BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         VICKIE E. FRY,
 
         
 
              Claimant,
 
         
 
         vs.                                    File No. 808328
 
         
 
         H. J. HEINZ,                        A R B I T R A T I 0 N
 
         
 
              Employer,                         D E C I S I 0 N
 
         
 
         and                                       F I L E D
 
         
 
         LIBERTY MUTUAL INSURANCE                 APR 11 1989
 
         COMPANY,
 
                                              INDUSTRIAL SERVICES
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
                                   INTRODUCTION
 
         
 
              This is a proceeding in arbitration wherein claimant seeks 
 
         compensation for permanent partial disability in connection with 
 
         an injury that occurred on December 18, 1983.
 
         
 
              The case was heard and fully submitted at Davenport, Iowa on 
 
         July 7, 1988.  The record in the proceeding consists of testimony 
 
         from Vickie E. Fry and Ronald Albright.  The record also contains 
 
         joint exhibits 1 through 55.
 
         
 
                                      ISSUES
 
         
 
              The only issue identified by the parties for determination 
 
         is the extent of permanent disability, if any, which resulted 
 
         from the December 18, 1983 injury.
 
         
 
                               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.
 
         
 
              Vickie E. Fry is a 29-year-old, married lady who lives at 
 
         Muscatine, Iowa.  She is a high school graduate.  Fry commenced 
 
         employment with H. J. Heinz in August, 1980.  Prior to that time, 
 
         she had worked in a restaurant and had also worked in the Leitica 
 
         factory.
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
              Claimant's prior health history includes an automobile 
 
         accident that occurred on May 20, 1977 for which she did not seek 
 
         medical care.  Claimant testified that she had not gone to a 
 
         chiropractor for treatment prior to the time she commenced work 
 
         at Heinz.
 
         
 
              In December of 1981, claimant was helping move furniture and 
 
         strained her neck.  She sought treatment from Jeffrey A. Shay, 
 
         D.C., and was off work approximately two weeks (exhibits 8, 9 and 
 
         42).  Claimant stated that the main problem was in her neck and 
 
         that she had no problem with her shoulders or arms as a result of 
 
         that incident.  Claimant related that, during the summer of 1982, 
 
         she had resumed full activity and had no residual problems from 
 
         the incident.
 
         
 
              Exhibit 6 is the employer's first aid treatment record.  An 
 
         entry of December 10, 1981 indicates that claimant made 
 
         complaints regarding her left neck and shoulder.  A note of April 
 
         22, 1982 indicates that claimant complained that her left 
 
         shoulder was aching.  A note dated April 7, 1983 indicates that 
 
         claimant complained of her left shoulder hurting and of hurting 
 
         the shoulder a couple of months earlier.  On October 11, 1983, 
 
         she again received first aid treatment for her left shoulder.  A 
 
         note dated November 23, 1983 indicated that claimant had been 
 
         wearing a cervical collar.  A note of December 20, 1983 again 
 
         indicates pain in the left shoulder.  Subsequent entries in the 
 
         first aid records indicating a problem with claimant's left 
 
         shoulder appear on December 21, 1983, January 25, 1984, April 24, 
 
         1984, May 4, 1984, June 29, 1984, August 9, 1985, October 29, 
 
         1985, October 30, 1985, and November 11, 1985.
 
         
 
              In early 1983, claimant again injured her neck while moving 
 
         furniture and sought treatment from Dr. Shay.  Claimant stated 
 
         that the injury did not involve her shoulder, deltoid or 
 
         trapezius (exhibit 10).  Claimant testified that, during the 
 
         summer of 1983, she had resumed full activity and had no further 
 
         problems.
 
         
 
              Claimant testified that problems with her left shoulder that 
 
         occurred in March, 1983 arose while she was operating the double 
 
         seamer, a job that requires lifting with the arms overhead. 
 
         Claimant stated that, in April, 1983, she had more problems with 
 
         her left shoulder while operating the palletizer.  Claimant 
 
         stated that she had occasional left shoulder problems during the 
 
         remainder of 1983.  Claimant testified that, in December, 1983, 
 
         she again saw William Catalona, M.D., when she had been operating 
 
         the double seamer and that the doctor issued restrictions against 
 
         her performing any work with her hands above shoulder level.
 
         
 
              In 1985, claimant was involved in an automobile accident. 
 
         Claimant stated that she had no problem with her arm or shoulder 
 
         during the summer of 1985 from that accident and had engaged in 
 
         full activity.
 
         
 
              Claimant testified that Dr. Catalona has advised her to not 
 
         perform repetitive work and recommended that she move into 
 
         secretarial work.  Claimant stated that the employer has been 
 
         very good in complying with the restrictions recommended by Dr. 
 
         Catalona, but that there are jobs which she cannot now perform, 
 
         some of which provide a higher rate of pay than the job she 
 
         currently performs.  Claimant testified that she now earns $9.58 
 
         per hour and works 40 hours per week.  Sometimes she also works 
 
         overtime.  Claimant stated that she missed no time from work for 
 
         her shoulder complaints other than when she had a myelogram 
 
         performed for diagnostic purposes.  Claimant testified that she 
 
         is able to bowl, using her dominant right arm, without the 
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         activity bothering her left shoulder.  She stated that she 
 
         performed aerobics when she was still in school and also last 
 
         winter.  She stated that she performed aerobic exercises at her 
 
         home in 1985 and 1986.  Claimant complained that she has pain in 
 
         her shoulder all of the time.  Claimant stated that the shoulder 
 
         problem limits her ability to carry things (exhibit 51, pages 22 
 
         and 23).
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              William Catalona, M.D., an orthopaedic surgeon, has been the 
 
         primary treating physician for claimant's left shoulder 
 
         complaints.  Dr. Catalona arranged for claimant to be evaluated 
 
         by neurologists who performed diagnostic testing and concluded 
 
         that claimant had a mechanical or strain syndrome, but could not 
 
         diagnose any other problem (exhibit 28).
 
         
 
              Claimant was evaluated by Byron W. Rovine, M.D., a 
 
         neurosurgeon.  A myelogram was performed in order to determine 
 
         whether claimant's problems were related to a cervical disc 
 
         abnormality.  Dr. Rovine's only diagnosis was cervical brachial 
 
         pain syndrome of undetermined origin.  He recommended no further 
 
         diagnostic testing or treatment.  He would not impose any 
 
         activity restrictions for claimant (exhibit 53, pages 7-9).  Dr. 
 
         Rovine indicated that he did not feel that claimant suffered from 
 
         overuse syndrome, and that overuse syndrome is a vaguely defined, 
 
         poorly characterized disorder (exhibit 53, pages 11, 12, 18 and 
 
         19).  Dr. Rovine did not attribute claimant's complaints to her 
 
         work at H. J. Heinz (exhibit 53, page 17).
 
         
 
              Dr. Catalona concluded that claimant did suffer from overuse 
 
         syndrome.  Dr. Catalona explained that overuse syndrome arises in 
 
         individuals who have a collagen deficiency disease which makes 
 
         them susceptible to its development.  He stated that the symptoms 
 
         can resolve with prolonged rest, but that upon resuming 
 
         repetitive activity, the symptoms recur.  He stated that there 
 
         was no effective treatment for the underlying condition (exhibit 
 
         52, pages 19-24, 31 and 32).
 
         
 
              Dr. Catalona indicated that claimant should avoid frequent 
 
         repetitive motions, especially those which are performed with her 
 
         hands overhead.  He recommended to the employer that claimant not 
 
         be assigned any work which required overhead use of her hands 
 
         (exhibit 52, pages 18 and 25).
 
         
 
              Dr. Catalona felt that claimant had some permanent 
 
         impairment, although he did not have a numerical rating for that 
 
         impairment (exhibit 52, pages 32 and 33).
 
         
 
              Dr. Catalona explained that claimant's condition is one 
 
         which is cumulative.  He did not relate ail of claimant's 
 
         symptoms to the strain that she suffered in December, 1983, but 
 
         felt that her work was a factor.  The doctor declined to 
 
         apportion the condition among the various causative factors 
 
         (exhibit 52, pages 29-39).
 
         
 
              Ronald Albright, a supervisor at H. J. Heinz, stated that, 
 
         within the Heinz pay system, grade 6 is the highest pay level and 
 
         grade 1 is the lowest.  He related that the double seamer 
 
         position is a grade 5 while claimant's current inspector job is 
 
         grade 3 and that the difference between the two is approximately 
 
         $.40 per hour.  Albright stated that advancement in the plant is 
 
         based on seniority and the ability to do the job and that jobs 
 
         are posted and bid.  Albright stated that jobs are evaluated 
 
         according to their physical effort, complexity and other 
 
         requirements which then are assigned points from which the actual 
 
         pay grade is determined.  Albright agreed that claimant's 
 
         restrictions may limit her ability to move into other jobs, but 
 
         stated that the company tries to accommodate persons with work 
 
         injury restrictions.  Albright stated that claimant is currently 
 
         paid $10.22 per hour.  Claimant disagreed with her pay rate and 
 
         stated that she is working at grade 2 for which she is paid $9.58 
 
         per hour.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
                           APPLICABLE LAW AND ANALYSIS
 
         
 
              The fact of injury arising out of and in the course of 
 
         employment having occurred on December 18, 1983 was established 
 
         by the stipulation of the parties and is well supported by the 
 
         evidence in the record.  Dr. Catalona's assessment of claimant's 
 
         injury as a strain or overuse syndrome is well supported by the 
 
         evidence and is accepted as correct, despite the conflicting 
 
         indications from Dr. Rovine.
 
         
 
              The claimant has the burden of proving by a preponderance of 
 
         the evidence that the injury of December 18, 1983 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 (19,45).  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).
 
         
 
              An employer takes an employee subject to any active or 
 
         dormant health impairments, and a work connected injury which 
 
         more than slightly aggravates the condition is considered to be a 
 
         personal injury.  Ziegler v. United States Gypsum Co., 252 Iowa 
 
         613, 620, 106 N.W.2d 591 (1960), and cases cited.
 
         
 
              Apportionment of disability between a preexisting condition 
 
         and an injury is proper only when there was some ascertainable 
 
         disability which existed independently before the injury 
 
         occurred. Varied Enterprises, Inc. v. Sumner, 353 N.W.2d 407 
 
         (Iowa 1984).
 
         
 
              The parties correctly stipulated that any permanent 
 
         disability should be evaluated industrially.
 
         
 
              Claimant's neck and shoulder complaints seem to, be somewhat 
 
         intertwined.  A cervical disc problem was a suspected source of 
 
         claimant's shoulder complaints.  Some of the records indicate 
 
         that claimant often voiced complaints which involved both her 
 
         neck and shoulder at the same time.  Dr. Catalona is the primary 
 
         treating physician for this injury.  He is a well-regarded, 
 
         highly experienced orthopaedic surgeon who deals with industrial 
 
         injuries on a frequent basis.  His assessment of the case is 
 
         corroborated by the assessments made by Drs. Worrell and Neiman.  
 
         Accordingly, Dr. Catalona's opinions are accepted as correct in 
 
         this case, despite the fact that they are contradicted to some 
 
         degree by evidence from Dr. Rovine.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              Claimant likely has an underlying, preexisting collagen 
 
         disorder which makes her susceptible to injury from repetitive 
 
         activity.  Claimant is now afflicted with continuing chronic 
 
         complaints whereas she was symptom-free at the time she commenced 
 
         her employment with Heinz.  She has injured her neck, and 
 
         probably her shoulder on a number of occasions, some of which 
 
         occurred at work and some of which occurred while she was off 
 
         work.  For a cause to be proximate, it need only be a substantial 
 
         factor in producing the result; it need not be the sole factor.  
 
         Blacksmith v. All-American, Inc., 290 N.W.2d 348, 354 (Iowa 
 
         1980).  Dr. Catalona correctly concluded that part of claimant's 
 
         increased symptomatology has resulted from her employment 
 
         activities at H. J. Heinz.  He was unable to make an 
 
         apportionment of precisely what percentage was attributable to 
 
         her employment activities as opposed to other causes.  Dr. 
 
         Catalona has imposed permanent activity restrictions.  He stated 
 
         that claimant has permanent impairment, although he did not 
 
         assign a numerical rating.  It is therefore found and concluded 
 
         that Vickie E. Fry does have permanent disability which has 
 
         resulted from the repetitive activities she has performed in her 
 
         work with H. J. Heinz.
 
         
 
              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.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              From the record, it appears that claimant's only actual 
 
         physical restriction is that she avoid repetitive work that is 
 
         performed with her hands overhead.  This restriction limits 
 
         claimant's access to some of the jobs available at H. J. Heinz. 
 
         It does not, however, eliminate her from the Heinz workforce. 
 
         Claimant has been able to remain employed and is currently in a 
 
         position she is able to perform without violating her 
 
         restrictions and without worsening her condition.  It is now 
 
         known that claimant cannot perform repetitive work with her 
 
         hands overhead without injuring herself   Due to the underlying 
 
         collagen disorder, she never had the capacity to perform 
 
         repetitive work with her hands overhead without injuring 
 
         herself. In this case, however, she did attempt to perform the 
 
         work and performed it for a period of time.  She did injure 
 
         herself and she now has a chronic condition:  The employer has 
 
         limited the effect of the injury upon claimant's actual 
 
         earnings.  It does not appear that the injury would make 
 
         claimant unable to perform most types of work.  While there is 
 
         some discrepancy in the testimony regarding claimant's current 
 
         pay grade and pay rate, the testimony is consistent in the 
 
         sense that claimant is earning in the range of $9.50-$10.00 per 
 
         hour and that the differential between pay grades is 
 
         approximately $.20 per hour.  Claimant appeared to have no 
 
         intellectual shortcomings or other physical disabilities.  When 
 
         all the material factors of industrial disability are 
 
         considered, it is determined that Vickie E. Fry has a five 
 
         percent permanent partial disability when the disability is 
 
         evaluated industrially.  In making this determination and 
 
         assessment, it is recognized that claimant's condition arose 
 
         from a cumulative injury process.  Further activity of the type 
 
         responsible for the injury will aggravate the condition.  It is 
 
         further recognized that no single incident of aggravation is 
 
         responsible for the chronic complaints which claimant now 
 
         experiences, but that the cumulative effect of all the 
 
         aggravations has "lighted up" what had previously been an 
 
         asymptomatic propensity to develop injuries from repetitive 
 
         activity.
 
         
 
              Compensation for permanent partial disability is normally 
 
         payable commencing at the end of the healing period.  Teel v. 
 
         McCord, 394 N.W.2d 405 (Iowa 1986).  In this case, there was no 
 
         actual healing period, other than for the time when claimant was 
 
         off work following the myelogram.  Claimant was in a continuing 
 
         course of treatment from Dr. Catalona.  Early in the treatment, 
 
         Dr. Catalona had frequently indicated that there would be no 
 
         permanent disability.  A close examination of Dr. Catalona's 
 
         treatment notes (exhibit 13) indicates that, on December 18, 
 
         1986, all diagnostic testing had been completed and that it was 
 
         at this time he determined claimant had a chronic strain syndrome 
 
         and should not increase her work activity.  It is determined that 
 
         it was on December 18, 1986 that it was medically indicated that 
 
         further significant improvement from the injury could not be 
 
         anticipated.  While there is no actual lost time in this case for 
 
         an actual healing period to have ended, it is determined that the 
 
         point of maximum recuperation and the point at which it was 
 
         determined that further recovery would not be forthcoming was 
 
         December 18, 1986.  December 18, 1986 is the date at which it was 
 
         first discoverable, in the exercise of,reasonable diligence, that 
 
         the injury was permanent.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
                                 FINDINGS OF FACT
 
         
 
              1.  Vickie E. Fry was injured on December 18, 1983 from] 
 
         repetitive activity performed in her employment with H. J. Heinz. 
 
         At the time of injury, claimant was operating a double seamer, an 
 
         activity which required repetitive use of her hands above 
 
         shoulder level.
 
         
 
              2.  As a result of the injury, permanent restrictions upon 
 
         claimant's physical activities have been imposed by her 
 
         physician. Those activities limit her access to certain jobs in 
 
         both the employer's workforce and in the workforces of other 
 
         employers.
 
         
 
              3.  Claimant has permanent physical impairment and 
 
         disability in her left shoulder which prohibits her from being 
 
         able to use her left arm in overhead positions.
 
         
 
              4.  Claimant has suffered a five percent reduction in her 
 
         earning capacity as a result of the injury she sustained on 
 
         December 18, 1983 and the cumulative effects of other repetitive 
 
         activity affecting claimant's left shoulder while employed by H. 
 
         J. Heinz.
 
         
 
              5.  It was determined by Dr. Catalona on December 18, 1986 
 
         that further significant improvement from the injury was not 
 
         anticipated.
 
         
 
              6.  Claimant's entitlement to compensation for permanent 
 
         partial disability commences December 18, 1986 at the time when 
 
         it was medically indicated that further significant improvement 
 
         from the injury was not anticipated and that some permanent 
 
         disability would result.
 
         
 
                                CONCLUSIONS OF LAW
 
                                        
 
              1.  This agency has jurisdiction of the subject matter of 
 
         this proceeding and its parties.
 
              
 
              2.  The injury claimant sustained to her left shoulder on 
 
         December 18, 1983 was a proximate cause of the permanent 
 
         disability which currently exists in her left shoulder.
 
         
 
              3.  Claimant has a five percent permanent partial disability 
 
         of the body as a whole which, under the provisions of Code 
 
         section 85.34(2)(u), entitles her to receive 25 weeks of 
 
         compensation for permanent partial disability.
 
         
 
              4.  The compensation for permanent partial disability is 
 
         payable commencing December 18, 1986.
 
         
 
                                      ORDER
 
         
 
              IT IS THEREFORE ORDERED that defendants pay claimant 
 
         twenty-five (25) weeks of compensation for permanent partial 
 
         disability at the stipulated rate of two hundred sixteen and 
 
         30/100 dollars ($216.30) per week payable commencing December 18, 
 
         1986.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              IT IS FURTHER ORDERED that defendants pay the costs of this 
 
         action pursuant to Division of Industrial Services Rule 343-4.33.
 
         
 
              IT IS FURTHER ORDERED that defendants file Claim Activity 
 
         Reports as requested by this agency pursuant to Division of 
 
         Industrial Services Rule 343-3.
 
         
 
              Signed and filed this 11th day of April, 1989.
 
         
 
         
 
         
 
         
 
         
 
         
 
                                            MICHAEL G. TRIER
 
                                            DEPUTY INDUSTRIAL COMMISSIONER
 
         
 
         Copies To:
 
         
 
         Mr. Michael W. Liebbe
 
         Attorney at Law
 
         116 East 6th Street
 
         P.O. Box 339
 
         Davenport, Iowa  52805
 
         
 
         Mr. Greg A. Egbers
 
         Attorney at Law
 
         600 Union Arcade Building
 
         111 East Third Street
 
         Davenport, Iowa  52801-1550
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
 
                                             
 
 
 
 
 
 
 
 
 
 
 
                                             1802, 1803
 
                                             Filed April 11, 1989
 
                                             MICHAEL G. TRIER
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         VICKIE E. FRY,
 
         
 
              Claimant,
 
         
 
         vs.                                    File No. 808328
 
         
 
         H. J. HEINZ,                        A R B I T R A T I 0 N
 
         
 
              Employer,                         D E C I S I 0 N
 
         
 
         and
 
         
 
         LIBERTY MUTUAL INSURANCE
 
         COMPANY,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         1802, 1803
 
         
 
              Where there was no actual healing period, claimant's 
 
         entitlement to compensation for permanent partial disability was 
 
         awarded payable commencing at the time when the physician 
 
         determined that claimant's activity restrictions were permanent 
 
         and that further improvement from the injury was not anticipated.
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            CLEME SLY,                    :
 
                                          :
 
                 Claimant,                :
 
                                          :         File No. 808340
 
            vs.                           :
 
                                          :          R E V I E W -
 
            GLEASON CORPORATION,          :
 
                                          :        R E O P E N I N G
 
                 Employer,                :
 
                                          :         D E C I S I O N
 
            and                           :
 
                                          :
 
            CNA INSURANCE COMPANY,        :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ____________________________________________________________
 
            
 
                              statement of the case
 
            
 
                 This is a proceeding in review-reopening upon 
 
            claimant's petition filed December 14, 1989.  Pursuant to a 
 
            stipulation and agreement for settlement under Iowa Code 
 
            section 86.13 approved by this agency on December 12, 1986, 
 
            claimant sustained an injury due to inhalation of toxic 
 
            fumes on or about December 7, 1985.  Based upon her 
 
            condition on August 25, 1986, these parties agreed that she 
 
            had sustained a five percent industrial disability to the 
 
            body as a whole.  This award was based on a restriction 
 
            against exposure to welding fumes.
 
            
 
                 Hearing on the review-reopening petition was had in 
 
            Burlington, Iowa, on August 26, 1991.  The record consists 
 
            of defendants' exhibit 1, claimant's exhibits 1 through 12 
 
            and claimant's testimony.
 
            
 
                                      issues
 
            
 
                 It has previously been determined that claimant 
 
            sustained an injury arising out of and in the course of her 
 
            employment with Gleason Corporation on December 7, 1985, 
 
            that the injury caused permanent disability to the body as a 
 
            whole and that the appropriate rate of weekly compensation 
 
            is $184.33.  Pursuant to the prehearing report filed by the 
 
            parties at hearing, it is agreed that claimant seeks no 
 
            additional compensation for temporary total disability or 
 
            healing period and that medical benefits are no longer in 
 
            dispute.
 
            
 
                 Issues presented for resolution include:
 
            
 
                 1.  Whether claimant has suffered a change in condition 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
            since August 25, 1986 warranting a diminishment or increase 
 
            of compensation previously awarded; and, if so,
 
            
 
                 2.  The extent of her current industrial disability.
 
            
 
                                 findings of fact
 
            
 
                 The undersigned deputy industrial commissioner finds:
 
            
 
                 The stipulation and agreement for settlement approved 
 
            by this agency on December 12, 1986, shows that as of 
 
            December 7, 1985, Cleme Sly was first unable to work due to 
 
            previous periods of inhalation of toxic fumes.  She was then 
 
            employed as a welder.  Her primary treating physician was 
 
            William E. Anderson, Jr., M.D.  Dr. Anderson, who testified 
 
            by deposition on April 15, 1986, specialized in internal 
 
            medicine, diabetes and endocrinology and began treating 
 
            claimant on November 15, 1985.
 
            
 
                 Claimant's major complaint at that time was of fatigue 
 
            ("she was so tired she couldn't even keep awake").  Test 
 
            findings were consistent with hepatic injury due to drugs or 
 
            exogenous toxins, not indicative of any specific agent.  
 
            Based largely on the fact that claimant has no history of 
 
            alcohol abuse, Dr. Anderson believed her liver condition was 
 
            associated with exposure to welding fumes.  He was unable at 
 
            that time to determine whether her condition was permanent, 
 
            although he believed she had been sensitized and would 
 
            likely suffer the same reaction upon new exposure to welding 
 
            fume vapors, even if she did recover.
 
            
 
                 Dr. Anderson restricted claimant from returning to work 
 
            in the same environment with exposure to welding fumes.
 
            
 
                 Claimant is still employed with defendant, a 
 
            manufacturer of wheels and hammocks.  However, she no longer 
 
            works in the same department and is now a tire mounter.  She 
 
            is located away from the welding area, but was unable to 
 
            estimate the distance.  The building is generally open, much 
 
            like a warehouse.  Claimant is currently earning $.10 per 
 
            hour more than in 1986, apparently due to a general increase 
 
            negotiated on behalf of the bargaining unit.
 
            
 
                 Ms. Sly currently complains that she is working fewer 
 
            hours because of fatigue, pointing out that she missed 31 
 
            days in 1990 for that reason (although, some of that time 
 
            may have been lost due to a back injury).  Claimant conceded 
 
            on cross-examination that she has felt fatigued and lost 
 
            substantial time ever since liver damage was discovered 
 
            prior to the agreement for settlement and testified that "it 
 
            hasn't gotten very different."
 
            
 
                 Employee attendance records have been submitted for 
 
            1985 through July 1991.  As best those records can be 
 
            interpreted by this writer, it appears that claimant lost 
 
            either all or part of a day due to absence or leave of 
 
            absence approximately 80 times in 1985, 103 times in 1986, 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
            45 times in 1987, 47 times in 1988, 46 times in 1989, 33 
 
            times in 1990 and 34 times through July 1991.
 
            
 
                 Claimant has continued to complain of symptoms relating 
 
            to her liver damage, including severe pruritus.  Rao V. 
 
            Movva, M.D., a specialist in gastroenterology and 
 
            hepatology, wrote on June 7, 1990, that following two 
 
            evaluations of claimant, liver function abnormality was 
 
            noted and that antimichondrial antibody studies were highly 
 
            suggestive of primary biliary cirrhosis, which would explain 
 
            symptoms of fatigue and severe pruritus.  Claimant did not 
 
            follow through with recommended further investigation, 
 
            including possible liver biopsy.  Dr. Anderson has long 
 
            since moved from the Burlington area.
 
            
 
                 The record does not indicate that claimant has been 
 
            assigned any further medical restrictions by Dr. Movva or 
 
            any other physician.
 
            
 
                                conclusions of law
 
            
 
                 Pursuant to Iowa Code section 86.14(2), in a proceeding 
 
            to reopen an award for payments, inquiry is to be made into 
 
            whether or not the condition of the employee warrants an end 
 
            to, diminishment of, or increase of compensation previously 
 
            awarded.  A change in condition must be shown to justify 
 
            changing the original award.  Henderson v. Iles, 250 Iowa 
 
            787, 96 N.W.2d 321 (1959).  It is not proper to merely 
 
            redetermine the condition of the employee as adjudicated by 
 
            the former award.  Stice v. Consol. Indus. Coal Co., 228 
 
            Iowa 1031, 291 N.W.2d 452 (1940).
 
            
 
                 A mere difference of opinion of experts or competent 
 
            observers as to the degree of disability arising from the 
 
            original injury is insufficient to justify a different 
 
            determination on a petition for review-reopening; there must 
 
            be substantial evidence of a worsening of the condition not 
 
            contemplated at the time of the first award.  Bousfield v. 
 
            Sisters of Mercy, 249 Iowa 64, 86 N.W.2d 109 (1957).  Or, a 
 
            change in condition may be found where claimant has failed 
 
            to improve to the extent initially anticipated, Meyers v. 
 
            Holiday Inn of Cedar Falls, Iowa, 272 N.W.2d 24 (Iowa App. 
 
            1978).  Additionally, in cases not involving scheduled 
 
            members, a change in earning capacity subsequent to the 
 
            original award which is proximately caused by the original 
 
            injury may constitute a change in condition.  Blacksmith v. 
 
            All-American, Inc., 290 N.W.2d 348 (Iowa 1980).
 
            
 
                 Although claimant complains of increased fatigue, the 
 
            record clearly shows that these complaints preexisted the 
 
            agreement for settlement.  In fact, claimant conceded that 
 
            her condition is not now substantially different in that 
 
            respect.  She does not labor under any additional medical 
 
            restrictions and continues to be employed at a higher hourly 
 
            wage than was the case in 1986.  Since Dr. Anderson did not 
 
            know whether claimant would improve at the time of his 
 
            deposition, it cannot be said that she has failed to improve 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
            to the extent initially anticipated.  In essence, industrial 
 
            disability constitutes loss of earning capacity.  Diederich 
 
            v. Tri-City Ry. Co., 219 Iowa 587, 258 N.W. 899 (1935).  
 
            Although claimant may have developed some additional 
 
            symptoms (pruritus), she has failed to establish any 
 
            unanticipated or additional reduction in earning capacity.  
 
            Accordingly, she shall take nothing further.
 
            
 
                                      order
 
            
 
                 THEREFORE, IT IS ORDERED:
 
            
 
                 Claimant shall take nothing further from this 
 
            proceeding.
 
            
 
                 Each party shall be assessed its own costs pursuant to 
 
            rule 343 IAC 4.33.
 
            
 
                 Signed and filed this ______ day of ____________, 1991.
 
            
 
                 
 
            
 
                 
 
                 
 
                                          ______________________________
 
                                          DAVID RASEY
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
            Copies To:
 
            
 
            Mr. James P. Hoffman
 
            Attorney at Law
 
            Middle Road
 
            P.O. Box 1087
 
            Keokuk, Iowa  52632
 
            
 
            Mr. Elliott R. McDonald, Jr.
 
            Attorney at Law
 
            P.O. Box 2746
 
            Davenport, Iowa  52809
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                           5-1803
 
                           Filed September 13, 1991
 
                           DAVID RASEY
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
                      :
 
            CLEME SLY,     :
 
                      :
 
                 Claimant, :
 
                      :         File No. 808340
 
            vs.       :
 
                      :          R E V I E W -
 
            GLEASON CORPORATION,     :
 
                      :        R E O P E N I N G
 
                 Employer, :
 
                      :         D E C I S I O N
 
            and       :
 
                      :
 
            CNA INSURANCE COMPANY,   :
 
                      :
 
                 Insurance Carrier,  :
 
                 Defendants.    :
 
            ____________________________________________________________
 
            
 
            5-1803
 
            No change of condition found in review-reopening.
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         _________________________________________________________________
 
         
 
         GARY WALTERS,
 
         
 
              Claimant,
 
                                            File Nos. 808379/810109
 
         VS.
 
                                                 A P P E A L
 
         OSCAR MAYER,
 
                                                 R U L I N G
 
              Employer,
 
              Self-Insured,
 
              Defendant.
 
         
 
         _________________________________________________________________
 
         
 
              Rule 500-4.27 states in part: "No appeal shall be separately 
 
         taken under this or 4.25 (17A, 86) from an interlocutory 
 
         decision, order or ruling of a deputy industrial commissioner.  A 
 
         decision, order or ruling is interlocutory if it does not dispose 
 
         of the contested case."
 
         
 
              The ruling filed July 1, 1987 which is the subject matter of 
 
         this appeal is not dispositive of the contested case and 
 
         therefore interlocutory.
 
         
 
            THEREFORE, the appeal filed July 17, 1987 is hereby 
 
            dismissed.
 
         
 
         
 
              Signed and filed this 28th day of July, 1987.
 
         
 
         
 
         
 
         
 
                                            DAVID E. LINQUIST
 
                                            ACTING INDUSTRIAL 
 
                                               COMMISSIONER
 
         
 
         
 
         Copies To:
 
         
 
         Mr. Jim Lawyer
 
         Attorney at Law
 
         2141 Grand Avenue
 
         P.O. Box 367
 
         Des Moines, Iowa 50302
 
         
 
         Mr. Harry W. Dahl
 
         Attorney at Law
 
         974 73rd st., Suite 16
 
         Des Moines, Iowa 50312
 
 
 
 
         
 
 
 
 
 
 
 
 
 
 
 
         before the iowa industrial commissioner
 
         ____________________________________________________________
 
                   :
 
         RALPH ZECK,    :
 
                   :
 
              Claimant, :
 
                   :
 
         vs.       :
 
                   :      File No. 808538
 
         GEETINGS, INC.,     :
 
                   :        A P P E A L
 
              Employer, :
 
                   :      D E C I S I O N
 
         and       :
 
                   :
 
         LIBERTY MUTUAL INSURANCE CO., :
 
                   :
 
              Insurance Carrier,  :
 
              Defendants.    :
 
         ___________________________________________________________
 
         The record, including the transcript of the hearing before the 
 
         deputy and all exhibits admitted into the record, has been 
 
         reviewed de novo on appeal.  The decision of the deputy filed 
 
         January 12, 1990 is affirmed and is adopted as the final agency 
 
         action in this case. 
 
         Claimant shall pay the costs of the appeal, including the 
 
         preparation of the hearing transcript.
 
         Signed and filed this ____ day of September, 1991.
 
         
 
         
 
         
 
         
 
                   ________________________________
 
                            BYRON K. ORTON
 
                        INDUSTRIAL COMMISSIONER
 
         
 
         Copies To:
 
         
 
         Mr. Donald G. Beattie
 
         Mr. Larry G. Wilson
 
         Attorneys at Law
 
         P.O. Box 367
 
         Altoona, Iowa 50009
 
         
 
         Mr. Walter F. Johnson
 
         Attorney at Law
 
         P.O. Box 716
 
         Ottumwa, Iowa 52501
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
            9998
 
            Filed September 12, 1991
 
            Byron K. Orton
 
            DRR
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
                      :
 
            RALPH ZECK,    :
 
                      :
 
                 Claimant, :
 
                      :
 
            vs.       :
 
                      :      File No. 808538
 
            GEETINGS, INC.,     :
 
                      :        A P P E A L
 
                 Employer, :
 
                      :      D E C I S I O N
 
            and       :
 
                      :
 
            LIBERTY MUTUAL INSURANCE CO., :
 
                      :
 
                 Insurance Carrier,  :
 
                 Defendants.    :
 
            ___________________________________________________________
 
            
 
            9998
 
            
 
                 Summary affirmance of deputy's decision filed January 
 
            12, 1990.
 
            
 
 
                                            
 
 
 
 
 
 
 
 
 
 
 
                                            51108
 
                                            Filed January 12, 1990
 
                                            DAVID RASEY
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         RALPH ZECK,
 
         
 
              Claimant,
 
         
 
         vs.
 
                                                 File No. 808538
 
         GEETINGS, INC.,
 
                                              A R B I T R A T I 0 N 
 
              Employer,
 
                                                 D E C I S I 0 N
 
         and
 
         
 
         LIBERTY MUTUAL INSURANCE
 
         COMPANY,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         51108
 
         
 
              Claimant failed to meet burden of proof in establishing work 
 
         injury caused disability.  The only doctor to find causal 
 
         connection did so on the basis of an inaccurate history.
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         RALPH ZECK,
 
         
 
              Claimant,                                File No. 808538
 
         
 
         vs.                                        A R B I T R A T I O N
 
         
 
         GEETINGS, INC.,                               D E C I S I O N
 
         
 
              Employer,
 
                                                          F I L E D
 
         and
 
                                                         JAN 12 1990
 
         LIBERTY MUTUAL INSURANCE
 
         COMPANY,                                    INDUSTRIAL SERVICES
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
                              STATEMENT OF THE CASE
 
         
 
              This is a proceeding in arbitration brought by claimant 
 
         Ralph Zeck against defendant employer Geetings, Inc., and 
 
         defendant insurance carrier Liberty Mutual Insurance Company to 
 
         recover benefits under the Iowa Workers' Compensation Act as the 
 
         result of an injury sustained on October 18, 1985.  This matter 
 
         came on for hearing before the undersigned deputy industrial 
 
         commissioner in Des Moines, Iowa, on January 6, 1989.  The matter 
 
         was considered fully submitted at the close of hearing.  Both 
 
         parties submitted.briefs.
 
         
 
              The record in this proceeding consists of the testimony of 
 
         claimant and Shirley Zeck.  Defendants' exhibits 1 through 5 were 
 
         admitted into evidence, as were claimant's exhibits 1 through 6, 
 
         12 and 13.  Claimant also offered exhibits 7, 8 and 9, to which 
 
         defendants interposed objections on the basis of relevance and 
 
         competency.  Ruling on the objections was reserved.  Those 
 
         objections are hereby overruled and exhibits 7, 8 and 9 are 
 
         admitted into evidence.
 
         
 
                                      ISSUES
 
         
 
              Pursuant to the prehearing report submitted by the parties 
 
         and approved by the deputy at hearing, the parties have 
 
         stipulated:  That an employment relationship existed between 
 
         claimant and employer at the time of the injury; that claimant 
 
         sustained an injury on October 18, 1985, arising out of and in 
 
         the course of that employment; that the appropriate rate of 
 
         weekly compensation is $169.38; that defendants paid claimant 20 
 
         1/7 weeks of compensation (for the period from October 30, 1985 
 
         through March 19, 1986) voluntarily prior to hearing; that 
 
         claimant's claim for penalty benefits under Iowa Code section 
 
         86.13 is waived.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              Issues presented for resolution include:  Whether the work 
 
         injury caused temporary or permanent disability; the extent of 
 
         claimant's entitlement to compensation for temporary total 
 
         disability or healing period; the extent of claimant's 
 
         entitlement to compensation for permanent disability, the type of 
 
         permanent disability, and the commencement date thereof; the 
 
         extent of claimant's entitlement to medical benefits; taxation of 
 
         costs.
 
         
 
                              REVIEW OF THE EVIDENCE
 
         
 
              Claimant testified that he was born on October 16, 1929.  He 
 
         testified further to a limited education (having completed the 
 
         seventh grade) and a career history involving a great deal of 
 
         heavy labor including work as a heavy equipment operator for some 
 
         25-26 years.
 
         
 
              Claimant testified to taking employment with Geetings, Inc., 
 
         from October 7, 1985 through November 9, 1985.  He was hired as a 
 
         mechanic, but also performed many other chores.
 
         
 
              Claimant testified that prior to accepting work with 
 
         Geetings he had suffered no back problems whatsoever, except for 
 
         perhaps a pulled muscle.
 
         
 
              Claimant testified that the stipulated work injury occurred 
 
         when he was using a wrench to remove nuts from a truck wheel.  He 
 
         described feeling a "pop" in his back, causing him to drop the 
 
         wrench.  He bent over and dropped to his knees.  He described the 
 
         sensation as stabbing, like a knife in his lower back.
 
         
 
              Claimant described his back as hurting the rest of that day, 
 
         although he continued to work until the end of his shift.  On the 
 
         following day, he tried to work, but went home because of the 
 
         pain.  However, he continued working until November 9, 1985, when 
 
         he left work because he was unable to perform his job 
 
         satisfactorily due to pain.
 
         
 
              Claimant's testimony was unclear as to whether he saw a Dr. 
 
         Meyer, a chiropractic practitioner, either on or prior to 
 
         November 9, 1985.  In any event, he had not seen a physician for 
 
         his back before Dr. Meyer.
 
         
 
              Claimant continued seeing Dr. Meyer three times a week, but 
 
         also saw Kurt R. Vander Ploeg, M.D., Marc E. Hines, M.D., and saw 
 
         David J. Boarini, M.D., for evaluation.
 
         
 
              Claimant further testified that he has continued in his work 
 
         as a journeyman equipment operator with a number of employers 
 
         since his injury.  Claimant testified that he is able to "handle" 
 
         that work since he makes little use of his back, although he has 
 
         some back pain if he sits too long.  However, claimant testified 
 
         he is unable to run a scraper because the vibration is too 
 
         painful.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              In his deposition of August 26, 1988, claimant testified 
 
         that he had been continuously employed since August, 1986.  He 
 
         was at that time averaging some 58 hours per week.  At hearing, 
 
         he testified that Dr. Meyer had released him to return to work in 
 
         March, 1986, although the specific date was not disclosed.
 
         
 
              The records of Dr. Meyer are not in evidence.  The medical 
 
         records closest in time to the injury are those of Dr. Vander 
 
         Ploeg, dated January 20, 1986.  Dr. Vander Ploeg reported that 
 
         claimant gave a history of using an air wrench to take tires off 
 
         a truck on October 18, 1985, ending up on the floor on his hands 
 
         and knees and unable to rise.  Subsequent to that claimant 
 
         described developing a bruise on the lower back, although no 
 
         history of direct trauma to the area and no history of previous 
 
         back problems.  Claimant was having sharp pains beginning in the 
 
         back and going down the back of the legs nearly to the ankle 
 
         bilaterally.
 
         
 
              Dr. Vander Ploeg further reported that claimant had received 
 
         treatments from a chiropractor since then "and as of today has no 
 
         complaints about his back."  He complained of intermittent 
 
         numbness to the fingers of the left hand and about pain in the 
 
         area of the right plantar heel region in the medial aspect of the 
 
         foot.
 
         
 
              Dr. Vander Ploeg observed that claimant ambulated well, had 
 
         good heel and toe raise, had good range of motion at the waist, 
 
         no sciatic notch tenderness, and that straight leg raising and 
 
         Patrick's tests were negative bilaterally.  His assessment was of 
 
         right plantar fasciitis and low back strain apparently resolved. 
 
         His notes continue:
 
         
 
              Feel there's no point in further work-up on his back problem 
 
              since it seems to be resolved.  Would feel that his original 
 
              injury was probably just a low back strain rather than a 
 
              true disc syndrome.  His exam today is certainly not 
 
              compatible at all with a disc syndrome and the only aspect 
 
              of his history that would correlate at all with a disc 
 
              syndrome would be the sciatic nature of the pain.
 
         
 
              Claimant was seen by Dr. Vander Ploeg on one further 
 
         occasion, but the date on his chart notes is partially cut off on 
 
         the photocopy introduced into evidence.  However, it appears that 
 
         the date is 7-8-86, which is also consistent with the comment 
 
         that claimant should never have been disabled for eight months on 
 
         the recommendation of a chiropractor.  Dr. Vander Ploeg's notes 
 
         of that date in full:
 
         
 
              S - Ralph was here apparently to be examined for Liberty 
 
              Mutual relative to his back problems.  Ralph says his back 
 
              wasn't really giving him any trouble until about a month ago 
 
              he stepped wrong down off a curb.  Apparently pulled 
 
              something in his right low back and also effected [sic] his 
 
              right neck area.  He is to the point where he can do most 
 
              activities of daily living without trouble.  He knows that 
 
              lifting hruts [sic] his back and also bothers hsi [sic] 
 
              neck. He says the neck will sometimes get to the point where 
 
              it needs to be popped.  Initially had some degree of pain in 
 
              the legs after this more recent injury but that has 
 
              apparently resolved.  He has some trouble with the back.  He 
 
              says it will kind of effect [sic] his right knee and he'll 
 
              have some pain in the back sof [sic] the legs justa bove 
 
              [sic] the knee.  Sometimes after he's been sitting in the 
 
              car driving or sitting in one place for awhile when he gets 
 
              up to walk he'll feel quite stiff in the back.
 

 
              
 
 
 
 
 
 
 
 
 
 
 

 
              
 
 
 
 
 
 
 
 
 
 
 
         
 
              O - Ralph has equal grips.  100% strength in the arm, 
 
              shoulder, and neck muscles.  He has full ROM at the neck. 
 
              Did find him to be tender anteriorly over the C-5,6,7, 
 
              right transverse processes.  Does not elicit B,T,BR, or K 
 
              jerks. There is an area of point tenderness in the lowback 
 
              at about the area of the right posterior spine.  Does a 
 
              good heel and toe raise.  Full ROM at the waist.  No 
 
              sciatic notch tenderness.  SLR and Patrick's are negative.
 
         
 
              A - Right cervical and right low back sprain.
 
         
 
              P - Feel this patient should never have been disabled for 8 
 
              months on the recommendation of a chiropractor.  
 
              Particularly at the time I saw him in January he did not 
 
              have complaints about his back.  Feel there's a reasonable 
 
              chance this strain=sprain situation he's having now may heel 
 
              [sic].  He might possibly benefit from PT.  If he does not 
 
              respond to those conservative measures, I think he might be 
 
              a candidate for injectionthose [sic] trigger points.  And 
 
              see if he'll respond to that.  Don't feel x-rays will be any 
 
              benefit at this point since these are pretty obviously soft 
 
              tissue findings.
 
         
 
              Claimant was next seen by Marc E. Hines, M.D., on April 1, 
 
         1987.  In his deposition, Dr. Hines indicated he was seen on 
 
         referral and in consultation with Drs. Meyer and Vander Ploeg. 
 
         Claimant gave Dr. Hines a history of injuring himself in October, 
 
         1985, and being off work since that time.  Claimant described 
 
         having difficulties in the low back and neck with episodic 
 
         numbness in the hands and feet and increased pain with sustained 
 
         activities "since that time."  Dr. Hines examined claimant with 
 
         the following findings:
 
         
 
              On neurologic examination, the patient's reflexes are trace 
 
              at the patellas bilaterally, 1+ Achilles bilaterally.  The 
 
              patient has right foot everter weakness and some 4/5 
 
              ileospoas on the right.  There is some patchy decrease to 
 
              pinprick which is somewhat difficult to explain but seems to 
 
              be involving the right lower extremity and particularly the 
 
              foot and the C8, T1 distribution in the right hand and some 
 
              C5 distribution in the left hand.  The gait examination 
 
              reveals a definite list to the right.  The patient is 
 
              stooped over and has difficult [sic] walking.  He 
 
              additionally has muscle spasm in the right side of his low 
 
              back and lumbosacral area.  He has negative straight leg 
 
              raising bilaterally.  Lumbosacral spine films were sent with 
 
              him from Dr. Meyer's office and revealed very definitive 
 
              abnormalities at multiple levels.  The patient has diffuse 
 
              osteosclerotic changes with anterior and posterior spurring 
 
              most notable at approximately L3, and below this with 
 
              significant degenerative disc disease and intervertebral 
 
              disc space narrowing that is most marked at L5, S1 but seen 
 
              also at L4, 5 and L3, 4.  There is evidence possibly 
 
              consistent with spinal stenosis at L5, S1, possibly even at 
 
              L4, 5.  There is also some mild lateral shifting of the 
 
              vertebral bodies of L4 on L5 and L3 on L4, definite 
 
              malalignment at these levels.
 

 
              
 
 
 
 
 
 
 
 
 
 
 
         
 
              Dr. Hines saw claimant again on May 6, 1987.  His notes of 
 
         that date show that he believed claimant to have an L4,5 disc 
 
         herniation to the left with nerve root compression on the right. 
 
         Dr. Hines then wrote to claimant's attorney on May 13, 1987 to 
 
         express his view that the lateral bulging disc at L4,5 with 
 
         compression of the nerve root on the right as well as disc 
 
         herniation on the left was responsible for claimant's bilateral 
 
         lower extremity symptoms, and that claimant had upper extremity 
 
         symptoms "which are probably secondary to similar disease in the 
 
         neck."  Dr. Hines expressed the view that "these disc 
 
         herniations" are secondary to claimant's work-related injury 
 
         "from the history which the patient has given me and that he had 
 
         no previous problems of this degree until he was injured at work 
 
         and that he did have some mild preexisting back and neck disease 
 
         that most probably was aggravated by this work injury."  Dr. 
 
         Hines further recommended that an MRI be done of the cervical 
 
         spine.
 
         
 
              Radiologist Carter S. Young, M.D., performed a lumbosacral 
 
         spine series on April 2, 1987 for Dr. Hines.  His findings:
 
         
 
              LUMBOSACRAL SPINE:  Lumbosacral spine series was 
 
              performed. I presume that there are five fully segmented 
 
              lumbar vertebrae and the slices performed were through 
 
              from mid L3 through S1 but correlation with the plain film 
 
              examination is recommended.  There is a diffuse annular 
 
              bulge at L3-4 that produces deformity of the anterior 
 
              aspect of the thecal sac.  Similar more severe changes are 
 
              present at L4-5 with vacuum disc formation.  There is a 
 
              lateral bulge at L4-5 as well on the left at L4-5 that may 
 
              be producing some compression of the exiting root.  There 
 
              are calcifications in the annulus at L5-S1 and the exiting 
 
              root at L5 on the right is obliterated adjacent to these 
 
              calcifications.  A free fragment is not identified 
 
              however.  The sacroiliac joints are normal.  The facet 
 
              joints at L3-4 are normal.  At L4-5 the facet joints are 
 
              normal, at L5-S1 there is a moderate facet arthropathy but 
 
              this does not appear to produce a significant reduction in 
 
              size of the spinal canal. The bulging annulus at L3-4 and 
 
              L4-5 does produce a reduction in the AP dimension of the 
 
              spinal cord.
 
         
 
              IMPRESSION:  Degenerating disc at L3-4, L4-5 and L5-S1 with 
 
              lateral bulge at L4-5 on the left and obliteration of the 
 
              exiting root on the right at L5.
 
         
 
              Magnetic resonance imaging of the cervical spine was done by 
 
         Thomas E. Murphy, M.D., on May 27, 1987.  His impression was of a 
 
         one centimeter lesion anterior to the junction of the medulla and 
 
         cervical core raising the possibility of neurofibroma, 
 
         meningioma, or 12th nerve glioma.  No other abnormalities were 
 
         noted.  Dr. Hines reviewed the MRI on May 29, 1987, and noted 
 
         what was probably a small neurofibroma at the tip of the clivus 
 
         in front of the cord pushing the cord back at that level.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              Claimant was seen again by Dr. Hines on July 29, 1988.  He 
 
         at that time was basically having exactly the same problems as 
 
         was the case in April and May, 1987.  Claimant had had no 
 
         significant improvement.  Claimant indicated that he had been 
 
         running a bulldozer and was able to tolerate this as long as he 
 
         did no heavy lifting.  However, he complained of the return of 
 
         symptoms when doing any heavy lifting.
 
         
 
              Claimant was seen for evaluation by David J. Boarini, M.D., 
 
         on June 22, 1987.  Claimant's history to Dr. Boarini was of 
 
         twisting his back in October, 1985, and developing significant 
 
         low back difficulty two or three days later, with his troubles 
 
         gradually increasing.  Claimant returned to work in August, 1986 
 
         as an operator.  Claimant did state that he exacerbated his back 
 
         difficulties when he stepped off a curb, although unsure of the 
 
         date.  Claimant was currently working and had no difficulty 
 
         operating a bulldozer, although his back pain was increased when 
 
         he did manual labor.  Claimant described his pain as centered in 
 
         the low back with occasional radiation to the right leg, although 
 
         the radiation was not a major problem.
 
         
 
              Dr. Boarini's examination showed claimant to be a moderately 
 
         obese white male in no acute distress with normal gait and a 
 
         normal range of motion to the lower back.  Neurological 
 
         examination of the lower extremities showed negative straight leg 
 
         raising, normal strength in all muscle groups and normal 
 
         sensation to touch and pin.  Claimant did complain of some 
 
         decreased pin sensation on the dorsal side of the right foot.
 
         
 
              Dr. Boarini stated in a letter of June 29, 1987 to a claims 
 
         adjuster for defendant Liberty Mutual that claimant had a 
 
         moderate low back strain "which is certainly no longer 
 
         symptomatic.  I find no evidence of a permanent injury.  With a 
 
         normal exam and normal range of motion, I don't think he 
 
         qualifies for an impairment rating."  Although Dr. Boarini did 
 
         not recommend specific work restrictions, he did feel that it 
 
         would be wise to keep claimant away from a job involving 
 
         repetitive heavy lifting and bending.
 
         
 
              Dr. Hines testified by deposition taken December 17, 1988.  
 
         He testified that he first saw claimant on April 1, 1987 in 
 
         consultation for Dr. Meyer and Dr. Vander Ploeg.  When asked if 
 
         he had seen claimant because of a referral, he agreed that this 
 
         was correct, but did not specify whether the referral was that of 
 
         Dr. Meyer, Dr. Vander Ploeg, or both.
 
         
 
              Dr. Hines testified that the lumbosacral spine films 
 
         revealed degenerative disease, but that lumbosacral CT scan 
 
         revealed not only degenerative disease, but a disc bulging that 
 
         obliterated the exiting nerve root at L-5 on the right, which he 
 
         described as in keeping with the neurological examination 
 
         findings of pinprick impairment and right leg weakness.  He felt 
 
         that the disc was more than simply bulging, but that there was 
 
         sufficient disc herniation or slippage to actually press on the 
 
         nerve root and equated the word "obliterated" with "pressed on 
 
         the nerve root."
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              Dr. Hines went on to state that claimant's pinprick 
 
         examination described an area of decreased pinprick that would be 
 
         in keeping with an L5 nerve root impairment.
 
         
 
              As to claimant's neck complaints, Dr. Hines indicated that 
 
         the neurofibroma found on MRI could well be causing some of the 
 
         difficulties claimant was having in his arms and hands.  He also 
 
         agreed that the neurofibroma was not caused by the subject work 
 
         injury.
 
         
 
              As to the herniated disc, Dr. Hines expressed his opinion to 
 
         a reasonable degree of medical certainty that the herniation was 
 
         caused by the subject work injury.  He also believed that 
 
         claimant did sustain a permanent impairment, although he was 
 
         unable to specify an exact percentage without performing another 
 
         evaluation for that purpose.
 
         
 
              Asked as to whether claimant should have medically imposed 
 
         restrictions, Dr. Hines stated that claimant would be extremely 
 
         ill-advised to work with heavy manual labor, particularly 
 
         anything that required repeated lifting.  He indicated that 
 
         claimant should be restricted for repeated lifting to 20 pounds 
 
         and against any lifting above 50 pounds.  He also indicated that 
 
         he would not recommend that claimant take employment as a truck 
 
         driver.
 
         
 
              Dr. Hines testified further:
 
         
 
              Q.  Doctor, the indication you had made from your history 
 
              was that there was an existing degenerative disc disease in 
 
              Mr. Zeck, if I understood correctly?
 
         
 
              A.  That's correct.
 
         
 
              Q.  And in your opinion and based upon a reasonable degree 
 
              of medical certainty, would you indicate or have an opinion 
 
              as to whether this accident of October 18, 1985, due to this 
 
              preexisting condition would have any effect on the symptoms 
 
              that Mr. Zeck indicated?
 
              
 
              A.  Well, an accident not infrequently can light up or 
 
              exacerbate or worsen a preexisting condition such as 
 
              degenerative disease.  We have a clear-cut disc herniation. 
 
              That would certainly light up or increase symptoms, if you 
 
              will, if the disc herniation was in any way related to the 
 
              preexisting disease.  The fact is I examined him in April of 
 
              1987, and the accident occurred in October of 1985.
 
         
 
              A good year and a half later, I just simply can't state what 
 
              the relationship between -- Well, let me back up.  What I'm 
 
              saying is I can't state whether or not he had preexisting 
 
              disease prior to October of '85 or not.  By the time I saw 
 
              him, it was a year and a half later.  If I'd seen him within 
 
              a month and he had lumbosacral degenerative disease, then I 
 
              would have had to say he had lumbosacral degenerative 
 
              disease prior to the accident because it doesn't develop 
 
              this quickly.
 

 
              
 
 
 
 
 
 
 
 
 
 
 
         
 
              On the other hand, a year and a half is starting to stretch 
 
              the limits before I can say, yes, the lumbosacral spine 
 
              films could reflect some changes that were actually due to 
 
              the accident rather than to preexisting degenerative 
 
              disease.  So it confuses the issue as to whether he had 
 
              preexisting degenerative disease prior to the accident and 
 
              even further confuses whether he had it prior to his 
 
              employment at all. Those are questions I just can't answer.
 
         
 
         (Dr. Hines deposition, page 26, line 10 through page 27, line 25)
 
         
 
              Dr. Hines also testified that in his belief, claimant would 
 
         not have had the same restrictions imposed but for his work 
 
         injury.
 
         
 
              Dr. Hines was of the view that claimant's healing period 
 
         ended around May 29, 1987, when claimant had reached a maximum 
 
         degree of healing.  However, he also conceded that claimant had 
 
         undergone no significant change of condition on any of the four 
 
         times he was seen.  He was of the view that Dr. Boarini's opinion 
 
         that claimant "stabilized" in March, 1986 was premature from his 
 
         standpoint in ending healing period or temporary total disability 
 
         because claimant had not been diagnosed at that time.
 
         
 
              In discussing his differences with Dr. Boarini as to whether 
 
         claimant sustained a work-related permanent impairment, Dr. Hines 
 
         testified:
 
         
 
              Q.  If Doctor Boarini testified that there is no L-4, L-5 
 
              disc herniation and that there are some clear arthritic 
 
              changes in the scan which are the same as you can see in 
 
              plain X rays but nothing else, and when I said did you read 
 
              the same MRI and he says yes, would you differ with him on 
 
              that?
 
         
 
              A.  Yes.
 
         
 
              Q.  Why would there be such a difference in determination as 
 
              to whether there is a herniation by a neurosurgeon and a 
 
              neurologist who are seeing the same test results?
 
         
 
              A.  Well, I think there are a couple of possibilities. 
 
              Actually, there are several possibilities.  Let me just 
 
              spell them all out.  First of all, the neurologist's job is 
 
              to do as detailed a neurological examination as possible.  
 
              This is not to denigrate the neurosurgeon's job to do a 
 
              neurological examination of their abilities to do one, but 
 
              it is that the special training of neurologists to do this 
 
              is in more detail than the neurosurgeon; and, in fact, that 
 
              is the common practice.
 
         
 
              It is the neurosurgeon's job, on the other hand, to do good 
 
              surgery, the neurologists having no particular expertise in 
 
              that area.  So there are some differences in terms of 
 
              inclination towards the neurologic examination.
 

 
              
 
 
 
 
 
 
 
 
 
 
 
         
 
              I clearly demonstrated before I ever saw this patient's CT 
 
              scan or before it was ordered or even thought of being 
 
              ordered that he had neurologic involvement that exactly 
 
              placed the lesion at either L-5 or S-1 on the right.  It 
 
              would be extremely peculiar to be able to have that kind of 
 
              predictive power on examination if the examination findings 
 
              were not genuine.  Then I found that not by my reading but 
 
              by the radiologist who had seen the patient, who had never 
 
              examined the patient but just examined his CT scan -- that 
 
              the patient indeed did have a disc herniation, and it was 
 
              peculiarly enough exactly placed at L-5 on the right and 
 
              that a nerve root was impaired.
 
         
 
              Finally, I examined the CT scan and felt that that was the 
 
              case.  Now, there is another possible reason for the 
 
              difference; and that is that when we interpret CT scans or 
 
              MRI scans, sometimes the bony abnormalities and the soft 
 
              tissue abnormalities can be difficult to discern.  The 
 
              important thing, however, is whether or not this L-5 nerve 
 
              root was impaired in terms of its transit through the 
 
              narrowed lateral recess where it was pinched.  I think that 
 
              in my opinion this was due to a disc herniation.  There was 
 
              a disc bulging on the left as well as the right to impair 
 
              the nerve root.  In the opinion of the radiographer who saw 
 
              it, it was.  It was keeping in the history that it occurred 
 
              suddenly.
 
         
 
              Q.  Which radiographer are you talking about now?
 
              
 
              A.  I'm talking about the radiologist who read the --
 
              
 
              Q.  In Pella?
 
              
 
              A.  This Doctor Carter S. Young.
 
         
 
         (Dr. Hines deposition, page 40, line 22 through page 43, line 10)
 
         
 
              He further testified:
 
         
 
              Q.  In connection with this and the report of this physician 
 
              that you're talking about, I questioned Doctor Boarini at 
 
              length and said to him, "A bulging disc means that the disc 
 
              is moved.  It hasn't ruptured, but it is moving?" and his 
 
              answer is, "No.  A bulging disc is an x ray finding.  All it 
 
              means is the disc is worn.  It's a very common, almost a 
 
              normal finding in someone this age.  It's exactly what you 
 
              expect to see in someone who has degenerative arthritis and 
 
              wear and tear of the discs."
 
         
 
              Do you agree with that or disagree with that?
 
         
 
              A.  I don't disagree with the statement about a bulging 
 
              disc. I don't think that that's all this patient had.  He 
 
              clearly had obliteration of the nerve root.
 

 
              
 
 
 
 
 
 
 
 
 
 
 
         
 
              Q.  He goes on to say it specifically says in there -- and 
 
              we're talking about the finding of the radiologist in Pella 
 
              -- that there is no free fragment, no herniation, which 
 
              exactly means that what he is seeing is osteoarthritic wear 
 
              and tear and not a herniated disc.
 
         
 
              Is that a difference of opinion between the two of you?
 
         
 
              A.  I think it is because I think as long as the patient has 
 
              a disc that is obliterating a nerve root and actually 
 
              impairing a nerve root, I cannot call that normal.  That is 
 
              not the normal wear-and-tear event.  This is an event which 
 
              causes neurological involvement and that clearly would 
 
              impair the patient.  If you wish to call that normal, then 
 
              we would have to say it's normal for patients to have back 
 
              pain with neurologic impairment including weakness and 
 
              sensory loss.  I find that to be an extreme statement of 
 
              normal.
 
         
 
         (Dr. Hines deposition, page 44, line 3 through page 45, line 13)
 
         
 
              Dr. Hines further testified that he had no good reason to 
 
         believe one way or the other whether the bulging disc was present 
 
         prior to the work injury, but noted that claimant had symptoms 
 
         come on as a result of the lifting incident:
 
         
 
              A.  All I know is that the patient had symptoms come on as a 
 
              result of a lifting incident in October of 1985 and had a 
 
              subsequent CT scan which was abnormal and demonstrated an 
 
              abnormality that would explain his symptoms, and the 
 
              symptoms were continuous from the time of the lifting 
 
              accident in '85. Therefore, I connect this abnormality 
 
              back,to the lifting incident.
 
         
 
         (Dr. Hines deposition, page 47, line 7 through line 14)
 
         
 
              David J. Boarini, M.D., testified by deposition taken 
 
         October 6, 1988.  He agreed that he had seen claimant twice:  On 
 
         June 22, 1987 and October 3, 1988.
 
         
 
              Dr. Boarini's clinical findings were in some respects 
 
         different from those of Dr. Hines.  He observed that claimant had 
 
         a normal gait and normal range of motion.  As did Dr. Hines, he 
 
         found straight leg raising to be negative.  He found claimant to 
 
         have normal strength in the lower extremities and all muscle 
 
         groups and normal sensation to touch and pin.  However, he found 
 
         "very vague" decreased sensation to pinprick in part of the right 
 
         foot.  Dr. Boarini did not find this to be significant or of a 
 
         neurological nature.  In general, he found nothing clinically 
 
         which showed any nerve involvement or any evidence of disc 
 
         herniation.  He found no evidence of any abnormality which would 
 
         be reflective of impairment under American Medical Association 
 
         guidelines.  He testified:
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
              Q.  Doctor, is there anything in connection with this June 
 
              1987 examination which would show any residue of the 
 
              incident of October 1985 which he described to you?
 
         
 
              A.  No.
 
         
 
              Q.  What did you feel that it reflected insofar as the 
 
              complaints which he had of low back pain?
 
         
 
              A.  Well, the injury he talked about, that he attributed 
 
              this to, was a very minor injury, he just twisted his back, 
 
              didn't have any pain for a few days, and then had some back 
 
              pain after that, which wasn't bothering him at this point.  
 
              He had a very typical examination and description of 
 
              somebody with an osteoarthritic back who doesn't tolerate 
 
              heavy work very well.
 
         
 
         (Dr. Boarini deposition, page 9, line 16 through page 10, line 5)
 
         
 
              * * *
 
         
 
              Q.  What did you find with reference to the condition of 
 
              this gentleman on June 22, 1987, as the same would relate to 
 
              the incident of October 18, 1985 that he described to you?
 
         
 
              A.  I didn't think any of the difficulties he complained of 
 
              when I saw him were related to that, to that incident.  He 
 
              just has an osteoarthritic back.  He's overweight, and he 
 
              has back pain that's just explainable from that.
 
         
 
              Q.  Can you state with reasonable medical certainty whether 
 
              or not his condition was that that you would find normally 
 
              in a man that age, in that physical condition, with that 
 
              weight who had had no injury or claim of injury? .
 
         
 
              A.  Yes, it was very typical for that sort.
 
              
 
              Q.  Doctor, were you able to tell with reasonable medical 
 
              certainty as to when his condition -- from what he indicated 
 
              occurred on October 18, 1985 or thereabouts, when his 
 
              condition,would have stabilized?
 
         
 
              A.  Well, I'm sure from his description he did strain his 
 
              back in October of '85.  I would say sometime--I don't have 
 
              an exact date, but some months after that, in the spring or 
 
              summer, he had improved and returned to work, and somewhere 
 
              in there it stabilized, some months after the injury.
 
         
 
              Q.  If he had been released for work, and if the record were 
 
              to indicate that he was released for work by another 
 
              physician in March of 1986, would that date have been 
 
              relevant for the date of stabilization purposes?
 
         
 
              A.  That would sound like a reasonable time, yes.
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         (Dr. Boarini deposition, page 10, line 15 through page 11, line 
 
         21)
 
         
 
              With respect to the October 3, 1988 examination, Dr. Boarini 
 
         testified that no report had been prepared because of the close 
 
         proximity in time.  He noted that he had examined claimant and 
 
         taken repeat x-rays of the neck and back.  The x-rays showed 
 
         arthritic changes in the neck and back and the doctor found as 
 
         the only difference in claimant's condition that claimant had a 
 
         very slight limitation in flexion, which he felt also to be 
 
         merely arthritic.  Claimant still had a normal gait and a normal 
 
         range of motion in the neck, although a five degree loss of 
 
         flexion in the lower-back.  Strength, sensation and reflexes of 
 
         the arms and legs were normal.  However, claimant complained of 
 
         some decreased sensation, on both feet, in sort of vague areas of 
 
         the feet on pinprick.  Dr. Boarini did not find the decreased 
 
         sensation to be in the pattern of a particular pinched nerve or 
 
         ruptured disc.
 
         
 
              X-ray examination did not specifically show anything except 
 
         arthritis.  Dr. Boarini further testified:
 
         
 
              Q.  Was there anything else of any significance in the 
 
              October 3, 1988 examination?
 
         
 
              A.  He's still overweight.  That's all.
 
              
 
              Q.  Did he indicate to you that he was able to handle the 
 
              work that he's doing?
 
         
 
              A.  Yes.
 
         
 
              Q.  As a result of that examination, Doctor, do you feel 
 
              that there is any specific work restrictions that you would 
 
              place upon him.?
 
         
 
              A.  I'd say the same thing I said last time, that he's a man 
 
              in his late fifties with a lot of osteoarthritis, and he 
 
              will not tolerate heavy manual labor, repetitive bending and 
 
              lifting.
 
         
 
              Q.  Were you able to tell within a reasonable degree of 
 
              medical certainty whether or not that was directly or 
 
              indirectly caused by the October 18, 1985 incident?
 
         
 
              A.  It's not related to that.
 
         
 
         (Dr. Boarini deposition, page 16, line 13 through page 17, line 
 
         5)
 
         
 
              Dr. Boarini further testified that with respect to 
 
         claimant's neck complaints, claimant had no disc herniation in 
 
         the neck, but suffered from degenerative osteoarthritis.
 
         
 
              As to the CT scan performed by Dr. Carter S. Young, Dr. 
 
         Boarini testified:
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              Q.  All right.  Did you have the opportunity to review the 
 
              CT or computerized tomography films
 
         
 
              A.  Yes.
 
         
 
              Q.  --that were performed at the Pella Community Hospital?
 
         
 
              A.  Yes.
 
         
 
              Q.  Did you read the report of Dr. Carter S. Young, 
 
              radiologist?
 
         
 
              A.  Yes.
 
         
 
              Q.  He reported, did he not, that there were bulging disks 
 
              in his lower back and the lumbosacral area?
 
         
 
              A.  Yes.
 
         
 
              Q.  A bulging disk means that the disk is moved; it hasn't 
 
              ruptured, but it is moving?
 
         
 
              A.  No.  A bulging disk is an X-ray finding.  All it means 
 
              is that the disk is worn, and that is a very common--almost 
 
              a normal finding in someone this age.  It's exactly what you 
 
              expect to see in someone who's got degenerative arthritis 
 
              and wear and tear of the disks.
 
         
 
              Q.  Well, can an injury--
 
              
 
              A. It specifically says in there that there's no free 
 
              fragment, no herniation, which exactly means that what he is 
 
              seeing is osteoarthritic wear and tear, not a herniated 
 
              disk.
 
         
 
         (Dr. Boarini deposition, page 24, line 2 through page 25, line 2)
 
         
 
              Dr. Boarini testified further:
 
         
 
              Q.  Now, if you were to assume for purposes of a 
 
              hypothetical that Mr. Zeck had no back problems preexisting 
 
              his incident at work--at least none that were known to 
 
              him--that resulted in back pain or problems, and he 
 
              sustained this injury that he reports to you in October of 
 
              '85, and from that day forward has back pain and problems, 
 
              that whenever he engages in heavy lifting, i.e., lifting of 
 
              50 pounds or more, repetitive lifting or riding in vehicles 
 
              that result in sharp bumps or jolts to his spine, or had 
 
              physical activity that causes him pain and discomfort and 
 
              difficulties, would there then, in your opinion, be a causal 
 
              connection between that incident and his resulting back 
 
              condition?
 
         
 
              A.  No.  That's exactly how I understand the situation now, 
 
              and I don't think they're causally related.
 

 
              
 
 
 
 
 
 
 
 
 
 
 
         
 
              Q.  Well, I'm asking you to focus strictly on a 
 
              hypothetical.
 
         
 
              A.  Yes.  But that hypothetical is exactly how I understand 
 
              the situation, and, no, I don't think they're related.
 
         
 
              Q.  Aren't there situations where somebody can have a 
 
              preexisting condition, such as dormant osteoarthritis, and 
 
              have an incident that would light it up or aggravate it to 
 
              make it become active instead of dormant?
 
         
 
              A.  Absolutely.  And if you talk to this man, that's exactly 
 
              what happens now:  He tells you in his own words he gets 
 
              along fine, doesn't have any trouble, but if he does heavy 
 
              work today, it hurts him tonight or tomorrow, and that's 
 
              exactly what happened in '85, and it will happen again every 
 
              time he does the work, but it's because of his condition, 
 
              not because of the twisting incident in '85.
 
         
 
         (Dr. Boarini deposition, page 33, line 6 through page 34, line 
 
         15)
 
         
 
              As to whether claimant has suffered permanent disability, 
 
         Dr. Boarini testified:
 
         
 
              Q.  Dr. Boarini, are you of the opinion that back strains, 
 
              i.e., muscles and ligaments, tears, never result in 
 
              permanent injury, or can they?
 
         
 
              A.  No; they can.
 
              
 
              Q.  Okay. In this case, it has not?
 
              
 
              A.  That's correct.
 
              
 
              Q.  Why not in this case?  What distinguishes Mr. Zeck, in 
 
              your opinion, from fully recovering from a back strain or 
 
              sprain as opposed to somebody that does have permanent 
 
              injury?
 
         
 
              A.  Well, a lot of things.  One is he's got an underlying 
 
              condition that all by itself very easily explains his 
 
              problem.
 
         
 
              Secondly, if you just listen to his history, he will tell 
 
              you that he does fine, but every time he strains his 
 
              back--any time he does manual labor, his symptoms return and 
 
              then go away.  This is a very typical story for somebody 
 
              with bad underlying osteoarthritis and minor injuries to the 
 
              back.
 
         
 
              As long as he stays away from those things, he has no 
 
              trouble.  There hadn't been any injury, there hasn't been 
 
              any residual from the injury, but every time he restrains 
 
              it, it hurts again, and that's a very typical story for 
 
              somebody with naturally occurring degenerative joint 
 
              disease.
 

 
              
 
 
 
 
 
 
 
 
 
 
 
         
 
              And, also, if somebody injures themselves and has something 
 
              that's persisting for years, you'd look for a single spot 
 
              that has been injured or hurt.  He's got X-ray changes all 
 
              up and down his spine from his head to his tail, and it's 
 
              all degenerative arthritis, certainly not related to a 
 
              simple sprain injury, and that explains his problem in his 
 
              neck and his back.
 
         
 
         (Dr. Boarini deposition, page 35, line 22 through page 37, line 
 
         4)
 
         
 
              Defendants' exhibit D-3 is a set of defendants answers to 
 
         interrogatories.  In interrogatory number 7, it is set forth that 
 
         authorized treating physicians are Dr. Vander Ploeg and Dr. 
 
         Boarini.
 
         
 
              Claimant's exhibit 12 is a check to Dr. Hines in the sum of 
 
         $400 dated December 14, 1988.  This appears to be Dr. Hines' 
 
         deposition fee.
 
         
 
                           APPLICABLE LAW AND ANALYSIS
 
         
 
              As has been seen, the parties have stipulated that claimant 
 
         sustained an injury arising out of and in the course of his 
 
         employment on October 18, 1985.  The parties dispute whether that 
 
         injury caused temporary or permanent disability.
 
         
 
              The claimant has the burden of proving by a preponderance of 
 
         the evidence that the injury of October 18, 1985 is causally 
 
         related to the disability on which he now bases his claim.  
 
         Bodish v. Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867 (1965).  
 
         Lindahl v. L. O. Boggs, 236 Iowa 296, 18 N.W.2d 607 (1945).  A 
 
         possibility is insufficient; a probability is necessary.  Burt v. 
 
         John Deere Waterloo Tractor Works, 247 Iowa 691, 73 N.W.2d 732 
 
         (1955).  The question of causal connection is essentially within 
 
         the domain of expert testimony.  Bradshaw v. Iowa Methodist 
 
         Hospital, 251 Iowa 375, 101 N.W.2d 167 (1960).
 
         
 
              The opinions of experts need not be couched in definite, 
 
         positive or unequivocal language.  Sondag v. Ferris Hardware, 220 
 
         N.W.2d 903 (Iowa 1974).  An opinion of an expert based upon an 
 
         incomplete history is not binding upon the commissioner, but must 
 
         be weighed together with the other disclosed facts and 
 
         circumstances.  Bodish v. Fischer, Inc., supra.  The expert 
 
         medical evidence must be considered with all other evidence 
 
         introduced bearing on the causal connection between the injury 
 
         and the disability.  Burt v. John Deere Waterloo Tractor Works, 
 
         supra. In regard to medical testimony, the commissioner is 
 
         required to state the reasons on which testimony is accepted or 
 
         rejected. Sondag v. Ferris Hardware, supra.
 
         
 
              The supreme court of Iowa in Almquist v. Shenandoah 
 
         Nurseries, 218 Iowa 724, 731-32, 254 N.W. 35, 38 (1934) discussed 
 
         the definition of personal injury in workers, compensation cases 
 
         as follows:
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              While a personal injury does not include an occupational 
 
              disease under the Workmen's Compensation Act, yet an injury 
 
              to the health may be a personal injury.  [citations 
 
              omitted.] Likewise a personal injury includes a disease 
 
              resulting from an injury....The result of changes in the 
 
              human body incident to the general processes of nature do 
 
              not amount to a personal injury.  This must follow, even 
 
              though such natural change may come about because the life 
 
              has been devoted to labor and hard work.  Such result of 
 
              those natural changes does not constitute a personal injury 
 
              even though the same brings about impairment of health or 
 
              the total or partial incapacity of the functions of the 
 
              human body.
 
         
 
                   ....
 
         
 
              A personal injury, contemplated by the Workmen's 
 
              Compensation Law, obviously means an injury to the body, the 
 
              impairment of health, or a disease, not excluded by the act, 
 
              which comes about, not through the natural building up and 
 
              tearing down of the human body, but because of a traumatic 
 
              or other hurt or damage to the health or body of an 
 
              employee.  [Citations omitted.]  The injury to the human 
 
              body here contemplated must be something, whether an 
 
              accident or not, that acts extraneously to the natural 
 
              processes of nature, and thereby impairs the health, 
 
              overcomes, injures, interrupts, or destroys some function of 
 
              the body, or otherwise damages or injures a part or all of 
 
              the body.
 
         
 
              While a claimant is not entitled to compensation for the 
 
         results of a preexisting injury or disease, the mere existence at 
 
         the time of a subsequent injury is not a defense.  Rose v. John 
 
         Deere Ottumwa Works, 247 Iowa 900, 908, 76 N.W.2d 756, 760-61 
 
         (1956).  If the claimant had a preexisting condition or 
 
         disability that is aggravated, accelerated, worsened or lighted 
 
         up so that it results in disability, claimant is entitled to 
 
         recover.  Nicks v. Davenport Produce Co., 254 Iowa 130, 115 
 
         N.W.2d 812, 815 (1962).
 
         
 
              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.
 
         
 
              Curiously, neither party elected to introduce evidence of 
 
         the records and opinions of the first and primary treating 
 
         physician, Dr. Meyer.  Dr. Vander Ploeg is the first physician to 
 
         have seen claimant whose records are in evidence.  Claimant 
 
         reported as early as January 20, 1986, that his injury caused him 
 
         to end up on the floor on his hands and knees, unable to rise.
 
         
 
              However, Dr. Vander Ploeg reported that although claimant 
 
         had been having problems with his back, he had received 
 
         treatments from a chiropractor and as of that date (January 20, 
 
         1986) had no complaints about his back.  Assessing claimant as 
 
         suffering low back strain apparently resolved, Dr. Vander Ploeg 
 
         felt there was no point in any further workup on the back problem 
 
         and that his examination was not compatible at all with a disc 
 
         syndrome.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              Dr. Vander Ploeg next saw claimant on a date partially cut 
 
         off on the photocopy submitted as page 2, claimant's exhibit 5. 
 
         The date appears to be 7-8-86.  This is consistent with the 
 
         comment that claimant should never have been disabled for eight 
 
         months on the recommendation of a chiropractor.  The only part of 
 
         the first number is to the upper right-hand side, and appears to 
 
         show the start of a descending slash mark, such as would be 
 
         consistent with the number 7.  While this would also be 
 
         consistent with a "3" in a print style employing a sharp angle at 
 
         the top of the 3, notes of January 20, 1986 were apparently typed 
 
         on the same typewriter and show that the number 3 is printed with 
 
         a rounded upper corner (in the last line, "3 fingers").  
 
         Therefore, the undersigned concludes that these chart notes were 
 
         made on July 8, 1986.
 
         
 
              Those chart notes show that claimant said his back was not 
 
         really giving him any trouble until about a month ago when he 
 
         stepped wrong off a curb and apparently pulled something in his 
 
         right low back, and also affecting his right neck area.  Dr. 
 
         Vander Ploeg assessed claimant at this time as suffering a right 
 
         low back sprain and found an area of point tenderness in the 
 
         lower back at about the area of the right posterior spine.
 
         
 
              Based on Dr. Vander Ploeg's chart notes, the undersigned 
 
         concludes that claimant suffered a sharp pain that dropped him to 
 
         his knees at the time of the stipulated work injury.  However, it 
 
         must also be concluded that claimant's problems resolved as of 
 
         January 20, 1986, when he reported no complaints about his back 
 
         to Dr. Vander Ploeg.  Symptoms apparently returned and were 
 
         exacerbated when claimant stepped wrong off a curb about a month 
 
         prior to July 8, 1986.
 
         
 
              Drs. Hines and Boarini expressed diametrically opposed 
 
         opinions as to whether any causal relationship existed between 
 
         claimant's stipulated injury and his condition of disability. 
 
         However, based on the above findings, both Dr. Hines and Dr. 
 
         Boarini based their opinions on inaccurate histories.  Of course, 
 
         both saw claimant substantially after the work injury.
 
         
 
              Dr. Boarini believed that claimant "just twisted his back, 
 
         didn't have any pain for a few days, and then had some back pain 
 
         after that, which wasn't bothering him at this point."  
 
         Claimant's testimony that he felt a sharp, knifelike pain at the 
 
         time of the incident and continuing thereafter is accepted as 
 
         credible.  It seems obvious even to a lay person that a delay in 
 
         the onset of pain for a "few days" would tend to lessen the 
 
         likelihood that the pain was caused by a particular preceding 
 
         event.  Thus, this is a serious deficiency in the history upon 
 
         which Dr. Boarini based his opinions.
 
         
 
              On the other hand, Dr. Boarini's history did make note that 
 
         claimant reported exacerbating his back difficulties when he 
 
         stepped off a curb, thereby lending support to the accuracy of 
 
         Dr. Vander Ploeg's observations and recorded history.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              Dr. Hines indicated in his deposition that claimant 
 
         described having difficulties in the low back and neck with 
 
         episodic numbness in the hands and feet and increasing pain with 
 
         sustained activities since the date of his injury.  As quoted 
 
         above, Dr. Hines reported that claimant had symptoms come on as 
 
         the result of the lifting incident, had a subsequent CT scan 
 
         showing abnormalities that would explain his symptoms, "and the 
 
         symptoms were continuous from the time of the lifting accident in 
 
         '85. Therefore, I connect this abnormality back to the lifting 
 
         incident."  However, this history is completely inconsistent with 
 
         the contemporary records of Dr. Vander Ploeg, showing that 
 
         claimant's symptoms had resolved as of January 20, 1986.  The 
 
         intervening incident when claimant reinjured himself stepping 
 
         from a curb also occurred well before claimant saw Dr. Hines.  
 
         The misstep from a curb incident was not discussed by Dr. Hines. 
 
         Therefore, we are in the dark as to whether his opinion would be 
 
         the same if he knew that claimant's symptoms had resolved and had 
 
         then reoccurred following another traumatic episode in apparently 
 
         June, 1986.  Thus, this represents a very serious deficiency in 
 
         the history upon which Dr. Hines based his opinion.
 
         
 
              Drs. Hines and Boarini disagree as to the radiological 
 
         evidence prepared by Dr. Young.  The use of the verb "obliterate" 
 
         is of uncertain meaning to this lay reader.  While it seems more 
 
         probable that Dr. Hines' interpretation is correct (Dr. Boarini 
 
         believing that those reports showed no herniation since there was 
 
         no free fragment), this still does not answer the question of 
 
         whether the herniation, if there be one, was causally related to 
 
         the work injury under review, as opposed to the misstep from a 
 
         curb or some other incident.
 
         
 
              On the basis of this analysis, the undersigned concludes 
 
         that claimant has failed to meet his burden of proof in 
 
         establishing any causal relationship between his stipulated work 
 
         injury and any current physical impairment or disability.  The 
 
         most reliable medical records in evidence show that claimant's 
 
         symptoms had resolved by January 20, 1986.  Although claimant has 
 
         had continuing pain and back problems up until the time of 
 
         hearing, it is also true that he suffers from osteoarthritis 
 
         which, as Dr. Boarini points out, is capable in and of itself of 
 
         producing his current symptoms.
 
         
 
              It is further held that claimant has failed to establish by 
 
         persuasive medical opinion that there exists any causal 
 
         relationship between the work injury and temporary disability. 
 
         This is a much, much closer question, since claimant did leave 
 
         work of his own volition after the injury.  However, temporary 
 
         total disability is payable under Iowa Code section 85.33 until 
 
         the employee has returned to work or is medically capable of 
 
         returning to employment substantially similar to that in which he 
 
         was engaged at the time of injury, whichever first occurs. 
 
         Although claimant may not have been released by Dr. Meyer until 
 
         some unspecified date in March, 1986, he was asymptomatic when he 
 
         saw Dr. Vander Ploeg on January 20, 1986.  This is a period of 13 
 
         weeks, 4 days from the date of injury.  As it was stipulated that 
 
         defendants paid 20 weeks, 1 day of compensation on a voluntary 
 
         basis prior to hearing, there would be no further award of 
 
         temporary disability, even if it was found that claimant had met 
 
         his burden of proof as to establishing the appropriate causal 
 
         nexus.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              The parties dispute claimant's entitlement to medical 
 
         benefits under Iowa Code section 85.27.  Defendants dispute 
 
         causal connection to the work injury and whether the expenses 
 
         were authorized.  Claimant has failed to meet his burden of proof 
 
         in establishing that medical expenses of Dr. Hines are causally 
 
         related to the work injury on the basis of the same reasoning set 
 
         forth above as to permanent disability.  Therefore, lack of 
 
         authorization is unnecessary to consider as a defense.
 
         
 
                                 FINDINGS OF FACT
 
         
 
              THEREFORE, based on the evidence presented, the following 
 
         ultimate facts are found:
 
         
 
              1.  As stipulated, claimant sustained an injury on October 
 
         18, 1985 arising out of and in the course of his employment with 
 
         Geetings, Inc.  The injury manifested itself by a sharp pain to 
 
         claimant's back, driving him to his knees.
 
         
 
              2.  Claimant suffers from an osteoarthritic back.
 
              
 
              3.  Claimant's back condition had resolved when he was 
 
         examined by Dr. Vander Ploeg on January 20, 1986.  However, 
 
         claimant reinjured his back taking a misstep from a curb 
 
         approximately one month before seeing Dr. Vander Ploeg on July 8, 
 
         1986.
 
         
 
              4.  Dr. Hines opined that a causal connection existed 
 
         between the work injury and claimant's current state of 
 
         disability; however, Dr. Hines' opinion was based upon a faulty 
 
         history in that he was unaware that claimant's back condition had 
 
         resolved itself by January 20, 1986, and that claimant suffered a 
 
         subsequent incident in approximately June, 1986.
 
         
 
                                CONCLUSION OF LAW
 
         
 
              WHEREFORE, based on the principles of law previously cited, 
 
         the following conclusion of law is made:
 
         
 
              1.  Claimant has failed to meet his burden of proof in 
 
         establishing a causal connection between his stipulated work 
 
         injury and any period of temporary disability, permanent 
 
         disability or the medical expenses of Dr. Hines.
 
         
 
                                      ORDER
 
         
 
              THEREFORE, IT IS ORDERED:
 
              
 
              Claimant shall take nothing from this proceeding.
 
         
 
              Costs of this action shall be assessed against claimant 
 
         pursuant to Division of Industrial Services Rule 343-4.33.
 
         
 
              Signed and filed this 12th day of January, 1990.
 

 
              
 
 
 
 
 
 
 
 
 
 
 
         
 
         
 
         
 
         
 
         
 
         
 
                                            DAVID RASEY
 
                                            DEPUTY INDUSTRIAL COMMISSIONER
 
         
 
         Copies To:'
 
         
 
         Mr. Donald G. Beattie
 
         Mr. Larry G. Wilson
 
         Attorneys at Law
 
         204 8th Street SE
 
         P.O. Box 367
 
         Altoona, Iowa  50009
 
         
 
         Mr. Walter F. Johnson
 
         Attorney at Law
 
         111 West Second Street
 
         P.O. Box 716
 
         Ottumwa, Iowa  52501
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
 
         
 
         Page   1
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
                     before the iowa industrial commissioner
 
         ____________________________________________________________
 
                                       :
 
         RICHARD WHEELER,              :
 
                                       :
 
              Claimant,                :
 
                                       :
 
         vs.                           :
 
                                       :         File No. 808800
 
         BOWKER & SON, INC.,           :
 
                                       :      A R B I T R A T I O N
 
              Employer,                :
 
                                       :         D E C I S I O N
 
         and                           :
 
                                       :
 
         HARTFORD INSURANCE COMPANY,   :
 
                                       :
 
              Insurance Carrier,       :
 
              Defendants.              :
 
         ___________________________________________________________
 
         
 
         
 
                              statement of the case
 
         
 
              This is a proceeding in arbitration upon the petition of 
 
         claimant, Richard Wheeler, against his employer, Bowker & Son, 
 
         Inc., and its insurance carrier, Hartford Insurance Company, 
 
         defendants.  The case was heard on October 24, 1990, in Cedar 
 
         Rapids, Iowa at the Linn County Courthouse.  The record consists 
 
         of the testimony of claimant, the testimony of Dennis Drahas, 
 
         President of Bowker & Son, Inc., and John C. Sutter, rehabilita
 
         tion consultant.  Additionally, the record consists of claimant's 
 
         exhibits 1-26 and defendants' exhibits 1-18.  Counsel for the 
 
         parties did not eliminate unnecessary duplications.  They are 
 
         instructed to do so in the future.
 
         
 
                                      issue
 
         
 
              The sole issue to be determined is:
 
         
 
              1) Whether claimant is entitled to permanent partial dis
 
         ability benefits.
 
         
 
                                 findings of fact
 
         
 
              The deputy, having heard the testimony and considered all 
 
         the evidence, finds:
 
         
 
              On October 25, 1985, claimant was working on a construction 
 
         site as a plumber.  He was hit from behind by a clam bucket.  The 
 
         impact of the collision threw claimant into an excavation which 
 
         was 20 feet deep.  Apparently, claimant was able to climb out of 
 
         the hole unassisted.  Later claimant sought medical attention.
 
         
 
              Claimant treated with William R. Basler, M.D.  In his report 
 
         of June 10, 1986, Dr. Basler opined:
 

 
         
 
         Page   2
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
              Mr. Wheeler has not been seen since May 5, 1986.  I am 
 
              unable to render an opinionated period of disability or 
 
              permanent disability he will suffer...
 
         
 
              Claimant also treated with James R. LaMorgese, M.D., a board 
 
         certified neurosurgeon.
 
         
 
              The patient was seen in my office again on March 4, 
 
              1986.  At that time I went over the results of his 
 
              myelogram along with his other diagnostic studies.  The 
 
              patient continued to have the same symptoms for which 
 
              he was admitted to Mercy Hospital for.  He was having 
 
              paresthesias in his hands and feet and sorenss [sic] in 
 
              his heels.  He was having paresthesias in his chest 
 
              area.  He continued to indicate that activity seemed to 
 
              aggravate his symptoms.  I indicated to the patient 
 
              that I was at a loss to explain all these symptoms, 
 
              especially the numbness and tingling or paresthesias 
 
              that he was complaining of.  I recommended that he con
 
              tact Dr. Basler and arrange for a tertiary care center 
 
              evaluation in light of his lack of progress and posi
 
              tive findings on the tests performed by me and at my 
 
              direction.
 
         
 
              It is my feeling that this patient has no definite evi
 
              dence of neurologic injury from his accident despite 
 
              the fall.  I am at a loss to explain the continued and 
 
              prolonged pain that this patient suffers.  It seems to 
 
              me that the pain syndrome that Mr. Richard Wheeler is 
 
              experiencing is out of proportion to the degree of neu
 
              rologic findings found.  I hope that at this time, Mr. 
 
              Wheeler, is doing better than when I last saw him and I 
 
              cannot give you any indication of Mr. Wheeler's present 
 
              condition.
 
         
 
         (Claimant's Exhibit 4)
 
         
 
              Per a request from the insurance carrier, Fred J. Pilcher, 
 
         M.D., an orthopedist, examined claimant.  Dr. Pilcher diagnosed 
 
         claimant as:
 
         
 
              Impression:  MUSCULAR AND LIGAMENTOUS CONTUSION STRAIN         
 
                   TO THE SHOULDER GIRDLE BILATERALLY.             
 
                   UNUSUAL RADICULAR COMPLAINTS OF THE UPPER       
 
                   EXTREMITIES, NO FOCAL NEUROLOGIC CHANGES.       
 
                   MUSCULOLIGAMENTOUS STRAIN OF THE LOW BACK       
 
                   AND SI JOINT.
 
                 APPARENT L5 NERVE ROOT IRRITATION TO THE          
 
         LEFT LOWER EXTREMITY, ETIOLOGY UNKNOWN.
 
         
 
              Recommendations:  I feel before I can offer any type of 
 
              treatment or complete evaluation, I need the insight of 
 
              all the other work up that he has had done and this was 
 
              sent for.
 
         
 
              Claimant was also examined at the University of Iowa 
 

 
         
 
         Page   3
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
         Hospitals and Clinics in the Neurology Outpatient Clinic.  The 
 
         diagnosis was 1) chronic headache most consistent with muscle 
 
         contraction type; 2) chronic back pain possibly secondary to 
 
         injury, likely ligamentous.  A myelogram showed only minor 
 
         bulging discs.  Claimant was advised to return on a per needed 
 
         basis.
 
         
 
              Claimant also received chiropractic treatment from W. Gene 
 
         Cretsinger, D.C.  Dr. Cretsinger opined claimant's prognosis 
 
         looked good.  Dr. Cretsinger, after treating claimant for a 
 
         period of time, opined claimant was not permanently impaired.
 
         
 
              Finally, defendant-insurance carrier referred claimant to a 
 
         pain management clinic in Springfield, Missouri.  Claimant 
 
         received treatment from Clyde Norman Shealy, M.D., Ph.D.  The 
 
         physician diagnosed claimant as having myofascial pain syndrome 
 
         and a rotation of the sacrum which was a preexisting condition.  
 
         Dr. Shealy opined he was able to treat claimant's symptoms of 
 
         chronic muscle spasms.  The physician restricted claimant to no 
 
         repetitive lifting greater than 30 pounds, no one time lifting 
 
         greater than 50 pounds, walking up to two hours per day, sitting 
 
         up to six or eight hours per day, but not more than four to six 
 
         hours per setting, and driving an hour at a time up to three 
 
         hours per day.
 
         
 
              As of August 25, 1986, claimant was allowed to return to 
 
         work with the aforementioned restrictions.  However, Dr. Shealy 
 
         did not recommend that claimant should return to work as a 
 
         plumber.
 
         
 
              Dr. Shealy rated claimant as having a 20 percent permanent 
 
         impairment.  Five percent of the impairment was attributable to 
 
         claimant's mechanical problems of the spine.  Fifteen percent of 
 
         the impairment was attributed to claimant's ongoing pain.  Dr. 
 
         Shealy noted claimant was significantly better after his treat
 
         ment at the clinic.
 
         
 
              Claimant enrolled in several classes at Kirkwood Community 
 
         College.  These were classes proposed by the Iowa State 
 
         Department of Vocational Rehabilitation.  Additionally, 
 
         claimant's employer, offered claimant a position with the 
 
         company.
 
         
 
              Initially, claimant was hired as a part-time inventory con
 
         trol clerk for $7.50/hour.  Gradually, claimant worked into full 
 
         time employment.  He was assigned the position of expeditor 
 
         and/or estimator.  Later claimant was given the position of 
 
         safety manager.  At the time of the hearing, claimant was paid 
 
         $11.50 per hour.  He was also provided with vacation benefits and 
 
         a retirement plan.
 
         
 
                                conclusions of law
 
         
 
              Functional impairment is an element to be considered in 
 
         determining industrial disability which is the reduction of earn
 
         ing capacity, but consideration must also be given to the injured 
 
         employee's age, education, qualifications, experience and inabil
 

 
         
 
         Page   4
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
         ity to engage in employment for which he is fitted.  Olson v. 
 
         Goodyear Service Stores, 255 Iowa 1112, 125 N.W.2d 251 (1963).  
 
         Barton v. Nevada Poultry, 253 Iowa 285, 110 N.W.2d 660 (1961).
 
         
 
              A finding of impairment to the body as a whole found by a 
 
         medical evaluator does not equate to industrial disability.  This 
 
         is so as impairment and disability are not synonymous.  Degree of 
 
         industrial disability can in fact be much different than the 
 
         degree of impairment because in the first instance reference is 
 
         to loss of earning capacity and in the latter to anatomical or 
 
         functional abnormality or loss.  Although loss of function is to 
 
         be considered and disability can rarely be found without it, it 
 
         is not so that a degree of industrial disability is proportion
 
         ally related to a degree of impairment of bodily function.
 
         
 
              Factors to be considered in determining industrial dis
 
         ability 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 qualifi
 
         cations 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 arriv
 
         ing 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, moti
 
         vation - 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, l985).
 
         
 
              For example, a defendant employer's refusal to give any sort 
 
         of work to a claimant after he suffers his affliction may justify 
 
         an award of disability.  McSpadden v. Big Ben Coal Co., 288 
 
         N.W.2d 181 (Iowa 1980).
 
         
 
              With respect to the instant case, claimant has proven by a 
 
         preponderance of the evidence that he has sustained a permanent 
 
         partial disability.  Physicians have rated claimant as having 
 
         functional impairment ratings from 10 percent to 20 percent.  
 
         Claimant is permanently restricted as stated above.  He is unable 
 
         to return to his former position of journeyman plumber.  At the 
 

 
         
 
         Page   5
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
         time of the hearing, plumbers for defendant employer were earning 
 
         $21.97 per hour.  Other plumbers in the area were earning $18.00 
 
         to $20.00 per hour.
 
         
 
              Claimant, as the safety manager, is now earning $11.50 per 
 
         hour plus benefits.  There has been a definite loss of earning 
 
         capacity since claimant is no longer able to engage in plumbing.  
 
         Positions for which claimant is qualified pay considerably less 
 
         than the position of journeyman plumber.  Claimant's position of 
 
         inventory clerk had paid $7.50 per hour.  His former position of 
 
         audio visual technician is an even lower paying position.  An 
 
         estimator is paid approximately the same as a safety manager.
 
         
 
              Claimant's position is secure.  Defendant-employer is to be 
 
         commended for accommodating claimant.  Other employers should 
 
         look to defendant-employer as a model.  Defendant-employer is 
 
         truly interested in the well-being of its employees.
 
         
 
              Therefore, based upon the foregoing, and based upon:  1) the 
 
         personal observation of claimant; 2) agency expertise, (Iowa 
 
         Administrative Procedures Act 17A.141s); and, 3) claimant's tes
 
         timony, the undersigned determines claimant has a 10 percent 
 
         permanent partial disability.
 
         
 
                                      order
 
         
 
              THEREFORE, IT IS ORDERED:
 
         
 
              Defendants are to pay fifty (50) weeks of permanent partial 
 
         disability benefits at the stipulated rate of three hundred 
 
         forty-five and 75/l00 dollars ($345.75) per week commencing on 
 
         June 5, 1987.
 
         
 
              Interest shall be paid pursuant to Iowa Code section 85.30.
 
         
 
              Defendants shall receive credit for all benefits previously 
 
         paid and not credited.
 
         
 
              Costs of the action shall be assessed to defendants pursuant 
 
         to rule 343 IAC 4.33.
 
         
 
              Defendants shall file a claim activity report pursuant to 
 
         rule 343 IAC 3.1.
 
         
 
         
 
         
 
         
 
         
 
         
 
              Signed and filed this ____ day of April, 1991.
 
         
 
         
 
         
 
         
 
         
 
                                       ______________________________               
 
         MICHELLE A. McGOVERN
 

 
         
 
         Page   6
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
                                       DEPUTY INDUSTRIAL COMMISSIONER
 
         
 
         Copies To:
 
         
 
         Mr. Robert F. Wilson
 
         Attorney at Law
 
         210 2nd St
 
         810 Dows Bldg
 
         Cedar Rapids  IA  52401
 
         
 
         Mr. Chris J. Scheldrup
 
         Attorney at Law
 
         2720 1st Ave NE
 
         P O Box 1943
 
         Cedar Rapids  IA  52406
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                           5-1803
 
                           Filed April 22, 1991
 
                           MICHELLE A. McGOVERN
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            RICHARD WHEELER,              :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :         File No. 808800
 
            BOWKER & SON, INC.,           :
 
                                          :      A R B I T R A T I O N
 
                 Employer,                :
 
                                          :         D E C I S I O N
 
            and                           :
 
                                          :
 
            HARTFORD INSURANCE COMPANY,   :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
            
 
            
 
            5-1803
 
            Claimant is awarded a 10 percent permanent partial 
 
            disability as a result of his work injury.
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                    
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER  
 
         _________________________________________________________________
 
         
 
         RACHELLE R. SCHARPING,
 
         
 
              Claimant,
 
         
 
         VS.
 
                                                 File No. 808823
 
         ALEXANDER MANUFACTURING CO.,
 
                                              A R B I T R A T I 0 N
 
              Employer,
 
                                                 D E C I S I 0 N
 
         and
 
         
 
         KEMPER GROUP,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         _________________________________________________________________
 
         
 
                              STATEMENT OF THE CASE
 
         
 
              This is a proceeding in arbitration brought by Rochelle R. 
 
         Scharping, claimant, against Alexander Manufacturing Company, 
 
         employer, hereinafter referred to as Alexander, and Kemper Group, 
 
         insurance carrier, for benefits as a result of an alleged injury 
 
         on November 6, 1985.  On June 24, 1987 the case was submitted on 
 
         a stipulated written record.
 
         
 
              The parties have submitted a pre-hearing report of contested 
 
         issues and stipulations which is now approved and accepted as 
 
         part of the record of this case.  The exhibits constituting the 
 
         stipulated record as listed in the pre-hearing report submitted 
 
         on June 24, 1987 are now received into the evidence of this case.  
 
         All of this evidence was considered in arriving at this 
 
         decision.
 
         
 
              The pre-hearing report contains the following stipulations:
 
         
 
              1.  On November 6, 1985, claimant received an injury which 
 
         arose out of and in the course of her employment with Alexander.
 
         
 
              2.  The November 6, 1985 work injury was a cause of both 
 
         temporary disability during a period of healing and permanent 
 
         scheduled member disability to the right index finger.
 
         
 
              3.  The commencement date for permanent partial disability 
 
         benefits, if awarded herein, shall be January 28, 1986.
 
         
 
              4.  Claimant's rate of compensation, in the event of an 
 
         award of weekly benefits from this proceeding, shall be $118.22.
 
              5.  All requested medical benefits have been or will be paid 
 
         by defendants.
 
         
 
              The only issue submitted by the parties for determination in 
 
         this decision is the extent of claimant's entitlement to weekly 
 

 
         benefits for permanent disability and claimant's entitlement to 
 
         interest on those benefits.
 
         
 
                             FINDINGS OF FACT
 
         
 
              1.  As stipulated, on November 6, 1985 claimant suffered an 
 
         injury to her right index finger which arose out of and in the 
 
         course of her employment with Alexander.
 
         
 
              The medical records submitted into evidence show that 
 
         claimant suffered a "crush injury to the right index fingertip 
 
         extensor disruption and open fracture of the distal portion of 
 
         the middle phalanx.  Claimant was immediately treated by an 
 
         orthpaedic surgeon, R. L. Emerson, M.D., and claimant underwent a 
 
         surgical procedure described by Dr. Emerson as "debridement of 
 
         wound", "repair of extensor tendon", and "K-wire fixation of the 
 
         IP joint."  There was an initial attempt by Dr. Emerson to avoid 
 
         an arthrodesis or fusion of the distal interphalangeal (DIP) 
 
         joint, but claimant failed to improve as hoped by Dr. Emerson.  
 
         On January 15, 1986, Dr. Emerson surgically fused the DIP joint.  
 
         The parties stipulated that claimant's healing period ended on 
 
         January 28, 1986.
 
         
 
              2.  The work injury of November 6, 1985 was a cause of a 30% 
 
         permanent partial impairment to claimant's right index finger.
 
         
 
              Claimant's primary treating physician, Dr. Emerson, opined 
 
         that claimant, as a result of the work injury, suffers from a 30% 
 
         permanent partial impairment to the right index finger.  Claimant 
 
         argues that a fusion of the DIP joint constitutes a total loss of 
 
         function of the distal phalanx.  Dr. Emerson, in his letter 
 
         report of September 18, 1986, disagreed.  He stated the 
 
         following:
 
         
 
              I have reviewed our rating scales which we make 
 
              reference to for evaluation of permanent impairment.  
 
              In our scales, there is a difference in percentage of 
 
              impairment between an amputation at the distal 
 
              interphalangeal joint and ankylosis or fusion of that 
 
              joint.  Ms. Scharping has not had an amputation at the 
 
              joint and thereby still has present her distal phalanx.  
 
              However, it is fused at the distal interphalangeal 
 
              joint; that is the joint between the middle and distal 
 
              phalanx bones.  The impairment rating for a fused joint 
 
              in the position which she is fused in is 30% of that 
 
              finger.  Amputation at that joint, thereby losing
 
         
 
         
 
         
 
              the length of the distal phalanx, would result in a 45% 
 
              impairment to that finger.  The 30% impairment applies 
 
              to loss of joint function.  The 45% impairment due to 
 
              amputation takes into account loss of finger length and 
 
              function.  She has lost the use of her distal 
 
              interphalangeal joint.  She still has the length of 
 
              that bone but not the functional use of the joint.
 
         
 
              Dr. Emerson's views are uncontroverted in the record.
 
         
 
                          CONCLUSIONS OF LAW
 
         
 
              Claimant must establish by a preponderance of the evidence 
 
         the extent of weekly benefits for permanent disability to which 
 
         claimant is entitled.  Permanent partial disabilities are 
 

 
         
 
         
 
         
 
         SCHARPING V. ALEXANDER MANUFACTURING CO.
 
         Page   3
 
         
 
         
 
         classified as either scheduled or unscheduled.  A specific 
 
         scheduled disability is evaluated by the functional method; the 
 
         industrial method is used to evaluate an unscheduled disability. 
 
         Martin v. Skelly Oil Co., 252 Iowa 128, 133, 106 N.W.2d 95, 98 
 
         (1960); Graves v. Eagle Iron Works, 331 N.W.2d 116 (Iowa 19B3); 
 
         Simbro v. DeLong's Sportswear, 332  N.W.2d 886, 997 (Iowa 1983). 
 
          When the result of an injury is loss to a scheduled member, the 
 
         compensation payable is limited to that set forth in the 
 
         appropriate subdivision of Code section 85.34(2). Barton v. 
 
         Nevada Poultry Co., 253 Iowa 285, 110 N.W.2d 660 (1961).  "Loss 
 
         of use" of a member is equivalent to "loss" of the member.  Moses 
 
         v. National Union C.M. Co., 194 Iowa 819, 184 N.W. 746 (1922).  
 
         Pursuant to Code section 89.34(2)(u) the industrial commissioner 
 
         may equitably prorate compensation payable in those cases wherein 
 
         the loss is something less than that provided for in the 
 
         schedule.  Blizek v. Eagle Signal Company, 164 N.W.2d 84 (Iowa 
 
         1969).
 
         
 
              Based upon a finding of a 30% loss of use of the right index 
 
         finger, claimant is entitled as a matter of law to 10.5 weeks of 
 
         permanent partial disability benefits under Iowa Code section 
 
         85.34(2)(b) which is 30% of the 45 weeks allowable for an injury 
 
         to the index or first finger in that subsection.  It was 
 
         stipulated that claimant was paid this amount of permanent 
 
         partial disability benefits in April, 1986.
 
         
 
              Claimant argues that she should be entitled as a matter of 
 
         law to 50% of the index finger under section 85.34(2)(f) which 
 
         states that the loss of the first distal phalange shall equal the 
 
         loss of one-half of a finger.  However, the undersigned agrees 
 
         with Dr. Emerson in that the loss by amputation is not equivalent 
 
         to a loss by fusion of the DIP joint.  It is apparent that Dr. 
 
         Emerson was making reference to the AMA or similar guidelines for 
 
         rating impairments.  In the AMA guide, impairment of the finger 
 
         by fusion of the DIP joint can be from 30-45% depending upon the 
 
         position of the fused distal phalange.  See Guides to the 
 
         Evaluation of Permanent Impairment, Second Edition, American 
 
         Medical Association, page 6.
 
         
 
              Claimant argues that she should be entitled to interest 
 
         between the time of the termination of her healing period and the 
 
         time she was paid permanent partial disability benefits in April, 
 
         1986.  On this issue, claimant is correct.  Iowa Code section 
 
         85.34(2) states that permanent partial disability benefits should 
 
         begin at the termination of the healing period.  The Iowa Supreme 
 
         Court has ruled that interest upon permanent partial disability 
 
         benefits begins at that time.  Teel v. McCord, 394 N.W.2d 405 
 
         (Iowa 1986); Farmers Elevator Company v. Manning, 286 N.W.2d 174 
 
         (Iowa 1979).  Defendant argues that Dr. Emerson did not give an 
 
         impairment rating until April, 1986 and that they should not be 
 
         expected to pay interest before they know the full extent of the 
 
         impairment.  This argument was rejected in Teel, 394 N.W.2d 407.  
 
         As in Teel there was no question that clailmant would suffer some 
 
         extent of permanent impairment from the fusion on January 15, 
 
         1986, two weeks before the end of healing period.  A defendant 
 
         should not delay the payment of benefits simply because the full 
 
         extent of the impairment is not known.
 
         
 
              Claimant seeks reimbursement for the costs of a report from 
 

 
         
 
         
 
         
 
         SCHARPING V. ALEXANDER MANUFACTURING CO.
 
         Page   4
 
         
 
         
 
         Dr. Emerson, exhibit 5. This request is appropriate under 
 
         Division of Industrial Services Rule 343-4.33.
 
         
 
                                   ORDER
 
         
 
              1.  Defendants shall pay to claimant interest at the 
 
         statutory rate upon ten point five (10.5) weeks of permanent 
 
         partial disability benefits at the rate of one hundred eighteen 
 
         and 22/100 dollars ($118.22) per week from January 28, 1986 until 
 
         the time claimant actually received those benefits in April, 
 
         1986.
 
         
 
              2.  Defendants shall pay the costs of this action pursuant 
 
         to Division of Industrial Services Rule 343-4.33. Specifically 
 
         the sum of thirty five dollars ($35.00) shall be paid to claimant 
 
         for the cost of Dr. Emerson's September, 1986 report and 
 
         defendants are ordered to pay this amount accordingly.
 
         
 
              3. Defendants shall file Claim Activity Reports of the 
 
         payment of this award as requested by the agency pursuant to 
 
         Division of Industrial Services Rule 343-3.1.
 
         
 
              4.  This matter shall be set back into assignment for 
 
         pre-hearing and hearing on the extent of additional permanent 
 
         disability benefits to which claimant may be entitled for an 
 
         alleged unreasonable delay in the commencement of benefits under 
 
         Iowa Code section 86.13.
 
         
 
         
 
         
 
         
 
         
 
              Signed and filed this 19th day of August 1987.
 
         
 
         
 
         
 
                                       LARRY P. WALSHIRE
 
                                       DEPUTY INDUSTRIAL COMMISSIONER
 
         
 
         Copies To:
 
         
 
         Mr. Robert S. Kinsey III
 
         Attorney at Law
 
         214 North Adams
 
         P.O. Box 679
 
         Mason City, Iowa 50401
 
         
 
         Mr. Michael A. McEnroe
 
         Attorney at Law
 
         3151 Brockway Road
 
         P.O. Box 810
 
         Waterloo, Iowa 50704
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                                 1803, 3800
 
                                                 Filed August 19, 1987 
 
                                                 LARRY P. WALSHIRE
 
         
 
                    BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         _________________________________________________________________
 
         
 
         RACHELLE R. SCHARPING,
 
         
 
              Claimant,
 
                                                      File No. 808823
 
         VS.
 
         
 
         ALEXANDER MANUFACTURING CO.,
 
                                                 A R B I T R A T I 0 N 
 
              Employer,
 
         
 
         and
 
                                                      D E C I S I 0 N
 
         KEMPER GROUP,
 
              Insurance Carrier,
 
              Defendants.
 
         _________________________________________________________________
 
         
 
         1803
 
         
 
              It was held that a fusion of the DIP joint did not 
 
         constitute a total loss of the distal phalange thereby invoking 
 
         the provisions of Iowa Code section 85.34(2)(f). Consequently, 
 
         claimant was awarded permanent partial disability benefits for a 
 
         30% loss of function to the first finger.
 
         
 
         3800
 
         
 
              Despite the fact that the final impairment rating was not 
 
         given by the doctor until 1986, interest was awarded to claimant 
 
         on permanent partial disability benefits from the date of the end 
 
         of her healing period on January 28, 1986.  As in the Teel v. 
 
         McCord case there was no question that claimant would suffer some 
 
         degree of permanent impairment from a fusion surgery occurring 
 
         prior to the termination of claimant's healing period.