BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                                          :
 
            DONALD LOWE,                  :
 
                                          :
 
                 Claimant,                :   File Nos. 673326/776977
 
                                          :                805718
 
            vs.                           :
 
                                          :      R E V I E W   -
 
            IOWA STATE PENITENTIARY,      :
 
                                          :     R E O P E N I N G
 
                 Employer,                :
 
                                          :          A N D
 
            and                           :
 
                                          :       P E N A L T Y
 
            STATE OF IOWA,                :
 
                                          :      B E N E F I T S
 
                 Insurance Carrier,       :
 
                 Defendants.              :      D E C I S I O N
 
            ___________________________________________________________
 
            
 
                              STATEMENT OF THE CASE
 
            
 
                 Claimant Donald Lowe sustained three separate injuries 
 
            to his groin area while employed by Iowa State Penitentiary.  
 
            These occurred on June 11, 1981 (File number 673326), 
 
            October 3, 1984 (File number 776977) and September 26, 1985 
 
            (File number 805718).  An appeal decision filed December 16, 
 
            1988 concluded that claimant had sustained a 40 percent 
 
            industrial disability by reason of the 1985 injury, but no 
 
            industrial disability by reason of the other two injuries.  
 
            A claim for penalty benefits was bifurcated at the time of 
 
            the arbitration hearing on January 8, 1987.  
 
            
 
                 On January 26, 1990, claimant filed a petition in 
 
            review-reopening with respect to the 1981 and 1984 injuries.  
 
            He subsequently filed a voluntary dismissal as to those 
 
            cases on March 23, 1990.  On the same day, he filed a 
 
            petition in review-reopening with the respect to the 1985 
 
            injury.
 
            
 
                 That petition for review-reopening along with the 
 
            bifurcated penalty benefits claim came on for hearing in 
 
            Burlington, Iowa on August 4, 1992.  Claimant testified 
 
            personally and offered exhibits marked 1-11.  The 
 
            undersigned noticed that "exhibit 1" was actually a request 
 
            that all previous exhibits introduced in the arbitration 
 
            case be received.  That request was denied, but the 
 
            deposition of Dr. Vasant Pawar was accepted as an exhibit.
 
            
 
                 The hearing deputy failed to notice that exhibits 2, 
 
            10, and 11 were not actually exhibits, but additional 
 
            requests to take notice of, respectively, "the previous 
 
            arbitration file," "all prior record in this case including 
 
            decision and court file," and "previously submitted exhibits 
 
            in the arbitration case."  The hearing deputy erroneously 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            referred to these requests as exhibits and received them 
 
            into evidence.  Under Iowa Code section 17A.12(6), the 
 
            record in this case includes all pleadings, motions and 
 
            intermediate rulings, all evidence received and considered, 
 
            statement of all matters officially noticed, all questions 
 
            and offers of proof, objections and rulings, all proposed 
 
            findings and exceptions, and this decision.  Exhibits marked 
 
            3-9 are properly in evidence along with the deposition of 
 
            Dr. Pawar.  Notice is taken of all pleadings, motions and 
 
            rulings in all three files.  Because claimant's attorney 
 
            made reference to the bifurcation of penalty issues at the 
 
            arbitration hearing, an issue discussed below, this deputy 
 
            concluded it would be appropriate to take official notice of 
 
            the transcript of that hearing.  Official notice of that 
 
            transcript is hereby taken under Iowa Code section 
 
            17A.14(4).  The undersigned concludes that fairness to the 
 
            parties does not require an opportunity to contest 
 
            admissibility of the transcript.
 
            
 
                                      ISSUES
 
            
 
                 Issues presented for resolution include:
 
            
 
                 1.  Whether claimant has experienced a substantial 
 
            change in condition resulting in greater or lesser 
 
            industrial disability; and,
 
            
 
                 2.  Whether claimant is entitled to penalty benefits.
 
            
 
                 The penalty benefits issue requires additional 
 
            discussion.
 
            
 
                 Claimant originally filed petitions in arbitration with 
 
            respect to the 1981 and 1984 injuries on April 22, 1985.  On 
 
            March 17, 1986, he filed the following amendment to those 
 
            petitions:
 
            
 
                 1.  Seeks penalties as provided by Iowa Code.  
 
                 Seeks penalties under Iowa Code section 85.27.  
 
                 The State has failed to pay payments for temporary 
 
                 total disability and benefits.
 
            
 
                 Under the relaxed rules of notice pleading applicable 
 
            to administrative proceedings, this amendment is deemed 
 
            sufficient to notify defendants of a claim for penalty 
 
            benefits, even though Iowa Code section 85.27 has no 
 
            applicability.  Note, however, that the claim relates to 
 
            "temporary total disability and benefits."
 
            
 
                 On July 10, 1986, claimant filed another amendment to 
 
            include the additional injury date of September 26, 1985, a 
 
            procedure allowable at that time without preparation and 
 
            service of a separate original notice and petition.  The 
 
            agency set this additional injury date up as a new claim 
 
            under file number 805718 and duly notified respective 
 
            counsel of that action on July 24, 1986.  Because the 
 
            amendment alleging entitlement to penalty benefits predates 
 
            the amendment asserting an additional injury date, the 
 
            undersigned concludes that the claim for penalty benefits 
 
            has been properly raised in all three files.
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            
 
                 At the arbitration hearing, the question of bifurcating 
 
            penalty issues was not discussed on the record.  However, 
 
            the prehearing report approved by the presiding deputy noted 
 
            that a claim for penalties which had been bifurcated 
 
            remained asserted.  
 
            
 
                 The arbitration decision was filed on July 8, 1987.  
 
            The appeal decision, which reached essentially the same 
 
            result, was filed on December 16, 1988.  Neither decision 
 
            made reference to the claim for penalty benefits.  The 
 
            record does not show any formal notice of bifurcation, 
 
            except only for the single notation on the prehearing report 
 
            and order.  Claimant's method of procedure has been, shall 
 
            we say, irregular.
 
            
 
                 The significance of all this lies in the necessity to 
 
            determine the parameters of Mr. Lowe's penalty claim.   
 
            After the appeal decision became final, defendants 
 
            apparently waited many months before honoring the award, and 
 
            then only after additional prompting on claimant's part.  At 
 
            hearing, claimant asserted that he is entitled to a penalty 
 
            based upon this delay in honoring the appeal decision award.  
 
            Defendants, on the other hand, claim that they had no way of 
 
            knowing that such a claim would be at issue.  After a review 
 
            of the entire record, the undersigned agrees that defendants 
 
            did not have notice of this claim.  Recall that claimant's 
 
            original pleading made reference to a failure to pay 
 
            temporary total disability benefits.  No pleading is on file 
 
            claiming penalty benefits by reason of noncompliance with 
 
            the appeal decision.  Correspondence in the file (a part of 
 
            the record, since it is attached to motions) refers to the 
 
            penalty issue in a letter from claimant's attorney to the 
 
            agency as follows:
 
            
 
                 Aside from that, there is also another case on 
 
                 file: namely the original arbitration itself.  
 
                 Prior to the trial, the issue regarding penalty 
 
                 was bifurcated.  That bifurcated part of that 
 
                 trial has never come up for prehearing nor setting 
 
                 of the same for hearing.
 
            
 
                 Prior to August 4, 1992, any mention of a penalty claim 
 
            has only been with respect to the bifurcated temporary total 
 
            claim.  Claimant has never, prior to hearing, alleged 
 
            entitlement to a penalty because of the State's allegedly 
 
            dilatory conduct in honoring the original award.  To require 
 
            defendants to defend that conduct absent notice would deny 
 
            them due process of law.  It is held that any penalty claim 
 
            regarding an alleged failure to timely comply with the 
 
            appeal decision is not properly at issue in this proceeding.
 
            
 
                                 FINDINGS OF FACT
 
            
 
                 The undersigned deputy industrial commissioner finds:
 
            
 
                 The appeal decision of December 16, 1988 found that the 
 
            earlier arbitration decision accurately reflected the 
 
            pertinent evidence.  The decisions are consistent with one 
 
            another.  They found that claimant had sustained three 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            separate injuries to his groin area, but sustained permanent 
 
            industrial disability only by reason of the injury of 
 
            September 26, 1985 when he was kicked by a prisoner.  It was 
 
            found that Mr. Lowe sustained a 40 percent industrial 
 
            disability by reason of physiological abnormalities (there 
 
            is a medical dispute as to the proper diagnosis) and that 
 
            his condition is permanent, but that his pain was not so 
 
            disabling as he asserted.  The appeal decision specifically 
 
            found that claimant was not highly motivated, in part 
 
            because he spent 13-17 hours per day in a recliner watching 
 
            television.  His rather nonspecific attempts at finding work 
 
            were few in number and unsuccessful.
 
            
 
                 At this hearing, claimant contends that he had 
 
            personally expected to improve at the time of the 
 
            arbitration hearing, but that his pain symptomatology failed 
 
            to improve as per his expectations.  However, he conceded on 
 
            cross-examination that he now spends only eight hours per 
 
            day sitting in his recliner watching television.  Claimant's 
 
            testimony at the arbitration hearing certainly did not 
 
            emphasize any expectation of later improvement.
 
            
 
                 Claimant also contends that he has unsuccessfully 
 
            searched for work.  No specifics were provided.  On 
 
            cross-examination, he conceded that he had made no effort to 
 
            seek work between January 1987 and June 1991, when his 
 
            deposition was taken.
 
            
 
                 No medical evidence more recent than that received at 
 
            the arbitration hearing is in this record.  While Dr. 
 
            Pawar's deposition in 1986 reflects that physician's opinion 
 
            that claimant potentially could improve, there was no actual 
 
            improvement between the deposition and the arbitration 
 
            hearing.  This was clearly taken into consideration in the 
 
            arbitration and appeal decisions.
 
            
 
                 In summary, there is no evidence that claimant's 
 
            physical condition has deteriorated since the arbitration 
 
            hearing.  What little evidence exists tends to show a slight 
 
            improvement in his physical condition, since Mr. Lowe is 
 
            less dependent on sitting in his recliner during an average 
 
            day.
 
            
 
                 At the arbitration hearing, it was unnecessary to 
 
            determine the extent of Mr. Lowe's entitlement to temporary 
 
            total disability with respect to the 1981 and 1984 injuries:
 
            
 
                    MR. HOFFMAN:  Yes.  To clarify that, in other 
 
                 words, all temporary total disability payments 
 
                 have been paid for the first and second injury 
 
                 and, therefore, we have no claim for it.
 
            
 
                    We feel that's been paid properly and fully.
 
            
 
                    DEPUTY COMMISSIONER TRIER:  All right.
 
            
 
                    MR. HOFFMAN:  But as far as the third injury, 
 
                 it was -- temporary total payments were paid from 
 
                 the injury date of September 26, 1985, up to 
 
                 December 5th, 1985, and those were paid.
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            
 
                    We do contend that there is additional 
 
                 temporary total due after that time.
 
            
 
                    DEPUTY COMMISSIONER TRIER:  All right.
 
            
 
            (Transcript, Page 14)
 
            
 
                 Deputy Commissioner Trier awarded healing period 
 
            benefits of 29 and 5/7 weeks commencing December 6, 1985 and 
 
            running through July 1, 1986.  The industrial commissioner, 
 
            not finding it readily apparent why the deputy commenced 
 
            healing period benefits on December 6, 1985, awarded healing 
 
            period from the date of injury through February 17, 1986.  
 
            Thus, the dispute as to entitlement to healing period 
 
            benefits relates to the period from December 5, 1985 through 
 
            February 17, 1986, a total of 10.714 weeks.
 
            
 
                 Vasant F. Pawar, M.D., is a board certified surgeon.  
 
            He testified by deposition on May 28, 1986.  He performed 
 
            exploratory surgery on claimant's person on December 11, 
 
            1984, and a second surgery on February 18, 1985, during 
 
            which claimant's left testicle was removed.  The 
 
            commissioner has determined that claimant suffered no 
 
            industrial disability following these procedures.  All 
 
            industrial disability awarded relates to the September 26, 
 
            1985, when claimant was again kicked in the groin by an 
 
            inmate.  Dr. Pawar was of the view that claimant still had 
 
            disabling severe pain which rendered him totally disabled 
 
            (February 1986) or 80 percent disabled (May 1986).  Dr. 
 
            Pawar found a diminution of range of motion in the hip, and 
 
            his opinion was clearly relied upon by the industrial 
 
            commissioner in awarding benefits.
 
            
 
                 On the other hand, the appeal decision notes that 
 
            doctors at the Mayo Clinic (to which claimant was referred 
 
            by Dr. Pawar) found no clinical evidence for ilioinguinal or 
 
            genitofemoral neuropathy or lumbar radiculopathy.
 
            
 
                 The appeal decision also noted the letter of Narayana 
 
            Ambati, M.D., dated August 15, 1986:
 
            
 
                       I am of the opinion that Mr. Lowe should 
 
                    not have lost his testis for the kind of 
 
                    injuries he sustained.  If at all, if he is 
 
                    disabled, the disability should be 
 
                    temporary, recovery should be permanent.
 
            
 
            (App. Decn., Filed December 16, 1988)
 
            
 
                 The appeal decision also noted a letter of John P. 
 
            Allen, M.D., dated November 11, 1986, in which Dr. Allen 
 
            found no compelling evidence that claimant would be limited 
 
            in sitting, standing, lifting, stooping or bending or use of 
 
            the lower extremities and that he was capable of performing 
 
            an occupation for which he would be reasonably fitted by 
 
            education, training and experience on a full time basis.
 
            
 
                                CONCLUSIONS OF LAW
 
            
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
                 Pursuant to Iowa Code section 86.14(2), in a proceeding 
 
            to reopen an award for payments, inquiry is to be made into 
 
            whether or not the condition of the employee warrants an end 
 
            to, diminishment of, or increase of compensation previously 
 
            awarded.  A change in condition must be shown to justify 
 
            changing the original award.  Henderson v. Iles, 250 Iowa 
 
            787, 96 N.W.2d 321 (1959).  It is not proper to merely 
 
            redetermine the condition of the employee as adjudicated by 
 
            the former award.  Stice v. Consol. Indus. Coal Co., 228 
 
            Iowa 1031, 291 N.W.2d 452 (1940).
 
            
 
                 A mere difference of opinion of experts or competent 
 
            observers as to the degree of disability arising from the 
 
            original injury is insufficient to justify a different 
 
            determination on a petition for review-reopening; there must 
 
            be substantial evidence of a worsening of the condition not 
 
            contemplated at the time of the first award.  Bousfield v. 
 
            Sisters of Mercy, 249 Iowa 64, 86 N.W.2d 109 (1957).  Or, a 
 
            change in condition may be found where claimant has failed 
 
            to improve to the extent initially anticipated, Meyers v. 
 
            Holiday Inn of Cedar Falls, Iowa, 272 N.W.2d 24 (Iowa App. 
 
            1978).  Additionally, in cases not involving scheduled 
 
            members, a change in earning capacity subsequent to the 
 
            original award which is proximately caused by the original 
 
            injury may constitute a change in condition.  Blacksmith v. 
 
            All-American, Inc., 290 N.W.2d 348 (Iowa 1980).
 
            
 
                 The record in this case fails to show a substantial 
 
            change in claimant's condition since the earlier 
 
            proceedings.  No medical evidence was introduced to show any 
 
            physical change in condition.  Claimant has testified that 
 
            he has failed to improve, but the appeal decision does not 
 
            indicate that calculation of industrial disability was based 
 
            upon any expectation of improvement.  What little evidence 
 
            there is, tends to show that claimant's condition has 
 
            improved:  he needs spend only approximately half as much 
 
            time sitting in his recliner watching television each day.  
 
            Mr. Lowe is unemployed now, he was unemployed then.  The 
 
            record is no more satisfactory as to showing any legitimate 
 
            attempt to return to work than it was at the time of the 
 
            earlier hearing.  Economically, claimant may be slightly 
 
            better off now because he is engaged in a small junk 
 
            business.
 
            
 
                 All told, the record fails to establish a substantial 
 
            change in condition such as to justify a reconsideration of 
 
            Mr. Lowe's industrial disability.
 
            
 
                 At the time of the arbitration hearing, claimant sought 
 
            no award of temporary total disability with respect to the 
 
            1981 or 1984 injuries.  Since that issue was not considered 
 
            at that hearing, it is impossible to determine the extent of 
 
            his entitlement to the same, so as to measure that 
 
            entitlement against what the State actually paid.  Penalty 
 
            benefits are inappropriate with respect to those two 
 
            injuries.
 
            
 
                 Following the 1985 injury, claimant has been found 
 
            entitled to healing period through February 17, 1986.  
 
            Claimant has conceded that he was paid satisfactory 
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
            temporary total disability through December 5, 1985.  The 
 
            disputed ten weeks should be considered together with 
 
            defendant's failure to pay permanent partial disability 
 
            benefits, since each to a large extent depend upon 
 
            claimant's subjective reports of pain. 
 
            
 
                 It should be apparent from the evidence excerpted in 
 
            the appeal decision and noted above, that respectable 
 
            medical opinion very much doubts claimant's subjective 
 
            complaints.  While the hearing deputy and the commissioner 
 
            found that claimant did sustain an industrial disability, 
 
            those excerpts show that the extent of this claim was fairly 
 
            debatable.  Stanley v. Wilson Foods Corp., File Number 
 
            753405 (App. Decn. August 23, 1990).  Defendants did not act 
 
            unreasonably in denying payment, so an award of penalty 
 
            benefits does not lie.
 
            
 
                                      ORDER
 
            
 
                 THEREFORE IT IS ORDERED:
 
            
 
                 Claimant takes nothing.
 
            
 
                 Costs are assessed to defendant pursuant to rule 343 
 
            IAC 4.33.
 
            
 
                 Signed and filed this ____ day of August, 1992.
 
            
 
            
 
            
 
            
 
                                          
 
                                        ________________________________
 
                                          DAVID R. RASEY
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr James P Hoffman
 
            Attorney at Law
 
            Middle Road
 
            PO Box 1087
 
            Keokuk Iowa 52632
 
            
 
            Mr Craig Kelinson
 
            Mr Robert D Wilson
 
            Assistant Attorneys General
 
            Tort Claims Division
 
            Hoover State Office Building
 
            Des Moines Iowa 50319
 
            
 
 
            
 
 
 
 
 
 
 
                                                 5-1402.40 - 5-4000.2
 
                                                 Filed August 21, 1992
 
                                                 DAVID R. RASEY
 
 
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                      
 
            DONALD LOWE,   
 
                                           File Nos. 673326/776977
 
                 Claimant,                           805718
 
                      
 
            vs.                                R E V I E W  -
 
                      
 
            IOWA STATE PENITENTIARY,         R E O P E N I N G
 
                      
 
                 Employer,                        A N D
 
                      
 
            and                               P E N A L T Y
 
                      
 
            STATE OF IOWA,                  B E N E F I T S
 
                      
 
                 Insurance Carrier,          D E C I S I O N
 
                 Defendants.    
 
            ___________________________________________________________
 
            
 
            5-1402.40
 
            Claimant failed to prove change in condition in 
 
            review-reopening.
 
            
 
            5-4000.2
 
            No penalty awarded in bifurcated case where failure to pay 
 
            benefits was fairly debatable.
 
            
 
 
            
 
       
 
              
 
 
 
                    
 
         
 
                        BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         JAMES D. MAYBERRY,
 
         
 
              Claimant,                               File No. 805724
 
         
 
         vs.                                       A R B I T R A T I O N
 
         
 
         SUPER VALU STORES, INC.,                     D E C I S I O N
 
         
 
              Employer,                                  F I L E D
 
         
 
         and                                            JUL 24 1989
 
         
 
         LIBERTY MUTUAL INSURANCE CO.,              INDUSTRIAL SERVICES
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
                                INTRODUCTION
 
         
 
              This is a proceeding in arbitration brought by James D. 
 
         Mayberry against his former employer, Super Valu Stores, Inc., 
 
         and its insurance carrier, Liberty Mutual Insurance Company.  The 
 
         case was heard and fully submitted at Des Moines, Iowa on 
 
         December 14, 1988.  The record in the proceeding consists of 
 
         testimony from James D. Mayberry and joint exhibits 1 through 8.
 
         
 
                                  ISSUES
 
         
 
              The issues presented for determination are whether the 
 
         injury that claimant sustained on September 21, 1985 was a 
 
         proximate cause of any period of temporary total disability or 
 
         healing period subsequent to December 9, 1985 and whether the 
 
         injury proximately caused any permanent partial disability.  
 
         Medical expenses under Code section 85.27 totalling $6,818.28 
 
         were identified as an issue.  The defendants' contention is that 
 
         the injury which claimant sustained on September 21, 1985 was a 
 
         temporary aggravation of a preexisting condition while claimant 
 
         contends that the injury was a proximate cause of a surgical 
 
         procedure which claimant underwent in 1987 and also of permanent 
 
         partial disability.
 
         
 
                           SUMMARY OF EVIDENCE
 
         
 
              The following is a summary of evidence presented in this 
 
         case.  Of all the evidence received at the hearing, only that 
 
         considered most pertinent to this decision is discussed. 
 
         Conclusions about what the evidence showed are inevitable with 
 
         any summarization.  The conclusions in the following summary 
 
         should be considered to be preliminary findings of fact.
 
                                                
 
                                                         
 
         
 
              The statement of the facts found in defendants' brief is 
 
         reasonably accurate and is incorporated herein with some 
 
         modifications.
 
         
 
              James D. Mayberry is 35 years old and a high school graduate 
 
         (exhibit 8, pages f-2 and f-3).  He served as a sergeant in the 
 
         Army from 1970 to 1984.  Claimant left the Army and became 
 
         employed at the Firestone plant in Des Moines in 1984.  While 
 
         working at Firestone, claimant sustained an injury to his upper 
 
         back.  When he was released to return to work on January 28, 
 
         1985, claimant was laid off (exhibit 3, page a).  At Firestone, 
 
         claimant had worked as a banbury operator.  In August of 1985, 
 
         claimant started work at Super Valu as a part-time grocery order 
 
         filler at the rate of $8.84 per hour.
 
         
 
              On September 21, 1985, claimant, while working at Super 
 
         Valu, started to fall backwards at work, caught himself and then 
 
         twisted his back.  Claimant felt a popping sensation in his back 
 
         at that time.  Claimant was examined first by Kelly Bast, M.D., 
 
         and James R. Bell, M.D.  He was then referred to Mark B. 
 
         Kirkland, D.O., and William R. Boulden, M.D.  Claimant reported a 
 
         dull ache in his low back.  The x-rays taken at that time showed 
 
         osteophytes on the L-4 anterior-superior margin and spondylosis 
 
         at L-5.  Dr. Kirkland's diagnosis was lumbar strain, rule out 
 
         herniated nucleus pulposus (exhibit 3, page b).  A CT scan did 
 
         not show a herniated disc (exhibit 3, page c).  Dr. Boulden 
 
         examined claimant and was of the opinion that the CT scan showed 
 
         a spondylolisthesis and a neuroforamen encroachment at L5-S1 and 
 
         recommended an epidural steroid injection (exhibit 3, page 3).  
 
         Claimant improved dramatically after the injection and reported 
 
         only minor achiness to Dr. Boulden (exhibit 3, page f).  Claimant 
 
         was released by Dr. Boulden to return to full duty at Super Valu 
 
         without restriction effective December 9, 1985 (exhibit 3, page 
 
         g).  At that time, claimant was feeling much better and only 
 
         occasionally experienced some stiffness and achiness in his lower 
 
         back.  Instead of returning to Super Valu, claimant resigned from 
 
         the company because he was afraid he might reinjure his back 
 
         (exhibit 8, page d-1).
 
         
 
              Shortly after leaving Super Valu, claimant went to work at 
 
         the Veterans Administration Hospital in Des Moines as a medical 
 
         supply person.  He was paid $8.85 per hour.  Claimant worked at 
 
         the VA hospital until he was laid off in April of 1986.  In July 
 
         of 1986, claimant went to work for R. A. Brown & Son performing 
 
         light carpentry work.  He worked there until March of 1987.
 
         
 
              Claimant did not have any further problems with his back 
 
         until after a severe coughing spell in October of 1986.  While 
 
         coughing, claimant felt a sensation of warmth and pain spread 
 
         throughout his lower back.  The pain eventually radiated into the 
 
         right hip.  On April 7, 1987, claimant was examined by Marshall 
 
         Flapan, M.D.  The x-rays taken at that time showed a defect in 
 
         the pars interarticularis with an unstable L5-S1 spinal segment.  
 
         Dr. Flapan's diagnosis was spondylosis, L5 with exertional 
 
                                                
 
                                                         
 
         spondylolisthesis; unstable spinal segment L5 (exhibit 1, page 
 
         a-1).  A Gill procedure and decompression laminectomy at L5 was 
 
         performed by Dr. Flapan on May 13, 1987 (exhibit 1, page a-2).
 
         
 
              After recovering from the surgery, claimant was released to 
 
         return to work on July 2, 1987 with a restriction of no lifting 
 
         over 35 pounds (exhibit 1, page a-4).  On September 4, 1987, 
 
         claimant's lifting restriction was raised to 50 pounds (exhibit 
 
         1, page a-4).  Shortly thereafter, claimant was recalled to work 
 
         at Firestone.  Claimant now works as a fork lift truck operator 
 
         at Firestone and is paid $11.90 per hour.  Claimant has informed 
 
         Dr. Flapan that he has returned to his preinjury level without 
 
         any pain or discomfort either in his back or in his legs.
 
         
 
              Dr. Flapan was of the opinion that the September 21, 1985 
 
         injury was an aggravation of a preexisting condition in 
 
         claimant's spine which caused it to become symptomatic and was 
 
         the competent producing cause of the condition for which he 
 
         treated claimant (exhibit 1, page b; exhibit 1, page c-14).  Dr. 
 
         Flapan assigned an impairment rating of 10 percent of the whole 
 
         person and a permanent lifting restriction of 50 pounds (exhibit 
 
         1, pages c-13, 14 and 27).
 
         
 
              Claimant was evaluated by Jerome G. Bashara, M.D.  Dr. 
 
         Bashara diagnosed claimant's condition as a traumatic 
 
         spondylolisthesis related to a September, 1985 work accident 
 
         (exhibit 2, page a-3). Dr. Bashara explained that an x-ray taken 
 
         on December 13, 1984 in connection with an injury to claimant's 
 
         thoracic spine showed a questionable pars defect in claimant's 
 
         lumbar spine which did not show any indication of slippage of the 
 
         L5 vertebra on the S1.  Dr. Bashara explained that subsequent 
 
         x-rays taken on September 27, 1985 and April 7, 1987 do show 
 
         slippage of the L5 vertebra on the S1 of an equal amount. 
 
         According to Dr. Bashara, this demonstrates that the injury or 
 
         event which caused the slippage of the vertebra occurred at some 
 
         point in time between December 13, 1984 and September 27, 1985.  
 
         He further explained that events occurring subsequent to September 
 
         27, 1985 did not have any material effect upon the condition since 
 
         the slippage was the same in 1987 as it was in 1985 (exhibit 2, 
 
         pages b-12 through b-15).
 
         
 
              Dr. Bashara rated claimant as having a 15 percent permanent 
 
         impairment of the whole person and agreed with the 50 pound 
 
         lifting restriction imposed by Dr. Flapan.  Dr. Bashara also felt 
 
         that the September 21, 1985 injury had caused the slippage, 
 
         claimant's increased symptoms, the surgery performed by Dr. 
 
         Flapan and the residual physical impairment (exhibit 2, page 
 
         b-16).
 
         
 
              William R. Boulden, M.D., a third qualified orthopaedic 
 
         surgeon, had treated claimant for the thoracic spine injury in 
 
         1984 and also provided initial treatment for the 1985 injury.  
 
         What appears in the record as exhibit 3-j is erroneous as it does 
 
         not deal with this claimant, however, what the undersigned 
 
         interprets to be the document intended to serve as exhibit 3-j is 
 
                                                
 
                                                         
 
         also found as exhibit b to exhibit 1, a report from Dr. Boulden 
 
         dated February 19, 1987 wherein he states that claimant's 
 
         increased symptoms which were initially reported on October 9, 
 
         1986 were a result of new trauma and were not related to the 1985 
 
         injury that occurred at Super Valu.
 
         
 
                         APPLICABLE LAW AND ANALYSIS
 
         
 
              The primary issue in this case involves whether or not the 
 
         September 21, 1985 injury was a proximate cause of claimant's 
 
         1987 surgery, period of recuperation and of any permanent partial 
 
         disability.
 
         
 
              A cause is proximate if it is a substantial factor in 
 
         bringing about the result; it need not be the only cause. 
 
         Blacksmith v. All-American, Inc., 290 N.W.2d 348, 354 (Iowa 
 
         1980).
 
         
 
              The claimant has the burden of proving by a preponderance of 
 
         the evidence that the injury of September 21, 1985 is causally 
 
         related to the disability on which he now bases his claim.  
 
         Bodish v. Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867 (1965).  
 
         Lindahl v. L.O. Boggs, 236 Iowa 296, 18 N.W.2d 607 (1945).  A 
 
         possibility is insufficient; a probability is necessary.  Burt v. 
 
         John Deere Waterloo Tractor Works, 247 Iowa 691, 73 N.W.2d 732 
 
 
 
                         
 
                                                         
 
         (1955).  The question of causal connection is essentially within 
 
         the domain of expert testimony.  Bradshaw v. Iowa Methodist 
 
         Hospital, 251 Iowa 375, 101 N.W.2d 167 (1960).
 
         
 
              However, expert medical evidence must be considered with all 
 
         other evidence introduced bearing on the causal connection.  
 
         Burt, 247 Iowa 691, 73 N.W.2d 732.  The opinion of experts need 
 
         not be couched in definite, positive or unequivocal language.  
 
         Sondag v. Ferris Hardware, 220 N.W.2d 903 (Iowa 1974).  However, 
 
         the expert opinion may be accepted or rejected, in whole or in 
 
         part, by the trier of fact.  Id. at 907.  Further, the weight to 
 
         be given to such an opinion is for the finder of fact, and that 
 
         may be affected by the completeness of the premise given the 
 
         expert and other surrounding circumstances.  Bodish, 257 Iowa 
 
         516, 133 N.W.2d 867.  See also Musselman v. Central Telephone 
 
         Co., 261 Iowa 352, 154 N.W.2d 128 (1967).
 
         
 
              When an aggravation occurs in the performance of an 
 
         employer's work and a causal connection is established, claimant 
 
         may recover to the extent of the impairment.  Ziegler v. United 
 
         States Gypsum Co., 252 Iowa 613, 620, 106 N.W.2d 591 (1960).
 
         
 
              Mayberry testified that his low back had not been a problem 
 
         prior to September 21, 1985.  While the records show a thoracic 
 
         spine injury in 1984, there is no direct evidence of claimant 
 
         ever having a.problem with his low back prior to September 21, 
 
         1985.
 
         
 
              Claimant was diagnosed as having a spondylolisthesis during 
 
         the period of his initial treatment under the direction of Drs. 
 
         Kirkland and Boulden in 1985.  That same condition was 
 
         subsequently found by Dr. Flapan in 1987.  Most importantly, Dr. 
 
         Bashara compared x-rays taken in 1984, 1985 and 1987 and found 
 
         that a slippage of claimant's L5 vertebra on the S1 had occurred 
 
         at some point between the 1984 x-rays and the 1985 x-rays which 
 
         were taken only a few days after the injury.  Dr. Bashara found 
 
         no additional slippage occurring between 1985 and 1987.  These 
 
         findings are not controverted by any evidence from either Dr. 
 
         Flapan or Dr. Boulden.  As shown in exhibit 7, page b, Dr. 
 
         Flapan's report of operation, claimant's L5 nerve root was found 
 
         during surgery to be hypertrophic as though it had been under 
 
         constant pressure and tension for some period of time.  Scarring 
 
         was also found which is a further indication that the problem was 
 
         not of particularly recent origin.  When claimant's testimony is 
 
         considered together with the surgical findings and Dr. Bashara's 
 
         reading of the x-rays, it is determined that the injury Mayberry 
 
         sustained on September 21, 1985 caused a slippage of his L5 
 
         vertebra, which slippage was responsible for producing the 
 
         symptoms which had their onset on September 21, 1985.
 
         
 
              It is further found, consistent with the opinions from Drs. 
 
         Flapan and Bashara, that the symptoms which recurred in 1986 and 
 
         led to the 1987 surgery were a continuation of the 1985 injury. 
 
         There is no evidence in the record which indicates that Mayberry 
 
         suffered further injury subsequent to December 9, 1985.  The only 
 
                                                
 
                                                         
 
         explanation given is that coughing can aggravate an underlying  
 
         condition (exhibit 2, page b-19).  It is clear that the coughing 
 
         did not cause the slippage and it is the slippage of the vertebra 
 
         which was the principle cause of claimant's symptoms and the need 
 
         for surgery.  It is therefore determined that the employer and 
 
         its insurance carrier are responsible for claimant's additional 
 
         healing period running from May 13, 1987 to July 6, 1987, as 
 
         stipulated and also of the expenses of medical treatment provided 
 
         by and under the direction of Dr. Flapan.
 
         
 
              Dr. Flapan rated claimant as having a 10 percent impairment 
 
         of the body and Dr. Bashara rated it at 15 percent.  Dr. Boulden 
 
         provided no impairment rating.
 
         
 
              As claimant has an impairment to the body as a whole, an 
 
         industrial disability has been sustained.  Industrial disability 
 
         was defined in Diederich v. Tri-City Railway Co.,  219 Iowa 587, 
 
         593, 258 N.W. 899, 902 (1935) as follows:  "It is therefore plain 
 
         that the legislature intended the term 'disability' to mean 
 
         'industrial disability' or loss of earning capacity and not a 
 
         mere 'functional disability' to be computed in the terms of 
 
         percentages of the total physical and mental ability of a normal 
 
         man."
 
         
 
              Functional impairment is an element to be considered in 
 
         determining industrial disability which is the reduction of 
 
         earning capacity, but consideration must also be given to the 
 
         injured employee's age, education, qualifications, experience and 
 
         inability to engage in employment for which he is fitted.  Olson 
 
         v. Goodyear Service Stores, 255 Iowa 1112, 1121 125 N.W.2d 251, 
 
         257 (1963).
 
         
 
              Industrial disability or loss of earning capacity is a 
 
         concept that is quite similar to impairment of earning capacity, 
 
         an element of damage in a tort case.  Impairment of physical 
 
         capacity creates an inference of lessened earning capacity.  The 
 
         basic element to be determined, however, is the reduction in 
 
         value of the general earning capacity of the person, rather than 
 
         the loss of wages or earnings in a specific occupation.  
 
         Post-injury earnings create a presumption of earning capacity.  
 
         The earnings are not synonymous with earning capacity and the 
 
         presumption may be rebutted by evidence showing the earnings to 
 
         be an unreliable indicator.  Carradus v. Lange, 203 N.W.2d 565 
 
         (Iowa 1973); Holmquist v. Volkswagon of America, Inc., 261 N.W.2d 
 
         516 (Iowa App. 1977) A.L.R.3d 143; Michael v. Harrison County, 
 
         34th Biennial Report, 218 (1979): 2 Larson Workmen's Compensation 
 
         Law, sections 57.21 and 57.31.
 
         
 
              Prior to the 1985 injury, claimant's spinal segments had not 
 
         slipped and he was free from symptoms.  His symptoms had not been 
 
         subjected to the surgical process.  He worked without any 
 
         physical restrictions.  At the present time, Mayberry has a 
 
         permanent 50 pound lifting restriction.  In spite of the physical 
 
         affliction, Mayberry is an industrious, intelligent, and highly 
 
         motivated individual who has made the best of his problem.   His 
 
                                                
 
                                                         
 
         actual reduction of earnings is only five percent.  He is working 
 
         for the same employer that had employed him prior to his 
 
         employment at Super Valu Stores, Inc.  Nevertheless, Mayberry's 
 
         general earning capacity has been reduced.  When all the 
 
         appropriate factors of industrial disability are considered, it 
 
         is determined that James D. Mayberry sustained a 15 percent 
 
         permanent partial disability as a result of the injury he 
 
         sustained at the Super Valu Stores, Inc., on September 21, 1985.
 
         
 
                              FINDINGS OF FACT
 
         
 
              1.  James D. Mayberry is a 35-year-old married high school 
 
         graduate who was honorably discharged from the United States Army 
 
         in 1984, after nearly 14 years of service.  His primary military 
 
         occupation had been platoon sergeant or supply sergeant.
 
         
 
              2.  The injury that Mayberry sustained on September 21, 1985 
 
         produced a slippage of his L5 vertebra and caused a previously 
 
         asymptomatic defect in his spine to become symptomatic.
 
         
 
              3.  While treatment provided in 1985 provided relief of 
 
         claimant's symptoms, it did not reverse the slippage of 
 
         claimant's vertebra.
 
         
 
              4.  The September 21, 1985 injury was a substantial factor 
 
         in producing claimant's renewed complaints which occurred in 1986 
 
         and the need for all the treatment and surgery provided under the 
 
         direction of Dr. Flapan in 1987.
 
         
 
              5.  The injury of September 21, 1985 was a substantial 
 
         factor in producing the permanent functional impairment which 
 
         currently afflicts Mayberry, said impairment being in the range 
 
         of 10-15 percent of the whole person.
 
         
 
              6.  Mayberry is an intelligent, industrious person with a 
 
         high degree of integrity and motivation.
 
         
 
              7.  Mayberry's loss of earning capacity that resulted from 
 
         the September 21, 1985 injury is 15 percent.
 
         
 
                         CONCLUSIONS OF LAW
 
         
 
              1.  This agency has jurisdiction of the subject matter of 
 
         this proceeding and its parties.
 
         
 
              2.  The injury that Mayberry sustained arising out of and in 
 
         the course of his employment with Super Valu Stores, Inc., on 
 
         September 21, 1985 was a proximate cause of the symptoms which 
 
         recurred in 1986 and led to the treatment and surgery performed 
 
         by Dr. Flapan.
 
         
 
              3.  The injury of September 21, 1985 is a proximate cause of 
 
         the permanent functional impairment and loss of earning capacity 
 
         which currently afflicts Mayberry.
 
         
 
                                                
 
                                                         
 
              4.  Claimant is entitled to recover healing period 
 
         compensation for the periods of September 22, 1985 to December 9, 
 
         1985 and May 13, 1987 to July 6, 1987 under the provisions of 
 
         Code section 85.34(1).
 
         
 
              5.  Claimant is entitled to recover 75 weeks of compensation 
 
         for permanent partial disability under Code section 85.34(2)(u).
 
         
 
                                 ORDER
 
         
 
              IT IS THEREFORE ORDERED that defendants pay claimant 
 
         nineteen and one-seventh (19 1/7) weeks of compensation for 
 
         healing period at the stipulated rate of one hundred ninety and 
 
         92/100 dollars ($190.92) per week with eleven and two-sevenths 
 
         (11 2/7) weeks thereof payable commencing September 22, 1985 and 
 
         with seven and six-sevenths (7 6/7) weeks thereof payable 
 
         commencing May 13, 1987.
 
         
 
              IT IS FURTHER ORDERED that defendants pay claimant 
 
         seventy-five (75) weeks of compensation for permanent partial 
 
         disability at the stipulated rate of one hundred ninety and 
 
         92/100 dollars ($190.92) per week payable commencing December 10, 
 
         1985.  Payments are interrupted by the additional healing period 
 
         which commences May 13, 1987 and are then reinstated July 7, 1987 
 
         and paid until the entire seventy-five (75) weeks are satisfied.
 
         
 
              IT IS FURTHER ORDERED that all healing period and permanent 
 
         partial disability compensation is past due and owing and shall 
 
         be paid in a lump sum together with interest pursuant to the 
 
         provisions of Code section 85.30 less credit for the fifteen 
 
         point four two nine (15.429) weeks of healing period compensation 
 
         previously paid.
 
         
 
                                 
 
                                                         
 
              IT IS FURTHER ORDERED that defendants pay the following 
 
         medical expenses:
 
         
 
               Haines Prosthetics                   $  465.00
 
               Orthopedic Associates                   155.00
 
               Mercy Hospital Medical Center         3,485.28
 
               Orthopedic Associates                 2,000.00
 
               Medical Center Anesthesiologists        713.00
 
               Total                                $6,818.28
 
         
 
              IT IS FURTHER ORDERED that defendants pay the costs of this 
 
         action pursuant to Division of Industrial Services Rule 343-4.33 
 
         in the amount of five hundred twenty-nine and 58/100 dollars 
 
         ($529.58).
 
         
 
              IT IS FURTHER ORDERED 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 4th day of July, 1989.
 
         
 
         
 
         
 
         
 
         
 
         
 
                                            MICHAEL G. TRIER
 
                                            DEPUTY INDUSTRIAL 
 
                                            COMMISSIONER
 
         
 
         Copies To:
 
         
 
         Mr. Mark T. Hedberg
 
         Attorney at Law
 
         840 Fifth Avenue
 
         Des Moines, Iowa  50309
 
         
 
         Mr. W. C. Hoffmann
 
         Mr. Richard G. Book
 
         Attorneys at Law
 
         500 Liberty Building
 
         Des Moines, Iowa  50309
 
         
 
         
 
         
 
         
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
                                                
 
 
            
 
 
 
 
 
          
 
 
 
                                                 51402.30, 51803
 
                                                 Filed July 24, 1989
 
                                                 MICHAEL G. TRIER
 
         
 
                 BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         JAMES D. MAYBERRY,
 
         
 
              Claimant,
 
         
 
         vs.                                       File No. 805724
 
         
 
         SUPER VALU STORES, INC.,               A R B I T R A T I 0 N
 
         
 
              Employer,                            D E C I S I 0 N
 
         
 
         and
 
         
 
         LIBERTY MUTUAL INSURANCE CO.,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         51402.30
 
         
 
              Claimant injured his back in 1985, was treated and made 
 
         substantial recovery.  Approximately eight months later, his 
 
         symptoms returned without any known precipitating event other 
 
         than coughing.  X-rays showed that the injury had produced a 
 
         slippage of claimant's L5 vertebra.  Claimant eventually 
 
         underwent surgery for the condition.  The original injury was 
 
         held to be a proximate cause of the recurrence of symptoms and 
 
         surgical treatment.
 
         
 
         51803
 
         
 
              Intelligent, highly motivated claimant of high integrity 
 
         awarded 15 percent permanent partial disability where actual 
 
         earnings had been reduced by approximately 5 percent, but 
 
         claimant had a 10-15 percent functional impairment and a 50 pound 
 
         lifting restriction.
 
         
 
         
 
         
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
                                                
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                   BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         SUSAN REECE f/k/a
 
         SUSAN REICHERTS,
 
         
 
              Claimant,                             File No. 805786
 
         
 
         vs.                                     A R B I T R A T I 0 N
 
         
 
         WINNEBAGO INDUSTRIES, INC.,                D E C I S I 0 N
 
         
 
              Employer,
 
                                                       F I L E D
 
         and
 
                                                      APR 19 1989
 
         SENTRY INSURANCE,
 
                                            IOWA INDUSTRIAL COMMISSIONER
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
                          STATEMENT OF THE CASE
 
         
 
              This is a proceeding in arbitration brought by Susan Reece 
 
         f/k/a Susan Reicherts, claimant, against Winnebago Industries, 
 
         Inc., employer, (hereinafter referred to as Winnebago), employer, 
 
         and Sentry Insurance Company, insurance carrier, defendants, for 
 
         workers' compensation benefits as a result of an alleged injury 
 
         on December 18, 1984.  On August 2, 1988, a hearing was held on 
 
         claimant's petition and the matter was considered fully submitted 
 
         at the close of this hearing.
 
         
 
              The parties have submitted a prehearing report of contested 
 
         issues and stipulations which was approved and accepted as a part 
 
         of the record of this case at the time of hearing.  Oral 
 
         testimony was received during the hearing only from claimant.  
 
         The exhibits received into the evidence at the hearing are listed 
 
         in the prehearing report.
 
         
 
              According to the Prehearing report, the parties have 
 
         stipulated to the following matters:
 
         
 
              1.  Progressively until December 18, 1984, claimant received 
 
         an injury which arose out of and in the course of employment with 
 
         Winnebago.
 
         
 
              2.  Claimant is entitled to and has been paid the healing 
 
         period benefits stipulated to in the prehearing report and 
 
         claimant is not seeking additional healing period benefits.
 
         
 
              3.  The injury is a cause of permanent scheduled member 
 
         disability to the arm or hand.
 
         
 
              4.  If permanent disability benefits are awarded, they shall 
 
                                                
 
                                                         
 
         begin as of March 19, 1986.
 
         
 
              5.  Claimant's rate of weekly compensation in the event of 
 
         an award of weekly benefits from this proceeding shall be 
 
         $151.60.
 
         
 
              6.  The medical bill of $27.01 submitted by claimant at 
 
         hearing is fair and reasonable but its causal connection to the 
 
         work injury remains an issue to be decided.
 
         
 
                                 ISSUES
 
         
 
              The parties submitted the following issues for determination 
 
         in this proceeding:
 
         
 
                I.  Whether there is a causal relationship between the 
 
         work injury and the claimed disability to the right elbow;
 
         
 
               II.  The extent of claimant's entitlement to weekly 
 
         benefits for disability; and,
 
         
 
              III.  The extent of claimant's entitlement to medical 
 
         benefits.
 
                         
 
                           STATEMENT OF THE FACTS
 
 
 
              The following is a brief statement highlighting the more 
 
         pertinent facts presented.  Whether or not specifically referred 
 
         to in this statement, all of the evidence received at the hearing 
 
         was independently reviewed and considered in arriving at this 
 
         decision.  Any conclusions contained in the following statement 
 
         should be viewed as preliminary findings of fact.
 
         
 
              Claimant testified that, while performing work for Winnebago 
 
         in the cab department, she experienced increasing pain and 
 
         numbness in the right hand.  She states that her work involved 
 
         the extensive and repetitive use of her right hand.  Claimant 
 
         described the work at hearing as hard sanding.  However, two 
 
         medical service providers have indicated in their reports that 
 
         claimant used power hand sanders.  Claimant was not precise in 
 
         her testimony on this issue.  Her job description in evidence 
 
         also indicates that she is required to use power tools.
 
         
 
              On December 18, 1984, claimant sought treatment from the 
 
         Park Clinic and a physician's assistant, Jim McQuire.  His 
 
         impression was early right carpal tunnel syndrome and treated 
 
         claimant with a wrist splint and a work restriction to only light 
 
         duty where she would not have to operate power hand tools.  
 
         According to the prescription dated January 29, 1985, both 
 
         McQuire and the supervising physician in the clinic felt that the 
 
         right carpal tunnel syndrome was work related.
 
         
 
              Claimant was then laid off by Winnebago because of her work 
 
         restrictions as there was not available work within her work 
 
         restrictions.  Claimant was eventually terminated.  Claimant was 
 
         unemployed for several months and then began working for Pizza 
 
                                                
 
                                                         
 
         Hut. After completing her initial training, she began to 
 
         experience increasing difficulties again with her right hand while 
 
         cutting vegetables.  She returned to McQuire in August who 
 
         referred her to an orthopedic surgeon, A. J. Wolbrink, M.D.  After 
 
         his examination of claimant, he also diagnosed carpal tunnel 
 
         syndrome and thought that it started with the sander work at 
 
         Winnebago.  Dr. Wolbrink then directed claimant to avoid direct 
 
         blows to the right hand and to continue to use the splint.  After 
 
         a negative EMG test, Dr. Wolbrink ruled out surgery at that time. 
 
         However, claimant continued to experience right carpal tunnel 
 
         syndrome symptoms including pain and numbness but quit Pizza Hut 
 
         because of these difficulties.  In early 1986, claimant attended 
 
         school in Minnesota and experienced difficulties with typing and 
 
         handwriting in her school work.  She sought treatment from a local 
 
         orthopedic surgeon, Michael Kerney, M.D., in March 1986.  Dr. 
 
         Kerney felt that claimant had reached maximum healing and gave 
 
         claimant a five percent permanent partial impairment rating to the 
 
         right upper extremity. He also recommended that she begin 
 
         receiving steroid injections in the area of her carpal tunnel 
 
         problems.
 
         
 
              Dr. Wolbrink agreed with Dr. Kerney's rating.  In April 
 
         1986, claimant returned to Dr. Wolbrink and received the 
 
         injections recommended by Dr. Kerney but there was no improvement 
 
         in her pain and numbness.  At that time, Dr. Wolbrink noted ulnar 
 
         nerve difficulty along with carpal tunnel syndrome in the right 
 
         arm and treated the ulnar nerve problem with use of a "heel bo" 
 
         to protect the elbow.
 
         
 
              Claimant was evaluated by another orthopedic surgeon, John 
 
         R. Walker, M.D., in June of 1986.  In addition to the carpal 
 
         tunnel syndrome of the hand, Dr. Walker also noted right ulnar 
 
         nerve neuropathy in the right elbow which she attributed to the 
 
         Winnebago employment.  Dr. Walker suggested another EMG and 
 
         eventual surgery.
 
         
 
              In July 1986, a repeat EMG was performed but again the test 
 
         was negative.  However, given claimant's long clinical history of 
 
         problems, Dr. Wolbrink decided to go ahead with carpal tunnel 
 
         release surgery which was performed on August 19, 1986.  Surgery 
 
         was rejected as premature for the ulnar nerve problem.  Although 
 
         claimant said that the surgery helped the carpal tunnel problems, 
 
         she continued to have ulnar nerve problems in her elbow which was 
 
         subsequently treated by Dr. Wolbrink with medication called 
 
         Naprosyn.   Dr. Wolbrink opined in March 1987 that claimant had 
 
         no further or additional impairment to her upper extremity 
 
         caused, related or aggravated by the work injury.  Dr. Walker 
 
         reevaluated claimant in July 1987 and opined that claimant 
 
         continued to suffer from residual carpal tunnel syndrome and 
 
         ulnar nerve problems and that her disability constitutes a 32 
 
         percent permanent partial impairment to the upper extremity.  Dr. 
 
         Walker recommended surgical correction of the ulnar nerve 
 
         problem.
 
         
 
              Claimant testified at the present time that she continues to 
 
                                                
 
                                                         
 
         have wrist pain and numbness in the fingers, palm and wrist of 
 
         the right hand and arm.  The pain radiates into the right elbow.  
 
         At times she is unable to make a fist due to swelling and 
 
         tightness in the hand.  She complains that she continues to drop 
 
         objects and has a significant loss of grip strength.  She states 
 
         that any sort of repetitive work or recreational activity 
 
         involving her right hand is very difficult.  She denies any 
 
         injury to the right hand or arm after her work at Winnebago.  
 
         Claimant is continuing to pursue her studies and works at various 
 
         part-time jobs to supplement her income.
 
         
 
              Claimant's appearance and demeanor at the hearing indicated 
 
         that she was testifying truthfully.
 
         
 
                          APPLICABLE LAW AND ANALYSIS
 
         
 
                I.  The claimant has the burden of proving by a 
 
         preponderance of the evidence that the work injury is a cause of 
 
         the claimed disability.  A disability may be either temporary or 
 
         permanent.  In the case of a claim for temporary disability, the 
 
         claimant must establish that the work injury was a cause of 
 
         absence from work and lost earnings during a period of recovery 
 
         from the injury.  Generally, a claim of permanent disability 
 
         invokes an initial determination of whether the work injury was a 
 
         cause of permanent physical impairment or permanent limitation in 
 
 
 
                
 
                                                         
 
         work activity.  However, in some instances, such as a job 
 
         transfer caused by a work injury, permanent disability benefits 
 
         can be awarded without a showing of a causal connection to a 
 
         physical change of condition.  Blacksmith v. All-American, Inc. 
 
         290 N.W.2d 348, 354 (Iowa 1980); McSpadden v. Big Ben Coal Co., 
 
         288 N.W.2d 181 (Iowa 1980).
 
         
 
              The question of causal connection is essentially within the 
 
         domain of expert medical opinion.  Bradshaw v. Iowa Methodist 
 
         Hospital, 251 Iowa 375, 101 N.W.2d 167 (1960).  The opinion of 
 
         experts need not be couched in definite, positive or unequivocal 
 
         language and the expert opinion may be accepted or rejected, in 
 
         whole or in part, by the trier of fact.  Sondag v. Ferris 
 
         Hardware, 220 N.W.2d 903 (Iowa 1974).  The weight to be given to 
 
         such an opinion is for the finder of fact, and that may be 
 
         affected by the completeness of the premise given the expert and 
 
         other surrounding circumstances.  Bodish v. Fischer, Inc., 257 
 
         Iowa 516, 133 N.W.2d 867 (1965).
 
         
 
              Furthermore, if the available expert testimony is 
 
         insufficient alone to support a finding of causal connection, 
 
         such testimony may be coupled with nonexpert testimony to show 
 
         causation and be sufficient to sustain an award.  Giere v. Asse 
 
         Haugen Homes, Inc., 259 Iowa 1065, 146 N.W.2d 911, 915 (1966). 
 
         Such evidence does not, however, compel an award as a matter of 
 
         law.  Anderson v. Oscar Mayer & Co., 217 N.W.2d 531, 536 (Iowa 
 
         1974).  To establish compensability, the injury need only be a 
 
         significant factor, not be the only factor causing the claimed 
 
         disability.  Blacksmith, 290 N.W.2d 348, 354.  In the case of a 
 
         preexisting condition, an employee is not entitled to recover for 
 
         the results of a preexisting injury or disease but can recover 
 
         for an aggravation thereof which resulted in.the disability found 
 
         to exist.  Olson v. Goodyear Service Stores, 255 Iowa 1112, 125 
 
         N.W.2d 251 (1963).
 
         
 
              In the case sub judice, defendants contend that the ulnar 
 
         nerve problems are not related to the 1984 work injury. 
 
         Admittedly, Dr. Wolbrink did not specifically render an opinion 
 
         which causally connected these problems to the work injury. 
 
         However, Dr. Wolbrink did treat this condition in conjunction 
 
         with the right carpal tunnel syndrome and did not render an 
 
         opinion one way or another.  There was only one physician who has 
 
         given an opinion in the record as to the origins of the ulnar 
 
         nerve problem and that was Dr. Walker.  He felt that the problems 
 
         were caused by the Winnebago employment.  Therefore, Dr. Walker's 
 
         views are uncontroverted and shall be accepted.
 
         
 
              Claimant said that she had no significant arm injury after 
 
         Winnebago.  Admittedly, the work at Pizza Hut bothered her but 
 
         she was credible when she testified that it was only after she 
 
         began to work a full 40 hour week that she began to immediately 
 
         have problems.  The work at Pizza Hut does not appear to be a 
 
         significant source of either the right carpal tunnel syndrome or 
 
         ulnar nerve problems and no physician in this case has rendered 
 
         an opinion that such work contributed in any way to claimant's 
 
                                                
 
                                                         
 
         current problems.
 
         
 
               II.  Claimant must establish by a preponderance of the 
 
         evidence the extent of weekly benefits for permanent disability 
 
         to which claimant is entitled.  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, 997 (Iowa 1983). 
 
         When the result of an injury is loss to a scheduled member, the 
 
         compensation.payable is limited to that set forth in the 
 
         appropriate subdivision of Code section 85.34(2).  Barton v. 
 
         Nevada Poultry Co., 253 Iowa 285, 110 N.W.2d 660 (1961).  "Loss 
 
         of use" of a member is equivalent to 'loss' of the member.  Moses 
 
         v. National Union C.M. Co., 194 Iowa 819, 184 N.W. 746 (1922). 
 
         Pursuant to Code section 85.34(2)(u) the industrial commissioner 
 
         may equitably prorate compensation payable in those cases wherein 
 
         the loss is something less than that provided for in the 
 
         schedule. Blizek v. Eagle Signal Company, 164 N.W.2d 84 (Iowa 
 
         1969).
 
         
 
              From the evidence submitted in this case, it is found as a 
 
         matter of fact that the work injury is a cause of a five percent 
 
         loss of use of the upper extremity based upon the opinions of Dr. 
 
         Wolbrink, the primary treating physician and Dr. Kerney.  Given 
 
         the record in this case, a splitting of the difference between 
 
         the ratings of Dr. Wolbrink and Dr. Walker does not appear to be 
 
         appropriate.  There is simply too much difference between the two 
 
         ratings.  The preponderance of the evidence lies in favor of Dr. 
 
         Wolbrink's rating.  The undersigned disagrees with the defense, 
 
         however, that the loss is limited to the hand.  As discussed 
 
         above, the injury has extended into the right arm by virtue of an 
 
         ulnar nerve problem which may require surgery in the future.
 
         
 
              Based upon such a finding, claimant is entitled as a matter 
 
         of law to 12.5 weeks of permanent partial disability benefits 
 
         under Iowa Code section 85.34(2)(m) which is 12.5 percent of 250 
 
         weeks, the maximum allowable number of weeks for a total loss of 
 
         use of the arm in that subsection.  According to the prehearing 
 
         report, claimant has been paid this amount and no further award 
 
         need be made of weekly benefits at this time.
 
         
 
              III.  Pursuant to Iowa Code section 85.27, claimant is 
 
         entitled to payment of reasonable medical expenses incurred for 
 
         treatment of a work injury.  Claimant is entitled to an order of 
 
         reimbursement only if claimant has paid those expenses.  
 
         Otherwise, claimant is entitled to an order directing the 
 
         responsible defendants to make the payments directly to the 
 
         provider.  See Krohn v. State, 420 N.W.2d 463 (Iowa 1988).
 
         
 
              In this case, the only dispute involves the prescription for 
 
         Naprosyn in 1988 by Dr. Wolbrink.  According to the evidence in 
 
         this case, use of this drug is causally connected to the work 
 
                                                
 
                                                         
 
         injury because it was prescribed for treatment of the right ulnar 
 
         nerve problem.  Therefore, payment of the bill will be awarded.  
 
         As claimant has testified she has paid this bill, she is entitled 
 
         to reimbursement.
 
         
 
              Claimant requests payment of two medical reports set forth 
 
         in exhibit 20.  The amounts of these bills for the medical 
 
         reports appear reasonable and payable under the cost provisions 
 
         of Division of Industrial Services Rule 343-4.33.
 
         
 
                             FINDINGS OF FACT
 
         
 
              1.  Claimant was a credible witness.
 
         
 
              2.  The work injury of December 18, 1984, was a cause of a 
 
         five percent permanent partial impairment or loss of use to the 
 
         right upper extremity due to reoccurring symptoms and 
 
         restrictions on use from carpal tunnel syndrome in the right hand 
 
         and ulnar nerve neuropathy extending from the fingers of the 
 
         right hand into the right elbow.
 
         
 
              3.  The prescription for Naprosyn on July 13, 1988, was 
 
         given to claimant by Dr. Wolbrink, an authorized physician, for 
 
         treatment of a work related ulnar nerve problem and carpal tunnel 
 
         syndrome caused by the December 18, 1984 work injury.
 
         
 
                             CONCLUSION OF LAW
 
         
 
              The claimant has established under law entitlement to the 
 
         disability and medical benefits awarded below.
 
         
 
                                   ORDER
 
         
 
              1.  Defendants shall reimburse claimant in the amount of 
 
         twenty-seven and 01/100 dollars ($27.01) for prescription 
 
         medication prescribed by her physicians.
 
         
 
              2.  Defendants shall continue to provide reasonable 
 
         necessary medical care for the reoccurring carpal tunnel syndrome 
 
         and ulnar nerve problems which are causally connected to the 
 
         December 18, 1984 work injury.
 
         
 
              3.  Defendants shall pay the costs of this action pursuant 
 
         to Division of Industrial Services Rule 343-4.33.
 
         
 
              4.  Defendants shall file an activity report on the payment 
 
         of this award as requested by this agency pursuant to Division of 
 
         Industrial Services Rule 343-3.1.
 
         
 
         
 
              Signed and filed this 19th day of April, 1989.
 
         
 
                                    
 
                                                
 
                                                         
 
         
 
         
 
         
 
                                            LARRY P. WALSHIRE
 
                                            DEPUTY INDUSTRIAL 
 
                                            COMMISSIONER
 
         
 
         Copies To:
 
         
 
         Mr. Robert S. Kinsey, III
 
         Attorney at Law
 
         214 N. Adams
 
         P. 0. Box 679
 
         Mason City, Iowa  50401
 
         
 
         Mr. Harry W. Dahl
 
         Attorney at Law
 
         974 73rd St.
 
         Suite 16
 
         Des Moines, Iowa  50312
 
 
 
 
 
 
            
 
 
 
 
 
           
 
 
 
                                            1803
 
                                            Filed April 19, 1989
 
                                            LARRY P. WALSHIRE
 
         
 
                 BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         SUSAN REECE f/k/a
 
         SUSAN REICHERTS,
 
         
 
              Claimant,                             File No. 805786
 
         
 
         vs.                                     A R B I T R A T I 0 N
 
         
 
         WINNEBAGO INDUSTRIES, INC.,                D E C I S I 0 N
 
         
 
              Employer,
 
         
 
         and
 
         
 
         SENTRY INSURANCE,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         
 
         51803
 
         
 
              A request to split the difference between two functional 
 
         impairment ratings in a scheduled member case was denied.  A 
 
         rating by the physician who was the primary treating physician 
 
         was utilized to make the award.
 
         
 
         
 
         
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
                                                
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            DORENE RUBY,                  :
 
                                          :
 
                 Claimant,                :         File No. 805831
 
                                          :
 
            vs.                           :      A R B I T R A T I O N
 
                                          :
 
            OSCAR MAYER FOODS CORPORATION,:         D E C I S I O N
 
                                          :
 
                 Employer,                :
 
                 Self-Insured,            :
 
                 Defendant.               :
 
            ____________________________________________________________
 
            
 
                              statement of the case
 
            
 
                 This is a proceeding in arbitration brought by Dorene 
 
            Ruby against her employer, Oscar Mayer Foods Corporation, on 
 
            account of an injury that occurred on September 27, 1985 
 
            when she fell and fractured her left femur.  The only issue 
 
            in the case is the extent of permanent partial disability 
 
            which has resulted from that injury.  The employer has 
 
            previously paid 60 weeks of permanent partial disability 
 
            compensation.
 
            
 
                 The evidence in the proceeding consists of testimony 
 
            from Dorene Ruby, Leon Ruby, Joseph Ellerbach and Vernon 
 
            Keller.  The record also contains joint exhibits A through Z 
 
            and AA.
 
            
 
                                 findings of fact
 
            
 
                 Having considered all the evidence received, together 
 
            with the appearance and demeanor of the witnesses, the 
 
            following findings of fact are made.
 
            
 
                 Dorene Ruby is a 56-year-old married lady who lives at 
 
            Davenport, Iowa.  She has been employed by Oscar Mayer Foods 
 
            Corporation for 27 years.  She has held a number of 
 
            different positions throughout the plant.  She has worked in 
 
            the slice and pack department since 1968 or 1969 where she 
 
            has performed many of the jobs within that department.  Her 
 
            present job is to place lunch meat into the wells in a sheet 
 
            of plastic.  Eventually each well becomes a package of lunch 
 
            meat commonly sold at retail outlets.  Dorene had performed 
 
            a similar job at the time of her injury.
 
            
 
                 Dorene fractured the head of her left femur on 
 
            September 27, 1985 when she slipped and fell on the 
 
            employer's premises.  She underwent surgery to repair the 
 
            fracture.  After several months, necrosis developed and it 
 
            was necessary to perform total hip replacement surgery.
 
            
 
                 Dorene had a great deal of difficulty resuming 
 
            employment.  It was only through an extended course of work 
 
            hardening through the Franciscan Medical Center Work Fitness 
 
            Center that she was able to make a successful, sustained 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            return to full-time employment (exhibit AA).
 
            
 
                 At the present time, Dorene is performing her job to 
 
            the satisfaction of her employer.  She is able to do the job 
 
            with the assistance of an ergonomically designed chair.  She 
 
            can stand for approximately 30 minutes, but needs to be able 
 
            to sit periodically.  A job which requires continuous 
 
            standing is not appropriate for her according to her primary 
 
            orthopaedic surgeon, William R. Irey, M.D.  He has also 
 
            restricted her lifting activities to 10 pounds (exhibit D, 
 
            page 24; exhibit E, page 15).  Dr. Irey has rated claimant 
 
            as having a 20 percent impairment of the left lower 
 
            extremity, an amount which is equal to 8 percent of the 
 
            whole person (exhibit D, pages 18; exhibit M).  John 
 
            Sinning, M.D., has rated claimant as having a 30 percent 
 
            impairment of the left lower extremity, an amount which he 
 
            considered to be equivalent to 12 percent of the whole 
 
            person (exhibits N and O).
 
            
 
                 According to Dorene, her present job is the only one in 
 
            the plant which she is aware of that she is capable of 
 
            performing.  Vernon Keller, the plant safety and protective 
 
            service manager who administers the workers' compensation 
 
            program, testified that there are other jobs in the plant 
 
            which are similar to claimant's and that it is quite 
 
            possible that there are others which would be suitable for 
 
            her.  It is readily apparent that Dorene's restrictions make 
 
            her incapable of performing a great number of jobs in the 
 
            plant.  Her inability to move to other jobs has eliminated 
 
            her from most overtime work opportunities.  It has generally 
 
            prevented her from being able to work more than the 36 hours 
 
            per week which are guaranteed by the controlling collective 
 
            bargaining agreement.  She has, however, consistently been 
 
            able to work at least 36 hours per week.  During the summer 
 
            of 1990, she did work some overtime.
 
            
 
                 Dorene has high seniority in her department.  She has 
 
            experienced all the normal pay increases which she would 
 
            have experienced if she had not been injured.
 
            
 
                 Dorene related problems of losing her balance and of 
 
            having pain across her back when she bends over.  Her right 
 
            knee has developed some problems which are possibly due to 
 
            overusing it as a result of favoring her left leg (exhibits 
 
            R and S).  She experiences pain in her hip and across her 
 
            back from working in a cold environment.  She has eliminated 
 
            a number of her off-work activities such as dancing, 
 
            bowling, gardening and much of her housework.
 
            
 
                 It is specifically found that Dorene Ruby has a serious 
 
            physical ailment which would, in all probability, have 
 
            permitted her to remove herself from the work force if she 
 
            had not been highly motivated to resume employment and if 
 
            her employer had not made the work hardening program 
 
            available and accommodated her physical restrictions.  From 
 
            the record made, there appears to be no reason to expect or 
 
            predict that claimant's current employment situation is not 
 
            stable.
 
            
 
                                conclusions of law
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            
 
                 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.2d 899, 902 (1935) as follows: 
 
            "It is therefore plain that the legislature intended the 
 
            term `disability' to mean `industrial disability' or loss of 
 
            earning capacity and not a mere `functional disability' to 
 
            be computed in the terms of percentages of the total 
 
            physical and mental ability of a normal man."
 
            
 
                 Functional impairment is an element to be considered in 
 
            determining industrial disability which is the reduction of 
 
            earning capacity, but consideration must also be given to 
 
            the injured employee's age, education, qualifications, 
 
            experience and inability to engage in employment for which 
 
            he is fitted.  Olson v. Goodyear Service Stores, 255 Iowa 
 
            1112, 1121, 125 N.W.2d 251, 257 (1963).
 
            
 
                 Industrial disability or loss of earning capacity is a 
 
            concept that is quite similar to impairment of earning 
 
            capacity, an element of damage in a tort case.  Impairment 
 
            of physical capacity creates an inference of lessened 
 
            earning capacity.  The basic element to be determined, 
 
            however, is the reduction in value of the general earning 
 
            capacity of the person, rather than the loss of wages or 
 
            earnings in a specific occupation.  Post-injury earnings 
 
            create a presumption of earning capacity.  The earnings are 
 
            not synonymous with earning capacity and the presumption may 
 
            be rebutted by evidence showing the earnings to be an 
 
            unreliable indicator.  Carradus v. Lange, 203 N.W.2d 565 
 
            (Iowa 1973); Holmquist v. Volkswagon of America, Inc., 261 
 
            N.W.2d 516 (Iowa App. 1977) A.L.R.3d 143; Michael v. 
 
            Harrison County, Thirty-fourth Biennial Report of the 
 
            Industrial Commissioner 218 (1979); 2 Larson Workmen's 
 
            Compensation Law, sections 57.21 and 57.31.
 
            
 
                 This case presents a situation in which two of the 
 
            commonly most significant factors of industrial disability 
 
            are at great diversity.  Claimant's minimal reduction in 
 
            actual earnings would indicate very little disability (her 
 
            only loss is the inability to work most overtime 
 
            assignments).  On the other hand, her physical restrictions 
 
            as provided by Dr. Irey are quite severe.  If she had been 
 
            forced to leave her employment at Oscar Mayer Foods 
 
            Corporation, it is quite possible that she would not have 
 
            found any other employment.  If she were able to obtain any 
 
            other employment, it would likely pay at or only slightly 
 
            above the minimum wage level.  At her age, any significant 
 
            amount of retraining would not be feasible.  Her physical 
 
            restrictions would eliminate her from many occupations.  It 
 
            is readily apparent that Dorene's earning capacity, other 
 
            than for her work with her present employer, has been 
 
            severely impaired.  On the other hand, her actual earnings, 
 
            which are normally a strong indicator of earning capacity, 
 
            have been impaired only minimally, if at all.  The evidence 
 
            could support a very high award of disability, but it could 
 
            likewise support a very low award in the range of the 
 
            physical impairment ratings.  It is determined that, in this 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            case, neither extreme would be appropriate.  It is 
 
            determined that an award of 25 percent permanent partial 
 
            disability would adequately compensate the loss of earning 
 
            capacity which has resulted from the September 27, 1985 
 
            injury, when all the factors of industrial disability are 
 
            considered.  This entitles Dorene to receive 125 weeks of 
 
            compensation for permanent partial disability, 65 weeks more 
 
            than the employer had voluntarily paid.
 
            
 
                                      order
 
            
 
                 IT IS THEREFORE ORDERED that the employer pay Dorene 
 
            Ruby one hundred twenty-five (125) weeks of compensation for 
 
            permanent partial disability at the stipulated rate of two 
 
            hundred fifty-two and 82/100 dollars ($252.82) per week 
 
            payable commencing September 26, 1988.
 
            
 
                 IT IS FURTHER ORDERED that the employer receive credit 
 
            for the sixty (60) weeks which were previously paid and that 
 
            the accrued, unpaid balance be paid in a lump sum together 
 
            with interest pursuant to Iowa Code section 85.30.
 
            
 
                 IT IS FURTHER ORDERED that the employer pay the costs 
 
            of this action pursuant to 343 IAC 4.33.
 
            
 
                 IT IS FURTHER ORDERED that the employer file claim 
 
            activity reports as requested by this agency pursuant to 343 
 
            IAC 3.1.
 
            
 
                 Signed and filed this ______ day of ____________, 1990.
 
            
 
                 
 
            
 
                 
 
                 
 
                                          ______________________________
 
                                          MICHAEL G. TRIER
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr. Thomas H. Preacher
 
            Attorney at Law
 
            2535 Tech Drive, Suite 200
 
            Bettendorf, Iowa  52722
 
            
 
            Ms. Vicki L. Seeck
 
            Attorney at Law
 
            600 Union Arcade Building
 
            111 East Third Street
 
            Davenport, Iowa  52801
 
            
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                           1803
 
                           Filed December 18, 1990
 
                           MICHAEL G. TRIER
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            DORENE RUBY,                  :
 
                                          :
 
                 Claimant,                :         File No. 805831
 
                                          :
 
            vs.                           :      A R B I T R A T I O N
 
                                          :
 
            OSCAR MAYER FOODS CORPORATION,:         D E C I S I O N
 
                                          :
 
                 Employer,                :
 
                 Self-Insured,            :
 
                 Defendant.               :
 
            ____________________________________________________________
 
            
 
            1803
 
            Fifty-six-year-old claimant with fractured hip, severe 
 
            physical restrictions, but no loss of actual earnings 
 
            awarded 25 percent permanent partial disability.  Were it 
 
            not for the employer's accommodation and her high level of 
 
            motivation, she would likely be unemployable.
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                    
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER 
 
         
 
         
 
         ALBERT HERRERA,
 
         
 
              Claimant,
 
         
 
         vs.                                          File No. 805997
 
         
 
         LEHIGH PORTLAND CEMENT                    A R B I T R A T I O N
 
         COMPANY,
 
                                                     D E C I S I O N
 
              Employer,
 
         
 
         and                                             F I L E D
 
         
 
         TRAVELERS INSURANCE COMPANY,                   FEB 24 1988
 
         
 
              Insurance Carrier,               IOWA INDUSTRIAL COMMISSIONER
 
              Defendants.
 
         
 
         
 
                                   INTRODUCTION
 
         
 
              This is a proceeding in arbitration brought by Albert 
 
         Herrera, claimant, against Lehigh Portland Cement Company, 
 
         employer, and Travelers Insurance Company, the employer's 
 
         insurance carrier.  The case was heard at Mason City, Iowa on 
 
         August 20, 1987 and was fully submitted upon conclusion of the 
 
         hearing.  The record in the proceeding consists of testimony from 
 
         Albert Herrera, Roger Marquardt, Louis Frasing, Bret Amick and 
 
         Burr Heitland.  The record also contains claimant's exhibits 1, 2 
 
         and 3 and defendants' exhibits A, B and D.
 
         
 
              Defendants' exhibit C is a video cassette which purports to 
 
         depict some of claimant's activities as observed by Bret Amick.  
 
         It was offered by defendants as surrebuttal evidence following 
 
         rebuttal testimony that had been presented by claimant wherein 
 
         claimant countered testimony given by Amick with regard to washing 
 
         a car and carrying boxes.  Claimant objected to the video cassette 
 
         being received into evidence.  The basis for the objection was 
 
         that it had not been listed on the exhibit list as required by the 
 
         hearing assignment order, that it had not been produced in 
 
         response to a request for production and that it is not actually 
 
         surrebuttal evidence.  Counsel for defendants countered that the 
 
         video cassette is not covered by the request for production, that 
 
         it was never intended to be used in the defendants' case in chief 
 
         and that it is surrebuttal concerning claimant washing a car and 
 
         the manner in which he did so.  Defense counsel contends that, 
 
         since it is surrebuttal evidence, it need not have been disclosed 
 
         in advance of hearing.
 
         
 
              Determination of what constitutes rebuttal, or surrebuttal 
 
                                                
 
                                                         
 
         evidence, and whether it should be received is largely 
 
         discretionary.  Karr.v. Samuelson, Inc., 176 N.W.2d 204 (Iowa 
 
         1970).  The fact that testimony might have been useful and usable 
 
         in the case in chief does not necessarily preclude its use in 
 
         rebuttal.  In Re Estate of Shama, 245 Iowa 1039, 65 N.W.2d 360 
 
         (1954); Blakely v. Bates, 394 N.W.2d 320 (Iowa 1986).  Calling a 
 
         witness for the purpose of rebuttal should not, however, be used 
 
         as a device to avoid the provisions of a pretrial order which 
 
         requires the disclosure of witnesses.  Moore v. Vanderloo, 386 
 
         N.W.2d 108 (Iowa 1986).  Rebutting evidence is that which 
 
         explains, repeals, controverts, disproves, or tends to impeach or 
 
         otherwise rebut evidence of the opponent.  State v. Hephner, 161 
 
         N.W.2d 714, 718 (Iowa 1968).  The video cassette tape, 
 
         defendants' exhibit C, is cumulative of the testimony given by 
 
         Amick.  Amick's testimony was presented by defendants as part of 
 
         their case in chief.  Its importance in the case was not 
 
         substantially changed as a result of claimant giving rebuttal 
 
         testimony.  When testifying as part of his case in chief, 
 
         claimant testified that he can wash a car at his own speed, the 
 
         same as he testified on rebuttal.  The evidence that claimant 
 
         submitted on rebuttal is found to not be significantly different 
 
         from the evidence he submitted in his case in chief.  Claimant's 
 
         rebuttal testimony did not actually introduce any new material 
 
         which would warrant surrebuttal.  The evidence contained in 
 
         exhibit C is cumulative with the testimony provided by Amick.  In 
 
         summary, it appears that exhibit C was offered as surrebuttal 
 
         evidence solely because it had not been listed on an exhibit list 
 
         as required by the hearing assignment order.  The hearing 
 
         assignment order required a list of all proposed exhibits to be 
 
         served on the opposing party no later than 15 days prior to the 
 
         date of hearing.  The hearing assignment order does not contain 
 
         any specific sanction to be imposed upon the failure to list an 
 
         exhibit if the exhibit is something other than written evidence, 
 
         but it clearly states that written evidence shall not be admitted 
 
         at the hearing unless it has been timely served on the opposing 
 
         party.  The hearing assignment order also indicates that 
 
         testimony of witnesses who were not listed on the witness list 
 
         will not be permitted unless the testimony is clearly rebuttal or 
 
         surrebuttal.  Apparently Amick was listed as a witness.  Even 
 
         though a specific sanction does not appear in the hearing 
 
         assignment order for an exhibit such as defendants' exhibit C, 
 
         the same rules should be applied in order to be consistent with 
 
         the intent and spirit of discovery and the hearing assignment 
 
         order, namely, that surprise be avoided.  Exhibit C is not 
 
         "clearly rebuttal or surrebuttal."  It was not listed on an 
 
         exhibit list.  Claimant's objection is therefore sustained and 
 
         exhibit C is not received into evidence.  The request for 
 
         production would not have required disclosure of exhibit C.
 
         
 
                                    ISSUES
 
         
 
              The parties indicated that the only issue to be determined 
 
         is claimant's entitlement to compensation for permanent partial 
 
         disability.  His healing period was stipulated to run from 
 
         September 23, 1985 to June 24, 1986.  It was stipulated that 
 
                                                
 
                                                         
 
         claimant had been paid 41 weeks of compensation for permanent 
 
         partial disability and that any additional permanent partial 
 
         disability compensation awarded should become payable commencing 
 
         April 8, 1987.  It was further stipulated that the rate of 
 
         compensation in this case is $328.78 per week.  It was stipulated 
 
         that claimant sustained an injury on September 23, 1985 which 
 
         arose out of and in the course of his employment and that the 
 
         injury was a cause of both temporary disability and permanent 
 
         disability.
 
         
 
                             SUMMARY OF EVIDENCE
 
         
 
              The following is only a brief summary of pertinent evidence. 
 
         All evidence received at the hearing was considered when deciding 
 
         the case even though it may not necessarily be referred to in 
 
         this decision.
 
         
 
              Albert Herrera is a 53-year-old married man who injured his 
 
         back on September 23, 1985 while helping a fellow worker move an 
 
         elevator door at the employer's place of business.  Claimant 
 
         reported the injury and was seen by the employer-designated 
 
         physician John R. Yankey, M.D.
 
         
 
              Dr. Yankey was of the impression that claimant had sustained 
 
         an acute back strain as his examination had failed to disclose 
 
         any definite neurological abnormalities.  Conservative treatment 
 
         in the nature of rest, heat, Tylenol #3 medication and avoidance 
 
         of physical activity was recommended.  When claimant showed no 
 
         improvement at the follow-up examination two days later, Dr. 
 
         Yankey referred him to R. L. Emerson, M.D., an orthopaedic 
 
         surgeon (defendants' exhibit A, pages 1 and 2).
 
         
 
              Dr. Emerson examined claimant and formed the impression that 
 
         claimant probably had a herniated disc of the lower lumbar spine 
 
         and that he also exhibited evidence, by x-rays, of degenerative 
 
         disc disease.  Further conservative treatment in the nature of bed 
 
         rest and medication was recommended (defendants' exhibit A, page 
 
         8).  When claimant showed no improvement under conservative care, 
 
         a CT scan and myelogram were performed.  The CT scan showed 
 
         degenerative changes, but was otherwise unremarkable (defendants' 
 
         exhibit A, page 11).  The myelogram showed mild bulging at the 
 
         L4-5 and L5-S1 levels without signs of nerve root impingement 
 
         (defendants' exhibit A, page 13).  Dr. Emerson concluded that 
 
         claimant had degenerative disc disease without disc herniation.  
 
         He had no further treatment options to offer claimant and 
 
         suggested that claimant be seen at the Sister Kenny Institute in 
 
         Minneapolis, Minnesota (defendants' exhibit A, page 14).
 
         
 
              In January of 1986, claimant fractured his right ankle in an 
 
         accident that occurred while claimant was in Missouri.  Open 
 
         reduction and internal fixation of the fracture was accomplished 
 
         by N. B. Chase, M.D.  The history of the incident indicates that, 
 
         at approximately 1600 hours on the date of admission, claimant 
 
         was kicked by a horse and sustained an injury to his right ankle 
 
         (defendants' exhibit A, pages 23-26).  Claimant testified that 
 
                                                
 
                                                         
 
         the ankle injury occurred by stepping in a rut or hole in a 
 
         roadway upon which he was walking rather than from being kicked 
 
         by a horse.  Claimant denied riding any horses subsequent to his 
 
         1985 injury (defendants' exhibit A, pages 63 and 64).
 
         
 
              On June 9 and 20, 1986, claimant was evaluated by A. P. 
 
         Manahan, M.D.  Following the first visit, Dr. Manahan was of the 
 
         impression that claimant had chronic low back pain secondary to a 
 
         lumbosacral strain and degenerative arthritis of the spine.  He 
 
         found claimant to have a good range of motion and normal 
 
         neurological findings.  Dr. Manahan suggested that claimant enter 
 
         a conditioning program consisting of physical therapy at the 
 
         Mercy Hospital in Mason City, Iowa, anti-inflammatory medication 
 
         and use of a TENS unit.  At the time of the June 20 return visit, 
 
         claimant appeared to have improved somewhat following the 
 
         therapy, but still complained of pain.  The report indicates that 
 
         claimant expressed a fear of returning to work and of inability 
 
         to do the same job he had previously performed.  It also 
 
         indicates that claimant ceased taking the prescription medication 
 
         because it caused headaches and a sleepy feeling.  Claimant's 
 
         pain is characterized as a dull ache which is localized in the 
 
         low back area and radiates into both legs.  Dr. Manahan indicated 
 
         that claimant could go back to a light job with a 50-pound limit 
 
         on lifting and then gradually work back to his former job over a 
 
         period of 4-6 weeks.  Dr. Manahan indicated claimant's 
 
 
 
                     
 
                                                         
 
         neurological findings were normal.  Claimant was assigned a five 
 
         percent permanent partial impairment rating on the basis of the 
 
         American Medical Association's Guides to the Evaluation of 
 
         Permanent Impairment (defendants' exhibit A, pages 18 and 19).
 
         
 
              Claimant was again seen by Dr. Emerson on July 18, 1986.  He 
 
         continued to exhibit a dull aching pain over the low back and 
 
         indicated that his symptoms were related to activities such as 
 
         walking, prolonged sitting, prolonged standing or lifting.  A 
 
         physical examination was normal neurologically.  Dr. Emerson 
 
         indicated that claimant had low back pain of unknown etiology, 
 
         but suspected that it was due to degenerative disc disease and 
 
         posterior facet arthrosis.  He rated claimant as having a 10% 
 
         permanent partial impairment of the whole man.  Dr. Emerson 
 
         attributed his 10% impairment rating to the injury that occurred 
 
         in September, 1985 (defendants' exhibit A, page 39).  He 
 
         indicated that the only explainable cause for claimant's back 
 
         pain is his degenerative disc disease (defendants' exhibit A, 
 
         page 15).  He again recommended that claimant be seen at the 
 
         Sister Kenny Institute (defendants' exhibit A, page 20).
 
         
 
              On October 20, 1986, claimant was seen at the Sister Kenny 
 
         Institute.  A physical examination revealed evidence of mechanical 
 
         low back pain with no sciatic radiculitis.  A CT scan showed 
 
         narrowing of the L5-S1 disc space with evidence of degenerative 
 
         changes, but no disc bulging.  Aggressive treatment in the nature 
 
         of nerve injections and blocks was undertaken.  It provided brief 
 
         temporary relief, but did not improve claimant's condition and, in 
 
         fact, may have worsened it somewhat.  It was recommended that 
 
         claimant continue with exercise and accomplish weight reduction.  
 
         A surgical stabilization procedure was indicated to be a possible 
 
         option (defendants' exhibit A, pages 28-30 and 35).  Claimant 
 
         testified that Alexander Lifson, M.D., the primary physician he 
 
         dealt with at the Institute, had not actually recommended surgery, 
 
         but had indicated to claimant that it was up to claimant as to 
 
         whether or not he wanted to try surgery (defendants' exhibit A, 
 
         pages 67 and 68).
 
         
 
              On December 11, 1986, Dr. Yankey issued a comprehensive, and 
 
         substantially accurate, report regarding claimant's injury, 
 
         treatment, recovery and future prognosis (defendants' exhibit A, 
 
         pages 33 and 34).  The report indicates that claimant exhibited 
 
         no signs of muscle weakness, atrophy or other neurological or 
 
         circulatory deficits.  Range of motion of the lumbar spine was 
 
         restricted, but strength, sensation and reflexes were intact.  
 
         Dr. Yankey indicated that claimant has many functional 
 
         limitations and should avoid prolonged sitting, standing, 
 
         bending, driving and lifting.  Dr. Yankey indicated that claimant 
 
         was not currently capable of working at his normal job or at any 
 
         other type of job due to his back pain which accompanies just 
 
         about any movement of his back.  Dr. Yankey indicated that 
 
         claimant's problem was not expected to significantly improve or 
 
         deteriorate in the future.
 
         
 
              Claimant is presently involved in a controversy wherein he 
 
                                                
 
                                                         
 
         is suspected of altering or tampering with a motor vehicle 
 
         odometer. Claimant denied the allegation, but had no explanation 
 
         for the apparent decrease of miles on the odometer of the vehicle 
 
         between the time he purchased it and its subsequent sale 
 
         (defendants' exhibit A, pages 112-123).
 
         
 
              Claimant was placed under surveillance by Bret Amick on July 
 
         30 and 31, 1987.  Amick testified that claimant's gait appeared 
 
         normal throughout the period of surveillance.  Amick testified 
 
         that, on July 30, he observed claimant bend over, carry and place 
 
         boxes, which appeared to contain vegetables, in the trunk of a 
 
         car without apparent difficulty.  Amick testified that, on July 
 
         31, he observed claimant washing and drying a car at a relatively 
 
         fast pace without any apparent difficulty.  Claimant testified 
 
         that the boxes he carried contained clothing and were not heavy.  
 
         He stated that he was able to wash a car, but that he did so at 
 
         his own pace.
 
         
 
              Claimant was evaluated by Roger F. Marquardt, a qualified 
 
         vocational consultant.  Marquardt's report appears in exhibit A 
 
         at pages 109-111.  Marquardt expressed the opinion that claimant 
 
         has no functional capacity to permit him to return to any of his 
 
         past employments, but that he does have certain acquired 
 
         employment skills which are transferrable to light or sedentary 
 
         work, particularly in the area of maintenance of electrical 
 
         machines and circuits.  Marquardt indicated that placement 
 
         assistance would be highly advisable if claimant was to seek 
 
         employment.  Marquardt stated that placement attempts should 
 
         center on semi-skilled work in the building maintenance or 
 
         electrical maintenance field where median pay is in the range of 
 
         $7.00 per hour and could possibly run as high as $8-$10 per hour.  
 
         Marquardt opined that claimant could earn up to.$9.00 per hour in 
 
         semi-skilled work.  Marquardt also indicated that wage scales in 
 
         the Joplin, Missouri area would be consistent with those in 
 
         Iowa.
 
         
 
              Claimant testified that most of his employment career has 
 
         been spent in the employ of Lehigh Portland Cement, but that he 
 
         also has limited experience in building maintenance, military 
 
         telephone installation and repair and as a gas station attendant. 
 
         He has completed trade courses in air conditioning, electricity, 
 
         mechanical drawing, plumbing and general construction 
 
         maintenance. While at Lehigh, he held a number of different 
 
         positions.
 
         
 
              Claimant owns a small farm near Joplin, Missouri and 
 
         frequently travels between the part-time home in Missouri and his 
 
         home in Mason City, Iowa, a distance estimated at approximately 
 
         430 miles each way.  Claimant testified that he sometimes makes 
 
         the drive by himself and that it takes approximately 10 hours.
 
         
 
              Claimant testified that his condition is aggravated by almost 
 
         any activity in which he engages.  He presently receives a pension 
 
         from the employer in the amount of $653.08 per month.  He stated 
 
         that he was earning $548.00 per week at the time of injury and 
 
                                                
 
                                                         
 
         that, in 1984, he earned in the range of $28,000-$30,000.  
 
         Claimant stated that, prior to the time of his injury, he planned 
 
         to work until age 65.  He now has a claim pending for Social 
 
         Security disability benefits.  He has not looked for work since 
 
         the injury. Claimant had a full range of fringe benefits at his 
 
         employment, but was uncertain as to what fringes, if any, have 
 
         continued during his retirement.
 
         
 
                         APPLICABLE LAW AND ANALYSIS
 
         
 
              The only issue presented by the parties for determination is 
 
         the extent of claimant's industrial disability that resulted from 
 
         the injury sustained on September 23, 1985.
 
         
 
              The claimant has the burden of proving by a preponderance of 
 
         the evidence that the injury of September 23, 1985 is causally 
 
         related to the disability on which he now bases his claim.  
 
         Bodish v. Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867 (1965).  
 
         Lindahl v. L. O. Boggs, 236 Iowa 296, 18 N.W.2d 607 (1945).  A 
 
         possibility is insufficient; a probability is necessary.  Burt v. 
 
         John Deere Waterloo Tractor Works, 247 Iowa 691, 73 N.W.2d 
 
         (1955).  The question of causal connection is essentially within 
 
         the domain of expert testimony.  Bradshaw v. Iowa Methodist 
 
         Hospital, 251 Iowa 375, 101 N.W.2d 167 (1960).
 
         
 
              However, expert medical evidence must be considered with all 
 
         other evidence introduced bearing on the causal connection.  
 
         Burt, 247 Iowa 691, 73 N.W.2d 732.  The opinion of experts need 
 
         not be couched in definite, positive or unequivocal language.  
 
         Sondag v. Ferris Hardware, 220 N.W.2d 903 (Iowa 1974).  However, 
 
         the expert opinion may be accepted or rejected, in whole or in 
 
         part, by the trier of fact.  Id. at 907.  Further, the weight to 
 
         be given to such an opinion is for the finder of fact, and that 
 
         may be affected by the completeness of the premise given the 
 
         expert and other surrounding circumstances.  Bodish, 257 Iowa 
 
         516, 133 N.W.2d 867.  See also Musselman v. Central Telephone 
 
         Co., 261 Iowa 352, 154 N.W.2d 128 (1967).
 
         
 
              If claimant has an impairment to the body as a whole, an 
 
         industrial disability has been sustained.  Industrial disability 
 
         was defined in Diederich v. Tri-City Railway Co., 219 Iowa 587, 
 
         593, 258 N.W. 899, 902 ( 935) as follows:  "It is therefore plain 
 
         that the legislature intended the term 'disability' to mean 
 
         'industrial disability' or loss of earning capacity and not a 
 
         mere 'functional disability' to be computed in the terms of 
 
         percentages of the total physical and mental ability of a normal 
 
         man."
 
         
 
              Functional impairment is an element to be considered in 
 
         determining industrial disability which is the reduction of 
 
         earning capacity, but consideration must also be given to the 
 
         injured employee's age, education, qualifications, experience and 
 
         inability to engage in employment for which he is fitted.  Olson 
 
         v. Goodyear Service Stores, 255 Iowa 1112, 1121, 125 N.W.2d 251, 
 
         257 (1963).
 
                                                
 
                                                         
 
         
 
              The only medical diagnosis that has been made in this case 
 
         is degenerative disc disease in claimant's spine.  Agency 
 
         expertise is relied upon to realize that degenerative disc 
 
         disease is a long-standing problem and that claimant's 
 
         degenerative condition did not have its origin in the September 
 
         23, 1985 incident. Degenerative condition is, however, a 
 
         condition which is particularly susceptible to injurious 
 
         aggravations.
 
         
 
              While a claimant is not entitled to compensation for the 
 
         results of a preexisting injury or disease, the mere existence at 
 
         the time of a subsequent injury is not a defense.  Rose v. John 
 
         Deere Ottumwa Works, 247 Iowa 900, 908, 76 N.W.2d 756, 760-761 
 
         (1956).  If the claimant had a preexisting condition or 
 
         disability that is aggravated, accelerated, worsened or lighted 
 
         up so that it results in disability, claimant is entitled to 
 
         recover.  Nicks v. Davenport Produce Co., 254 Iowa 130, 115 
 
         N.W.2d 812, 815 (1962).
 
         
 
              Claimant had a prior incident involving his back which 
 
         required approximately three months to resolve.  It is easily 
 
         conceivable that any aggravation of his degenerative condition 
 
         could be quite troublesome.  Claimant was given a five percent 
 
         impairment rating from Dr. Manahan and a 10% rating from Dr. 
 
         Emerson.  Dr. Emerson specifically related the impairment to the 
 
         September 23, 1985 incident.
 
         
 
              Claimant has substantial limitations as summarized by Dr. 
 
         Yankey in his December 11, 1986 report.
 
         
 
              The only basis for claimant's complaints that has been 
 
         suggested by any of the physicians is the degenerative condition. 
 
 
 
                         
 
                                                         
 
         The severity of the complaints is quite subjective.  Claimant's 
 
         appearance and demeanor was observed as he testified.  There are 
 
         indications in the record that claimant is quite upset with the 
 
         employer, blames the employer for his condition and has no desire 
 
         whatsoever to return to employment with the employer.  There is 
 
         nothing in the record, beyond claimant's subjective complaints, 
 
         which indicates that the aggravation of claimant's preexisting 
 
         condition that occurred on September 23, 1985 was an incident of 
 
         major long-term consequence.  He has not exhibited any 
 
         neurological or other physical changes which can be objectively 
 
         determined.  Claimant's motivation and desire to be gainfully 
 
         employed are determined to be suspect as is his credibility 
 
         regarding the severity of his complaints.  Claimant seems to live 
 
         the life of a quite active retired person.  Nevertheless, he has 
 
         been given impairment ratings and Dr. Emerson has attributed the 
 
         impairment to the injury.  The causal connection made by Dr. 
 
         Emerson and his impairment rating are accepted as correct.  When 
 
         all the applicable factors of industrial disability are 
 
         considered, it is determined that claimant has sustained a 20% 
 
         permanent partial disability as a result of the injury that 
 
         occurred on September 23, 1985.  Claimant's failure to establish 
 
         the credibility of his complaints renders the medically-imposed 
 
         restrictions on his activities lacking in foundation.  The 
 
         restrictions indicated by Dr. Yankey appear to be based solely 
 
         upon claimant's subjective complaints.  The assessment made by 
 
         Dr. Manahan is determined to by the most accurate assessment of 
 
         claimant's actual physical capabilities.
 
         
 
                                FINDINGS OF FACT
 
         
 
              1.  On September 23, 1985, Albert Herrera was a resident of 
 
         Mason City, Iowa employed by Lehigh Portland Cement.
 
         
 
              2.  Albert Herrera injured his back on September 23, 1985 
 
         when assisting a co-worker in moving an elevator door.
 
         
 
              3.  The injury to claimant's back was in the nature of a 
 
         strain which aggravated a preexisting degenerative condition.
 
         
 
              4.  Claimant has a 10% permanent physical impairment of the 
 
         body as a whole due to the injury sustained in that incident.
 
         
 
              5.  Claimant did not establish the credibility of his 
 
         complaints of pain.
 
         
 
              6.  Claimant is not motivated to return to work with this 
 
         employer, or elsewhere.
 
         
 
              7.  At the time of hearing, claimant was 53 years of age and 
 
         married, but without any other dependents.
 
         
 
              8.  The physical limitations which were indicated by Dr. 
 
         Manahan are accepted as being correct rather than the more 
 
         restrictive estimates of claimant's functional capabilities which 
 
         have been provided by other medical practitioners who based their 
 
                                                
 
                                                         
 
         recommendations on claimant's complaints of pain and discomfort, 
 
         which complaints have been found to be unreliable.
 
         
 
              9.  Claimant is a high school graduate and has worked for 
 
         the employer for more than 30 years in various positions.  
 
         Claimant has also taken various trade courses in air 
 
         conditioning, electricity, mechanical drawing, general 
 
         construction maintenance and plumbing.
 
         
 
              10.  Claimant appeared to be of at least average 
 
         intelligence and to be emotionally stable.
 
         
 
              11.  Claimant has a 20% loss of earning capacity due to the 
 
         September 23, 1985 injury.
 
         
 
                                CONCLUSIONS OF LAW
 
         
 
              1.  This agency has jurisdiction of the subject matter of 
 
         this proceeding and its parties.
 
         
 
              2.  The injury of September 23, 1985 is a proximate cause of 
 
         impairment of claimant's lumbar spine.
 
         
 
              3.  When claimant's permanent disability is evaluated 
 
         industrially, pursuant to section 85.34(2)(u), it is found to be 
 
         a 20% permanent partial disability.
 
         
 
                                     ORDER
 
         
 
              IT IS THEREFORE ORDERED, that defendants pay claimant one 
 
         hundred (100) weeks of compensation for permanent partial 
 
         disability at the stipulated rate of three hundred twenty-eight 
 
         and 78/100 dollars ($328.78) per week.  Pursuant to the 
 
         stipulation of the parties, forty-one (41) weeks have already 
 
         been paid which leaves a remainder of fifty-nine (59) weeks to be 
 
         paid commencing April 8, 1987 consistent with the stipulation 
 
         made by the parties.
 
         
 
              IT IS FURTHER ORDERED that all past due accrued amounts be 
 
         paid in a lump sum together with interest pursuant to section 
 
         85.30.
 
         
 
              IT IS FURTHER ORDERED that defendants pay the costs of this 
 
         action pursuant to Division of Industrial Services Rule 
 
         343-4.33.
 
         
 
              IT IS FURTHER ORDERED that defendants file Claim Activity 
 
         Reports as requested by this agency pursuant to Division of 
 
         Industrial Services Rule 343-3.
 
         
 
              Signed and filed this 24th day of February, 1988.
 
         
 
         
 
         
 
         
 
                                                
 
                                                         
 
         
 
         
 
                                            MICHAEL G. TRIER
 
                                            DEPUTY INDUSTRIAL COMMISSIONER
 
         
 
         Copies To:
 
         
 
         Mr. Robert W. Pratt
 
         Attorney at Law
 
         1913 Ingersoll Avenue
 
         Des Moines, Iowa  50309
 
         
 
         Mr. C. Bradley Price
 
         Mr. Mark A. Wilson
 
         Attorneys at Law
 
         30 Fourth Street NW
 
         P.O. Box 1953
 
         Mason City, Iowa  50401
 
 
 
         
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                                 1402.40, 1803
 
                                                 Filed February 24, 1988
 
                                                 MICHAEL G. TRIER
 
         
 
                    BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         ALBERT HERRERA,
 
         
 
              Claimant,
 
         
 
         vs.
 
         
 
         LEHIGH PORTLAND CEMENT                      File No. 805997
 
         COMPANY,
 
                                                 A R B I T R A T I 0 N
 
              Employer,
 
                                                    D E C I S I 0 N
 
         and
 
         
 
         TRAVELERS INSURANCE COMPANY,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         1402.40, 1803
 
         
 
              Claimant failed to establish the credibility of the severity 
 
         of his complaints.  Claimant awarded 20% permanent partial 
 
         disability based upon an aggravation of a preexisting 
 
         degenerative condition.  Claimant had left his employment after 
 
         working more than 30 years for the same employer, had taken his 
 
         pension and had not sought any other employment.
 
 
 
         
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
                      :
 
            LEE DAGNILLO,  :
 
                      :
 
                 Claimant, :
 
                      :
 
            vs.       :
 
                      :      File No. 806001
 
            IOWA ASBESTOS COMPANY,   :
 
                      :        A P P E A L
 
                 Employer, :
 
                      :      D E C I S I O N
 
            and       :
 
                      :
 
            IOWA CONTRACTORS WORKERS'     :
 
            COMPENSATION GROUP, :
 
                      :
 
                 Insurance Carrier,  :
 
                 Defendants.    :
 
            ___________________________________________________________
 
            
 
            The record, including the transcript of the hearing before 
 
            the deputy and all exhibits admitted into the record, has 
 
            been reviewed de novo on appeal.  The decision of the deputy 
 
            filed August 14, 1990 is affirmed and is adopted as the 
 
            final agency action in this case. 
 
            Claimant shall pay the costs of the appeal, including the 
 
            preparation of the hearing transcript.
 
            Signed and filed this ____ day of September, 1991.
 
            
 
            
 
            
 
            
 
                      ________________________________
 
                               BYRON K. ORTON
 
                           INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr. William W. Garretson
 
            Attorney at Law
 
            1200 35th Street
 
            Suite 206
 
            West Des Moines, Iowa 50265
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            
 
            Mr. I. John Rossi
 
            Mr. James C. Davis
 
            Attorneys at Law
 
            Skywalk Suite 203
 
            700 Walnut Street
 
            Des Moines, Iowa 50309
 
            
 
            Mr. John A. Templer, Jr.
 
            Mr. Dean C. Mohr
 
            Ms. Ann M. Ver Heul
 
            Attorneys at Law
 
            3737 Woodland Ste. 437
 
            West Des Moines, Iowa 50265
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                      9998
 
                      Filed September 20, 1991
 
                      BYRON K. ORTON
 
                      BJO
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
                      :
 
            LEE DAGNILLO,  :
 
                      :
 
                 Claimant, :
 
                      :
 
            vs.       :
 
                      :      File No. 806001
 
            IOWA ASBESTOS COMPANY,   :
 
                      :        A P P E A L
 
                 Employer, :
 
                      :      D E C I S I O N
 
            and       :
 
                      :
 
            IOWA CONTRACTORS WORKERS'     :
 
            COMPENSATION GROUP, :
 
                      :
 
                 Insurance Carrier,  :
 
                 Defendants.    :
 
            ___________________________________________________________
 
            
 
            9998
 
            
 
                 Summary affirmance of deputy's decision filed August 
 
            14, 1990.
 
            
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            LEE DAGNILLO,                 :
 
                                          :
 
                 Claimant,                :
 
                                          :        File No. 806001
 
            vs.                           :
 
                                          :
 
            IOWA ASBESTOS COMPANY,        :     A R B I T R A T I O N
 
                                          :
 
                 Employer,                :        D E C I S I O N
 
                                          :
 
            and                           :
 
                                          :
 
            IOWA CONTRACTORS WORKERS'     :
 
            COMPENSATION GROUP,           :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
                              statement of the case
 
            
 
                 This is a proceeding in arbitration wherein claimant 
 
            seeks compensation for permanent partial disability benefits 
 
            as a result of an alleged occupational disease occurring 
 
            January 23, 1984.  The record in the proceeding consists of 
 
            the testimony of claimant, claimant's wife, Maxine Dagnillo, 
 
            Dana Kever, and Wayne Allen; and Joint Exhibits A through I.
 
            
 
                 Claimant offered into evidence claimant's Exhibit 1 
 
            which involved copies of OSHA statutes and which was listed 
 
            on claimant's exhibit list.  Defendants filed a motion to 
 
            exclude this exhibit.   This motion was filed just prior to 
 
            the start of the hearing.  The undersigned deputy reserved 
 
            ruling on this motion and the admissibility of claimant's 
 
            Exhibit 1 until the time of this decision.  The undersigned 
 
            sustains defendants' motion to exclude the above exhibit.  
 
            Under Iowa law, OSHA regulations cannot be used to "effect," 
 
            "enlarge" or "diminish," the "rights," "duties," or 
 
            "liabilities" of an employer.  See Iowa Code section 88.20 
 
            and Lundy v. Winnebago Industries, Inc., 299 N.W.2d 473 
 
            (Iowa 1973).  This case under consideration involves 
 
            workers' compensation law of which the undersigned will take 
 
            judicial and official notice.  Claimant's Exhibit 1 is not 
 
            admitted into evidence.
 
            
 
                                      issues
 
            
 
                 The issues for resolution are:
 
            
 
                 1.  Whether claimant's occupational disease arose out 
 
            of and in the course of his employment;
 
            
 
                 2.  Whether claimant's condition is causally connected 
 
            to his occupational disease occurring on January 23, 1984;
 
            
 
                 3.  The nature and extent of claimant's disability and 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            entitlement to benefits;
 
            
 
                 4.  The rate that would be payable per any disability 
 
            benefits;
 
            
 
                 5.  85.27 benefits entitlement;
 
            
 
                 6.  Whether claimant timely filed his claim, pursuant 
 
            to Iowa Code section 85.26;
 
            
 
                 7.  Whether claimant gave timely notice under Iowa Code 
 
            section 85.23; and
 
            
 
                 8.  Whether defendants have valid defenses to 
 
            claimant's claim under Chapter 85A, including 85A.14.
 
            
 
                                 findings of fact
 
            
 
                 The undersigned deputy having heard the testimony and 
 
            considered all the evidence, finds that:
 
            
 
                 Claimant is a 53-year-old who finished the eighth 
 
            grade.  He has been working in the asbestos insulation 
 
            industry since 1954.  He began work with defendant employer 
 
            in 1976.  Claimant's work includes, but not necessarily is 
 
            limited to, covering hot water tanks, boilers, ducts, and 
 
            like work.  Claimant testified in detail the nature and type 
 
            of work he did and the exposure to dust and asbestos in his 
 
            work.  Claimant related the changes in the industry over the 
 
            years as to regulations and no regulations, and the use and 
 
            nonuse of certain protective gear.
 
            
 
                 Claimant said a Dr. Gregory Hicklin first discovered 
 
            claimant had asbestosis on January 24, 1984.  Dr. Hicklin 
 
            moved his office and there are no records available to 
 
            verify this.  Claimant mailed defendant employer a notice 
 
            April 17, 1984 which was within 90 days of claimant's 
 
            discovery that he has asbestosis.  Because of later 
 
            findings, the undersigned finds it unnecessary to go into 
 
            any detail concerning many issues the parties set out 
 
            because there is one fatal aspect of claimant's case that 
 
            makes all the issues moot.  There is no reason to discuss 
 
            the evidence and draw any conclusions as to whether an 
 
            injury arose out of and in the course of claimant's 
 
            business, whether there is a causal connection to claimant's 
 
            asbestosis to the occupational disease, whether there is a 
 
            timely notice of occupational disease given to the employer, 
 
            whether claimant's petition was timely filed, or the date of 
 
            claimant's last exposure, etc.
 
            
 
                 Claimant testified he has missed no work due to his 
 
            alleged occupational disease.  In fact, claimant emphasized 
 
            he has missed no work except for a possible cold or flu 
 
            which was unrelated to his alleged occupational disease.  
 
            Claimant has not sought any medical help since his October 
 
            6, 1986 visit with John F. Fieselmann, M.D.
 
            
 
                 Claimant has worked full time to the present, working 
 
            40 hours per week.  Claimant has been described by the 
 
            long-time president of defendant employer, Mr. Allen, as a 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            very good, efficient, hard worker who has leadership 
 
            ability.  Mr. Allen could not praise claimant's abilities 
 
            enough.  He said he wished he had ten people who worked like 
 
            claimant.  He related a recent incident in which the 
 
            claimant was carrying a piece of plywood without any trouble 
 
            and claimant refused help in carrying this plywood.  Mr. 
 
            Allen indicated that when he was younger, he could not have 
 
            carried this piece of wood himself.  Mr. Allen related that 
 
            claimant single-handedly completed an insulation job three 
 
            years ago in a 26 story building in downtown Des Moines 
 
            which required much stair climbing.  He indicated he has not 
 
            observed much difference in claimant's health and physical 
 
            ability in the last ten years.  The company's comptroller, 
 
            Dana Kever, also had similar high praise for claimant's 
 
            working ability.  He, likewise, has not seen any change in 
 
            claimant's health or work ability within the last ten years.
 
            
 
                 Dr. Fieselmann's report of January 14, 1987 is very 
 
            noteworthy in that he said that on claimant's one and only 
 
            visit to him on October 6, 1986, claimant's pulmonary 
 
            functions were completely within normal limits; his arterial 
 
            blood gas and EKG were normal, and claimant was in no way 
 
            impaired or disabled from any changes that may be related to 
 
            asbestosis.
 
            
 
                 Claimant said he has not seen a doctor since October 6, 
 
            1986 because he is afraid of what the doctor might say.  
 
            Claimant appears in no way incapacitated and it seems 
 
            strange claimant wouldn't have at least sought a physical 
 
            before his hearing or at least sometime during the last 
 
            three years.  It appears claimant is more afraid that any 
 
            physical would support the contentions of his employer that 
 
            he is above average in his workability, has no problem 
 
            performing his job, nor has any impairment or incapacity to 
 
            perform his job.
 
            
 
                 There is no evidence of any nature that claimant is 
 
            incapacitated from performing his work or from earning equal 
 
            wages in other suitable employment because of an 
 
            occupational disease as provided by 85.84, 1983 Code of 
 
            Iowa.
 
            
 
                 The undersigned cannot understand why this case was 
 
            filed let alone why it came on for trial.  The statute 
 
            cannot be more clear.  Claimant's testimony alone is fatal 
 
            to his case notwithstanding the medical evidence which also 
 
            does not support claimant's contention.
 
            
 
                 Claimant was upset when the odd-lot doctrine was 
 
            eliminated by the undersigned as an issue since it was not 
 
            set out on the hearing assignment order.  Claimant continues 
 
            to raise the point in his brief.  We have no evident 
 
            impairment, disability or working incapacity by the 
 
            claimant.  It is hard to believe where claimant is coming 
 
            from on its legal theories and interpretations of the 
 
            statutes and case law.  This is the type of case which 
 
            should not clog this agency's docket.  This case filing, in 
 
            fact, could very easily invoke the application of Iowa Rule 
 
            of Civil Procedure 80 and section 619.19 of the Iowa Code.
 
            
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
                 It is found that claimant has failed to prove he is 
 
            incapacitated from performing his work and claimant does not 
 
            have a compensable occupational disease as provided under 
 
            Chapter 85A, Code of Iowa 1983.
 
            
 
                 It is further found that all other issues present at 
 
            the time of the hearing are moot as the above finding render 
 
            meaningless any ruling on the other issues that might 
 
            otherwise be favorable to the claimant.
 
            
 
                 Claimant argues that defendants should provide a yearly 
 
            physical for claimant because of a diagnosis in 1984 of 
 
            asbestosis.  The undersigned is not ruling on whether 
 
            claimant should have future medical expenses paid or any 
 
            liability of defendants for paying for any physical.  There 
 
            is no evidence that defendants would refuse payment under 
 
            the facts and circumstances of the case if obligated under 
 
            the law.  Claimant made it clear that he did not want to go 
 
            to a doctor and has not gone to a doctor nor is there 
 
            evidence he will go to a doctor.  There is no evidence that 
 
            he has not gone to a doctor because of fear of a bill not 
 
            being paid, whether through workers' compensation insurance 
 
            or other employr provided health-related insurance.
 
            
 
                                conclusions of law
 
            
 
                    85A.4 Disablement defined.  Disablement as that 
 
                 term is used in this chapter is the event or 
 
                 condition where an employee becomes actually 
 
                 incapacitated from performing his work or from 
 
                 earning equal wages in other suitable employment 
 
                 because of an occupational disease as defined in 
 
                 this chapter in the last occupation in which such 
 
                 employee is injuriously exposed to the hazards of 
 
                 such disease.
 
            
 
                    85A.5 Compensation payable.  All employees 
 
                 subject to the provisions of this chapter who 
 
                 shall become disabled from injurious exposure to 
 
                 an occupational disease herein designated and 
 
                 defined within the conditions, limitations and 
 
                 requirements provided herein, shall receive 
 
                 compensation, reasonable surgical, medical, 
 
                 osteopathic, chiropractic, physical 
 
                 rehabilitation, nursing and hospital services and 
 
                 supplies therefor, and burial expenses as provided 
 
                 in the workers' compensation law of Iowa except as 
 
                 otherwise provided in this chapter.
 
            
 
                    If, however, an employee incurs an occupational 
 
                 disease for which he would be entitled to receive 
 
                 compensation if he were disabled as provided 
 
                 herein, but is able to continue in employment and 
 
                 requires medical treatment for said disease, then 
 
                 he shall receive reasonable medical services 
 
                 therefor.
 
            
 
                 85A.12 Disablement or death following exposure - 
 
                 limitations.  An employer shall not be liable for 
 
                 any compensation for an occupational disease 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
                 unless such disease shall be due to the nature of 
 
                 an employment in which the hazards of such disease 
 
                 actually exist, and which hazards are 
 
                 characteristic thereof and peculiar to the trade, 
 
                 occupation, process, or employment, and such 
 
                 disease actually arises out of the employment, and 
 
                 unless disablement or death results within three 
 
                 years in case of pneumoconiosis, or within one 
 
                 year in case of any other occupational disease, 
 
                 after the last injurious exposure to such disease 
 
                 in such employment, or in case of death, unless 
 
                 death follows continuous disability from such 
 
                 disease commencing within the period above limited 
 
                 for which compensation has been paid or awarded or 
 
                 timely claim made as provided by this chapter and 
 
                 results within seven years after such exposure.
 
            
 
                 It is further concluded:
 
            
 
                 That claimant is not incapacitated from performing his 
 
            work or from earning equal wages and other suitable 
 
            employment because of an occupational disease under the 
 
            provisions of 85A, 1983 Code of Iowa.
 
            
 
                 That claimant is working full-time as an insulator for 
 
            defendant employer.  Claimant has worked for defendant 
 
            employer since 1976.
 
            
 
                 That claimant has missed no work time from his job 
 
            because of exposure to asbestos.
 
            
 
                 That claimant has not sought any medical services since 
 
            his October 6, 1986 visit with Dr. Fieselmann.
 
            
 
                                      order
 
            
 
                 THEREFORE, it is ordered:
 
            
 
                 That claimant take nothing from these proceedings.
 
            
 
                 That claimant shall pay the costs of this action, 
 
            pursuant to Division of Industrial Services Rule 343-4.33.
 
            
 
     
 
            
 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            Signed and filed this _____ day of August, 1990.
 
            
 
                 
 
                                          ______________________________
 
                                          BERNARD J. O'MALLEY
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies to:
 
            
 
            Mr William W Garretson
 
            Attorney at Law
 
            1200 35th St  Ste 206
 
            West Des Moines IA 50265
 
            
 
            Mr D Brian Scieszinski
 
            Attorney at Law
 
            1100 Des Moines Bldg
 
            Des Moines IA 50309
 
            
 
            Mr I John Rossi
 
            Mr James C Davis
 
            Attorneys at Law
 
            Skywalk  Ste 203
 
            700 Walnut
 
            Des Moines IA 50309
 
            
 
            Mr John A Templer Jr
 
            Mr Dean C Mohr
 
            Ms Ann VerHeul
 
            Attorneys at Law
 
            3737 Woodland  Ste 437
 
            West Des Moines IA 50265
 
            
 
            
 
                 
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                          5-2203
 
                                          Filed August 14, 1990
 
                                          Bernard J. O'Malley
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            LEE DAGNILLO,                 :
 
                                          :
 
                 Claimant,                :
 
                                          :        File No. 806001
 
            vs.                           :
 
                                          :
 
            IOWA ASBESTOS COMPANY,        :     A R B I T R A T I O N
 
                                          :
 
                 Employer,                :        D E C I S I O N
 
                                          :
 
            and                           :
 
                                          :
 
            IOWA CONTRACTORS WORKERS'     :
 
            COMPENSATION GROUP,           :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
            5-2203
 
            Claimant alleged an occupational disease, asbestosis, which 
 
            he first discovered in 1984.  Claimant has continued to work 
 
            full-time as an insulator and has not missed any time from 
 
            work.  Claimant is not incapacitated under provisions of 
 
            85A, 1983 Code of Iowa.  Defendants had high praise for 
 
            claimant and his fast and efficient work ability.  Claimant 
 
            single handedly completed a job on a 26 story downtown Des 
 
            Moines building within last three years.  Claimant found not 
 
            to have occupational disease.  Many other issues were found 
 
            moot in light of above finding.
 
            
 
 
         
 
 
 
 
 
 
 
 
 
 
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         GLADYS E. SMIDT,
 
         
 
              Claimant,                               File No. 806002
 
         
 
         VS.
 
                                                     A P P E A L
 
         JOSEPH C. WEST, BERT C. HANSON,.
 
         and H AND W COMPANY, a
 
         partnership,
 
                                                     D E C I S I 0 N
 
              Employer,
 
         
 
              Defendant.
 
                                                                
 
         
 
                                                           
 
                                        
 
                              STATEMENT OF THE CASE
 
                                        
 
              Claimant appeals from an arbitration decision granting 
 
         medical benefits but denying any type of disability benefits as a 
 
         result of an alleged injury on January 22, 1985.
 
         
 
              The record on appeal consists of the transcript of the 
 
         arbitration hearing and claimant's exhibits 1 through 17.  Both 
 
         parties filed briefs on appeal.
 
                                        
 
                                      ISSUES
 
                                        
 
              Claimant states the following issues on appeal:
 
         
 
              I.  Whether the Deputy Industrial Commissioner erred in 
 
              finding that the work injury of January 22, 1985, was not a 
 
              cause of temporary or permanent disability from work?
 
              
 
              II. Whether the Deputy Industrial Commissioner erred in 
 
              finding that as no weekly benefits were awarded, the issue 
 
              of rate and penalty benefits under Iowa Code Section 86.13 
 
              is moot?
 
              
 
                              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.
 
         
 
         SMIDT VS. JOSEPH C. WEST, ET AL.
 
         Page 2
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         
 
                                     ANALYSIS
 
                                        
 
              The analysis of the evidence in conjunction with the law in 
 
         the arbitration decision is adopted.
 
                                        
 
                                 FINDINGS OF FACT
 
                                        
 
              l.' On January 22, 1985, claimant suffered an injury to the 
 
         right shoulder from a fall at work which arose out of and in the 
 
         course of her employment with Joseph C. West.
 
         
 
              2.Claimant returned to work the next day following the 
 
         accident.
 
         
 
              3. Claimant left the employment of Joseph West at the end of 
 
         January 1985.
 
         
 
              4. After leaving Joseph West's employ claimant, in April 
 
         1985, sought medical treatment from W. J. Wolbrink, M.D., who 
 
         treated claimant with medication and physical therapy.
 
         
 
              5. Dr. Wolbrink opined that claimant had suffered.no. 
 
         permanent impairment from her shoulder injury.
 
         
 
              6. It could not be found that the work injury of January 22, 
 
         1985, was a cause of temporary or permanent disability from work.
 
         
 
              7. As a result of the injury of January 22, 1985, claimant 
 
         incurred medical expenses listed in the prehearing report except 
 
         for one-half of the Park Clinic charges for September 30, 1985, 
 
         and the charges for the office calls at the Park Clinic on 
 
         October 4, 1985 and October 31, 1985 and the x-ray of July 9, 
 
         1985.
 
         
 
                                CONCLUSION OF LAW
 
                                        
 
              Claimant has established by a preponderance of the evidence 
 
         entitlement to the medical benefits awarded below.
 
         
 
              WHEREFORE, the decision of the deputy is affirmed.
 
                                        
 
                                      ORDER
 
                                        
 
              THEREFORE, it is ordered:
 
         
 
              That defendant shall pay to claimant the total sum of seven 
 
         hundred sixty-five and 96/100 dollars ($765.96) for medical 
 
         expenses as a result of the work injury on January 22, 1985, 
 
         except that if claimant has not actually paid any of these 
 
         expenses listed in the prehearing report, defendant shall pay the 
 
         medical provider directly.
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         
 
         SMIDT VS. JOSEPH C. WEST, ET AL.
 
         Page 3
 
         
 
         
 
              That claimant pay the costs of this appeal including 
 
         transcription  of the arbitration hearing.
 
         
 
              That defendant shall pay all other costs of this action 
 
         pursuant to Division of Industrial Services Rule 343-4.33 and 
 
         specifically those requested by claimant in the prehearing
 
         
 
         
 
         Signed and filed this 27th day of July, 1989.
 
         
 
         
 
         
 
         
 
         
 
                                         DAVID E. LINQUIST
 
                                         INDUSTRIAL COMMISSIONER
 
         
 
         Copies To:
 
         
 
         Ms. Iris J. Post
 
         Mr. Henry A. Harmon
 
         Attorneys at Law
 
         2222 Grand Avenue
 
         P.O. Box 10434
 
         Des Moines, Iowa 50306
 
         
 
         Mr. Kurt John Stoebe
 
         Attorney at Law
 
         P.O. Box 365
 
         Humboldt, Iowa 50548
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
 
                                            
 
 
 
 
 
 
 
 
 
 
 
                                            2500, 1803
 
                                            Filed July 27, 1989
 
                                            DAVID E. LINQUIST
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         GLADYS E. SMIDT,
 
         
 
              Claimant,                            File No. 806002
 
         
 
         VS.
 
                                                    A P P E A L
 
         JOSEPH C. WEST, BERT C. HANSON
 
         and H AND W COMPANY, a
 
         partnership,                               D E C I S I 0 N
 
         
 
              Employer,
 
              Defendant.
 
         
 
         
 
         
 
         
 
         2500, 1803
 
         
 
         
 
              Claimant's award of medical benefits and denial of 
 
         disability
 
         benefits was affirmed on appeal.
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                   BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         GLADYS E. SMIDT,
 
         
 
               Claimant,
 
                                                    FILE NO. 806002
 
         vs.
 
                                                 A R B I T R A T I 0 N
 
         
 
         JOSEPH C. WEST, BERT C. HANSON,            D E C I S I O N
 
         and H AND W COMPANY,
 
         PARTNERSHIP,
 
         
 
              Employer,
 
              Defendant.
 
         
 
         
 
         
 
         
 
                              STATEMENT OF THE CASE
 
         
 
              This is a proceeding in arbitration brought by Gladys E. 
 
         Smidt, claimant, against Joseph C. West and Bert C. Hanson, 
 
         partners in a partnership known as H and W Company, employer 
 
         (hereinafter referred to as West) (the partnership is uninsured), 
 
         for workers compensation benefits as a result of an alleged 
 
         injury on January 22, 1985.  On March 24, 1988, a hearing was 
 
         held on claimant's petition and the matter was considered fully 
 
         submitted at the close of this hearing.
 
         
 
              The parties have submitted a prehearing report of contested 
 
         issues and stipulations which was approved and accepted as a part 
 
         of the record of this case at the time of hearing.  Oral 
 
         testimony was received during the hearing from claimant and the 
 
         following witnesses:  Diane Hanson, Rudolph Baxa, Marvin Oyer and 
 
         Joseph West.  The exhibits received into the evidence at the 
 
         hearing are listed in the prehearing report.  According to the 
 
         prehearing report, the parties have stipulated to the following 
 
         matters:
 
         
 
              1.  At the time of the alleged injury, an employer-employee 
 
         relationship existed between claimant and West;
 
         
 
              2.  Claimant was last employed on January 31, 1985;
 
         
 
              3.  At the time of the alleged injury, claimant was married 
 
         and entitled to two exemptions on her tax returns; and,
 
         
 
              4.  The fees charged and the medical bills submitted by 
 
         claimant in hearing were fair and reasonable but the issue of 
 
         their causal connection to any work injury is a disputed issue 
 
         to be decided herein.
 
         
 
                                     ISSUES
 
         
 

 
         
 
         
 
         
 
         SMIDT V. JOSEPH C. WEST, BERT C. HANSON, and H AND W COMPANY
 
         Page   2
 
         
 
              The parties submitted the following issues for determination 
 
         in this decision:
 
         
 
              I.  Whether claimant received an injury arising out of or in 
 
         the course of employment;
 
         
 
             II.  Whether there is a causal relationship between the work 
 
         injury and the claimed disability;
 
         
 
            III.  The extent of claimants entitlement to weekly disability 
 
         benefits;
 
         
 
             IV.  Claimant's rate of compensation in the event of an award 
 
         of weekly benefits;
 
         
 
              V.  The extent of claimant's entitlement to medical benefits 
 
         under Iowa Code section 85.27; and,
 
         
 
             VI.  The extent of claimant's entitlement to penalty benefits 
 
         under Iowa Code section 86.13.
 
         
 
                             SUMMARY OF THE EVIDENCE
 
         
 
              The following is a summary of evidence presented in this 
 
         case.  For the sake of brevity, only the evidence most pertinent 
 
         to this decision is discussed.  Whether or not specifically 
 
         referred to in this summary, all of the evidence received at the 
 
         hearing was considered in arriving at this decision.  As will be 
 
         the case in any attempted summarization, conclusions about what 
 
         the evidence offered may show are inevitable.  Such conclusions, 
 
         if any, in the following summary should be considered as 
 
         preliminary findings of fact.
 
         
 
              Claimant testified that she worked at a motel owned by West 
 
         at the time of the work injury from September, 1983 until January 
 
         31, 1985.  During this time claimant was a maid assigned to 
 
         cleaning rooms at the motel.  Claimant testified that she 
 
         normally worked in the morning hours approximately 30 to 35 hours 
 
         per week at the rate of $3.45 per hour at the time of the alleged 
 
         injury.
 
         
 
              Claimant and her daughter testified that on January 22, 
 
         1985, while cleaning rooms, claimant slipped and fell in the 
 
         parking and sidewalk areas adjacent to the rooms she was 
 
         cleaning.  Claimant said that she struck her entire right side.  
 
         Claimant said that Joe West, the owner/manager, was out of town 
 
         at the time and she reported the incident to Rudy Baxa, the 
 
         person she claimed was placed in charge when West was absent.  
 
         Claimant testified that she was transported then to the hospital 
 
         by her daughter.  According to hospital records, claimant 
 
         received treatment at that time for a contusion to the right 
 
         shoulder after a fall when she "tripped on a pile of wire at 
 
         work."  X-rays of her shoulder taken at the time revealed no 
 
         abnormalities and claimant was released with a prescription for 
 
         medication and orders to return within one week.  Claimant was 
 
         seen by a family physician two more times in early February, 
 
         1985, for the right shoulder problem and she was fitted at one 
 
         time with a shoulder sling.  Claimant did not miss work following 
 
         the accident and continues working with the assistance from her 
 
         daughter in performing the more physical work at the motel.
 

 
         
 
         
 
         
 
         SMIDT V. JOSEPH C. WEST, BERT C. HANSON, and H AND W COMPANY
 
         Page   3
 
         
 
         
 
              Claimant then left the employment of West at the end of 
 
         January, 1985.  Claimant has not returned to work since.  
 
         Claimant testified that she submitted bills to West and West 
 
         refused to pay for them.  The circumstances of claimant's leaving 
 
         West's employ eventually became a litigated matter before the Job 
 
         Service Division of the Iowa Department of Employment Services 
 
         when claimant applied for unemployment compensation benefits.  
 
         According to the unemployment compensation hearing officers' 
 
         decision, claimant contended that she left her employment at West 
 
         due to unsuitable working conditions.  The hearing officer 
 
         decided that although claimant's working conditions were not 
 
         ideal, they were not unsafe, unlawful, intolerable or detrimental 
 
         conditions so as to consider the leaving as involuntary.  The 
 
         hearing officer held that claimant left West's employ due to 
 
         dissatisfaction with her working environment and labeled the 
 
         termination as a voluntary quit in denying benefits.  This 
 
         decision was not appealed and became the final agency decision.
 
         
 
              Claimant testified that after leaving West's employ she 
 
         continued to have problems.  In April, 1985, she sought treatment 
 
         from W. J. Wolbrink, M.D., a surgeon.  Dr. Wolbrink, in his 
 
         reports, indicates that claimant complained to him of a sore 
 
         right shoulder at the time.  No specific injury was reported.  
 
         Claimant testified that she told Dr. Wolbrink of the January, 
 
         1985, fall at work.  Dr. Wolbrink notes in a report in evidence 
 
         that although he normally keeps good notes on any reported 
 
         injury, he could have failed to mention the injury in his office 
 
         notes.  Dr. Wolbrink states that it is possible that claimant's 
 
         sore right shoulder problems were related to a January, 1985, 
 
         tall.  Dr. Wolbrink treated claimant over the next few months 
 
         with medication and physical therapy.  He states that claimant 
 
         reached maximum healing of the right shoulder problems on 
 
         September 30, 1985 and from an examination of claimant at that 
 
         time opined that claimant had suffered no permanent partial 
 
         impairment from these problems.
 
         
 
              In July, 1985, claimant complained to Dr. Wolbrink of right 
 
         elbow problems which was diagnosed by Dr. Wolbrink as olecranon 
 
         bursitis.  Dr. Wolbrink does not believe this condition is work 
 
         related.  Claimant injured her hip in a fall in April, 1987, 
 
         which claimant admits is unrelated to her work injury in this 
 
         case.
 
         
 
              Claimant denies any prior shoulder problems but admits to a 
 
         prior work injury to her low back which has resulted in permanent 
 
         partial disability.  Claimant has received a settlement front a 
 
         prior employer as a result of that back injury.
 
         
 
              Dr. Wolbrink reports that his office visits with claimant on 
 
         July 9, 1985, September 30, 1985, October 4, 1985, and October 
 
         31, 1985 are not related to the alleged injury of January, 1985.
 
         
 
              Claimant's appearance and demeanor at the hearing indicated 
 
         that she was testifying truthfully.
 
         
 
                           APPLICABLE LAW AND ANALYSIS
 
         
 
              I.  Claimant has the burden of proving by a preponderance of 
 
         the evidence that claimant received an injury which arose out of 
 

 
         
 
         
 
         
 
         SMIDT V. JOSEPH C. WEST, BERT C. HANSON, and H AND W COMPANY
 
         Page   4
 
         
 
         and in the course of employment.  The words "out of" refer to the 
 
         cause or source of the injury.  The words "in the course of" 
 
         refer to the time and place and circumstances of the injury.  
 
         See Cedar Rapids Community Sch. v. Cady, 278 N.W.2d 298 (Iowa 
 
         1979); Crowe v. DeSoto Consol. Sch. Dist., 246 Iowa 402, 68 
 
         N.W.2d 63 (1955).  An employer takes an employee subject to any 
 
         active of dormant health impairments, and a work connected injury 
 
         which more than slightly aggravates the condition is considered 
 
         to be a personal injury.  Ziegler v. United States Gypsum Co., 
 
         252 Iowa 613, 620, 106 N.W.2d 591 (1960) and cases cited 
 
         therein.
 
         
 
              Claimant has shown by her credible testimony that she has 
 
         suttered a work injury from a fall at work at the time alleged in 
 
         her petition.  Claimant's testimony is consistent with hospital 
 
         records at that time.
 
         
 
             II.  The claimant has the burden of proving by a 
 
         preponderance of the evidence that the work injury is a cause of 
 
         the claimed disability.  A disability may be either temporary or 
 
         permanent.  In the case of a claim for temporary disability, the 
 
         claimant must establish that the work injury was a cause of 
 
         absence from work and lost earnings during a period of recovery 
 
         from the injury.  Generally, a claim of permanent disability 
 
         invokes an initial determination of whether the work injury was a 
 
         cause of permanent physical impairment or permanent limitation in 
 
         work activity. however, in some instances, such as a job transfer 
 
         caused by a work injury, permanent disability benefits can be 
 
         awarded without a showing of a causal connection to a physical 
 
         change of condition.  Blacksmith v. All-American, Inc., 290 
 
         N.W.2d 348, 354 (Iowa 1980); McSpadden v. Big Ben Coal Co., 288 
 
         N.W.2d 181 (Iowa 1980).
 
         
 
              The question of causal connection is essentially within the 
 
         domain of expert medical opinion.  Bradshaw v. Iowa Methodist 
 
         Hospital, 251 Iowa 375, 101 N.W.2d 167 (1960).  The opinion of 
 
         experts need not be couched in definite, positive or unequivocal 
 
         language and the expert opinion may be accepted or rejected, in 
 
         whole or in part, by the trier of fact.  Sondag v. Ferris 
 
         Hardware, 220 N.W.2d 903 (Iowa 1974).  The weight to be given to 
 
         such an opinion is for the finder of fact, and that may be 
 
         affected by the completeness of the premise given the expert and 
 
         other surrounding circumstances.  Bodish v. Fischer, Inc., 257 
 
         Iowa 516, 133 N.W.2d 867 (1965).
 
         
 
              Furthermore, if the available expert testimony is 
 
         insufficient alone to support a finding of causal connection, 
 
         such testimony may be coupled with nonexpert testimony to show 
 
         causation and be sufficient to sustain an award.  Giere v. Aase 
 
         Haugen Homes, Inc., 259 Iowa 1065, 146 N.W.2d 911, 915 (1966).   
 
         Such evidence does not, however, compel an award as a matter of 
 
         law.  Anderson v. Oscar Mayer & Co., 217 N.W.2d 531, 536 (Iowa 
 
         1974).  To establish compensability, the injury need only be a 
 
         significant factor, not be the only factor causing the claimed 
 
         disability.  Blacksmith, 290 N.W.2d 348, 354.  In the case of a 
 
         preexisting condition, an employee is not entitled to recover for 
 
         the results of a preexisting injury or disease but can recover 
 
         for an aggravation thereof which resulted in the disability found 
 
         to exist.   Olson v. Goodyear Service Stores, 255 Iowa 1112, 125 
 
         N.W.2d 251 (1963).
 

 
         
 
         
 
         
 
         SMIDT V. JOSEPH C. WEST, BERT C. HANSON, and H AND W COMPANY
 
         Page   5
 
         
 
         
 
              In the case sub judice, the evidence fails to demonstrate 
 
         that the work injury was a cause of any period of disability, 
 
         temporary or permanent.  Claimant returned to work and received 
 
         the assistance of her daughter.  However, the fact remains that 
 
         she did return to work and did not leave work in January, 1985, 
 
         as a result of her work injury.  The decision of the Job Service 
 
         hearing officer fails to demonstrate any physical complaint or 
 
         that claimant was physically unable to work due to any work 
 
         injury or chronic shoulder problems.  Claimant's inability to 
 
         lift or bend at that time was the result of a prior work injury 
 
         to her back.  The opinions of Dr. Wolbrink that claimant has not 
 
         suffered permanent impairment and that the elbow problems are not 
 
         work related are uncontroverted.  Matters of causal connection 
 
         and extent of physical impairment are largely a matter of medical 
 
         expert opinion.  Claimant has not been demonstrated to possess 
 
         any medical knowledge and her views as to the extent of her 
 
         disability and the causation of that disability cannot be given 
 
         much weight.
 
         
 
              Pursuant to Iowa Code section 85.27, claimant is entitled to 
 
         either an order directing the defendants to pay reasonable 
 
         medical expenses for treatment of a work injury or to an order of 
 
         reimbursement if those expenses have been paid.  Krohn v. State, 
 
             N.W.2d      (Iowa 1988), decision filed March 16, 1988.
 
         
 
              Although claimant has not shown the injury in this case 
 
         caused disability, it certainly necessitated medical treatment. 
 
         Claimant was credible in giving her testimony of the events 
 
         leading up to the treatments both in February and April of 1985.  
 
         Also the views of Dr. Wolbrink that his treatment of the right 
 
         shoulder is possibly causally connected to the work injury is 
 
         uncontroverted.  Claimant has by the greater weight of evidence 
 
         shown entitlement to reimbursement for the medical expenses 
 
         listed in the prehearing report, except for the visits and 
 
         related treatment referred to by Dr. Wolbrink as not work 
 
         related. one exception is made for the visit of September 30, 
 
         1985.  Although Dr. Wolbrink stated that this visit was not work 
 
         related, on a later occasion he stated that he performed an 
 
         examination of claimant on September 30, 1985 and found no 
 
         permanent partial impairment from this examination.  Therefore, 
 
         one half of the charges for that visit will be awarded.  All of 
 
         the medical mileage expenses requested appears reimbursable.  
 
         They were incurred for transportation to an office visit 
 
         considered worked related by Dr. Wolbrink.  Therefore, excluding 
 
         the October 4, 1985 and October 31, 1985 visits to the Park 
 
         Clinic and also excluding the July 9, 1985 x-ray of claimant's 
 
         elbow, but including one half of the September 30, 1985 Park 
 
         Clinic charge, the total reimbursable expenses amount to 
 
         $765.96.
 
         
 
              As no weekly benefits were awarded, the issue of rate and 
 
         penalty benefits under Iowa Code section 86.13 is moot.  The 
 
         provisions of Iowa Code section 86.13 and 85.30 allowing the 
 
         commissioner to award penalities and interest for delays in 
 
         payment are only applicable to weekly benefits, not medical 
 
         expenses.  Klein v. Furnas Elec. Co., 384 N.W.2d 370, 375 (Iowa 
 
         1986).
 
         
 
                                 FINDINGS OF FACT
 

 
         
 
         
 
         
 
         SMIDT V. JOSEPH C. WEST, BERT C. HANSON, and H AND W COMPANY
 
         Page   6
 
         
 
         
 
              1.  Claimant was a credible witness.
 
         
 
              2.  On January 22, 1985, claimant suffered an injury to the 
 
         right shoulder from a fall at work which arose out of and in the 
 
         course of her employment with West.
 
         
 
              3.  It could not be found that the work injury of January 
 
         22, 1985, was a cause of temporary or permanent disability from 
 
         work.
 
         
 
              4.  As a result of the injury of January 22, 1985, claimant 
 
         incurred medical expenses listed in the prehearing report except 
 
         for one half of the Park Clinic charges for September 30, 1985 
 
         and the charges for the office calls in the Park Clinic on 
 
         October 4, 1985 and October 31, 1985 and the x-ray of July 9, 
 
         1985.
 
         
 
         
 
                                CONCLUSIONS OF LAW
 
         
 
              Claimant has established by a preponderance of the evidence 
 
         entitlement to the medical benefits awarded below.
 
         
 
                                      ORDER
 
         
 
              1.  Defendants shall pay to claimant the total sum of seven 
 
         hundred sixty-five and 96/100 dollars ($765.96) for medical 
 
         expenses as a result of the work injury on January 22, 1985, 
 
         except that if claimant has not actually paid any of these 
 
         expenses listed in the prehearing report, defendants shall pay 
 
         the medical provider directly.
 
         
 
              2.  Defendants shall pay the costs of this action pursuant 
 
         to Division of Industrial Services Rule 343-4.33 and specifically 
 
         those requested by claimant in the prehearing report.
 
         
 
              3.  Defendants shall file activity reports on the payment of 
 
         this award as requested by this agency pursuant to Division of 
 
         Industrial Services Rules 343-3.1.
 
         
 
         
 
              Signed and filed this 16th day of June, 1988.
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
                                         LARRY P. WALSHIRE
 
                                         DEPUTY INDUSTRIAL COMMISSIONER
 
         
 
         
 
         Copies To:
 
         
 
         Ms. Iris J. Post
 
         Mr. Henry A. Harmon
 

 
         
 
         
 
         
 
         SMIDT V. JOSEPH C. WEST, BERT C. HANSON, and H AND W COMPANY
 
         Page   7
 
         
 
         Attorneys at Law
 
         2222 Grand Ave.
 
         P. 0. Box 10434
 
         Des Moines, Iowa 50306
 
         
 
         Mr. Kurt John Stoebe
 
         Attorney at Law
 
         P. 0. Box 365
 
         Humboldt, Iowa 50548
 
         
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                                1800; 2500
 
                                                Filed June 16, 1988
 
                                                LARRY P. WALSHIRE
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         GLADYS E. SMIDT,
 
         
 
              Claimant,
 
         
 
                                                    FILE NO. 806002
 
         vs.
 
         
 
                                                A R B I T R A T I 0 N
 
         JOSEPH C. WEST, BERT C. HANSON,
 
         and H AND W COMPANY, A                     D E C I S I 0 N
 
         PARTNERSHIP,
 
         
 
              Employer,
 
              Defendant.
 
         
 
         
 
         
 
         1800; 2500
 
         
 
              Claimant demonstrated a work injury, but failed to show it 
 
         was a cause of disability.  Medical benefits awarded.