BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
        
 
        
 
        JOHN W. BUGELY,
 
        
 
            Claimant,
 
                                                File No. 805409
 
             vs.
 
             
 
        AMES PROCESSED FOOD CO., INC.,         A R B I T R A T I O N
 
        
 
            Employer,                            D E C I S I O N
 
        
 
        and                                          F I L E D
 
        
 
        IOWA MUTUAL INSURANCE COMPANY,              OCT 31 1989
 
        
 
            Insurance Carrier,                 INDUSTRIAl SERVICES
 
            Defendants.
 
        
 
        
 
                                 STATEMENT OF THE CASE
 
        
 
             This is a proceeding in arbitration brought by John Bugely, 
 
             claimant, against Ames Processed Food Company, employer, and Iowa 
 
             Mutual Insurance Company, insurance carrier, to recover benefits 
 
             under the Iowa Workers' Compensation Act as a result of an 
 
             alleged injury of May 9, 1985. This matter came on for hearing 
 
             before the undersigned deputy industrial commissioner July 6, 
 
             1988 and was considered fully submitted at the close of the 
 
             hearing. The record in this case consists of the testimony of 
 
             claimant and Marilyn Bugely, his wife; joint exhibits 1 through 
 
             6, inclusive; claimant's exhibits A and B, which are admitted for 
 
             their probative value; and defendants' exhibits A, B, and C.
 
        
 
                                      ISSUES
 
        
 
             Pursuant to the prehearing report and order submitted and 
 
             approved July 6, 1988 the following issues are presented for 
 
             resolution:
 
        
 
            1. Whether claimant sustained an injury on May 9, 1985 
 
        which arose out and in the course of his employment;
 
        
 
            2. Whether the alleged injury is the cause of the 
 
        disability on which claimant now bases his claim;
 
        
 
            3. Claimant's entitlement to weekly benefits including 
 
        temporary total disability/healing period and permanent partial 
 
        disability benefits, if any; and
 
        
 
             4. Claimant's entitlement to certain expenses pursuant to 
 
             Iowa Code section 85.27.
 
        
 
                                 FACTS PRESENTED
 
        
 
             Claimant began working for defendant Ames Processed Foods 
 
             Company in April 1978 initially as a warehouseman, then as a 
 
             driver delivering to grocery stores and finally, beginning in 
 
             September 1984, as a supervisor. Claimant stated that even 
 
             though he was a supervisor he substituted as a driver when a 
 

 
        
 
 
 
 
 
             replacement driver was needed and that he was working as a 
 
             substitute when he was injured. Claimant recalled that on May 9, 
 
             1985, while he was working in a cooler he turned or twisted and 
 
             felt a sharp pain in the middle of his back down towards the 
 
             lower back. Claimant testified he told his supervisor and went 
 
             to see his physician (Dr. Grant) who prescribed an injection, 
 
             medication and physical therapy. Claimant testified he underwent 
 
             surgery in July 1985 and was off work approximately six months 
 
             returning in January 1986 with no restrictions. Claimant stated 
 
             he worked until December 31, 1986, at which time he was 
 
             discharged because "business was not doing well." Claimant 
 
             offered that he was not told his discharge had anything to do 
 
             with his injury.
 
        
 
            Claimant recalled that after his discharge he was employed 
 
        as an over the road driver for Pride Leasing until he was injured 
 
        in February 1987 when he slipped on a step on his truck and hurt 
 
        his right leg and buttocks. Claimant offered that 
 
        notwithstanding this incident that the throbbing ache and pain in 
 
        his back had not changed since December 31, 1986, the time of his 
 
        discharge from employment with defendant employer. Claimant 
 
        stated he wears a back brace all day, taking it off only at home 
 
        at night, that his pain is constant and throbbing and sometimes 
 
        sharp from the middle of his back into his "low buttocks" and 
 
        that "all things" affect this pain.
 
        
 
            Claimant testified to a history of back problems beginning 
 
        in approximately October of 1978 when he fell at a Fareway Store 
 
        in Grinnell hitting his back on a dock plate. Claimant recalled 
 
        he had surgery in February of 1979 and was off work until 
 
        approximately May 1980. Claimant stated he wore a back brace, 
 
        underwent physical therapy and attended a back school until 
 
        approximately 1981. Claimant denied seeing any physician for his 
 
        back from October 1983 through May 1985. Claimant also recalled 
 
        that in January of 1988 after attending a New Year's party he was 
 
        unable to move when it was time to get out of bed and was 
 
        hospitalized later in January for approximately one week and 
 
        later went through outpatient physical therapy.
 
        
 
            On cross-examination claimant acknowledged he was able to do 
 
        his job at Pride Leasing although he made frequent stops due to 
 
        pain and that he voluntarily left his employment over a pay 
 
        dispute and not for any reasons related to his back.
 
        
 
             Marilyn Bugely testified that after claimant' s first 
 
             surgery claimant frequently complained of back pain but that 
 
             claimant tried to do things to keep the couple "happy." She 
 
             recalled that they did the housework "fifty-fifty" and bowled and 
 
             played softball but that since the "second injury" in 1985 all 
 
             such activities have stopped. Mrs. Bugely stated claimant always 
 
             hurts, sits around, does not sleep 50 percent of the time all 
 
             night, does not mow the lawn and the medication makes claimant 
 
             "spacey. "
 
        
 
            John A. Grant, M.D., orthopedic surgeon, testified he first 
 
        saw claimant October 5, 1978, on referral from another physician 
 
        and at that time claimant was complaining of pain in both legs 
 
        and in his back. Dr. Grant diagnosed back pain and spondylolysis 
 
        with spondylolisthesis and, after conservative measures failed to 
 
        relieve claimant's back trouble, claimant underwent a Gill 
 
        procedure in January 1979. Dr. Grant recalled claimant was 
 
        released to return to work without restrictions on May 31, 1979 
 
        and on January 24, 1981 he opined that claimant had a permanent 
 
        partial impairment of 30 percent of the body as a whole as a 
 
        result of the work related injury.
 
        
 

 
        
 
 
 
 
 
            Asked to summarize claimant's treatment from claimant's 
 
        return to work in 1979 until May 1985, Dr. Grant stated claimant 
 
        had recurring "flare-ups of trouble", underwent a "Cleveland 
 
        Procedure" (epidural injection) in May of 1980 and that he saw 
 
        claimant on occasion with varying problems of muscle strain and 
 
        headaches. Dr. Grant testified that claimant was not seen from 
 
        April 1982 until March 1983 when claimant reported that he 
 
        "simply got up, bent over to put on his socks and he experienced 
 
        a sharp pain in the back and into the right leg. Dr. Grant 
 
        stated that claimant was seen again in October 1983 for acute 
 
        onset of low back pain and that claimant was not seen from 
 
        October 1983 until July 1985 for any back problems. Dr. Grant 
 
        relayed that claimant was seen on May 9, 1985, and on May 15, 
 
        1985 "with some shoulder and neck problems that didn't appear to 
 
        be related to this low back difficulty." ( Joint Exhibit 7, Page 
 
        10 ) Although claimant, at this time, was sent to "back school" 
 
        Dr. Grant testified:
 
        
 
                  It wasn't until July of 1985 that he came in with again 
 
                      the chronic low back pain; and we discussed the problem and 
 
                      the prospects of whether he could be helped by fusing the 
 
                      low back, and this fusion would be done at the site of the 
 
                      previous surgery.
 
                  
 
                  Sometimes people with spondylolysis have some 
 
                      instability in the low back, and that' s an indication to 
 
                      proceed with the fusion; and I felt that I had nothing more 
 
                      to offer other than the trial at the fusion to see if we 
 
                      could resolve his chronic low back pain.
 
             
 
        (Jt. Ex. 7, P. 11)
 
        
 
        Surgery, a spinal fusion from the fifth lumbar to the first 
 
        sacral portion of claimant's back, was done August 12, 1985 and 
 
        Dr. Grant released claimant to return to work January 13, 1986 
 
        with the advice that claimant should not drive anything but local 
 
        jobs and that claimant "should have no bending, twisting or 
 
        lifting over 10 to 15 pounds." (Jt. Ex. 7, P. 14) On October 30, 
 
        1986, Dr. Grant opined claimant had a 20 percent permanent 
 
        partial impairment of the whole body "physical" stating:
 
        
 
             Q. Just for my own education, Doctor, can you explain to me 
 
             why he had a change from a thirty percent functional 
 
             impairment back in 1981 to now a twenty percent impairment 
 
             in 1986 after the surgery?
 
             
 
             A. I'm not sure I can exactly. I felt that with the spinal 
 
             fusion his back was more stable and conceivably he had been 
 
             improved. That was my estimate, that he had improved.
 
             
 
        (Jt. Ex. 7, PP. 16-17)
 
        
 
        Dr. Grant testified that on October 1986 he imposed restrictions 
 
        of:
 
        
 
             Q. And based upon a reasonable degree of medical certainty 
 
             what were the restrictions you placed upon Mr. Bugely as far 
 
             as his work was concerned in October of 1986?
 
             
 
             A. Well, my letter states that he should avoid as much as 
 
             possible prolonged periods of walking on rough, uneven or 
 
             slippery surfaces. He should avoid climbing scaffolding or 
 
             ladders, he should avoid any kind of job that requires 
 
             repeated bending of the waist and twisting to the right. He 
 
             should avoid lifting over fifteen pounds and that lifting 
 
             should be on an occasional basis over -- perhaps once or 
 

 
        
 
 
 
 
 
             twice an hour.
 
             
 
                  I thought he could have a sitting type of work, but it 
 
                      would be advantageous if he could get up from time to time 
 
                      and move about. I felt he should avoid long distance 
 
                      driving only because it would produce symptoms perhaps, not 
 
                      that it would necessarily harm him. And I thought he should 
 
                      avoid any driving over forty to fifty miles in light pickup 
 
                      trucks or heavy equipment trucks.
 
             
 
        (Jt. Ex.7, PP. 17-18)
 
        
 
             Dr. Grant explained he was more restrictive with claimant's 
 
             ability to work on October of 1986 because:
 
        
 
             A. I think you can relate it to the fact that this is a man 
 
             with eight years of back trouble and I would like to do 
 
             everything I can to keep him from getting into any more 
 
             trouble, so I'm being more restrictive.
 
        
 
        (Jt. Ex. 7, P. 19)
 
        
 
            Dr. Grant was aware of claimant's hospitalization in January 
 
        of 1988 and opined:
 
        
 
             Q. Do you have an opinion based upon a reasonable degree of 
 
             medical certainty as to whether or not the hospitalization 
 
             at Mary Greeley Hospital this past January was causally 
 
             related to Mr. Bugely's work activities at Ames Processed 
 
             Food and also the May, 1985 injury?
 
        
 
            A. Why, I think it's probably related, yes.
 
        
 
        (Jt. Ex. 7, P. 23)
 
        
 
            Dr. Grant testified:
 
        
 
             Q. I want to ask you a few questions about these various 
 
             medical services that Mr. Bugely has received. First of 
 
             all, do you have an opinion based upon a reasonable degree 
 
             of medical certainty as to whether or not the epidural 
 
             injections that he received in July of 1987 and March of 
 
             1988 are as a result of his work-related injury at Ames 
 
             Processed Food in May of 1985 and his subsequent conditions?
 
        
 
                THE WITNESS: Would you read that back, please?
 
                (The reporter read back the last questions.)
 
        
 
            A. Yes.
 
        
 
            Q. And what's that opinion?
 
        
 
             A. I think that at least some of his symptoms are related to 
 
             the work-related injury of 1985.
 
             
 
             Q. Same question, Doctor, and I know this is difficult to 
 
             do, but with regard to the physical therapy that he's had in 
 
             1988 at Mary Greeley Hospital and the CAT scan that he 
 
             received at Mary Greeley Hospital and the MRI at Iowa 
 
             Methodist, do you have an opinion based upon a reasonable 
 
             degree of medical certainty as to whether or not these 
 
             various diagnostic tests or modalities of treatment are 
 
             causally related to Mr. Bugely's injury in May of 1985?
 
             
 
            A. Yes
 
        
 

 
        
 
 
 
 
 
             Q. And what's that opinion?
 
             
 
             A. I think they're related.
 
             
 
             Q. Finally, in reviewing your notes I notice that in March 
 
             of 1984 you prescribed some type of a back brace?
 
             
 
             A. I think you mean March of 1988.
 
             
 
             Q. I'm sorry, March of 1988, that's correct.
 
             
 
             A. Yes, sir.
 
             
 
             Q. And what type of back brace did you prescribe?
 
             
 
             A. A brace called a Boston overlap. It's a very rigid 
 
             molded plastic brace that goes from slightly below the waist 
 
             up across the waist and part way up to the lower portion of 
 
             the rib cage and a little bit above that.
 
             
 
                  The best way I could describe it would be like wearing a 
 
                      Mae West corset.
 
             
 
             Q. This Boston overlap brace in your opinion, based upon a 
 
             reasonable degree of medical certainty, was the need for 
 
             that causally related to the May, 1985 injury to Mr. 
 
             Bugely's low back?
 
             
 
             A. Yes.
 
             
 
        (Jt. Ex. 7, PP. 27-29)
 
        
 
             With regard to claimant's fall while claimant was employed 
 
             by Pride Leasing Dr. Grant stated:
 
        
 
             Q.  Mr. Bugely in some answers to Interrogatories has 
 
             described this incident on 1-26-87 as follows: He states 
 
             that while working for Pride Lease he got out of the truck 
 
             and while standing on an icy patch slipped and fell, 
 
             striking his right lower back. He then, the medical records 
 
             will show, saw Doctor Reynolds on 1-28-87 and then on 
 
             February 4th, 1987.
 
             
 
                  Do you have an opinion based upon a reasonable degree 
 
                      of medical certainty as to whether or not this incident in 
 
                      February of 1987, based upon your review of Doctor Reynolds' 
 
                      report, was an aggravation to Mr. Bugely's low back?
 
             
 
             A. Yes.
 
             
 
             Q. And what's that opinion?
 
             
 
            A. I think it is an aggravation.
 
        
 
             Q. Do you have an opinion based upon a reasonable degree of 
 
             medical certainty as to whether or not this aggravation 
 
             injury at Pride Lease in January of 1987 was of a temporary 
 
             nature or permanent nature?
 
             
 
             A. I really don't know that much about it. I think it's 
 
             one of a continuum list of recurring episodes that flare up 
 
             his back.
 
             
 
             Q. In reviewing Doctor Reynolds' note or report of December 
 
             29th, 1987 she indicates that based upon two visits for the 
 
             acute back injury at Pride Lease she, herself, was unable to 
 

 
        
 
 
 
 
 
             reasonably state whether that incident worsened Mr. Bugely's 
 
             prior low back problems; and she indicated that perhaps you 
 
             might be in a better position to answer that question.
 
             
 
                  Do you have an opinion based upon a reasonable degree of 
 
                      medical certainty as to whether or not the incident at Pride 
 
                      Lease worsened Mr. Bugely's low back problems?
 
             
 
             A. Yes.
 
             
 
             Q. Okay, And what's that opinion?
 
             
 
             A. Well, I'll answer it a little indirectly. I don't know 
 
             what you mean by the word worsened. It certainly I think 
 
             aggravated and produced -- Using the term worsened, that 
 
             implies to me that the long-term course has been worsened. 
 
             I'm not sure I can say that.
 
             
 
                  I can say that he aggravated and created a flare-up of 
 
                      symptoms much as he's had in the past, and I think it's very 
 
                      possible that something such as falling on the ice would do 
 
                      that.
 
             
 
            Q. But in terms of his overall condition --
 
        
 
             A. I don't think it would make a major change.
 
             
 
        (Jt. Ex. 7, PP. 33-35)
 
             
 
             Dr. Grant expressed his opinion that as of June 1, 1987 
 
             claimant has a 25 percent permanent partial impairment of the 
 
             body as whole and stated:
 
        
 
             Q. In that report of June 1, 1987 you indicated that you 
 
             couldn't make a good faith comment with regard to how much 
 
             of that impairment would be attributed back to his problems 
 
             prior to May of 1985 versus how much was related to the 
 
             incident in May of 1985. Is that still your opinion?
 
             
 
             A. Yes.
 
             
 
             Q. Of what significance is it to you, if any, that after 
 
             the Gill procedure back in 1979 and the recovery period 
 
             thereafter Mr. Bugely returned to work at Ames Processed 
 
             Food and was able to continue to do the same type of work 
 
             and now after the May, 1985 injury and subsequent spinal 
 
             fusion he was not able to return to that kind of work; is 
 
             that of any significance to you or not?
 
             
 
             A. Well, I think it can -- it's somewhat conjecture, but we 
 
             have again the same situation, a man with ten years of back 
 
             trouble. It appears that it's sort of a continuum, he has 
 
             trouble off and on. I guess I've become more restrictive 
 
             after ten years of seeing him trying to find some way of 
 
             relieving his symptoms, and it's a very difficult question 
 
             to answer.
 
             
 
                  I don't know that I've answered it, but that's my 
 
                     opinion.
 
             
 
             Q. I'll just ask a couple more questions then.
 
             
 
                  Taking into account what you just said, that he is a 
 
                       man of continued low back problems, in terms of his overall 
 
                       current condition do you have an opinion based upon a 
 
                       reasonable degree of medical certainty as to whether or not 
 

 
        
 
 
 
 
 
                       the May, 1985 injury in terms of what he can do was a more 
 
                       significant injury than perhaps the one back in 1978 was?
 
             
 
             A. I don't really think I can say that it's more severe or 
 
             more significant.
 
             
 
        (Jt. Ex. 7, PP. 35-36)
 
        
 
             On cross-examination Dr. Grant affirmed the contents of a 
 
             number of reports previously filed including a letter dated June 
 
             1, 1987 which reads in part:
 
        
 
             ...I gave him a rating of 30 percent in 1981, but altered 
 
             this to a temporary rating of 25 percent in February of 
 
             1986, and according to other correspondence dropped it to 20 
 
             percent in August of 1986.
 
             
 
             ...Based on the handbook "Manual for Orthopedic Surgeons in 
 
             Evaluating Permanent Physical Impairment" published by the 
 
             American Academy of Orthopedic Surgeons, a 25 percent whole 
 
             body permanent physical impairment and loss of physical 
 
             function of the whole body is awarded for surgical excision 
 
             of disc with fusion, persistent pain and stiffness 
 
             aggravated by heavy lifting necessitating modification of 
 
             all activities requiring heavy lifting. He would seem to 
 
             fall into that category as far as I am concerned. From my 
 
             standpoint, I cannot in good faith make any comment about 
 
             what percentage of his current problems is contributed by 
 
             the incidents in May of 1985. I think his current status is 
 
             the result of a long standing history of problems with his 
 
             back and regardless of what has happened off and on....
 
             
 
        (Defendant Ex. A)
 
        
 
        Following the incident in January of 1987 when claimant fell 
 
        while employed with Pride Leasing, claimant was treated by 
 
        Dorothy L. Reynolds, M.D., of the McFarland Clinic. Dr. Reynolds 
 
        advised claimant's counsel on December 29, 1987, that: "Based 
 
        upon my two visits for an acute back injury, I am unable to 
 
        reasonably state whether the incident which occurred January 26, 
 
        1987, worsened Mr. Bugely's prior low back problems." (Jt. Ex. 
 
        4)
 
        
 
                            APPLICABLE LAW AND ANALYSIS
 
        
 
             An employee is entitled to compensation for any and all 
 
             personal injuries which arise out of and in the course of the 
 
             employment. Section 85.3(1).
 
        
 
            Of first concern is whether or not claimant has sustained an 
 
        injury which arose out of and in the course of his employment on 
 
        May 9, 1985.
 
        
 
            The claimant must prove by a preponderance of the evidence 
 
        that his injury arose out of and in the course of his employment. 
 
        Musselman v. Central Telephone Co., 261 Iowa 352, 154 N.W.2d 128 
 
        (1967).
 
        
 
             In the course of employment means that the claimant must 
 
             prove his injury occurred at a place where he reasonably may be 
 
             performing his duties. McClure v. Union, et al., Counties, 188 
 
             N.W.2d 283 (Iowa 1971).
 
        
 
            Arising out of suggests a causal relationship between the 
 
        employment and the injury. Crowe v. DeSoto Consolidated School 
 
        District, 246 Iowa 402, 68 N.W.2d 63 (1955).
 

 
        
 
 
 
 
 
        
 
            While a claimant is not entitled to compensation for the 
 
        results of a preexisting injury or disease, the mere existence at 
 
        the time of a subsequent injury is not a defense. Rose v. John 
 
        Deere Ottumwa Works, 247 Iowa 900, 908, 76 N.W.2nd 756, (1956). 
 
        If the claimant had a preexisting condition or disability that is 
 
        aggravated, accelerated, worsened or lighted up so that it 
 
        results in disability, claimant is entitled to recover. Nicks v 
 
        Davenport Produce Co., 254 Iowa 130, 115 N.W.2d 812, (1962).
 
        
 
            It is clear that claimant suffered from preexisting back 
 
        problems as early as 1978, over 6 years prior to this alleged 
 
        injury. It is undisputed in the testimony that on May 9, 1985 
 
        claimant had an incident at work which precipitated, at a 
 
        minimum, the need for medical attention. It is interesting to 
 
        note that Dr. Grant reported he was unaware of any specific 
 
        incident or isolated injury. However, according to the 
 
        employer's first report of injury, defendant employer was aware 
 
        that on May 9, 1985 claimant reported he slipped and fell while 
 
        unloading a pallet. The undersigned would conclude that claimant 
 
        has sustained an injury on May 9, 1985 which arose out of and in 
 
        the course of his employment.
 
        
 
            The claimant has the burden of proving by a preponderance of 
 
        the evidence that the injury of his is causally related to the 
 
        disability on which he now bases his claim. Bodish v. Fischer, 
 
        Inc., 257 Iowa 516, 133 N.W.2d 867 (1965). Lindahl v. L.O. 
 
        Boggs, 236 Iowa 296, 18 N.W.2d 607 (1945). A possibility is 
 
        insufficient; a probability is necessary. Burt v. John Deere 
 
        Waterloo Tractor Works, 247 Iowa 691, 73 N.W.2d 732 (1955). The 
 
        question of causal connection is essentially within the domain of 
 
        expert testimony. Bradshaw v. Iowa Methodist Hospital, 251 Iowa 
 
        375, 101 N.W.2d 167 (1960).
 
        
 
            Expert medical evidence must be considered with all other 
 
        evidence introduced bearing on the causal connection. Burt, 247 
 
        Iowa 691, 73 N.W.2d 732. The opinion of experts need not be 
 
        couched in definite, positive or unequivocal language. Sondag v. 
 
        Ferris Hardware, 220 N.W.2d 903 (Iowa 1974). However, the expert 
 
        opinion may be accepted or rejected, in whole or in part, by the 
 
        trier of fact. Id. at 907. Further, the weight to be given to 
 
        such an opinion is for the finder of fact, and that may be 
 
        affected by the completeness of the premise given the expert and 
 
        other surrounding circumstances. Bodish, 257 Iowa 516, 133 
 
        N.W.2d 867. See also Musselman v. Central Telephone Co., 261 
 
        Iowa 352, 154 N.W.2d 128 (1967).
 
        
 
             The essential question for resolution is whether, as a 
 
             result of this injury of May 9, 1985, claimant significantly and 
 
             materially aggravated his preexisting condition.
 
        
 
            The only physician to render an opinion in this case is Dr. 
 
        Grant. Dr. Grant's opinions have, however, been somewhat 
 
        equivocal. It would appear to this deputy that when Dr. Grant 
 
        spoke with claimant's counsel all of claimant's problems were 
 
        causally connected to the incident of May 9, 1985. Yet, a 
 
        careful reading of Dr. Grant's reports does not lead one to the 
 
        same conclusion. This calls into serious question the over all 
 
        credibility of Dr. Grant's opinions. This is particularly 
 
        serious in light of the fact that Dr. Grant, as noted above, is 
 
        the only physician to render a opinion. Dr. Grant has testified 
 
        that claimant's complaints of low back pain in May 1985 were 
 
        related to his work activities and that claimant's low back 
 
        problem in May 1985 was an aggravation of a preexisting 
 
        condition. Dr. Grant also reported that the fusion which 
 
        claimant underwent in July 1985 was the combination of a "long, 
 

 
        
 
 
 
 
 
        long history" of chronic back discomfort and the known 
 
        spondylolysis with spondylolisthesis. Claimant has also had 
 
        subsequent incidents which have precipitated medical attention 
 
        for his back. In January 1987 while employed with Pride Leasing, 
 
        claimant fell. Dr. Grant opined that this incident was an 
 
        aggravation of claimant's opinions. Again, his opinion is 
 
        subject to question however because, as he candidly admits, "I 
 
        really don't know that much about it. I think it's one of a 
 
        continuing list of reoccurring episodes that flare up his back." 
 
        (Jt. Ex. 7, P. 34) Claimant also described an inability to get 
 
        out of bed in January 1988 after attending a New Year's party and 
 
        the subsequent hospitalization from January 23 to January 28, 
 
        1988. Dr. Grant testified to his belief that this "probably 
 
        related" to claimant's work activities at Ames Processed Foods 
 
        and the May 1985 injury. Yet, claimant ceased working for 
 
        defendant employer December 31, 1986 and had subsequent 
 
        employment with other companies. Later, Dr. Grant qualifies his 
 
        opinion with regard to the medical treatment claimant has 
 
        received when he testified that "some" of claimant's symptoms are 
 
        related to 1985 work injury.
 
        
 
            Following the Gill procedure which claimant underwent in 
 
        1979 Dr. Grant estimated claimant's permanent partial impairment 
 
        to be 30 percent. Following the spinal fusion in July 1985 and 
 
        specifically in a report dated October 30, 1986 Dr. Grant opined 
 
        that claimant's permanent functional impairment was 20 percent, a 
 
        reduction of 10 percent since Dr. Grant felt claimant's back was 
 
        more stable and that claimant had improved. Dr. Grant imposed 
 
        restrictions on claimant's employability at that time which 
 
        related to the fact that claimant had a long history (8 years) of 
 
        back trouble and he wanted to do everything he could to keep 
 
        claimant from "getting into any more trouble." In June 1987 Dr. 
 
        Grant opined claimant's permanent partial impairment is 25 
 
        percent, still less than that which claimant had in 1979.
 
        
 
             Dr. Grant could not say, within a reasonable degree of 
 
             medical certainty that the injury of May 1985 was any more severe 
 
             and more significant that what originally happened to claimant in 
 
             1978. Nor could Dr. Grant state within a reasonable degree or 
 
             medical certainty that the incident of May 1985 was anything more 
 
             than another series of incidents which caused claimant's back to 
 
             flare up. The undersigned finds Dr. Grant's opinion that some of 
 
             claimant's symptoms are related to the 1985 work injury, to be of 
 
             the greatest veracity and creditability and concludes that 
 
             claimant has established that the work injury of May 9, 1985 
 
             constituted a temporary aggravation of a preexisting condition 
 
             and that claimant has failed to establish that what happened to 
 
             him on May 9, 1985 was the cause of the disability on which he 
 
             now bases his claim.
 
        
 
            The undersigned cannot find that as result of the injury of 
 
        May 9, 1985 the claimant has any increased permanent impairment 
 
        or that the restrictions imposed on claimant are as a result of 
 
        the 1985 injury as opposed to being imposed merely because the 
 
        claimant has had a long history of back problems irregardless of 
 
        his employment. Claimant has a history of an injury in 1978 and 
 
        1987 with problems in 1988. The undersigned cannot conclude that 
 
        claimant has established that the injury of May 9, 1985 caused 
 
        the disability on which he now bases his claim or that the injury 
 
        of May 9, 1985 materially aggravated the underlying condition. 
 
        Claimant did, however, temporarily aggravate the preexisting 
 
        condition and the aggravation colminated in his spinal fusion.
 
        
 
            Therefore, pursuant to Iowa Code section 85.33(1) claimant 
 
        is entitled to temporary total disability benefits until he 
 
        returned to work or was medically capable of returning to 
 

 
        
 
 
 
 
 
        employment substantially similar to the employment in which he 
 
        was engaged at the time of his injury. It is determined that 
 
        claimant met the requirement of this section of the code as of 
 
        January 13, 1986 when he returned to work. Claimant is, 
 
        therefore, entitled to 23 weeks of temporary total disability 
 
        benefits from the period from August 5, 1985, when he left work 
 
        until his return on January 13, 1986. The undersigned cannot 
 
        conclude claimant is entitled to temporary total disability 
 
        benefits for the periods requested in 1988 in light of the 
 
        intervening incident of 1987 and the problems claimant had on the 
 
        first of January 1988.
 
        
 
            Pursuant to Iowa Code section 85.27. the employer is 
 
        obligated to furnish reasonable services and supplies for the 
 
        treatment of the injury. Claimant seeks reimbursement for the 
 
        following medical expenses:
 
        
 
            1. Iowa Methodist Medical Center (3/10/88
 
            admission for MRI scan)                               $ 
 
        645.00
 
        
 
            2. Mary Greeley Medical Center (1/31/88
 
            physical therapy)                                     61.50
 
        
 
            3. Mary Greeley Medical Center (2/29/88
 
            physical therapy)                                     
 
        190.50
 
        
 
            4. Mary Greeley Medical Center (3/15/88
 
            admission for epidural steroid injection)             
 
        160.30
 
        
 
            5. Mary Greeley Medical Center (3/28/88
 
            admission for CT scan)                                
 
        340.00
 
        
 
            6. Mary Greeley Medical Center (1/16/88
 
            admission for recurring back pain)                    
 
        2659.65
 
        
 
            7. Iowa Orthotics Corp (Boston overlap
 
            brace)                                                
 
        640.00
 
        
 
            8. Daehler Pharmacy (prescriptions for
 
            pain medication between 9/4/87 & 3/31/88)             
 
        184.06
 
        
 
            9. McFarland Clinic (office visits between
 
            2/18/86 to 3/31/88)                                   
 
        1460.00
 
        
 
            10. Mileage                                          73.92
 
        
 
        (Claimant Ex. A)
 
        
 
             As it has been concluded that the injury of May 9, 1985 
 
             caused a temporary aggravation of the preexisting condition and 
 
             did not cause claimant's hospitalization during 1988, claimant is 
 
             not entitled, as a result of this proceeding to payment of items 
 
             1 through 6, 8, 9, 10. Further, although Dr. Grant, claimant's 
 
             authorized treating physician, prescribed the use of a Boston 
 
             overlap brace and opined that its use is causally connected to 
 
             claimant's injury in 1985, the undersigned concludes insufficient 
 
             causal of connection has been shown since it was not prescribed 
 
             for some three plus years after the injury, it was prescribed 
 

 
        
 
 
 
 
 
             following an intervening injury, Dr. Grant could not state the 
 
             injury of May 1985 was any more significant than any other injury 
 
             and opined that claimant's problems are "the result of a long 
 
             standing history of problems with his back.' Therefore, the 
 
             costs of item 7 will not be ordered to be reimbursed.
 
        
 
              Claimant, having been paid twenty three weeks (23) of 
 
             temporary total disability benefits according to the prehearing 
 
             report, shall take nothing further as a result of these 
 
             proceedings.
 
        
 
                                 FINDINGS OF FACT
 
        
 
             Wherefore, based on all of the evidence presented, the 
 
             following findings of fact are made:
 
        
 
            1. On May 9, 1985 claimant sustained an injury which arose 
 
        out of and in the course of his employment and caused a temporary 
 
        aggravation of a preexisting condition.
 
        
 
            2. As a result of the aggravation of the preexisting 
 
        condition claimant underwent a spinal fusion on August 12, 1985.
 
        
 
            3. Claimant was incapable of working as a result of the 
 
        aggravation of the preexisting condition for 23 weeks from August 
 
        5, 1985 until January 13, 1986.
 
        
 
            4. Claimant has a history of preexisting back problems 
 
        beginning in 1978 and had been diagnosed as having spondylolysis 
 
        with spondylolisthesis.
 
        
 
            5. Subsequent to the injury of May 9, 1985 claimant had an 
 
        injury in January 1987 and an incident in 1988 which precipitated 
 
        hospitalization.
 
        
 
            6. Claimant's hospitalization in January 1988 and later in 
 
        March 1988 was not caused by his injury of May 9, 1985.
 
        
 
            7. Dr. Grant's opinions have been equivocal and are subject 
 
        to some question due to their changing nature.
 
        
 
            8. Claimant is entitled to 23 weeks of temporary total 
 
        disability benefits.
 
        
 
            9. Claimant has not shown that the injury of May 9, 1985 
 
        has caused any permanent disability.
 
        
 
                                 CONCLUSIONS OF LAW
 
        
 
             Therefore, based on the principles of law previously stated, 
 
             the following conclusions of law are made:
 
        
 
            1. Claimant sustained an injury on May 9, 1985 which arose 
 
        out of and in the course of his employment.
 
        
 
            2. As a result of the injury of May 9, 1985 claimant 
 
        sustained a temporary aggravation of a preexisting problem.
 
        
 
            3. Claimant has been paid all 85.27 medical expenses to 
 
        which he is entitled and failed to show an entitlement to any 
 
        further itemized medical expenses at this time.
 
        
 
             4. Those expenses for which claimant specifically sought 
 
             reimbursement or not causally connected to the injury.
 
        
 
                                      ORDER
 

 
        
 
 
 
 
 
        
 
             THEREFORE, it is ordered as claimant has been paid all the 
 
             benefits to which he currently entitled, claimant shall take 
 
             nothing further as a result of this proceeding.
 
        
 
            Costs of this action are assessed against the defendants 
 
        pursuant to Division of Industrial Services Rule 343-4.33.
 
        
 
            Signed and filed this 31st day of October, 1989.
 
        
 
        
 
        
 
        
 
        
 
        
 
                                         DEBORAH A. DUBIK
 
                                         DEPUTY INDUSTRIAL COMMISSIONER
 
        
 
        
 
        Copies To:
 
        
 
        Mr. Fredd J. Haas
 
        Attorney at Law
 
        5001 SW 9th St.
 
        Des Moines, Iowa 50315
 
        
 
        Mr. Roy M. Irish
 
        Attorney at Law
 
        729 Ins. Exchange Bldg.
 
        Des Moines, Iowa 50309
 
        
 
        
 
 
        
 
 
 
 
 
        
 
                                          5-1801
 
                                          Filed October 31, 1989
 
                                          Deborah Dubik
 
        
 
                      BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
        
 
        
 
        JOHN W. BUGELY,
 
        
 
            Claimant,
 
                                          .    File No. 805409
 
             vs .
 
             
 
        AMES PROCESSED FOOD CO., INC.,       A R B I T R A T I O N
 
        
 
            Employer,
 
                                              D E C I S I O N 
 
        and
 
        
 
        IOWA MUTUAL INSURANCE COMPANY,
 
        
 
            Insurance Carrier,
 
             Defendants.
 
             
 
             
 
             
 
             
 
             
 
        5-1801
 
        
 
        
 
             Claimant found to have temporarily aggravated a preexisting 
 
             condition awarded benefits for period of temporary total 
 
             disability. Work injury not found to have caused any permanency.
 
             
 
        
 
 
         
 
 
 
 
 
 
 
 
 
 
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         JUDITH EVERS,
 
         
 
              Claimant,
 
                                                  File Nos. 805442
 
         vs.                                                819213
 
                                                 
 
         WEST DELAWARE COUNTY,                       A P P E A L
 
         COMMUNITY SCHOOL DISTRICT,
 
                                                   D E C I S I O N
 
              Employer,
 
                                                      F I L E D
 
         and
 
                                                     DEC 29 1989
 
         EMPLOYERS MUTUAL COS.,
 
                                           IOWA INDUSTRIAL COMMISSIONER
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
                              STATEMENT OF THE CASE
 
         
 
              Defendants appeal from an arbitration decision awarding 
 
         permanent partial disability benefits as the result of alleged 
 
         injuries on September 16, 1985 and March 10, 1986.  The record on 
 
         appeal consists of the transcript of the arbitration proceeding; 
 
         claimant's exhibits A through V; and defendants, exhibits 1 
 
         through 10.
 
         
 
                                      ISSUES
 
         
 
              Neither party filed a brief on appeal.  Therefore, the 
 
         appeal will be considered generally and without regard to 
 
         specific issues.
 
         
 
                              REVIEW OF THE EVIDENCE
 
         
 
              The arbitration decision adequately and accurately reflects 
 
         the pertinent evidence and it will not be set forth herein.
 
         
 
                                  APPLICABLE LAW
 
         
 
              The citations of law in the arbitration decision are 
 
         appropriate to the issues and the evidence.
 
         
 
                                     ANALYSIS
 
         
 
              The deputy's decision made a determination that claimant's 
 
         injuries extended beyond the upper extremities and involved the 
 
         body as a whole.  However, a review of the record reveals that 
 
         claimant did not voice any complaints of neck pain to either her 
 
         family physician or her orthopedist, Marvin F. Roach, M.D., until 
 
         late in her treatment.  Claimant did voice complaints of shoulder 
 
         pain to her therapist during this period, however.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              After her evaluation by John R. Walker, M.D., claimant 
 
         returned to Dr. Roach.  Dr. Roach was told of the cervical 
 
         complaints for the first time, and examined claimant again.  Dr. 
 
         Roach noted that he found no indication of cervical injury.  Dr. 
 
         Roach is claimant's treating physician.  Dr. Walker was an 
 
         evaluating physician only.  Dr. Roach had greater contact with 
 
         claimant and over a longer period of time.  Dr. Walker 
 
         acknowledged his conclusion that claimant's work injuries caused 
 
         her neck pain was based on an "assumption" that no other injury 
 
         or other intervening cause existed.  Dr. Roach specifically 
 
         stated that claimant's neck pain was not caused by her work 
 
         injuries.  The opinion of Dr. Roach will be given the greater 
 
         weight.  Claimant bears the burden of proof.  Claimant has failed 
 
         to establish that her work injuries on September 16, 1985 and 
 
         March 10, 1986 extended beyond her upper extremities and into the 
 
         body as a whole..
 
         
 
              Thus, claimant's award is limited to the scheduled amounts 
 
         for the injuries to her right and left arms.  Dr. Roach assigned 
 
         claimant a two percent permanent partial impairment of each upper 
 
         extremity.  Dr. Walker assigned an impairment of 38 percent for 
 
         the left upper extremity and 40 percent for the right upper 
 
         extremity.  Again, Dr. Roach was claimant's treating physician 
 
         and had far greater opportunity to observe claimant's degree of 
 
         impairment.  Dr. Roach's opinion will be given the greater weight 
 
         as to degree of impairment.  Claimant is entitled to an award of 
 
         two percent of,the right arm and to an additional award of two 
 
         percent of the left arm.
 
         
 
              Claimant's rate of compensation was incorrectly calculated 
 
         by the defendants.  Defendants acknowledge in their trial brief 
 
         that claimant's annual income was divided by 52 weeks.  However, 
 
         claimant is a school employee.  Although she is paid on an annual 
 
         basis, her work was performed during a 9 month period.  The 
 
         deputy correctly applied the formula utilized in Utsler v. 
 
         Carlisle Community School, (Review Reopening Decision, December 
 
         17, 1982).
 
         
 
              Defendants objected to the fees for the services of Dr. 
 
         Walker as being unauthorized.  However, exhibit K clearly 
 
         authorizes the services of Dr. Walker for purposes of a 
 
         permanency evaluation.  There is no showing that Dr. Walker's 
 
         fees are for treatment.  Indeed, Dr. Walker in his reports makes 
 
         it clear that he is conducting an evaluation only, as he makes 
 
         reference to possible methods of treatment should he be asked to 
 
         initiate treatment.  The deputy correctly ordered the defendants 
 
         to pay the medical bills in question.
 
         
 
              The deputy ordered defendants to pay additional healing 
 
         period benefits to claimant through the time of Dr. Walker's 
 
         letter of February 4, 1987.  In that letter, Dr. Walker states 
 
         that claimant has reached maximum healing in that nothing further 
 
         is being done for her.  Dr. Roach did not establish a date for 
 
         the end of claimant's healing period, but did acknowledge at his 
 
         deposition on March 9, 1988 that nothing further could be done 
 
         for claimant.  The deputy's determination was appropriate.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
                                 FINDINGS OF FACT
 
         
 
              1.  On September 16, 1985 claimant received an injury to her 
 
         left arm arising out of and in the course of her employment.
 
         
 
              2.  On March 10, 1986 claimant received an injury to her 
 
         right arm arising out of and in the course of her employment.
 
         
 
              3.  Claimant reached maximum recovery on February 4, 1987 
 
         when Dr. Walker issued his report.
 
         
 
              4.  Claimant worked nine months per year and was to be paid 
 
         over a twelve month period.
 
         
 
              5.  Claimant's gross weekly wage for the period from 
 
         September 17, 1985 to January 7, 1986 was $120.00 per week.
 
         
 
              6.  Claimant's gross weekly wage for the.period from March 
 
         16, 1986 to June 19, 1986 was $138.00 per week.
 
              
 
              7.  Claimant's medical expenses were authorized.
 
              
 
              8.  Claimant's left arm injury does not affect the body as a
 
              whole.
 
              
 
              9.  Claimant's right arm injury does not affect the body as 
 
         a whole.
 
              
 
              10.  Claimant has permanent partial impairment of two 
 
         percent of each arm as a result of her work injuries.
 
         
 
                                CONCLUSIONS OF LAW
 
         
 
              Claimant has met her burden in proving her left arm 
 
         complaints are causally connected to her injury of September 16, 
 
         1985.
 
         
 
              Claimant has met her burden in proving that her right arm 
 
         complaints are causally connected to her injury of March 10, 
 
         1986.
 
         
 
              Claimant is entitled to healing period benefits from her 
 
         left arm injury for the period from September 17, 1985 to January 
 
         7, 1986 at the rate of $88.10 per week.
 
         
 
              Claimant is entitled to healing period benefits from her for 
 
              the period from March 16, 1986 to June 19, of $99.96 per 
 
              week.
 
         
 
              Claimant is also entitled to healing period benefits from 
 
         June 19, 1986 to February 4, 1987 at the rate of $99.96 per week.
 
         
 
              As a result of her left arm injury on September 16, 1985, 
 
         claimant is entitled to five weeks of permanent partial 
 
         disability benefits at a rate of $99.96 per week.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              As a result of her right arm injury on March 10, 1986, 
 
         claimant is entitled to five weeks of permanent partial 
 
         disability benefits at a rate of $99.96 per week.
 
         
 
              Claimant is entitled to have $521.00 paid to the Delaware 
 
         County Memorial Hospital by defendants, $387.00 paid to Dr. 
 
         Walker and a reimbursement of $139.86 to her for mileage.
 
         
 
              claimant is entitled to have the following matters taxed as 
 
         costs to the employer:
 
         
 
              Medical report                 $   50.00
 
              Certified mailing for
 
                 service of original notice     6.68
 
              Costs of serving subpoena on
 
                 Linda Ryan                    15.00
 
              Witness fees                       40.00
 
                              Total          $111.68
 
         
 
              WHEREFORE, the decision of the deputy is affirmed and 
 
         modified.
 
         
 
                                      ORDER
 
         
 
              THEREFORE, it is ordered:
 
         
 
              That defendants are to pay unto claimant healing period 
 
         benefits from September 17, 1985 to January 7, 1986 at the rate 
 
         of eighty-eight and 10/100 dollars ($88.10) per week; defendants 
 
         are to pay unto claimant healing period benefits from March 16, 
 
         1986 to June 19, 1986 at the rate of ninety-nine and 96/100 
 
         dollars ($99.96) per week; defendants are to pay unto claimant 
 
         thirty-three (33) additional weeks of healing period benefits at 
 
         a rate of ninety-nine and 96/100 dollars ($99.96) per week and 
 
         ten (10) weeks of permanent partial disability benefits at a rate 
 
         of ninety-nine and 96/100 dollars ($99.96) per week.
 
         
 
              That defendants are to receive credit for benefits 
 
         previously paid.
 
         
 
              That defendants are to pay the following medical expenses:
 
         
 
              Delaware County Memorial Hospital         $521.00
 
              Dr. Walker                                 387.00
 
                           Total                        $908.00
 
         
 
              That defendants are to pay claimant reimbursable expenses for
 
         mileage in the amount of one hundred thirty-nine and 86/100
 
         dollars ($139.86).
 
         
 
              That accrued benefits are to be made in a lump sum together 
 
         with statutory interest at the rate of ten percent (10%) per year 
 
         pursuant to section 85.30, Iowa Code, as amended.
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
              That costs are taxed to defendants pursuant to Division,of 
 
         Industrial Services Rule 343-4.33.
 
         
 
              That defendants shall file claim activity reports as 
 
         requested by this agency pursuant to Division of Industrial 
 
         Services Rule 343-3.1.
 
         
 
                Signed and filed this 29th day of December, 1989.
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
                                               DAVID E. LINQUIST
 
                                            INDUSTRIAL COMMISSIONER
 
         
 
         Copies to:
 
         
 
         Mr. E. Michael Carr
 
         Attorney at Law
 
         117 S. Franklin St.
 
         P.O. Box 333
 
         Manchester, Iowa  52057
 
         
 
         Mr. Jay P. Roberts
 
         Attorney at Law
 
         528 W. Fourth
 
         P.O. Box 1200
 
         Waterloo, Iowa  50704
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                       1803.1 - 2602 - 3001
 
                                       Filed December 29, 1989
 
                                       David E. Linquist
 
         
 
                  BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         JUDITH EVERS,
 
         
 
              Claimant,
 
         
 
         vs.
 
                                            File Nos. 805442/819213
 
         WEST DELAWARE COUNTY
 
         COMMUNITY SCHOOL DISTRICT,
 
                                                  A P P E A L
 
              Employer,
 
                                                 D E C I S I 0 N
 
         and
 
         
 
         EMPLOYERS MUTUAL COS.,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         1803.1
 
         
 
              Appeal considered generally as no briefs were filed. Reversed 
 
         deputy's determination that claimant's injury extended to body as a 
 
         whole, where claimant did not voice complaints of neck pain to her 
 
         treating physician until after she was seen by her examining 
 
         physician.  Treating physician then specifically examined for neck 
 
         injury and found none.
 
         
 
         2602
 
         
 
              Treating physician's rating of impairment to arms utilized over 
 
         examining physician's (much higher) rating.
 
         
 
         3001
 
         
 
              Affirmed deputy's determination that claimant's rate was 
 
         incorrectly calculated on an annual basis.  Claimant was a school 
 
         employee who was paid on a 12 month basis but earned her wages over 
 
         nine months.  Utsler v. Carlisle Community School, (Review-reopening 
 
         Decision, December 17, 1982), cited and relied on.
 
         
 
         
 
         
 
 
 
 
 
 
 
 
 
                                                   
 
 
                                       
 
 
 
 
 
 
 
 
 
 
 
                                       1803.1 - 2602 - 3001
 
                                       Filed December 29, 1989
 
                                       David E. Linquist
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         JUDITH EVERS,
 
         
 
              Claimant,
 
         
 
         vs.
 
                                            File Nos. 805442/819213
 
         WEST DELAWARE COUNTY
 
         COMMUNITY SCHOOL DISTRICT,
 
                                                  A P P E A L
 
              Employer,
 
                                                 D E C I S I 0 N
 
         and
 
         
 
         EMPLOYERS MUTUAL COS.,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         1803.1
 
         
 
              Appeal considered generally as no briefs were filed. 
 
         Reversed deputy's determination that claimant's injury extended 
 
         to body as a whole, where claimant did not voice complaints of 
 
         neck pain to her treating physician until after she was seen by 
 
         her examining physician.  Treating physician then specifically 
 
         examined for neck injury and found none.
 
         
 
         2602
 
         
 
              Treating physician's rating of impairment to arms utilized 
 
         over examining physician's (much higher) rating.
 
         
 
         3001
 
         
 
              Affirmed deputy's determination that claimant's rate was 
 
         incorrectly calculated on an annual basis.  Claimant was a school 
 
         employee who was paid on a 12 month basis but earned her wages 
 
         over nine months.  Utsler v. Carlisle Community School, 
 
         (Review-reopening Decision, December 17, 1982), cited and relied 
 
         on.
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                    BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         JUDITH EVERS,
 
         
 
              Claimant,
 
         
 
         vs.                                File Nos. 805442 & 819213
 
         
 
         WEST DELAWARE COUNTY                 A R B I T R A T I 0 N
 
         COMMUNITY SCHOOL DISTRICT,
 
                                                 D E C I S I 0 N
 
              Employer,
 
         
 
         and
 
         
 
         EMPLOYERS MUTUAL COS.
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         
 
         
 
                                   INTRODUCTION
 
         
 
              This is a proceeding brought by Judith Evers, claimant, 
 
         against West Delaware County Community School District, employer, 
 
         and Employer's Mutual Companies, insurance carrier, defendants.  
 
         These cases come upon petitions for arbitration for benefits as a 
 
         result of alleged injuries occurring on September 17, 1985 and 
 
         March 11, 1986.  The cases were heard by former Deputy Industrial 
 
         Commissioner Garry D. Woodward.  The cases were fully submitted 
 
         on March 15, 1988 per an order from the commissioner.  On July 
 
         13, 1988 the cases were transferred to the undersigned by David 
 
         E. Linquist, Industrial Commissioner.
 
         
 
              The record consists of the testimony of claimant, her 
 
         husband, Richard Evers, her daughter, Cindy Weber, and the 
 
         claimant's former supervising teacher, Linda Ryan.  The record 
 
         also consists of claimant's exhibits A-V and defendants' exhibits 
 
         1-10.
 
         
 
              Pursuant to a prehearing report, the parties stipulate that 
 
         claimant's injuries on September 16, 1985 and March 10, 1986 
 
         arose out of and in the course of her employment.
 
         
 
                                 FACTS PRESENTED
 
         
 
              Claimant was hired as a teacher's aide by employer.  Among 
 
         claimant's job duties she was required to lift and transport 
 
         handicapped students who were in the severe and profound level of 
 
         performance.  Much of the activity required claimant to bend, 
 
         pull and jerk.  Some of the students weighed 50 to 70 pounds and 
 
         claimant was often involved in restraining the students who were 
 
         violent.
 
         
 
              After her injury on September 16, 1985 claimant sought the 
 

 
         
 
         
 
         
 
         EVERS V. WEST DELAWARE COUNTY COMMUNITY SCHOOL DISTRICT
 
         PAGE   2
 
         
 
         attention of her physician, Herbert A. Gearhart, D.O.  He later 
 
         referred her to Martin F. Roach, M.D.  Dr. Roach treated 
 
         claimant for an injury to her left forearm.  She was released 
 
         to return to work in January of 1986.  Claimant worked through 
 
         March 10, 1986 when she injured her right forearm and was again 
 
         seen by Dr. Roach.  Dr. Roach issued an unlimited release to 
 
         work as of May 13, 1986.  However, claimant never returned to 
 
         work.  She testified her supervisors felt she was unable to 
 
         continue her job duties because of the swelling and 
 
         discolorization of her hands.  Since the 1986 injury date, 
 
         claimant has been unemployed.
 
         
 
                              ISSUES PRESENTED
 
         
 
              1.  Whether claimant is entitled to additional healing 
 
         period benefits from her first injury for the period from 
 
         September 17, 1985 to January 1, 1986;
 
         
 
              2.  Whether claimant is entitled to additional healing 
 
         period benefits from her second injury for the period from March 
 
         16, 1986 to June 19, 1986;
 
         
 
              3.  Whether claimant is entitled to additional healing 
 
         period benefits from June 19, 1986 to February 4, 1987;
 
         
 
              4.  Whether claimant is entitled to permanent partial 
 
         disability benefits; and,
 
         
 
              5.  Whether claimant is entitled to the payment of her 
 
         unpaid medical bills and her mileage.
 
         
 
                                  APPLICABLE LAW
 
         
 
              An employee is entitled to compensation for any and all 
 
         personal injuries which arise out of and in the course of the 
 
         employment.  Section 85.3(l).
 
         
 
              The claimant has the burden of proving by a preponderance of 
 
         the evidence that the injuries of September 16, 1985 and March 
 
         10, 1986 are causally related to the disability on which she now 
 
         bases her claim.  Bodish v. Fischer, Inc., 257 Iowa 516, 133 
 
         N.W.2d 867 (1965).  Lindahl v. L. 0. Boggs, 236 Iowa 296, 18 
 
         N.W.2d 607 (1945).  A possibility is insufficient; a probability 
 
         is necessary.  Burt v. John Deere Waterloo Tractor Works, 247 
 
         Iowa 691, 73 N.W.2d 732 (1955).  The question of causal 
 
         connection is essentially within the domain of expert testimony.  
 
         Bradshaw v. Iowa Methodist Hospital, 251 Iowa 375, 101 N.W.2d 167 
 
         (1960).
 
         
 
              However, expert medical evidence must be considered with all 
 
         other evidence introduced bearing on the causal connection.  
 
         Burt, 247 Iowa 691, 73 N.W.2d 732.  The opinion of experts need 
 
         not be couched in definite, positive or unequivocal language.  
 
         Sondag v. Ferris Hardware, 220 N.W.2d 903 (Iowa 1974).  However, 
 

 
         
 
         
 
         
 
         EVERS V. WEST DELAWARE COUNTY COMMUNITY SCHOOL DISTRICT
 
         PAGE   3
 
         
 
         the expert opinion may be accepted or rejected, in whole or in 
 
         part, by the trier of fact.  Id. at 907.  Further, the weight to 
 
         be given to such an opinion is for the finder of fact, and that 
 
         may be affected by the completeness of the premise given the 
 
         expert and other surrounding circumstances.  Bodish, 257 Iowa 
 
         516, 133 N.W.2d 867.  See also Musselman v. Central Telephone 
 
         Co., 261 Iowa 352, 154 N.W.2d 128 (1967).
 
         
 
              An injury to a scheduled member may, because of after 
 
         effects (or compensatory change), result in permanent impairment 
 
         of the body as a whole.  Such impairment may in turn form the 
 
         basis for a rating of industrial disability.  Dailey v. Pooley 
 
         Lumber Co., 233 Iowa 758, 10 N.W.2d 569 (1943).  Soukup v. Shores 
 
         Co., 222 Iowa 272, 268 N.W. 598 (1936).
 
         
 
              An injury is the producing cause; the disability, however, 
 
         is the result, and it is the result which is compensated.  Barton 
 
         v. Nevada Poultry Co., 253 Iowa 285, 110 N.W.2d 660 (1961); 
 
         Dailey, 233 Iowa 758, 10 N.W.2d 569 (1943).
 
         
 
              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).
 
         
 
              If a claimant contends he has industrial disability he has 
 
         the burden of proving his injury results in an ailment extending 
 
         beyond the scheduled loss.  Kellogg v. Shute and Lewis Coal Co., 
 
         256 Iowa 1257, 130 N.W.2d 667 (1964).
 
         
 
              If claimant has an impairment to the body as a whole, an 
 
         industrial disability has been sustained. industrial disability 
 
         was defined in Diederich v. Tri-City Railway Co., 219 Iowa 587, 
 
         593, 258 N.W. 899, 902 (1935) as follows:  "It is therefore plain 
 
         that the legislature intended the term 'disability' to mean 
 
         'industrial disability' or loss of earning capacity and not a 
 
         mere 'functional disability' to be computed in the terms of 
 
         percentages of the total physical and mental ability of a normal 
 
         man."
 
         
 
              The opinion of the supreme court in Olson v. Goodyear 
 
         Service Stores, 255 Iowa 1112, 1121, 125 N.W.2d 251, 257 (1963) 
 
         cited with approval a decision of the industrial commissioner for 
 
         the following proposition:
 
         
 
              Disability * * * * as defined by the Compensation Act 
 
              means industrial disability, although functional 
 
              disability is an element to be considered . . . In 
 
              determining industrial disability, consideration may be 
 
              given to the injured employee's age, education, 
 
              qualifications, experience and his inability, because 
 
              of the injury, to engage in employment for which he is 
 
              fitted. * * * *
 
         
 
              In Parr v. Nash Finch Co., (appeal decision, October 31, 
 
         1980) the industrial commissioner, after analyzing the decisions 
 
         of McSpadden v. Big Ben Coal Co., 288 N.W.2d 181 (Iowa 1980) and 
 

 
         
 
         
 
         
 
         EVERS V. WEST DELAWARE COUNTY COMMUNITY SCHOOL DISTRICT
 
         PAGE   4
 
         
 
         Blacksmith v. All-American, Inc., 290 N.W.2d 348 (Iowa 1980), 
 
         stated:
 
         
 
              Although the court stated that they were looking for 
 
              the reduction in earning capacity it is undeniable that 
 
              it was the "loss of earnings" caused by the job 
 
              transfer for reasons related to the injury that the 
 
              court was indicating justified a finding of "industrial 
 
              disability."  Therefore, if a worker is placed in a 
 
              position by his employer after an injury to the body as 
 
              a whole and because of the injury which results in an 
 
              actual reduction in earning, it would appear this would 
 
              justify an award of industrial disability.  This would 
 
              appear to be so even if the worker's "capacity" to earn 
 
              has not been diminished.
 
         
 
              For example, a defendant employer's refusal to give any sort 
 
         of work to a claimant after he suffers his affliction may justify 
 
         an award of disability.  McSpadden, 288 N.W.2d 181 (Iowa 1980).
 
         
 
                                     ANALYSIS
 
         
 
              With respect to the methods for calculating rates of 
 
         compensation, the claimant has established she is entitled to 
 
         additional healing period benefits.  The defendants incorrectly 
 
         calculated the weekly rates of compensation.
 
         
 
              Many school personnel, as is the case here, engage in yearly 
 
         contracts for nine months of work to be paid out over a twelve 
 
         month period.  In such instances the total yearly salary is 
 
         actually earned during the nine month school term.  By virtue of 
 
         the contract, the employer is authorized to withhold part of the 
 
         earnings to be paid out at a later date, not necessarily in 
 
         conjunction with the period of time during which it was earned.  
 
         Section 85.61(12) defines gross earnings as the payment before 
 
         any authorized or lawfully required deduction or withholding of 
 
         funds by the employer..."  Therefore, in order to accurately 
 
         compute a person's gross weekly earnings, the total salary should 
 
         be divided by the number of weeks of the school term.  Such a 
 
         manner of calculation was used in the case of Margaret Joanne 
 
         Utsler v. Carlisle Community School, File No. 666680.
 
         
 
              In light of the above, claimant has established she is 
 
         entitled to a weekly rate of $88.10 from September 17, 1985 to 
 
         January 7, 1986.  Claimant is also entitled to a weekly rate of 
 
         $99.96 for the period front March 16, 1986 to June 19, 1986.
 
         
 
              Claimant has met her burden in proving she is entitled to 
 
         additional healing period benefits from June 19, 1986 to February 
 
         4, 1987.  John R. Walker, M.D., in his letter of February 4, 
 
         1987, writes on page three:
 
         
 
              At this point, for practical purposes, my only 
 
              conclusion is that she has reached maximum recovery and 
 
              healing in-as-much as nothing is really being done for 
 
              the patient.  Her diagnoses are as follows:
 
         
 
              1.)  A sprain of the cervical spine.
 
         
 
              2.)  Painful, calcific sub-deltoid bursitis of the 
 

 
         
 
         
 
         
 
         EVERS V. WEST DELAWARE COUNTY COMMUNITY SCHOOL DISTRICT
 
         PAGE   5
 
         
 
              right shoulder, progressive.
 
         
 
              3.)  Painful, calcific sub-deltoid bursitis of the left 
 
              shoulder, progressive.
 
         
 
              4.)  Chronic tenosynovitis of the right forearm.
 
         
 
              5.)  Chronic tenosynovitis of the left forearm.
 
         
 
              6.)  Chronic lateral epicondylitis, right.
 
         
 
              7.)  Chronic lateral epicondylitis, left.
 
         
 
              To repeat, the healing period must be considered to be 
 
              maximum at this time ...
 
         
 
              Even Dr. Roach, after he had released the claimant for work 
 
         on May 13, 1986, writes in his letter of May 20, 1986:
 
         
 
              When she was last seen she was still complaining of 
 
              pain and intermittent discomfort in the hand.  Her 
 
              studies were negative and I felt this was myofascial.  
 
              It should improve with tincture of time....
 
         
 
              It is clear Dr. Roach recognized claimant was still having 
 
         difficulties during this time frame.  Even he stated claimant was 
 
         unable to return to work.  On June 2, 1986, Dr. Roach completed a 
 
         report for defendants.  He completed the report as follows:
 
         
 
              Is injured person able to work?  No
 
         
 
              Probable duration of TOTAL DISABILITY 2-3 months
 
         
 
              Will any permanent disability follow?  May have to 
 
              consider change in jobs, must allow tincture of time, 
 
              2-3 months.
 
         
 
              Medical evidence indicates claimant was still in the healing 
 
         period from June 19, 1986 to February 4, 1987.  Maximum recovery 
 
         was obtained on February 4, 1987.  Claimant had not returned to 
 
         work during this period.  Claimant has established she is 
 
         entitled to additional healing period benefits for that period.
 
         
 
              Another issue to address is the nature and extent of 
 
         claimant's permanent partial disabilities, if any.  Claimant has 
 
         proven by a preponderance of the evidence that she is entitled to 
 
         permanent partial disability benefits.
 
         
 
              Because of her two injuries, claimant sought the medical 
 
         treatment of Dr. Roach.  He treated her with anti-inflammatory 
 
         medication, at least 35 therapy sessions, and with splints for 
 
         both wrists.  Even though, Dr. Roach released claimant for work 
 
         as of May 13, 1986, he did acknowledge she might have to change 
 
         positions.
 
         
 
              During his deposition, Dr. Roach opined claimant had a two 
 
         percent permanent partial disability for each extremity based on 
 
         epicondylitis of each elbow.  In Dr. Roach's opinion, there is 
 
         nothing further claimant can do for herself.  She has to live 
 
         with her condition.
 

 
         
 
         
 
         
 
         EVERS V. WEST DELAWARE COUNTY COMMUNITY SCHOOL DISTRICT
 
         PAGE   6
 
         
 
         
 
              Claimant was also seen on six occasions by John R. Walker, 
 
         M.D., solely for purposes of examination and evaluation.  As of 
 
         February 4, 1987, Dr. Walker rendered the following opinion 
 
         concerning claimant's functional impairment:
 
         
 
              1.)  She has headaches, one or two a week.  They 
 
              originate in the neck and radiate over the head in to 
 
              [sic] the frontal region.  She takes Excedrin or 
 
              Tylenol for these and tries to rest for relief.
 
         
 
              2.)  She has pain in the cervical spine and notes 
 
              crepitation with a poor range of motion with 
 
              stiffness.
 
         
 
              3.)  Both arms, hands and fingers are numb and tingley 
 
              and she notes this when at rest or relaxed.
 
         
 
              4.)  She has constant aching in the left shoulder and 
 
              she still has edema of the left, upper arm.
 
         
 
              5.)  The left arm and elbow still swells.  The elbow is 
 
              painful and she wears a band that the therapist gave 
 
              her for support.  This will sometimes help.
 
         
 
              6.)  She drops objects with both hands.
 
         
 
              7.)  The right shoulder aches off and on and when this 
 
              happens she knows that the right side of her head will 
 
              hurt that day too.
 
         
 
              8.)  Occasionally the fingers of both hands will lock 
 
              in gripping.
 
         
 
              9.)  She has loss of strength in the hands and 
 
              indicated to me that she would like to have a cervical 
 
              support or cervical collar.
 
         
 
                 ....
 
         
 
         ... Her diagnoses are as follows:
 
         
 
              1.)  A sprain of the cervical spine.
 
         
 
              2.)  Painful, calcific sub-deltoid bursitis of the 
 
              right shoulder, progressive.
 
         
 
              3.)  Painful, calcific sub-deltoid bursitis of the left 
 
              shoulder, progressive.
 
         
 
              4.)  Chronic tenosynovitis of the right forearm.
 
         
 
              5.)  Chronic tenosynovitis of the left forearm.
 
         
 
              6.)  Chronic lateral epicondylitis, right.
 
         
 
              7.)  Chronic lateral epicondylitis, left.
 
         
 
              To repeat, the healing period must be considered to be 
 
              maximum at this time but the patient has been left with 
 

 
         
 
         
 
         
 
         EVERS V. WEST DELAWARE COUNTY COMMUNITY SCHOOL DISTRICT
 
         PAGE   7
 
         
 
              rather high permanent residuals and they are as 
 
              follows:
 
         
 
              1.)  As far as the cervical spine is concerned, it is 
 
              my opinion that she has a 3% permanent, partial 
 
              impairment of the body as a whole.
 
         
 
              2.)  As far as the right, upper extremity is concerned, 
 
              I would rate this at 40%, permanent, partial impairment 
 
              of the right upper extremity which translates in to 
 
              [sic] 24% of the body as a whole.
 
         
 
              3.)  As far as the left, upper extremity is concerned, 
 
              it is my opinion that she has a permanent, partial 
 
              impairment of 38% of the left upper extremity, which 
 
              translates in to [sic] 23% of the body as a whole.
 
         
 
              This then, comes to a total permanent, partial 
 
              impairment of the body as a whole, amounting to 50% of 
 
              the body as a whole ....
 
         
 
              Claimant was re-evaluated by Dr. Walker on January 15, 1988. 
 
          In his report to claimant's attorney on that date, he writes the 
 
         following concerning claimant's functional impairment.
 
         
 
              1.)  She continues to have intermittent, posterior 
 
              cervical spine pain radiating into both shoulders.  She 
 
              often wishes she had never had to move her neck at 
 
              all.
 
         
 
              2.)  The patient notes popping and cracking in her 
 
              neck.
 
         
 
              3.)  She has headaches, at least one severe one each 
 
              week.  She takes ASA.  These are pretty much in the 
 
              posterior cervical spine and posterior occiput region.  
 
              They originate from that area.
 
         
 
              4.)  She will often notice pain in the fingers of the 
 
              right hand which radiates up into the right arm, neck 
 
              and into the ear on the right side of her face.  The 
 
              ear will feel like she has an ear ache.
 
         
 
              5.)  She has aching in both shoulders and she notes 
 
              edema in both of her upper extremities.  At times, 
 
              range of motion is difficult in both shoulders and they 
 
              are painful.
 
         
 
              6.)  She has a pulling sensation in both elbows and 
 
              they hurt.  They are tender to touch.
 
         
 
              7.)  She has pain in both hands, wrists and forearms, 
 
              particularly if she writes or does activities which 
 
              requires motion of these areas.
 
         
 
              8.)  The patient states that both hands and fingers 
 
              become numb and they lock up.  This phenomena is worse 
 
              on the right.  She waits for them to loosen up and this 
 
              may take up to ten minutes before they are free and 
 
              moveable again.
 

 
         
 
         
 
         
 
         EVERS V. WEST DELAWARE COUNTY COMMUNITY SCHOOL DISTRICT
 
         PAGE   8
 
         
 
         
 
              9.)  She has loss of strength in her hands and she 
 
              drops objects frequently.
 
         
 
                ....
 
         
 
              OPINION:  This patient is certainly badly disabled.  
 
              She appears to have a stress over-use type of syndrome 
 
              involving the shoulders, wrists, arms and hands 
 
              bilaterally.  Secondly; the patient appears to have a 
 
              chronic sprain of the cervical spine with a 
 
              questionable bilateral radiculitis.  Thirdly; I am sure 
 
              the headaches are referred from the cervical spine.  
 
              Fourthly; the patient has a bilateral epicondylitis, 
 
              particularly involving the left elbow.
 
         
 
              As a final statement, it would appear that my original 
 
              evaluation of February 4, 1987 should pretty much stand 
 
              as is.  Her industrial disability certainly appears to 
 
              be very high at this time.  At the present time I have 
 
              no further suggestions for treatment, particularly 
 
              without authorization from the carrier.
 
         
 
              Dr. Walker, in his deposition was able to establish a causal 
 
         connection between the impairments discussed in his letter of 
 
         February 4, 1987 and claimant's activities on the job, including 
 
         heavy lifting and pulling.
 
         
 
              A.  Doctor, why is it that a cervical impairment 
 
              appears in February, 187 for the first time?
 

 
         
 
         
 
         
 
         EVERS V. WEST DELAWARE COUNTY COMMUNITY SCHOOL DISTRICT
 
         PAGE   9
 
         
 
         
 
              A.  Because I'm quite sure that her cervical spine 
 
              problem has something to do with her upper arm and 
 
              shoulder problems.
 
              (Exhibit T, p. 29, lines 5-10)
 
         
 
                 ....
 
         
 
              ... It seemed to be so directly related and she had 
 
              been treated for so long by others.  I just assumed 
 
              that there was no other factor such as an injury or an 
 
              auto accident or anything other than the episode that 
 
              she described.
 
         
 
              In this case there is a vast disparity between the opinions 
 
         of the two board certified orthopedic surgeons.  Dr. Walker only 
 
         saw claimant for purposes of evaluation.  He incorrectly 
 
         calculated her functional impairment at 50 percent.  He did not 
 
         calculate the functional impairment according to page 58 of the 
 
         AMA Guides to the Evaluation of Permanent Impairment, using the 
 
         combined tables chart on page 240.  Had Dr. Walker calculated the 
 
         impairment properly, he would have reached a combined value of 43 
 
         percent permanent functional impairment.
 
         
 
              Dr. Roach treated claimant from September 28, 1985 through 
 
         April 29, 1986 for her left and right arms.  Throughout this 
 
         period, claimant never complained of neck problems.
 
         
 
              Claimant never returned to Dr. Roach after April 29, 1986 
 
         with any complaints.  It was only for purposes of reevaluation 
 
         that claimant returned to Dr. Roach on February 15, 1988.  
 
         According to him, that visit was the first time claimant had 
 
         voiced neck and shoulder complaints.
 
         
 
              The physical therapy records for claimant during March and 
 
         April of 1986, reveal otherwise.  The record for March 24, 1986 
 
         reports the following, "...Some paresthesia in the right shoulder 
 
         down into the hand."  The notation for April 7, 1986 also states, 
 
         "This patient overall feels that she has less discomfort up into 
 
         the shoulder at this time however continues to have considerable 
 
         discomfort in the right forearm."
 
              Irregardless of the disparate opinions between the two 
 
         medical experts, it is for the trier of fact to determine the 
 
         extent of permanent impairment, it any.  Likewise, it is for the 
 
         trier of fact to determine whether a claimant has an industrial 
 
         disability greater than any permanent impairment rating.
 
         
 
              In the case at bar, claimant has established she has 
 
         injuries to the body as a whole.  She has demonstrated injuries 
 
         beyond the diagnosis of epicondylitis of the right and left arms.  
 
         Claimant has demonstrated intermittent blueness and numbness of 
 
         the hands which Dr. Roach has not associated to be a result of 
 
         his diagnosis.  Claimant did voice shoulder problems to the 
 
         therapist ordered by Dr. Roach.  Dr. Walker also found a causal 
 
         connection between the right and left shoulder bursitis, the 
 
         cervical spine sprain and claimant's activities on the job.  
 
         These injuries relate to injuries of the body as a whole.  
 
         Therefore, claimant is entitled to an impairment rating of the 
 
         body as a whole rather than a rating to a scheduled member.
 
         
 

 
         
 
         
 
         
 
         EVERS V. WEST DELAWARE COUNTY COMMUNITY SCHOOL DISTRICT
 
         PAGE  10
 
         
 
              Claimant has requested an industrial disability rating above 
 
         the functional impairment rating issued by either expert.  This 
 
         issue is for the trier to determine.  Several factors must be 
 
         considered prior to making that determination.
 
         
 
              Claimant is 47 years old and is a high school graduate.  She 
 
         had prior factory work, school bus driving and restaurant work.  
 
         However, the greatest portion of her employment history involves 
 
         the use of her wrists and arms.  It is especially interesting to 
 
         note, Dr. Roach opined that claimant might have to switch 
 
         positions.  It is also interesting to note claimant is unable to 
 
         return to her position with the severe and profound students 
 
         because of the lifting activities involved.  Nevertheless, she 
 
         has not been offered an aide position where lifting is not 
 
         required.  Likewise, defendants have not provided any vocational 
 
         rehabilitation to claimant.
 
         
 
              Claimant has not sought other employment.  This is partly 
 
         due to her injuries.  It may also be due to a lack of motivation 
 
         on claimant's part.  Defendants are not responsible for 
 
         claimant's loss of wages because of her lack of motivation.
 
         
 
              Claimant has testified she is restricted when performing her 
 
         household chores.  Her daughter completes many of the cleaning 
 
         duties including vacuuming.  Claimant sits down after a brief 
 
         period of washing dishes.  Claimant is unable to sleep well at 
 
         nights.
 
         
 
              Based upon all the evidence presented, it is determined that 
 
         claimant.has an industrial disability of 40 percent because of 
 
         her injuries on September 16, 1985 and March 10, 1986.
 
         
 
              There are also the issues of medical bills and mileage.  
 
         Claimant is entitled to the payment of $521.00 to the Delaware 
 
         County Memorial hospital.  This sum represents the balance due.  
 
         Pursuant to section 85.39, claimant is entitled to the payment of 
 
         $387.00 to Dr. Walker for an evaluation.  Claimant is also 
 
         entitled to mileage for 666 miles at $.21 per mile for a sum of 
 
         $139.86.
 
         
 
                     FINDINGS OF FACT AND CONCLUSIONS OF LAW
 
         
 
              WHEREFORE, based on the evidence presented and the 
 
         principles of law previously stated, the following findings of 
 
         fact and conclusions of law are made:
 
         
 
              FINDING 1.  On September 16, 1985 and on March 10, 1986 
 
         claimant received injuries while working for defendant.
 
         
 
              FINDING 2.  As a result of the injury claimant now has a 
 
         permanent functional impairment between two percent per extremity 
 
         to 43 percent of the body as a whole.
 
         
 
              CONCLUSION A.  Claimant has met her burden in proving her 
 
         present neck and arm complaints are causally connected to her 
 
         injuries of September 16, 1985 and March 10, 1986.
 
         
 
              FINDING 3.  Claimant reached maximum recovery on February 4, 
 
         1987 when Dr. Walker issued his report.
 
         
 

 
         
 
         
 
         
 
         EVERS V. WEST DELAWARE COUNTY COMMUNITY SCHOOL DISTRICT
 
         PAGE  11
 
         
 
              CONCLUSION B.  Claimant is entitled to healing period 
 
         benefits up until February 4, 1987.
 
         
 
              FINDING 4.  Claimant worked nine months per year and was to 
 
         be paid over a twelve month period.
 
         
 
              FINDING 5.  Claimant's gross weekly wage rate for the period 
 
         from September 17, 1985 to January 7, 1986 was $120.00 per week.
 
         
 
              CONCLUSION C.  Claimant is entitled to additional healing 
 
         period benefits from her first injury for the period from 
 
         September 17, 1985 to January 7, 1986 at the increased rate of 
 
         $10.64 per week.
 
         
 
              FINDING 6.  Claimant's gross weekly wage rate for the period 
 
         from March 16, 1986 to June 19, 1986 was $138.00 per week.
 
         
 
              CONCLUSION D.  Claimant is entitled to additional healing 
 
         period benefits from her second injury for the period from March 
 
         16, 1986 to June 19, 1986 at the additional rate of $22.50 per 
 
         week.
 
         
 
              CONCLUSION E.  Claimant is also entitled to healing period 
 
         benefits from June 19, 1986 to February 4, 1987 at the rate of 
 
         $99.96 per week.
 
         
 
              CONCLUSION F.  As a result of her injuries on September 16, 
 
         1985 and March 10, 1986 claimant has an industrial disability of 
 
         45 percent.
 
         
 
              FINDING 7.  Claimant has incurred medical expenses and 
 
         mileage which she is entitled to have paid.
 
         
 
              CONCLUSION G.  Claimant is entitled to have $521.00 paid to 
 
         the Delaware County Memorial hospital by defendants, $387.00 paid 
 
         to Dr. Walker and a reimbursement of $139.86 to her for mileage.
 
         
 
              FINDING 8.  Claimant filed a motion to tax certain matters 
 
         as costs.
 
         
 
              CONCLUSION H.  Claimant is entitled to have the following 
 
         matters taxed as costs to the employer:
 
         
 
              Medical report                         $  50.00
 
              Certified mailing for
 
                service of original notice               6.68
 
              Cost of serving subpoena on
 
              Linda Ryan                                15.00
 
              Witness fees                              40.00
 
                        Total                         $111.68
 
         
 
              THEREFORE, defendants are to pay unto claimant sixteen (16) 
 
         weeks of additional healing period benefits at the rate of ten 
 
         and 64/100 dollars ($10.64) per week; defendants are to pay unto 
 
         claimant fourteen (14) weeks of additional healing period 
 
         benefits at the rate of twenty-two and 50/100 dollars ($22.50) 
 
         per week; defendants are to pay unto claimant thirty-three (33) 
 
         additional weeks of healing period benefits at a rate of 
 
         ninety-nine and 96/100 dollars ($99.96) per week and two hundred 
 
         twenty-five (225) weeks of permanent partial disability benefits 
 

 
         
 
         
 
         
 
         EVERS V. WEST DELAWARE COUNTY COMMUNITY SCHOOL DISTRICT
 
         PAGE  12
 
         
 
         at a rate of ninety-nine and 96/100 dollars ($99.96) per week.
 
         
 
              Defendants are to pay the following medical expenses:
 
         
 
              Delaware County Memorial Hospital         $521.00
 
              Dr. Walker                                 387.00
 
                         Total                          $908.00
 
         
 
              Defendants are to pay claimant reimbursable expenses for 
 
         mileage in the amount of one hundred thirty-nine and 86/100 
 
         dollars ($139.86).
 
         
 
              Accrued benefits are to be made in a lump sum together with 
 
         statutory interest at the rate of ten percent (10%) per year 
 
         pursuant to section 85.30, Iowa Code, as amended.
 
         
 
              Costs are taxed to defendants pursuant to Division of 
 
         Industrial Services Rule 343-4.33.
 
         
 
              Defendants shall file a final report upon payment of this 
 
         award.
 
         
 
         
 
              Signed and filed this 4th day of October, 1988.
 
         
 
         
 
         
 
                                       MICHELLE A. McGOVERN
 
                                       DEPUTY INDUSTRIAL COMMISSIONER
 
         
 
         
 
         Copies To:
 
         
 
         Mr. E. Michael Carr
 
         Attorney at Law
 
         117 S. Franklin St.
 
         P. 0. box 333
 
         Manchester, Iowa 52057
 
         
 
         Mr. Jay P. Roberts
 
         Attorney at Law
 
         300 WSB Bldg.
 
         P. 0. Box 1200
 
         Waterloo, Iowa 50704
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                                1402.30; 1402.40
 
                                                1402.60; 1803
 
                                                Filed October 4, 1988
 
                                                MICHELLE A. McGOVERN
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         JUDITH EVERS,
 
         
 
              Claimant,
 
         
 
         vs.                                  File Nos. 805442 & 819213
 
         
 
         WEST DELAWARE COUNTY                  A R B I T R A T I 0 N
 
         COMMUNITY SCHOOL DISTRICT,
 
                                                  D E C I S I 0 N
 
              Employer,
 
         
 
         and
 
         
 
         EMPLOYERS MUTUAL COS.,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         
 
         1402.30
 
         
 
              Claimant suffered injuries on September 16, 1985 and March 
 
         10, 1986 which arose out of and in the course of her employment.
 
         
 
         1402.40
 
         
 
              Claimant met her burden in proving a causal connection 
 
         between her injuries on September 16, 1985 and March 10, 1986 and 
 
         her disability at the time of the hearing.
 
         
 
         1402.60
 
         
 
              As a result of the September 16, 1985 and March 10, 1986 
 
         injuries, claimant is entitled to the reimbursement of reasonable 
 
         medical expenses which she has incurred.
 
         
 
         1803
 
         
 
              Claimant awarded 45 percent permanent partial disability 
 
         subsequent to injury resulting in functional impairment of the 
 
         body as a whole as well as an industrial disability.
 
 
 
 
         
 
 
 
 
 
 
 
 
 
 
 
                      BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
          
 
         
 
         LOWELL VOSHELL,
 
         
 
              Claimant,                            File No. 805464
 
         
 
         vs.                                    A R B I T R A T I O N
 
         
 
         WILLIAM ROYS REMODELING,                  D E C I S I O N
 
                                               
 
              Employer,
 
                                                      F I L E D
 
         and
 
                                                     MAY 31 1990
 
         WEST BEND MUTUAL INSURANCE,
 
                                            IOWA INDUSTRIAL COMMISSIONER
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
                                    INTRODUCTION
 
         
 
              This is a proceeding in arbitration brought by Lowell 
 
         Voshell, claimant, against William Roys Remodeling, employer and 
 
         West Bend Insurance Company, insurance carrier, defendants for 
 
         benefits as the result of an alleged injury which occurred on 
 
         September 18, 1985.  A hearing was held at Cedar Rapids, Iowa, on 
 
         August 1, 1989, and the case was fully submitted at the close of 
 
         the hearing.  Claimant was represented by John L. Riccolo. 
 
         Defendants were represented by Douglas Oelschlaeger.  The record 
 
         consists of the testimony of Lowell Voshell, claimant; William 
 
         Roys, employer; and joint exhibits 1 through 19.  The deputy 
 
         ordered a transcript of the hearing.  Both attorneys submitted 
 
         excellent briefs.
 
         
 
                                    STIPULATIONS
 
         
 
              The parties stipulated to the following matters at the time 
 
         of the hearing:
 
         
 
              That an employer-employee relationship existed between 
 
         claimant and employer at the time of the injury.
 
         
 
              That the extent of entitlement to weekly compensation for 
 
         permanent disability, if defendants are liable for an injury, is 
 
         30 weeks of permanent partial disability benefits for a 12 
 
         percent loss of use of the right arm.
 
         
 
              That the rate of compensation, in the event of an award, is 
 
         $92.15 per week.
 
         
 
              That the amount of medical benefits to which claimant is 
 
         entitled, if defendants are found liable for an injury, is 
 
         $5,079.46 and that the amount of mileage expense to which 
 
         claimant is entitled is $319.20.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              That defendants make no claim for any benefits paid to 
 
         claimant prior to hearing.
 
         
 
              That there are no bifurcated claims.
 
         
 
              Claimant withdrew the issue of penalty benefits as shown on 
 
         the hearing assignment order at the time of hearing.
 
         
 
                                       ISSUES
 
         
 
              The parties submitted the following issues for determination 
 
         at the time of the hearing:
 
         
 
              Whether claimant sustained an injury on September 18, 1985, 
 
         which arose out of and in the course of employment with employer.
 
         
 
              Whether the injury was the cause of either temporary or 
 
         permanent disability.
 
         
 
              Whether claimant is entitled to temporary or permanent 
 
         disability benefits, and if so, the nature and extent of benefits 
 
         to which he is entitled.
 
         
 
              Whether claimant is entitled to medical benefits.
 
         
 
                                  FINDINGS OF FACT
 
         
 
                                      INJURY
 
         
 
              It is determined that claimant did sustain a cumulative 
 
         injury on September 19, 1985, which arose out of and in the 
 
         course of employment with employer on that date.  Claimant 
 
         started to work as a construction worker when he was 16 years 
 
         old.  Three years prior to this injury he worked for Stueve 
 
         Construction Company as a carpenter.  Three days before that 
 
         employment terminated, in approximately June or July of 1985, he 
 
         felt pain in his right wrist while stapling felt paper to the 
 
         roof with a 10-inch Swingline stapler that jolted his wrist every 
 
         time he struck the roof.  Claimant said that stapling the felt 
 
         required striking the roof thousands, perhaps tens of thousands 
 
         of times.  He said his wrist was a little sore, but it wasn't 
 
         really bad.  He did not seek any medical attention for it at that 
 
         time (transcript pages 17-24) and lost no time from work.
 
         
 
              Claimant started to work for employer on September 10, 1985 
 
         as a carpenter's helper.  He handled tools, marked plywood, 
 
         nailed it down sometimes and shingled once in a while.  He cut 
 
         plywood with an electric skill saw (tr. pp. 25 & 26).  His right 
 
         wrist became sore again on September 18, 1985.  Employer's 
 
         records showed that claimant spent three and one-half hours that 
 
         day tearing off shingles, three and one-half hours applying 
 
         plywood sheeting and one and one-half hours putting on felt paper 
 
         (tr. p. 56).
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
              On September 19, 1985, S. Urbatsch, M.D., said x-rays showed 
 
         a fracture of the right wrist, claimant was casted, but returned 
 
         to work light duty wearing a cast, and subsequently a splint, 
 
         until November 25, 1985.  At that time claimant testified, "Bill 
 
         Roys told me his insurance company suggested he lay me off."  
 
         (tr. pp. 26-32).  William Roys denied this by his testimony 
 
         several times (tr. pp. 58, 59 & 62).
 
         
 
              Claimant testified that he was not aware of any specific 
 
         incident which caused the injury to his right wrist while working 
 
         for either Stueve Construction or employer.
 
         
 
              Claimant was eventually referred to William F. Blair, M.D., 
 
         at the Division of Hand and Microsurgery, Department of 
 
         Orthopaedics, at the University of Iowa.  On July 3, 1986, Dr. 
 
         Blair diagnosed right wrist Kienbock's disease with progressive 
 
         collapse.  (ex. 9, p. 7).  Kienbock's disease is defined as 
 
         "lunatomalacia; osteolysis of the lunate bone following trauma to 
 
         the wrist."  Stedman's Medical Dictionary, 24th edition, 1982. 
 
         Osteolysis is defined as "softening, absorption, and destruction 
 
         of bony tissue."  On September 16, 1986, Dr. Blair performed a 
 
         lunate resection with ulnar lengthening and a lunate prosthesis 
 
         implantation (ex. 9, pp. 7 & 8).
 
         
 
              Claimant admitted he thought that Dr. Urbatsch may have told 
 
         him that the fracture she treated was an old fracture (tr. pp. 
 
         45-46).  Claimant was examined by J.S. Koch, M.D., for defendants 
 
         on October 1, 1986.  Dr. Koch gave this opinion:
 
         
 
              This man had disease of his right wrist at the time of 
 
              initial x-ray examination in September, 1985.  The disease 
 
              with its symptomatology progressed to the point that 
 
              surgical interruption and correction of the difficulty was 
 
              necessary. Work activity allowed him to appreciate that 
 
              there was abnormality in the wrist but in itself did not 
 
              worsen the disease process.  Surgical correction of the 
 
              difficulty was inevitable from the time of onset of the 
 
              disease if he were to continue in his present work 
 
              occupation.
 
         
 
         (ex. 5)
 
         
 
              Dr. Koch's testimony appears to be contradictory.  He 
 
         indicates that work activity did not worsen the disease process, 
 
         but at the same time states that if he continued in the same work 
 
         occupation, surgical correction of the difficulty was inevitable.
 
         
 
              By contrast, Dr. Blair testified:
 
         
 
              Unfortunately, Keinbock's [sic] disease is not understood 
 
              well enough to be able to conclusively describe its natural 
 
              history.  We do not conclusively understand the episode that 
 
              precipitated the necrosis of the lunate bone, we do not know 
 
              how long the necrosis exists prior to the development of 
 
              symptoms, we do not understand its natural history all that 
 
              well.  The most that I can say is that it is probable that 
 
              Mr. Voshell's tasks as a carpenter probably accelerated the 
 
              natural history of the problem and contributed to the 
 
              development of symptoms in his wrist.
 

 
              
 
 
 
 
 
 
 
 
 
 
 
         
 
         (ex. 6)
 
         
 
              A preexisting condition which is aggravated, or accelerated 
 
         or lightened up by employment activity is deemed a personal 
 
         injury.  Nicks v. Davenport Produce Co., 254 Iowa 130, 115 N.W.2d 
 
         812 (1962).
 
         
 
              Dr. Blair examined claimant for a disability rating on 
 
         October 10, 1988:
 
         
 
              Lowell is a 25 y/o male s/p fracture of the right lunate in 
 
              1985 related to chronic repetitive activity of his right 
 
              hand while doing his job as a carpenter.  He was diagnosed 
 
              as having aseptic necrosis of his lunate and subsequently 
 
              underwent resection of the lunate and bone grafting from 
 
              distal radius as well as distal radial shortening in Sept. 
 
              of 1986.
 
         
 
         (ex. 9, p. 1)
 
         
 
              A cause is proximate if it is a substantial factor in 
 
         bringing about the result.  It only needs to be one cause; it 
 
         does not have to be the only cause.  Blacksmith v. All-American, 
 
         Inc., 290 N.W.2d 348 (Iowa 1980).
 
         
 
              Dr. Blair is the treating physician and he is an orthopedic 
 
         surgeon at the Division of Hand Surgery in the Department of 
 
         Orthopaedics at the University of Iowa.  There are several 
 
         reports from Dr. Blair with detailed information to substantiate 
 
         his ability. to make this determination about causal connection 
 
         (exs. 6-10).  Rockwell.Graphics Systems, Inc. v. Prince, 366 
 
         N.W.2d 187, 192 (Iowa 1985).  Dr. Blair's opinion is based on 
 
         several examinations, whereas, Dr. Koch only saw claimant one 
 
         time for a defense evaluation.  Dr. Blair's opinion is found to 
 
         be more reliable than Dr. Koch's opinion.
 
         
 
              There was some speculation as to which came first, the 
 
         aseptic necrosis or the fracture of the lunate bone in the right 
 
         wrist.  The answer to this question is immaterial under the 
 
         cumulative injury principle.  McKeever Custom Cabinets v. Smith, 
 
         379 N.W.2d 368 (Iowa 1985).  Dr. Blair did say on May 19, 1987, 
 
         "If his lunate bone fractured and then became necrotic, the 
 
         accident or work condition of September of 1985 was probably the 
 
         primary cause."  (ex. 8).  It is noted that the definition of 
 
         Kienbock's disease is osteolysis of the lunate bone following 
 
         trauma to the wrist.  In either event, defendants would be liable 
 
         for a cumulative injury because claimant first lost work while 
 
         working for this employer on September 19, 1985.
 
         
 
              Therefore, it is determined that claimant did sustain a 
 
         cumulative injury, more precisely, on September 19, 1985, which 
 
         arose out of and in the course of employment with employer.
 
         
 
                TEMPORARY DISABILITY-CAUSAL CONNECTION-ENTITLEMENT
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              Dr. Urbatsch completed an insurance company report on May 
 
         23, 1986, in which she said, "Pt was able to return to light duty 
 
         4 weeks after injury but was unable to return to usual job for 6 
 
         mos. after injury."  (ex. 11).  Thus claimant was taken off work 
 
         for a period of six months from September 19, 1985 to March 19, 
 
         1986, a period of 25.857 weeks.  However, employer provided light 
 
         duty employment to claimant from September 19, 1985 to November 
 
         25, 1985, a period of 9.571 weeks.  Subtracting this period, for 
 
         which claimant was paid actual wages, leaves a total entitlement 
 
         for temporary disability benefits of 16.286 weeks for the period 
 
         from November 25, 1985 to March 19, 1986.
 
         
 
              Claimant entered the hospital for the lunate surgery on 
 
         September 14, 1986 (ex. 12, p. 1).  There is no actual definitive 
 
         date that can be found where Dr. Blair did, in fact, return 
 
         claimant to go to work as of a certain date (exs. 6-10).  
 
         However, Dr. Blair did state it would be at least six months 
 
         before he could give a permanent impairment rating:
 
         
 
              As a result of his Kienbock's disease, Mr. Voshell will 
 
              incur permanent impairment.  I would prefer to wait until at 
 
              least 6 months from his surgical procedure to determine the 
 
              extent of this permanent impairment.  Given the nature of 
 
              his wrist pathology, I have advised the patient not to 
 
              return to work that is as heavy or as demanding as that 
 
              involving carpentry. I have recommended to him that he 
 
              consider vocational rehabilitation training, getting himself 
 
              away from manual labor or other occupations that require 
 
              heavy or repetitive lifting.
 
         
 
         (ex. 6)
 
         
 
              It would appear that Dr. Blair intended to release claimant 
 
         to return to work full time on May 13, 1987, although he does not 
 
         specifically use that terminology in this office note (ex. 9, p. 
 
         2).  Defendants agree with this date in their brief (defendants' 
 
         brief page 6).  Therefore, it is determined that claimant is 
 
         entitled to a second period of temporary disability benefits from 
 
         September 14, 1986 to May 13, 1987, a period of 34.429 weeks.
 
         
 
                   PERMANENT DISABILITY-CAUSAL CONNECTION-ENTITLEMENT
 
         
 
              Dr. Blair rated claimant's permanent disability on October 
 
         17, 1988 in the following words:
 
         
 
              Your client was last seen in the Hand Clinic at the 
 
              University of Iowa on October 10, 1988.  He continues to 
 
              have difficulties with his right wrist.  A copy of a clinic 
 
              note with contents to that effect is enclosed.
 
         
 
              Mr. Voshell does have permanent partial impairment of the 
 
              right wrist.  The condition is permanent.  There is a 
 
              possibility that the condition will deteriorate, resulting 
 
              in increasing arthritis in the years ahead.  There is no 
 
              immediate treatment planned.
 

 
              
 
 
 
 
 
 
 
 
 
 
 
         
 
              Using the AMA Guides to the Evaluation of Permanent 
 
              Impairment I estimate his rating for the upper extremity to 
 
              be 12%.
 
         
 
         (ex. 10)
 
         
 
              The parties further stipulated that claimant was entitled to 
 
         30 weeks of permanent partial disability benefits for a 12 
 
         percent permanent impairment to the right arm.
 
         
 
                                     MEDICAL
 
         
 
              The parties stipulated that in the event that defendants 
 
         were liable for an injury, that claimant is entitled.to $5,079.46 
 
         in medical expenses and $319.20 in medical.mileage (tr. p. 7).
 
         
 
                                 CONCLUSIONS OF LAW
 
         
 
              The following conclusions of law are made:
 
         
 
              That claimant sustained the burden of proof by a 
 
         preponderance of the evidence that he sustained an injury of a 
 
         cumulative nature on September 19, 1985, which arose out of and 
 
         in the course of employment with employer.  Iowa Code section 
 
         85.3(1); McKeever Custom Cabinets v. Smith, 379 N.W.2d 368 (Iowa 
 
         1985).
 
         
 
              That the injury was the cause of temporary disability from 
 
         November 25, 1985 to March 19, 1986.
 
         
 
              That claimant is entitled to 16.286 weeks of healing period 
 
         benefits for this period of time.
 
         
 
              That the injury was the cause of temporary disability from 
 
         September 14, 1986 to May 13, 1987.
 
         
 
              That claimant is entitled to 34.429 weeks of healing period 
 
         benefits for this period of time.
 
         
 
              That the injury was the cause of permanent disability.
 
         
 
              That claimant is entitled to 30 weeks of permanent partial 
 
         disability benefits for a 12 percent permanent impairment to the 
 
         right arm.
 
         
 
              That claimant is entitled to medical benefits in the amounts 
 
         of $5,079.46 and $319.20.
 
         
 
                                       ORDER
 
         
 
              THEREFORE, IT IS ORDERED:
 
         
 
              That defendants pay to claimant sixteen point two eight six 
 
         (16.286) weeks of healing period benefits for the period from 
 
         November 25, 1985 to March 19, 1986, at the rate of ninety-two 
 
         and 15/100 dollars ($92.15) per week in the total amount of one 
 
         thousand five hundred and 75/100 dollars ($1,500.75) commencing 
 
         on November 25, 1985.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              That defendants pay to claimant another thirty-four point 
 
         four two nine (34.429) weeks of healing period benefits for the 
 
         period from September 14, 1986 to May 13, 1987, in the total 
 
         amount of three thousand one hundred seventy-two and 63/100 
 
         dollars ($3,172.63), commencing on September 14, 1986.
 
         
 
              That defendants pay to claimant thirty (30) weeks of 
 
         permanent partial disability benefits at the rate of ninety-two 
 
         and 15/100 dollars ($92.15) per week in the total amount of two 
 
         thousand seven hundred sixty-four and 50/100 dollars ($2,764.50) 
 
         commencing on May 13, 1987.
 
         
 
              That all accrued benefits are to be paid in a lump sum.
 
         
 
              That interest will accrue pursuant to Iowa Code section 
 
         85.30.
 
         
 
              That defendants pay to claimant or the provider of medical 
 
         services five thousand seventy-nine and 46/100 dollars 
 
         ($5,079.46) in medical expenses as stipulated to by the parties.
 
         
 
              That defendants pay to claimant three hundred nineteen and 
 
         20/100 dollars ($319.20) in medical mileage as stipulated to by 
 
         the parties.
 
         
 
              That the costs of this action, including the cost of the 
 
         transcript, are charged to defendants pursuant to Division of 
 
         Industrial Services Rule 343-4.33.
 
         
 
              That defendants file claim activity reports as requested by 
 
         this agency pursuant to Division of Industrial Services Rule 
 
         343-3.1.
 
         
 
              Signed and filed this 31st day of May, 1990.
 
         
 
         
 
         
 
         
 
         
 
                                            WALTER R. McMANUS, JR.
 
                                            DEPUTY INDUSTRIAL COMMISSIONER
 
         
 
         Copies To:
 
         
 
         Mr. John Riccolo
 
         Attorney at Law
 
         STE 1140, The Center
 
         425 2nd St. SE
 
         Cedar Rapids, Iowa  52401
 
         
 
         Mr. John Bickel
 
         Mr. Douglas Oelschlaeger
 
         Attorneys at Law
 
         500 MNB Bldg
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         PO Box 2107
 
         Cedar Rapids, Iowa 52406-2107
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
 
                                       
 
 
 
 
 
 
 
 
 
 
 
                                       51106; 51108.50; 51401; 51402.20; 
 
                                       51402.30; 51402.40; 51402.60;
 
                                       51807; 52206; 52209; 51802; 51503; 
 
                                       52500; 52700
 
                                       Filed May 31, 1990
 
                                       Walter R. McManus, Jr.
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         LOWELL VOSHELL,
 
         
 
              Claimant,
 
         
 
         vs.
 
                                                    File No. 805464
 
         WILLIAM ROYS REMODELING,
 
                                                 A R B I T R A T I 0 N
 
              Employer,
 
                                                    D E C I S I 0 N
 
         and
 
         
 
         WEST BEND MUTUAL INSURANCE,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         51106; 51108.50; 51401; 51402.20; 51402.30; 51402.40; 51402.60; 
 
         51807; 52206; 52209
 
         
 
              Claimant encountered wrist pain while working for a former 
 
         employer, but did not see a doctor or lose time from work.  A few 
 
         months later he encountered pain in the same wrist again after 
 
         working for another employer for only eight days.  He was 
 
         diagnosed as having aseptic necrosis of the right wrist lunate 
 
         bone.  It was never conclusively determined whether he had 
 
         aseptic necrosis first and then fractured the lunate bone or 
 
         whether he fractured the lunate bone and then suffered the 
 
         aseptic necrosis. The evidence favored the latter which is the 
 
         same thing that occurred to Smith in McKeever Custom Cabinets v. 
 
         Smith, 379 N.W.2d 368 (Iowa 1985).  It was determined that 
 
         claimant sustained a cumulative injury the first day he missed 
 
         work and the second employer was held liable for an injury 
 
         arising out of and in the course of employment.  The treating 
 
         physician at the University of Iowa said it is probable that his 
 
         tasks as a carpenter probably accelerated the natural history of 
 
         the problem and contributed to the development of the symptoms in 
 
         his wrist.  Claimant testified that employer told him that the 
 
         insurance company told employer to lay him off, but employer 
 
         denied this several times.
 
         
 
         51802
 
         
 
              Claimant awarded healing period benefits for two times off 
 
         work, but defendants were given credit for a period of time they 
 
         allowed claimant to work light duty and claimant received actual 
 
         wages.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         51803
 
         
 
              Claimant awarded permanent partial disability benefits for 
 
         weeks as stipulated to by the parties based on a 12 percent 
 
         permanent impairment of the right upper extremity.
 
         
 
         52500; 52700
 
         
 
              Claimant awarded medical benefits and medical mileage as 
 
         stipulated to by the parties.
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                   BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         ROSELYN T. RYAN,
 
         
 
              Claimant,                               File No. 805629
 
         
 
         vs.                                       A R B I T R A T I O N
 
         
 
         UNIVERSITY OF NORTHERN IOWA,                 D E C I S I O N
 
         
 
              Employer,
 
                                                         F I L E D
 
         and
 
                                                        JUN 29 1989
 
         STATE OF IOWA,
 
                                                    INDUSTRIAL SERVICES
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
                                   INTRODUCTION
 
         
 
              This is a proceeding in arbitration brought by the claimant, 
 
         Roselyn T. Ryan, against her employer, the University of Northern 
 
         Iowa, and its insurance carrier, the State of Iowa, to recover 
 
         benefits under the Iowa Workers' Compensation Act as the result 
 
         of an injury sustained on September 9, 1985.  This matter came on 
 
         for hearing before the undersigned deputy industrial commissioner 
 
         at Waterloo, Iowa, on April 26, 1989.  A first report of injury 
 
         was filed on October 3, 1985.  Pursuant to the prehearing report, 
 
         the parties stipulated that claimant has received 28.857 weeks of 
 
         healing period or temporary total disability benefits.
 
         
 
              The record in this proceeding consists of the testimony of 
 
         claimant as well as of joint exhibits 1 through 13.  We note that 
 
         numerous documents submitted as a portion of joint exhibit 1 
 
         appear to have limited relevance to the issues to be decided in 
 
         this matter.
 
         
 
                                   ISSUES
 
         
 
              Pursuant to the prehearing report and the oral stipulations 
 
         of the parties at hearing, the parties stipulated:  That 
 
         claimant's rate of weekly compensation in the event of an award 
 
         is $171.66; that claimant's alleged injury is the cause of 
 
         temporary disability for which claimant was off work from 
 
         September 13, 1985 to March 30, 1986 and for which she received 
 
         benefits as recited above; that the commencement date for any 
 
         permanent partial disability benefits, if awarded, is March 31, 
 
         1986; and, that medical costs related to claimant's alleged work 
 
         related condition were fair and reasonable and treatment for such 
 
         condition was reasonable and necessary.  The issues remaining to 
 
         be decided are: (1) whether claimant received an injury which 
 
         arose out of and in the course of her employment; (2) whether a 
 
                                                
 
                                                         
 
         causal relationship exists between that alleged injury and any 
 
         permanent disability; (3) the nature and extent of any permanent 
 
         disability resulting from the alleged injury; (4) whether 
 
         claimant is entitled to payment of certain medical costs pursuant 
 
         to section 85.27; and, (5) whether defendants are entitled to a 
 
         credit for certain long-term disability benefits paid claimant 
 
         which credit would be pursuant to section 85.38(2).
 
         
 
                             REVIEW OF THE EVIDENCE
 
         
 
              Claimant testified that she was born December 6, 1921.  She 
 
         completed eighth grade and at age 19, worked for one year as a 
 
         housekeeper.  Other than that outside employment, she farmed 
 
         either with her father or, subsequent to her marriage in 1941, 
 
         with her husband until 1965.  Both she and her husband then 
 
         sought full-time employment with the University of Northern Iowa. 
 
         Claimant obtained a GED in the 1970's, but reported no other 
 
         training or education.
 
         
 
              At the University of Northern Iowa, claimant worked as a 
 
         custodian originally in apparently Readinger Lounge and 
 
         subsequently in the student union.  Her job entailed general 
 
         housekeeping duties such as cleaning, vacuuming, emptying 
 
         wastebaskets, carrying newspapers, moving furniture, mopping, 
 
         dusting and cleaning restrooms.  Claimant testified that, prior 
 
         to September 9, 1989, her physical condition was fine and that 
 
         she had had no problems performing her job.  She reported that, 
 
         to the best of her knowledge, there were no complaints regarding 
 
         her job performance prior to her injury date.
 
         
 
              Personnel records in evidence reflect that claimant had had 
 
         numerous absences from work from her employment date onward, some 
 
         of which related to an earlier automobile accident and subsequent 
 
         cervical fusion.  Other absences related to use of general sick 
 
         leave time for minor conditions or illnesses or the use of 
 
         vacation time.  The personnel record as a whole reflects an 
 
         apparent lack of desire on claimant's part to be available for 
 
         full-time work on a regular basis.
 
         
 
              On September 9, 1985, claimant slipped while washing a brass 
 
         rail at the union.  She fell down approximately 12 steps, struck 
 
         her head on the wall and broke the wall.  Claimant was 
 
         transported to Sartori Hospital by ambulance.  She apparently was 
 
         unconscious for a time subsequent to the injury.  She sustained a 
 
         displaced fracture of the distal radius on the right, a 
 
         nondisplaced fracture of the distal radius on the left, and a 
 
         concussion.  She subsequently complained of neck and arm pain as 
 
         well as of headaches.
 
         
 
              Claimant agreed that she had had preexisting neck problems 
 
         following a 1965 car accident which resulted in a cervical fusion 
 
         at C5-6.  She reported that she had not had neck problems prior 
 
         to her injury date, however.  She also complained of severe 
 
         headaches that do not go away and which result in her head 
 
         "swelling up" as well as of pressure in her ears and of neck 
 
                                                
 
                                                         
 
         muscle "swelling." Claimant reported that she now has headaches 
 
         associated with her neck problems approximately two or three 
 
         times per week.  She stated that the headaches are not too severe 
 
         if she does not agitate them.  Claimant agreed that she had had 
 
         headaches prior to her injury, but reported those as starting 
 
         from the vertebrae in the back of the neck whereas her 
 
         post-injury headaches start at the side of the neck.  She also 
 
         characterized her post-injury headaches as more frequent and more 
 
         severe than her pre-injury headaches.
 
         
 
              Claimant reported that she attempted a work return on March 
 
         31, 1986, but experienced severe pain in the head and neck while 
 
         doing so.  She reported that she then attempted to work 
 
         half-days, but was unable to do so because of her head and neck 
 
         pain as well as considerable wrist problems.
 
         
 
              Claimant stated that Arnold Delbridge, M.D., took her off 
 
         work in mid-April, 1986 and she has not returned to work or 
 
         sought other employment since that date.  Claimant opined that 
 
         she could not do her custodial job at the University of Northern 
 
         Iowa now.
 
         
 
              Claimant characterized her wrists as sore with no real 
 
         strength, the right worse than the left.  Claimant reported that 
 
         she cannot lift a cup of coffee in her right hand without 
 
         supporting such with the left hand.  She reported that vacuuming, 
 
         dusting, washing walls, or any cleaning or lifting aggravates her 
 
         wrists.  Claimant reported that she does her own cooking but does 
 
         very little sewing.  She stated that her husband usually vacuums, 
 
         although she does so herself on occasion.  Claimant stated that 
 
         her neck muscles tighten and that such is aggravated by lifting, 
 
         vacuuming, or mopping.  She indicated that she has trouble 
 
         sleeping as her neck tightens at times.
 
         
 
              Since the injury, claimant has traveled to Minnesota on two 
 
         occasions; once to see her daughter and once with her husband who 
 
         was seeking treatment at the Mayo Clinic.  She agreed that she 
 
         has also gone to Colorado on two occasions since her injury to 
 
         see a daughter.  On one occasion, she and her spouse flew out and 
 
         back to Colorado; on the second occasion, she and her spouse rode 
 
         out with her daughter and took a bus back.  Claimant reported 
 
         that both trips were "okay" as she used a neck pillow.
 
         
 
              On cross-examination, claimant could not remember having had 
 
         prior hip problems, or prior right knee problems or apparently 
 
         prior bursitis in the right shoulder.  She denied that she had 
 
         had neck pain in the year previous to her injury, but agreed that 
 
         notes of Dr. Bremner of February 11, 1985 recorded a complaint of 
 
         headache going down into the neck and a note in July of 1985 
 
         reported a complaint of headache and ear pain.  Claimant agreed 
 
         that she injured her low back in a work injury in 1983.  She 
 
         reported that she has a little arthritis in her back, but does 
 
         not remember how often.
 
         
 
              Claimant agreed that she was 63 years of age when injured. 
 
                                                
 
                                                         
 
         The University of Northern Iowa's mandatory retirement age is 70. 
 
         Claimant stated she had no retirement plans on her injury date 
 
         and had intended to work as long as she was physically able to 
 
         perform her job.  Claimant reported that she had been confused at 
 
         the time of her deposition when she had responded "yes" to a 
 
         question as to whether she was about a year away from retirement 
 
         at the time of her injury.  She agreed that she had asked in 1977 
 
         what her benefits would be if she retired at age 65, but stated 
 
         that age 65 was the figure that an individual was required to use 
 
         when making such inquiry.  She agreed that she had responded at 
 
         her deposition that she made such inquiry for "the heck of it," 
 
         but stated that, at the time of her deposition, she could not 
 
         remember why she had so inquired.
 
         
 
              Claimant's husband was born on January 31, 1921.  He has 
 
         been off work on long-term disability from the University of 
 
         Northern Iowa since October, 1985.  Mr. Ryan receives $430 per 
 
         month in long-term disability benefits and $555 per month in 
 
         Social Security retirement benefits.  Principal requires 
 
         individuals who obtain long-term disability benefits to take 
 
         Social Security retirement benefits if they are eligible for 
 
         those benefits.
 
         
 
              Claimant reported that she saw L. K. Knutson, D.C., 
 
         subsequent to her injury for neck pain.  Claimant reported that 
 
                             
 
                                                         
 
         she saw Kosaraju, R. Rao, M.D., on referral of Dr. Bremner as she 
 
         was having right eye problems subsequent to her injury.
 
         
 
              Michael Wallace testified that he is a senior claims analyst 
 
         dealing with life and long-term disability benefits with the 
 
         Principal Financial Group.  Mr. Wallace reported that, under 
 
         section 15 of Principal's policy with the University of Northern 
 
         Iowa, Principal can claim reimbursement when benefits are paid 
 
         under the long-term disability policy and workers' compensation 
 
         benefits are also received.  Wallace stated that, under the 
 
         policy, Principal typically seeks reimbursement for benefits paid 
 
         in wage loss and not benefits paid for loss of bodily function. 
 
         Under that scheme, typically reimbursement is sought for 
 
         temporary total disability benefits paid but not for permanent 
 
         partial disability benefits paid.  Wallace testified that 
 
         claimant's entitlement to long-term disability benefits began in 
 
         mid-April, 1986, subsequent to the end of her healing period or 
 
         temporary total disability workers' compensation benefits.  He 
 
         reported that, for that reason, the Principal would not seek 
 
         reimbursement for healing period benefits or temporary total 
 
         disability benefits paid claimant prior to mid-April, 1986 and 
 
         would not seek reimbursement for an permanent partial disability 
 
         benefits paid claimant if such benefits were clearly determined 
 
         to be benefits paid as a result of loss of bodily function.
 
         
 
              In an affidavit of April 4, 1989, Richard Andrews, 
 
         administrator of the state of Iowa's workers' compensation 
 
         program, stated that Principal Financial Group has issued a group 
 
         long-term disability insurance policy for employees of the 
 
         University of Northern Iowa.  He reported that the state of Iowa 
 
         is wholly responsible for payment of costs for such long-term 
 
         disability insurance which state employees receive under 
 
         appropriate circumstances.  Andrews stated that, if a condition, 
 
         injury or disease which results in disability is ultimately 
 
         determined to be work related and covered under Iowa's Workers' 
 
         Compensation Law, the state as sole provider of the benefits is 
 
         entitled to be reimbursed for any amounts paid as long-term 
 
         disability.  Andrews stated that claimant had received benefits 
 
         under the long-term disability program and had also received 
 
         workers' compensation benefits and that claimant's benefits under 
 
         the disability benefit program were not reduced by the amount of 
 
         workers' compensation benefits claimant received and that, for 
 
         that reason, the state as provider of the group benefit program 
 
         should be given a credit pursuant to section 85.38(2).
 
         
 
              In a letter of December 14, 1988, Michael Wallace reported 
 
         that total benefits as of that date which had been paid to 
 
         claimant under the long-term disability claim equalled 
 
         $15,898.43. He reported that, as of that date, claimant was 
 
         entitled to a monthly income benefit of $431.63.
 
         
 
              Section 15 of the long-term disability policy between 
 
         Principal and the University of Northern Iowa provides in 
 
         relevant part:
 
         
 
                                                
 
                                                         
 
              If a Person is eligible for income from other sources for 
 
              any month in which a.benefit is payable under this Policy, 
 
              the monthly benefit which accrues under this Policy shall be 
 
              limited to an amount which, when added to such income from 
 
              other sources, does not exceed *70% of the Person's covered 
 
              monthly compensation.  For the purposes of this Policy, 
 
              income from other sources shall be the sum of
 
         
 
                    (a)  any payments for which the Person and any of his 
 
                         dependents are eligible under the Federal Social 
 
                         Security Act** because of the Person's disability 
 
                         or because of the Person's retirement; and
 
         
 
                    (b)  any payment for which the Person is eligible 
 
                         under a Worker's Compensation Act or other 
 
                         similar legislation, or under any plan (including 
 
                         compulsory plans) providing benefits for loss of 
 
                         time from employment to which the Group 
 
                         Policyholder contributes or makes payroll 
 
                         deductions; and....
 
         
 
              Medical notes of February 11, 1985 report that claimant has 
 
         complaints of dizziness, nausea and nervousness that had 
 
         progressed for approximately two days as well as a slight sore 
 
         throat.  She also had complaints of a headache on the top of her 
 
         head that goes down to her neck.  A medical note of July 29, 1985 
 
         reports headache, eyes hurt, and glands swollen as well as 
 
         earache.
 
         
 
              Medical reports of Dr. Delbridge indicate that the doctor 
 
         saw claimant throughout 1981 through March 4, 1982 on account of 
 
         pain in her left hip, right shoulder and knee.
 
         
 
              In a report of June 3, 1986, Dr. Delbridge, who is a 
 
         board-certified orthopaedic and hand surgeon, reported that 
 
         claimant on her return to work on March 31, 1986 did not tolerate 
 
         the work well from either the standpoint of her injured forearm 
 
         or her injured neck.  The doctor reported that claimant was 
 
         subsequently seen on April 14, 1986 at which time she indicated 
 
         that she did not feel able to do her job.  Claimant apparently at 
 
         that time had good healing and good position of the fracture but 
 
         mild shortening of the radius (on the right) as would be expected 
 
         in someone with osteoporosis and a fracture.  The mild shortening 
 
         of the radius and the prominence of the distal ulnar caused 
 
         soreness on movement of the wrist.  In the June 3 letter, Dr. 
 
         Delbridge stated:
 
         
 
              ...Mrs. Ryan is sixty-four years old and nearing 
 
              retirement. There is no doubt that the custodial work that 
 
              Mrs. Ryan does is demanding and even at best [sic] is 
 
              barely up to it. Since her injury she has not been able to 
 
              return to that type of work.
 
         
 
              A radiology report of J. Maughan, M.D., of September 11, 1985 
 
         reported that cervical spine x-rays of that date showed a fusion 
 
                                                
 
                                                         
 
         at C5-6 with minimal degenerative changes in the facet.  
 
         Impression was of degenerative arthritis and post-fusion C5-6.
 
         
 
              On October 7, 1986, Dr. Delbridge reported that claimant had 
 
         a displaced fracture of the right distal radius and ulnar styloid 
 
         which had created some permanency of the right upper extremity 
 
         and a soft tissue cervical spine injury by way of a sprain.  He 
 
         opined that her neck situation was partially due to her fall, 
 
         although she had previously had surgery on her neck and a fusion 
 
         between C5 and C6.
 
         
 
              On examination of her right upper extremity, claimant had 
 
         palmar flexion of 50 degrees, dorsiflexion of 30 degrees, full 
 
         pronation, full supination and normal radial deviation of the 
 
         right wrist.  She had ulnar deviation of 20 degrees.  The doctor 
 
         assessed a 3 percent impairment of the upper extremity as a 
 
         result of a 20 degree loss of palmar flexion; 30 degree loss of 
 
         dorsiflexion; and, 10 degree loss on account of the ulnar 
 
         deviation.  He opined that claimant had a 10 percent permanent 
 
         impairment of her right upper extremity as a result of her fall 
 
         and fracture of her right distal radius and ulna.
 
         
 
              Dr. Delbridqe opined that claimant had continued pain in the 
 
         cervical spine and continued headaches as a result of her injury. 
 
         He reported she had had no difficulty prior to the fall with 
 
         those types of problems.  He reported that claimant had had an 
 
         accident 20 years earlier with a fusion, but that her neck, after 
 
         that according to her, was relatively asymptomatic until her 
 
         fall.  On flexion of the cervical spine, claimant had 35 degrees 
 
         of flexion, a loss of 10 degrees; she had extension of 30 
 
         degrees, a loss of 15 degrees; right lateral flexion of 30 
 
         degrees, a loss of 15 degrees; left lateral flexion of 30 
 
         degrees, a loss of 15 degrees; right rotation of 60 degrees, a 
 
         loss of 20 degrees; and, left rotation of 60 degrees, a loss of 
 
         20 degrees.  The doctor opined that claimant had an 8 percent 
 
         impairment of the body as a whole attributable to her cervical 
 
         spine.  He stated that, considering claimant's past history, 6 
 
         percent of that is attributable to her previous injury and the 
 
         natural progression of aging of the cervical spine and 2 percent 
 
         of the impairment was attributable to her (work injury).
 
         
 
              The doctor opined that claimant was unable to return to work 
 
         following her injury and that he did not feel it was likely she 
 
         would ever return to her previous job.  The doctor stated that, 
 
         because of claimant's age, he would not recommend an attempt be 
 
         made to rehabilitate her into another area (of work).  He opined 
 
         that, in addition to her injuries as described, claimant had 
 
         continuing pain and discomfort in her cervical spine which pain 
 
         was likely to persist indefinitely and would inhibit any real 
 
         effort at rehabilitation into another area.
 
         
 
              On March 19, 1986, Bruce L. Sprague, M.D., of Surgery of the 
 
         Hand and Upper Extremity, stated that on examination of that 
 
         date, claimant had full range of motion of the right elbow and 
 
         forearm, but a loss of 15 degrees of full dorsiflexion of the 
 
                                                
 
                                                         
 
         right wrist compared to the left and a loss of 15 degrees of 
 
         palmar flexion of the right wrist compared to the left, but "no 
 
         lack of dorsiflexion."  He reported claimant had slight radial 
 
         deviation of the hand and negative Tinel's signs and negative 
 
         Phalen's tests.  He reported claimant had full range of motion of 
 
         the MP, PIP, and DIP joints of the hand, but had weakness of grip 
 
         involving the right hand as compared to the left and had weakness 
 
         of thumb opposition.
 
         
 
              On May 5, 1986, Dr. Sprague stated he did not feel claimant 
 
         would return to being a productive worker.  He assigned her a 
 
         permanent impairment of 3 percent of the right upper extremity 
 
         and 0 percent of the left upper extremity.
 
         
 
              On May 30, 1986, L. K. Knutson, D.C., reported that claimant 
 
         was first seen on February 18, 1986.  Claimant then complained of 
 
         cervical pain and distress exaggerated in the lower cervical 
 
         area. She also complained of ringing in the ears with pain 
 
         radiating into the upper dorsal spine, into the left arm and 
 
         discomfort in the lower spine.  Conservative chiropractic 
 
         treatment was begun on February 10, 1986.  Dr. Knutson 
 
         characterized claimant as responding very well and receiving a 
 
         great deal of relief from symptoms in the dorsal and lower lumbar 
 
         areas, although having persisting irritation in the 1st, 6th and 
 
         7th cervical spine areas, albeit with definite improvement.
 
         
 
              On May 20, 1986, K. R. Rao, M.D., an ophthalmologist, 
 
         reported that he saw claimant on November 27, 1985 with a history 
 
         of having had a concussion injury to her head on September 9, 
 
         1985 and complaints of having occasional sense of pressure in the 
 
         right eye since that time.  He reported that, on examination, he 
 
         found no damaging effect of trauma on her eyes.
 
         
 
                             
 
                                                         
 
              On June 17, 1986, Robert N. Bremner, M.D., a family 
 
         practitioner, expressed his belief that claimant would have a 
 
         slight permanent deformity of the right wrist consequent to her 
 
         fracture and that her neck pain would continue to be 
 
         progressively more severe since the fall.  He doubted whether 
 
         claimant would ever be able to return to full-time employment.
 
         
 
              On October 21, 1987, A. K. Nakhasi, M.D., a board-certified 
 
         neurologist, examined claimant.  Claimant's neurological exam was 
 
         essentially normal, although she had slightly reduced right arm 
 
         swing while walking.  Motor strength was grade 5/5; deep tendon 
 
         reflexes were 2+; symmetric plantar reflexes were down going.  
 
         Dr. Nakhasi opined that claimant's symptoms are due to recurrence 
 
         of cervical spondylosis and cervical radiculopathy.  The doctor 
 
         again saw claimant on November 24, 1987.  He reported that she 
 
         had essentially normal EEG and CT scan of the head.  He 
 
         recommended that conservative treatment be continued.
 
         
 
              In his deposition taken December 14, 1988, Dr. Delbridge 
 
         reported that he had reexamined claimant on November 2, 1988.  He 
 
         reported that claimant then had additional dorsiflexion of the 
 
         right wrist, but had more limitation on right rotation of her 
 
         neck.  The doctor opined that her upper extremity impairment had 
 
         decreased to 8 percent, but that her impairment of the body as a 
 
         whole had increased by 1 percent.  The doctor reported that, 
 
         under the combined values chart, claimant's upper extremity 
 
         impairment of 8 percent of the upper extremity and her 3 percent 
 
         body as a whole impairment would result in an 8 percent 
 
         impairment of the body as a whole attributable to her injury.
 
         
 
              The doctor opined that claimant's pre-1985 problems, as 
 
         those relate to her current condition, "are not very prominent in 
 
         comparison to the difficulties associated with her fall."
 
         
 
              Dr. Delbridge stated that claimant had degenerative 
 
         arthritis in her neck which in all likelihood preexisted her 
 
         fall.  He reported that (prior to her fall) claimant was not 
 
         having too much difficulty with the degenerative arthritis in her 
 
         neck, but that it would have probably continued to gradually 
 
         deteriorate, not necessarily, but possibly, causing her a great 
 
         deal of pain as she got older.
 
         
 
              Dr. Delbridge opined that claimant could not go back to work 
 
         today and certainly not to a janitorial job and that her general 
 
         condition including the fact that she was an elderly lady with a 
 
         lot of problems, "which were brought to a head by her fall" were 
 
         factors in that conclusion.  The following dialogue then ensued:
 
         
 
              Q.  If we had been dealing with a younger person here, you 
 
              would have recommended rehabilitation of some type for her 
 
              in the vocational area?
 
         
 
              A.  I very likely would have, but considering that she was 
 
              the age she was, considering her general condition as well 
 
              as the problem she was having with her neck and her upper 
 
                                                
 
                                                         
 
                   extremity, I concluded that at about the time one area was 
 
              rehabilitated something else would be a problem, and that it 
 
              just was very likely not to work.
 
         
 
         (Exhibit 12, page 30, lines 5 through 15)
 
         
 
              The doctor subsequently characterized claimant's fall as 
 
         "the last straw, if you will, that prevented her from going back 
 
         to work."  He concluded that in all probability, had claimant not 
 
         fallen, she would have continued to work to age 65 or possibly 
 
         past that age.
 
         
 
              Statements in evidence indicate a charge of $59.00 with Dr. 
 
         Rao for examination of claimant in November and December, 1985 
 
         and in charges totalling $196.00 for 14 office consultations with 
 
         Knutson Chiropractic Clinic.
 
         
 
                        APPLICABLE LAW AND ANALYSIS
 
         
 
              Claimant has the burden of proving by a preponderance of the 
 
         evidence that she received an injury on September 9, 1985 which 
 
         arose out of and in the course of her employment.  McDowell v. 
 
         Town of Clarksville, 241 N.W.2d 904 (Iowa 1976); Musselman v. 
 
         Central Telephone Co., 261 Iowa 352, 154 N.W.2d 128 (1967).
 
         
 
              The injury must both arise out of and be in  the course of 
 
         the employment.  Crowe v. DeSoto Consol. Sch. Dist., 246 Iowa 
 
         402, 68 N.W.2d 63 (1955) and cases cited at pp. 405-406 of the 
 
         Iowa Report.  See also Sister Mary Benedict v. St. Mary's Corp., 
 
         255 Iowa 847, 124 N.W.2d 548 (1963) and Hansen v. State of Iowa, 
 
         249 Iowa 1147, 91 N.W.2d 555 (1958).
 
         
 
              The words "out of" refer.to the cause or source of the 
 
         injury.  Crowe v. DeSoto Consol. Sch. Dist., 246 Iowa 402, 68 
 
         N.W.2d 63 (1955).
 
         
 
              The words "in the course of" refer to the time and place and 
 
         circumstances of the injury.  McClure v. Union et al. Counties, 
 
         188 N.W.2d 283 (Iowa 1971); Crowe v. DeSoto Consol. Sch. Dist., 
 
         246 Iowa 402, 68 N.W.2d 63 (1955).
 
         
 
              Claimant has established an injury which arose out of and in 
 
         the course of her employment.  A quite specific, quite 
 
         identifiable traumatic incident occurred while claimant was 
 
         performing her normal duties for her employer.  The fighting 
 
         issue appears to be whether a causal relationship exists between 
 
         claimant's injury and her claimed permanent disability.
 
         
 
              The claimant has the burden of proving by a preponderance of 
 
         the evidence that the injury of September 9, 1985 is causally 
 
         related to the disability on which she now bases her claim.  
 
         Bodish v. Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867 (1965).  
 
         Lindahl v. L.O. Boggs, 236 Iowa 296, 18 N.W.2d 607 (1945).  A 
 
         possibility is insufficient; a probability is necessary.  Burt v. 
 
         John Deere Waterloo Tractor Works, 247 Iowa 691, 73 N.W.2d 732 
 
                                                
 
                                                         
 
         (1955).  The question of causal connection is essentially within 
 
         the domain of expert testimony.  Bradshaw v. Iowa Methodist 
 
         Hospital, 251 Iowa 375, 101 N.W.2d 167 (1960).
 
         
 
              However, expert medical evidence must be considered with all 
 
         other evidence introduced bearing on the causal connection.  
 
         Burt, 247 Iowa 691, 73 N.W.2d 732.  The opinion of experts need 
 
         not be couched in definite, positive or unequivocal language.  
 
         Sondag v. Ferris Hardware, 220 N.W.2d 903 (Iowa 1974).  However, 
 
         the expert opinion may be accepted or rejected, in whole or in 
 
         part, by the trier of fact.  Id. at 907.  Further, the weight to 
 
         be given to such an opinion is for the finder of fact, and that 
 
         may be affected by the completeness of the premise given the 
 
         expert and other surrounding circumstances.  Bodish, 257 Iowa 
 
         516, 133 N.W.2d 867.  See also Musselman v. Central Telephone 
 
         Co., 261 Iowa 352, 154 N.W.2d 128 (1967).
 
         
 
              While a claimant is not entitled to compensation for the 
 
         results of a preexisting injury or disease, the mere existence at 
 
         the time of a subsequent injury is not a defense.  Rose v. John 
 
         Deere Ottumwa Works, 247 Iowa 900, 908, 76 N.W.2nd 756 (1956).  
 
         If the claimant had a preexisting condition or disability that is 
 
         aggravated, accelerated, worsened or lighted up so that it 
 
         results in disability, claimant is entitled to recover.  Nicks v 
 
         Davenport Produce Co., 254.Iowa 130, 115 N.W.2d 812 (1962).
 
         
 
              The Iowa Supreme Court cites, apparently with approval, the 
 
         C.J.S. statement that the aggravation should be material if it is 
 
         to be compensable.  Yeager v. Firestone Tire & Rubber Co., 253 
 
         Iowa 369, 112 N.W.2d 299 (1961); 100 C.J.S. Workmen's 
 
         Compensation section 555(17)a.
 
         
 
              Defendants apparently contend that claimant's only 
 
         disability subsequent to her injury and causally related to her 
 
         injury is any sequelae of her displaced fracture of the distal 
 
         radius on the right.  They apparently contend that her neck pain 
 
         and her headaches as well as her alleged wrist weakness on the 
 
         left subsequent to the nondisplaced fracture of the distal radius 
 
         on the left are nonexisting or preexisting problems which do not 
 
         relate to the work injury.  The record does show that claimant 
 
         had had complaints of headache in the year prior to her injury.  
 
         The record shows that she had had a cervical fusion at C5-6 
 
         subsequent to a car accident prior to her injury.  Dr. Sprague's 
 
         opinion of March 19, 1986.supports defendants' position.  Dr. 
 
         Sprague examined claimant only.  Dr. Delbridge, a board-certified 
 
         orthopaedic and hand surgeon, treated claimant both 
 
         intermittently prior to her injury and subsequent to her injury.  
 
         Dr. Delbridge has opined that claimant's pre-1985 problems as 
 
         those relate to her current condition, "are not very prominent in 
 
         comparison to the difficulties associated with her fall."  He has 
 
         also stated that, while claimant had degenerative arthritis in 
 
         her neck which, in all likelihood, preexisted her fall, claimant 
 
         was not having much difficulty with such prior to her fall.  He 
 
         has stated that, while claimant is an elderly lady with a lot of 
 
         problems, [those problems] "were brought to a head by her fall."  
 
                                                
 
                                                         
 
         He has opined that claimant has had continued pain in the 
 
         cervical spine and continued headaches as a result of her injury.  
 
         Dr. Delbridge has also indicated that part of claimant's cervical 
 
         problem is attributable to her previous injury and the natural 
 
         progression of aging in the cervical spine, albeit a portion is 
 
         attributable to her work injury.  Dr. Delbridge's opinions are 
 
         accepted over those of Dr. Sprague and over those of Dr. Nakhasi 
 
         who reported that claimant's cervical symptoms were due to 
 
         recurrence of cervical spondylosis and cervical radiculopathy, 
 
         but did not opine as to the origin of such.  Dr. Delbridge has 
 
         treated claimant at least intermittently over a long period of 
 
         time.  Hence, he has greater familiarity than the other 
 
         physicians in the record, with the exception of Dr. Bremner, who 
 
         generally concurs with Dr. Delbridge's opinions as to claimant's 
 
         right wrist deformity and neck pain subsequent to her fall.  
 
         Claimant has established the requisite causal connection between 
 
         her right and left wrist difficulties, her cervical spinal 
 
         difficulties as they now manifest themselves, and her current 
 
         recurring headaches and her September 9, 1985 injury.
 
         
 
              Likewise, defendants have denied claimant payment of medical 
 
         costs with K. R. Rao, M.D., an ophthalmologist, and L. K. 
 
         Knutson, D.C.  Dr. Rao clearly saw claimant for examination of a 
 
         complaint occurring subsequent to her injury.  Even though the 
 
         doctor found no damaging effect of trauma on claimant's eyes when 
 
         he examined her on November 27, 1985, the visit itself was 
 
         occasioned by claimant's September 9, 1985 injury.  Claimant 
 
         clearly had a right to ascertain on referral of her treating 
 
         physician as she testified at hearing, that she did not have an 
 
         additional condition as a result of her work injury.  Claimant is 
 
         entitled to payment for the charges of Dr. Rao.  Additionally, in 
 
         the case of both Dr. Rao and Dr. Knutson, defendants have denied 
 
         liability for claimant's work injury.  In doing so, they had 
 
 
 
                        
 
                                                         
 
         foregone any opportunity to choose claimant's care on account of 
 
         the injury. Claimant's complaints of cervical pain and distress 
 
         as reported by Dr. Knutson are clearly within the realm of 
 
         complaints one could reasonably believe resulted from her injury.  
 
         Claimant is entitled to payment for treatments received from Dr. 
 
         Knutson.as well as for payment for examination by Dr. Rao.
 
         
 
              Our next concern is the nature and extent of any permanent 
 
         disability resulting from claimant's alleged injury.
 
         
 
              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).
 
         
 
              For example, a defendant employer's refusal to give any sort 
 
         of work to a claimant after he suffers his affliction may justify 
 
         an award of disability.  McSpadden v. Big Ben Coal Co., 288 
 
         N.W.2d 181 (Iowa 1980).
 
         
 
              Similarly, a claimant's inability to find other suitable 
 
         work after making bona fide efforts to find such work may 
 
         indicate that relief would be granted.  McSpadden v. Big Ben Coal 
 
         Co., 288 N.W.2d 181 (Iowa 1980)
 
         
 
              Age is a relevant factor in determining industrial 
 
         disability.  However, a distinction must be drawn between a case 
 
         where, for instance, persons age 45 to 50 are displaced from the 
 
         only line of work for which they are trained or educationally 
 
         qualified, and the case where the vast majority of claimant's 
 
         earning years are passed.  In the former case (of course 
 
         dependent upon various factors) the injured worker's earning 
 
         capacity has seriously been reduced due to age.  He or she has 
 
         been injured not at a time when they are younger and more easily 
 
         retrainable, nor at an advanced working age when working earning 
 
         capacity will be curtailed by the fact that a person will soon 
 
         retire and that their earning capacity will not be based upon 
 
         their work but upon their age, retirement schemes, etc.  These 
 
         people have been injured at the prime of their earning years, 
 
         where they have many working years ahead of them -- where their 
 
         earning capacity is based upon their ability to work -- to be 
 
         employed.  Industrial disability is based upon lack of earning 
 
         capacity due to a compensable injury that has diminished the 
 
         injured worker's ability to maintain the earning capacity he 
 
         enjoyed prior to his injury.  Hainey v. Protein Blenders, Inc., 
 
         and Transamerica Insurance Services, file number 708955 (App. 
 
         Decn. October 18, 1985).
 
         
 
              Also to be considered is the following decision of this 
 
         agency:
 
         
 
                   Although the Iowa Supreme Court has indicated that age 
 
              is a factor to be considered in determining industrial 
 
              disability, it does not indicate what the effect of young 
 
              age, middle age or older age is supposed to be.  Obviously, 
 
              it is a factor that cannot be considered separately but must 
 
              be considered in conjunction with the other factors.  For 
 
              example, the effects of a minor back injury upon a young 
 
              person with extensive formal education would limit the scope 
 
              of his potential employment less than that of a middle-aged 
 
              person with no formal education.
 
         
 
                   How to apply age as a factor when a person is nearing 
 
                                                
 
                                                         
 
                   the end of his normal working life is a dilemma.  When 
 
              considering the age factor, it is apparent that the scope of 
 
              employment for which claimant is fitted is narrowed simply 
 
              because of the reluctance of employers to initially employ 
 
              persons of advanced years.  Therefore, the advanced age 
 
              alone without the combination of an injury is limiting.  
 
              Lack of education or at least a showing of diminished 
 
              educability is in and of itself also a limiting factor for 
 
              entry into many fields of employment....
 
         
 
                   The Michigan Supreme Court has stated regarding 
 
              retirement:
 
         
 
                   Compensation benefits are geared to weekly wage loss. 
 
                   It is inconsistent with the concept of tying weekly 
 
                   compensation benefits to weekly wage loss to factor 
 
                   into the benefit program the statistically established 
 
                   generalization that workers, even if not disabled, 
 
                   retire between 60 and 75 and no longer earn weekly 
 
                   wages.  There is no discrimination against disabled 
 
                   workers over 65 in taking into account the wage loss 
 
                   they would "presumptively" suffer due to normal 
 
                   retirement.  Cruz v. Chevrolet Grey Iron Div.of Gen. 
 
                   Motors, 247 N.W.2d 764, 775 (Mich. 1976).
 
         
 
              For workmen's [sic] compensation purposes total disability 
 
              does not mean a state of absolute helplessness, but means 
 
              disablement of an employee to earn wages in the same kind 
 
              of work, or work of a similar nature, that he was trained 
 
              for, or accustomed to perform, or any other kind of work 
 
              which a person of his [sic] mentality and attainments could 
 
              do. Franzen v. Blakley, 155 Neb. 621, 51 N.W.3d 833 (1952). 
 
              Total and permanent disability contemplates the inability 
 
              of the workman [sic] to perform any work for which he [sic] 
 
              has the experience or capacity to perform.  Shaw v. Gooch 
 
              Feed Mill Corp., 210 Neb. 17, 312 N.W.2d 682 (1981).
 
         
 
              Apportionment of disability is limited to those situations 
 
         where the prior injury or illness, unrelated to employment, 
 
         independently produces some ascertainable portion of the ultimate 
 
         industrial disability found to exist following the 
 
         employment-related aggravation.  Varied Industries, Inc. v. 
 
         Sumner, 353 N.W.2d 407 (Iowa 1984).
 
         
 
              Claimant has a relatively modest functional disability to the 
 
         body as a whole actually apportionable to her work-related injury. 
 
         Claimant complains of severe problems and attributes substantially 
 
         all of them to her work injury.  Given claimant's preexisting 
 
         cervical condition and the fact that Dr. Delbridge attributes at 
 
         least two-thirds of her cervical impairment to her preexisting 
 
         condition, and given claimant's lack of motivation to work while 
 
         under any degree of health or personal stress prior to her injury 
 
         as evidenced in her personnel file, it is indeed difficult to 
 
         readily ascertain the real impact of claimant's work injury on her 
 
         current status as a nonworker.  We do know that claimant did 
 
                                                
 
                                                         
 
         attempt to return to work, that her family practitioner took her 
 
         off work, that claimant apparently self-reported to Dr. Delbridge 
 
         that she could not return to the type of work she had been doing 
 
         at the University, that Dr. Delbridge made a professional judgment 
 
         that claimant could not return to her custodial work, and that 
 
         rehabilitation was not practicable given claimant's age and her 
 
         numerous physical problems.  On the other hand, claimant has 
 
         appeared quite content to maintain her status as a nonworker. 
 
         Claimant is an older worker and she does have limited education. 
 
         Yet, the undersigned's experience in this agency would suggest 
 
         that there are jobs in the marketplace that claimant could 
 
         conceivably fill.  Claimant has not sought any type of employment 
 
         since her injury.  That fact reflects a lack of motivation.  It 
 
         also makes it impossible to fully attribute claimant's 
 
         nonemployment at this time to her work injury.  Likewise, 
 
         claimant's failure to make any efforts towards employment since 
 
         her injury suggests that claimant is not altogether discontent 
 
         with her current status as a retired worker and, when coupled with 
 
         her personnel records which reflect significant time off 
 
         throughout her work life, both apparently on account of lack of 
 
         motivation to work and on account of problems related to her 
 
         physical condition, suggest that little weight should be given to 
 
         claimant's contention that she would have continued to work until 
 
         age 70 but for her injury.  Claimant's age at the time of her 
 
         injury and her general attitude throughout her time of employment 
 
         with the University as gleaned from personnel records suggests 
 
         that claimant, even had she not been injured, would not have 
 
         worked for any significant number of years beyond age 65. 
 
         Certainly, it appears unlikely that she would have worked beyond 
 
         the University's mandatory retirement age of 70.  Given all of the 
 
         above, it cannot be said that claimant's work injury per se counts 
 
         for all of her current lost earnings.  Likewise, it cannot be said 
 
         that all of claimant's current lost earnings reflect an actual 
 
 
 
                        
 
                                                         
 
         loss of earning capacity.  Indeed, the record is almost devoid of 
 
         evidence of claimant's current functional abilities. Other than 
 
         she should not return to her previous job and rehabilitation 
 
         should not be sought, no restrictions have been placed on her.  
 
         Her functional impairment is modest when considered of itself and 
 
         not coupled with her many other physical problems, many of which 
 
         are not inconsistent with her age, even had she not had her work 
 
         injury.  Claimant's lack of actual restrictions, her lack of 
 
         motivation, and her relatively modest functional impairment 
 
         actually resulting from her injury would all suggest that 
 
         claimant's actual loss of earning capacity attributable to her 
 
         injury are at best only moderately high.  Claimant has sustained a 
 
         25 percent loss of earning capacity on account of her work 
 
         injury.
 
         
 
              We lastly consider defendants' entitlement to credit for 
 
         long-term disability benefits paid claimant.
 
         
 
              Section 85.38(2) provides:
 
         
 
              In the event the disabled employee shall receive any 
 
              benefits, including medical, surgical or hospital benefits, 
 
              under any group plan covering nonoccupational disabilities 
 
              contributed to wholly or partially by the employer, which 
 
              benefits should not have been paid or payable if any rights 
 
              of recovery existed under this chapter, chapter 85A or 
 
              chapter 85B, then such amounts so paid to said.employee from 
 
              any such group plan shall be credited to or against any 
 
              compensation payments, including medical, surgical or 
 
              hospital, made or to be made under this chapter, chapter 85A 
 
              or chapter 85B.  Such amounts so credited shall be deducted 
 
              from the payments made under these chapters.  Any 
 
              nonoccupational plan shall be reimbursed in the amount so 
 
              deducted.  This section shall not apply to payments made 
 
              under any group plan which would have been payable even 
 
              though there was an injury under this chapter or an 
 
              occupational disease under chapter 85A or an occupational 
 
              hearing loss under chapter 85B.  Any employer receiving such 
 
              credit shall keep such employee safe and harmless from any 
 
              and all claims or liabilities that may be made against them 
 
              by reason of having received such payments only to the 
 
              extent of such credit.
 
         
 
              Claimant argues that defendants are not entitled to a credit 
 
         under section 85.38(2) as Mr. Wallace has testified that the 
 
         Principal does not require reimbursement of long-term disability 
 
         benefits when such benefits have been paid while the benefit 
 
         payee was also receiving workers' compensation benefits for what 
 
         the Principal characterizes as benefits paid for loss of bodily 
 
         function.  Defendants argue that section 15 of the long-term 
 
         disability policy between Principal and the University of 
 
         Northern Iowa is controlling.  The section provides that any 
 
         payment for which [the payee] is eligible under a workers' 
 
         compensation act is income from another source to be considered 
 
         when determining an amount not in excess of 70 percent of the 
 
                                                
 
                                                         
 
         person's covered monthly compensation.  The relevant phrases in 
 
         section 85.38(2) are, "which benefits should not have been paid 
 
         or payable if any rights of recovery existed under this 
 
         chapter..." and "[t]his section shall not apply to payments made 
 
         under any group plan which would have been payable even though 
 
         there was an injury under this chapter...."  We find the phrase 
 
         "should not have been paid or payable" controlling in this 
 
         instance.  Section 15 of the policy between the Principal and the 
 
         University clearly establishes that the intent of the University 
 
         in purchasing a policy from the Principal was to afford itself 
 
         protection from payment of both long-term disability and workers' 
 
         compensation benefits.  One projects that, had the University 
 
         known that the Principal, in actual practice, would not implement 
 
         the provisions of section 15 of the insurance policy as written, 
 
         the University might well have chosen to seek insurance from 
 
         another long-term disability insurer.  Hence, we will not go 
 
         outside the boundaries of the insurance policy in the present 
 
         situation.  Clearly, the long-term disability benefits should not 
 
         have been payable under section 15 of the insurance policy as 
 
         written.  The insurer's act of paying such benefits and not 
 
         seeking reimbursement should not impact upon the insured's right 
 
         to the appropriate 85.38(2) credit.  As of December 14, 1988, 
 
         claimant had been paid $15,898.43 in long-term disability 
 
         benefits.  She was then entitled to a monthly long-term 
 
         disability benefit of $431.63.  Defendants are entitled.to a 
 
         credit in the amount of $15,898.43 as well as to a credit for any 
 
         continuing payments of monthly long-term disability benefits to 
 
         claimant which monthly benefits are currently in the amount of 
 
         $431.63.
 
         
 
                                FINDINGS OF FACT
 
         
 
              WHEREFORE, IT IS FOUND:
 
         
 
              Claimant sustained an injury on September 9, 1985 when 
 
         claimant slipped in the course of her employment and fell down 
 
         approximately 12 steps.
 
         
 
              In her fall, claimant struck her head on a wall, apparently 
 
         breaking a hole in the wall.
 
         
 
              Claimant was hospitalized immediately subsequent to her 
 
         fall.
 
         
 
              Claimant sustained a displaced fracture of the distal radius 
 
         on the right, a nondisplaced fracture of the distal radius on the 
 
         left and a concussion.
 
         
 
              Claimant subsequently complained of neck and arm pain as 
 
         well as of headaches.
 
         
 
              Claimant had preexisting neck problems subsequent to a 
 
         cervical fusion at C5-6.
 
         
 
              Claimant had had headaches in the year prior to her injury.
 
                                                
 
                                                         
 
         
 
              Claimant was 63 years old when injured.
 
         
 
              Claimant had had degenerative arthritic changes in her neck 
 
         prior to her injury.
 
         
 
              Dr. Delbridge treated claimant both prior to and subsequent 
 
         to her injury.
 
         
 
              Dr. Delbridge is a board-certified orthopaedic and hand 
 
         surgeon.
 
         
 
              Dr. Sprague of Surgery of the Hand and Upper Extremity 
 
         examined claimant only on one or two occasions.
 
         
 
              Dr. Nakhasi, a board-certified neurologist, examined 
 
         claimant apparently only on October 21, 1987 and November 24, 
 
         1987.
 
         
 
              Claimant's numerous problems were brought to a head or 
 
         lighted up by her work injury.
 
         
 
              Approximately 25-33 percent of claimant's current cervical 
 
         problems can be apportioned to her work injury.
 
         
 
              Claimant has completed eighth grade and has obtained a GED.
 
         
 
              Claimant's work experience consists of one year as a 
 
         housekeeper, years of work with her father and then her husband 
 
         as a farmer, and work at the University of Iowa as a custodian 
 
         from 1965 through her injury date.
 
         
 
              Claimant returned to work in the April subsequent to her 
 
         injury, but subsequently left work after experiencing headaches 
 
         and pain.
 
         
 
              Claimant should not return to her work as a custodian at the 
 
         University of Northern Iowa.
 
         
 
              Claimant has not sought other employment since her injury.
 
         
 
              Given claimant's age, rehabilitation efforts are not 
 
         recommended for claimant.
 
         
 
              Claimant generally had many absences from work prior to her 
 
         injury.
 
         
 
              Claimant's preinjury absences from work both related to 
 
         preinjury health problems and reflected a lack of motivation to 
 
         remain on the job full time on claimant's part.
 
         
 
              Claimant in all probability would have retired by at least 
 
         age 70 even had she not sustained her work injury.
 
         
 
              L. K. Knutson, D.C., saw claimant with complaints of 
 
                                                
 
                                                         
 
         cervical pain and distress exaggerated in the lower cervical area 
 
         on February 18, 1986.
 
         
 
              Claimant's February 18, 1986 complaints and subsequent 
 
         treatment can reasonably be related to her work injury.
 
         
 
              K. R. Rao, M.D., an ophthalmologist, saw claimant on 
 
         November 27, 1985 with complaints claimant related back to her 
 
         work injury.
 
         
 
              Claimant saw Dr. Rao on referral of her family practitioner, 
 
         Dr. Bremner.
 
         
 
              Any payment for which an individual is eligible under a 
 
         workers' compensation act is income from other sources under 
 
         section 15 of a long-term disability policy between Principal and 
 
         the University of Northern Iowa.
 
         
 
              The Principal generally does not seek reimbursement for 
 
         workers' compensation payments which the Principal considers to 
 
         have been paid for loss of bodily function and not paid in wage 
 
         loss.
 
         
 
              Section 15 of the policy reflects the actual intent of the 
 
         insured in purchasing the long-term disability policy from the 
 
         insurer.
 
         
 
              The Principal is the insurer; the University of Northern 
 
         Iowa is the insured.
 
         
 
              Permanent partial disability benefits would not have been 
 
         payable under section 15 of the insurer's policy with the 
 
         insured.
 
                                
 
                                                         
 
         
 
                              CONCLUSIONS OF LAW
 
         
 
              THEREFORE, IT IS CONCLUDED:
 
         
 
              Claimant has established that her injury of September 9, 
 
         1985 arose out of and in the course of her employment.
 
         
 
              Claimant has established that her injury of September 9,1985 
 
         is the cause of the permanent disability on which she now bases 
 
         her claim.
 
         
 
              Claimant is entitled to permanent partial disability 
 
         resulting from her injury of September 9, 1985 in the amount of 
 
         25 percent of the body as a whole.
 
         
 
              Claimant is entitled to payment of her medical expenses with 
 
         Dr. Knutson and with Dr. Rao.
 
         
 
              Defendants are entitled to a credit pursuant to Iowa Code 
 
         section 85.38(2) for long-term disability benefits paid claimant 
 
         under defendants' group insurance plan with the Principal 
 
         Financial Group.
 
         
 
                                   ORDER
 
         
 
              THEREFORE, IT IS ORDERED:
 
         
 
              That defendants pay claimant permanent partial disability 
 
         benefits for one hundred twenty-five (125) weeks at the 
 
         stipulated rate of one hundred seventy-one and 66/100 dollars 
 
         ($171.66) per week with those benefits to commence on March 31, 
 
         1986.
 
         
 
              That defendants receive credit for long-term disability 
 
         benefits paid claimant from March 31, 1986 onward.
 
         
 
              That defendants pay accrued amounts in a lump sum.
 
         
 
              That defendants pay interest pursuant to Iowa Code section 
 
         85.30 as amended.
 
         
 
              That defendants pay claimant the costs of treatment with Dr. 
 
         Rao in the amount of fifty-nine and 00/100 dollars ($59.00) and 
 
         costs of treatment with Dr. Knutson at Knutson Chiropractic 
 
         Clinic in the amount of one hundred ninety-six and 00/100 dollars 
 
         ($196.00).
 
         
 
              Defendants pay costs pursuant to Division of Industrial 
 
         Services Rule 343-4.33.
 
         
 
              Defendants file a final payment report when this award is 
 
         paid.
 
         
 
         
 
                                                
 
                                                         
 
              Signed and filed this 29th day of June, 1989.
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
                                            HELENJEAN WALLESER
 
                                            DEPUTY INDUSTRIAL 
 
                                            COMMISSIONER
 
         
 
         Copies To:
 
         
 
         Mr. John C. Larson
 
         Attorney at Law
 
         315 Clay Street
 
         P.O. Box 627
 
         Cedar Falls, Iowa  50613
 
         
 
         Mr. Larry L. Anfinson
 
         Attorney at Law
 
         3112 Brockway Road
 
         P.O. Box 1287
 
         Waterloo, Iowa  50704
 
         
 
         Mr. Greg Knoploh
 
         Assistant Attorney General
 
         Tort Claims Division
 
         Hoover State Office Building
 
         Des Moines, Iowa  50319
 
         
 
         
 
         
 
         
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
                                                
 
 
            
 
 
 
         
 
 
 
 
 
                                                 1701, 1803, 1806
 
                                                 Filed June 29, 1989
 
                                                 HELENJEAN WALLESER
 
         
 
                   BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         ROSELYN T. RYAN,
 
         
 
              Claimant,
 
         
 
         vs.                                       File No. 805629
 
         
 
         UNIVERSITY OF NORTHERN IOWA,           A R B I T R A T I 0 N
 
         
 
              Employer,                            D E C I S I 0 N
 
         
 
         and
 
         
 
         STATE OF IOWA,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         1803, 1806
 
         
 
              Worker who was 63 when injured awarded 25 percent permanent 
 
         partial disability.  Claimant's overall work history which 
 
         contained many absences from work both for personal reasons and 
 
         for physical problems which preexisted her work injury did not 
 
         support claimant's contention that she would have continued to 
 
         work after normal retirement age had she been able to do so. 
 
         Likewise, a substantial portion of claimant's current cervical 
 
         and other body as a whole complaints related to her preexisting 
 
         problems or to her age and not to the work injury.  Claimant's 
 
         physician advised she not return to her preinjury job as a 
 
         custodian and advised she not seek rehabilitation, but did not 
 
         impose actual restrictions on claimant.  Claimant did not seek 
 
         other employment and was not dissatisfied with her status as a 
 
         retired worker.
 
         
 
         1701
 
         
 
              Long-term disability insurance policy under which workers' 
 
         compensation benefits would not have been payable without offset 
 
         in long-term disability payments controlling even though the 
 
         insurer did not seek reimbursement for workers' compensation 
 
         benefits paid for what the insurer characterized as loss of 
 
         bodily function.