BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         PHILLIP LEROY BECKMAN,
 
         
 
              Claimant,
 
         
 
         vs.                                       File No. 806809
 
         
 
         PRECISION SERVICE, INC./A             A R B I T R A T I 0 N
 
         DIV. OF BINGO KING,
 
                                                   D E C I S I 0 N
 
              Employer,
 
         
 
         and
 
         
 
         
 
         LIBERTY MUTUAL INSURANCE CO.
 
         and AETNA CASUALTY AND SURETY,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         
 
                              STATEMENT OF THE CASE
 
         
 
              This is a proceeding in arbitration brought by Phillip Leroy 
 
         Beckman, claimant, against Precision Service, Inc., a Division of 
 
         Bingo King, employer (hereinafter referred to as Precision), and 
 
         both Liberty Mutual Insurance Company and Aetna Casualty and 
 
         Surety Company, insurance carriers, for workers' compensation 
 
         benefits as a result of an alleged injury on either February 3, 
 
         1984 or October 29, 1985.  On April 26, 1988, a hearing was held 
 
         on claimant's petition and the matter was considered fully 
 
         submitted at the close of this hearing.
 
         
 
              The parties have submitted a prehearing report of contested 
 
         issues and stipulations which was approved and accepted as a part 
 
         of the record of this case at the time of hearing.  Oral 
 
         testimony was received during the hearing from claimant and his 
 
         wife, Nancy Mae.  The exhibits received into the evidence at the 
 
         hearing are listed in the prehearing report.  According to the 
 
         prehearing report the parties have stipulated to the following 
 
         matters:
 
         
 
              1.  The alleged work injury was a cause of both temporary 
 
         and permanent disability;
 
         
 
              2. If defendants are held liable for the injury, claimant is 
 
         entitled to healing period benefits from October 30, 1985 through 
 
         February 2, 1986 and temporary partial disability from February 
 
         3, 1986 through July 2, 1986.  It was further stipulated that 
 
         claimant returned to full duty on July 3, 1986;
 
              
 
              3.  Claimant's rate of weekly compensation in the event of 
 
              
 
                                                
 
                                                         
 
         
 
         an award of weekly benefits from this proceeding shall be $326.18 
 
         for the February 3, 1984 injury date and $378.02 for the October 
 
         29, 1985 injury date;
 
         
 
              4.  If the injury is found to have caused permanent 
 
         disability,the type of permanent disability is an industrial 
 
         disability to the body as a whole;
 
         
 
              5. The provider of the medical services whose bills were 
 
         submitted by claimant at hearing would testify that they were 
 
         incurred by claimant for reasonable treatment of the alleged work 
 
         injury and that the charges are fair and reasonable.  Defendants 
 
         are not offering contrary evidence.  Also, these bills are 
 
         causally connected to the medical condition upon which the claim 
 
         herein is based but the issue of their causal connection to a 
 
         work injury remains an issue to be decided; and,
 
         
 
              6.  Aetna's coverage ended and Liberty MutualOs coverage 
 
         began at 12:00 noon on July 1, 1984.
 
         
 
                                      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;
 
         
 
              II.  Whether there is a causal relationship between the work 
 
         injury and the claimed disability;
 
         
 
              III  The extent of weekly disability benefits to which 
 
         claimant is entitled; and,
 
         
 
              IV.  The extent of claimant's entitlement to medical 
 
         benefits under Iowa Code section 85.27.
 
         
 
                             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 
 
         nearing was considered in arriving at this decision.  As will be 
 
         the case in any attempted summarization, conclusions about what 
 
         the evidence offered may show are inevitable.  Such conclusions, 
 
         it any, in the following summary should be considered as 
 
         preliminary findings of fact.
 
         
 
              Claimant testified that he has worked for Precision since 
 
         May, 1981 as a printer.  His duties consist of the operation of a 
 
         large printing press with the help of an assistant.  This 
 
         involves not only the operation of hand controls but supplying 
 
         the printer with paper and ink.  Claimant states that he also 
 
         installs the printing plates.  None of the duties described by 
 
                                                
 
                                                         
 
         claimant require heavy lifting.  However, the job does require 
 
         prolong standing, sitting and repetitive lifting, twisting and 
 
         bending and loading the press with paper.  Claimant stated that 
 
         approximately 4,000 sheets of paper weighing two tons is normally 
 
         placed into the printer feeder at one time with the use of an 
 
         electric lift truck.  According to claimant, this work involves 
 
         repetitive pushing, reaching and pulling.  Also, in order to 
 
         print on both sides of the paper which occurs frequently, 
 
         claimant and his helper must individually turn over stacks of 
 
         paper and manually teed the paper back into the machine.  
 
         Claimant said that before his claimed work injury he could handle 
 
         approximately two inches of paper but today he can only handle 
 
         one inch.  The ink is placed into the printer with a five pound 
 
         can but claimant admitted in his deposition that this is normally 
 
         done by his helper.  The plates weigh approximately two pounds 
 
         each.  Claimant continues to work for the Precision at the 
 
         present time.  Claimant testified that in 1984 he earned $13. 50 
 
         per hour and now receives a wage of $15.10 per hour.
 
         
 
              Claimant testified that he began to have significant back 
 
         problems in early 1984 and received treatment from a 
 
         chiropractor, Stanley Dirks, D.C., between February, 1984 and 
 
         November, 1984 on a monthly basis.  This treatment consisted of 
 
         ultrasound treatment and normal chiropractic adjustments.  Seeing 
 
         little improvement, claimant sought out another chiropractor, Don 
 
         Krogh, D.C., in March, 1985.  Dr. Krogh's treatment also 
 
         consisted of physical therapy and chiropractic adjustments over 
 
         the next few months but claimant continued to experience ongoing 
 
         symptoms.  From their x-rays, both Drs. Dirks and Krogh diagnosed 
 
         that claimant had spondylolithesis or slippage of the vertebras 
 
         in claimant's lower lumbar spine.  Claimant then sought out a Dr. 
 
         Agarwal (first name unknown) who advised claimant that correction 
 
         of the problem would require fusion surgery in the lower back.  
 
         Claimant sought out a second opinion from Patrick Bowman, M.D., 
 
         an orthopedic surgeon in September, 1985.  After a review of 
 
         claimant's history of chronic back pain extending back to early 
 
         1984 and some back pain prior to that time and from his review of 
 
         claimant's x-rays, Dr. Bowman diagnosed spondylolysis or slippage 
 
         of the vertebras at the L4 and L5 levels of claimant's spine.  
 
         After a period of conservative care consisting of back support, 
 
         attempted weight reduction and exercises, Dr. Bowman concluded 
 
         that surgery was necessary.  A CT scan revealed that claimant 
 
         also had a herniated disc iii tile lower spine.  On October 29, 
 
         1985, claimant underwent fusion of his lower spine at levels L3 
 
         through L5.  It was not until the date of surgery that claimant 
 
         missed work as a result of his lower back problems.
 
         
 
              Following the surgery claimant underwent a period of healing 
 
         and remained off work until February 3, 1986 at which time he 
 
         returned on a part-time basis.  From exhibit 18 it was found that 
 
         claimant worked an average of 40.727 hours per week prior to the 
 
         work injury.  Between February 3, 1986 and his return to full 
 
         duty as stipulated on July 3, 1986, claimant worked an average of 
 
         21.125 hours per week.
 
         
 
                                                
 
                                                         
 
              Dr. Bowman opines as follows in exhibit 6 on the issue of 
 
         causation of claimant's lower back problems to his work at 
 
         Precision:
 
         
 
              ... Essentially it is my opinion that his defect 
 
              probably has been present for many years.  In 
 
              reviewing the details of his lifestyle, however, it is 
 
              my opinion that the physical demands of his job were 
 
              the major factor if not the essential factor 
 
              contributing to the marked symptomatology, progressive 
 
              slip-and ultimate surgery that he experienced.  I 
 
              freely admit that this has to be a pure opinion based 
 
              on experience in this area, as there is no real 
 
              objective test that I can think of which would shed any 
 
              light into differentiating the issues that you are 
 
              concerned with.
 
         
 
              Dr. Dirks in his deposition stated that it is not unusual 
 
         for claimant's pain to have occurred without a precipitating 
 
         event and that claimant's spondylolithesis condition could be 
 
         either congenital or caused by an injury.  Dr. Dirks stated that 
 
         he had no opinion as to which was the case for claimant.  Dr. 
 
         Krogh stated in his deposition that lifting, bending and stooping 
 
         could tend to aggravate the prior existing spondylolithesis 
 
         condition.  Defendants pointed out in the evidence offered by 
 
 
 
 
 
                                                
 
                                                         
 
         them that claimant participated in a bowling league during the 
 
         winter of 1984/85 and played golf prior to the alleged work 
 
         injury in this case.  Claimant testified that his sporting 
 
         activities such as bowling and golf greatly curtailed as his 
 
         condition worsened between March, 1984 and October, 1985.  
 
         Claimant also had an incident in which he lifted a fellow 
 
         employee in late 1983.  According to defendants claimant 
 
         experienced back pain since that time.  Claimant testified that 
 
         he could not recall back pain from this incident although 
 
         admitted and described the incident in detail.
 
         
 
              The record in this case also contains a wealth of 
 
         information about claimant's history of gallbladder problems and 
 
         the removal of his gallbladder in 1987.  Claimant did not mention 
 
         in his testimony any continuing difficulties with his absence of 
 
         a gallbladder and none of the medical records demonstrate any 
 
         current problems from the removal of the gallbladder.
 
         
 
              Claimant states that at the present time his back continues 
 
         to bother him, although he is greatly improved after the surgery. 
 
          He continues to work in his present job and did not mention in 
 
         his testimony any specific difficulties performing any of his 
 
         current work.  He states that he can no longer bowl or play golf 
 
         as he once did.  Dr. Bowman opines that claimant had suffered a 
 
         15 percent permanent partial impairment to the body as a whole 
 
         from the injury and fusion surgery.   The doctor has not imposed 
 
         any specific limitations upon activity.  In his May 15, 1987 
 
         office note, Dr. Bowman said that claimant will require treatment 
 
         of residual symptoms in the future consisting of lifestyle 
 
         restrictions, medication as needed and that he will need to 
 
         continue wearing a brace and performing exercises to keep his 
 
         spine in condition.  At the present time, claimant is not under 
 
         any active care by Dr. Bowman.
 
         
 
              Claimant stated at the hearing that he is 45 years of age, 
 
         married and has a high school education.  Claimant testified that 
 
         he has been employed as a printer or a press operator since high 
 
         school.
 
         
 
              ClaimantOs appearance and demeanor at the hearing indicated 
 
         that he was testifying in a truthful manner.
 
         
 
                           APPLICABLE LAW AND ANALYSIS
 
         
 
              I.  Claimant has the burden of proving by a preponderance of 
 
         the evidence that claimant received an injury which arose out of 
 
         and in the course of employment.  The words "out of" refer to the 
 
         cause or source of the injury.  The words "in the course of" 
 
         refer to the time and place and circumstances of the injury.  
 
         See Cedar Rapids Community Sch. v. Cady, 278 N.W.2d 298 (Iowa 
 
         1979); Crowe v. DeSoto Consol. Sch. Dist., 246 Iowa 402, 68 
 
         N.W.2d 63 (1955).  An employer takes an employee subject to any 
 
         active 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.
 
         
 
              In this case there is little question that although claimant 
 
         may have had a prior existing spondylolisis condition or slippage 
 
         of his lower vertebra, it is clear that his condition was at 
 
         least aggravated by his work.  Claimant therefore has shown a 
 
         work injury.  The specific date of injury shall be discussed 
 
         below.
 
         
 
             II.  The claimant has the burden of proving by a 
 
         preponderance of the evidence that the work injury is a cause of 
 
         the claimed disability.  A disability may be either temporary or 
 
         permanent. in the case of a claim for temporary disability, the 
 
         claimant must establish that the work injury was a cause of 
 
         absence from work and lost earnings during a,period of recovery 
 
         from the injury.  Generally, a claim of permanent disability 
 
         invokes an initial determination of whether the work injury was a 
 
         cause of permanent physical impairment or permanent limitation in 
 
         work activity.  However, in some instances, such as a job 
 
         transfer caused by a work injury, permanent disability benefits 
 
         can be awarded without a showing of a causal connection to a 
 
         physical change of condition.  Blacksmith v. All-American, Inc., 
 
         290 N.W.2d 348, 354 (Iowa 1980); McSpadden v. Big Ben Coal Co., 
 
         288 N.W.2d 181 (Iowa 1980).
 
              
 
              The question of causal connection is essentially within the 
 
         domain of expert medical opinion.  Bradshaw v. Iowa Methodist 
 
         Hospital, 251 Iowa 375, 101 N.W.2d 167 (1960).  The opinion of 
 
         experts need not be couched in definite, positive or unequivocal 
 
         language and the expert opinion may be accepted or rejected, in 
 
         whole or in part, by the trier of fact.  Sondag v. Ferris 
 
         Hardware, 220 N.W.2d 903 (Iowa 1974).  The weight to be given to 
 
         such an opinion is for the finder of fact, and that may be 
 
         affected by the completeness of the premise given the expert and 
 
         other surrounding circumstances.  Bodish v. Fischer, Inc., 257 
 
         Iowa 516, 133 N.W.2d 867 (1965).
 
         
 
              Furthermore, it the available expert testimony is 
 
         insufficient alone to support a finding of causal connection, 
 
         such testimony may be coupled with nonexpert testimony to show 
 
         causation and be sufficient to sustain an award.  Giere v. Aase 
 
         Haugen Homes, Inc., 259 Iowa 1065, 146 N.W.2d 911, 915 (1966).  
 
         Such evidence does not, however, compel an award as a matter of 
 
         law.  Anderson v. Oscar Mayer & Co., 217 N.W.2d 531, 536 (Iowa 
 
         1974).  To establish compensability, the injury need only be a 
 
         significant factor, not be the only factor causing the claimed 
 
         disability.  Blacksmith, 290 N.W.2d 348, 354.  In the case of a 
 
         preexisting condition, an employee is not entitled to recover for 
 
         the results of a preexisting injury or disease but can recover 
 
         for an aggravation thereof which resulted in the disability found 
 
         to exist.  Olson v. Goodyear Service Stores, 255 Iowa 1112, 125 
 
         N.W.2d 251 (1963).
 
         
 
              In the case sub judice, there is little question that 
 
         claimant suffers from permanent impairment.  The fighting issue 
 
                                                
 
                                                         
 
         in this case is the cause of this permanent impairment.  
 
         According to claimant's most recent treating physician and the 
 
         only orthopedic surgeon to give an opinion in this case, 
 
         claimant's impairment is due to the fusion surgery and the fusion 
 
         was necessary as a result of the aggravation of the condition 
 
         caused by claimant's work activities.  The views of the 
 
         claimant's chiropractor are certainly important but cannot 
 
         outweigh the clear views of the surgeon and a specialist in 
 
         spinal diseases.  Therefore, the preponderance of the evidence 
 
         supports a finding that claimant's work activities were a cause 
 
         of significant permanent partial impairment.
 
         
 
              The next problem is the assessment of liability among the 
 
         two insurance carriers in this case.  Critical to such an 
 
         assessment of liability is the finding of the specific date of 
 
         injury.  It is apparent from the evidence that there was a 
 
         gradual or cumulative trauma in which there is continuum of 
 
         aggravation injuries over a long period of time.  It is not 
 
         necessary that claimant prove his disability results from any 
 
         sudden, unexpected traumatic event.  It is sufficient to show 
 
         that the disability developed gradually or progressively from a 
 
         work activity over a period of time.  See McKeever Custom 
 
         Cabinets v. Smith, 379 N.W.2d 368 (Iowa 1985).
 
         
 
              The McKeever court also held that the date of injury in 
 
         gradual injury cases is the time when pain prevents the employee 
 
         from continuing to work.  This date was then utilized in 
 
         determining the rate and the timeliness of claimant's claim under 
 
         Iowa Code section 85.26 and notice under Iowa Code section 85.23. 
 
         By adoption of this rule, Iowa joins the majority of other states 
 
         by placing full liability upon the insurance carrier covering the 
 
         risk at the time of the most recent injury that bears a causal 
 
         relationship to the disability.  This method of assessing 
 
         liability among successive insurers is similar to the "last 
 
         injurious exposure" rule previously adopted by the Iowa Supreme 
 
         Court in Doerfer Division of CCA v. Nicol, 359 N.W.2d 428 (Iowa 
 
         1984) for occupational diseases.
 
         
 
              In this case, the most appropriate date of injury for the 
 
         purposes of assessing liability for permanent partial  impairment 
 
         caused by the surgery is October 29, 1985.  This is the time that 
 
         claimant was compelled by his pain to leave work and undergo 
 
         surgery.  As the surgery was the cause of the temporary and 
 
         permanent disability, the time of surgery would appear to be the 
 
         most logical date of injury.  Therefore, as Liberty Mutual had 
 
         coverage of Precision at the time of the surgery on October 29, 
 
         1985, Liberty Mutual is therefore liable for the resulting 
 
         disability.
 
         
 
              III.  Claimant must establish by a preponderance of the 
 
         evidence the extent of weekly benefits for permanent disability 
 
         to which claimant is entitled.  As the claimant has shown that 
 
         the work injury was a cause of a permanent physical impairment or 
 
         limitation upon activity involving the body as a whole, the 
 
         degree of permanent disability must be measured pursuant to Iowa 
 
                                                
 
                                                         
 
         Code section 85.34(2)(u).  However, unlike scheduled member 
 
         disabilities, the degree of disability under this provision is 
 
         not measured solely by the extent of a functional impairment or 
 
         loss of use of a body member.  A disability to the body as a 
 
         whole or an "industrial disability" is a loss of earning capacity 
 
         resulting from the work injury.  Diederich v. Tri-City Railway 
 
         Co., 219 Iowa 587, 593, 258 N.W. 899 (1935).  A physical 
 
         impairment or restriction on work activity may or may not result 
 
         in such a loss of earning capacity.  The extent to which a work 
 
         injury and a resulting medical condition resulted in an 
 
         industrial disability is determines from examination of several 
 
         factors.  These factors include the employee's medical condition 
 
         prior to the injury, immediately after the injury and presently; 
 
         the situs of the injury, its severity and the length of healing 
 
         period; the work experience of the employee prior to the injury, 
 
         after the injury and potential for rehabilitation; the employee's 
 
         qualifications intellectually, emotionally and physically; 
 
         earnings prior and subsequent to the injury; age; education; 
 
         motivation; functional impairment as a result of the injury; and 
 
         inability because of the injury to engage in employment for which 
 
         the employee is fitted.  Loss of earnings caused by a job 
 
         transfer for reasons related to the injury is also relevant.  
 
         Olson, 255 Iowa 1112, 1121, 125 N.W.2d 251, 257 (1963).  See 
 
         Peterson v. Truck Haven Cafe, Inc., (Appeal Decision, February 
 
         28, 1985).
 
         
 
              Before 1984, except for occasional episodes of back pain 
 
         from which he fully recovered, claimant had no functional 
 
         impairments or ascertainable disabilities.  Claimant was able to 
 
         fully perform the physical tasks of his job involving repetitive 
 
         lifting, bending, twisting and stooping, pushing and pulling and 
 
         prolong standing and sitting.
 
 
 
         
 
 
 
                                                
 
                                                         
 
              Claimant's treating physician, Dr. Bowman, has given 
 
         claimant a significant permanent impairment rating to the body as 
 
         a whole.  Any impairment prior to the work injury is not 
 
         important as the record does not indicate that such impairment 
 
         resulted in work disability.  A portion of the disability between 
 
         a preexisting condition and an injury is proper only when there 
 
         is some ascertainable disability which existed independently 
 
         before the injury occurred.  Varied Enterprises Inc. v. Sumner, 
 
         353 N.W.2d 407 (Iowa 1984).
 
         
 
              Dr. Bowman has permanently restricted claimant's lifestyle 
 
         activities in that he can no longer perform any of the physical 
 
         tasks and activities that he performed in the past.  However, 
 
         claimant's medical condition does not prevent him from returning 
 
         to his usual work as a printer, the work for which he is best 
 
         suited.  Claimant describes no difficulties in performing his 
 
         current work.  Claimant has not indicated that he would suffer 
 
         any loss of employment opportunity in the printing field as a 
 
         result of his disabilities.  Claimant has not suffered a loss of 
 
         actual earnings from his disability.  However, a showing that 
 
         claimant had no loss of actual earnings does not conclude a 
 
         finding of industrial disabilities.  See Michael v. Harrison 
 
         County, Thirty-Fourth Biennial Report of the Iowa Industrial 
 
         Commissioner 218, 220 (Appl. Decn. 1979).
 
         
 
              Claimant has a high school education and exhibited average 
 
         intelligence at the nearing.  ClaimantOs current employment is 
 
         suitable and stable at the present time.
 
         
 
              After examination of all the factors, it is found as a 
 
         matter of fact that claimant has suffered a 15 percent loss of 
 
         earning capacity from his work injury.  Based upon such a 
 
         finding, claimant is entitled as a matter of law to 75 weeks of 
 
         permanent partial disability benefits under Iowa Code section 
 
         85.34(2)(u) which is 15 percent of 500 weeks, the maximum 
 
         allowable number of weeks for an injury to the body as a whole in 
 
         that subsection.  The fact that the industrial disability rating 
 
         of 15 percent coincides with the impairment rating in this case 
 
         is pure coincidence.  As it was stipulated that claimant returned 
 
         to full duty on July 3, 1986, benefits will be awarded from that 
 
         date.
 
         
 
              As claimant has established entitlement to permanent partial 
 
         disability, claimant is entitled to weekly benefits for healing 
 
         period under Iowa Code section 85.34 from the bate of injury 
 
         until claimant returns to work; until claimant is medically 
 
         capable of returning to substantially similar work to the work he 
 
         was performing at the time of the injury; or, until it is 
 
         indicated that significant improvement from the injury is not 
 
         anticipated, whichever occurs first.
 
         
 
              Claimant's entitlement to healing period benefits is covered 
 
         by the parties' stipulation in the prehearing report.  However, 
 
         the extent of temporary partial disability benefits must be 
 
         discussed.  Such benefits are defined in Iowa Code section 
 
                                                
 
                                                         
 
         85.33(2) as follows:
 
         
 
              2.  "Temporary partial disability" or "temporarily, 
 
              partially disabledO means the condition of an employee 
 
              for whom it is medically indicated that the employee is 
 
              not capable of returning to employment substantially 
 
              similar to the employment in which the employee was 
 
              engaged at the time of injury, but is able to perform 
 
              other work consistent with the employee's disability.  
 
              "Temporary partial benefits" means benefits payable, in 
 
              lieu of temporary total disability and healing period 
 
              benefits, to an employee because of the employee's 
 
              temporary partial reduction in earning ability as a 
 
              result of the employee's temporary partial disability.  
 
              Temporary partial benefits shall not be considered 
 
              benefits payable to an employee, upon termination of 
 
              temporary partial or temporary total disability, the 
 
              healing period, or permanent partial disability, 
 
              because the employee is not able to secure work paying 
 
              weekly earnings equal to the employee's weekly earnings 
 
              at the time of injury.
 
         
 
              Under Iowa Code section 85.33(4) temporary partial 
 
         disability benefits are equivalent to 66 2/3 percent of the 
 
         difference between claimant's average gross weekly earnings prior 
 
         to the injury and claimant's actual earnings during the temporary 
 
         partial disability period.  The parties have stipulated that 
 
         claimant's rate of compensation is $378.02 per week for the 
 
         injury date found in this case and that claimant was married and 
 
         entitled to tour exemptions at the time of the injury.  Working 
 
         backwards in the commissioner's rate book, this stipulated rate 
 
         is equivalent to gross weekly earnings in the amount of $639.00 
 
         per week.  Claimant therefore is entitled to 66 2/3 percent of 
 
         the difference between this amount and claimant's actual weekly 
 
         earnings between February 3, 1986 and July 3, 1986 as set forth 
 
         in exhibit 18, page 2.
 
         
 
              IV.  Pursuant to Iowa Code section 85.27, claimant is 
 
         entitled to medical benefits consisting of his reasonable medical 
 
         expenses for treatment of a work injury.  Claimant, however, is 
 
         entitled to an order of reimbursement only if those expenses had 
 
         been paid by him.  Krohn v. State, 420 N.W.2d 463 (Iowa 1988).
 
         
 
              Given the parties' stipulation as to the causal connection 
 
         of the expenses listed in exhibit 19 and the finding of a work 
 
         injury, claimant is entitled to the medical expenses listed.  
 
         However, as stated previously in a gradual cumulative injury 
 
         process there is again a series of continuous injuries.  
 
         Furthermore, coverage between that and Liberty Mutual changed 
 
         during this continuous injury process.  Therefore, the injury and 
 
         medical treatment claimant received in this injury process prior 
 
         to July 1, 1984 by Dr. Dirks between February 3, 1984 and March 
 
         20, 1984 are the responsibility of defendant Aetna.  All expenses 
 
         after July 1, 1984 as listed in exhibit 18 are the responsibility 
 
         of defendant Liberty Mutual.
 
                                                
 
                                                         
 
         
 
                                 FINDINGS OF FACT
 
         
 
              1.  Claimant was a credible witness.
 
         
 
              2.  Between February, 1984 and November, 1985, claimant 
 
         suffered a series of continuous gradual injuries or cumulative 
 
         traumas from his work at Precision which aggravated a prior 
 
         existing condition of spondylolithesis.  Eventually, on October 
 
         29, 1985, a gradual cumulative injury process worsened to the 
 
         extent that surgery was required and claimant left work to 
 
         receive fusion surgery in his lower spine.
 
         
 
              3.  The work injury of October 29, 1985 was a cause of a 
 
         period of disability from work beginning on October 29, 1985, 
 
         extending through February 2, 1986, and a period of temporary 
 
         partial disability between February 3, 1986 and ending on July 2, 
 
         1986.  Claimant returned to full duty as stipulated on July 3, 
 
         1986.
 
         
 
              4.  The work injury of October 29, 1985 was a cause of a 15 
 
         percent permanent partial impairment to the body as a whole and 
 
         of permanent lifestyle restrictions upon claimant's physical 
 
         activity.
 
         
 
              5.  The work injury of October 29, 1985 and the resulting 
 
         permanent partial impairment was a cause of a 15 percent loss of 
 
         earning capacity.  Claimant is unable to perform many physical 
 
         activities that he has performed in the past and his back 
 
         continues to bother him at the present time.  Claimant continues 
 
         to wear a back brace, take medication as needed and perform back 
 
         exercises to maintain his strength.  Claimant, however, is able 
 
         to perform his current work as a printer or press operator, the 
 
         type of work for which he is best suited given his past work 
 
         experience.  Claimant is 43 years of age and is a high school 
 
         graduate.  Claimant's current job appears to be stable and 
 
         suitable.  Claimant is currently earning more income than he 
 
         earned at the time of injury.
 
         
 
              6.  The medical expenses listed in exhibit 19 prior to July 
 
         1, 1984 were the result of cumulative or gradual work injuries at 
 
         Precision prior to July 1, 1984 and those after July 7, 1984 were 
 
         the result of work injuries at Precision after July 1, 1984.
 
         
 
                                CONCLUSIONS OF LAW
 
         
 
              Claimant has established by a preponderance of the evidence 
 
         entitlement to permanent partial disability benefits, healing 
 
         period benefits, temporary partial disability benefits and 
 
         medical benefits as awarded below.
 
         
 
                                      ORDER
 
         
 
              1.  Defendant Liberty Mutual shall pay to claimant 
 
         seventy-five (75) weeks of permanent partial disability benefits 
 
                                                
 
                                                         
 
         at the rate of three hundred seventy-eight and 02/100 dollars 
 
         ($378.02) per week from July 3, 1986.
 
         
 
              2.  Defendant Liberty Mutual shall pay to claimant healing 
 
         period benefits from October 29, 1985 to February 2, 1986 at the 
 
         rate of three hundred seventy-eight and 02/100 dollars ($378.02) 
 
         per week.
 
         
 
              3.  Defendant Liberty Mutual shall pay to claimant temporary 
 
         partial disability benefits consisting of sixty-six and 
 
         two-thirds percent (66 2/3%) of the difference between the sum of 
 
         six hundred thirty-nine and no/100 dollars ($639.00) per week and 
 
         claimant's actual weekly earnings between February 3, 1986 and 
 
         July 2, 1986 as set forth in exhibit 18 of the evidence in this 
 
         case.
 
         
 
              4.  Defendant Aetna shall pay to claimant the medical 
 
         expenses listed in exhibit 19 incurred by claimant prior to July 
 
         1, 1984.  Defendant Liberty Mutual shall pay the balance.  These 
 
         payments shall be made either directly to the provider if paid or 
 
         to claimant if paid by him.
 
         
 
              5.  Defendants shall pay accrued weekly benefits in a lump 
 
         sum and shall receive credit against this award for all benefits 
 
         previously paid.
 
         
 
              6.  All defendants shall receive credit for previous payment 
 
         of benefits under a non-occupational group insurance plan, if 
 
         applicable and appropriate under Iowa Code section 85.38(2).
 
         
 
              7.  Defendant Liberty Mutual shall pay the interest on 
 
         disability benefits awarded herein as set forth in Iowa Code 
 
         section 85.30.
 
                                                
 
                                                         
 
         
 
              8.  Defendant Liberty Mutual shall pay the cost of this 
 
         action pursuant to Division of industrial Services Rule 
 
         343-4.33.
 
         
 
              9.  Both defendants shall file activity reports upon payment 
 
         of this award as requested by this agency pursuant to Division of 
 
         industrial Services 343-3.1.
 
         
 
         
 
              Signed and filed this 26th day of July, 1988.
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
                                           LARRY P. WALSHIRE
 
                                           DEPUTY INDUSTRIAL COMMISSIONER
 
         
 
         Copies TO:
 
         
 
         Mr. C. R. Hannan
 
         Attorney at Law
 
         215 South Main St.
 
         P. 0. Box 1016
 
         Council Bluffs, Iowa 51502
 
         
 
         Mr. James E. Thorn
 
         Attorney at Law
 
         310 Kanesville Blvd.
 
         P. 0. Box 398
 
         Council Bluffs, Iowa 51502
 
         
 
         Mr. Theodore J. Stouffer
 
         Mr. David A. Blagg
 
         Attorneys at Law
 
         8805 Indian Hills Dr.
 
         Suite 300
 
         Omaha, Nebraska 68114
 
 
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                                    1100; 1803
 
                                                    1801.1; 2209
 
                                                    Filed July 26, 1988
 
                                                    LARRY P. WALSHIRE
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         PHILLIP LEROY BECKMAN,
 
         
 
              Claimant,
 
         
 
         vs.                                    File No. 806809
 
         
 
         PRECISION SERVICE,INC./A             A R B I T R A T I O N
 
         DIV. OF BINGO KING,
 
                                                D E C I S I O N
 
              Employer,
 
         
 
         and
 
         
 
         LIBERTY MUTUAL INSURANCE CO.,
 
         and AETNA CASUALITY AND SURETY,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         
 
         1100; 1803; 1801.1; 2209
 
         
 
              A work injury in the form of an aggravation of a prior 
 
         existing spondylolithesis condition was found. It was held that 
 
         claimant, however, was only entitled to 15 percent permanent 
 
         partial disability as a result of the work injury.  Assessment 
 
         between multiple insurance carriers was made by applying the rule 
 
         set forth in McKeever v. Smith.  Temporary partial disability 
 
         benefits were awarded consisting of 66 2/3 percent of the 
 
         difference between claimantOs gross weekly earnings and his 
 
         actual earnings during the period of temporary partial 
 
         disability.
 
 
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                    BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         MARJORIE E. WALK,
 
         
 
              Claimant,
 
         
 
         vs.
 
                                                     File No. 806963
 
         LEHIGH PORTLAND CEMENT CO.,
 
                                                  A R B I T R A T I 0 N
 
              Employer,
 
                                                     D E C I S I 0 N
 
         and
 
         
 
         THE TRAVELERS INSURANCE COMPANY,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         
 
                                   INTRODUCTION
 
         
 
              This is a proceeding in arbitration brought by Marjorie E. 
 
         Walk against Lehigh Portland Cement Company, her employer, and 
 
         The Travelers Insurance Company, the employer's insurance 
 
         carrier.  The case was heard and fully submitted at Mason City, 
 
         Iowa on March 16, 1988.  The record in the proceeding consists of 
 
         testimony from Marjorie E. Walk and Louis B. Fasing and joint 
 
         exhibits 1 and 2.
 
         
 
                                      ISSUES
 
         
 
              The only issue in this case is determination of the degree 
 
         of permanent partial disability sustained by claimant.  It was 
 
         stipulated that claimant sustained an injury which arose out of 
 
         and in the course of employment; that she has been paid all 
 
         compensation due for healing period; and, that she has been paid 
 
         35 weeks of compensation for permanent partial disability.  It 
 
         was further stipulated that any further compensation for 
 
         permanent partial disability should be payable commencing on 
 
         March 22, 1987.  Claimant's rate of compensation was stipulated 
 
         to be $272.83 per week.
 
         
 
                              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 
 
         the evidence showed are inevitable with any summarization.  The 
 
         conclusions in the following summary should be considered to be 
 
         preliminary findings of fact.
 
         
 
              Marjorie E. Walk is a 57-year-old married lady who has been 
 
         employed by Lehigh Portland Cement Company since 1976.  Claimant 
 
         is a high school graduate and also has work experience managing a 
 

 
         
 
         
 
         
 
         WALK V. LEHIGH PORTLAND CEMENT CO.
 
         Page   2
 
         
 
         
 
         restaurant, managing a country club, clerking in a drug store and 
 
         working as a telephone operator.
 
         
 
              Claimant has performed a number of different functions for 
 
         Lehigh Portland Cement Company.  All the positions within the 
 
         company have required moderate to heavy physical exertion, except 
 
         for the positions in the laboratory.  A good portion of 
 
         claimant's time has been spent as a general laborer performing 
 
         whatever tasks were assigned.  She has worked as a brick layer 
 
         and as a brick layer's helper.  She has worked as a brakeman on 
 
         the plant's railroad system.
 
         
 
              At the time of injury, claimant was assigned to work as a 
 
         tower lancer.  She was using a water blaster to remove deposits 
 
         of built-up material from the kiln.  The water blaster sprays 
 
         water at high pressure into the kiln.  While doing so, the 
 
         blaster kicked back, injuring claimant's right shoulder.
 
         
 
              Claimant continued to work throughout that shift and also 
 
         worked the following shift, but then sought medical care.
 
         
 
              Claimant was seen at St. Joseph Mercy Hospital by Jon R. 
 
         Yankey, M.D., one of the employer's plant physicians.  After a 
 
         period of conservative treatment did not resolve claimant's 
 
         complaints, she was referred to Darrell Fisher, M.D., an 
 
         orthopedic surgeon.  Dr. Fisher employed a course of physical 
 
         therapy which provided some improvement of claimant's condition.  
 
         In a report dated May 28, 1986, Dr. Yankey concluded that 
 
         claimant still had bursitis and tendonitis.  He released her to 
 
         return to work effective July 1, 1986 with a restriction that she 
 
         not perform any work requiring lifting more than 25 pounds or 
 
         lifting higher than her shoulder.  He concluded that she had a 
 
         seven percent impairment of the body as a whole (exhibit 1, page 
 
         7).  On February 15, 1988, Dr. Fisher confirmed his impairment 
 
         rating (exhibit 1, page 13).  On May 20, 1987, Dr. Fisher 
 
         reaffirmed claimantOs work restriction of less than 25 pounds and 
 
         working below shoulder level (exhibit 1, page 14).
 
         
 
              Claimant's initial request to return to her job was denied. 
 
          The employer consulted with Dr. Yankey to confirm claimant's 
 
         physical restrictions and limitations.  Dr. Yankey authorized 
 
         claimant to return to employment with the same restrictions as 
 
         had been previously indicated by Dr. Fisher (exhibit 1, pages 
 
         9-12).
 
         
 
              After receiving the information from Dr. Yankey, claimant 
 
         was provided a position in the laboratory where she gathers 
 
         samples of materials used in the production process and performs 
 
         quality control analysis of the samples.  The work is within the 
 
         physical restrictions imposed by the physicians and claimant has 
 
         been able to perform it.  The position is intermittent, however, 
 
         in that claimant works only when someone else in the department 
 
         is on vacation or otherwise absent.  Fasing testified that, when 
 
         a full-time position in the lab department comes open, claimant 
 
         will be able to obtain that position.  He testified that, in the 
 
         meantime, she would work to cover vacations and as otherwise 
 
         needed and that she would draw unemployment when work was not 
 
         available.  Fasing testified that, currently, work would be 
 
         available for 27 weeks of the year for vacations.  In the near 
 

 
         
 
         
 
         
 
         WALK V. LEHIGH PORTLAND CEMENT CO.
 
         Page   3
 
         
 
         
 
         future, the vacation entitlement of the regular lab employees 
 
         would grow to 31 weeks and then to 34 weeks.  In addition to the 
 
         weeks that claimant works, she also receives three weeks of paid 
 
         vacation each year.  Fasing testified that another worker in the 
 
         laboratory department is expected to retire in the near future.  
 
         The retirement could be in November of 1989 if the employee 
 
         retires at age 62.  Fasing testified that, if claimant had not 
 
         been injured, she would be able to work a full year in view of 
 
         her seniority and current levels of operation in the plant.
 
         
 
              Claimant testified that, when she draws unemployment, she is 
 
         required to seek work and that she has done so.  Claimant 
 
         testified that her unemployment benefit is $164.00 per week.  
 
         Claimant indicated that she did not desire to obtain any job 
 
         other than her job with Lehigh since all she could find would be 
 
         in the minimum wage pay range and it would not pay for her to 
 
         take such a low paying job.  Claimant testified that, when 
 
         injured, her rate of pay was $10.91 per hour and that it has been 
 
         frozen since then based upon the union contract.
 
         
 
         
 
                           APPLICABLE LAW AND ANALYSIS
 
         
 
              Both witnesses who testified at the hearing are found to be 
 
         fully credible.  This case presents an excellent example of an 
 
         injured employee who has made a very sincere attempt to overcome 
 
         her disability.  This case presents an excellent example of an 
 
         employer who has responded very well to the needs of an injured 
 
         employee.  The net result is that both parties have benefited 
 
         greatly by the efforts they have made.  The employer's action in 
 
         making work available to the claimant within the confines of its 
 
         normal business operations has prevented her from being cast 
 
         aside and forced to seek new employment in the competitive labor 
 
         market.  If such had occurred, claimant would certainly have 
 
         suffered a very severe loss of earnings.  Claimant earns 
 
         considerably more in her present work situation than she could be 
 
         expected to earn with a new employer.  Claimant has been able to 
 
         retain her quite favorable fringe benefit package.  The employer 
 
         has the services of a valued, reliable employee and has avoided 
 
         what might have been a quite substantial workers' compensation 
 
         liability.
 
         
 
              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.O
 
         
 
              Functional impairment is an element to be considered in 
 
         determining industrial disability which is the reduction of 
 
         earning capacity, but consideration must also be given to the 
 
         injured employee's age, education, qualifications, experience and 
 
         inability to engage in employment for which he is fitted.  Olson 
 
         v. Goodyear Service Stores, 255 Iowa 1112, 1121, 125 N.W.2d 251, 
 
         257 (1963).
 

 
         
 
         
 
         
 
         WALK V. LEHIGH PORTLAND CEMENT CO.
 
         Page   4
 
         
 
         
 
         
 
              The fact that a worker is approaching normal retirement age 
 
         is a factor which may be considered.  Becke v. Turner-Busch, 
 
         Inc., 34th Biennial Report, Iowa Industrial Commissioner, page 34 
 
         (App. Decn. 1979).
 
         
 
              At the present time, claimant's work of 27 weeks per year 
 
         and three weeks of paid vacation provide her with full-time 
 
         employment at her regular rate of earnings for approximately 60% 
 
         of each year.  During the remaining 40% of the year, she receives 
 
         unemployment compensation, an amount which is approximately 40% 
 
         of what she would earn if she was working.  When claimant's 
 
         unemployment compensation and wages for the year are combined, 
 
         the net result is that she has an income which is approximately 
 
         25% less than what she would be earning if she worked for the 
 
         full year.  The record shows that the number of weeks that she is 
 
         assigned to work will be increasing.  It is probable that one of 
 
         the full-time workers will be retiring or otherwise leaving 
 
         within the next two to five years.  Claimant is, herself, 
 
         approaching the range of what is considered to be normal 
 
         retirement age.  When all the material factors of industrial 
 
         disability are considered, it is found and concluded that 
 
         claimant has sustained a 15% loss of earning capacity as a result 
 
         of the injuries she sustained on or about October 11, 1985.
 
         
 
         
 
                                 FINDINGS OF FACT
 
         
 
              1.  Marjorie E. Walk and Louis Fasing are fully credible 
 
         witnesses.
 
         
 
              2.  Marjorie E. Walk has a seven percent functional 
 
         impairment of the body as a whole as a result of the injuries she 
 
         sustained on or about October 11, 1985 and is restricted to lift 
 
         no more than 25 pounds and to avoid working at levels higher than 
 
         shoulder level.
 
         
 
              3.  Claimant's earnings from employment, paid vacation and 
 
         unemployment compensation are approximately 75% of the amount she 
 
         would earn each year if she worked the entire year.
 
         
 
              4.  The amount of time that claimant is assigned to work 
 
         annually will be increasing in the future due to increasing 
 
         vacation entitlements of the full-time laboratory employees.
 
         
 
              5.  Claimant will be offered a full-time position in the 
 
         laboratory when the first vacancy occurs, which vacancy is 
 
         anticipated to occur within the next five years. 
 
         
 
              6.  Claimant has sustained a 15% loss of earning capacity as 
 
         a result of the injuries to her right shoulder.
 
         
 
         
 
                                CONCLUSIONS OF LAW
 
         
 
              1.  This agency has jurisdiction of the subject matter of 
 
         this proceeding and its parties.
 
         
 
              2.  Marjorie E. Walk has sustained a 15% industrial 
 

 
         
 
         
 
         
 
         WALK V. LEHIGH PORTLAND CEMENT CO.
 
         Page   5
 
         
 
         
 
         disability which entitles her to receive 75 weeks of compensation 
 
         under the provisions of Iowa Code section 85.34(2)(u).
 
         
 
              3. Defendants are entitled to credit for the 35 weeks of 
 
         permanent partial disability compensation previously paid.
 
         
 
         
 
                                      ORDER
 
         
 
              IT IS THEREFORE ORDERED that defendants pay claimant forty 
 
         (40) weeks of compensation for permanent partial disability at 
 
         the stipulated rate of two hundred seventy-two and 83/100 dollars 
 
         ($272.83) per week payable commencing March 22, 1987.  The entire 
 
         amount thereof is past due and shall be paid in a lump sum 
 
         together with interest pursuant to section 85.30 of The Code of 
 
         Iowa.
 
         
 
              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 the agency pursuant to Division of 
 
         Industrial Services Rule 343-3.
 
         
 
         
 
              Signed and filed this 31st day of March, 1988.
 
         
 
         
 
         
 
         
 
         
 
                                          MICHAEL G. TRIER
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
         
 
         
 
         Copies To:
 
         
 
         Mr. Robert W. Pratt
 
         Attorney at Law
 
         1913 Ingersoll Avenue
 
         Des Moines, Iowa 50309
 
         
 
         Mr. Mark A. Wilson
 
         Attorney at Law
 
         30 Fourth Street NW
 
         P.O. Box 1953
 
         Mason City, Iowa 50401
 
         
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                                     1803
 
                                                     Filed March 31, 1988
 
                                                     MICHAEL G. TRIER
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         MARJORIE E. WALK,
 
         
 
              Claimant,
 
         
 
         vs.
 
                                                     File No. 806963
 
         LEHIGH PORTLAND CEMENT CO.,
 
                                                  A R B I T R A T I 0 N
 
              Employer,
 
                                                     D E C I S I 0 N
 
         and
 
         
 
         THE TRAVELERS INSURANCE COMPANY,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         
 
         1803
 
         
 
              This is a case where the parties worked admirably to prevent 
 
         the claimant from suffering a substantial actual loss of 
 
         earnings.  Fifty-seven-year-old claimant with a seven percent 
 
         body as a whole impairment rating, a lifting restriction of 25 
 
         pounds and a restriction against working at higher than shoulder 
 
         level, due to her shoulder injury, was awarded 15% permanent 
 
         partial disability industrially.
 
 
 
         
 
 
            
 
 
 
                           
 
 
 
 
 
                   BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         
 
         MARJORIE E. WALK,
 
         
 
              Claimant,
 
         
 
         vs.
 
                                                    File No. 806963
 
         LEHIGH PORTLAND CEMENT CO.,
 
                                                   R E H E A R I N G
 
              Employer,
 
                                                    D E C I S I 0 N
 
         and
 
         
 
         THE TRAVELERS INSURANCE COMPANY,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         
 
         
 
              This matter comes before the undersigned on the Application 
 
         for Rehearing filed by the claimant.
 
         
 
              Upon reconsideration of all the evidence in the case, in 
 
         particular the factors of industrial disability, it is determined 
 
         that the award of industrial disability made in the decision 
 
         filed March 31, 1988 is inadequate and that an award of twenty 
 
         percent (20%) permanent partial disability should be made and 
 
         substituted in lieu of the fifteen percent (15%) award originally 
 
         made.
 
         
 
              Finding of fact number 6 is therefore deleted and, in lieu 
 
         thereof, the following is substituted:
 
         
 
                 6.  Claimant has sustained a twenty percent (20%) 
 
              loss of earning capacity as a result of the injuries to 
 
              her right shoulder.
 
         
 
              Conclusion of law number 2 is therefore deleted and, in lieu 
 
         thereof, the following is adopted:
 
         
 
                 2.  Marjorie E. Walk sustained a twenty percent 
 
              (20%) industrial disability which entitles her to 
 
              receive one hundred (100) weeks of compensation under 
 
              the provisions of Iowa Code section 85.34(2)(u).
 
         
 
              The first paragraph of the Order portion of the decision is 
 
         deleted and, in lieu thereof, the following is adopted:
 
         
 
              IT IS THEREFORE ORDERED that defendants pay claimant 
 
         sixty-five (65) weeks of compensation for permanent partial 
 

 
         
 
         
 
         
 
         WALK V. LEHIGH PORTLAND CEMENT CO.
 
         Page   2
 
         
 
         
 
         disability at the stipulated rate of two hundred seventy-two 
 
         and 83/100 dollars ($272.83) per week payable commencing March 
 
         22, 1987.  All past due, accrued amounts shall be paid in a 
 
         lump sum together with interest at the rate of ten percent 
 
         (10%) per annum from the date each payment came due pursuant to 
 
         section 85.30 of The Code of Iowa.
 
         
 
              In all other respects, the Arbitration Decision is hereby 
 
         ratified and confirmed.
 
         
 
              Signed and filed this 15th day of April, 1988.
 
         
 
         
 
                                               
 
                                                    
 
                                           MICHAEL G. TRIER
 
                                           DEPUTY INDUSTRIAL COMMISSIONER
 
         
 
         Copies To:
 
         
 
         Mr. Robert W. Pratt
 
         Attorney at Law
 
         1913 Ingersoll Avenue
 
         Des Moines, Iowa 50309
 
         
 
         Mr. Mark A. Wilson
 
         Attorney at Law
 
         30 Fourth Street NW
 

 
         
 
         
 
         
 
         WALK V. LEHIGH PORTLAND CEMENT CO.
 
         Page   3
 
         
 
         
 
         P.O. Box 1953
 
         Mason City, Iowa 50401
 
         
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         CLARIBEL ANDERSON,
 
         
 
              Claimant,                             File  Nos. 807140
 
                                                               802854
 
         vs.
 
                                                 A R B I T R A T I 0 N
 
         YOUNKERS, INC.,
 
                                                    D E C I S I 0 N
 
              Employer,
 
         
 
         and
 
                                                      F I L E D
 
         AETNA CASUALTY,
 
                                                      MAY 19 1988
 
              Insurance Carrier,
 
              Defendants.                    IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
                                   INTRODUCTION
 
         
 
              This is a proceeding in arbitration brought by Claribel 
 
         Anderson, claimant, against Younkers, Inc., employer, and Aetna 
 
         Casualty, insurance carrier, defendants, for benefits as the 
 
         result of an injury that occurred on July 15, 1985 and another 
 
         injury that occurred on October 5, 1985.  A hearing was held on 
 
         January 25, 1988 at Sioux City, Iowa and the case was fully 
 
         submitted at the close of the hearing.  The record consists of 
 
         the testimony of Claribel Anderson (claimant) and Joint Exhibits 
 
         1 through 21.  Both attorneys submitted excellent briefs.
 
         
 
                               STIPULATIONS
 
         
 
              The parties stipulated to the following matters:
 
         
 
              That an employer-employee relationship existed between 
 
         claimant and employer at the time of both the injuries;
 
         
 
              That claimant sustained an injury on July 15, 1985 and 
 
         another injury on October 5, 1985 which arose out of and in the 
 
         course of employment with employer;
 
         
 
              That temporary disability benefits have been paid and that 
 
         entitlement to additional temporary disability benefits is not an 
 
         issue in dispute in this case at this time;
 
         
 
              That the commencement date for permanent partial disability 
 
         benefits, if the injury is found to be a cause.of permanent 
 
         disability, is November 5, 1985;
 
         
 
              That the rate of compensation, in the event of an award, is 
 
         $85.02 per weeks;
 
         
 
                                                
 
                                                         
 
              That the provider of medical services and supplies would 
 
         testify that the fees charged are fair and reasonable and 
 
         defendants are not offering contrary evidence;
 
         
 
              That defendants claim no credit for benefits paid prior to 
 
         hearing either under an employee nonoccupational group health 
 
         plan or as permanent partial disability benefits; and
 
         
 
              That there are no bifurcated claims.
 
         
 
                                      ISSUES
 
         
 
              The parties submitted the following issues for determination 
 
         at the time of the hearing:
 
         
 
              Whether the injury of July 15, 1985, or the injury of 
 
         October 5, 1985, was the cause of permanent disability;
 
         
 
              Whether claimant is entitled to any permanent disability 
 
         benefits, and if so, the nature and extent of benefits;
 
         
 
              Whether claimant is entitled to an independent medical 
 
         examination under Iowa Code section 85.39; and
 
         
 
              Whether claimant is entitled to medical benefits under Iowa 
 
         Code section 85.27.
 
         
 
                            SUMMARY OF THE EVIDENCE
 
         
 
              All of the evidence was examined and considered.  The 
 
         following is a summary of the pertinent evidence;
 
         
 
              Claimant was 53 years old at the time of the injuries and 55 
 
         years old at the time of the hearing.  She is single and lives 
 
         with her adult son.  She graduated from high school in 1950. 
 
         Later, she took night courses for six weeks and studied 
 
         bookkeeping and advanced typing.  Claimant has a driver's license 
 
         and can drive.  Early employments included cooking, baking and 
 
         working in an ice cream parlor.  She also pumped gas in her 
 
         parents' gasoline station.  She candled, washed, packed and 
 
         buffered eggs at an egg plant.  She was also self-employed as a 
 
         furniture upholsterer.  In addition to all of these employments, 
 
         she raises three children.
 
         
 
              When claimant worked for the Laurel, Nebraska public schools 
 
         as a kitchen helper, cooking and washing dishes in August of 
 
         1973, she pinched the sciatic nerve in her leg by twisting her 
 
         body (Exhibit 18, page 33; Ex. 19, P. 1).  This caused pain in 
 
         her left leg from her buttocks down to her left heel.  Claimant 
 
         testified that when she speaks of sciatic nerve pain, she means 
 
         pain to her low back going down her left leg to the left foot 
 
         (Ex. 18, pp. 41 & 42).  Claimant was treated for this injury by 
 
         Wayne Benthack, M.D.  She missed 23 weeks of work and then 
 
         returned to work for the rest of the school year.  Dr. Benthack 
 
         recorded that he saw claimant on August 29, 1973.  In his 
 
                                                
 
                                                         
 
         personal history he wrote down that she had complained of low 
 
         back pain for a number of years.  She had positive straight leg 
 
         raising in both legs with decreased vibratory sense on the left.  
 
         X-rays were taken and claimant was diagnosed as having minimal 
 
         osteoarthritis (Ex. 1, pp. 1 & 2).  There was no evidence of 
 
         fracture of L-2.
 
         
 
              Claimant also testified that she twisted her right foot, 
 
         fell and fractured her right ankle on August 25, 1976, getting 
 
         out of bed at home (Ex. 9, p. 1; Ex. 18, pp. 34 & 35; Ex. 19, p. 
 
         1).
 
         
 
              Claimant worked for Burweiler Oil Company for approximately 
 
         six years from 1974 until 1980 as a secretary, bookkeeper and 
 
         warehouse worker.  She testified that she loaded cars and trucks 
 
         with 50 pound bags of seeds and chemicals.  She testified that 
 
         she performed these duties without any physical problems in her 
 
         back or legs.
 
         
 
              From 1980 until 1983, claimant worked at Aalfs Manufacturing 
 
         Company inspecting blue jeans.  Claimant testified that she 
 
         pushed carts weighing 50 to 100 pounds with broken wheels 
 
         one-fourth of a block and that she often lifted 15 to 20 pairs of 
 
         blue jeans at one time.
 
         
 
              In January of 1982, while working for Aalfs, she had a 
 
         nonwork-related injury.  At that time, she slipped on the ice at 
 
         a local restaurant, did the splits, and injured her right groin, 
 
         hip, arm and side.  She missed six weeks of work but returned to 
 
         work at Aalfs and missed no time from work after that.  She 
 
         continued to push the carts and lift the blue jeans (Ex. 19, p. 
 
         1).  Claimant was treated at Marion Health Center on January 28, 
 
         1982 for her right wrist and right femur (Ex. 2).  John J. 
 
         Dougherty, M.D., saw claimant on April 7, 1982 after she had been 
 
         treated by other physicians.  Dr. Dougherty concluded that 
 
         claimant had sustained a fracture of the inferior pubic ramus on 
 
         the right in the pelvis and a little fracture of the radial 
 
         styloid.  He made no mention of any back or spinal complaints or 
 
         injury.  He did not foresee any permanent disability from this 
 
         injury (Ex. 3).
 
         
 
              Claimant testified that she started to work for Younkers on 
 
         January 4, 1983.  She added that she was terminated on January 
 
         10, 1986 on a false charge of misconduct.  Claimant related that 
 
         she performed various sales clerk jobs in draperies, men's 
 
         department and women's sportswear from 9 a.m. until 5:30 p.m., 35 
 
         hours a week.
 
         
 
              Claimant denied that she had suffered any serious physical 
 
         complaints prior to working for Younkers.  Her personal medical 
 
         records, however, show that she had encountered menstrual, 
 
         thyroid, osteoporosis and thrombophlebitis problems and that she 
 
         had also received an appendectomy and hysterectomy (Ex. 9).
 
         
 
              Claimant testified that on July 15, 1985 she caught her heel 
 
                                                
 
                                                         
 
         in a piece of tape on the floor, twisted her ankle and fell down 
 
         "on all fours".  She received outpatient treatment at Marion 
 
         Health Center by Milton D. Grossman, M.D., and missed two weeks 
 
         of work.  She stated that she received bruises and abrasions to 
 
         her arms, legs, knees and ankles.  She also twisted her left 
 
         ankle. Claimant testified that she did not have any back pain or 
 
         sciatic nerve pain from this fall.  She returned to work with her 
 
         ankle in an ace bandage and was allowed to do a sit down job 
 
         filling out forms in August and September of 1985.  Then, she 
 
         performed her normal duties again (Ex. 19, p. 2).
 
         
 
              Claimant testified that on October 5, 1985, she was removing 
 
         an arm load of clothes from the dressing rooms, simply turned her 
 
         body, and "something gave" in her low back and she went straight 
 
         down on her buttocks.  (Ex. 9, p. 2).  This was after lunch when 
 
         they were not busy.  No one else was around and there were no 
 
         witnesses.  She became nauseated, faint and felt pain in her 
 
         lower back.  A co-employee checked out her cash register and 
 
         claimant went home.  Claimant testified that she felt like she 
 
         would pass out driving home.  That night she crawled to the 
 
         telephone and called Dr. Grossman.  He told her to come in on 
 
         Monday.  Claimant also described this injury in her deposition 
 
         (Ex. 18, pp. 38-41).
 
         
 
              Dr. Grossman reported that he saw claimant on October 7, 
 
 
 
                            
 
                                                         
 
         1985.  She was treated with heat and medication.  X-rays of the 
 
         lumbar spine on October 22, 1985, read by William Krigsten, M.D., 
 
         showed (1) marked scoliosis at the thoracic lumbar junction; (2) 
 
         what appeared to be an old fracture at L-2; (3) minimal 
 
         compression but extensive degenerative changes and (4) a marked 
 
         sclerosis of the abdominal aorta.  Claimant was seen a number of 
 
         times in October of 1985 and returned to work on November 4, 
 
         1985. Her diagnosis was marked spasm of the lumbar muscles and 
 
         aggravation of the old L-2 fracture.  He added that claimant's 
 
         prognosis was guarded (Ex. 5).
 
         
 
              On February 19, 1986, Dr. Grossman reported that claimant 
 
         was also seen at his office on October 24, 1985 by Dr. William 
 
         Krigsten, an orthopedic surgeon.  Dr. William Krigsten diagnosed 
 
         that the injury of October 5, 1985 aggravated the old fracture of 
 
         L-2 with sciatica.  He advised claimant to wear a lumbar corset 
 
         and to raise her right heel one-half inch because her right leg 
 
         was shorter than her left leg.  He recorded that she had no 
 
         radiation and straight leg raising showed no limitations (Ex. 
 
         7).
 
         
 
              Claimant testified that she was released to return to work 
 
         in November of 1985 and performed her job with light duty 
 
         limitations of only waiting on customers, wrapping and doing 
 
         paper work.
 
         
 
              Claimant testified that she was terminated on January 10, 
 
         1986.  She applied for unemployment compensation and began to 
 
         look for full-time work.  She became employed by Pioneer 
 
         Technologies in Sergeant Bluff on May 5, 1986.  She performs 
 
         various sitting down types of jobs 22 hours per week.  Her duties 
 
         include special projects, telephone sales and collection work.  
 
         She started out at $5.00 per hour and was earning $6.61 per hour 
 
         at the time of the hearing plus prizes and cash awards.  She 
 
         stated that this was the best job that she has ever had.  She 
 
         said that she was earning $3.87 at Younkers when her employment 
 
         was terminated (Ex. 18, p. 26).
 
         
 
              Dr. William Krigsten made a report on March 18, 1986.  He 
 
         stated that there was no evidence of any permanent impairment or 
 
         disability from the back injury of October 5, 1985.  This was a 
 
         temporary condition due to work-related back pain.  He concurred 
 
         in the diagnosis and prognosis of Dr. Grossman (Ex. 8).
 
         
 
              On September 10, 1986, Dr. William Krigsten made an 
 
         extensive review of claimant's initial history for both the left 
 
         ankle injury of July 15, 1985 and the lumbar spine injury of 
 
         October 5, 1985.  On the same date, he performed a comprehensive 
 
         physical examination which included numerous x-rays.  Dr. 
 
         Krigsten concluded as follows:
 
         
 
              In conclusions, it is my opinion that the patient did suffer 
 
              a temporary aggravation of a pre-existing condition on 
 
              10-5-85.  The fracture of her back, I am sure, occurred 
 
              while working in the school kitchen in Laurel, NE in 1973.  
 
                                                
 
                                                         
 
                   X-rays showed rather advanced osteoporosis throughout with a 
 
              fracture of L-2.  The discomfort which she is having could 
 
              very well be due to the degeneration of the bone 
 
              structures--called osteoporosis as well as the residuals of 
 
              the compression fracture of the body of L-2.  She also has 
 
              rather advanced arteriosclerosis with decreased circulation 
 
              in both legs due to varicosities of the veins.  One of the 
 
              patient's unfortunate conditions is due to a mild 
 
              depression.  I asked her if she was taking calcium and she 
 
              said she couldn't afford it.  There is no evidence of any 
 
              residual injury of the left foot and ankle.  The injury 
 
              suffered in 10-5-85 probably did cause a temporary 
 
              aggravation of the pre-existing condition.  However, this 
 
              temporary disability or discomfort should not have lasted 
 
              longer than 8 weeks.  There is no evidence of any permanent 
 
              impairment or disability resulting from the injury which 
 
              occurred on 10-5-85.
 
         
 
         (Ex. 10)
 
         
 
              Claimant said that she saw Horst G. Blume, M.D., P.H.D., in 
 
         July of 1986 for approximately two hours.  His assistant took a 
 
         history for approximately one-half hour.  X-rays were taken.  She 
 
         then saw the doctor who did pin pricks, had her push levers and 
 
         tested her grip.  She was not scheduled to return.  Nevertheless, 
 
         the doctor called and asked her to return in January of 1987 
 
         because there was something wrong with his x-rays.  She said Dr. 
 
         Blume took one x-ray and just looked at her.  She denied that he 
 
         treated her on either occasion.
 
         
 
              Claimant was examined by Dr. Blume for an independent 
 
         medical examination on July 8, 1986.  He did not prepare a 
 
         report, however, until February 8, 1987.  He opened his report as 
 
         follows:
 
         
 
              This patient was first seen on July 8, 1986, with complaints 
 
              of mild thoracic pain, left more than right.. She also has 
 
              numbness and paresthesia in the fourth and fifth fingers of 
 
              the left hand and to the ulnar aspect of the lower arm.  She 
 
              stated that she also had a dull ache in the left side of her 
 
              neck, but this was not a significant problem.  She was also 
 
              complaining of low back pain which occurs with activity, as 
 
              well as some radicular pain into the left posterior aspect 
 
              of the thigh, and some pain into the heel.
 
         
 
         (Ex. 11)
 
         
 
              Dr. Blume said that the L-2 fracture did not occur at the 
 
         time claimant was injured while working as a kitchen helper at 
 
         the Laurel school in 1973 because it did not appear on the x-rays 
 
         described by Dr. Benthack on August 29, 1973.  That particular 
 
         x-ray only mentioned minimal osteoarthritis (Ex. 1, p. 2).  Dr. 
 
         Blume then added:
 
         
 
                   I do not know when the compression fracture at L2 
 
                                                
 
                                                         
 
                   occurred, but based on the information given to me by the 
 
              patient that the only other accident involving the low back 
 
              occurred on October 5, 1985, while she was working at 
 
              Younkers so I have to make the presumption, within 
 
              reasonable medical probability, that this accident is 
 
              responsible for the compression fracture of the vertebral 
 
              body of L2.
 
         
 
         (Ex. 11, P. 2)
 
         
 
              Dr. Blume then described in some detail an injury to the 
 
         cervical, thoracic and upper spine.
 
         
 
              Then he addressed the lower spine and the old L-2 fracture 
 
         one more time as follows:
 
         
 
              The patient has also suffered an injury to the lumbar spine 
 
              and within reasonable medical probability, I have to say 
 
              there are no other accidents that we know of and no abnormal 
 
              x-ray film report in 1973 that this compression fracture 
 
              occurred at the time of the accident of October 5, 1985, 
 
              even though the patient may have had some osteoporosis prior 
 
              to it, and some mild osteoarthritis.
 
         
 
         (Ex. 1, p. 2)
 
         
 
              Dr. Blume concluded his report with the following words:
 
         
 
              It is my opinion within reasonable medical probability that 
 
              the patient has a total disability to the body as a whole as 
 
              a result of the injuries to the cervical, thoracic and 
 
              lumbar spine of approximately 18% which is directly due to 
 
              the accident in October, 1985.  This rating has nothing to 
 
              do with the ankle injury for which she was treated by 
 
              another physician, after a fall in July, 1985.
 
         
 
         (Ex. 11, p. 2)
 
         
 
              Dr. William Krigsten reported one more time on July 2, 1987, 
 
         that claimant did not tell him about the fall at the restaurant 
 
         on January 28, 1982.  Dr. Krigsten concluded that claimant 
 
         injured her back and that the L-2 compression factor probably 
 
         occurred at that time because (1) after she fell she was unable 
 
         to walk; (2) Dr. Dougherty said claimant suffered a wrist 
 
         fracture and pelvic fracture at that time and (3) compression 
 
         fractures do occur in persons with osteoporosis and do not show 
 
         up until later because their bones are soft (Ex. 12).  Dr. 
 
         William Krigsten added that he diagnosed the L-2 fracture as 
 
         "old" because there was no evidence of any recent reaction to the 
 
         bone and because there was a definite history of a severe injury 
 
         on January 28, 1982 (Ex. 12, p. 2).
 
         
 
              After the injuries, which are the subject of this decision, 
 
         claimant broke her left ankle on June 27, 1987, in a 
 
         nonwork-related accident when she missed a step at a friend's 
 
                                                
 
                                                         
 
         house (Ex. 18, p. 46).  She was using a cane at the hearing due 
 
         to this accident.  This injury was treated by Alan Pechacek M.D., 
 
         an orthopedic surgeon, who performed an open reduction of this 
 
         fracture.
 
         
 
              Claimant testified that her sciatic nerve problem recurred 
 
         again after the fall on October 5, 1985.  She had pain again from 
 
         her lower back down to her left heel (Ex. 18, pp. 41-43).  
 
         Claimant testified at the hearing that she currently feels a dull, 
 
         pulling ache in her lower back that radiates down to the left 
 
         heel.  This makes it difficult to do her housework and it makes 
 
         her feel weak. She stated that this pain is precipitated now by 
 
         walking or strenuous work (Ex. 18, p. 44).  At the time of her 
 
         deposition she stated that it was a sharp pain (Ex. 18, p. 44).  
 
         At the time of the hearing she said it was a dull, pulling ache.  
 
         She related that she uses a heat pad and wears a waist band for 
 
         relief (Ex. 18, p. 44).
 
         
 
              Dr. Blume submitted the following statement of charges for 
 
         his independent medical examination on July 8, 1986, and the 
 
         follow-up examination on January 28, 1987:
 
         
 
              7-8-86    90020    Comprehensive office visit    $150.00
 
              7-8-86    72070    X-ray - thoracic                50.00
 
              7-8-86    72100    X-ray - lumbar                  60.00
 
              7-8-86    72052    X-ray                           60.00
 
              1-28-87   90050    Office visit                   110.00
 
              1-28-87   72070    X-ray - thoracic (1)            36.00
 
          
 
                                           Total charges       $466.00
 
         
 
         (Ex. 16)
 
         
 
                            
 
                                                         
 
                           APPLICABLE LAW AND ANALYSIS
 
         
 
              The claimant has the burden of proving by a preponderance of 
 
         the evidence that the injuries of July 15, 1985 and October 5, 
 
         1985 are causally related to the disability on which she now 
 
         bases her claim.  Bodish v. Fischer, Inc., 257 Iowa 516, 133 
 
         N.W.2d 867 (1965).  Lindahl v. L. 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).
 
         
 
              There was no evidence from either Dr. William M. Krigsten or 
 
         Dr. Blume which indicated that the injury to the left ankle on 
 
         July 15, 1985 was the cause of any permanent disability.  
 
         Claimant was treated on July 16 and July 18, 1985 and was 
 
         returned to work on July 22, 1985.  She was dismissed from Dr. 
 
         Grossman's care at that time.  He made no mention of any 
 
         permanent impairment or permanent disability.  Dr. William 
 
         Krigsten stated on September 10, 1986, "There is no evidence of 
 
         any residual injury of the left foot and ankle."  (Ex. 10, p. 2).  
 
         Dr. Blume said his rating had nothing to do with the left ankle 
 
         injury in July of 1985 (Ex. 11, p. 2).  Therefore, claimant did 
 
         not sustain the burden of proof by a preponderance of the 
 
         evidence that the injury to the left ankle of July 15, 1985 was 
 
         the cause of permanent disability. Consequently, claimant is not 
 
         entitled to any permanent disability benefits for the left ankle 
 
         injury.
 
         
 
              Claimant did not sustain the burden of proof by a 
 
         preponderance of the evidence that the injury of October 5, 1985, 
 
         to her lumbar spine, was the cause of any permanent disability. 
 
         Dr. Grossman and Dr. Joe Krigsten did not indicate that there was 
 
         any permanent impairment or disability.  Dr. William Krigsten 
 
         said on March 18, 1986, that there was no evidence of permanent 
 
         impairment from the back injury (Ex. 8).  He conducted an 
 
         extensive physical examination on September 10, 1986.  He traced 
 
         much of claimant's initial health history and said that the 
 
         injury of October 5, 1985 caused only a temporary aggravation of 
 
         a preexisting condition.  He specifically stated, "There is no 
 
                                                
 
                                                         
 
         evidence of any permanent impairment or disability resulting from 
 
         this injury which occurred on October 5, 1985."  (Ex. 10, p. 2).
 
         
 
              Dr. Blume's examination appears to have centered on 
 
         claimant's cervical, thoracic and left arm and hand complaints. 
 
         However, claimant made no mention of these matters at the time of 
 
         the injury on October 5, 1985.  She was treated by three doctors, 
 
         Dr. Grossman, Dr. Joe Krigsten and Dr. William Krigsten.  None of 
 
         these doctors recorded any cervical, thoracic or upper extremity 
 
         complaints in October of 1985.  Claimant first mentioned upper 
 
         extremity complaints to Dr. William Krigsten at the time of his 
 
         extensive physical examination on September 10, 1986.  Even then, 
 
         they were not specifically related to the injury of either July 
 
         15, 1985 or October 5, 1985.  It was simply mentioned that 
 
         claimant had left arm complaints at that time.
 
         
 
              Dr. Blume did not allocate how much, it any, of the 18 
 
         percent impairment rating was attributable to the lumbar spine, 
 
         as distinguished from the cervical and thoracic spine and the 
 
         upper extremity complaints.  Dr. Blume states that the injury of 
 
         October 5, 1985, caused an injury to the cervical, thoracic and 
 
         lumbar spine.  However, claimant made no complaints of injuries 
 
         to her cervical or thoracic spine during the period of her 
 
         treatment for the injury of October 5, 1985 (Ex. 10, p. 2).  
 
         Therefore, it would appear that Dr. Blume is mistaken on this 
 
         point.
 
         
 
              Dr. Blume also testified that claimant suffered the 
 
         compression fracture of L-2 at the time of the injury on October 
 
         5, 1985.  However, Dr. Blume was not informed by claimant that 
 
         she had a severe fall on January 28, 1982 at the restaurant when 
 
         she did the splits, was unable to walk and fractured her pelvic 
 
         bone and right wrist.  Therefore, since the basis for Dr. Blume's 
 
         opinion is not accurate then his opinion on this point is not 
 
         very reliable.
 
         
 
              In comparing the testimony of Dr. Blume to the testimony of 
 
         Dr. William Krigsten, in this case, deference is given to the 
 
         treating physician, Dr. William Krigsten.  Prince v. Rockwell 
 
         Graphic Systems, Inc., IV Iowa Industrial Commissioner Report 280 
 
         (1983).
 
         
 
              In addition, it should be noted that back on August 29, 
 
         1973, Dr. Benthack recorded that claimant has had back pain for 
 
         many years.  In her own testimony, claimant described her sciatic 
 
         nerve pain as a pain which begins in her buttocks and runs down 
 
         her left leg to her left heel.  She testified that she had 
 
         suffered with this pain for a number of years even prior to these 
 
         injuries in this case.  Therefore, this pain was not caused by 
 
         the injury of October 5, 1985, but appears to be only aggravated 
 
         by it, as it was from time to time for other reasons.  She stated 
 
         that it usually recurs when she does something strenuous or she 
 
         stands too long.  Her own testimony is consistent with Dr William 
 
         Krigsten's opinion that she simply temporarily aggravated her 
 
         preexisting condition.  Therefore, it is determined that claimant 
 
                                                
 
                                                         
 
         did not sustain the burden of proof by a.preponderance of the 
 
         evidence that the injury of October 5, 1985 was the cause of any 
 
         permanent impairment or disability.  Consequently, claimant is 
 
         not entitled to any permanent disability benefits as a result of 
 
         this injury.
 
         
 
              Claimant is entitled to an independent medical examination 
 
         from Dr. Blume.  However, neither Dr. Blume nor claimant offered 
 
         any justification for why claimant had to make a second trip, 
 
         other than claimant's testimony that Dr. Blume told her that 
 
         there was something wrong with his first x-rays.  Defendants 
 
         should not be required to pay for Dr. Blume's failure to acquire 
 
         satisfactory x-rays on the first visit.  Therefore, claimant is 
 
         entitled to recover the sum of $320.00 for the initial 
 
         independent medical examination on July 8, 1986.  The charges for 
 
         the second office visit, in the amount of $110.00, on January 28, 
 
         1987, and for the second x-ray of the thoracic area in the amount 
 
         of $36.00, are not allowed.
 
         
 
              Nor can there be an allowance for this $146.00 amount under 
 
         Iowa Code section 85.27 as a reasonable medical expense for the 
 
         reason that Dr. Blume did not provide treatment to the claimant, 
 
         but according to her own testimony he only examined and evaluated 
 
         her.  In addition, he was not an authorized physician.  Iowa Code 
 
         section 85.27 provides that the employer must provide reasonable 
 
         medical treatment but at the same time, authorizes the employer 
 
         to choose the physician.  Dr. Blume was not an authorized 
 
         physician.
 
         
 
                              FINDINGS OF FACT
 
         
 
              WHEREFORE, based upon the evidence presented the following 
 
         findings of fact are made:
 
         
 
              That Dr. Grossman and Dr. Joe Krigsten did not indicate that 
 
         the injury to the left ankle on July 15, 1985 caused any 
 
         permanent impairment;
 
         
 
              That Dr. William Krigsten definitely stated that the injury 
 
         of July 15, 1985 resulted in no residual injury to the left foot 
 
         or ankle;
 
         
 
              That Dr. Blume said that his rating had nothing to do with 
 
         the left foot or ankle;
 
         
 
              That Dr. Grossman diagnosed this injury as marked spasm of 
 
         the lumbar muscles, aggravation of an old fracture of L-2;
 
         
 
              That Dr. William Krigsten stated that the injury of October 
 
         5, 1985 was only a temporary aggravation of claimant's 
 
         preexisting old L-2 fracture;
 
         
 
              That Dr. William Krigsten stated that there was no evidence 
 
         of permanent disability or impairment from the injury to the 
 
         lumbar spine on October 5, 1985;
 
                                                
 
                                                         
 
         
 
              That Dr. Blume's opinion that the injury of October 5, 1985 
 
         caused the L-2 fracture is unreliable because he was not informed 
 
         of the fact that claimant sustained a serious fall with other 
 
         fractures on January 28, 1982;
 
         
 
              That Dr. Blume's opinion that the injury of October 5, 1985 
 
         caused cervical, thoracic and lumbar impairment is probably 
 
         incorrect because there is no evidence that claimant was treated 
 
         for cervical or thoracic complaints at the time of the injury in 
 
         October of 1985;
 
         
 
              That Dr. Blume's impairment of 18 percent is of no value 
 
         because he did not say how much, if any of it, was attributable 
 
         to the lumbar spine; and
 
         
 
              That Dr. Blume performed an independent medical examination 
 
         on July 8, 1986, for a charge of $320.00.
 
         
 
                             CONCLUSIONS OF LAW
 
         
 
              WHEREFORE, based upon the evidence presented and the 
 
         foregoing principles of law the following conclusions of law are 
 
         made:
 
         
 
              That the injury of July 15, 1985 was not the cause of any 
 
         permanent disability;
 
         
 
              That the injury of October 5, 1985 was not the cause of any 
 
         permanent disability;
 
         
 
              That claimant is not entitled to permanent disability 
 
         benefits due to either of these two injuries;
 
 
 
                             
 
                                                         
 
         
 
              That claimant is entitled to the charges of Dr. Blume in the 
 
         amount of $320.00 for an independent medical examination on July 
 
         8, 1986 under Iowa Code section 85.39; but claimant is not 
 
         entitled to the charge of $146.00 for additional examination by 
 
         Dr. Blume on January 28, 1987; and
 
         
 
              That claimant is not entitled to payment of the additional 
 
         $146.00 charged by Dr. Blume on January 28, 1987 as a medical 
 
         expense under Iowa Code section 85.27.
 
         
 
                                    ORDER
 
         
 
              THEREFORE, IT IS ORDERED:
 
         
 
              That no amounts are due from defendants to claimant for 
 
         permanent partial disability benefits:
 
         
 
              That defendants pay to claimant or Dr. Blume the sum of 
 
         three hundred twenty dollars ($320.00) for the independent 
 
         medical examination that was performed on July 8, 1986;
 
         
 
              That the costs of this action are charged to defendants 
 
         pursuant to Division of Industrial Services Rule 343-4.33; and
 
         
 
              That defendants file claim activity reports as requested by 
 
         this agency pursuant to Division of Industrial Services Rule 
 
         343-3.1.
 
         
 
              Signed and filed this 19th day of May, 1988.
 
         
 
         
 
         
 
         
 
         
 
         
 
                                            WALTER R. McMANUS, JR.
 
                                            DEPUTY INDUSTRIAL COMMISSIONER
 
         
 
         Copies To:
 
         
 
         Mr. Harry Smith
 
         Mr. Dennis McElwain
 
         Attorneys at Law
 
         PO Box 1194
 
         Sioux City, Iowa  51102
 
         
 
         Ms. Judith Ann Higgs
 
         Attorney at Law
 
         PO Box 3086
 
         Sioux City, Iowa  51102
 
         
 
         
 
                                                         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                                 1401; 1402.40; 1803;
 
                                                 2502; 2501
 
                                                 Filed May 19, 1988
 
                                                 WALTER R. McMANUS, JR.
 
         
 
                   BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         CLARIBEL ANDERSON,
 
         
 
              Claimant,                            File Nos. 807140
 
                                                             802854
 
         vs.
 
                                               A R B I T R A T I 0 N
 
         YOUNKERS, INC.,
 
                                                   D E C I S I 0 N 
 
              Employer,
 
         
 
         and
 
         
 
         AETNA CASUALTY,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         1401; 1402.40; 1803
 
         
 
              Claimant failed to sustain the burden of proof by a 
 
         preponderance of the evidence that either (1) an injury to her 
 
         ankle on one date or (2) another injury to her back on another 
 
         date was the cause of any permanent disability.  Treating 
 
         physicians said no impairment.  Claimant's evaluating physician 
 
         botched his report in several respects and it had to be ignored 
 
         as unreliable and his percentage could not be used.  Claimant not 
 
         awarded any permanent partial disability benefits.
 
         
 
         2502
 
         
 
              Claimant was allowed $320.00 for an independent medical 
 
         examination, but denied another $146.00 when the doctor called 
 
         her back a second time because something went wrong with his 
 
         first x-rays.
 
         
 
         2501
 
         
 
              Claimant not allowed the additional $146.00 charged by the 
 
         section 85.39 examiner as a medical expense under Iowa Code 
 
         section 85.27 because (1) examiner did not treat claimant, but 
 
         only evaluated her and (2) examiner was not an authorized 
 
         physician.
 
         
 
         
 
         
 
                                                
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            ANNA M. ZIMIGA,               :
 
                                          :
 
                 Claimant,                :
 
                                          :        File No. 807209
 
            vs.                           :
 
                                          :
 
            HOLIDAY INN,                  :     A R B I T R A T I O N
 
                                          :
 
                 Employer,                :        D E C I S I O N
 
                                          :
 
            and                           :
 
                                          :
 
            NORTHWESTERN NATIONAL         :
 
            INSURANCE COMPANY,            :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
                              STATEMENT OF THE CASE
 
            
 
                 This case came on for hearing on August 30, 1990, in 
 
            Dubuque, Iowa.
 
            
 
                 This is a proceeding in arbitration wherein claimant 
 
            seeks compensation for permanent partial disability benefits 
 
            and healing period benefits as a result of an alleged low 
 
            back injury occurring on October 12, 1985.  The record in 
 
            the proceedings consists of the testimony of claimant and 
 
            Mary Ann Matous, Timothy Murphy, Stacey Howes, and Sandra 
 
            Bennett; and joint exhibits 1 through 12; and defendants' 
 
            exhibits A through G.
 
            
 
                                      issues
 
            
 
                 The issues for resolution are:
 
            
 
                 1.  Whether claimant's alleged October 12, 1985 injury 
 
            arose out of and in the course of her employment;
 
            
 
                 2.  Whether claimant's low back condition is causally 
 
            connected to her October 12, 1985 injury;
 
            
 
                 3.  The nature and extent of claimant's disability and 
 
            entitlement to disability benefits; and,
 
            
 
                 4.  Whether claimant is entitled to 85.27 medical 
 
            benefits.
 
            
 
                     
 
            
 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            findings of fact
 
            
 
                 The undersigned deputy having heard the testimony and 
 
            considered all the evidence, finds that:
 
            
 
                 Claimant is 37 years old and completed the ninth grade.  
 
            Claimant later received her GED.  Claimant also obtained a 
 
            cosmetology degree in 1984.  Claimant reviewed her job 
 
            history which includes working in a glove factory operating 
 
            a machine.  In 1984 through 1988, claimant worked in a 
 
            beauty salon performing services on customers' hair.
 
            
 
                 Claimant began working for defendant employer in April 
 
            1985 as a housekeeper and at the same time she continued 
 
            working for a beauty salon.  Claimant's housekeeping work 
 
            involved making beds, cleaning bathrooms, pushing carts and 
 
            handling dirty laundry.  Claimant related her June 1985 
 
            injury at Holiday Inn which resulted from claimant pulling 
 
            and pushing a cart.  Claimant contends she pulled a muscle 
 
            in her right shoulder and after being off two days the 
 
            problem eventually ceased and it never restricted her 
 
            movements thereafter.
 
            
 
                 Claimant described her alleged injury of October 12, 
 
            1985.  Claimant said she injured her low back while reaching 
 
            to close a window above a door at work.  Claimant's 
 
            supervisor told her she just pulled a muscle and to keep 
 
            working.  Claimant continued to work in extreme pain and 
 
            could not stand up straight.  Claimant continued to have the 
 
            pain and had trouble standing the next morning, but the 
 
            supervisor told her to come in and work anyway.  Claimant 
 
            worked but contends her coworker did most of the work.  
 
            Claimant made only the beds.  Claimant then sought medical 
 
            help and went to Finley Hospital on October 13, 1985.  
 
            Claimant was ultimately released by Rick R. Redalen, M.D., 
 
            to return to work on October 29, 1985.  Claimant contends 
 
            she was unable to work.  Claimant said that defendant 
 
            employer wanted a doctor's letter indicating whether a 
 
            recurring injury could occur if claimant returned to work.  
 
            Dr. Redalen wrote a letter on October 31, 1985, stating that 
 
            a job involving lifting or bending could cause a recurrence 
 
            of her back problems (Joint Exhibit 2, page 3).
 
            
 
                 It appears between October 15 and October 30, 1985, 
 
            that claimant was paid for approximately 14 3/4 hours for 
 
            the prior two week period when claimant was averaging 
 
            approximately 58 hours for a 14 day period.   When claimant 
 
            returned to work after Dr. Redalen wrote the note referred 
 
            to in Joint Exhibit 2, page 3, dated October 31, 1985, 
 
            claimant was then given a hostess job which paid the same as 
 
            a maid or housekeeping job.  Claimant indicated that she 
 
            thought this was to be a full-time job but her hours were 
 
            eventually cut back to five hours per month after she had 
 
            worked two weeks.  The employer contends that the number of 
 
            employees and hours worked by the employee varies depending 
 
            on the amount of business they have which is seasonal, and 
 
            that beginning usually in the latter part of October or the 
 
            first part of November there is reduction in work force and 
 
            hours due to the decrease in business which lasts for 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            several months until the next seasonal period.  The 
 
            undersigned finds that the employer's contention is correct.
 
            
 
                 Claimant eventually left Holiday Inn as evidenced by 
 
            defendants' exhibit D, dated November 21, 1985, in which the 
 
            claimant notified defendant employer that she was quitting 
 
            because of a conflict of jobs.  This notice mentioned 
 
            nothing about claimant's back problem.  Claimant thought she 
 
            could do better financially at the hair salon working 
 
            full-time.  Claimant said she had a hard time stooping and 
 
            bending, which was required in attending to the clientele's 
 
            hair due to her pain and that her clientele gradually 
 
            dropped off.  Claimant indicated some days she couldn't work 
 
            and other days she had to refuse some appointments and the 
 
            clients went elsewhere.
 
            
 
                 Claimant did not seek any type of medical care again 
 
            since her last appointment with Dr. Redalen on October 28, 
 
            1985, at which time he wrote the note evidenced by joint 
 
            exhibit 2, page 3, until June 24, 1986.  On that date, 
 
            claimant saw Dr. Redalen for hoarseness but nothing was 
 
            mentioned, at least on the record as to her back problems.  
 
            Claimant's next medical visit as to her low back after the 
 
            October 28, 1985 appointment was in August 1986, 
 
            approximately nine months later.  On August 3, 1986, 
 
            claimant went to Finley Hospital for emergency low back 
 
            treatment after she twisted her back doing dishes at home 
 
            (Jt. Ex. 5).  There is no mention of claimant's prior 
 
            October 12, 1985 injury in this report.  Claimant's reason 
 
            for not seeing Dr. Redalen for her low back for these prior 
 
            ten months is because she contends she always has had pain 
 
            and that she can endure pain unless it gets too bad and then 
 
            she goes to a doctor.  The undersigned questions claimant's 
 
            contention on that matter.
 
            
 
                 On December 16, 1986, claimant moved her body the wrong 
 
            way and hurt her low back again.  Claimant said the pain in 
 
            both of the above 1986 instances was in the same location as 
 
            pain that resulted from her October 12, 1985 injury.
 
            
 
                 Claimant returned to the cosmetology work after the 
 
            August and December incidents.
 
            
 
                 Claimant began working as a deli clerk at K & K 
 
            Groceries in February 1987.  Claimant ceased working at the 
 
            hair salon in June 1988.  The hair salon, in fact, closed in 
 
            August 1989.
 
            
 
                 Claimant's last treatment with Dr. Redalen was in 
 
            February 1988 since Dr. Redalen left the area due to 
 
            personal problems.  When claimant was no longer able to get 
 
            a Valium prescription filled from Dr. Redalen, claimant went 
 
            to a Dr. Smith in the latter part of 1988.  Claimant 
 
            testified she still has pain and is unable to do anything 
 
            she did before her alleged injury or is limited in doing 
 
            certain things she was previously able to do without pain.  
 
            Claimant contends she had no back problems prior to her 
 
            October 12, 1985 injury.
 
            
 
                 Claimant's explanation for not letting Scott McCuskey, 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            M.D., know of her August 1985 or August and December 1986 
 
            incidents was because the doctor has the medical records and 
 
            she expected the doctor to read all the reports.  Dr. 
 
            McCuskey wrote a report in August 1989 (Jt. Ex. 4, pp. 7-9) 
 
            wherein he was unable to give any impairment rating or 
 
            causal connection because of the nearly three years between 
 
            the time of claimant's claimed injury and the short duration 
 
            (three visits) that he saw the patient.  He also indicated 
 
            her history was one of primary subjective complaints without 
 
            any significant subjective findings, either on x-rays, 
 
            positive physical findings, EMG reports, etc.
 
            
 
                 Dr. Redalen, who is no longer practicing or able to 
 
            practice in Iowa, wrote a report (Jt. Ex. 2, pp. 8 and 9) 
 
            that he had first seen claimant in June of 1982 and saw her 
 
            for her June 1985 lifting incident at Holiday Inn and also 
 
            followed her until October 25, 1985 concerning her back 
 
            problems relating to the October 12, 1985 injury.  Dr. 
 
            Redalen opined that in reviewing all the medical records of 
 
            his and subsequent doctors, claimant's "present problems are 
 
            certainly compatible with a continuation of the original 
 
            problems for which she sought treatment by me.  The original 
 
            problem resulted from her 10/25/85 injury while working at 
 
            the Holiday Inn.  All records that I have reviewed reflect 
 
            medically necessary treatment."  (Jt. Ex. 2, p. 9)  
 
            Defendants offered into evidence Defendants' Exhibit G, 
 
            which is part of the evidence in this case, obviously for 
 
            the purpose of discrediting Dr. Redalen.  This exhibit 
 
            reflects the fact that claimant entered a plea of guilty to 
 
            a perjury charge on July 18, 1989, in Delaware County, Iowa, 
 
            and received a deferred judgment.  It appears this involved 
 
            a purely personal matter involving this doctor.  This 
 
            exhibit is given no weight in attempting to determine the 
 
            accuracy, correctness and veracity of the doctor's opinion 
 
            as reflected in Joint Exhibit 2, pages 8 and 9.
 
            
 
                 There is no impairment rating given by any doctor, but 
 
            that is not necessary as the undersigned has authority to 
 
            determine claimant's disability without any impairment 
 
            rating.  In fact, an impairment or impairment rating is not 
 
            necessary to determine industrial disability.
 
            
 
                 Stacey Howes testified that she quit going to claimant 
 
            to have her hair done because of claimant's whole attitude 
 
            having changed after her October 12, 1985 injury.  She 
 
            indicated that it was fun for her to have claimant do her 
 
            hair previously as they would talk and discuss various 
 
            matters and that after this injury she wasn't there to talk 
 
            and had to go to the back room often.  Ms. Howes said that 
 
            she has become a very good friend of claimant through her 
 
            association and that she talks to her or sees her every day.  
 
            She did know that claimant was in another accident or had 
 
            other incidents in 1986.  She indicated she doesn't discuss 
 
            claimant's personal life.
 
            
 
                 Claimant's current supervisor, Timothy Murphy, the 
 
            general manager of Pickle Barrel is familiar with claimant's 
 
            limitations and acknowledged that claimant is limited to the 
 
            amount of weight she can lift or push and that he has made 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            adjustments for her at work.  He said there is someone there 
 
            to assist her so that she doesn't have to do certain types 
 
            of jobs.  He said claimant is not a complainer and that her 
 
            performance has not decreased and that she does get the job 
 
            done.  She is making $4.85 per hour and he anticipates her 
 
            employment will continue, and that claimant has done a good 
 
            job.
 
            
 
                 Sandra Bennett, the marketing and executive secretary 
 
            of Holiday Inn, indicated that when claimant was transferred 
 
            to hostess in the restaurant she was not promised any set of 
 
            hours or full-time work as that job is seasonal.  She said 
 
            claimant voluntarily quit and that they had received a note 
 
            that is evidenced by Defendants' Exhibit D.  She testified 
 
            that there is no indication claimant could not work.  The 
 
            hourly rate was the same for a maid as it was for a hostess, 
 
            namely, $3.35 per hour at that time.  Although the record is 
 
            somewhat confusing, it appears Ms. Bennett indicated that 
 
            during the period of October 15 to October 30 claimant 
 
            worked less than the average hours for a two week period and 
 
            that during that period claimant had worked 14 3/4 hours 
 
            which would be taken into consideration as to any temporary 
 
            partial disability benefits during that period.
 
            
 
                 The undersigned finds that taking the evidence as a 
 
            whole, claimant did, in fact, incur an injury on October 12, 
 
            1985, while reaching to close a window of a door at 
 
            defendant employer's place of business, and that said injury 
 
            arose out of and in the course of claimant's employment.  
 
            The undersigned also finds that claimant's current condition 
 
            of which she complains is causally connected to this injury.  
 
            The undersigned further finds that claimant did, in fact, 
 
            aggravate her October 12, 1985 injury in or around August 
 
            and December 1986 while doing some simple household chores 
 
            or body movements.  The undersigned finds that these were 
 
            minor aggravations and not additional injuries and that the 
 
            aggravations resulted because of the condition that existed 
 
            because of claimant's October 12, 1985 injury.  The 
 
            undersigned further finds that claimant's injury in June of 
 
            1985 was minor and brief and that there was no impairment or 
 
            residue from said injury that existed at the time of 
 
            claimant's October 12, 1985 injury.
 
            
 
                 Claimant is now making $4.85 per hour at a job which is 
 
            less strenuous than the job she was performing at the time 
 
            of her October 1985 injury.  On the date of claimant's 
 
            injury, she was making $3.35 per hour, and it appears that 
 
            on or around November 1, 1985, she was ready for a raise to 
 
            $3.45 per hour.  Claimant is, in fact, making more money now 
 
            than she was at the time of her injury.  The undersigned 
 
            does find that claimant is continuing to endure some pain 
 
            and has a residue from her October 12, 1985 injury but the 
 
            undersigned also believes that claimant's subjective claims 
 
            may be greater than what they should be and possibly the 
 
            settlement of this case will be beneficial to claimant in 
 
            this regard.
 
            
 
                 Claimant contends her healing period should begin 
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            October 14, 1985 to and including October 6, 1989, minus 
 
            some temporary partial benefits.  Defendants contend that if 
 
            there is, in fact, liability and causal connection, the 
 
            healing period would not be greater than October 14, 1985 to 
 
            and including October 29, 1985, at which time claimant was 
 
            given a release from Dr. Redalen to return to work.  Taking 
 
            the evidence as a whole, the undersigned finds that 
 
            claimant's doctor did return her to work and that claimant's 
 
            condition did not become worse nor actually improve after 
 
            that date and actually became stabilized.  It is true the 
 
            record indicates that eight or nine months later claimant 
 
            sought further treatment and did have at least two 
 
            aggravating events, but that this does not affect the 
 
            determination of claimant's healing period.  Defendants have 
 
            made a big point of the considerable lapse of time when 
 
            claimant last saw Dr. Redalen on October 28, 1985 and 
 
            claimant's next visit to a doctor in which she complained 
 
            about her back approximately ten months later.  There were 
 
            instances in which the claimant did go to a doctor for 
 
            medical services but they were for things other than her 
 
            back and she did not complain at that time about her back.  
 
            The undersigned can understand that with claimant's healing 
 
            period ending and the apparent continuation of her condition 
 
            involving pain being stabilized that she would not 
 
            necessarily bring that matter up when she saw a doctor for 
 
            other medical services until there were later aggravations 
 
            of her October 12, 1985 injury.  Then, of course, her 
 
            increased symptoms resulted in her specifically going to a 
 
            doctor at those times.  The undersigned finds that 
 
            claimant's healing period began on October 14, 1985 to and 
 
            including October 29, 1985, which totals 2.286 weeks at the 
 
            weekly rate of $77.23.
 
            
 
                 Defendants claim that claimant's medical bills were 
 
            unauthorized except for approximately $282.75 in medical and 
 
            hospital bills initially incurred in which Dr. Redelan was 
 
            the doctor.  It appears that defendants basically are 
 
            denying liability or recognizing Dr. Redalen.  Dr. Redalen 
 
            eventually referred claimant to other doctors.  The 
 
            undersigned finds that the medical bills incurred were 
 
            services rendered in relation to the injury aggravation in 
 
            August and December 1986 and were the result of claimant's 
 
            original October 12, 1985 injury.
 
            
 
                 On October 5, 1989, claimant went to J.W. Quinlan, 
 
            D.C., for an impairment evaluation.  Claimant had started 
 
            receiving adjustments from him beginning August 31, 1989.  
 
            The doctor was unable to give an impairment rating but 
 
            speculated that when he completed his therapy over the next 
 
            six to twelve weeks from his October 6, 1989 report, 
 
            claimant's impairment would be around 7 percent.  
 
            Approximately two and one-half years has elapsed since 
 
            Claimant had her last aggravation of her October 12, 1985 
 
            injury.  Claimant went to Dr. Quinlan a day after Dr. 
 
            McCuskey provided the August 30, 1989 report on claimant 
 
            (Jt. Ex. 4, p. 7-9).  Claimant has failed to show that these 
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
            treatments from Dr. Quinlan are causally connected to her 
 
            October 12, 1985 injury.  Claimant is responsible for paying 
 
            Dr. Quinlan's chiropractic bills.  The undersigned finds 
 
            that defendants are responsible for all of claimant's 
 
            medical, hospital and drug bills, excluding the bills of Dr. 
 
            Quinlan.   Claimant's healing period should be credited with 
 
            the amount of $49.41, which was paid during this healing 
 
            period as claimant was attempting to work or ordered to work 
 
            (Jt. Ex. 7, p. 1).
 
            
 
                 Taking into consideration the criteria for determining 
 
            the extent of one's industrial disability, mainly but not 
 
            limited to claimant's age; education; motivation; 
 
            impairment, if any; prior injuries; length of healing 
 
            period; severity of injury; and work experience, before and 
 
            after the injury; the undersigned finds that claimant has a 
 
            5 percent industrial disability.
 
            
 
                                conclusions of law
 
            
 
                 Claimant has the burden of proving by a preponderance 
 
            of the evidence that she received an injury on October 12, 
 
            1985 which arose out of and in the course of her employment.  
 
            McDowell v. Town of Clarksville, 241 N.W.2d 904 (Iowa 1976); 
 
            Musselman v. Central Telephone Co., 261 Iowa 352, 154 
 
            N.W.2d 128 (1967). 
 
            
 
                 The claimant has the burden of proving by a 
 
            preponderance of the evidence that the injury of October 12, 
 
            1985 is causally related to the disability on which she now 
 
            bases her claim.  Bodish v. Fischer, Inc., 257 Iowa 516, 133 
 
            N.W.2d 867 (1965).  Lindahl v. L. O. Boggs, 236 Iowa 296, 18 
 
            N.W.2d 607 (1945).  A possibility is insufficient; a 
 
            probability is necessary.  Burt v. John Deere Waterloo 
 
            Tractor Works, 247 Iowa 691, 73 N.W.2d 732 (1955).  The 
 
            question of causal connection is essentially within the 
 
            domain of expert testimony.  Bradshaw v. Iowa Methodist 
 
            Hospital, 251 Iowa 375, 101 N.W.2d 167 (1960). 
 
            
 
                 However, expert medical evidence must be considered 
 
            with all other evidence introduced bearing on the causal 
 
            connection.  Burt, 247 Iowa 691, 73 N.W.2d 732.  The opinion 
 
            of experts need not be couched in definite, positive or 
 
            unequivocal language.  Sondag v. Ferris Hardware, 220 N.W.2d 
 
            903 (Iowa 1974).  However, the expert opinion may be 
 
            accepted or rejected, in whole or in part, by the trier of 
 
            fact.  Id. at 907.  Further, the weight to be given to such 
 
            an opinion is for the finder of fact, and that may be 
 
            affected by the completeness of the premise given the expert 
 
            and other surrounding circumstances.  Bodish, 257 Iowa 516, 
 
            133 N.W.2d 867.  See also Musselman, 261 Iowa 352, 154 
 
            N.W.2d 128.
 
            
 
                 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 
 

 
            
 
            Page   8
 
            
 
            
 
            
 
            
 
            be computed in the terms of percentages of the total 
 
            physical and mental ability of a normal man."
 
            
 
                 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.
 
            
 
                 It is further concluded:
 
            
 
                 That claimant's October 11, 1985 injury arose out of 
 
            and in the course of claimant's employment.
 
            
 
                 That claimant's current condition and low back problems 
 
            are causally connected to her October 12, 1985 injury.
 
            
 
                 That claimant has a 5 percent industrial disability.
 
            
 
                 That defendants are responsible for claimant's medical 
 
            bills, excluding Dr. Quinlan's chiropractic and physical 
 
            therapy bills.
 
            
 
                 That claimant is entitled to healing period benefits, 
 
            beginning October 14, 1985 to and including October 29, 
 
            1985, at which time she returned to work.  These benefits 
 
            are payable at the rate of $77.23 based on three exemptions, 
 
            and that against the healing period amount is allowed the 
 
            sum of $49.41 credit.
 
            
 
                                      order
 
            
 
                 THEREFORE, it is ordered:
 
            
 
                 That defendants shall pay unto claimant healing period 
 
            benefits at the rate of seventy-seven and 23/100 dollars 
 
            ($77.23) for the period beginning October 14, 1985 to and 
 
            including October 29, 1985, against which there is a credit 
 
            of forty-nine and 41/100 dollars ($49.41) wages that 
 
            claimant earned during that period in which she attempted to 
 
            work or was ordered to work contrary to her physical 
 
            condition.
 
            
 
                 That defendants shall pay unto claimant twenty-five 
 
            (25) weeks of permanent partial disability benefits at the 
 
            rate of seventy-seven and 23/100 dollars ($77.23), beginning 
 
            October 30, 1985.
 
            
 
                 That defendants shall pay accrued weekly benefits in a 
 
            lump sum and shall receive credit against the award for 
 
            weekly benefits previously paid.  Defendants have previously 
 
            paid two point one four three (2.143) weeks of benefits at a 
 
            rate of seventy-five and 44/100 dollars ($75.44), which rate 
 
            was not the correct rate.
 
            
 
                 That defendants shall pay all of claimant's medical 
 
            expenses for treating her low back injury, excluding Dr. 
 

 
            
 
            Page   9
 
            
 
            
 
            
 
            
 
            Quinlan's chiropractic services and treatments, and shall 
 
            receive credit for the two hundred eighty-two and 75/100 
 
            dollars ($282.75) medical expenses they previously paid to 
 
            Dr. Redalen.
 
            
 
                 That defendants shall pay interest on benefits awarded 
 
            herein as 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 _____ day of September, 1990.
 
            
 
            
 
            
 
            
 
                                          ______________________________
 
                                          BERNARD J. O'MALLEY
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies to:
 
            
 
            Mr Francis J Lange
 
            Attorney at Law
 
            750 CyCare Plaza
 
            Dubuque IA 52001
 
            
 
            Mr E David Wright
 
            Attorney at Law
 
            800 Town Clock Plaza
 
            Dubuque IA 52001
 
            
 
                 
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                          51100; 51108; 51802; 51803
 
                                          Filed September 19, 1990
 
                                          Bernard J. O'Malley
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            ANNA M. ZIMIGA,               :
 
                                          :
 
                 Claimant,                :
 
                                          :        File No. 807209
 
            vs.                           :
 
                                          :
 
            HOLIDAY INN,                  :     A R B I T R A T I O N
 
                                          :
 
                 Employer,                :        D E C I S I O N
 
                                          :
 
            and                           :
 
                                          :
 
            NORTHWESTERN NATIONAL         :
 
            INSURANCE COMPANY,            :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
            51100
 
            Found claimant's injury arose out of and in the course of 
 
            her employment.
 
            
 
            51108
 
            Found claimant's low back problems causally connected to her 
 
            October 12, 1985 injury.
 
            
 
            51802; 51803
 
            Claimant awarded some healing period benefits and 5% 
 
            industrial disability.
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                      5-3800
 
                      Filed October 23, 1990
 
                      Bernard J. O'Malley
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            ANNA M. ZIMIGA,               :
 
                                          :
 
                 Claimant,                :
 
                                          :        File No. 807209
 
            vs.                           :
 
                                          :
 
            HOLIDAY INN,                  :       R E H E A R I N G
 
                                          :
 
                 Employer,                :        D E C I S I O N
 
                                          :
 
            and                           :
 
                                          :
 
            NORTHWESTERN NATIONAL         :
 
            INSURANCE COMPANY,            :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
            5-3800
 
            Parties were in dispute as to when interest ran on permanent 
 
            partial disability and what the interest rate would be.  
 
            Also, parties (attorneys) were disputing what costs are 
 
            included under Iowa law.  Per telephone conference, parties 
 
            were given citations and deputy's understanding of costs 
 
            included in Iowa statute and interest per Teel decision.  
 
            The rehearing order did not change the decision.
 
            
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            MERLE L. McCUEN, JR.,         :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :       File No. 807533
 
            ROBCO TRANSPORTATION, INC.    :
 
            and/or WAGON MASTER           :    A R B I T R A T I O N
 
            TRANSPORTATION CO.,           :
 
                                          :       D E C I S I O N
 
                 Employer,                :
 
                                          :
 
            and                           :
 
                                          :
 
            THE HARTFORD,                 :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
            
 
                              statement of the case
 
            
 
                 This is a proceeding in arbitration brought by Merle 
 
            McCuen, Jr., claimant, against Robco Transportation, Inc. 
 
            and/or Wagon Master Transportation Company, employer, 
 
            (hereinafter referred to as Robco), and The Hartford, 
 
            insurance carrier, defendants, for workers' compensation 
 
            benefits as a result of an alleged injury on October 16, 
 
            1985.  On March 25, 1985, a hearing was held on claimant's 
 
            petition and the matter was considered fully submitted at 
 
            the close of this hearing.
 
            
 
                                      issues
 
            
 
                 According to the prehearing report, 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;
 
            
 
                  II.  The extent of claimant's entitlement to 
 
            disability benefits; and,
 
            
 
                 III.  The extent of claimant's entitlement to medical 
 
            benefits.
 
            
 
                     
 
            
 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            findings of fact
 
            
 
                 Having heard the testimony and considered all of the 
 
            evidence, the deputy industrial commissioner finds as 
 
            follows:
 
            
 
                 Claimant and his counsel failed to appear for hearing.  
 
            It is found that claimant and his counsel had sufficient 
 
            notice of the date and place of hearing.  Public address 
 
            paging of the claimant at the place of hearing was 
 
            conducted.
 
            
 
                 Claimant failed to produce any evidence that he 
 
            sustained a work injury or any work related disability.
 
            
 
                                conclusions of law
 
            
 
                   I.  Claimant has the burden of proving by a 
 
            preponderance of the evidence that claimant received an 
 
            injury which arose out of and in the course of employment.  
 
            The words "out of" refer to the cause or source of the 
 
            injury.  The words "in the course of" refer to the time and 
 
            place and circumstances of the injury.  See Cedar Rapids 
 
            Community Sch. v. Cady, 278 N.W.2d 298 (Iowa 1979); Crowe v. 
 
            DeSoto Consol. Sch. Dist., 246 Iowa 402, 68 N.W.2d 63 
 
            (1955).  An employer takes an employee subject to any active 
 
            or dormant health impairments, and a work connected injury 
 
            which more than slightly aggravates the condition is 
 
            considered to be a personal injury.  Ziegler v. United 
 
            States Gypsum Co., 252 Iowa 613, 620, 106 N.W.2d 591 (1960) 
 
            and cases cited therein.
 
            
 
                 In the case sub judice, claimant failed to produce 
 
            evidence of a work injury and none could be found.  
 
            Defendants are entitled to a dismissal of the claim with 
 
            prejudice and to costs.
 
            
 
                                      order
 
            
 
                 1.  Claimant's petition for workers' compensation 
 
            benefits and medical benefits is dismissed with prejudice.  
 
            The claim is denied.
 
            
 
                 2.  Claimant shall pay the costs of this action 
 
            pursuant to rule 343 IAC 4.33.
 
            
 
            
 
                 Signed and filed this ____ day of March, 1991.
 
            
 
            
 
            
 
                                          ______________________________
 
                                          LARRY P. WALSHIRE
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            
 
            
 
            
 
            
 
            Copies To:
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            
 
            Mr. Dennis P. Ogden
 
            Attorney at Law
 
            2000 Financial Center
 
            Des Moines  IA  50309
 
            
 
            Mr. Robert C. Landess
 
            Attorney at Law
 
            Terrace Center  STE 111
 
            2700 Grand Ave
 
            Des Moines  IA  50312
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                           5-1100
 
                           March 29, 1991
 
                           LARRY P. WALSHIRE
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            MERLE L. McCUEN, JR.,         :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :       File No. 807533
 
            ROBCO TRANSPORTATION, INC.    :
 
            and/or WAGON MASTER           :    A R B I T R A T I O N
 
            TRANSPORTATION CO.,           :
 
                                          :       D E C I S I O N
 
                 Employer,                :
 
                                          :
 
            and                           :
 
                                          :
 
            THE HARTFORD,                 :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
            
 
            
 
            5-1100 - Nonprecedential
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                  BEFORE THE IOWA INDUSTRIAL COMMISSIONER 
 
          __________________________________________________________________
 
          
 
          EARL S. KINKEN,
 
 
 
               Claimant,
 
                                                  File No. 807685
 
          VS.
 
                                                A R B I T R A T I 0 N
 
          OSCAR MAYER FOODS CORP.,
 
                                                  D E C I S I 0 N
 
               Employer,
 
               Self-Insured,
 
               Defendant.
 
          
 
          __________________________________________________________________
 
          
 
 
 
                                   INTRODUCTION
 
 
 
               This is a proceeding in arbitration brought by the claimant, 
 
          Earl S. Kinken, against his self-insured employer, Oscar Mayer 
 
          Foods Corp., to recover benefits under the Iowa Workers' 
 
          Compensation Act as a result o an injury sustained October 19, 
 
          1985.  This matter came on for hearing before the undersigned 
 
          deputy industrial commissioner in Davenport, Iowa, on May 20, 
 
          1987.  A first report of injury was filed October 28, 1985.  In 
 
          the prehearing report, the parties stipulated that all temporary 
 
          total disability or healing period benefits have been paid and 
 
          are not at issue.  No permanent partial disability benefits have 
 
          been paid.
 
 
 
               The record in this case consists of the testimony of 
 
          claimant, of G. Brian Paprocki, of Vernon Keller, of Monica 
 
          Murphy, and of Jeff Rosenow.  The record also consists of joint 
 
          exhibits 1 through 13; of claimant's exhibits 14 through 26; and 
 
          of defendant's exhibits A through C.
 
 
 
                                     ISSUES
 
 
 
               Pursuant to the prehearing report, the parties stipulated 
 
          that claimant's rate of weekly compensation is $302.03. They 
 
          further stipulated that the commencement date for any permanent 
 
          partial disability due claimant is March 10, 1986, and that 
 
          claimant has been paid temporary total or healing period benefits 
 
          as due from October 20, 1985 through March 6, 1986, and for March 
 
          18, 1986; that claimant received an injury on the alleged injury 
 
          date which arose out of and in the course of his employment, and 
 
          that that injury was causally related to temporary total or 
 
          healing period disability.  The issues remaining for resolution 
 
          are:
 
 
 
               1)  Whether a causal relationship exists between claimant's 
 
          injury and any permanent partial or permanent total disability; 
 
          and
 
               2)  Whether claimant is entitled to benefits and the nature 
 
          
 

 
 
 
 
 
 
 
         KINKEN V. OSCAR MAYER FOODS CORP.
 
         Page   2
 
 
 
 
 
          and extent of any benefit entitlement.
 
 
 
                             REVIEW OF THE EVIDENCE
 
 
 
               Claimant is 61 years old and has completed eleventh grade.  
 
          He gave a work history of a farm laborer, a warehouse worker, 
 
          truck driver, and siding applicator before beginning work with 
 
          Oscar Mayer in 1967.  Prior to his injury, claimant reported 
 
          having pushed garbage gondolas holding 1000 to 1500 pounds in the 
 
          course of his employment.  On October 18, 1985, a garbage truck 
 
          ran into claimant at work.  He subsequently spent eight days in 
 
          the hospital in the intensive care unit and three weeks in the 
 
          hospital.
 
 
 
               Claimant returned to light duty work with Oscar Mayer on 
 
          March 10, 1986.  He now sweeps and supplies locker rooms, chores, 
 
          that is, scrubs lockers and cleans up the towel house at Oscar 
 
          Mayer on the night shift.  Claimant reported that he continues to 
 
          have chest and back pain and has a lessening of grip strength 
 
          although that has not caused problems in his current job.  He 
 
          indicated he hasn't felt up to hunting or fishing since his 
 
          injury and has been unable to earn time and a half overtime or 
 
          work six or seven day weeks since his injury.  Claimant no longer 
 
          does house siding after working at Oscar Mayer in order to earn 
 
          extra income.  Claimant agreed that he is a union member 
 
          guaranteed thirty-six hours of pay per week and forty hours of 
 
          pay per holiday week.  He indicated that his employer and his 
 
          physicians encouraged his work return although he himself had not 
 
          wished to return to work.  Claimant has no current retirement 
 
          plans, but stated that whether he would retire would, in part, be 
 
          a function of whether he would receive sufficient monies from his 
 
          pension, any workers' compensation recovery, and any recovery on 
 
          a third party claim against the garbage company.  Claimant agreed 
 
          that F.EDale Wilson, M.D., was an examining and not a treating 
 
          physician.  He agreed that he does part of a recommended exercise 
 
          program.  He has preexisting diabetes.
 
 
 
               Robert L. Smith, claimant's neighbor for the past twelve to 
 
          thirteen years, confirmed that claimant no longer does siding 
 
          jobs and stated that claimant, no longer works on cars or changes 
 
          oil.
 
 
 
               Vernon Keller, safety security manager for Oscar Mayer, 
 
          reported that he administers the workers' compensation program at 
 
          the plant and that the employer's policy is to return injured 
 
          employees to work whenever possible following a work injury.  He 
 
          reported that there are no present plans to discharge claimant 
 
          and that the employer will work to provide a job as long as 
 
          claimant is willing to work.  Mr. Keller stated that claimant's 
 
          job performance is satisfactory and claimant has not indicated he 
 
          cannot do the job provided.  Keller stated that if claimant could 
 
          not perform his present job, claimant will be medically evaluated 
 
          to determine if other jobs are available for him.  Keller 
 
          reported that claimant is entitled to all union contract 
 
          provisions.  He agreed that the union contract does not protect 
 
          an employee against firing, layoffs, or plant buy-out.
 
 
 
               Monica Murphy, supervising nurse at Oscar Mayer, reported 
 
          that she sees claimant daily for heat pack treatments on his 
 

 
 
 
 
 
 
 
         KINKEN V. OSCAR MAYER FOODS CORP.
 
         Page   3
 
 
 
 
 
          right back and chest wall.  She stated that claimant does not 
 
          have difficulty walking, but does have difficulty climbing on the 
 
          table for treatment with that difficulty such as is 
 
          characteristic of persons with large abdomens.  She indicated 
 
          claimant had not complained that he was unable to do his assigned 
 
          job.
 
 
 
               Jeff Roscrow, night supervisor at Oscar Mayer, testified 
 
          that he has been claimant's supervisor for approximately ten 
 
          months, and that claimant's job had been part of another 
 
          individuals job before the job was split.
 
 
 
               G. Brian Paprocki, a vocational consultant with a masters in 
 
          science in vocational rehabilitation, saw claimant in a one hour 
 
          interview on January 29, 1987.  He discussed claimant's 
 
          education, academic abilities, and work background, including his 
 
          current Oscar Mayer work with claimant.  Paprocki opined that 
 
          claimant's current job duties are not generally characteristic of 
 
          the job description for janitorial work contained in the 
 
          Dictionary of Occupational Titles.  He opined that ' claimant 
 
          would not fair well if he lost his current job because of a 
 
          fifteen pound lifting limitation, and his lack of arm grip 
 
          strength, as well as his lack of transferable skills.  He agreed 
 
          that with those limitations, claimant could likely hold positions 
 
          as a watch guard, as a light laundry, or as a janitorial worker.  
 
          He reported that those jobs had a pay range from $4.88 to $5.92 
 
          per hour.  He indicated claimant also could work as a parking lot 
 
          attendant, a bridge toll taker, a self-service laundry attendant, 
 
          a gas station attendant, a light packaging worker or a light 
 
          production worker.  Paprocki agreed claimant now has no loss of 
 
          earning capacity, but for his inability to work overtime.  He 
 
          agreed claimant has no plans to resign and seek other employment.  
 
          He agreed that not all physicians believe claimant has a loss of 
 
          grip strength.  He reported, however, that he knows of no 
 
          employer who would allow an individual to take two heat 
 
          treatments per day.
 
 
 
               Claimant was admitted to the hospital on October 19, 1985 
 
          and discharged November 5, 1985.  The final hospital diagnosis 
 
          was of a blunt trauma to the chest and abdomen; multiple left and 
 
          right rib fracture; right pneumohemothorax; aspiration pneumonia; 
 
          atrial fibrillation; diabetes mellitus, type II; and persistently 
 
          elevated liver function tests.
 
 
 
               Peter S. Jerome, M.D., treated claimant during his 
 
          hospitalization at Mercy, and opined on December 30, 1985 that 
 
          claimant had had a significant chest wall pain secondary to 
 
          extensive rib fractures which should resolve approximately two 
 
          months following his discharge.  He felt claimant would be likely 
 
          to return to work by early or mid January 1986.  He felt that 
 
          overall, claimant's prognosis was excellent.,
 
 
 
               Dennis L. Miller, M.D., examined claimant on February 26, 
 
          1986.  Claimant then had localized back pain to the midline 
 
          lumbar area without any well localized tenderness or 
 
          paravertebral muscle spasm.  He had excellent range of forward 
 
          flexion and could touch his toes with his knees extended.  
 
          Claimant had good lateral bending both right and left and there 
 
          was no tenderness over the buttocks and no tenderness over the 
 

 
 
 
 
 
 
 
         KINKEN V. OSCAR MAYER FOODS CORP.
 
         Page   4
 
 
 
 
 
          sciatic notch.  Straight leg raising tests were negative to 90 
 
          degrees.  There was no radiation of pain into his lower 
 
          extremities and pain was not aggravated by cough or sneeze.  Dr. 
 
          Miller was not clear as to whether claimant had really sustained 
 
          injury to his back as a result of his work accident or has simply 
 
          developed weakness in his back as a result of his convalescence, 
 
          etc.  He stated that claimant had certain preexisting 
 
          degenerative changes in his lumbar spine and a markedly 
 
          protuberant abdomen placed excessive strain on his back.  He 
 
          noted that claimant tends to stands in hyperextension which 
 
          excessively strains the facets.  Dr. Miller opined that claimant 
 
          would definitely benefit from weight reduction with a program of 
 
          exercises to strengthen his back and abdomen; but was unsure that 
 
          claimant would be terribly cooperative or compliant with an 
 
          exercise program.  He opined that while claimant had certainly 
 
          sustained a severe injury, he had made a remarkable recovery with 
 
          little evidence of residual permanent impairment.
 
 
 
               Dr. Miller reexamined claimant on April 14, 1987.  On May 1, 
 
          1987, he opined that claimant did have a loss of external 
 
          rotation of the left shoulder, but thought this was related to a 
 
          previous injury.  He noted that claimant probably did have some 
 
          weakness in his upper extremities, but that claimant was 
 
          physiologically older than his stated age and that he suspected 
 
          this was a strong factor.  He opined there was no objective 
 
          evidence that the injury of October 20, 1985 caused weakness in 
 
          the upper extremities.  He felt claimant's permanent impairment 
 
          was largely on range of motion, but that claimant did have some 
 
          impairment and persistent pain in his chest and probably did have 
 
          pain with shoulder motion.  He felt it was reasonable to assume 
 
          that that affects heavy lifting, pushing, etc.  He felt claimant 
 
          had some loss of motion in his back, but based on x-ray finding, 
 
          that loss of motion was present prior to his accident.  He 
 
          "seriously doubted" that it was related to the accident.  He 
 
          could not confirm loss of motion in the right shoulder and was 
 
          not convinced that weakness in the two arms was entirely related 
 
          to the accident.  He felt five percent of the whole person for 
 
          chest pains sounded reasonable; but that claimant's whole person 
 
          impairment was approximately fifteen percent.
 
 
 
               J.H. Sunderbruch, M.D., saw claimant on June 3, 1986.  He 
 
          reported that claimant continued to complain of pain in his chest 
 
          and, in addition, stated that he had some distress in his right 
 
          shoulder as well as pain in his left shoulder from his last visit 
 
          of May 20, 1986.  Dr. Sunderbruch stated that the findings noted 
 
          on May 20, 1986 relative to the left shoulder would indicate 
 
          limitations of abduction and external rotation probably due to 
 
          tendonitis, but not related to the accident.   Dr. Sunderbruch 
 
          stated that claimant stated he had had that ever since the 
 
          accident, but that that was the first time he complained about it 
 
          to Dr. Sunderbruch.  Dr. Sunderbruch then opined that claimant 
 
          had made up his mind that he would never get better and though 
 
          there was no evidence he could not do something heavier, the 
 
          doctor believed the company was fortunate to be able to have him 
 
          continue to show up at work and do some type of work.
 
 
 
               Dr. Sunderbruch saw claimant on August 12, 1986.  He 
 
          reported that claimant stated he was still having pain in the 
 
          chest and back, had some difficulty with his left arm as well as 
 

 
 
 
 
 
 
 
          KINKEN V. OSCAR MAYER FOODS CORP.
 
          Page   5
 
 
 
 
 
          his right arm.  He stated that claimant continued to say he was 
 
          just as bad as he always was.  He noted that on examination, he 
 
          found no severe disability, but some limitation of motion in 
 
          claimant's left shoulder due to crepitation due to old wear and 
 
          tear of the left acronial clavicular junction, demonstrated in 
 
          left shoulder x-rays on May 20, 1986.  Chest findings 
 
          demonstrated nothing new.  Lungs were negative to auscpltation 
 
          and percussion.  He noted that claimant might have some 
 
          intercostal neuritis because of the old healed fractures, but 
 
          that his ribs are well healed and there was no reason for 
 
          claimant to have severe injury or severe pain.  He reported that 
 
          claimant insisted he was not capable of doing more work than he 
 
          was doing now and further insisted that he did not want to try to 
 
          do any more though the doctor prevailed upon him that the only 
 
          way he would improve would be to attempt to do more.  The doctor 
 
          felt that claimant was probably not going to be cooperative with 
 
          doing anything more than he was doing until he settled in his own 
 
          mind his relationship with the company because of the previous 
 
          injury.
 
 
 
               Philip A. Habak, M.D., of cardiovascular medicine, P.C., saw 
 
          claimant on September 30, 1986 and reported that an 
 
          echocardiogram performed recently was normal.  On December 30, 
 
          1986, Dr. Habak reported that claimant appeared to be doing quite 
 
          well; would be maintained on his current regimen of Procan SR 500 
 
          mg.; and reevaluated in six months.
 
 
 
               F. Dale Wilson, M.D., examined claimant on April 4, 1986.  
 
          In a report of January 19, 1987, he reported claimant's present 
 
          symptoms as constant pain in the right front over the fifth and 
 
          sixth ribs laterally, with some pain in the eleventh and twelfth 
 
          ribs on the back on the right side and soreness on the left about 
 
          the level of the elbow.  He reported a weight restriction of 
 
          about ten pounds per doctor's order and a weak left arm.  He 
 
          reported claimant said that, from the injury, he now had weakness 
 
          and a hard time working with the left wrist.  He reported that 
 
          claimant could not swing his right arm above his shoulder because 
 
          it aggravated his chest pain and there was-limited motion in the 
 
          right shoulder.  He reported that claimant could kneel and squat 
 
          satisfactorily.  Dr. Wilson opined that claimant's injury was the 
 
          causal factor in respect to the symptoms, pathology and 
 
          impairment reported.  He reported that that applied except that 
 
          there was a question about the degenerative changes recorded in 
 
          T11, T12, and L1, as well as sclerosing facets of L5-Sl; those 
 
          where asymptomatic; claimant had some limitation of rotation, but 
 
          it was difficult to be sure that these degenerative changes came 
 
          about following his injury.  Dr. Wilson's impairment evaluation 
 
          was as follows:
 
 
 
               Impairment evaluation:
 
                                                Extremity       Person
 
               1.  Need for medication for
 
               pancreas and heart                                 ?
 
 
 
               2.  Chest pain, continual                          5%
 
 
 
               3.  Right shoulder:  Flexion        2%
 
                                   Lateral        2
 
                                   Motion  In     1
 

 
 
 
 
 
 
 
         KINKEN V. OSCAR MAYER FOODS CORP.
 
         Page   6
 
 
 
 
 
                                           Out    1
 
 
 
               4.  Weakness of two arms            7 
 
 
 
                                                  17%            10
 
 
 
               5.  Back rotation                                  6 
 
 
 
                                                                21%  
 
                                                            Extremity
 
 
 
               Fred C. Green, D.O., identified himself as a physician who 
 
          has been in practice since 1968 and as having been one of 
 
          claimant's primary physicians for a number of years.  He reported 
 
          that prior to October 19, 1985 claimant's health was stable 
 
          albeit he was a diabetic who was seen frequently for 
 
          musculoskeletal complaints.  He reported that claimant has had 
 
          back complaints and some symptomatic dysfunction of the back 
 
          prior to his injury with the back pain resulting from constant or 
 
          excessive muscle strain.  Dr. Green stated that as of April 8, 
 
          1986 claimant's insulin had not changed from 15 NPH.  He reported 
 
          that post-injury, claimant had constant complaints of chest pain 
 
          and nonspecific back pain located around the right shoulder blade 
 
          and the right rib cage.  Dr. Green agreed that claimant had had a 
 
          number of complaints of chest pain prior to the injury, but that 
 
          these had not been persistent.  He opined that claimant's 
 
          persistent chest wall discomfort was definitely injury related 
 
          and that that condition would probably continue to cause claimant 
 
          
 

 
 
 
 
 
 
 
         KINKEN V. OSCAR MAYER FOODS CORP.
 
         Page   7
 
 
 
 
 
          problems.  He reported that claimant's additional weight 
 
          contributes to his musculoskeletal complaints.
 
 
 
               Peter S. Jerome, M.D., identified himself in his deposition 
 
          as a board certified internist with a subspecialty in pulmonary 
 
          medicine.  He reported that he had taken his pulmonary medicine 
 
          boards but had not yet received results on those.  Dr. Jerome 
 
          reported that pulmonary function studies of September 26, 1986 
 
          revealed that claimant had a moderate[ly] ventilation impairment.  
 
          He characterized claimant's injury as a minor component in that 
 
          impairment with his abdominal obesity also being a contributing 
 
          factor to the impairment.  He reported that claimant would not 
 
          receive significant impairment of ventilatory capacity for doing 
 
          moderate, vigorous to secondary activities but would have some 
 
          minor impairment due to residual chest wall pain.  Dr. Jerome 
 
          stated that significant chest wall pain can restrict upper 
 
          extremity motion, but reported that he did not observe such 
 
          restrictions in claimant's right shoulder and did not believe 
 
          claimant had pain significant to disturb his right shoulder range 
 
          of motion.  Dr. Jerome reported that he had observed no weakness 
 
          in claimant's upper extremities in the course of his care of 
 
          claimant, and that any such weakness was unlikely related to 
 
          claimant's injury.  Dr. Jerome agreed that trauma can cause 
 
          changes in insulin requirements, but stated that control of 
 
          claimant's diabetes was not a major problem at claimant's 
 
          hospital discharge.
 
 
 
               Philip A. Habak, M.D., identified himself in his deposition 
 
          as board certified in both internal medicine And cardiovascular 
 
          disease.  He reported that claimant gave no medical history of 
 
          heart disease prior to his injury.  He characterized Lanoxin as a 
 
          cardiac glycosid which slows down the heart and returns its 
 
          rhythm to normal.  Dr. Habak opined that claimant's atrial 
 
          fibrillation during his hospital stay was injury related, but his 
 
          atrial flutter of September 30, 1986 was not injury related.  He 
 
          described the fibrillation and the flutter as different types of 
 
          arrhythmiac conditions.  He opined that smoking for forty-four 
 
          years could affect the condition of the lungs and that nicotine 
 
          is a cardiac stimulant which could be a predisposing factor 
 
          [apparently in arrhythmiac conditions].  Dr. Habak reported that 
 
          he had released claimant for light duty work on October 1, 1986 
 
          as a result of his continued chest wall pain in that regular duty 
 
          work likely exacerbate such pain.  He reported that a 15 pounds 
 
          lifting restriction was related to claimant's chest wall, pain.
 
 
 
               F. Dale Wilson, M.D., identified himself as a board 
 
          certified surgeon who had examined claimant.  He reported that 
 
          claimant self-reported that he had increased his insulin from 15 
 
          NPH preinjury regularly to 30 to 100 NPH [at times] following his 
 
          injury.  Dr. Wilson stated that there were no reports that 
 
          claimant's L5-Sl spondylitis was symptomatic prior to this injury 
 
          and that changes therein probably were brought about by 
 
          aggravation "of those changes."  He opined that degenerative 
 
          changes at T11, T12, and L1 and sclerosis of the facets which 
 
          claimant had likely predated his injury, but stated that 
 
          degeneration can be particularly stepped up following injuries.  
 
          Dr. Wilson stated that claimant's weakness in his hands and arms 
 
          were the most serious defects attributed to his injury in that 
 
          while claimant had left hand and arm weakness prior to his 
 

 
 
 
 
 
 
 
          KINKEN V. OSCAR MAYER FOODS CORP.
 
          Page   8
 
 
 
 
 
          injury, he had been getting along and had had no right hand or 
 
          arm weakness preinjury.  Dr. Wilson stated that he had no 
 
          explanation for claimant's hand and arm weakness.  He reported 
 
          that his permanent partial impairment ratings were not based on 
 
          the AMA Guides but on his personal judgments and experience.
 
 
 
               The balance of the evidence was reviewed and considered in 
 
          the disposition of this matter.
 
 
 
                         APPLICABLE LAW AND ANALYSIS
 
 
 
               We address the causation issue.
 
 
 
               The claimant has the burden of proving by a preponderance of 
 
          the evidence that the injury of October 19, 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. 0. Boggs, 236 Iowa 296, 18 N.W.2d 607 (1945).  A 
 
          possibility is insufficient; a probability is necessary.  Burt v. 
 
          John Deere Waterloo Tractor Works, 247 Iowa 691, 73 N.W.2d 732 
 
          (1955).  The question of causal connection is essentially within 
 
          the domain of expert testimony.  Bradshaw v. Iowa Methodist 
 
          Hospital, 251 Iowa 375, 101 N.W.2d 167 (1960).
 
 
 
               However, expert medical evidence must be considered with all 
 
          other evidence introduced bearing on the causal connection.  
 
          Burt 247 Iowa 691, 73 N.W.2d 732.  The opinion of experts need 
 
          not be couched in definite, positive or unequivocal language.  
 
          Sondag v. Ferris Hardware, 220 N.W.2d 903 (Iowa 1974).  However, 
 
          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, 760-761 
 
          (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).
 
 
 
               A cause is proximate if it is a substantial factor in 
 
          bringing about the result.  It need be only one cause of the 
 
          result; it need not be the only cause.  Blacksmith v. All 
 
          American, Inc., 290 N.W.2d 348, 354 (Iowa 1980).
 
 
 
               Claimant's physicians generally agree that his persistent 
 
          chest wall pain is a likely result of his work injury.  We agree 
 
          with that finding.
 
 
 
               Dr. Habak reports he has no medical history of claimant 
 
          having had heart problems prior to his injury; he does not 
 
          attribute claimant's atrial flutter to.his work injury even 
 

 
 
 
 
 
 
 
         KINKEN V. OSCAR MAYER FOODS CORP.
 
         Page   9
 
 
 
 
 
          though he felt claimant's in-hospital atrial fibrillation was 
 
          work related.  Claimant is doing well on anti-arrhymiac heart 
 
          medication regardless of the cause of his arrhymiac heart 
 
          conditions.  Hence, we do not believe the evidence supports a 
 
          finding that either his atrial fibrillation or his subsequent 
 
          atrial flutter has produced permanent partial disability to 
 
          claimant.  Only Dr. Wilson attributes claimant's upper extremity 
 
          and shoulder complaints to his work incident with Dr. Miller and 
 
          Dr. Sunderbruch finding no basis for attributing those to the 
 
          work injury.  As both Dr. Miller and Dr. Sunderbruch had greater 
 
          contact with claimant than did Dr. Wilson, we accept their 
 
          opinions over that of Dr. Wilson.  Dr. Green, one of claimant's 
 
          long-time treating physicians, stated claimant had had back 
 
          complaints and symptomatic dysfunction of the back before his 
 
          work injury resulting from constant to excessive muscle strain.  
 
          He felt claimant's excessive weight contributed to his 
 
          musculoskeletal complaints.  Dr. Miller was unclear as to whether 
 
          claimant had injured his back in his work accident or had 
 
          developed weakness during his convalescence.  He further noted 
 
          that claimant had preexisting degenerative changes in the lumbar 
 
          spine, a markedly protuberant abdomen which excessively strained 
 
          his back, and a tendency to stand in hyperextension, thereby, 
 
          placing excessive strain on the facets.  Hence, a number of 
 
          factors other than the work injury likely significantly 
 
          contribute to claimant's back problems.  It appears likely that 
 
          claimant's convalescence as well as the injury itself have 
 
          contributed in part to claimant's back condition.  Yet, we do not 
 
          have evidence sufficient to demonstrate they were a substantial 
 
          factor in claimant's back complaints.  For that reason, we do not 
 
          find the injury a proximate cause of claimant's current back 
 
          complaints.  Likewise, per Dr. Jerome's testimony, we find 
 
          claimant's injury only a minor component and not a substantial 
 
          factor in claimant's moderate ventilation impairment.  The record 
 
          as a whole does not substantiate claimant's complaint that his 
 
          injury has aggravated his preexisting diabetes.
 
 
 
               We consider the permanent partial disability entitlement 
 
          question.
 
 
 
               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 found by a 
 
          medical evaluator does not equate to industrial disability.  This 
 
          is so as impairment and disability are not synonymous.  Degree of 
 
          industrial disability can in fact be much different than the 
 
          degree of impairment because in the first instance reference is 
 
          to loss of earning capacity and in the later to anatomical or 
 
          functional abnormality or loss.  Although loss of function is to 
 
          be considered and disability can rarely be found without it, it 
 
          is not so that a degree of industrial disability is 
 
          proportionally related to a degree of impairment of bodily 
 
          function.
 
 
 

 
 
 
 
 
 
 
         KINKEN V. OSCAR MAYER FOODS CORP.
 
         Page  10
 
 
 
 
 
               Factors to be considered in determining industrial 
 
          disability include the employee's medical condition prior to the 
 
          injury, immediately after the injury, and presently; the situs of 
 
          the injury, its severity and the length of healing period; the 
 
          work experience of the employee prior to the injury, after the 
 
          injury and potential for rehabilitation; the employee's 
 
          qualifications intellectually, emotionally and physically; 
 
          earnings prior and subsequent to the injury; age; education; 
 
          motivation; functional impairment as a result of the injury; and 
 
          inability because of the injury to engage in employment for which 
 
          the employee is fitted.  Loss of earnings caused by a job 
 
          transfer for reasons related to the injury is also relevant.  
 
          These are matters which the finder of fact considers collectively 
 
          in arriving at the determination of the degree of industrial 
 
          disability.
 
 
 
               There are no weighting guidelines that indicate how each of 
 
          the factors are to be considered.  There are no guidelines which 
 
          give, for example, age a weighted value of ten percent of the 
 
          total value, education a value of fifteen percent of total, 
 
          motivation - five percent; work experience - thirty percent, etc.  
 
          Neither does a rating of functional impairment directly correlate 
 
          to a degree of industrial disability to the body as a whole.  In 
 
          other words, there are no formulae which can be applied and then 
 
          added up to determine the degree of industrial disability.  It 
 
          therefore becomes necessary for the deputy or commissioner to 
 
          draw upon prior experience, general and specialized knowledge to 
 
          make the finding with regard to degree of industrial disability.  
 
          See Peterson v. Truck Haven Cafe, Inc., (Appeal Decision, 
 
          February 28, 1985); Christensen v. Hagen,.Inc., (Appeal Decision, 
 
          March 26, 1985).
 
 
 
               Claimant is an older worker; his employer has returned him 
 
          to work which accommodates his various physical conditions.  
 
          Nothing in the record reflects that the employer will not 
 
          continue to do so throughout claimant's expected working life.  
 
          With the exception of Dr. Wilson, who also assessed factors we do 
 
          not find related to claimant's work injury, claimant's physicians 
 
          have been reluctant to provide permanent partial impairment 
 
          ratings.  Dr. Miller reported a permanent partial disability of 5 
 
          percent for chest pains or 15 percent whole person was 
 
          appropriate.  The whole person impairment apparently also took 
 
          into account conditions not readily attributable to claimant's 
 
          work injury.  Claimant's work-related impairment appears modest 
 
          but for his weight restriction.  Dr. Sunderbruch has stressed 
 
          claimant's lack of desire to increase his work tolerance as a 
 
          factor in claimant's continuing inability to increase his work 
 
          capacity.  Claimant's perception that he is unable to work more 
 
          than he now is does appear to play a role in his condition given 
 
          his lack of objective medical findings.  That problem cannot 
 
          properly be attributed to the employer but must be considered a 
 
          reflection on claimant's own motivations.  Dr. Habak did impose a 
 
          15 pound lifting restriction on claimant on account of his chest 
 
          wall pain.  That restriction appears claimant's most significant 
 
          work injury-related restriction.  It would hamper him were he to 
 
          need to seek work with other than his present employer.  As noted 
 
          above, that possibility is remote, however.  Furthermore, Mr. 
 
          Paprocki has identified a number of positions that claimant could 
 
          fulfill for other employers.  We note that while such employers 
 

 
 
 
 
 
 
 
          KINKEN V. OSCAR MAYER FOODS CORP.
 
          Page  11
 
 
 
 
 
          would likely not allow claimant to heat packs per day, those 
 
          treatments do not appear medically necessary, but rather appear 
 
          to be provided for claimant's personal comfort.  Claimant also is 
 
          unable to work overtime in his present position.  He no longer 
 
          feels able to work part-time as a house sider.  These factors do 
 
          reflect a loss of earning capacity.  We find claimant has 
 
          sustained an overall industrial loss of 10 percent.
 
 
 
                              FINDINGS OF FACT
 
 
 
               WHEREFORE, IT IS FOUND:
 
 
 
               Claimant sustained an injury which arose out of and in the 
 
          course of his employment on October 19, 1985 when a garbage truck 
 
          ran into him at work.
 
 
 
               Claimant had rib fractures, right pnemohemothorax, 
 
          aspiration pneumonia and atrial fibrillation while hospitalized 
 
          on account of the injury.
 
 
 
               Claimant had preexisting diabetes mellitus Type II.
 
 
 
               Claimant nad preexisting chest wall pain but not 
 
          persistent.
 
 
 
               Claimant has had persistent chest wall pain since his 
 
          injury.
 
 
 

 
 
 
 
 
 
 
          KINKEN V. OSCAR MAYER FOODS CORP.
 
          Page  12
 
 
 
 
 
               Claimant had preexisting back pain and musculoskeletal 
 
          complaints related to his markedly protuberant abdomen, his. 
 
          hyperextended stance, and preexisting degenerative changes in his 
 
          lumbar spine.
 
 
 
               Claimant has had a prescribed dosage of 15 NPH insulin both 
 
          pre and post injury.
 
 
 
               Claimant's injury did not aggravate his diabetes.
 
 
 
               Claimant's in-hospital atrial fibrillation related to his 
 
          injury; his later atrial flutter did not relate to his injury.
 
 
 
               Claimant's heart arrhythmiac condition is controlled 
 
          successfully with medication.
 
 
 
               Claimant's work injury was a minor component in his moderate 
 
          ventilation impairment with his abdominal obesity also being a 
 
          contributing factor.
 
 
 
               Claimant has a 15 pound weight restriction on account of his 
 
          chest wall pain.
 
 
 
               Claimant's upper extremity and shoulder complaints do not 
 
          relate to his work injury.  Left side complaints predated the 
 
          work injury.  Right side complaints were not reported to Dr. 
 
          Sunderbruch until Spring 1986.
 
 
 
               Claimant is an older worker.
 
 
 
               Claimant's employer has returned him to work within his 
 
          restrictions and is likely to retain claimant throughout the 
 
          remainder of claimant's work life.
 
 
 
               Claimant cannot now work overtime and cannot do part-time 
 
          house siding.
 
 
 
               Claimant could perform other more sedentary jobs were he to 
 
          lose or leave his current position, but could not perform heavy 
 
          manual labor.
 
 
 
               Claimant has a loss of earnings capacity of 10 percent.
 
 
 
                          
 
                            CONCLUSIONS OF LAW
 
 
 
               THEREFORE, IT IS CONCLUDED:
 
 
 
               Claimant has established that his injury of October 19, 1985 
 
          is the cause of the disability on which he bases his claim.
 
 
 
               Claimant is entitled to permanent partial disability 
 
          resulting from his October 19, 1985 injury of ten percent (10%).
 
 
 
                                     ORDER
 
 
 
               THEREFORE, IT IS ORDERED:
 

 
 
 
 
 
 
 
          KINKEN V. OSCAR MAYER FOODS CORP.
 
          Page  13
 
 
 
 
 
 
 
               Defendants pay claimant permanent partial disability for 
 
          fifty (50) weeks at the rate of three hundred two and 03/100 
 
          dollars ($302.03) with those payments to commence March 10, 
 
          1986.
 
 
 
               Defendants pay accrued amounts in a lump sum.
 
 
 
               Defendants pay interest pursuant to section 85.30.
 
 
 
               Defendants pay costs pursuant to Division of Industrial 
 
          Services Rule 343-4.33.
 
 
 
               Defendants file claim activity reports as required by the 
 
          agency.
 
 
 
 
 
               Signed and filed this 20th day of July, 1987.
 
 
 
 
 
 
 
 
 
 
 
                                           HELEN JEAN WALLESER
 
                                           DEPUTY INDUSTRIAL COMMISSIONER
 
 
 
          Copies to:
 
 
 
          Mr. William J. Bribriesco
 
          Attorney at Law
 
          2407 18th Street
 
          Suite 202
 
          Bettendorf, Iowa 52722
 
 
 
          Mr. Richard M. McMahon
 
          Attorney at Law
 
          600 Union Arcade
 
          Davenport, Iowa 52801
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                                 1803
 
                                                 Filed 7-20-87
 
                                                 Helen Jean Walleser
 
         
 
                   BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         _________________________________________________________________
 
         
 
         EARL S. KINKEN,
 
         
 
              Claimant,
 
                                                 File No. 807685
 
         VS.
 
                                               A R B I T R A T I 0 N
 
         OSCAR MAYER FOODS CORP.,
 
                                                 D E C I S I 0 N
 
              Employer,
 
              Self-Insured,
 
              Defendant.
 
         _________________________________________________________________
 
         
 
         1803
 
         
 
              Ten percent permanent partial disability awarded sixty-one 
 
         year old claimant whose employer had returned him to work at same 
 
         salary, but who was unable to work overtime or at prior part-time 
 
         job.
 
 
 
         
 
 
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                    
 
                 BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         WILMA RICE,                                File Nos. 807855
 
                                                              847940
 
              Claimant,
 
                                                 A R B I T R A T I O N
 
         vs.
 
                                                   D E C I S I O N
 
         TODD CORPORATION,
 
                                                      F I L E D 
 
              Employer,
 
              Self-Insured,                           APR 04 1989
 
              Defendant.
 
                                                  INDUSTRIAL SERVICES
 
         
 
         
 
                                   INTRODUCTION
 
         
 
              This decision addresses two proceedings in arbitration 
 
         brought by Wilma Rice against her former employer, the Todd 
 
         Corporation.  The case was heard and fully submitted at Des 
 
         Moines, Iowa on June 22, 1988.  The record in this proceeding 
 
         consists of testimony from Wilma Rice and exhibits 1 through 6.
 
         
 
                                     ISSUES
 
         
 
              Claimant alleges that she sustained injuries which arose out 
 
         of and in the course of her employment on June 13, 1985 and also 
 
         on September 13, 1985.  The issues presented for determination 
 
         include whether claimant sustained an injury which arose out of 
 
         and in the course of her employment with the employer on either 
 
         or both of those dates; whether the alleged injury is a cause of 
 
         temporary and permanent disability; and, determination of 
 
         claimant's entitlement to compensation for temporary total 
 
         disability, healing period and permanent partial disability. 
 
         Claimant also seeks to recover expenses of treatment under the 
 
         provisions of Code section 85.27.  It was stipulated that, in the 
 
         event of an award, the rate of compensation for an injury 
 
         occurring on June 13, 1985 would be $109.54 per week and that for 
 
         an injury occurring on September 13, 1985, the proper rate would 
 
         be $109.41 per week.
 
         
 
                            SUMMARY OF EVIDENCE
 
         
 
              The following is a summary of evidence presented in this 
 
         case.  Of all the evidence received at the hearing, only that 
 
         considered most pertinent to this decision is discussed. 
 
         Conclusions about what the evidence showed are inevitable with 
 
         any summarization.  The conclusions in the following summary 
 
         should be considered to be preliminary findings of fact.
 
         
 
              Wilma Rice is a 44-year-old, married lady who lives at Des 
 
         Moines, Iowa.  She has six children, all of whom were grown at 
 
                                                
 
                                                         
 
         the time of hearing.
 
         
 
              Wilma completed the seventh grade, but left school in order 
 
         to get married at age 13.  During most of her life, she has been 
 
         occupied as a homemaker.  She obtained a GED in the early 1980's. 
 
         Her first substantial employment since leaving high school 
 
         commenced in 1979 when she worked as a sales clerk at the Woolco 
 
         Department Store for approximately four years.  Claimant stated 
 
         that she was earning approximately $4.00 per hour when the store 
 
         closed.  In late 1983, she held a position for approximately two 
 
         months where she operated an adding machine and performed 
 
         shipping and receiving functions.  Claimant stated that she was 
 
         paid $3.35 per hour for that work.  After a second period of 
 
         unemployment, claimant was hired by the Todd Corporation in late 
 
         1984.  Claimant testified that Todd Corporation is a rental 
 
         uniform service and that she was hired to work in the sorting bay 
 
         where she sorted clothes.  Claimant testified that the work was 
 
         repetitive.  She stated that she put shirts on hangers over pants 
 
         and worked with her hands at a height that was approximately even 
 
         with the top of her head approximately 75% of the time.  Claimant 
 
         testified that she worked full-time and was paid $4.00 per hour.
 
         
 
              Claimant had experienced a number of health problems and 
 
         some surgery prior to the time she commenced employment at Todd 
 
         Corporation, which matters have no bearing whatsoever on the 
 
         issues now under consideration.  Extensive records of that prior 
 
         treatment were, nevertheless, submitted by counsel.
 
         
 
              The multitude of medical records submitted into evidence 
 
         does, however, include a neck injury which claimant sustained in a 
 
         1974 automobile accident [exhibit 1(o), pages 17 and 18] and 
 
         evidence of a 1980 automobile accident when claimant was treated 
 
         at Des Moines General Hospital [exhibit 1(l), pages 1-3].  
 
         Claimant told her physicians that she has had problems with her 
 
         neck and both upper extremities since that 1974 accident [exhibit 
 
         1(g), page 1; exhibit 1(e), page 6].  At hearing, claimant agreed 
 
         that she had experienced stiffness in her neck and headaches since 
 
         the automobile accidents.  She denied, however, having prior 
 
         problems with her hands, arms or shoulders prior to the injuries 
 
         complained of in this proceeding.  She denied having difficulty 
 
         when working with her hands above shoulder level prior to the 
 
         injuries complained of in this proceeding.  She stated that, prior 
 
         to this injury, she could and did perform activities such as 
 
         interior painting at her home.
 
         
 
              Claimant testified that, in June, 1985, her workplace was 
 
         short of people and that she was carrying a heavy workload.  She 
 
         stated that she started to notice a feeling which she described 
 
         as being like tennis elbow in her left elbow and also a problem 
 
         in her neck.  She stated that it would hurt when she lifted a 
 
         bundle of clothes overhead and that eventually it got to the 
 
         point that her arms ached constantly.  She stated that the 
 
         problem existed with both arms, but that the left was much worse 
 
         than the right. Claimant testified that the pain in her arms 
 
         became so bad that she sought treatment from her physician, 
 
                                                
 
                                                         
 
         Dennis F. Rolek, D.O., on June 13, 1985.  Claimant was referred 
 
         to John T. Bakody, M.D., a neurosurgeon.  A CT scan of claimant's 
 
         cervical spine was performed on June 28, 1985 which showed slight 
 
         spurring on the left at C6 and a bulging disc at the C4-5 level.  
 
         On June 24, 1985, nerve conduction studies of claimant's upper 
 
         extremities were conducted which were interpreted as being 
 
         normal.  Doppler studies were also conducted which were 
 
         interpreted as being probably negative for thoracic outlet 
 
         syndrome [exhibit 1(h), pages 2 and 6].  Claimant underwent 
 
         physical therapy at Mercy Hospital Medical Center on July 11, 
 
         1985.  On July 15, 1985, claimant was hospitalized at Mercy.  She 
 
         was admitted on July 15, 1985 and discharged on July 23, 1985.  
 
         Diagnostic tests were conducted and she was treated for her 
 
         complaints of neck pain and numbness in her upper extremities.  
 
         The final diagnosis was that claimant had a possible herniated 
 
         cervical disc, possible thoracic outlet syndrome and mild to 
 
         moderate depression [exhibit 1(e), pages 2 and 4].  Claimant was 
 
         again admitted to Mercy Hospital on August 5, 1985.  A cervical 
 
         myelogram was performed which was interpreted as showing mild 
 
         disc bulging at the C5-6 and C6-7 levels of claimant's cervical 
 
         spine [exhibit 1(d), pages 2 and 8].
 
         
 
              Claimant was off work during much of the period from June 
 
         13, 1985 until August 19, 1985 when she returned to work with a 
 
         light-duty restriction.  Claimant testified that, prior to the 
 
         time she was hospitalized, she was working intermittently 
 
         [exhibit 1(b), page 26].
 
         
 
              Claimant stated that she resumed work folding hand towels 
 
         and remained at that job in the towel room until the day before 
 
         her second injury occurred.
 
         
 
              Claimant stated that, on September 13, 1985, she was moved 
 
         to operate the shirt press.  She stated that the job involved 
 
         handling wet, heavy cotton shirts, throwing them into dryers in 
 
         order to get a damp dry and then pulling them out, placing them 
 
         in the shirt press and pressing them.  Claimant stated that, when 
 
         pulling a load out of the dryer, she felt a burning sensation in 
 
         her left shoulder.  Claimant stated that she was unable to 
 
         continue to work and unable to lift her left arm.  She reported 
 
         the incident to her supervisor and was taken to her doctor. 
 
         Claimant stated that the pain was unbearable.  She returned to 
 
         Albert L. Clemens, M.D., with whom she had consulted when 
 
         hospitalized in July [exhibit 1(a), page 5].  Claimant was 
 
         hospitalized and underwent left side thoracic outlet release 
 
         surgery on November 1, 1985 [exhibit 1(c), pages 1-8].
 
         
 
              Subsequent to the surgery, the symptoms regarding claimant's 
 
         left arm diminished.  Dr. Rolek authorized her to return to work 
 
         on January 6, 1986 [exhibit 2(d); exhibit 1(b), page 4].  Todd 
 
         Corporation refused to restore claimant's employment.
 
         
 
              In April, 1986, claimant received physical therapy from Ina 
 
         Helweg under the direction of Dr. Clemens.  Thereafter, claimant 
 
         searched for work and performed babysitting for her 
 
                                                
 
                                                         
 
         daughter-in-law.  Claimant eventually obtained full-time 
 
         employment at the Riverview Care Center where she was paid $3.70 
 
         per hour.  Claimant trained to become a nurse's aide and 
 
         successfully completed nurse's aide training administered by Des 
 
         Moines Area Community College.  In February, 1987, claimant 
 
         accepted a better-paying job at Valley View Village, another 
 
         nursing home.  Initially, she performed private duty service 
 
         working four hours per day, three days per week for which she was 
 
         paid $4.00 per hour.  She obtained a full-time position one week 
 
         prior to hearing.  Claimant now works in the laundry department 
 
         where she washes personal clothing, towels and wash cloths for 
 
         the health center.  She stated that she does not use her arms 
 
         above shoulder level.  She stated that she still has problems 
 
         with her arms and always will, but is able to perform the job.  
 
         Claimant acknowledged that Dr. Clemens has advised her to get out 
 
         of work handling patients. Claimant related that she had 
 
         experienced a flare-up of symptoms on her right side while she 
 
         was lifting a resident at Valley View when she worked as an aide. 
 
          Claimant related that she plans to continue in her present 
 
         position for which she is currently paid $4.20 per hour.
 
         
 
              Claimant testified that she still has mild thoracic outlet 
 
         symptoms, including swelling and numbness in her hands.  She 
 
         complained of continuing pain in her shoulder, neck and jaw.  She 
 
         stated that none of the physicians she has consulted has 
 
 
 
                            
 
         recommended further surgery and that it is her understanding that 
 
         there is little else that can be offered in the way of medical 
 
         treatment.  She stated that she is sometimes provided medications 
 
         for her problems.  Claimant testified that the symptoms on her 
 
         right arm are mild.  She stated that she is no longer able to 
 
         perform activities such as painting, hanging curtains or washing 
 
         walls.
 
         
 
              Dennis F. Rolek, D.O., is claimant's family physician.  He 
 
         first treated claimant for arm pain starting on June 13, 1985. 
 
         Prior to that date, she had not made such complaints, but since 
 
         then the complaints have become chronic (exhibit 2, pages 8-10). 
 
         Dr. Rolek also indicated that claimant has had neck, shoulder and 
 
         upper extremity problems from a motor vehicle accident which 
 
         occurred ten or twelve years earlier.  He indicated that she has 
 
         had problems with depression, off and on, for a long period of 
 
         time (exhibit 2, pages 11 and 12).
 
         
 
              Dr. Rolek stated that claimant suffers from three problems, 
 
         cervical strain, depression and thoracic outlet syndrome.  He 
 
         felt that the first two had preexisted claimant's 1985 injuries 
 
         (exhibit 2, pages 18 and 19).  Dr. Rolek also indicated that 
 
         claimant's cervical disc injury was work-related (exhibit 2, 
 
         pages 32 and 33).  He stated that lifting objects overhead, 
 
         particularly heavy objects, will aggravate a preexisting thoracic 
 
         outlet syndrome and can actually induce thoracic outlet syndrome 
 
         (exhibit 2, pages 33 and 34).  Dr. Rolek also indicated that 
 
         claimant's depression was most likely related to her arm pain 
 
         (exhibit 2, page 25).
 
         
 
              Dr. Rolek has rated claimant as having a 35% permanent 
 
         partial disability of the body as a whole [exhibit 1(b), page 1]. 
 
         He indicated that a 30% rating was due to the thoracic outlet 
 
         syndrome and that 5% was for the cervical strain (exhibit 2, 
 
         pages 18 and 19).  Dr. Rolek also indicated that claimant has 
 
         permanent restrictions against performing overhead lifting and of 
 
         a 10-pound lifting limit, mostly on her left side, and that work 
 
         in excess of those restrictions could cause recurrence of her 
 
         symptoms (exhibit 2, pages 15 and 16).
 
         
 
              Albert L. Clemens, M.D., is a board-certified surgeon.  He 
 
         first examined claimant on July 23, 1985 and formed the 
 
         impression that she likely had thoracic outlet.syndrome, but that 
 
         a cervical disc problem was also a possibility and that a 
 
         myelogram should be performed (exhibit 3, pages 5-8).  Dr. 
 
         Clemens was consulted by claimant a second time on October 21, 
 
         1985.  At that time, it was concluded that her problem was not 
 
         due to cervical disc pathology. He indicated that claimant still 
 
         had bilateral thoracic outlet syndrome which was minimal on the 
 
         right side.  Claimant opted for surgery which was then performed 
 
         on November 1, 1985 (exhibit 3, pages 9-11).
 
         
 
              Dr. Clemens indicated that thoracic outlet syndrome can be a 
 
         congenital condition and that its symptoms can exist in various 
 
         degrees ranging from mild to full-blown or severe.  Dr. Clemens 
 
                                                
 
                                                         
 
         indicated that repeated overhead use of the arms, such as the 
 
         type of activity that claimant described as having performed at 
 
         the place of her work, could aggravate thoracic outlet syndrome 
 
         and cause it to become fully manifested (exhibit 3, pages 
 
         11-16).
 
         
 
              Dr. Clemens indicated that claimant's surgery greatly 
 
         improved her symptoms on the left side, but that she still has 
 
         symptoms bilaterally, although the symptoms on the right are 
 
         mild. Dr. Clemens indicated that claimant should restrict her 
 
         activity to avoid putting her hands overhead and that she should 
 
         limit weight bearing to 10 or 25 pounds, depending upon the 
 
         frequency with which it is done.  Dr. Clemens felt that claimant 
 
         had some permanent impairment as a result of her thoracic outlet 
 
         syndrome, but had not performed an examination to determine a 
 
         numerical impairment rating (exhibit 3, pages 22 and 23).
 
         
 
              Claimant was subsequently evaluated by Robert A. Hayne, 
 
         M.D., on February 3, 1988.  Dr. Hayne felt that claimant's 
 
         examination was basically normal except for residual effects from 
 
         the thoracic outlet surgery.  He rated her as having a two 
 
         percent permanent impairment based on mild symptoms (exhibit 1, 
 
         pages 8-11).  Dr. Hayne initially stated that he had no opinion 
 
         regarding the cause of the thoracic outlet syndrome which 
 
         afflicted claimant, but he subsequently stated that the condition 
 
         existed and was aggravated by the injury that she described 
 
         (exhibit 1, pages 11, 14 and 15).
 
         
 
                       APPLICABLE LAW AND ANALYSIS
 
         
 
              Claimant has the burden of proving by a preponderance of the 
 
         evidence that she received an injury on June 13, 1985 and also on 
 
         September 13, 1985 which arose out of and in the course of her 
 
         employment.  McDowell v. Town of Clarksville, 241 N.W.2d 904 
 
         (Iowa 1976); Musselman v. Central Telephone Co., 261 Iowa 352, 
 
         154 N.W.2d 128 (1967).
 
         
 
              It is not necessary for there to be a single incident in 
 
         order to establish the existence of an injury arising out of and 
 
         in the course of employment.  Cumulative trauma can also produce 
 
         a compensable injury.  McKeever Custom Cabinets v. Smith, 379 
 
         N.W.2d 368 (Iowa 1985).
 
         
 
              Aggravation of a preexisting condition is one form of 
 
         compensable injury.  While a claimant is not entitled to 
 
         compensation for the results of a preexisting injury or disease, 
 
         the mere existence at the time of a subsequent injury is not a 
 
         defense.  Rose v. John Deere Ottumwa Works, 247 Iowa 900, 908, 76 
 
         N.W.2nd 756 (1956).  If the claimant had a preexisting condition 
 
         or disability that is aggravated, accelerated, worsened or 
 
         lighted up so that it results in disability, claimant is entitled 
 
         to recover.  Nicks v Davenport Produce Co., 254 Iowa 130, 115 
 
         N.W.2d 812 (1962).
 
         
 
              The claimant is not charged with a burden of proof as to the 
 
                                                
 
                                                         
 
         actual apportionment of damages in an aggravation case, any 
 
         burden of that nature falls on the defendant since the defendant 
 
         is the party standing to gain by litigating the apportionment 
 
         issue.  If evidence of apportionment is not introduced, the 
 
         defendant is responsible for the entire amount of resulting 
 
         disability.  Varied Enterprises, Inc. v. Sumner, 353 N.W.2d 407 
 
         (Iowa 1984); Becker v. D & E Distributing Co., 247 N.W.2d 727, 
 
         731 (Iowa 1976); Atterberg v. Sheller Globe Corp., file number 
 
         814741, (Arb. Decn., April 19, 1988).
 
         
 
              The evidence in this case centers upon claimant's thoracic 
 
         outlet syndrome.  All three physicians, namely Drs. Rolek, 
 
         Clemens and Hayne, have addressed the issue of causation and have 
 
         acknowledged that the condition of thoracic outlet syndrome is 
 
         aggravated by activities of the type which claimant performed in 
 
         her employment at Todd Corporation.  There are references in the 
 
         record to claimant having problems with her neck both before and 
 
         after her employment at Todd Corporation.  The evidence fails to 
 
         establish that the neck condition or the propensity to develop 
 
         depression were in any manner permanently altered by the thoracic 
 
         outlet condition.  Accordingly, it is determined that the 
 
         claimant has proved, by a preponderance of the evidence, that she 
 
         was injured on the dates alleged, namely June 13, 1985 and 
 
         September 13, 1985.  The injury is an aggravation of a 
 
         preexisting condition in the nature of thoracic outlet syndrome. 
 
          It is certainly possible that the work precipitated the 
 
         condition and caused it to develop.  The evidence is not 
 
         absolutely clear with regard to whether or not claimant had 
 
         preexisting problems with her arms prior to commencing work at 
 
         Todd Corporation, but the greater weight of the evidence 
 
         establishes, at the very least, that the work claimant performed 
 
         at Todd Corporation aggravated a preexisting condition.  
 
         Claimant's testimony regarding her ability to perform work with 
 
         her hands overhead prior to the time she commenced employment at 
 
         Todd Corporation is accepted as being correct.  The physicians 
 
         now limit or restrict her ability to engage in such activities.  
 
         Clearly, some restriction of claimant's physical capabilities has 
 
         resulted.
 
         
 
              There is some issue with regard to whether the injury affects 
 
         only claimant's left side rather than both sides of her body.  The 
 
         explanation given by Dr. Clemens is accepted as being correct.  
 
         The condition is determined to affect both sides of her body, 
 
         although its effect upon the right side is minimal at this time.
 
         
 
              An issue exists with regard to whether the injury is to be 
 
         compensated as a scheduled member disability or as a disability 
 
         of the body as a whole which would result in the disability being 
 
         measured industrially.  It is clear that the condition of 
 
         thoracic outlet syndrome is manifested primarily in the 
 
         claimant's ability to make use of her arms.  The condition is 
 
         one, however, which has its origin in the trunk of the body.  
 
         There is nothing wrong with the arms.  The surgery performed to 
 
         correct the condition is performed in the trunk of the body.  The 
 
         surgery consists of removing part of a rib, a procedure which 
 
                                                
 
                                                         
 
         does not directly involve the arm.  It is therefore determined 
 
         that disability resulting from thoracic outlet syndrome is a 
 
         disability to the body as a whole to be compensated under the 
 
         provisions of Code section 85.34(2)(u).  Lauhoff Grain Company v. 
 
         McIntosh, 395 N.W.2d 834 (Iowa 1986).
 
         
 
              As claimant has an impairment to the body as a whole, an 
 
         industrial disability has been sustained.  Industrial disability 
 
         was defined in Diederich v. Tri-City Railway Co., 219 Iowa 587, 
 
         593, 258 N.W. 899, 902 (1935) as follows:  "It is therefore plain 
 
         that the legislature intended the term 'disability' to mean 
 
         'industrial disability' or loss of earning capacity and not a 
 
         mere 'functional disability' to be computed in the terms of 
 
         percentages of the total physical and mental ability of a normal 
 
         man."
 
         
 
              Functional impairment is an element to be considered in 
 
         determining industrial disability which is the reduction of 
 
         earning capacity, but consideration must also be given to the 
 
         injured employee's age, education, qualifications, experience and 
 
         inability to engage in employment for which he is fitted.  Olson 
 
         v. Goodyear Service Stores, 255 Iowa 1112, 1121 125 N.W.2d 251, 
 
         257 (1963).
 
         
 
              Industrial disability or loss of earning capacity is a 
 
         concept that is quite similar to impairment of earning capacity, 
 
         an element of damage in a tort case.  Impairment of physical 
 
         capacity creates an inference of lessened earning capacity.  The 
 
         basic element to be determined, however, is the reduction in 
 
         value of the general earning capacity of the person, rather than 
 
         the loss of wages or earnings in a specific occupation.  
 
         Post-injury earnings create a presumption of earning capacity.  
 
         The earnings are not synonymous with earning capacity and the 
 
 
 
                       
 
                                                         
 
         presumption may be rebutted by evidence showing the earnings to 
 
         be an unreliable indicator.  Carradus v. Lange, 203 N.W.2d 565 
 
         (Iowa 1973); Holmquist v. Volkswagon of America, Inc., 261 N.W.2d 
 
         516 (Iowa App. 1977) A.L.R.3d 143; Michael v. Harrison County, 
 
         34th Biennial Report, 218 (1979): 2 Larson Workmen's Compensation 
 
         Law, sections 57.21 and 57.31.
 
         
 
              The functional impairment ratings assigned by Drs. Rolek and 
 
         Hayne are at great divergence.  The physical activity 
 
         restrictions recommended by Drs. Rolek and Clemens are not at 
 
         great divergence and are accepted as being correct.  Those 
 
         restrictions are attributable to the thoracic outlet syndrome, 
 
         rather than to any conditions of cervical strain or depression.  
 
         Claimant has a limited education, but she appeared to be of at 
 
         least average intelligence.  Her ability to complete the GED and 
 
         nurse's aide training confirms her intellectual capabilities.  
 
         Her actual earnings do not appear to have changed greatly since 
 
         1983.  She is, nevertheless, excluded from certain types of 
 
         employment which she could have performed prior to the 1985 
 
         injuries.  When all the material factors of industrial disability 
 
         are considered, it is determined that she has a 20% permanent 
 
         partial disability as a result of her bilateral thoracic outlet 
 
         syndrome.  In making this determination, it is recognized that 
 
         the effect of the condition on claimant's right side is minimal.  
 
         This award takes into account the fact that claimant had some 
 
         preexisting problems regarding her ability to use her arms.
 
         
 
              Claimant asserts two injury dates.  After the first date of 
 
         injury, she was taken off work, extensively tested and then 
 
         released to resume work with activity restrictions.  When she 
 
         worked in excess of those restrictions, she developed a further 
 
         problem which caused her to return to Dr. Clemens and to undergo 
 
         surgery.  It can be reasonably urged that September 13, 1985 is 
 
         the date to which the disability should be attributed since that 
 
         is the date which caused claimant to seek a surgical solution for 
 
         her problems.  It can also, however, be asserted that June 13, 
 
         1985 is the correct injury date as claimant was never able to 
 
         resume her prior level of activity subsequent to that date and 
 
         that when she attempted to do so, further injury resulted.  The 
 
         rate of compensation is nearly identical for each injury date. 
 
         Claimant feels that the second incident was a major factor 
 
         (exhibit 4, page 38).  In all likelihood, the permanent 
 
         disability is attributable to both injury dates.  In view of the 
 
         cumulative trauma nature of the injuries and claimant's 
 
         testimony, the.permanent disability from the thoracic outlet 
 
         syndrome is attributed to the last incident, namely the one of 
 
         September 13, 1985.
 
         
 
              Claimant seeks compensation for healing period.  The 
 
         commencement date for the June 13, 1985 injury is not well 
 
         established.  According to claimant's own testimony, there were 
 
         days when she worked and went to therapy.  It appears, however, 
 
         that she ceased working when she entered the hospital on July 15, 
 
         1985.  She was then released to return to work effective August 
 
         19, 1985.  She is therefore entitled to receive five weeks of 
 
                                                
 
                                                         
 
         compensation for temporary total disability based upon the June 
 
         13, 1985 injury.
 
         
 
              The second injury resulted in 16 3/7 weeks of healing period 
 
         commencing on September 13, 1985 and ending January 5, 1986, the 
 
         day before claimant returned to work [exhibit 1(b), page 4; 
 
         exhibit 2(d)].
 
         
 
              Claimant seeks to recover the cost of her treatment with Dr. 
 
         Bakody and also with Ina Helweg as shown in exhibit 6.  Dr. 
 
         Bakody's treatment was in the nature of diagnostic measures and 
 
         is therefore recoverable.  Dr. Clemens referred claimant to Ina 
 
         Helweg for the condition of her left shoulder and it is therefore 
 
         also recoverable.  The respective amounts are:
 
         
 
              John T. Bakody, M.D.                 $100.00
 
              Ina Helweg                            215.00
 
         
 
              Claimant aggravated her right shoulder while working at 
 
         Valley View Nursing Home.  That aggravation is not shown to have 
 
         been permanent.  The permanent disability for which compensation 
 
         is awarded in this decision is determined based upon claimant's 
 
         condition as it existed when her healing period ended, prior to 
 
         that incident.  The evidence fails to show that the incident 
 
         altered claimant's overall physical capabilities or that her 
 
         condition has changed appreciably since the healing period 
 
         ended.
 
         
 
                           FINDINGS OF FACT
 
         
 
              1.  Wilma Rice sustained an injury in the nature of 
 
         bilateral thoracic outlet syndrome as a result of working with 
 
         her hands above shoulder level while in the employ of Todd 
 
         Corporation.
 
         
 
              2.  The injury resulted from a cumulative injury process. 
 
         Claimant first sought treatment for the condition on June 13, 
 
         1985 and was disabled from working thereafter from July 15, 1985 
 
         through August 18, 1985, a period of.five weeks.
 
         
 
              3.  Claimant suffered a second incident of injury on 
 
         September 13, 1985 which resulted in claimant being disabled 
 
         continuously from that date until she was released to return to 
 
         work effective January 6, 1986, a span of 16 3/7 weeks.
 
         
 
              4.  Claimant had preexisting physical ailments affecting her 
 
         neck, arms and shoulders.  She also has a history of being 
 
         afflicted with depression.
 
         
 
              5.  The injury claimant sustained on each date is bilateral 
 
         thoracic outlet syndrome.  Any cervical strain or depression is 
 
         not shown by the evidence to have resulted in any disability over 
 
         and above that caused by the thoracic outlet syndrome.
 
         
 
              6.  Claimant's injury was an aggravation of a preexisting 
 
                                                
 
                                                         
 
         condition and afflicted the left side of her body much more than 
 
         the right side.
 
         
 
              7.  Claimant has residual permanent impairment primarily 
 
         affecting her ability to make use of her left upper extremity, 
 
         although she has mild symptoms and complaints affecting her 
 
         ability to use her right upper extremity.
 
         
 
              8.  The injury claimant sustained at Valley View Nursing 
 
         Home is not shown to have had any substantial or long-term 
 
         permanent effect upon her overall condition.
 
         
 
              9.  Claimant has a 20% loss of her earning capacity which 
 
         was proximately caused by the development of thoracic outlet 
 
         syndrome and its residual limitations.
 
         
 
              10.  The permanent disability is attributable to the 
 
         September 13, 1985 injury in view of the cumulative nature of the 
 
         injury process, rather than the June 13, 1985 injury, despite the 
 
         fact that claimant's symptoms were present and disabling at that 
 
         time.
 
         
 
              11.  The treatment claimant received and expenses incurred 
 
         with John T. Bakody, M.D., and Ina Helweg constitute reasonable 
 
         treatment for the injuries she sustained.
 
         
 
                            CONCLUSIONS OF LAW
 
         
 
              1.  This agency has jurisdiction of the subject matter of 
 
         this proceeding and its parties.
 
         
 
              2.  Claimant sustained an injury in the nature of bilateral 
 
         thoracic outlet syndrome on June 13, 1985 which arose out of and 
 
         in the course of her employment with Todd Corporation.  Claimant 
 
         also sustained further injury in the nature of bilateral thoracic 
 
         outlet syndrome which arose out of and in the course of her 
 
         employment with Todd Corporation on September 13, 1985.
 
         
 
              3.  Claimant is entitled to receive five weeks of 
 
         compensation for temporary total disability commencing July 15, 
 
         1985 and running through August 18, 1985.
 
         
 
              4.  Claimant is entitled to receive 16 3/7 weeks of 
 
         compensation for healing period commencing September 13, 1985 and 
 
         running through January 5, 1986.
 
         
 
              5.  Claimant's condition of thoracic outlet syndrome is an 
 
         injury to the body as a whole for which compensation is to be 
 
         determined industrially under the provisions of Code section 
 
         85.34(2)(u).
 
         
 
              6. Claimant has a 20% permanent partial disability of the 
 
         body as a whole which was proximately caused by the injury of 
 
         September 13, 1985 and entitles her to receive 100 weeks of 
 
         compensation for permanent partial disability.
 
                                                
 
                                                         
 
         
 
              7.  Claimant is entitled to recover $315.00 under the 
 
         provisions of Code section 85.27.
 
         
 
                                   ORDER
 
         
 
              IT IS THEREFORE ORDERED that defendants pay claimant five 
 
         (5) weeks of compensation for temporary total disability at the 
 
         stipulated rate of one hundred nine and 54/100 dollars ($109.54) 
 
         per week payable commencing July 15, 1985.
 
         
 
              IT IS FURTHER ORDERED that defendants pay claimant sixteen 
 
         and three-sevenths (16 3/7) weeks of compensation for healing 
 
         period at the stipulated rate of one hundred nine and 41/100 
 
         dollars ($109.41) per week payable commencing September 13, 
 
         1985.
 
         
 
              IT IS FURTHER ORDERED that defendants pay claimant one 
 
         hundred (100) weeks of compensation for permanent partial 
 
         disability at the stipulated rate of one hundred nine and 41/100 
 
         dollars ($109.41) per week payable commencing January 6, 1986.
 
         
 
              IT IS FURTHER ORDERED that defendants pay all past due 
 
         amounts in a lump sum together with interest pursuant to Iowa 
 
         Code section 85.30.
 
         
 
              IT IS FURTHER ORDERED that defendants pay claimant three 
 
         hundred fifteen and 00/100 dollars ($315.00) under the provisions 
 
         of Iowa Code section 85.27.
 
         
 
              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 343-3.1
 
         
 
         
 
              Signed and filed this 4th day of April, 1989.
 
         
 
         
 
         
 
         
 
         
 
         
 
                                            MICHAEL G. TRIER
 
                                            DEPUTY INDUSTRIAL 
 
                                            COMMISSIONER
 
         
 
         Copies To:
 
         
 
         Mr. Fredd J. Haas
 
         Attorney at Law
 
         5001 SW Ninth Street
 
         Des Moines, Iowa  50315
 
         
 
         Mr. Marvin E. Duckworth
 
         Attorney at Law
 
         Suite 111, Terrace Center
 
         2700 Grand Avenue
 
         Des Moines, Iowa  50312
 
 
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                            1803.1, 1806, 2206, 2209
 
                                            Filed April 4, 1989
 
                                            MICHAEL G. TRIER
 
         
 
                  BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         WILMA RICE,
 
         
 
              Claimant,                             File Nos. 807855
 
                                                             847940
 
         vs.
 
                                                A R B I T R A T I 0 N
 
         TODD CORPORATION,
 
                                                    D E C I S I 0 N
 
              Employer,
 
              Self-Insured,
 
              Defendant.
 
         
 
         
 
         1803.1
 
         
 
              Thoracic outlet syndrome was held to be compensable as an 
 
         injury to the body as a whole because the physical anatomical 
 
         abnormality is located in the trunk of the body, rather than in 
 
         the arm, despite the fact that it is manifested primarily in the 
 
         individual's ability to make use of their arm.
 
         
 
         1806, 2206
 
         
 
              The injury was in the nature of an aggravation of a 
 
         preexisting condition which had been symptomatic but which 
 
         greatly increased the symptoms and led to surgery and permanent 
 
         medically imposed restrictions.
 
         
 
         2209
 
         
 
              Thoracic outlet syndrome held to be a cumulative trauma 
 
         injury.