability benefits from defendant employer.  A review of the 
 
         evidence establishes that claimant was not unemployed as a result 
 
         of his back injury, surgery and restrictions but rather was 
 
         unemployed as a result of complications stemming from the 1981 
 
         motor vehicle accident which was not work related.  Defendants 
 
         clearly had work available to the claimant at the time he left 
 
         and would have work available to the claimant should he elect to 
 
         return to work.  Considering all the elements of industrial 
 
         disability, it was found that claimant sustained a permanent 
 
         partial disability of 15% for industrial purposes.
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                    BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         CHARLES J. RICHARDSON,
 
         
 
              Claimant,
 
                                                   File No. 804544
 
         vs.
 
                                                     A P P E A L
 
         JOHN DEERE,
 
                                                     R U L I N G
 
               Employer,
 
               Self-Insured,
 
               Defendant.
 
         
 
         
 
         
 
              Division of Industrial Services Rule 343-4.27 states in 
 
         part:
 
         
 
                 No appeal shall be separately taken under this or 
 
              4.25 (17A, 86) from an interlocutory decision, order or 
 
              ruling of a deputy industrial commissioner.  A 
 
              decision, order or ruling is interlocutory if it does 
 
              not dispose of the contested case, unless the sole 
 
              issue remaining for determination is claimant's 
 
              entitlement to additional compensation for unreasonable 
 
              denial or delay of payment pursuant to Iowa Code 
 
              section 86.13.
 
         
 
              The ruling filed May 20, 1988 which is the subject matter of 
 
         this appeal is not dispositive of the contested case and 
 
         therefore interlocutory.
 
         
 
              THEREFORE, the appeal filed June 8, 1988 is hereby 
 
         dismissed.
 
         
 
         
 
              Signed and filed this 24th day of June, 1988.
 
         
 
         
 
         
 
         
 
         
 
         
 
                                                DAVID. E. LINQUIST
 
                                                INDUSTRIAL COMMISSIONER
 
         
 
         Copies To:
 
         
 
         Mr . Thomas R. Isaac
 
         Attorney at Law
 
         3213 E. 14th St.
 
         Des Moines, Iowa 50316
 
         
 
         
 
         
 
         Mr. Roger L. Ferris
 
         Attorney at Law
 
         1900 Hub Tower
 

 
         
 
         
 
         
 
         RICHARDSON V. JOHN DEERE
 
         Page   2
 
         
 
         699 Walnut Street
 
         Des Moines, Iowa 50309