BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                                          :
 
            LARRY G. MERCER,              :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :      File No. 806573
 
            VAN WYK, INC.,                :
 
                                          :        A P P E A L
 
                 Employer,                :
 
                                          :      D E C I S I O N
 
            and                           :
 
                                          :
 
            GREAT WEST CASUALTY COMPANY,  :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
            
 
                              STATEMENT OF THE CASE
 
            
 
                 Defendants appeal from an arbitration decision filed 
 
            December 6, 1989 awarding claimant 40 percent permanent 
 
            partial disability benefits on account of an injury 
 
            allegedly sustained on September 3, 1985.  The record on 
 
            appeal consists of the transcript of the arbitration hearing 
 
            and of joint exhibits 1 through 17.
 
            
 
                                      ISSUES
 
            
 
                 Defendants state the issues on appeal as:  1) Whether 
 
            the claimant sustained his burden of proof that a work 
 
            incident of September 3, 1985 caused any disability; 2) 
 
            whether claimant has sustained his burden of proof to show 
 
            that his 1987 back condition and surgery are causally 
 
            connected to his alleged September 3, 1985 work incident 
 
            while working with Van Wyk, Inc.; 3) whether claimant has 
 
            proved that he has suffered a 40 percent industrial 
 
            disability as a result of his alleged work injury of 
 
            September 3, 1985; 4) whether it is proper to order 
 
            defendants to pay interest on judgments entered against the 
 
            claimant for medical bills; and 5) whether defendants are 
 
            required to reimburse Title XIX for amounts paid by Title 
 
            XIX rather than the actual medical expenses incurred.
 
            
 
                              REVIEW OF THE EVIDENCE
 
            
 
                 The arbitration decision filed December 6, 1989 
 
            adequately and accurately reflects the pertinent evidence.  
 
            It will not be totally reiterated.  The following 
 
            particulars are added, however.
 
            
 
                 Dr. MacRandall released claimant for work on June 13, 
 
            1986.  Dr. MacRandall had then assigned claimant an 18 
 
            percent body as a whole impairment rating as a result of his 
 
            L3/L4 surgery.  He restricted claimant to lifting from 30 to 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            40 pounds; advised claimant to stop frequently while driving 
 
            and advised claimant to neither load nor unload his truck.  
 
            Dr. MacRandall next saw claimant on May 14, 1987.  Claimant 
 
            then gave a history of having done well subsequent to his 
 
            December 1985 surgery and work release of June 1986 until 
 
            about one month earlier when he began experiencing low back 
 
            and left leg symptoms, progressively.  The left leg had 
 
            become very floppy and noncontrollable about two weeks 
 
            earlier.  Drs. Shaffer and Mysnyk saw claimant on May 22, 
 
            1987.  They also reported history of good relief from the 
 
            1985 surgery until the past one and a half months when 
 
            claimant experienced low back and left lateral thigh and leg 
 
            pain.  The doctors' note indicates that the pain began 
 
            "insidiously."
 
            
 
                                  APPLICABLE LAW
 
            
 
                 The citations of law in the arbitration decision are 
 
            appropriate to the issues in the evidence with the following 
 
            additions.
 
            
 
                 The claimant has the burden of proving by a 
 
            preponderance of the evidence that the injury is a proximate 
 
            cause of the disability on which the claim is based.  A 
 
            cause is proximate if it is a substantial factor in bringing 
 
            about the result; it need not be the only cause.  A 
 
            preponderance of the evidence exists when the causal 
 
            connection is probable rather than merely possible.  
 
            Blacksmith v. All-American, Inc., 290 N.W.2d 348 (Iowa 
 
            1980); Holmes v. Bruce Motor Freight, Inc., 215 N.W.2d 296 
 
            (Iowa 1974).
 
            
 
                 A treating physician's testimony is not entitled to 
 
            greater weight as a matter of law than that of a physician 
 
            who later examines claimant in anticipation of litigation.  
 
            Weight to be given testimony of physician is a fact issue to 
 
            be decided by the industrial commissioner in light of the 
 
            record the parties develop.  In this regard, both parties 
 
            may develop facts as to the physician's employment in 
 
            connection with litigation, if so; the physician's 
 
            examination at a later date and not when the injuries were 
 
            fresh; his arrangement as to compensation; the extent and 
 
            nature of the physician's examination; the physician's
 
            
 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            education, experience, training, and practice; and all other 
 
            factors which bear upon the weight and value of the 
 
            physician's testimony.  Both parties may bring all this 
 
            information to the attention of the factfinder as either 
 
            supporting or weakening the physician's testimony and 
 
            opinion.  All factors go to the value of the physician's 
 
            testimony as a matter of fact not as a matter of law.  
 
            Rockwell Graphic Systems, Inc. v. Prince, 366 N.W.2d 176, 
 
            192 (Iowa 1985).
 
            
 
                 Apportionment of disability between a preexisting 
 
            condition and an injury is proper only when some 
 
            ascertainable portion of the ultimate industrial disability 
 
            existed independently before an employment-related 
 
            aggravation of disability occurred.  Bearce v. FMC Corp., 
 
            465 N.W.2d 531 (Iowa 1991); Varied Enterprises, Inc. v. 
 
            Sumner, 353 N.W.2d 407 (Iowa 1984).  Hence, where employment 
 
            is maintained and earnings are not reduced on account of a 
 
            preexisting condition, that condition may not have produced 
 
            any apportionable loss of earning capacity.  Bearce, 465 
 
            N.W.2d at 531.  Likewise, to be apportionable, the 
 
            preexisting disability must not be the result of another 
 
            injury with the same employer for which compensation was not 
 
            paid.  Tussing v. George A. Hormel & Co., 461 N.W.2d 450 
 
            (Iowa 1990).
 
            
 
                 The burden of showing that disability is attributable 
 
            to a preexisting condition is placed upon the defendants.  
 
            Where evidence to establish a proper apportionment is 
 
            absent, the defendants are responsible for the entire 
 
            disability that exists.  Bearce, 465 N.W.2d at 536-37; 
 
            Sumner, 353 N.W.2d at 410-11.
 
            
 
                                     ANALYSIS
 
            
 
                 Defendants' statement of the issues on appeal suggest 
 
            that defendants are not disputing whether claimant sustained 
 
            an injury which arose out of and in the course of his 
 
            employment on September 3, 1985.  As that point is unclear, 
 
            it is expressly stated that claimant has established an 
 
            injury arising out of and in the course of his employment on 
 
            September 3, 1985.  Claimant's undisputed testimony was of a 
 
            work incident on that date wherein he experienced pain in 
 
            his low back after lifting a substantial weight in the 
 
            course of his employment.  Claimant, who apparently had been 
 
            symptom free until that incident, then experienced symptoms 
 
            sufficient that he consulted with a chiropractor who 
 
            subsequently referred him to a medical doctor who then 
 
            performed back surgery.  Such chain of events is sufficient 
 
            to establish that the incident of September 3, 1985 
 
            constituted an injury to claimant's low back arising out of 
 
            and in the course of claimant's employment.  
 
            
 
                 Defendants expressly argue that claimant has not 
 
            sustained his burden of establishing that the injury of 
 
            September 3, 1985 caused any disability.  Defendants 
 
            apparently rely on the statement of Dr. Van Beek that 
 
            claimant's back surgery of September 24, 1985 constituted a 
 
            continuing irritation caused by his 1980 surgery and injury.  
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            Dr. Van Beek stated that when one has back surgery, the 
 
            resulting trauma to the area does not allow for complete 
 
            recovery of structures and tissue and, therefore, surgery is 
 
            often necessary in the area four to five years following 
 
            initial surgery.  Dr. MacRandall also made statements 
 
            regarding the causation for the L3/L4 disc herniation.  Dr. 
 
            MacRandall reported that quite commonly on a historic basis 
 
            where there has been weakness such as the bulging at L3/L4 
 
            revealed on claimant's 1980 CT scan, the disc may rupture at 
 
            any time in the ensuing years.  The doctor further stated:  
 
            "I feel that he [claimant] had had a weakness dating back to 
 
            1980 and just completed the event of the rupture in the 
 
            September, 1985 incident."  (Joint Exhibit 8, page 4)  The 
 
            completion of the rupture, that is, the rupture on September 
 
            3, 1985 did not occur in a vacuum however.  The rupture 
 
            occurred in the course of claimant's employment while 
 
            claimant was performing his duties of unloading boxed meat.  
 
            Hence, the employment activity was a proximate cause of the 
 
            September 3, 1985 disc rupture which rupture must be seen as 
 
            a significant aggravation of claimant's past condition of a 
 
            bulging disc at L3/L4.  
 
            
 
                 The record further establishes that claimant clearly 
 
            had disability causally related to his September 3, 1985 
 
            disc rupture, his subsequent surgery at L3/L4 and his 
 
            resulting residuals.  On April 18, 1986, Dr. MacRandall 
 
            assigned claimant an 18 percent body as a whole permanent 
 
            partial impairment rating.  On June 13, 1986 Dr. MacRandall 
 
            returned claimant to work with a 30 to 40 pound lifting 
 
            restriction.  He also apparently advised claimant to make 
 
            frequent stops while driving and to avoid loading and 
 
            unloading.  Such advice clearly placed claimant in a 
 
            different status as far as earnings capacity than he had 
 
            immediately prior to September 3, 1985.  Indeed, Dr. Van 
 
            Beek, the employer's chiropractic preemployment examining 
 
            physician, had on December 31, 1984, recommended that 
 
            claimant be hired as a trucker and noted claimant's lack of 
 
            reoccurring spinal problems in the five years then 
 
            subsequent to his 1980 surgery.  The employer refused to 
 
            rehire claimant on his release subsequent to the 1985 
 
            surgery.  Such demonstrates that the employer, itself, 
 
            subjectively perceived claimant's condition subsequent to 
 
            his September 3, 1985 work injury as significantly different 
 
            than his condition at both the time of his hiring in 
 
            December 1984 and immediately prior to the September 3, 1985 
 
            work injury.  Claimant clearly has sustained his burden of 
 
            proof that his work injury of September 3, 1985 caused 
 
            ascertainable disability.
 
            
 
                 Defendants prevail on the issue of whether claimant has 
 
            sustained his burden of proof to show that his 1987 back 
 
            condition and surgery are causally connected to his alleged 
 
            September 3, 1985 work injury.  Dr. Weinstein does relate 
 
            all of claimant's surgeries, that is, the 1980 surgery, the 
 
            1985 surgery and the 1987 surgery to claimant's degenerative 
 
            disease process in his spine.  He interconnects all three 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            surgeries as part of the same disease process.  That appears 
 
            to be a matter of medical causation.  The only evidence that 
 
            Dr. Weinstein relates claimant's 1987 surgery to his 
 
            September 3, 1985 work incident is the July 7, 1988 report 
 
            to claimant issued under signature of Ted Wernimont, MFW, 
 
            and Dr. Weinstein.  That letter states:  "There is no doubt 
 
            in our mind that this injury was work related and that 
 
            workmens' [sic] compensation benefits are due you for a 
 
            healing period..."  The letter further states:  "We feel 
 
            that the history of your injury, the medical evidence, and 
 
            the circumstances surrounding your injury leave no doubt 
 
            that this injury was work related...."  That letter is given 
 
            lesser weight in that it appears inconsistent with Dr. 
 
            Weinstein's testimony at deposition.  At deposition, Dr. 
 
            Weinstein took pains to avoid stating that the 1985 incident 
 
            had produced the need for the 1987 surgery.  Indeed, Dr. 
 
            Weinstein then expressly stated that something happened in 
 
            1987 to bring about the 1987 condition.  That statement 
 
            appears to be consistent with the history claimant's 
 
            physicians recorded in 1987.  Drs. MacRandall, Shaffer and 
 
            Mysnyk all reported that claimant had done well subsequent 
 
            to his June 13, 1986 work release until approximately one 
 
            month prior to May 14, 1987.  Such would be consistent with 
 
            attainment of maximum medical improvement subsequent to the 
 
            1985 injury and then redevelopment of a non-related 
 
            condition either related to the underlying degenerative 
 
            disease process or related to some incident in early spring 
 
            1987.  It is further noted that Drs. Shaffer and Mysnyk 
 
            reported claimant's pain as coming on insidiously.  
 
            Webster's Ninth New Collegiate Dictionary at pages 625 and 
 
            626 notes that insidiously as applied to a disease means the 
 
            disease develops so gradually as to be well established 
 
            before becoming apparent.  That definition and use of the 
 
            adverb insidiously by Drs. Shaffer and Mysnyk again is more 
 
            consistent with claimant's 1987 condition resulting from the 
 
            underlying disease process and not from the 1985 work 
 
            injury.  The comments in the July 1988 report that refer to 
 
            the condition as "work related" does not expressly relate 
 
            back to the September 1985 work injury.  Knowledge of the 
 
            September 1985 work injury sufficient to issue an opinion as 
 
            to its causal relationship to claimant's overall condition 
 
            including his 1987 manifestation, also is not demonstrated.  
 
            It can appropriately be surmised that the term references to 
 
            work activities claimant undertook subsequent to his June 
 
            1986 work release as well as work activities on September 3, 
 
            1985.  For these reasons also the weight properly to be 
 
            given to the July 1988 report is minuscule.  Claimant has 
 
            not sustained his burden of showing that his 1987 back 
 
            condition and subsequent surgery were causally connected to 
 
            his September 3, 1985 work injury.
 
            
 
                 In that claimant has not sustained his burden of 
 
            showing a causal connection between the 1987 back condition 
 
            and surgery and the September 1985 work injury, defendants 
 
            are not liable for medical costs related to the 1987 back 
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            condition and surgery.  Given that absence of liability, the 
 
            issue of whether defendants are required to reimburse Title 
 
            XIX for amounts actually paid by Title XIX rather than 
 
            actual medical expenses incurred is moot and will not be 
 
            further addressed in this decision.
 
            
 
                 Defendants argue that claimant has not proved that he 
 
            has suffered a 40 percent industrial disability as a result 
 
            of his work injury of September 3, 1985.  The record belies 
 
            defendants' assertion.  It is true that claimant had 
 
            preexisting degenerative disc disease and had a prior back 
 
            surgery as of September 3, 1985.  Claimant had returned to 
 
            work subsequent to the 1980 back surgery and had maintained 
 
            employment.  There is no evidence that his earnings had been 
 
            reduced on account of the 1980 surgery or his preexisting 
 
            degenerative disc condition.  Hence, the preexisting 
 
            degenerative disc disease and the 1980 surgery had not 
 
            produced any apportional loss of earnings capacity.  The 
 
            evidence clearly shows that claimant had a loss of earnings 
 
            capacity related to his 1985 work injury, however.  In April 
 
            1986, Dr. MacRandall, claimant's treating physician at that 
 
            time, opined that claimant had an 18 percent body as a whole 
 
            permanent partial impairment.  Dr. MacRandall, on June 13, 
 
            1986, released claimant to work.  The doctor released 
 
            claimant with definite work restrictions, however.  Claimant 
 
            was not to lift more than 30 to 40 pounds; claimant was to 
 
            stop periodically while driving; and claimant was not to 
 
            load or unload.  All of these evidence a significant loss of 
 
            earnings capacity for an individual who had previously 
 
            engaged in manual labor without restrictions on lifting.  
 
            Indeed, these work restrictions effectively precluded 
 
            claimant from most heavy manual labor.  The inability to 
 
            load or unload his cargo effectively precluded claimant from 
 
            many trucking jobs in which he might otherwise have engaged.  
 
            Further, the employer refused to rehire claimant on his work 
 
            release.  That also demonstrates a significant change in 
 
            claimant's condition relative to earnings capacity 
 
            subsequent to the 1985 injury.  Claimant has clearly 
 
            demonstrated a degree of industrial disability directly 
 
            related to and produced immediately subsequent to his 1985 
 
            work injury which industrial disability existed as of his 
 
            work release on June 13, 1986.  It is industrial disability 
 
            of that date which we must assess.  As of that date claimant 
 
            was an individual with a moderately severe body as a whole 
 
            permanent partial impairment.  Claimant had lifting 
 
            restrictions of 30 to 40 pounds which effectively precluded 
 
            his doing heavy manual labor as a trucker or otherwise.  
 
            Claimant lacked a high school diploma and had no other 
 
            training but for on-the-job training in positions requiring 
 
            low levels of
 
            
 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
            mechanical and managerial skills.  Claimant likewise, 
 
            although motivated, had difficulty securing any employment 
 
            subsequent to his work injury.  The employment which he 
 
            ultimately did secure appeared in part to be based on 
 
            long-term association with that employer and not related to 
 
            claimant's ability to compete favorably in the overall labor 
 
            market.  When all of the above is considered, it is found 
 
            that claimant had sustained a loss of earnings capacity 
 
            related to his September 3, 1985 work incident of 40 percent 
 
            as of his June 13, 1986 work release.  
 
            
 
                 In that defendants have prevailed on the condition of 
 
            whether claimant's 1987 condition resulted from his 1985 
 
            work injury, claimant's healing period is found to end as of 
 
            his June 13, 1986 work release.  That was the date claimant 
 
            was released to return to work following the September 3, 
 
            1985 injury.
 
            
 
                 The last issue to be resolved is whether defendants are 
 
            liable for interest on medical bills related to treatment 
 
            for his September 3, 1985 injury.  Neither Iowa Code section 
 
            86.13 nor Iowa Code section 85.30 allow for interest on 
 
            penalties for late payment of medical expenses allowed under 
 
            Iowa Code section 85.27, Klein v. Furnas Elec. Co., 384 
 
            N.W.2d 370 (Iowa 1986).
 
            
 
                                 FINDINGS OF FACT
 
            
 
                 Claimant injured his low back at work on September 3, 
 
            1985 while lifting a box of meat.
 
            
 
                 Claimant had preexisting degenerative disc disease.  
 
            The incident of lifting a box of meat on September 3, 1985 
 
            produced a substantial aggravation of such disease.
 
            
 
                 Claimant's September 3, 1985 low back injury produced 
 
            an 18 percent permanent partial impairment to claimant's 
 
            body as a whole.
 
            
 
                 Claimant's September 3, 1985 work injury resulted in 
 
            surgery excising the L3/L4 disc on September 24, 1985.
 
            
 
                 Claimant's September 3, 1985 work injury did not result 
 
            in claimant's new back complaints of spring 1987 or in 
 
            claimant's surgery on December 8, 1987 involving L4/L5, 
 
            L3/L4 and L5-Sl discs.
 
            
 
                 Claimant had surgery on October 30, 1980 at the L4-L5 
 
            level.
 
            
 
                 Claimant recovered subsequent to the 1980 surgery.  
 
            Claimant had returned to work without an ascertainable body 
 
            as a whole impairment subsequent to that surgery and without 
 
            loss of income subsequent to that surgery.  
 
            
 
                 No determinable or apportionable permanent impairment 
 
            resulted from claimant's 1980 back condition.
 
            
 
                 Claimant incurred healing period from September 13, 
 
            1985 through June 13, 1986 as a result of his September 3, 
 

 
            
 
            Page   8
 
            
 
            
 
            
 
            
 
            1985 work injury.
 
            
 
                 Claimant had an 18 percent body as a whole permanent 
 
            impairment and was restricted from lifting more than 30 to 
 
            40 pounds; from loading or unloading; and from driving 
 
            without breaks subsequent to his September 3, 1985 work 
 
            injury and as of June 13, 1986.
 
            
 
                 Claimant's employer refused to rehire claimant as of 
 
            June 13, 1986 and as a result of claimant's September 3, 
 
            1985 injury.
 
            
 
                 Claimant lacks a high school diploma, has minimal work 
 
            experience outside of the trucking industry and was 
 
            precluded from heavy manual labor as of June 13, 1986. 
 
            
 
                 Claimant has a reduction in earnings capacity of 40 
 
            percent as a result of his September 3, 1985 injury and as 
 
            of June 13, 1986.
 
            
 
                 Claimant's employer is responsible for claimant's 
 
            medical expenses including mileage and other miscellaneous 
 
            expenses as a result of his September 3, 1985 injury and up 
 
            to his work release of June 13, 1986.
 
            
 
                                CONCLUSIONS OF LAW
 
            
 
                 Claimant has established that his injury of September 
 
            3, 1985 arose out of and in the course of his employment.
 
            
 
                 Claimant has established that his injury of September 
 
            3, 1985 is a cause of disability as such existed and was 
 
            assessable as of June 13, 1986.  Claimant has not 
 
            established that his injury of September 3, 1985 is a cause 
 
            of disability related to claimant's development of symptoms 
 
            in spring 1987 and subsequent need for additional back 
 
            surgery.
 
            
 
                 Claimant is entitled to healing period benefits from 
 
            September 13, 1985 through June 13, 1986.
 
            
 
                 Claimant is entitled to permanent partial disability 
 
            resulting from his September 3, 1985 work injury of 40 
 
            percent of the body as a whole.
 
            
 
                 Claimant is entitled to payment of medical costs 
 
            evidenced on joint exhibits 13 and 16 which costs were 
 
            incurred from September 3, 1985 through June 13, 1986.
 
            
 
                 Claimant is not entitled to payment of medical costs 
 
            incurred from spring 1987 onward and related to claimant's 
 
            1987 back symptoms, their treatment and his subsequent 
 
            surgery and rehabilitation.
 
            
 
                 WHEREFORE, the decision of the deputy is affirmed in 
 
            part and reversed in part.
 
            
 
                                      ORDER
 
            
 
                 THEREFORE, it is ordered:
 

 
            
 
            Page   9
 
            
 
            
 
            
 
            
 
            
 
                 That defendants pay claimant healing period benefits at 
 
            the rate of two hundred sixty and 50/l00 dollars ($260.50) 
 
            from September 3, 1985 through June 13, 1986.
 
            
 
                 That defendants pay claimant two hundred (200) weeks of 
 
            permanent partial disability benefits at the rate of two 
 
            hundred sixty and 50/l00 dollars ($260.50) commencing June 
 
            14, 1986.
 
            
 
                 That defendants pay claimant's medical bills and 
 
            related medical mileage and expenses as set out in joint 
 
            exhibits 13 and 16 as incurred from September 3, 1985 
 
            through June 13, 1986.
 
            
 
                 That defendants pay accrued weekly benefits in a lump 
 
            sum.
 
            
 
                 That defendants pay interest on weekly benefits awarded 
 
            pursuant to section 85.30.
 
            
 
                 That defendants pay costs of this action including the 
 
            costs of transcription of the arbitration hearing pursuant 
 
            to rule 343 IAC 4.33.
 
            
 
                 That defendants file claim activity reports pursuant to 
 
            rule 343 IAC 3.l(2).
 
            
 
                 Signed and filed this ____ day of November, 1992.
 
            
 
            
 
            
 
            
 
                                          
 
                                       ________________________________
 
                                                   BYRON K. ORTON
 
                                              INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr. Patrick M. Carr
 
            Attorney at Law
 
            201 East Fifth Street
 
            Spencer, Iowa  51301
 
            
 
            Mr. Stephen W. Spencer
 
            Attorney at Law
 
            218 6th Avenue  STE 300
 
            P O Box 9130
 
            Des Moines, Iowa  50306
 
            
 
 
            
 
 
 
 
 
 
 
 
 
                                          1108; 5-1803; 5-1807; 3800
 
                                          Filed November 10, 1992
 
                                          Byron K. Orton
 
            
 
            
 
                    BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                                          :
 
            LARRY G. MERCER,              :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :      File No. 806573
 
            VAN WYK, INC.,                :
 
                                          :        A P P E A L
 
                 Employer,                :
 
                                          :      D E C I S I O N
 
            and                           :
 
                                          :
 
            GREAT WEST CASUALTY COMPANY,  :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
            5-1108
 
            Claimant failed to prove that a surgery subsequent to the 
 
            end of his healing period following an earlier surgery was 
 
            causally connected to his work injury.
 
            
 
            5-1803
 
            Forty-five year old claimant with 18 percent functional 
 
            impairment to lower back who had surgery was awarded 40 
 
            percent industrial disability.
 
            
 
            5-1807
 
            Employer's failure to rehire claimant following work injury 
 
            taken into account in determining industrial disability.
 
            
 
            3800
 
            There is no statutory authority for interest or penalty on 
 
            medical benefits.  Interest on an out-of-state judgment 
 
            against the employer for medical benefits is not a liability 
 
            of the employer.
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                   BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         LARRY G. MERCER
 
         
 
              Claimant,                           File No. 806573
 
         
 
         vs.                                   A R B I T R A T I O N
 
         
 
         VAN WYK, INC.,                           D E C I S I O N
 
         
 
              Employer,                              F I L E D
 
         
 
         and                                        DEC 6 1989
 
         
 
         GREAT WEST CASUALTY,                    INDUSTRIAL SERVICES
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
                                 INTRODUCTION
 
         
 
              This is a proceeding in arbitration brought by the claimant, 
 
         Larry Mercer against Van Wyk, Inc., employer, and Great West 
 
         Casualty, insurance carrier, defendants, to recover benefits as a 
 
         result of an alleged injury sustained on September 3, 1985.  This 
 
         matter came on for a hearing before the deputy industrial 
 
         commissioner in Des Moines, Iowa on September 20, 1989.  The 
 
         record consists of the testimony of the claimant and claimant's 
 
         wife, Charlotte Mercer; joint exhibits 1 through 17.
 
         
 
                                  ISSUES
 
         
 
              The issues the parties set out in the prehearing report for 
 
         resolution are:
 
         
 
              1.  Whether claimant's alleged injury on September 3, 1985 
 
         arose out of and in the course of his employment.
 
         
 
              2.  Whether claimant's alleged disability is causally 
 
         connected to his injury.
 
         
 
              3.  The nature and extent of claimant's disability.
 
         
 
              4.  Claimant's entitlement to medical benefits under 85.27.
 
         
 
                              REVIEW OF THE EVIDENCE
 
         
 
              Claimant testified he quit school during his eleventh grade 
 
         at age 17 and has received no other formal education.  Claimant 
 
         described the various jobs he has had over the years before 
 
         beginning employment with the defendant employer in November 
 
         1984. These prior jobs involved a pipeline job, car wash job, 
 
         working in stockyard, making boxes, light mechanical work at a 
 
                                                
 
                                                         
 
         truck stop, driving a truck including loading and unloading, 
 
         delivering house gas and anhydrous ammonia, and helping rebuild 
 
         trucks.  Claimant said some of these jobs lasted a few months to 
 
         a few years. Claimant testified he was given a physical within 30 
 
         days of working for the defendant employer.  Claimant emphasized 
 
         that the defendant employer knew of claimant's prior back surgery 
 
         in 1980. Claimant said he was a long haul driver with 48 state 
 
         authority. Claimant stated he was responsible for unloading his 
 
         truck himself or hiring someone if the haul was boxed meat.  
 
         Claimant described unloading as putting the boxes on pallets at 
 
         the end of his truck and the receiver would take the boxes from 
 
         there.  Claimant estimated these boxes weighed 60-90 lbs.  
 
         Claimant acknowledged that if his haul was swinging meat he did 
 
         not have to unload it. Claimant reviewed his medical history 
 
         prior to his alleged September 3, 1985 injury.  This history 
 
         included a 1960 lung surgery and a 1970 stomach surgery from 
 
         which claimant said he completely recovered, and a 1980 back 
 
         surgery involving a ruptured disc.  Claimant contended he was 
 
         completely recovered from his 1980 surgery with no restrictions.  
 
         Claimant said he was unloading 60-80 lb, 3 1/2 foot boxes of meat 
 
         from his truck on September 3, 1985.  Claimant stated that as he 
 
         was bending over to pick up a box off the truck floor, he felt a 
 
         tear and pain in his lower back.  Claimant indicated the pain let 
 
         up momentarily and then became worse.  Claimant said he continued 
 
         to unload his truck as there were only a few boxes left.  
 
         Claimant stated he then notified the defendant employer of his 
 
         injury.  Claimant described the medical help he sought upon his 
 
         return to Iowa because his pain in his back was also going down 
 
         into his leg.
 
         
 
              Claimant had back surgery on or around November 18, 1985 
 
         after receiving two medical opinions.  Claimant said he last 
 
         worked for the defendant employer September 13, 1985.  Claimant 
 
         said he was released to work with restrictions on June 13, 1986. 
 
         Claimant emphasized he wanted to return to work with defendant 
 
         employer but the defendant employer refused.  Claimant testified 
 
         the defendant employer also fought claimant's application for 
 
         unemployment benefits, but claimant said he received the 
 
         benefits. Claimant testified he found another truck.driving job 
 
         on September 6, 1986 within the doctor's restrictions and worked 
 
         until December 27, 1986 when his employer sold its trucks.  
 
         Claimant then found work in the Spring 1987 with another truck 
 
         company.
 
         
 
              Claimant contends he was in so much pain, he had to quit 
 
         this job in May 1987.  Claimant said his doctor indicated he 
 
         should have surgery, but claimant said he wasn't able to because 
 
         his 1985 surgery bill wasn't paid.  Claimant testified he went to 
 
         the University of Iowa Hospital where tests and epidural steroid 
 
         injection were given to the claimant.  Claimant said this did not 
 
         help and claimant eventually had surgery at the University of 
 
         Iowa Hospital on December 8, 1987.
 
         
 
              Claimant revealed his present restrictions are to lift no 
 
         more than 25 lbs repetitively, 50 lbs on a one time basis, no 
 
                                                
 
                                                         
 
         twisting or bending below the knee and no picking up and lifting 
 
         more than the weight limits.  Claimant explained he began his 
 
         current job in June 1988 driving a truck long distance for Greg 
 
         Jacobson at $300 per week.  Claimant said he averaged $400 per 
 
         week with the defendant employer.  Claimant stated this job does 
 
         not require loading and unloading.  Claimant estimated he has 
 
         driven a truck on and off over twenty years.  Claimant contends 
 
         he is not employable by anyone else except Mr. Jacobson.  
 
         Claimant said he searched for jobs but when he tells them about 
 
         his back, these other companies do not want him.  Claimant 
 
         admitted that the defendant employer and another trucking company 
 
         had hired him before 1985 with knowledge claimant had a prior 
 
         back surgery. Claimant acknowledged his 1985 symptoms were 
 
         similar to his back symptoms in 1980 except the 1980 symptoms 
 
         were confined more to his back whereas his 1985 symptoms also 
 
         involved pain in his legs. Claimant admitted he tried bowling 
 
         since 1987 without any trouble.
 
         
 
              Charlotte Mercer, claimant's wife, testified claimant fully 
 
         recovered from his 1980 surgery.  She said claimant played ball 
 
         and did anything he wanted to without any restrictions.  Mrs. 
 
         Mercer said claimant wanted to go back to work and wouldn't tell 
 
         the doctor of his pain.  She acknowledged claimant ultimately went 
 
         back to work the summer of 1986 into 1987.  She explained claimant 
 
         never made recovery from his 1985 injury like he did from his 1980 
 
         surgery.  Mrs. Mercer said claimant got so bad he couldn't stand 
 
         as a result of his 1985 injury.  Mrs. Mercer said the bills 
 
         include her meals because she had to drive the claimant to the 
 
         hospital and doctor.  She contends James Weinstein, M.D., said she 
 
         had to bring the claimant to the University of Iowa Hospitals.  
 
         She acknowledged that she.paid her brother for the use of his van 
 
         to transport the claimant and enable him to lie down while taking 
 
         him to University of Iowa Hospital.
 
         
 
              Dr. James Weinstein, associate professor of orthopedic 
 
         surgery and director of spine diagnostic and treatment center at 
 
         the University of Iowa College of Medicine, testified through a 
 
         deposition taken September 1, 1989 that his first contact with 
 
         the claimant was May 22, 1987.  The doctor said the claimant told 
 
         him of claimant's 1980 L4-5 disc level surgery and claimant's 
 
         L3/4 left diskectomy in September 1985.  Dr. Weinstein said:
 
         
 
                   His physical examination at that time showed some 
 
              limitation of forward flexion.  He had left lateral bending 
 
              reproduction of his pain.  His extension was normal.  Right 
 
              side bending was normal.  His strength in his left anterior 
 
              tibialis was significantly weak at 1 out of 5, with 5 being 
 
              normal.
 
         
 
                   The rest of his motor exam was fairly normal.  His 
 
              straight leg raising test reproduced some pain at 70 degrees 
 
              on the left, normal on the right, at about 75 degrees.  Also 
 
              consistent in the supine and sitting positions.  These exams 
 
              were congruent.
 
         
 
                                                
 
                                                         
 
                   X-rays at that time -- plain x-rays showed some 
 
              narrowing of the disc space at L-4/5, some abnormal motion 
 
              at 3/4.  He had an outside myelogram he brought with him 
 
              that showed an abnormal left 4/5 nerve root.  And a large, 
 
              questionable disc at 4/5 on the CT scan from the outside 
 
              hospital that extended down to the L5/S-1 disc space.
 
         
 
         (Joint Exhibit 17, Page 5)
 
         
 
              Dr. Weinstein said he suggested an epidural injection to 
 
         relieve symptoms and help decide etiology of claimant's pain.  
 
         When the doctor saw claimant on July 15, 1987 he said claimant 
 
         was:
 
         
 
              A.  Pretty much the same.  He was now complaining of left 
 
              lateral thigh pain and weakness of his great toe.  His exam 
 
              showed that his anterior tip was -- on the left was 3 out of 
 
              5 compared to 1 out of 5.  So it was a little bit better, 
 
              but still abnormal.  We thought he had a -- probably had a 
 
              recurrent disc at 4/5, and recommended discography.
 
         
 
              Q.  Was that done?
 
         
 
              A.  Yes.
 
         
 
               
 
                                                         
 
              Q.  What were the results?
 
         
 
              A.  Positive for pain at all three levels.  Moderate .pain 
 
              at 3/4; mild pain at 4/5 and with severe left leg pain at 
 
              4/5, -- or excuse me.  Correction.  Mild pain at 4/5, and 
 
              severe left leg pain at 5/1.
 
         
 
              Q. What does that indicate?
 
         
 
              A.  That he had disc disease.at three levels; L-3/4, L4/5 
 
              and L-5/S-1, and most significantly at 5/1.
 
         
 
         (Jt. Ex. 17, P. 7)
 
         
 
              Dr. Weinstein said he ultimately did surgery on December 8, 
 
         1987 which he described as:
 
         
 
              A.  ...[A]n exploration of the 3/4 interspace and the L-4 
 
              nerve root on that level, exploration of the 4/5 disc space 
 
              and the L-5 nerve root, and some decompression at that 
 
              level, and a fusion of L-5/S-1.
 
         (Jt. Ex. 17, P. 9)
 
 
 
         The doctor was asked:
 
 
 
              Q.  What was found during the exploration?
 
         
 
              A.  Free fragment of disc at L-4/5 and scar, as well as
 
              bony hypertrophy at 4/5, and a spondylolysis at L-5/S1.
 
         
 
              Q.  What's spondylolysis?
 
         
 
              A.  Spondylolysis, or spondylolytic,
 
         
 
              S P 0 N D Y L 0 L Y T I C, is a break in the posterior part 
 
              of his -- the spinal canal.
 
         
 
              Q.  Is that a developmental-type problem where something 
 
              happens in an accident or a lifting incident, or anything 
 
              like that?
 
         
 
              A.  Could be either/or.  I don't know the etiology in his 
 
              case from my memory.
 
         
 
         (Jt. Ex. 17, P. 9)
 
         
 
              Dr. Weinstein testified that on February 10, 1988, two 
 
         months after claimant's surgery, claimant's leg pain was resolved 
 
         while claimant had some back pain.  He said claimant was eager to 
 
         return to work and the doctor allowed for some healing time and 
 
         also arranged for a functional assessment which was done in April 
 
         1988. Dr. Weinstein said he released the claimant to return to 
 
         work on June 27, 1988 with the restrictions of 55 lbs one time 
 
         lift, no more than 4 times per hour and repetitive lifting 
 
         limited to 25-30 lbs.  Dr. Weinstein was asked the following 
 
                                                
 
                                                         
 
         questions and answered as follows:
 
         
 
              Q.  Okay.  Doctor, based on the surgical procedure that you 
 
              performed on Mr. Mercer do you have an opinion as to the 
 
              degree of functional permanent impairment that he has as a 
 
              result of the procedure and the condition you sought to 
 
              correct?
 
         
 
              A.  Yes.  I think in a case like Mr. Mercer, which is not 
 
              uncommon in our practice,,one has to consider the evaluation 
 
              in relationship to how it got there and not just a point in 
 
              time.  And I think that there is a difficulty when one tries 
 
              to do that, because there is no crystal ball that can tell 
 
              me what was the main event from '80 to '83, to '85, to '87 
 
              when I saw him.
 
         
 
                   And I -- I think that there is probably some causal 
 
              relationship across time, in my opinion, to why he ended up 
 
              being with us with his injuries.  With the injury in '87, I 
 
              think it was about a month and a half before we saw him that 
 
              he started having symptoms.  He was doing well from 
 
              September of '85 until that time, if my memory serves me 
 
              right.  And for me to say that everything that happened to 
 
              him before the month and a half I saw him is unrelated to 
 
              that event probably is not the case.  But I don't -- I can't 
 
              honestly speak to before that time, because I didn't see 
 
              him.
 
         
 
                   And I know this is a long-winded answer, and I don't 
 
              like to give long-winded answers, but I think in his case 
 
              it's necessary.  He was given a 25 percent rating by Dr. 
 
              Found, my colleague.  And I don't want to begin to speak for 
 
              him, so I'll make my own assessment.  And that would be that 
 
              his surgery and impairment based on what I did must take 
 
              into consideration what I think his spine is like now.  And 
 
              that has to include what's happened in the past, because 
 
              that's why he's like he is now in some respect.  So I think 
 
              Dr. Found's recommendation of 25 percent is very realistic 
 
              for Mr. Mercer.
 
         
 
              Q.  What you're saying then is that the 25 percent 
 
              permanency he has now is an accumulation of all the problems 
 
              he has in his lumbar spine to the present?
 
         
 
              A.  Oh, I don't think I'm saying that.  I think when I made 
 
              my -- when I make my decision about impairment based on what 
 
              we treated him for, I can't negate the past.  And if I give 
 
              him a rating now of 25 percent, I'm considering how he was 
 
              when he presented to me with the pathology and the physical 
 
              findings that he presented with, realizing that there may be 
 
              contributory factors from the past that are relevant to the 
 
              way he is now.  I don't know.
 
         
 
         (Jt. Ex. 17, PP. 15-16)
 
         
 
                                                
 
                                                         
 
              Dr. Weinstein did not apportion the 25 percent as to any 
 
         prior injuries.  He's further asked and answered:
 
         
 
              Q.  ...Do you have an opinion as to whether the events 
 
              occurring in September of 1985 caused in whole or in part 
 
              the condition for which he presented to you in May, 1987?
 
         
 
              A.  Well, what I said before to Mr. Spencer was that I 
 
              really didn't want to make that association.  What I wanted 
 
              to do is speak about the time I saw him and the history he 
 
              told me. And I knew that he had had surgery at 3/4 and 4/5 
 
              on two different occasions, five years apart, approximately, 
 
              and that maybe that, in my opinion, at the time I saw him 
 
              there was some association to those events, yes.  That was 
 
              my opinion; that there was a relationship.
 
         
 
              Q.  That there was a relationship between the events of 
 
              September, 1985, and his condition?
 
         
 
              A.  There was a relationship between his disease from the 
 
              onset, and surgeries in '80 and '85, and the way he is now 
 
              when he presents to me in '87; correct.
 
         
 
         (Jt. Ex. 17, PP. 24-25)
 
         
 
              St. Louis Medical Center records on or around October 17, 
 
         1980 reflect:
 
         
 
                   Complaint:  We know that he lifted and twisted his low 
 
              back and that the pain that he has connected with the 
 
              lumbosacral area had been affecting since he was 15-16-years 
 
              old and he has bad pain on and off.  The spasm always calm 
 
              down and he was able to get rid of it.  Noticeable this time 
 
              is that we have treated him last week in the office and he 
 
              went back to work the next day and fouled it up again.
 
         
 
         (Jt. Ex. 1, P. 4)
 
         
 
              St. Luke's Medical Center records on October 17, 1980 show: 
 
         "Lumbar Sacral Spine:  Congenital defect at the articulating 
 
         facets of L4-5 with probably spondylolysis at L5.  Bony structures 
 
         and disc spaces otherwise appear normal."  On October 19, 1980, 
 
         St. Lukes Medical Center records show:  "Obliques LumboSacral 
 
         Spine: Spondylosis defect at L5 on the left.  The lateral view 
 
         does show evidence of a minimal spondylothesis of L5 over S1.  
 
         (Jt. Ex. 17, PP. 17-18)  On October 30, 1980 claimant had 
 
         diagnoses of herniated disc L4-5 left and to a lesser degree L3-4 
 
         left.  On this date he had a lumbar laminectomy L4-5.  (Jt. Ex 1, 
 
         P. 37)  On November 18, 1980, claimant was admitted to St. Lukes's 
 
         Hospital with an injury to his prior surgical site.  His records 
 
         on this date indicate he was discharged to the clinical dependency 
 
         unit.  His records indicate an alcoholic problem at this time and 
 
         this reinjury occurred when he was drinking.  (Jt. Ex. 2, PP. 1, 
 
         3-4)  On December 31, 1984, a G. Richard Van Been, D.C., 
 
         administered a preemployment examination of the claimant on behalf 
 
                                                
 
                                                         
 
         of the defendant employer.  He wrote:
 
         
 
              Recommendation:  It is my recommendation that Larry G. 
 
              Mercer be hired as a truck driver.  I do not find any severe 
 
              problems with the previous surgeries.  The spinal surgery I 
 
              do question to some degree as far as the stability of his 
 
              spinal column after long hauls.  However, due to the fact 
 
              there's been five years since the surgery and he's had no 
 
              reoccurrence, I do not see any problems with it at this 
 
              time.
 
         
 
         (Jt. Ex. 5, P. 1)
 
         
 
              On September 24, 1985, claimant had a left L3/4 
 
         hemilaninotomy and removal of free fragment and evacuation of 
 
         L3-L4 disc space operation performed by Dan G. MacRandall, M.D.  
 
         On October 15, 1985,.Dr. Van Beek wrote pursuant to claimant's 
 
         alleged injury on September 3, 1985 while unloading a truck for 
 
         the defendant employer:
 
         
 
                   In response to your question on the cover letter, it is 
 
              my opinion that the back surgery on September 24, 1985, was 
 
              a continuing irritation caused by previous surgery and 
 
              injury of approximately 5 years ago.  Whenever an individual 
 
              has surgery for a lower back condition, the resultant trauma 
 
              to the area does not allow for complete recovery of the 
 
              structures and tissues in that area.  Therefore, surgery is 
 
              often necessary in the area of five to ten years following 
 
              the initial surgery.
 
         
 
         (Jt. Ex. 11, P. 2)
 
         
 
              On October 25, 1985, Dr. MacRandall wrote:
 
         
 
               
 
                                                         
 
              Larry is a patient of mine who recently underwent a left 
 
              L3-L4 hemilaninotomy and removal of free fragment and 
 
              evacuation of the L3-L4 disk space.  Larry injured his back 
 
              by history presented to me on 9/03/85 when he was lifting a 
 
              75-100 pound box of meat and felt a marked pain in the 
 
              lumbosacral area with radiation down the posterior aspect of 
 
              his left thigh and into the lateral aspect of his left leg.
 
         
 
                   As you know, he also had a lumbar disk removed back in 
 
              1980.  This was at a level one level lower than the present 
 
              area.  However, I believe back in 1980, his scan did show 
 
              that he did have a bulging at the L3-L4 level.  Quite 
 
              commonly on a historic basis, when there has been a weakness 
 
              in that level, it may rupture at any time in the ensuing 
 
              years.  I feel that he had had a weakness dating back to 
 
              1980 and just completed the event of the rupture in the 
 
              September, 1985 incident.
 
         
 
         (Jt. Ex. 8, P. 4).
 
         
 
              On October 30, 1985, R. F. Derby, D.C., wrote:
 
         
 
                   Larry Mercer was in my office for treatment on 
 
              September 6 and September 14, 1985.  I treated him for 
 
              subluxation of the 3rd and 5th Lumbar Vertebrae and the 
 
              sacroiliac.  He was experiencing much pain.  After the 
 
              second visit we determined that he must have a disc problem 
 
              which could only be eleviated [sic] through surgery, 
 
              therefore, I referred him out for possible surgery, which 
 
              has since been accomplished. In a telephone conversation 
 
              with him this week he says that he is recovering 
 
              satisfactorily.
 
         
 
         (Jt. Ex. 7, P. 2)
 
 
 
              On April 18, 1986, Dr. MacRandall's records reflect:
 
         
 
                   I would recommend Larry continue with his exercises.  
 
              He was instructed to not be doing any lifting over 30-40#.  
 
              He was instructed if he would like to he could start doing 
 
              some short driving for periods of a couple of hours or so 
 
              but stopping every half hour or so to get out and walk 
 
              around.  I do not really think he is going to be able to go 
 
              back to his driving occupation as this would require a lot 
 
              of heavy lifting.  I really don't think that Larry will be 
 
              able to do that at this point.  At this point, based on the 
 
              evaluation of permanent impairment, 2nd edition of the AMA, 
 
              it would be 18% involvement of total person.
 
         
 
         (Jt. Ex. 8, P. 7)
 
         
 
              On June 13, 1986, his records show:  "We will let Larry 
 
         return to work.  He should not do any lifting over 30-40#."
 
         
 
         (Jt. Ex. 8, P. 7)
 
                                                
 
                                                         
 
         
 
              The University of Iowa Hospital records on May 22, 1987 
 
         reflect:
 
         
 
                   Patient is a 43-year-old white male referred for 
 
              evaluation of low back pain and left lower extremity pain 
 
              and weakness.  In 1980 he had an L4-5 discectomy with good 
 
              relief of his back and left lower extremity pain.  In 9-85 
 
              he had an L3-4 discectomy and a large free fragment was also 
 
              excised at that time.  It should be mentioned that between 
 
              his first and second surgeries he had been largely 
 
              asymptomatic except for the few months before his second 
 
              surgery.  He again had good relief after the second surgery 
 
              but the past 1 1/2 months has had low back and left lateral 
 
              thigh and leg pain.  Back pain is 75 percent.
 
         
 
         (Jt. Ex. 11, P. 5)
 
         
 
              On December 8, 1987, the University of Iowa Hospitals 
 
         records reflect operation by Dr. Weinstein:
 
         
 
                   Exploration of the left 3-4 interspace with exploration 
 
              of the L4 nerve root.
 
         
 
                   Exploration of the left 4-5 disc space and L5 nerve 
 
              root.
 
         
 
                   Medial facetectomy L4-5 and decompression of the 
 
              [illegible] of L5 on the left.
 
         
 
                   Posterior lateral transverse process fusion L5-S1.
 
         
 
                   Harvesting right iliac bone graft.
 
         
 
         (Jt. Ex. 11, P. 39)
 
         
 
              On April 12, 1988, Ernest M. Found, Jr., M.D., spine surgeon 
 
         with the University of Iowa Department of Orthopedic Surgery and 
 
         Spine and Diagnostic Center and an associate of Dr. James 
 
         Weinstein, wrote to claimant:
 
         
 
                   To summarize, we feel you put forth a very good effort 
 
              throughout the testing.  We feel that prior to returning to 
 
              work as a trucker that you should be admitted to the two 
 
              week Low Back Pain Rehabilitation Program.  We encourage you 
 
              to try to arrange to come into the April 18th program and 
 
              our Rehab Coordinator, Ted Wernimont, will be working with 
 
              you to arrange admission to the program.
 
         
 
         (Jt. Ex. 12, P. 6)
 
         
 
              On July 7, 1988 Dr. Weinstein and Ted Wernimont, MSW 
 
         clinical coordinator of the Spine Diagnostic and Treatment 
 
         Center, wrote in a report pursuant to claimant's completion of 
 
         the rehabilitation program for chronic back pain:
 
                                                
 
                                                         
 
         
 
                   We recommend that you return to work full time on 
 
              Monday June 27, 1988 with the local trucking company which 
 
              has currently offered you a position as an over-the-road 
 
              truck driver.  We feel that you have demonstrated excellent 
 
              coping skills and ability to do truck driving when using 
 
              appropriate positioning and taking time to stretch and do 
 
              your daily exercise program.  You indicated a very strong 
 
              desire to return to this job as soon as possible and we are 
 
              more than happy to recommend your return on Monday following 
 
              our program.
 
         
 
                   We strongly recommend that the workmen's compensation 
 
              issues involving your.case be settled as soon as possible. 
 
              There is no doubt in our mind that this injury was work 
 
              related and that workmen's compensation benefits are due you 
 
              for a healing period which will continue from the date of 
 
              initial injury through your surgical procedures and will end 
 
              on Monday, June 27, the day you return to work.  We feel 
 
              that the history of your injury, the medical evidence, and 
 
              the circumstances surrounding your injury leave no doubt 
 
              that this injury was work related.  We feel frankly that the 
 
              workmen's compensation area in this situation needs to be 
 
              responsible for all appropriate medical and income 
 
              provisions provided by law and that this be done as quickly 
 
              as possible. We feel that you have done an outstanding job 
 
              of setting aside the stresses and frustrations of the 
 
              workmen's compensation situation and have chosen to get well 
 
              and return to work.
 
         
 
                   ....
 
         
 
                   The orthopaedic surgeon has determined your body as a 
 
              whole impairment rating is 25 percent.  This is based on the 
 
              number of surgical procedures that you have had and the 
 
              permanent limitations which.involve lifting, bending, 
 
              stooping, and twisting.  Your healing period for workmen's 
 
              compensation.purposes will end on Monday, June 27, 1988.
 
         
 
         (Jt. Ex. 12, PP. 10-11)
 
         
 
              On July 22, 1988, Dr. Weinstein and Wernimont wrote:
 
         
 
                   Larry returned to the Department of Orthopaedics today 
 
              for his two week follow up s/p rehabilitation program.  At 
 
              the present time, Larry is doing extremely well, and is 
 
              driving a truck full time.  As indicated earlier, he had 
 
              been off work for almost three years prior to rehabilitation 
 
              program, and through his extremely high motivation and 
 
              desire to get well, has made dramatic gains to this point.  
 
              He states that last week, he logged approximately 3,000 
 
              miles over the road.
 
         
 
         (Jt. Ex. 12, P. 13)
 
         
 
                                                
 
                                                         
 
                                  APPLICABLE LAW
 
         
 
              Claimant has the burden of proving by a preponderance of the 
 
         evidence that he received an injury on September 3, 1985 which 
 
         arose out of and in the course of his employment.  McDowell v. 
 
         Town of Clarksville, 241 N.W.2d 904 (Iowa 1976); Musselman v. 
 
         Central Telephone Co., 261 Iowa 352, 154 N.W.2d 128 (1967).
 
         
 
              The claimant has the burden of proving by a preponderance of 
 
         the evidence that the injury of September 3, 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).
 
         
 
              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, 760-61 
 
         (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).
 
         
 
              The Iowa Supreme Court cites, apparently with approval, the 
 
         C.J.S. statement that the aggravation should be material if it is 
 
         to be compensable.  Yeager v. Firestone Tire & Rubber Co., 253 
 
         Iowa 369, 112 N.W.2d 299 (1961); 100 C.J.S. Workmen's 
 
         Compensation sec. 555(17)a.
 
         
 
              An employer takes an employee subject to any active or 
 
         dormant health impairments, and a work connected injury which 
 
         more than slightly aggravates the condition is considered to be a 
 
         personal injury.  Ziegler v. United States Gypsum Co., 252 Iowa 
 
         613, 620, 106 N.W.2d 591 (1960), and cases cited.
 
         
 
              Apportionment of disability between a preexisting condition 
 
         and an injury is proper only when there was some ascertainable 
 
         disability which existed independently before the injury 
 
         occurred. Varied Enterprises, Inc. v. Sumner, 353 N.W.2d 407 
 
         (Iowa 1984).
 
         
 
              The burden of showing that disability is attributable to a 
 
         preexisting condition is, of course, placed upon the defendant.  
 
         If evidence to establish a proper apportionment is absent, the 
 
         defendant is responsible for the entire disability that exists. 
 
         Varied Enterprises, Inc., 353 N.W.2d 407; Becker v. D & E 
 
         Distributing Co., 247 N.W.2d 727, 731 (Iowa 1976); 2A Larson, 
 
         Workmen's Compensation Law,  59.22; 22 Am. Jur.2d,  122; 2 
 
         Damages & Tort Actions  15.34[1](a).
 
         
 
              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."
 
         
 
              The opinion of the supreme court in Olson v. Goodyear 
 
         Service Stores, 255 Iowa 1112, 1121, 125 N.W.2d 251 (1963), cited 
 
         with approval a decision of the industrial commissioner for the 
 
         following proposition:
 
         
 
                   Disability * * * as defined by the Compensation Act 
 
              means industrial disability, although functional disability 
 
              is an element to be considered....In determining industrial 
 
              disability, consideration may be given to the injured 
 
                                                
 
                                                         
 
                   employee's age, education, qualifications, experience and 
 
              his inability, because of the injury, to engage in 
 
              employment for which he is fitted.
 
         
 
              For example, a defendant employer's refusal to give any sort 
 
         of work to a claimant after he suffers his affliction may justify 
 
         an award of disability.  McSpadden v. Big Ben Coal Co., 288 
 
         N.W.2d 181 (Iowa 1980).
 
         
 
              Iowa Code section 85.34(1) provides that if an employee has 
 
         suffered a personal injury causing permanent partial disability, 
 
         the employer shall pay compensation for a healing period from the 
 
         day of the injury until (1) the employee returns to work; or (2) 
 
         it is medically indicated that significant improvement from the 
 
         injury is not anticipated; or (3) until the employee is medically 
 
         capable of returning to substantially similar employment.
 
         
 
              A healing period may be interrupted by a return to work. 
 
         Riesselmann v. Carroll Health Center, 3 Iowa Industrial 
 
         Commissioner Reports 209 (Appeal Decision 1982).
 
         
 
                               ANALYSIS
 
         
 
              Claimant is 45 years old and quit high school during the 
 
         eleventh grade.  Basically claimant has been a truck driver for 
 
         the majority of his adult work life.  It is obvious from the 
 
         records, particularly the medical records, that claimant loves 
 
         the life as a truck driver.  On numerous occasions the records 
 
         reflect claimant's anxious desire to return to driving a truck 
 
         when he recovers from his injury.  Medical personnel involved in 
 
         claimant's treatment comment on claimant's motivation.
 
         
 
              The evidence refers to claimant's 1980 surgery.  The greater 
 
         weight of medical evidence conclusively shows that there was no 
 
         discernible residual permanent impairment to the claimant from 
 
         this 1980 surgery that can be apportioned to claimant's alleged 
 
         1985 injury and any disability resulting from therefrom.  In 
 
         December 1984 Dr. Van Beek performed for the defendant employer a 
 
         preemployment physical on the claimant.  The doctor recommended 
 
         that the defendant employer hire the claimant.  He specifically 
 
         mentioned that he saw nothing severe with any of claimant's prior 
 
         surgeries and especially since it had been five years since his 
 
         prior back surgery and there was no reoccurrence.  On September 
 
         3, 1985 claimant was unloading boxed meat from defendant 
 
         employer's truck when he felt a pop in his back.  Claimant had a 
 
         disc removed at L-3/4 on the left as a result of this injury.  
 
         Claimant's 1980 surgery was at the L4-5 level.  It is true, there 
 
         was reference in 1980 to symptoms at L-3/4 but that was the 
 
         extent of the L-3/4 involvement.  It appeared claimant recovered 
 
         from this September 3, 1985 injury after being off from September 
 
         13, 1985 to his maximum healing and release to return to work 
 
         with some restrictions on June 13, 1986.
 
         
 
              Claimant developed symptoms again in May 1987 and probably 
 
         would have had surgery again on his back soon thereafter, but his 
 
                                                
 
                                                         
 
         1985 surgery bill had not been paid.  Claimant sought medical 
 
         services at the University of Iowa Hospitals on May 22, 1987 with 
 
         Dr. James Weinstein, an Associate Professor of Orthopaedic 
 
         Surgery and Director of the Spine Diagnostic and Treatment 
 
         Center.  After sending claimant through several tests, the doctor 
 
         performed on the claimant an exploration of the left 3-4 
 
         interspace with exploration of the L4 nerve root, exploration of 
 
         the left 4-5 disc space and L5 nerve, medial facetectomy L4-5 and 
 
         decompression of the foramen of L5 on the left, posterior lateral 
 
         transverse process fusion L5-S1, and harvesting right iliac bone 
 
         graft. Claimant was healing from this May 1987 back problem and 
 
         surgery beginning May 22, 1987 to June 27, 1988, when claimant 
 
         was released to return to work with some restrictions.  The 
 
         question arises whether this is a new injury as it appears 
 
         claimant was basically problem free from June 13, 1986 to May 21, 
 
         1987 or was this an anticipated result probably caused by 
 
         claimant's September 3, 1985 injury to his low back.  Dr. 
 
         Weinstein has exceptional credentials.  His first contact with 
 
         the claimant was May 22, 1987, so he did not have the benefits of 
 
         personal contact with claimant during his prior surgery in 1985.  
 
         Taking Dr. Weinstein's testimony as a whole, the undersigned 
 
         finds that this doctor opined that there was a relationship of 
 
         the 1987 surgery to the 1980 and 1985 surgeries.  Dr. Weinstein 
 
         was extensively asked in direct and cross examination as to 
 
         apportioning any impairment between 1980 and 1985 and 1987 
 
         surgeries or incidents.  He was not able to apportion or 
 
         attribute specifically the past surgeries and any impairment to 
 
         any impairment specifically attributed to claimant's 1980 
 
         surgery.  The greater weight of medical shows that a prior 
 
         surgery involving a disc can later result,in additional problems 
 
         to the spine especially next to the discs previously operated on.  
 
         The undersigned finds that claimant's September 3, 1985 injury 
 
         arose out of and in the course of claimant's employment and that 
 
         this injury proximately caused a spinal condition that resulted 
 
         in claimant's having additional symptoms and problems in May 
 
         1987.  These added problems resulted in claimant having surgery 
 
         on discs in December 1987.  Claimant's other alternative in this 
 
         matter could probably have been to file a new review-reopening 
 
         case as to a May 1987 medical condition. The undersigned finds 
 
         that action or decision should not have resulted in any different 
 
         total effect unless a different rate may have later been 
 
         involved.  The undersigned finds that the claimant's September 3, 
 
         1985 injury which arose out of and in the course of claimant's 
 
         employment resulted in the necessity of claimant having his 1985 
 
         and 1987 surgery.  This conclusion therefore would make moot any 
 
         alternative argument.  Defendants contend claimant's preexisting 
 
         1980 low back injury at L4-5 was the cause of claimant's 
 
         September 3, 1985 alleged injury and subsequent surgeries and 
 
         current disability.  It is undisputed claimant had a 1980 back 
 
         injury involving a herniated L4-5 left disc and ultimate surgery 
 
         on October 30, 1980.  Claimant had approximately 5 years without 
 
         any problems from his 1980 surgery. The defendant's own doctor, a 
 
         chiropractor, recommended defendant employer hire claimant with 
 
         knowledge of the 1980 injury. Defendant takes claimant as he is.
 
         
 
                                                
 
                                                         
 
              The undersigned finds the greater weight of medical evidence 
 
         shows claimant's current disability and impairment is causally 
 
         connected to his September 3, 1985 injury.  Dr. Ernest Found, Jr. 
 
         opined a 25 percent impairment to claimant's body as a whole.  
 
         Dr. Weinstein, with whom Dr. Found is associated, agreed with Dr. 
 
         Found.  It was determined that claimant reached maximum healing 
 
         on June 27, 1988.
 
         
 
              The undersigned finds claimant has a 25 percent permanent 
 
         impairment to his body as a whole as a result of the September 3, 
 
         1985 injury.  No apportionment was established.  The entire 25 
 
         percent impairment is attributable to the September 3, 1985 
 
         injury.
 
         
 
              Claimant has incurred two healing periods.  The first period 
 
         beginning September 13, 1985 to and including June 13, 1986 and 
 
         the second period beginning May 22, 1987 up to and including June 
 
         26, 1988.  These periods total 96.571 weeks of healing period 
 
         benefits.
 
         
 
              The claimant testified he tried to return to work with 
 
         defendant employer and was refused employment.  The undersigned 
 
         believes claimant is credible.  The claimant then filed for 
 
         unemployment and the defendant employer fought this.  Claimant 
 
         eventually won and received benefits.  Defendant employer has 
 
         completely disavowed itself from any responsibility to the 
 
         claimant.  As previously mentioned, several people have commented 
 
         on claimant's motivation.  Under McSpadden v. Big Ben Coal Co., 
 
         288 N.W.2d 181 (Iowa 1980), a refusal to give any sort of work to 
 
         a claimant after he suffers his affliction may justify an award 
 
         of disability.  Claimant's award of disability will be greater 
 
         than it might otherwise be because of the defendant employer's 
 
         actions. The defendant employer can't unload its injured worker 
 
 
 
                               
 
                                                         
 
         like a box of beef from its truck.  Claimant is working now as a 
 
         long distance truck driver for another company.  He is making 
 
         approximately 25 percent less per week than he was making for 
 
         defendant employer in 1985.  Claimant obviously has a bad back. 
 
         The medical evidence shows that when someone has surgeries like 
 
         claimant has had, problems can be expected.  Claimant's spine has 
 
         been damaged.  Claimant has a reduction in earning capacity. 
 
         Claimant's only real transferable skills is his truck driving 
 
         ability and a good back is essential.  It is fortunate claimant 
 
         has a job in his profession at the present time.  The trucking 
 
         industry does not normally seek or hire unless necessary, people 
 
         with prior back problems such as claimants.  Claimant's present 
 
         employer should be congratulated.  Claimant quit high school 
 
         during the eleventh grade.  Considering claimant's age, 
 
         education, location of his injury, good motivation, length of 
 
         healing periods, impairment, and all those other items to be 
 
         considered in determining industrial disability, the undersigned 
 
         finds claimant has a 40 percent industrial disability.
 
         
 
              Claimant's entitlement to 85.27 medical benefits is the only 
 
         remaining issue.  Defendants have denied benefits from the 
 
         beginning.  They fought claimant's entitlement to unemployment 
 
         benefits.  They refused to rehire claimant.  Defendant employer 
 
         had an opportunity to interrupt claimant's seeking his own 
 
         doctors by providing their own designated doctor.  Defendants 
 
         took no such action including not paying any benefits.  Claimant 
 
         was entitled to seek medical help.  Defendants are responsible 
 
         for all of claimant's medical bills incurred as a result of 
 
         claimant's September 3, 1985 injury and his surgery resulting 
 
         therefrom and all is set out in joint exhibit 13.  Defendants are 
 
         also responsible to reimburse claimant for his mileage and 
 
         expenses set out in joint exhibit 16.
 
         
 
                            FINDINGS OF FACT
 
         
 
              1.  Claimant injured his low back at work on September 3, 
 
         1985 while lifting a box of meat.
 
         
 
              2.  Claimant's low back injury and resulting 25 percent 
 
         permanent impairment to his body as a whole is a result of his 
 
         September 3 work related injury.
 
         
 
              3.  Claimant's September 3, 1985 work related low back 
 
         injury resulted in a September 24, 1985 surgery involving L3-4 
 
         disc and surgery on December 8, 1985 involving L4-5 left, L3-4 
 
         left, and fusion of L5-S1.
 
         
 
              4.  Claimant had surgery on October 30, 1980 involving the 
 
         L4-5 disc left from which claimant recovered and from which there 
 
         was no determinable or apportionable permanent impairment.
 
         
 
              5.  Claimant's preexisting low back condition involving his 
 
         left L4-5 disc was materially aggravated, worsened and lighted up 
 
         by claimant's September 3, 1985 work related injury.
 
         
 
                                                
 
                                                         
 
              6.  Claimant incurred healing periods of September 13, 1985 
 
         to and including June 13, 1986, totaling 39 weeks and 1 day and 
 
         May 22, 1987 to and including June 26, 1988 totaling 57 weeks and 
 
         3 days as a result of his September 3, 1985 work related injury.
 
         
 
              7.  Claimant has a 25 percent permanent impairment to his 
 
         body as a whole as a result of his work related September 3, 1985 
 
         injury.
 
         
 
              8.  Defendant employer refused to rehire claimant because of 
 
         his September 3, 1985 injury and resulting surgeries.
 
         
 
              9.  Defendant employer is responsible for claimant's medical 
 
         expenses including mileage and other miscellaneous expense as a 
 
         result of his September 3, 1985 injury.  All set out in joint 
 
         exhibits 13 and 16.
 
         
 
              10.  Claimant has a reduction in earning capacity as a 
 
         result of his September 3, 1985 injury.
 
         
 
                            CONCLUSIONS OF LAW
 
         
 
              Claimant's injury on September 3, 1985 arose out of and in 
 
         the course of claimant's employment.
 
         
 
              Claimant's disability is causally connected to his injury on 
 
         September 3, 1985.
 
         
 
              Claimant's surgeries of September 24, 1985 and December 8, 
 
         1987 are causally.,connected to claimant's work related injury on 
 
         September 3, 1985.
 
         
 
              Claimant's preexisting low back condition involving his L4-5 
 
         disc was materially worsened, aggravated, and lighted up by 
 
         claimant's September 3, 1985 work related injury.
 
         
 
              Claimant incurred two healing periods of September 13, 1985 
 
         to and including June 13, 1986 and May 22, 1987 to and including 
 
         June 26, 1988 totaling 96.571 weeks as a result of claimant's 
 
         September 3, 1985 work related injury.
 
         
 
              Claimant has a 25 percent permanent impairment to his body 
 
         as a whole as a result of his work related September 3, 1985 
 
         injury.
 
         
 
              Defendant employer refused to rehire claimant because of his 
 
         September 3, 1985 injury and resulting surgeries.
 
         
 
              Claimant has a 40 percent industrial disability with 
 
         benefits commencing June 27, 1988 at the rate of $260.50 per 
 
         week.
 
         
 
              Defendants are responsible for claimant's medical expenses 
 
         set out in joint exhibit 13 and claimant's medical mileage and 
 
         expenses set out in joint exhibit 16.
 
                                                
 
                                                         
 
         
 
                                   ORDER
 
         
 
              THEREFORE, it is ordered
 
         
 
              That defendants shall pay unto claimant healing benefits at 
 
         the rate of two hundred sixty and 50/100 dollars ($260.50) for 
 
         the period beginning September 3, 1985 to and including June 13, 
 
         1986 and May 22, 1987 to and including June 26, 1988 totaling 
 
         ninety six point five seven one weeks (96.571).
 
         
 
              That defendants shall pay unto claimant two hundred weeks 
 
         (200) of permanent partial disability benefits at the rate of two 
 
         hundred sixty and 50/100 dollars ($260.50) beginning June 27, 
 
         1988.
 
         
 
              That defendants shall pay the claimant's medical bills and 
 
         medical mileage and expenses that set out in joint exhibits 13 
 
         and 16.
 
         
 
              That defendants shall pay the accrued weekly benefits in a 
 
         lump sum and shall receive credit against the award for weekly 
 
         benefits previously paid, if any.
 
         
 
              That defendants shall pay interest on the benefits awarded 
 
         herein that are set forth in Iowa Code section 85.30.
 
         
 
              That defendants shall pay the costs of this action pursuant 
 
         to Division of industrial Services Rule 343-4.33.
 
         
 
              That defendants shall file an activity report upon payment 
 
         of this award as required by this agency pursuant to Division of 
 
         Industrial Services Rule 343-3.1.
 
         
 
              Signed and filed this 6th day of December, 1989.
 
         
 
         
 
         
 
         
 
         
 
         
 
                                            BERNARD J. O'MALLEY
 
                                            DEPUTY INDUSTRIAL 
 
                                            COMMISSIONER
 
         
 
         Copies To:
 
         
 
         Mr. Patrick M. Carr
 
         Attorney at Law
 
         201 E. Fifth St
 
         Spencer, Iowa  51301
 
         
 
         Mr. Stephen W. Spencer
 
         Attorney at Law
 
         218 6th Ave., Ste. 300
 
                                                
 
                                                         
 
         P.O. Box 9130
 
         Des Moines, Iowa  50306
 
 
 
 
 
 
            
 
 
 
 
 
           
 
 
 
                                            51803, 51100, 51108.50
 
                                            52206, 1807
 
                                            Filed December 6, 1989
 
                                            Bernard J. O'Malley
 
         
 
                 BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         LARRY G. MERCER,
 
         
 
              Claimant,
 
         
 
         vs.
 
                                                 File No. 806573
 
         VAN WYK, INC.,
 
                                              A R B I T R A T I 0 N
 
              Employer,
 
                                                 D E C I S I 0 N
 
         and
 
         
 
         GREAT WEST CASUALTY,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         
 
         51803
 
              Claimant awarded 40 percent Industrial Disability.  Claimant 
 
         has a 25 percent permanent impairment to his body as a whole due 
 
         to a low back injury.
 
         
 
         1807
 
              Under McSpadden, defendant employer's refusal to rehire 
 
         claimant increased claimant's industrial disability.
 
         
 
         51100, 51108.50
 
              Claimant's disability was found to be casually connected to 
 
         his injury which was found to have arose out of and in the course 
 
         of claimant's employment.
 
         
 
         52206
 
              Claimant's injury materially aggravated a preexisting 
 
         condition.
 
         
 
         
 
         
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
                                                
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                   BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         ROBERT A. WOODWARD,
 
         
 
              Claimant,
 
         
 
         vs.
 
         
 
         ROWLEY INTERSTATE TRANSPORTATION:           File No.  806608
 
         COMPANY, INC.,
 
                                                  A R B I T R A T I O N
 
              Employer,
 
                                                     D E C I S I O N
 
         and
 
         
 
         KEMPER INSURANCE,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
                                   INTRODUCTION
 
         
 
              This is a proceeding in arbitration brought by Robert A. 
 
         Woodward against Rowley Interstate Transportation Company, Inc., 
 
         his former employer, and Kemper Insurance, the employer's 
 
         insurance carrier.
 
         
 
              The case was heard and fully submitted on December 17, 1987 
 
         at Dubuque, Iowa.  The record in the proceeding consists of 
 
         testimony from Robert A. Woodward and Patrick Sterrett, M.D.  The 
 
         record also contains claimant's exhibits 1 through 39 and 
 
         defendants' exhibits A through L.
 
         
 
                             ISSUES AND STIPULATIONS
 
         
 
              The claimant seeks compensation for healing period, 
 
         permanent partial disability and payment of medical expenses 
 
         under section 85.27.  It was stipulated that the claimant 
 
         sustained an injury on September 30, 1985 which arose out of and 
 
         in the course of his employment.  It was further stipulated that 
 
         the claimant's rate of compensation is $363.86 per week.  The 
 
         issues presented for determination are whether the injury is a 
 
         proximate cause of any disability with which the claimant has 
 
         been afflicted; determination of the claimant's entitlement to 
 
         compensation for temporary total disability, healing period and 
 
         permanent partial disability; and, determination of claimant's 
 
         entitlement to section 85.27 benefits, including whether or not 
 
         the expenses incurred were proximately causes by the stipulated 
 
         injury, whether the expenses were incurred for reasonable and 
 
         necessary treatment of the stipulated injury and whether the 
 
         treatment was authorized by the employer.
 
         
 
                                SUMMARY OF EVIDENCE
 
         
 
              The following is a summary of evidence presented in this 
 
         case.  Only the evidence most pertinent to this decision is 
 
         discussed, but all of the evidence received at the hearing was 
 
         considered in arriving at this decision.  Conclusions about what 
 

 
         
 
         
 
         
 
         WOODWARD V. ROWLEY INTERSTATE TRANSPORTATION COMPANY, INC.
 
         PAGE   2
 
         
 
         
 
         the evidence showed are inevitable with any summarization.  The 
 
         conclusions in the following summary should be considered to be 
 
         preliminary findings of fact.
 
         
 
              Robert A. Woodward lives in Dubuque, Iowa with his spouse.  
 
         According to the medical reports in the case, he is approximately 
 
         48 years of age.  Prior to September 30, 1985, he had been an 
 
         over-the-road trucker for Rowley Interstate Transportation for 
 
         approximately five years, operating as an owner-operator.  His 
 
         work involved hauling meat products from FDL Foods to locations 
 
         in New York, Chicago and southern states.  The work required that 
 
         he break down, separate, unload and restack his cargo at most of 
 
         the delivery locations.  This involved handling boxes which weigh 
 
         as much as 80-100 pounds.  Woodward testified that he could 
 
         perform extended driving and handling of the cargo prior to 
 
         September 30, 1985.
 
         
 
              Woodward testified that, on September 30, 1985, at 
 
         approximately 12:30 a.m., he had backed his truck into the dock 
 
         at a delivery location in Chicago, Illinois and that, while 
 
         getting out of the truck, his hand missed the grabbar on the cab 
 
         and he fell to the blacktop parking lot.  Claimant testified that 
 
         he landed on the left side of his back, shoulder and the back of 
 
         his head when he struck the parking lot and that his knee struck 
 
         the truck while he was falling.
 
         
 
              Claimant testified that he knew he was injured and sat in 
 
         the truck for approximately 20 minutes until the customer was 
 
         able to unload the cargo it was to receive.  Claimant stated that 
 
         he had pain in the front of his chest area on the left and in his 
 
         shoulder that felt like a red-hot poker inside him.  He estimated 
 
         that he fell a distance of four and one-half to five feet, all 
 
         the way front the cab door to the ground.
 
         
 
              Claimant testified that he felt he could make his deliveries 
 
         and then return home.  He stated that his second stop was also in 
 
         Chicago where the customer unloaded.  He stated that he did not 
 
         feel he was improving, but had to make a delivery at Indianapolis 
 
         by 8:00 a.m.  Claimant stated that, when he got to Indianapolis, 
 
         he could hardly get out of the truck and that the customer's 
 
         employees unloaded the truck.  Claimant stated that he left the 
 
         truck parked at the customer's location and that he was taken by 
 
         ambulance to the hospital for medical care (exhibits 24 and 25).  
 
         Claimant testified that he refused to be admitted, was given 
 
         shots of medication and was told to lie down.  He stated that he 
 
         was taken back to his truck where he slept until 8:00 or 9:00 
 
         a.m. of the following day.  Claimant testified that, prior to 
 
         going to Indianapolis, he had phoned the dispatcher, reported the 
 
         incident and was told there was a load at Chicago for him to pick 
 
         up on his return trip.  Claimant stated that he did so and that, 
 
         when he arrived at his home terminal, he reported he was unable 
 
         to make the delivery of the load which had been picked up.  
 
         Claimant was told there was no one else available to deliver the 
 
         load and claimant then delivered it to Waverly, Iowa on the 
 
         following day.  Claimant testified that, when he returned, the 
 
         employer tried to get him to take a load to Denison, Iowa, but he 
 
         refused, returned to Dubuque, parked the truck and went to the 
 
         company doctor, L. C. Faber, M.D.
 
         
 
              Claimant was hospitalized at Finley Hospital where he 
 
         remained from October 4, 1985 until October 16, 1985.  While 
 
         hospitalized, he was treated with medication and therapy.  He 
 
         complained of pain in the front left side of his chest and left 
 

 
         
 
         
 
         
 
         WOODWARD V. ROWLEY INTERSTATE TRANSPORTATION COMPANY, INC.
 
         PAGE   3
 
         
 
         
 
         arm and shoulder.  A CT scan was performed which was negative.  A 
 
         bone scan of the upper left rib cage was interpreted as 
 
         consistent with trauma to multiple costochondral junctions 
 
         (exhibits B and 29).  The discharge diagnosis was chest wall pain 
 
         secondary to possible muscle avulsion at the costochondral 
 
         junction on the left side.  Gerald L. Meester, M.D., saw claimant 
 
         during the hospitalization through a referral from Dr. Faber 
 
         (exhibits 26, 27, 28 and B).  Claimant.testified that Dr. Faber 
 
         was planning a trip and discharged claimant from the hospital.  
 
         Claimant testified that, in Dr. Faber's absence, he sought 
 
         treatment from Dr. Meester, but that, when Dr. Faber returned, a 
 
         dispute occurred and Dr. Meester ceased treatment (exhibit 30).  
 
         Claimant stated that, after being released by Dr. Faber, he 
 
         continued to treat with Dr. Meester until commencing treatment 
 
         with Dr. Sterrett.  Claimant could not recall Dr. Cairns saying 
 
         anything about entering the hospital.
 
         
 
              Claimant testified that he continued to have the same 
 
         problems, with his left hand and arm going to sleep, but that he 
 
         received a communication from Kemper Insurance saying that his 
 
         last workers' compensation check would be coming and that Dr. 
 
         Faber told him to go back to work (exhibits D and E).  Claimant 
 
         relates, however, that he did not return to work and sought 
 
         treatment from Patrick R. Sterrett, M.D., who had been 
 
         recommended by Dr. Meester.
 
         
 
              Claimant testified that he never tried to drive a truck 
 
         after that as his hand and arm continued to go to sleep if he 
 
         held it in a certain position.  He stated that he drives with his 
 
         left hand and that,, within 25 or 30 miles, it starts to tingle 
 
         and go to sleep.  Claimant stated that he tried to put another 
 
         driver in his truck, but that it was not profitable and that he 
 
         sold the truck at a loss four to five months prior to the time of 
 
         hearing.  Claimant stated that Dr. Sterrett advised him he should 
 
         not drive a truck.
 
         
 
              Claimant obtained a job through the carpenters' union 
 
         commencing on approximately August 1, 1986.  He has continued to 
 
         work as a carpenter since that time whenever work has been 
 
         available.  Claimant testified that, while working, he has been 
 
         on medication which made him feel sleepy and tired and that, by 
 
         the end of the day, his arm, neck and shoulder would bother him.  
 
         During the winter of 1986-87, he underwent knee surgery which had 
 
         him off work for approximately four months, but which produced a 
 
         good result.  Claimant related that he was not employed at the 
 
         time of hearing, but that he expected work to become available 
 
         within a few weeks.
 
         
 
              Claimant stated that, as well as being a carpenter, he is 
 
         also a millwright and a certified welder.  He stated that he now 
 
         works out of the Rock Island Millwright Hall and that the 
 
         heaviest weights he works with range from 10-20 pounds and 
 
         consist of wrenches and a small sandblaster.
 
         
 
              Claimant testified that his arm still bothers him with pain, 
 
         numbness and tingling.  He stated that he has improved, but is 
 
         not completely recovered and remains under treatment with Dr. 
 
         Sterrett.  Claimant stated that he hopes his shoulder will 
 
         eventually get better and that Dr. Sterrett has advised him that 
 
         recovery is a slow process.
 
         
 
              Claimant then testified in detail concerning the medical 
 
         expenses he seeks to recover.  A summary of the medical bills 
 

 
         
 
         
 
         
 
         WOODWARD V. ROWLEY INTERSTATE TRANSPORTATION COMPANY, INC.
 
         PAGE   4
 
         
 
         
 
         submitted is found at exhibit 4A.  Claimant related that exhibit 
 
         4 is for prescriptions prescribed by Dr. Sterrett and that 
 
         exhibit 5 is a traction machine prescribed by Dr. Sterrett.  
 
         Claimant related that exhibit 6 is the Finley Hospital bill 
 
         incurred under the direction of Dr. Faber.  He stated that 
 
         exhibit 7, from Dr. Mullapudi, is also treatment for the chest, 
 
         neck and shoulder problem.  He related that he was sent there by 
 
         some other doctor.  Claimant stated that exhibit 8 is for a 
 
         referral made by Dr. Faber and that exhibit 9 was incurred for 
 
         physical therapy directed by Dr. Sterrett.  Claimant stated that 
 
         exhibit 10, Dubuque Radiologists' bill, is $15.00, not $353.00.  
 
         Claimant related that exhibit 11, University Hospitals, was 
 
         incurred through a referral by Dr. Meester.  Claimant stated that 
 
         exhibit 12, Americare Home Health Resources, was for a nerve 
 
         stimulating device recommended by Dr. Sterrett.
 
         
 
              Claimant related that exhibit 13, Camelot Radiology, arose 
 
         from an incident when he was working at a job at a Chrysler plant 
 
         in Illinois doing a lot of reaching and pulling when he had not 
 
         been feeling well.  Claimant stated that he got into a discussion 
 
         with someone and was then hauled out of the plant and taken to 
 
         the hospital.  He indicated that the medical personnel apparently 
 
         thought he had a heart attack, but that it was not a heart 
 
         attack.  Claimant testified that exhibits 14, 15, 16, 17, 18 and 
 
         19 are all connected with the same incident that occurred at the 
 
         Chrysler plant in Illinois.
 
         
 
              With regard to exhibit 20, claimant related that the expense 
 
         was incurred at the direction of Dr. Sterrett.  He stated that 
 
         exhibit 21, an ambulance bill, was incurred when he was 
 
         transferred from Finley Hospital to Mercy Hospital and the return 
 
         when he was initially hospitalized under the direction of Dr. 
 
         Faber.  Claimant related that exhibit 22 contains some charges 
 
         which are not related to this action, those being the 
 
         prescriptions issued by Dr. Liabo and Dr. Amram.  Claimant stated 
 
         that exhibit 34, the bill with St. Vincent's, may possibly have 
 
         been paid.
 
         
 
              Claimant testified that exhibit 35, the Mercy Radiologists' 
 
         bill, was incurred in relation to this case, but he could not 
 
         recall specifics.  Claimant stated that exhibit 36 was a referral 
 
         from Dr. Faber.  Claimant stated that exhibit 37 is from when he 
 
         was places in the hospital by Dr. Hertzberger.  Claimant did not 
 
         know how he came to be treated by Dr. Hertzberger and stated that 
 
         he was hospitalized for tests, had a reaction and was transferred 
 
         to Mercy by ambulance.  Claimant stated that exhibit 38 is for 
 
         physical therapy prescribed by Dr. Stuart.  Claimant stated that 
 
         exhibit 39 is a bill for treatment of his wife which should not 
 
         be part of this case.
 
         
 
              Claimant stated that, at the present time, his arm will go 
 
         to sleep if he lays on it, but that he still works and does what 
 
         he can.  He stated that he avoids reaching overhead with the left 
 
         arm.  Claimant stated that no physicians have placed any specific 
 
         restrictions on his activities and that recently, at times, he 
 
         has worked as much as 60 hours per week.
 
         
 
              Claimant testified that his 1987 income would be over 
 
         $25,000.  He expected that eight months of work would be the 
 
         maximum that would be available to him in his occupation as a 
 
         carpenter and, if it were available, he could earn as much as 
 
         $50-60,000 per year, but that availability of work varies from 
 
         season to season and from year to year.  Claimant stated that, if 
 

 
         
 
         
 
         
 
         WOODWARD V. ROWLEY INTERSTATE TRANSPORTATION COMPANY, INC.
 
         PAGE   5
 
         
 
         
 
         he were able to work for eight months of the year as a carpenter, 
 
         his income would compare favorably to what he earned trucking.
 
         
 
              Claimant stated that Dr. Meester arranged the examination at 
 
         the University of Iowa Hospitals.  Claimant stated that, before 
 
         going to Iowa City, he received a letter from Kemper Insurance 
 
         telling him that Iowa City was not an authorized source of 
 
         treatment.  Claimant could not recall if he received the letters 
 
         marked as exhibits J and L.  Claimant stated that he did not ask 
 
         Kemper or Rowley if he could go to Dr. Hertzberger or any of the 
 
         others from whom he sought treatment in 1986.
 
         
 
              Claimant testified that he could not recall having a prior 
 
         problem such as numbness or tingling in his left arm, but  that 
 
         he might have been previously hospitalized for left arm problems 
 
         with a broken collarbone.  He agreed, however, that there may 
 
         have been a succession of hospital visits where he complained of 
 
         left arm numbness and pain as shown in exhibit A, but he stated 
 
         that he would be unable to remember anything that happened as far 
 
         back as 1976.
 
         
 
              Patrick Sterrett, M.D., a neurologist, testified that he 
 
         treated claimant beginning in May, 1986 and has diagnosed 
 
         claimant as having myofascial pain of the anterior chest and 
 
         posterior shoulder muscles.  He stated that it is an inflammatory 
 
         condition that can result from direct trauma to the muscles.  
 
         Based upon the history of the fall and lack of prior complaints 
 
         in the area, Dr.  Sterrett attributed the condition to the fall.  
 
         Dr. Sterrett stated that claimant's symptoms were not 
 
         inconsistent with symptoms of a cardiac condition.  Dr. Sterrett 
 
         indicated that he treated claimant with medication and physical 
 
         therapy and that a TENS unit was a reasonable device for 
 
         claimant's condition.  Dr. Sterrett stated that Dr. Hertzberger 
 
         is a neurosurgeon, but that Dr. Sterrett does not know what Dr. 
 
         Hertzberger has been providing to claimant in the way of 
 
         treatment.  Dr. Sterrett stated that claimants prognosis is for a 
 
         very slowly improving problem that can linger for years and for 
 
         which time seems to be the best cure.  He stated that it can 
 
         worsen with activity or with use of the muscles.  Dr. Sterrett 
 
         stated that the negative EMG tests supported his diagnosis.  Dr. 
 
         Sterrett indicated that claimant had no loss of neurologic 
 
         function, but that he would give claimant a rating of no more 
 
         than 10% based upon myofascial pain.  When asked to examine 
 
         exhibit I, records from St. Anthony Medical Center, Dr. Sterrett 
 
         stated that his impression would be that the treatment was for a 
 
         cardiac condition.
 
         
 
                           APPLICABLE LAW AND ANALYSIS
 
         
 
              The claimant has the burden of proving by a preponderance of 
 
         the evidence that the injury of September 30, 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 
 

 
         
 
         
 
         
 
         WOODWARD V. ROWLEY INTERSTATE TRANSPORTATION COMPANY, INC.
 
         PAGE   6
 
         
 
         
 
         not be couches 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).
 
         
 
              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).
 
         
 
              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).
 
         
 
              The Iowa Supreme Court cites, apparently with approval, the 
 
         C.J.S. statement that the aggravation should be material if it is 
 
         to be compensable.  Yeager v. Firestone Tire & Rubber Co., 253 
 

 
         
 
         
 
         
 
         WOODWARD V. ROWLEY INTERSTATE TRANSPORTATION COMPANY, INC.
 
         PAGE   7
 
         
 
         
 
         Iowa 369, 112 N.W.2d 299 (1961); 100 C.J.S. Workmen's 
 
         Compensation SS555(17)a.
 
         
 
              Claimants appearance and demeanor were observed as he 
 
         testified.  He was often argumentative and sarcastic, but such 
 
         could be a result of denial of a valid claim rather than an 
 
         indication of unreliable testimony.  The claimant was also 
 
         uncertain and contradictory in his testimony with regard to 
 
         events that occurred in the past.  He initially indicated that 
 
         the ambulance bill was incurred while he was hospitalized by Dr. 
 
         Faber, but later stated that it occurred while he was 
 
         hospitalized by Dr. Hertzberger.  Claimant denied having any 
 
         problems with his left arm prior to this incident, yet the record 
 
         is replete with evidence of left arm problems.  Several other 
 
         inconsistencies exist in claimants testimony.  It is determined 
 
         that claimant has failed to establish the full credibility of his 
 
         testimony and it will be given weight accordingly.
 
         
 
              The bone scan found at exhibit 29 clearly corroborates 
 
         claimant's complaints of having fallen and of having suffered 
 
         injury.  In view of the description of claimants fall, it would 
 
         not be unusual for him to have suffered injuries other than at 
 
         the site of the costochondral junction.
 
         
 
              The assessment of this case made by Dr. Sterrett is accepted 
 
         as being correct in view of Dr. Sterrett's most recent 
 
         familiarity with it.  His opinions are consistent with the test 
 
         results that appear in the record.  His assessment is a 
 
         reasonable approach to the claimant's continuing complaints.
 
         
 
              Accordingly, it is determined that the injuries claimant 
 
         sustained when he fell on September 30, 1985 include multiple 
 
         cartilage fractures of the left second through sixth 
 
         costochondral junctions and also a chronic myofascitis of the 
 
         left parascapula muscles, pectoral and anterior chest wall 
 
         muscles (exhibits 3 and 29).
 
         
 
              Claimant seeks compensation for temporary total disability 
 
         or healing period.  Either type of recovery compensation ends 
 
         when the person either returns to work or when the person is 
 
         capable of engaging in employment substantially similar to that 
 
         in which they were engaged when injured [sections 85.33 and 
 
         85.34(l)].  According to Dr. Sterrett, the claimant has still not 
 
         reached maximum recovery.  It appears from the evidence that the 
 
         claimant will not be able to return to truck driving.  That is 
 
         the type of employment in which he was engages at the time of 
 
         injury.  Accordingly, his healing period terminates effective 
 
         with his July 31, 1986 return to work as a carpenter.  This 
 
         assessment is corroborated by the statement of Dr. Sterrett that 
 
         claimant was not capable of working on June 27, 1986 (exhibit 
 
         3).
 
         
 
              Claimant's condition is sufficiently longstanding to be 
 
         considered permanent.  Wallace v. Brotherhood, 230 Iowa 1127, 300 
 
         N.W. 322 (1941).
 
         
 
              Since claimant's injury is located in the body, the 
 
         disability should be evaluated industrially under the provisions 
 
         of Iowa Code section 85.34(2)(u).  Many, but not all, of the 
 
         claimant's symptoms are in his arm.  Further, the diagnosed 
 
         injuries are not located in his arm, but are rather located in 
 
         the trunk of his body.  Lauhoff Grain v. McIntosh, 395 N.W.2d 834 
 
         (Iowa 1986) ; Dailey v. Pooley Lumbar Co., 233 Iowa 758, 10 
 

 
         
 
         
 
         
 
         WOODWARD V. ROWLEY INTERSTATE TRANSPORTATION COMPANY, INC.
 
         PAGE   8
 
         
 
         
 
         N.W.2d 569 (1943).
 
         
 
              If claimant has an impairment to the body as a whole, an 
 
         industrial disability has been sustained.  Industrial disability 
 
         was defined in Diederich v. Tri-City Railway Co., 219 Iowa 587, 
 
         593, 258 N.W. 899, 902 (1935) as follows:  "It is therefore plain 
 
         that the legislature intended the term 'disability' to mean 
 
         'industrial disability' or loss of earning capacity and not a 
 
         mere 'functional disability' to be computed in the terms of 
 
         percentages of the total physical and mental ability of a normal 
 
         man."
 
         
 
              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 employees 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).
 
         
 
              Impairment of physical capacity creates an inference of 
 
         lessened earning capacity.  The basic element to be determined, 
 
         however, is the reduction of value of the general earning 
 
         capacity of the person rather than the loss of wages or earnings 
 
         in a specific occupation.  Holmquist v. Volkswagon of America, 
 
         Inc., 261 N.W.2d 516 (Iowa App. 1977) 100 A.L.R.3d 143; 2 Larson 
 
         Workmen's Compensation Law, sections 57.21 and 57.31.
 
         
 
              It appears that claimant is now quite appropriately 
 
         employed.  He is working in an area where he has expertise and is 
 
         able to adequately compete for jobs.  Little appears in the 
 
         record about claimant's prior employment history, although the 
 
         fact that he held a union card during the time he was working as 
 
         a truck driver indicates that he obtained the care prior to the 
 
         time he became a truck driver.  In view of his age, he probably 
 
         worked as a carpenter, millwright and certified welder prior to 
 
         the time he became a truck driver.  When the claimant's 1984 and 
 
         1985 income tax returns are compared with his description of his 
 
         earnings as a carpenter, it is apparent that work as a carpenter 
 
         is much more financially rewarding for him than was truck driving 
 
         (his trucking operation operated at a loss in both 1984 and 1985) 
 
         (exhibit K).  It is recognized that depreciation is a major 
 
         expense responsible for producing the losses.  Nevertheless, the 
 
         claimant has lost access to some types of employment that were 
 
         previously available to him.  Accordingly, it is determined that 
 
         he has a five percent permanent partial disability as a result of 
 
         the September 30, 1985 injury.
 
         
 
              Section 85.27 gives the employer the obligation to provide 
 
         reasonable treatment for an injury and the right to select the 
 
         providers of medical treatment.  Referral by an authorized 
 
         physician constitutes authorization for the physician to whom the 
 
         referral was made.  Limoges v. Meier Auto Salvage, I Iowa 
 
         Industrial Commissioner Report, 207 (1981).  The employer's right 
 
         to direct a change in care is limited.  Dye v. Safeway Scaffolds 
 
         Co., III Iowa Industrial Commissioner Report, 75 (1983); 2 Larson 
 
         Workmen's Compensation Law, section 61.12(a-e). Code section 
 
         85.27 provides that, if an employee is dissatisfied with the care 
 
         that the employer is providing, the employee should communicate 
 
         such dissatisfaction to the employer and that, in the event 
 
         alternate care cannot be agreed upon, this agency will make a 
 
         determination of the dispute.  The claimant in this case did not 
 
         seek authorization for treatment other than from Dr. Faber.  He 
 

 
         
 
         
 
         
 
         WOODWARD V. ROWLEY INTERSTATE TRANSPORTATION COMPANY, INC.
 
         PAGE   9
 
         
 
         
 
         clearly received a directive that Dr. Faber was the only 
 
         authorized source of care.  When he received that directive, 
 
         exhibit J, Dr. Faber had already released the claimant and had 
 
         indicated to the claimant that he needed no further care.  This 
 
         left the claimant in a quandary.  Simply stated, his only 
 
         authorized source of care had told him he needed no further care.  
 
         It is not unreasonable or unexpected that the claimant would seek 
 
         out care on his own under those circumstances.  Accordingly, the 
 
         defense of lack of authorization fails.  Such does not, however, 
 
         make all of the charges which claimant seeks to recover the 
 
         liability of the defendants since it is still necessary to show 
 
         that the treatment was proximately caused by the injury and that 
 
         the treatment was reasonable.  Treatment which is duplicative, 
 
         for example, is not the liability of the defendants.
 
         
 
              In determining the employer's liability for the medical 
 
         expenses that are sought, it should be noted that any care 
 
         arranged or recommended by Dr. Faber is the responsibility of the 
 
         defendants since he is their expressly authorized physician.  
 
         Care provided or arranged by those to whom Dr. Faber had made 
 
         referrals is likewise the responsibility of the defendants.  It 
 
         is clear that Dr. Meester was brought into this case by Dr. Faber 
 
         and accordingly the care provided by and arranged by Dr. Meester 
 
         is the responsibility of the defendants.  This includes the 
 
         charges from the University of Iowa Hospitals and Clinics since 
 
         exhibit 28 clearly shows that the claimant was referred to Dr. 
 
         Meester by Dr. Faber and that Dr. Meester arranged an appointment 
 
         for the claimant at the Neurology Clinic in Iowa City.  
 
         Accordingly, defendants are responsible for payment of the bills 
 
         represented by exhibits 6, 8, 11, 36 and 39.  With regard to Dr. 
 
         Sterrett, his assessment of the case has been accepted to be 
 
         correct, as opposed to that of Dr. Faber, and the charges 
 
         incurred with or under the direction of Dr. Sterrett are likewise 
 
         the responsibility of the employer.  These include exhibits 4, 5, 
 
         9, 12, 20, part of 22 and 38.  The expenses incurred under the 
 
         direction of Dr. Hertzberger are not shown to have been 
 
         reasonable or necessary. They are not supported by medical 
 
         records or reports.  It is impossible to determine a basis for 
 
         holding the defendants responsible for treatment by or under the 
 
         direction of Dr. Hertzberger.  This excludes exhibits 21, 35 and 
 
         37.  The same is true with regard to the charges from Dr. 
 
         Mullapudi found at exhibit 7. Defendants stipulated to pay 
 
         exhibit 34, the St. Vincent's bill.
 
         
 
              With regard to exhibit 22, the charges from Hartig Drug, the 
 
         defendants are responsible for all charges made under the 
 
         direction of Dr. Sterrett and Dr. Meester, but not for any of the 
 
         other prescriptions shown.  These total $278.78.  The total is 
 
         therefore $8,343.95.
 
         
 
         
 
                                 FINDINGS OF FACT
 
         
 
              1.  On September 30, 1985, Robert F. Woodward was a resident 
 
         of the state of Iowa employed by Rowley Interstate 
 
         Transportation.
 
         
 
              2.  Woodward was injured on September 30, 1985 when he fell 
 
         from his truck at a delivery location in Chicago, Illinois.
 
         
 
              3.  Following the injury, claimant was medically incapable 
 
         of performing work in employment substantially similar to that he 
 
         performed at the time of injury from October 2, 1985 through July 
 

 
         
 
         
 
         
 
         WOODWARD V. ROWLEY INTERSTATE TRANSPORTATION COMPANY, INC.
 
         PAGE  10
 
         
 
         
 
         31, 1986 when claimant returned to work.
 
         
 
              4.  Claimants credibility is not well established.
 
         
 
              5.  Claimant is approximately 48 years of age and married.
 
         
 
              6.  Claimant's trucking operation operated at a loss for 
 
         income tax purposes although it likely provided him with gainful 
 
         employment it accelerated depreciation is not considered.
 
         
 
              7.  Claimant's employment as a carpenter is equal or more 
 
         financially rewarding than his employment as a trucker.
 
         
 
              8.  Claimant has work experience as a union carpenter, 
 
         millwright and certified welder.
 
         
 
              9.  The medical expenses reflected by exhibits 4, 5, 6, 8, 
 
         9, 11, 12, 20, part of 22, 34, 36, 38 and 39 were incurred in 
 
         obtaining reasonable treatment for the injury.  The total charges 
 
         are therefore $8,343.95.
 
         
 
             10.  The assessment of this case made by Dr. Sterrett is 
 
         accepted as being correct in view of his specialty as a 
 
         neurologist and in view of his recent contact with the case.
 
         
 
             11.  Claimant has a condition which is likely to continue to 
 
         improve over an extended period of time, but it is of sufficient 
 
         duration to be considered permanent.
 
         
 
             12.  Claimant has no neurological deficit and his only 
 
         impairment is on the basis of pain.
 
         
 
             13.  The physical derangement responsible for the claimant's 
 
         condition is located in the trunk of his body, even though many 
 
         of the symptoms manifest themselves in his left arm.
 
         
 
             14.  When all material factors are considered, the claimant 
 
         has a five percent loss of earning capacity as a result of this 
 
         injury, based primarily upon his loss of ability to perform 
 
         certain types of employment which he could perform prior to the 
 
         injury.
 
         
 
             15.  Claimant had prior problems affecting the same parts of 
 
         his body as those injured on September 30, 1985 and this injury 
 
         is determined to be an aggravation of a preexisting condition.
 
         
 
                                CONCLUSIONS OF LAW
 
         
 
              1.  This agency has jurisdiction of the subject matter of 
 
         this proceeding and its parties.
 
         
 
              2.  Claimant is entitled to receive healing period benefits 
 
         running from October 2, 1985 through July 31, 1986, a period of 
 
         43 2/7 weeks.
 
         
 
              3.  Claimant is entitled to receive 25 weeks of compensation 
 
         for permanent partial disability payable commencing August 1, 
 
         1986.
 
         
 
              4.  Claimants care by and under the direction of Dr. 
 
         Meester, including the University of Iowa Hospitals and Clinics, 
 
         was not unauthorized.
 
         
 

 
         
 
         
 
         
 
         WOODWARD V. ROWLEY INTERSTATE TRANSPORTATION COMPANY, INC.
 
         PAGE  11
 
         
 
         
 
              5.  Where the only expressly authorized treating physician 
 
         released claimant from care, the claimant was warranted to seek 
 
         other care on his own and, where that care was effective, it is 
 
         the responsibility of the employer and insurance carrier.
 
         
 
              6.  Defendants are responsible to the extent of $8,343.95 
 
         for claimant's medical expenses under the provisions of Iowa Code 
 
         section 85.27.
 
         
 
                                      ORDER
 
         
 
              IT IS THEREFORE ORDERED that defendants pay claimant 
 
         forty-three and two-sevenths (43 2/7) weeks of compensation for 
 
         healing period at the stipulated rate of three hundred 
 
         sixty-three and 86/100 dollars ($363.86) per week commencing 
 
         October 2, 1985.
 
         
 
              IT IS FURTHER ORDERED that defendant, pay claimant 
 
         twenty-five (25) weeks of compensation for permanent partial 
 
         disability at the stipulated rate of three hundred sixty-three 
 
         and 86/100 dollars ($363.86) per week payable commencing August 
 
         1, 1986.
 
         
 
              IT IS FURTHER ORDERED that defendants pay claimant eight 
 
         thousand three hundred forty-three and 95/100 dollars ($8,343.95) 
 
         under the provisions of section 85.27.  The payment of unpaid 
 
         portions of bills made be paid directly to the providers of the 
 
         services.  The bills which are determined to be the 
 

 
         
 
         
 
         
 
         WOODWARD V. ROWLEY INTERSTATE TRANSPORTATION COMPANY, INC.
 
         PAGE  12
 
         
 
         
 
         responsibility of the defendants are as follows:
 
         
 
              Mercy Health Center                      exh 4     $34.50
 
              DuMed                                    exh 5      31.06
 
              Finley Hospital                          exh 6   6,122.10
 
              Dubuque Internal Medicine, P.C.          exh 8      56.00
 
              Mercy Health Center--Physical Therapy    exh 9      65.00
 
              University of Iowa Hospitals             exh 11    454.45
 
              Americare Home Health Resources          exh 12    208.56
 
              Medical Associates Clinic, P.C.          exh 20    106.00
 
              Hartig Drug                              exh 22    278.78
 
              St. Vincent Hospital                     exh 34    105.00
 
              Dr. Cairns                               exh 36     75.00
 
              Finley hospital--Physical Therapy        exh 38    787.50
 
              Dr. Kramer                               exh 39     20.00
 
              Total                                           $8,343.95
 
         
 
              IT IS FURTHER ORDERED that defendants pay all past due 
 
         compensation in a lump sum, after receiving full credit for 
 
         amounts previously paid, and pay interest pursuant to section 
 
         85.30 of The Code.
 
         
 
              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 20th day of September, 1988.
 
         
 
         
 
         
 
         
 
                                        MICHAEL G. TRIER
 
                                        DEPUTY INDUSTRIAL COMMISSIONER
 
         
 
         Copies To:
 
         
 
         Mr. Daniel P. Ernst
 
         Attorney at Law
 
         Suite 10, American Tower Building
 
         911 Locust Street
 
         Dubuque, Iowa 52001-6784
 
         
 
         Mr. Larry L. Shepler
 
         Attorney at Law
 
         Executive Square, Suite 102
 
         400 Main Street
 
         Davenport, Iowa 52801
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                          1108, 1402.60, 1802
 
                                          1603, 2206, 2700
 
                                          Filed September 20, 1988
 
                                          MICHAEL G. TRIER
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         ROBERT A. WOODWARD,
 
         
 
              Claimant,
 
         
 
         vs.
 
         
 
         ROWLEY INTERSTATE TRANSPORTATION            File No. 806608
 
         COMPANY, INC.,
 
                                                  A R B I T R A T I O N
 
              Employer,
 
                                                     D E C I S I O N
 
         and
 
         
 
         KEMPER INSURANCE,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         
 
         1108, 1402.60, 1802, 1803, 2206, 2700
 
         
 
              Claimant, a 48-year-old truck driver, was injured in a fall 
 
         from the cab of his truck.  He suffered a fracture of the 
 
         costochondral junction and other soft tissue injuries in his 
 
         upper left chest area.  Where the treating physician directed his 
 
         return to work while he was still quite symptomatic, the claimant 
 
         was held to be warranted in seeking other care, where that care 
 
         proved effective.  Defendants' authorization defense was held to 
 
         fail with regard to care that was arranged by a physician to whom 
 
         the expressly authorized physician had made a referral.
 
         
 
              The healing period was ended upon the claimant's return to 
 
         work in a different occupation.  Claimant was awarded five 
 
         percent permanent partial disability where he earned more in the 
 
         new occupation than he had in the previous occupation, but where 
 
         the injury foreclosed his access to the occupation in which he 
 
         was engaged at the time of injury.  The evidence showed the 
 
         claimant to have had a preexisting condition and preexisting 
 
         complaints of a similar nature several years prior to the date of 
 
         injury.
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                    BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         LESTER D. GOULD,
 
         
 
              Claimant,
 
                                                     File No. 806729
 
         vs.
 
                                                  A R B I T R A T I O N
 
         CONTRACT SERVICES, LTD.,
 
                                                     D E C I S I O N
 
              Employer,
 
         
 
         and                                            F I L E D
 
         
 
         LIBERTY MUTUAL INSURANCE                      MAY 17 1988
 
         COMPANY,
 
                                              IOWA INDUSTRIAL COMMISSIONER
 
          
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
                             STATEMENT OF THE CASE
 
         
 
              This is a proceeding in arbitration brought by Lester D. 
 
         Gould, claimant, against Contract Services, Ltd., employer, and 
 
         Liberty Mutual Insurance Company, insurance carrier, to recover 
 
         benefits under the Iowa Workers' Compensation Act as a result of 
 
         an injury sustained August 13, 1985.  This matter came on for 
 
         hearing before the undersigned deputy industrial commissioner 
 
         March 17, 1988.  The record was considered fully submitted at the 
 
         close of the hearing.  The record in this case consists of the 
 
         testimony of claimant and Linda Gould, his wife; claimant's 
 
         exhibits A, B and C, and defendants' exhibits 1 and 4.  
 
         Defendants' objection to claimant's exhibit B is overruled and the 
 
         document is admitted for its probative value.
 
         
 
                                     ISSUE
 
         
 
              The sole issue presented for determination is the nature and 
 
         extent, if any, of claimant's permanent partial disability.
 
         
 
                               FACTS PRESENTED
 
         
 
              Claimant began working for defendant employer in July 1982. 
 
         He explained he first went to Omaha from Texas for approximately 
 
         two weeks, then, when a position in Knoxville, Iowa, became 
 
         available, he transferred there and began working as a supervisor 
 
         overseeing the cleanup and maintenance of the Hormel plant and 
 
         grounds.  Claimant described his position as a working supervisor 
 
         of six people which involved, in addition to actually helping 
 
         with the maintenance work, a "great deal" of administrative work 
 
         including bookkeeping, the keeping of time records, reports and 
 
                                                
 
                                                         
 
         doing personnel functions.  Claimant sustained an injury which 
 
         arose out of and in the course of his employment August 13, 1985 
 
         when he heard a "pop" in his right shoulder as he was putting a 
 
         squeegee assembly on a floor scrubber.  Claimant testified that 
 
         he felt immediate pain but continued working that evening and the 
 
         next morning, when he was still feeling pain, went to see his 
 
         family doctor, B. C. Hillyer, M.D., of the Mater Clinic.  
 
         Claimant continued his regular job for the next two months or so 
 
         explaining that although his shoulder bothered him off and on 
 
         during this period of time, he was continuing to take the pain 
 
         medication prescribed by his physician and that he "lived with" 
 
         the shoulder trouble.
 
         
 
              Claimant was eventually referred to Jerome Bashara, M.D., 
 
         who, in October 1985, repaired a tear in claimant's rotator cuff. 
 
         Claimant testified that his shoulder was not really better after 
 
         the surgery and that he was not capable, because of the pain, of 
 
         returning to his regular employment.  Claimant did eventually 
 
         lose his employment with defendant employer when the company lost 
 
         its cleaning contract with the Hormel plant in March 1986.  
 
         Claimant acknowledged his separation from employment was 
 
         attributable to the fact there was no longer a job rather than 
 
         because of his injury, absence from work, or dissatisfaction with 
 
         his work performance.  Claimant testified he was under Dr. 
 
         Bashara's care until approximately February 1987 but maintained 
 
         that his shoulder did not truly improve as it continues to bother 
 
         him when he lies down, it interrupts or prohibits sleep, and it 
 
         causes pain in his back when he lies on his side.  Claimant 
 
         described a constant aching in the shoulder area, not going 
 
         beyond the shoulder blade in his back with some stiffness in the 
 
         neck and numbness to the elbow in the right arm.  (It should be 
 
         noted that claimant had surgery on both hands for carpal tunnel 
 
         syndrome approximately two weeks before the hearing.  Claimant 
 
         does not make any claim that this is related to his injury of 
 
         August 13, 1985.)  Claimant testified that he "favors" his right 
 
         shoulder, moves it around to keep it rotating and that driving 
 
         causes numbness in his arms both inside and out.
 
         
 
              Linda Gould testified that she has been married to claimant 
 
         since 1962 and described claimant's injury as a "big physical 
 
         breakdown" causing a loss of weight, a "broken spirit," a "lost 
 
         ability to reason," and depression.  She explained that when 
 
         claimant attempted to do heavy physical work he felt pain into 
 
         his neck and back.  Mrs. Gould acknowledged claimant's carpal 
 
         tunnel pain began when claimant was employed by another company 
 
         in January through April 1987.
 
         
 
              Robert Breedlove, M.D., orthopedic surgeon, testified he 
 
         first saw claimant April 8, 1986 with primary complaints of pain 
 
         with use of the right upper extremity and pain at night.  Dr. 
 
         Breedlove found claimant to have a near normal range of motion 
 
         and, believing it was too soon after surgery to render an opinion 
 
         on permanent impairment, recommended two to three months of 
 
         physical therapy and suggested an anti-inflammatory medication. 
 
         When claimant was next seen September 11, 1986, claimant 
 
                                                
 
                                                         
 
         continued to complain of right shoulder pain and a lot of popping 
 
         in his shoulder with use.  Dr. Breedlove found:
 
         
 
                   On physical examination he has abduction of 130 
 
              degrees, forward flexion of 165 degrees, internal rotation 
 
              of 40 degrees, external rotation of 80 degrees, and backward 
 
              elevation of 30 degrees.  He is also tender over the AC 
 
              joint.
 
         
 
                   ....
 
         
 
                   Permanent disability at this point is 9% to the right 
 
              shoulder.  This is based on 2% for decreased abduction, 2% 
 
              for decrease forward flexion, 2% for internal rotation, 2% 
 
              for external rotation, and 1% for backward elevation.  I 
 
              feel that the patient may benefit from a distal clavicular 
 
              resection if his pain continues.
 
         
 
         (Defendants' Exhibit 1; Deposition Exhibit 2, page 6)
 
         
 
              Dr. Breedlove again examined claimant December 4, 1987 and 
 
         of that examination testified:
 
         
 
              A.  I examined the patient's musculature and he appeared to 
 
              have normal muscle tone and thickness concerning the 
 
              posterior muscles of the right shoulder as compared to the 
 
              left shoulder.  Range of motion examination was performed. 
 
              Abduction was 160 degrees, forward flexion 140 degrees, 
 
              external rotation 80 degrees, internal rotation 30 degrees 
 
              and extension was 20 degrees.
 
         
 
              Q.  Doctor, would it be a fair statement that his condition, 
 
              based upon the examination of December 4th, 1987, had 
 
              improved from that of September 11th, 1986, insofar as range 
 
              of motion was concerned?
 
         
 
              A.  Yes, his range of motion was improved somewhat.
 
         
 
              Q.  Did you note any other problems that the claimant had 
 
         which would have been attributable to the August 8th, 1985 
 
         incident other than what you've described for me here, based upon 
 
         range of motion or a similar loss which would be covered under 
 
         the AMA guidelines?
 
         
 
         (Dep. Ex. 2, p. 9)
 
         
 
              Dr. Breedlove concluded that claimant had a seven percent 
 
         permanent partial impairment of the right dominant upper 
 
         extremity which, by use of the AMA Guidelines converted to a four 
 
         percent permanent partial impairment to the body as a whole.
 
         
 
              On June 20, 1986, Dr. Bashara opined:
 
         
 
                   This patient was last seen on May 29, 1986.  He has now 
 
              reached maximum improvement.
 
                                                
 
                                                         
 
         
 
                   His final diagnosis is a rotator cuff tear, right 
 
              shoulder, treated by surgery on October 30, 1985.
 
         
 
                   This patient is being given a 20% permanent partial 
 
              physical impairment of his right upper extremity which 
 
              converts to a 12% permanent partial physical impairment to 
 
              his body as a whole related to his rotator cuff injury.  The 
 
              rating was given for a mild to moderate restriction of 
 
              motion and mild loss of strength and pain.
 
         
 
              The medical records of B. C. Hillyer, M.D., revealed 
 
         claimant began treating for right shoulder problems in 1983 
 
         diagnosed as subacromial bursitis for which he received 
 
         injections and medications.  Claimant was admitted to the 
 
         Knoxville Area Community Hospital with hemarthrosis and 
 
         separation of the acromioclavicular joint on the right side 
 
         secondary to an injury at work.
 
         
 
              Claimant's exhibit B is the industrial disability appraisal 
 
         of G. Brian Paprocki, M.S., V.E., who stated:
 
         
 
                   Based on the information noted above, it is my belief 
 
              that the claimant has sustained an industrial disability of 
 
              approximately 30%.  This rating is principally based on the 
 
     
 
                       
 
                                                         
 
              following factore [sic]:  the claimant's inability to return 
 
              to his former employment as an industrial cleaning crew 
 
              supervisor; the total loss of income while seeking 
 
              reemployment; and the differential between the earning 
 
              potential of his last job and the alternative work he is 
 
              likely to secure.
 
         
 
         (Def. Ex. B, p. 1)
 
         
 
         (This document was admitted for its probative value.  It is 
 
         determined, however, that it has little probative value.  Mr. 
 
         Paprocki has not been shown to have the qualifications to render 
 
         an evaluation of industrial disability.  The document fails to 
 
         indicate that Mr. Paprocki has any legal training and his report 
 
         clearly indicates that he is not familiar with the concepts of 
 
         industrial disability within the state of Iowa.  Mr. Paprocki has 
 
         based his industrial disability rating of approximately 30 
 
         percent on claimant's inability to return to work as an 
 
         industrial cleaning supervisor, a loss of income while seeking 
 
         reemployment, and the differential between earning potential of 
 
         his last job and the alternate work claimant is likely to secure.  
 
         A review of this criteria establishes that none of the criteria 
 
         has anything to do necessarily with claimant's injury but all 
 
         have to do with the fact that claimant lost his employment.  It 
 
         must be remembered that claimant lost his employment with 
 
         defendant employer as a result of the employer's loss of the 
 
         service contract and not as a result of claimant's injury, his 
 
         absence, or any dissatisfaction with his employment.  Defendant 
 
         employer simply no longer had any work available to claimant.  
 
         Further, a loss of earnings is only one of the many factors of 
 
         industrial disability under Iowa law. The report fails to 
 
         establish Mr. Paprocki conducted any studies into the actual 
 
         availability of jobs to the claimant or his ability to perform 
 
         any of available jobs.  The usefulness of this report is limited 
 
         to providing a summary of claimant's medical and employment 
 
         history.)
 
         
 
                                  APPLICABLE LAW
 
         
 
              An employee is entitled to compensation for any and all 
 
         personal injuries which arise out of and in the course of the 
 
         employment.  Section 85.3(1).
 
         
 
              Permanent partial disabilities are classified as either 
 
         scheduled or unscheduled.  A specific scheduled disability is 
 
         evaluated by the functional method; the industrial method is used 
 
         to evaluate an unscheduled disability.  Martin v. Skelly Oil Co., 
 
         252 Iowa 128, 133, 106 N.W.2d 95, 98 (1960); Graves v. Eagle Iron 
 
         Works, 331 N.W.2d 116 (Iowa 1983); Simbro v. DeLong's Sportswear, 
 
         332 N.W.2d 886, 887 (Iowa 1983).
 
         
 
              If a claimant contends he has industrial disability he has 
 
         the burden of proving his injury results in an ailment extending 
 
         beyond the scheduled loss.  Kellogg v. Shute and Lewis Coal Co., 
 
         256 Iowa 1257, 130 N.W.2d 667 (1964).  A shoulder injury, not 
 
                                                
 
                                                         
 
         scheduled being, is an injury to the body as a whole.  Alm v. 
 
         Morris Barick Cattle Co., 240 Iowa 1174, 38 N.W.2d 161 (1949).
 
         
 
                                 ANALYSIS
 
         
 
              Although the parties have not stipulated claimant's work 
 
         injury is the cause of permanent disability, the medical experts 
 
         who testified or presented evidence agree that claimant's injury 
 
         of August 13, 1985 has resulted in a permanent impairment.  The 
 
         essential issue for determination is the nature and extent of 
 
         claimant's permanent disability.  Initially, it is determined 
 
         that based upon the situs of the injury as well as claimant's own 
 
         testimony of subjective symptoms beyond the upper extremity, 
 
         claimant has sustained an injury to his shoulder which 
 
         constitutes under Alm, supra, an injury to the body as a whole.  
 
         See also Nazarenus v. Oscar Mayer & Company, II Iowa Industrial 
 
         Commissioner Reports 281 (Appeal Decision 1982), and Lauhoff 
 
         Grain Co. v. McIntosh, 395 N.W.2d 834 (Iowa 1986).
 
         
 
              There are two impairment ratings in the record., Dr. 
 
         Breedlove, who evaluated and was the last physician to see 
 
         claimant for his work-related injury, opined claimant sustained a 
 
         seven percent permanent partial impairment of the upper right 
 
         extremity or four percent impairment to the body as a whole based 
 
         upon the range of motion.  Dr. Bashara, who surgically treated 
 
         claimant for his injury, found claimant to have a 20 percent 
 
         permanent partial impairment of the upper right extremity or 12 
 
         percent impairment to the body as a whole based on a "mild to 
 
         moderate restriction of motion and mild loss of strength and 
 
         pain."  Dr. Bashara, however, fails to present any specific data 
 
         on what constitutes "mild to moderate" or "mild loss" and fails 
 
         to indicate exactly on what he is basing his opinion.  None of 
 
         Dr. Bashara's other medical records have been submitted into 
 
         evidence and consequently, it is difficult, at best, to determine 
 
         the accuracy of his opinion.  Therefore, the opinion of Dr. 
 
         Bashara is given less weight than the opinion of Dr. Breedlove 
 
         who expressly states the basis for his rating.
 
         
 
              Functional disability is an element to be considered in 
 
         determining industrial disability which is the reduction of 
 
         earning capacity, but consideration must also be given to the 
 
         injured employee's age, education, qualifications, experience and 
 
         inability to engage in employment for which he is fitted.  Olson 
 
         v. Goodyear Service Stores, 255 Iowa 1112, 125 N.W.2d 251 (1963). 
 
         Barton v. Nevada Poultry, 253 Iowa 285, 110 N.W.2d 660 (1961).
 
         
 
              A finding of impairment to the body as a whole by a medical 
 
         evaluator does not equate to industrial disability.  This is so 
 
         as impairment and disability are not synonymous.  The degree of 
 
         industrial disability can in fact be much different than the 
 
         degree of impairment because in the first instance reference is 
 
         to loss of earning capacity and in the later to anatomical or 
 
         functional abnormality or loss.  Although loss of function is to 
 
         be considered and disability can rarely be found without it, it 
 
         is not so that a degree of industrial disability is 
 
                                                
 
                                                         
 
         proportionally related to a degree of impairment of bodily 
 
         function.
 
         
 
              Factors to be considered in determining industrial 
 
         disability include the employee's medical condition prior to the 
 
         injury, immediately after the injury, and presently; the situs of 
 
         the injury, its severity and the length of healing period; the 
 
         work experience of the employee prior to the injury, after the 
 
         injury and potential for rehabilitation; the employee's 
 
         qualifications intellectually, emotionally and physically; 
 
         earnings prior and subsequent to the injury; age; education; 
 
         motivation; functional impairment as a result of the injury; and 
 
         inability because of the injury to engage in employment for which 
 
         the employee is fitted. Loss of earnings caused by a job transfer 
 
         for reasons related to the injury is also relevant.  These are 
 
         matters which the finder of fact considers collectively in 
 
         arriving at the determination of the degree of industrial 
 
         disability.
 
         
 
              There are no weighting guidelines that indicate how each of 
 
         the factors are to be considered.  There are no guidelines which 
 
         give, for example, age a weighted value of ten percent of the 
 
         total value, education a value of fifteen percent of total, 
 
         motivation - five percent; work experience - thirty percent, etc. 
 
         Neither does a rating of functional impairment directly correlate 
 
         to a degree of industrial disability to the body as a whole.  In 
 
         other words, there are no formulae which can be applied and then 
 
         added up to determine the degree of industrial disability.  It 
 
         therefore becomes necessary for the deputy to draw upon prior 
 
         experience, general and specialized knowledge to make the finding 
 
         with regard to degree of industrial disability.  See Christensen 
 
         v. Hagen, Inc., (Appeal Decision, March 26, 1985); Peterson v. 
 
         Truck Haven Cafe, Inc., (Appeal Decision, February 28, 1985).
 
         
 
              Claimant was 51 years old at the time of hearing and is a 
 
         high school graduate with one year of junior college training in 
 
         business administration.  Claimant has work experience as a cook, 
 
         baker, and working with dairy products.  For approximately 19 1/2 
 
         years claimant worked in the sanitation department of Rodeo Meats 
 
         in Arkansas City, Kansas, cleaning the packinghouse and equipment. 
 
         Claimant was earning $450 per week with defendant employer at the 
 
         time of his injury, and at the time of hearing was employed as a 
 
         janitor working 39 1/2 hours per week at $4.00 per hour.  It must 
 
         be noted, however, that claimant's loss of his employment with 
 
         defendant employer cannot be directly attributed to his injury 
 
         since it was the employer's loss of its service contract with the 
 
         Hormel plant that led to claimant's unemployed status.  In 
 
         addition to his laborer/janitorial duties with defendant employer, 
 
         claimant performed supervisory and administrative duties including 
 
         bookkeeping, personnel functions, and the keeping of time records 
 
         and reports.  However, it is acknowledged that the majority of 
 
         claimant's work experience was not in supervision or management 
 
         but rather was as a laborer doing the day-to-day work of a 
 
         janitor. Claimant's medical records show that prior to his injury 
 
         of August 13, 1985, he was diagnosed as having bursitis in his 
 
                                                
 
                                                         
 
         right shoulder which was severe enough to have sought medical 
 
         attention and to have received pain medication.  However, it does 
 
         not appear from the records that this condition interfered with 
 
         his ability to perform his job.  Neither Dr. Bashara nor Dr. 
 
         Breedlove, however, appear to place any restrictions on claimant's 
 
         employability. Claimant exhibited marked sincerity during his 
 
         testimony concerning his desire to be exact over events of the 
 
         past and his need as well as his desire to be employed.  
 
         Claimant's capacity to learn has clearly been hampered as a result 
 
         of his injury.  Considering then all of the elements of industrial 
 
         disability, it is found that claimant has sustained a permanent 
 
         partial disability of 15 percent for industrial purposes as a 
 
         result of his injury on August 13, 1985.
 
         
 
                             FINDINGS OF FACT
 
         
 
              Wherefore, based on all of the evidence presented, the 
 
         following findings of fact are made:
 
         
 
              1.  Claimant, at the time of hearing, was 51 years old and a 
 
         high school graduate with one year training in business 
 
         administration at junior college.
 
         
 
              2.  Claimant has work experience as a cook, baker, working 
 
         with dairy products, and a janitor, doing manual labor, 
 
         supervising, and a combination of both.
 
         
 
              3.  Claimant sustained an injury which arose out of and in 
 
         the course of his employment on August 13, 1985 to his right 
 
         smoulder resulting in surgery to repair a torn rotator cuff.
 
         
 
              4.  Claimant sustained a permanent partial impairment as a 
 
         result of the work injury.
 
 
 
                             
 
                                                         
 
         
 
              5.  Claimant has a permanent partial disability to the body 
 
         as a whole as a result of the work injury of August 13, 1985.
 
         
 
              6.  Claimant, who was earning $450 per week at the time of 
 
         the injury, lost its employment with defendant employer when the 
 
         employer lost his service contract with the Hormel plant where 
 
         claimant was employed as a working supervisor of six people 
 
         cleaning and maintaining the plant and grounds.
 
         
 
              7.  Claimant is currently employed as a janitor earning 
 
         $4.00 per hour.
 
         
 
              8.  Claimant's decrease in earnings cannot all be directly 
 
         attributable to his injury although claimant's capacity to earn 
 
         has been hampered as a result of his work injury.
 
         
 
              9.  Claimant continues to perceive a constant aching in his 
 
         shoulder extending to his arm, back and neck.
 
         
 
              10.  Claimant has a 15 percent industrial disability as a 
 
         result of his work injury of August 13, 1985.
 
         
 
                             CONCLUSIONS OF LAW
 
         
 
              Wherefore, based on the principles of law previously stated, 
 
         the following conclusions of law are made:
 
         
 
              1.  Claimant has met his burden of establishing an injury to 
 
         the body as a whole.
 
         
 
              2.  Claimant has established an industrial disability of 15 
 
         percent as a result of his.work injury of August 13, 1985.
 
         
 
                                   ORDER
 
         
 
              THEREFORE, IT IS ORDERED:
 
         
 
              That defendants are to pay to claimant seventy-five (75) 
 
         weeks of permanent partial disability benefits at the stipulated 
 
         rate of two hundred seventy-nine and 40/100 dollars ($279.40) per 
 
         week commencing April 22, 1987.
 
         
 
              That defendants shall receive full credit for all permanent 
 
         partial disability benefits previously paid.
 
         
 
              That payments that have accrued shall be paid in a lump sum 
 
         together with statutory interest thereon pursuant to Iowa Code 
 
         section 85.30.
 
         
 
              That a claim activity report shall be filed upon payment of 
 
         this award.
 
         
 
              That costs of this action are assessed against defendants 
 
         pursuant to Division of Industrial Services Rule 343-4.33.
 
                                                
 
                                                         
 
         
 
              Signed and filed this 17th day of May, 1988.
 
         
 
         
 
         
 
         
 
         
 
         
 
                                            DEBORAH A. DUBIK
 
                                            DEPUTY INDUSTRIAL COMMISSIONER
 
         
 
         Copies to:
 
         
 
         Mr. Harold Heslinga
 
         Attorney at Law
 
         118 North Market Street
 
         Oskaloosa, Iowa  52577
 
         
 
         Mr. Walter F. Johnson
 
         Attorney at Law
 
         P.O. Box 716
 
         111 West Second Street
 
         Ottumwa, Iowa  52501
 
 
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                            1803.1
 
                                            Filed May 17, 1988
 
                                            Deborah A. Dubik
 
         
 
                   BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         LESTER D. GOULD,
 
         
 
              Claimant,
 
                                                    File No. 806729
 
         vs.
 
         
 
         CONTRACT SERVICES, LTD.,                A R B I T R A T I 0 N
 
         
 
              Employer,                             D E C I S I 0 N
 
         
 
         and
 
         
 
         LIBERTY MUTUAL INSURANCE
 
         COMPANY,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         1803.1
 
         
 
              Claimant's injury to his shoulder extended beyond the upper 
 
         extremity and therefore found to be to the body as a whole. 
 
         Claimant awarded 15% permanent partial disability benefits.
 
 
 
         
 
         
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                   BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         LARRY R. COCHRAN,
 
         
 
              Claimant,                              File No. 806769
 
         
 
         vs.                                           A P P E A L
 
         
 
         BUCK HUMMER TRUCKING,                         R U L I N G
 
         
 
              Employer,
 
                                                        F I L E D
 
         and
 
                                                       MAR 25 1988
 
         THE HARTFORD INSURANCE
 
         COMPANY,                             IOWA INDUSTRIAL COMMISSIONER
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
              Division of Industrial Services Rule 343-4.27 states in 
 
              part:
 
         
 
                   No appeal shall be separately taken under this or 4.25 
 
              (17A, 86) from an interlocutory decision, order or ruling of 
 
              a deputy industrial commissioner.  A decision, order or 
 
              ruling is interlocutory if it does not dispose of the 
 
              contested case, unless the sole issue remaining for 
 
              determination is claimant's entitlement to additional 
 
              compensation for unreasonable denial or delay of payment 
 
              pursuant to Iowa Code section 86.13.
 
         
 
              The ruling filed March 3, 1988, which is the subject matter 
 
         of this appeal, is not dispositive of the contested case and 
 
         therefore interlocutory.
 
         
 
              THEREFORE, the appeal filed March 15, 1988 is hereby 
 
         dismissed.
 
         
 
         
 
              Signed and filed this 25th day of March, 1988.
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
                                               DAVID E. LINQUIST
 
                                            INDUSTRIAL COMMISSIONER
 
         
 
                                                
 
                                                         
 
         Copies To:
 
         
 
         Mr. John T. Nolan
 
         Attorney at Law
 
         22 East Court Street
 
         Iowa City, Iowa  52240
 
         
 
         Mr. Larry L. Shepler
 
         Attorney at Law
 
         600 Union Arcade Bldg.
 
         111 East Third Street
 
         Davenport, Iowa  52801-1550
 
 
 
         
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         TERRY W. SIMONS,
 
         
 
              Claimant,
 
         
 
         vs.
 
                                                    FILE NO. 806802
 
         PRIDE SEED COMPANY,
 
                                                 A R B I T R A T I 0 N
 
              Employer,
 
                                                    D E C I S I O N
 
         and
 
         
 
         LIBERTY MUTUAL,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         
 
         
 
                              STATEMENT OF THE CASE
 
         
 
              This is a proceeding in arbitration brought by Terry W. 
 
         Simons, claimant, against Pride Seed Company, employer 
 
         (hereinafter referred to as Pride), and Liberty Mutual Insurance 
 
         Company, insurance carrier, defendants, for workers' compensation 
 
         benefits as a result of an alleged injury on October 8, 1985.  On 
 
         December 11, 1987, a hearing was held on claimant's petition and 
 
         the matter was considered fully submitted at the close of this 
 
         hearing.
 
         
 
              The parties have submitted a prehearing report of contested 
 
         issues and stipulations which was approved and accepted as a part 
 
         of the record of this case at the time of hearing.  Oral 
 
         testimony was received during the hearing from claimant and Mark 
 
         Cleveland.  The exhibits received into the evidence at the 
 
         hearing are listed in the prehearing report.  According to the 
 
         prehearing report the parties have stipulated that at the time of 
 
         the alleged injury an employer/employee relationship existed 
 
         between Pride and claimant.
 
         
 
                                      ISSUES
 
         
 
              The parties submitted the following issues for determination 
 
         in this proceeding:
 
         
 
              I.  Whether claimant received an injury arising out of and 
 
         in the course of employment with a claim that the injury was the 
 
         result of a non-compensable horseplay;
 
         
 
              II.  Whether there is a causal relationship between the work 
 
         injury and the claimed disability; and,
 
         
 
             III.  The extent of weekly disability benefits to which 
 
         claimant is entitled.
 

 
         
 
         
 
         
 
         SIMONS V. PRIDE SEED COMPANY
 
         Page   2
 
         
 
         
 
         
 
                           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 may show are evitable.  Such conclusions, if any, in 
 
         the following summary should be considered as preliminary 
 
         findings of fact.
 
         
 
              Claimant testified that at the time of the alleged work 
 
         injury he was employed at Pride as a general laborer.  Generally, 
 
         this involved the bagging of seed corn and beans but claimant 
 
         testified that he would also help set up a "wheel" for bagging, 
 
         check bins, sweep the floor and stack bags after they were filled 
 
         and sewed.  There was no dispute in the evidence that claimant 
 
         worked under the supervision of Mark Cleveland and a leadman, 
 
         Dave Holst.  Generally, claimant's crew consisted of four 
 
         persons, claimant, Gary Peterson, Kevin Bauer and Dave Holst who 
 
         were all involved in the bagging operation.
 
         
 
              Claimant testified that a lot of horseplay was conducted on 
 
         the part of all of the members of his crew during various breaks 
 
         at Pride during the bagging process with the knowledge of Holst 
 
         and Cleveland.  Claimant said that he observed Cleveland 
 
         participate in tieing one person up with tape and on another 
 
         occasion Cleveland hid a bicycle from another employee by tieing 
 
         it to the ceiling.  Cleveland, in his testimony, admitted to the 
 
         bicycle incident but denied tieing any one up.  Claimant further 
 
         testified that prior to the alleged work injury date such 
 
         horseplay included shooting objects such as paper clips with a 
 
         rubber band either at boxes in the area or at birds in the plant.  
 
         Claimant said there was no attempt to hide any of this activity 
 
         from their superiors.
 
         
 
              On the day of the alleged work injury, claimant testified 
 
         that at the first morning break the horseplay began again with 
 
         Bauer, Peterson and claimant shooting small wires at walls in 
 
         full view of the leadmen who made no attempt to end such 
 
         activity.  They then began to shoot at a nearby box.  Claimant 
 
         said that then Bauer and Peterson went to another area and 
 
         starting shooting the wires at claimant when he was adjusting the 
 
         wheel.  Claimant said that he told them to stop.  When they 
 
         failed to end this activity, claimant stated that he then shot a 
 
         couple of wires at them.   When Bauer and Peterson returned fire, 
 
         claimant said that he again told them to quit because he "didn't 
 
         want to get hit."  Claimant then retreated to the second floor 
 
         via the one man elevator to get away from this activity and to 
 
         pound on the treatment barrel located on the second floor with a 
 
         rubber mallet to jar corn loose from the sides of the barrel.  
 
         Claimant stated that such pounding on the treatment barrel was a 
 
         part of his usual duties at Pride although he only occasionally 
 
         performed such activity.  He denied that such work was primarily 
 
         the responsibility of Bauer.  This barrel is located in a small 
 
         room with contains an opening for persons using the elevator and 
 
         a door on the other side of the room which opens to the second 
 

 
         
 
         
 
         
 
         SIMONS V. PRIDE SEED COMPANY
 
         Page   3
 
         
 
         floor.  A person leaving this small room through the door is in 
 
         full view of persons standing on the first floor adjacent to the 
 
         stairway.  Claimant said that after beating on the barrel three 
 
         or four times, he opened the door to leave the barrel room and he 
 
         saw Bauer and Peterson standing immediately below on the first 
 
         floor but he could not tell if they were shooting at him.  Then 
 
         something hit him in the eye and he fell backwards and 
 
         experienced a burning sensation in the right eye.  Claimant said 
 
         that he could not tell at that time what had hit him.  Claimant 
 
         stated that it could have been a wire shot by either Bauer or 
 
         Peterson or a kernel of corn falling from bins located above his 
 
         head on third floor.  There was a number of kernels of corn on 
 
         the floor at the time.
 
         
 
              Claimant then reported the injury to Cleveland and testified 
 
         that he told Cleveland that he either got dust in his eye from 
 
         pounding on the treating barrel or from splashing "cat can", a 
 
         seed corn additive, in his eye.  Claimant explains that he lied 
 
         to Cleveland because he did not want to get anyone into trouble.  
 
         Cleveland responded that claimant must have done more than splash 
 
         a chemical in his eye after examining the eye and he had another 
 
         employee transport claimant to the hospital.  Claimant told 
 
         physicians at the hospital upon admission the same story that he 
 
         told Cleveland.  Claimant testified that the next day he told 
 
         Cleveland the truth and that Cleveland said he would put down on 
 
         the company record that a belt broke and slapped into claimant's 
 
         eye.  Claimant stated then that Cleveland talked to Bauer and 
 
         Peterson who both denied shooting at claimant.  Also there is no 
 
         dispute that Cleveland directed Holst after this incident to 
 
         sweep the floor around the treating barrel room to look for the 
 
         wire but Holst found no such wire or any other object that may 
 
         have been shot at claimant.  According to claimant's medical 
 
         records, a few days after the incident claimant changed his story 
 
         to his eye physicians and stated at that time that a wire bounced 
 
         off a wall and struck him in the eye.  Also, according to the 
 
         medical records, claimant was not very cooperative with his 
 
         physicians.  He first refused to take a blood count test.  
 
         Claimant explained at hearing that he was scared of any procedure 
 
         involving the taking of blood.  Also, according to the records, 
 
         claimant did not take his medication as directed and left the 
 
         hospital early against physicians' advice.  Claimant denied 
 
         leaving the hospital without his doctor's permission.
 
         
 
              After extensive treatment of claimant's eye injury, 
 
         physicians made a final diagnosis of corneal laceration, hyphema, 
 
         traumatic cataract and chamber angle recession caused by "blunt 
 
         trauma."  Claimant's treating physicians opined that claimant 
 
         currently suffers from 83 percent loss of vision in the right eye 
 
         and within one to five years claimant will have to undergo a 
 
         complete removal of the lens in the right eye which will increase 
 
         his disability.  Claimant is also susceptible to future 
 
         glaucoma.
 
         
 
              The parties submitted a deposition from Kevin Bauer.  Absent 
 
         from the record is any testimony from Peterson or Holst.  Bauer 
 
         contradicted much of claimant's story.  Bauer denied that they 
 
         had shot wires before that day and that claimant was the first 
 
         person to cut up wires for shooting.  This aspect was denied by 
 
         claimant.  Bauer admitted to the fact that claimant, Peterson and 
 
         himself were shooting wires at each other but denied that 
 

 
         
 
         
 
         
 
         SIMONS V. PRIDE SEED COMPANY
 
         Page   4
 
         
 
         claimant ever told them to stop.  According to Bauer, Holst had 
 
         left the area while they were doing this activity.  Bauer stated 
 
         that after about five minutes of this activity claimant went to 
 
         the barrel room on the second floor.  Bauer denied that he heard 
 
         any hammering inside the barrel room.  Bauer testified that it 
 
         was his sole responsibility to do such hammering and not the duty 
 
         of claimant.  He stated that he had just performed such hammering 
 
         activity shortly before the wire shooting activity.  Bauer 
 
         testified that after a brief period of time, claimant peered out 
 
         from behind the doorway looking through the crack on the hinged 
 
         side of the door and began to open the door very slowly.  Bauer 
 
         said that he and Peterson ran away as they assumed claimant was 
 
         going to shoot at them from behind the door.  According to Bauer 
 
         shortly thereafter claimant came down from the barrel room and 
 
         began rubbing his eye and stating that his eye "burns."  Bauer 
 
         stated that he learned later that claimant had injured his eye.  
 
         Bauer believes that claimant struck himself in the eye while 
 
         attempting to shoot at Peterson and himself.
 
         
 
              Cleveland, now a branch manager for Northrup King, a 
 
         successor corporation to Pride, testified that claimant initially 
 
         did not tell him what had happened and he filled out an accident 
 
         report stating that the cause of the injury was unknown.  After 
 
         an investigation, he eventually learned of the shooting of the 
 
         incident from Bauer and Peterson.  He stated that Holst did not 
 
         have the ability to fire and hire.  He stated that both Bauer and 
 
         Peterson denied to him shooting anything at claimant on the 
 
         second floor.  Cleveland also testified that Holst was the person 
 
         responsible for keeping the treatment barrel working.  He denied 
 
         any prior knowledge of any horseplay.  He stated that the crew is 
 
         to be sweeping the floor or performing other duties between the 
 
         bagging  operations.  Cleveland admitted suggesting possible 
 
         causes of claimant's eye injury such as belt breaking or corn 
 
         falling when claimant initially stated to him that he did not 
 
         know what had caused the injury.
 
                           
 
                           APPLICABLE LAW AND ANALYSIS
 
         
 
              I.  Claimant has the burden of proving by a preponderance of 
 
         the evidence that claimant received an injury which arose out of 
 
         and in the course of employment.  The words "out of" refer to the 
 
         cause or source of the injury.  The words "in the course of" 
 
         refer to the time and place and circumstances of the injury.  
 
         See Cedar Rapids Community Sch. v. Cady, 278 N.W.2d 298 (Iowa 
 
         1979); Crowe v. DeSoto Consol. Sch. Dist., 246 Iowa 402, 68 
 
         N.W.2d 63 (1955).  An employer takes an employee subject to any 
 
         active 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 cited at the hearing a Michigan case, Crilly v. 
 
         Ballou, 91 N.W.2d 493 (Mich 1958).  Justice Smith's eloquent and 
 
         profound decision in that case nullifying the horseplay defense 
 
         in Michigan workers' compensation cases certainly is convincing 
 
         as to what should be the law within this state.  Unfortunately 
 
         for claimant, the law set forth in Crilly is not the law of Iowa. 
 
          As a presiding officer in an administrative hearing, this deputy 
 
         commissioner is helpless to change long established precedents of 
 
         the courts and of the industrial commissioner in this state 
 

 
         
 
         
 
         
 
         SIMONS V. PRIDE SEED COMPANY
 
         Page   5
 
         
 
         dealing with horseplay.  The rule of law in Iowa is stated in 
 
         Lawyer & Higgs, Iowa Workers' Compensation -- Law and Practice, 
 
         section 6-8, page 48 as follows:  "When an employee of his own 
 
         violation initiates horseplay or practical joking and actively 
 
         takes part, any injury received will not be compensable because 
 
         it did not arise out of and in the course of employment."
 
         
 
              In the case sub judice, few facts are clear.  It can be 
 
         concluded from the evidence that claimant's eye injury probably 
 
         was the result of a wire shot from a rubber band striking the eye 
 
         as a result of a horseplay incident.  It is also apparent that 
 
         such horseplay was without any sort of malice or willful intent.  
 
         The theory that claimant's eye was struck by a kernel of corn 
 
         from above appears impausible from the testimony of the 
 
         witnesses.  However, nothing can be concluded as to how and by 
 
         whom the wire was shot.  It is possible claimant struck himself 
 
         and it is equally possible that claimant was struck by a wire.  
 
         Claimant admits participation but claims he later retreated.  
 
         Frankly, it is impossible for this deputy to conclude who is 
 
         telling the truth in this case.  One would think that Bauer's 
 
         testimony would be the most credible as he no longer works for 
 
         Pride and has the least to gain from lying.  On the other hand, 
 
         an admission of fault by Bauer may subject him to liability for 
 
         claimant's eye injury.  The conflicting stories of claimant did 
 
         not aid in establishing his credibility.  Although one can 
 
         appreciate a desire to protect fellow employees, one would think 
 
         that such a concern would end when it comes to providing proper 
 
         information to one's physician in case of a serious eye injury.  
 
         Also, claimant's testimony at the hearing as to the fact that he 
 
         now does not know what happened is different from the last story 
 
         he told his physicians.  According to the medical reports he last 
 
         reported to his physicians was that a wire had ricocheted off a 
 
         wall and struck his eye.
 
         
 
              Claimant's attempt to resurrect his case by imputing 
 
         knowledge or consent to the employer fails due to the hopelessly 
 
         conflicting evidence as to the prior acts of horseplay involving 
 
         shooting objects with rubber bands before the work injury.
 
         
 
              In a case where the trier of fact is unable to determine 
 
         when a party is telling the truth, claimant must lose as claimant 
 
         has the burden of proof and persuasion.  The horseplay defense is 
 
         not an affirmative defense in which defendants assume the burden 
 
         of proof.  Claimant must establish a lack of participation in 
 
         horseplay activity as a part of his burden that the injury arose 
 
         out of and in the course of his employment.  Therefore, claimant 
 
         has not established a compensable work injury in this case and 
 
         cannot be awarded benefits.
 
         
 
         
 
                                 FINDINGS OF FACT
 
         
 
              1.  Claimant's right eye was injured on October 8, 1985 as a 
 
         result of horseplay activity involving the shooting of pieces of 
 
         wire with rubber bands.  Such horseplay was not the result of 
 
         maliciousness or willful intent to injure claimant.  The final 
 
         diagnosis of the injury was corneal laceration, hyphema, 
 
         traumatic cataract and chamber angle recession of the right eye 
 
         caused by blunt trauma.
 
         
 

 
         
 
         
 
         
 
         SIMONS V. PRIDE SEED COMPANY
 
         Page   6
 
         
 
              2.  It could not be found who initiated the horseplay or 
 
         whether claimant was an active participant in the horseplay at 
 
         the precise time claimant's eye was injured.  It could not be 
 
         found that claimant and others had engaged in such horseplay in 
 
         view of their superiors prior to the time of the injury.  It 
 
         could not be found from the evidence and claimant's demeanor 
 
         whether claimant was telling the truth or whether Bauer, a fellow 
 
         employee, was telling the truth about the incident. it could not 
 
         be found that claimant suffered an injury to his right eye which 
 
         arose out of and in the course of his employment at Pride.
 
         
 
         
 
                                CONCLUSIONS OF LAW
 
         
 
              Claimant has failed to establish by a preponderance of the 
 
         evidence entitlement to disability benefits.
 
         
 
                                      ORDER
 
         
 
              1.  Claimant's petition is dismissed.
 
         
 
              2.  Claimant shall pay the costs of this action pursuant to 
 
         Division of Industrial Services Rule 343-4.33.
 
         
 
         
 
              Signed and filed this 26th day of January, 1988.
 
         
 
         
 
         
 
         
 
         
 
         
 
                                         LARRY P. WALSHIRE
 
                                         DEPUTY INDUSTRIAL COMMISSIONER
 
         
 
         
 
         Copies To:
 
         
 
         Mr. R. Douglas Wells
 
         Attorney at Law
 
         617 Brady Street
 
         Davenport, Iowa 52803
 
         
 
         Mr. Greg A. Egbers
 
         Mr. Mark A. Woolums
 
         Attorneys at Law
 
         600 Union Arcade Bldg.
 
         111 East Third St.
 
         Davenport, Iowa 52801-1550
 
         
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                                1105
 
                                                Filed January 26, 1988
 
                                                LARRY P. WALSHIRE
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         TERRY W. SIMONS,
 
         
 
              Claimant,
 
         
 
         vs.
 
                                                    FILE NO.  806802
 
         PRIDE SEED COMPANY,
 
                                                 A R B I T R A T I 0 N
 
              Employer,
 
                                                    D E C I S I 0 N
 
         and
 
         
 
         LIBERTY MUTUAL,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         
 
         1105
 
         
 
              Claimant denied benefits as a result of an inability to 
 
         establish an injury arising out of and in the course of 
 
         employment.  It appeared that the injury was the result of 
 
         horseplay and it could not be concluded who was telling the truth 
 
         as to claimant's participation at the time of injury.