BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         LINDA V. MORSE,
 
                                                     File No. 813735
 
              Claimant,
 
                                                       A P P E A L
 
         vs.
 
                                                     D E C I S I O N
 
         CHAMPION GLOVE MFG. CO.,
 
         
 
              Employer,                                 F I L E D
 
         
 
         and                                           OCT 17 1989
 
         
 
         EMPLOYERS MUTUAL CASUALTY                 INDUSTRIAL SERVICES
 
         COMPANY,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
                             STATEMENT OF THE CASE
 
         
 
              Defendants appeal from an arbitration decision awarding 
 
         permanent partial disability benefits as the result of an alleged 
 
         injury on May 10, 1985.  The record on appeal consists of the 
 
         transcript of the arbitration hearing and claimant's exhibits A 
 
         through E.  Both parties filed briefs on appeal.  Defendants 
 
         filed a reply brief.
 
         
 
                                      ISSUES
 
         
 
              Defendants state that following issues on appeal:
 
         
 
              1.  The deputy erroneously substituted his judgement for the 
 
         medical opinion of Dr. Burrows when the deputy concluded that 
 
         claimant's underlying asthma was caused by exposure to dust in 
 
         the work environment.
 
         
 
              2.  There is no competent medical evidence in the record 
 
         that claimant's condition of asthma was caused by exposure to 
 
         dust in the work environment.
 
         
 
              3.  There is no medical evidence in the record that 
 
         claimant's preexisting asthmatic condition was permanently 
 
         aggravated, exacerbated, or lighted up by exposure to elements in 
 
         the work environment.
 
         
 
              4.  Where a preexisting or personal medical condition makes 
 
         an individual incompatible with activity in the work environment, 
 
         the claimant is not entitled to permanent disability benefits.
 
         
 
                                                
 
                                                         
 
              Claimant states the following issues on cross-appeal:
 
         
 
              1.  Whether or not Claimant sustained an injury that arose 
 
         out of and in the course of employment.
 
         
 
              2.  Claimant's entitlement as a result of her injury.
 
         
 
                            REVIEW OF THE EVIDENCE
 
         
 
              The arbitration decision adequately and accurately reflects 
 
         the pertinent evidence and it will not be set forth herein.
 
         
 
                               APPLICABLE LAW
 
         
 
              The citations of law in the arbitration decision are 
 
         appropriate to the issues and the evidence.
 
         
 
                                  ANALYSIS
 
         
 
              Defendants allege that the deputy improperly disregarded the 
 
         medical evidence of Donald Burrows, M.D.  Dr. Burrows testified 
 
         that claimant's exposure to dust at her employment did not cause 
 
         her asthma, but rather aggravated a preexisting asthma condition. 
 
         The issues on appeal are whether the dust exposure on May 10, 
 
         1985 aggravated claimant's preexisting asthma; whether that 
 
         aggravation was permanent or temporary; and, if permanent, the 
 
         extent of the disability claimant now has as a result of that 
 
         aggravation.
 
         
 
              Claimant was compelled to leave work on May 15, 1985, due to 
 
         an asthma attack.  Claimant was hospitalized.  Upon her release 
 
         from the hospital on May 21, 1985, claimant returned to work but 
 
         after four hours began experiencing problems again.  Dr. Burrows 
 
         attributed claimant's attacks to her work environment.  Claimant 
 
         has clearly shown that on May 15, 1985, and on May 21, 1985, her 
 
         asthma was aggravated by her work environment.
 
         
 
              Although claimant has shown an aggravation of her condition, 
 
         there is no showing that the aggravation was permanent.  Dr. 
 
         Burrows clearly stated that if an aggravation occurred, it was 
 
         not permanent.  His description of the nature of asthma, and his 
 
         comments that after the exposure is terminated, the airways will 
 
         unswell and return to normal, indicate that claimant's 
 
         aggravation was temporary in nature.  This is corroborated by his 
 
         release of claimant to return to work and his statement that her 
 
         asthmatic reaction had reversed itself.  When claimant attempted 
 
         to return to work, she again experienced breathing difficulty.  
 
         There is no testimony from Dr. Burrows that this second reaction 
 
         was because claimant's asthma had been permanently aggravated by 
 
         the first exposure.  It is just as likely that claimant's 
 
         preexisting asthma again reacted to the dust exposure at work, 
 
         resulting in another period of temporary impairment.
 
         
 
              Dr. Burrows then advised claimant not to return to her work 
 
         environment.  Claimant had been diagnosed as asthmatic at least 
 
                                                
 
                                                         
 
         eight years prior to her May 10, 1985 exposure.  She had been 
 
         treated for that condition intermittently since then.  There is 
 
         testimony in the record that other everyday substances outside of 
 
         claimant's work environment also caused claimant to have 
 
         asthmatic reactions.  Although claimant had worked for defendants 
 
         for many years prior to her reaction on May 10, 1985, without a 
 
         prior incident of asthmatic reaction to dust at work, claimant 
 
         clearly had been treated for asthma for many years.  Claimant now 
 
         has a medical restriction not to work in a dusty environment such 
 
         as she worked in at Champion.  There is no medical evidence to 
 
         indicate whether this restriction is the result of the incident 
 
         on May 10, 1985, or whether it is yet another manifestation of 
 
         her asthmatic condition which preexisted her work incident of May 
 
         10, 1985. Claimant bears the burden of proof.  It would be 
 
         speculation to assume that the inability to work in a dusty 
 
         environment came about as a result of the May 10, 1985, incident 
 
         in the absence of medical testimony so indicating.  Claimant 
 
         worked at various jobs with defendant employer.  The mere absence 
 
         of such an incident prior to May 10, 1985 is insufficient to 
 
         carry claimant's burden to show she has suffered a permanent 
 
         disability as a result of the May 10, 1985 incident.
 
         
 
              Claimant cites Blacksmith v. All-American, Inc., 290 N.W.2d 
 
         348, 354 (Iowa 1980) and argues that because claimant has now 
 
         found that she can no longer work for defendant employer because 
 
         of her asthma, she is entitled to benefits.  However, where, as 
 
         here, the condition that necessitates the change in employment 
 
         has not been shown to have been caused by a work exposure, 
 
         claimant is at most entitled to temporary disability benefits 
 
         only.  Robinson v. Marting Manufacturing, Inc., I-4 State of Iowa 
 
         Industrial Commissioner Decisions 1050, Appeal Decision, June 24, 
 
         1985. Claimant has shown entitlement to temporary total 
 
         disability only.
 
         
 
                               FINDINGS OF FACT
 
         
 
              1.  On May 10, 1985, claimant suffered a severe asthmatic 
 
         attack as a result of exposure to dust at work.
 
         
 
              2.  Claimant had been diagnosed and treated for asthma prior 
 
         to May 10, 1985.
 
         
 
              3.  Claimant returned to work and again experienced an 
 
         asthma attack.
 
         
 
              4.  The medical evidence establishes that claimant's asthma 
 
         was temporarily aggravated by the May 10, 1985 incident.
 
         CONCLUSION OF LAW
 
         
 
              Claimant has established entitlement to temporary total 
 
         disability.
 
         
 
              Claimant has failed to establish that she suffered a work 
 
         injury on May 10, 1985 that resulted in permanent disability.
 
         
 
                                                
 
                                                         
 
              WHEREFORE, the decision of the deputy is affirmed and 
 
         modified.
 
         
 
                                   ORDER
 
         
 
              THEREFORE, it is ordered:
 
         
 
              That defendants shall pay to claimant temporary total 
 
         disability from May 10, 1985 through May 21, 1985 at the rate of 
 
         two hundred thirty-five and no/100 dollars ($235.00) per week.
 
         
 
              That defendants shall pay accrued weekly benefits in a lump 
 
         sum.
 
         
 
              That defendants shall pay interest on benefits awarded 
 
         herein as set forth in Iowa Code section 85.30.
 
         
 
              That claimant shall pay costs of this action pursuant to 
 
         Division of Industrial Services Rule 343-4.33.
 
         
 
              That defendants shall file activity reports on the payment 
 
         of this award as requested by this agency pursuant to Division of 
 
         Industrial Services Rule 343-3.1.
 
         
 
              Signed and filed this 17th day of October, 1989.
 
 
 
                                   
 
                                                         
 
         
 
         
 
         
 
         
 
                                               DAVID E. LINQUIST
 
                                            INDUSTRIAL COMMISSIONER
 
         
 
         Copies To:
 
         
 
         Mr. Robert W. Pratt
 
         Attorney at Law
 
         1913 Ingersoll
 
         Des Moines, Iowa  50309-3320
 
         
 
         Mr. Cecil L. Goettsch
 
         Mr. Brian L. Campbell
 
         Attorneys at Law
 
         1100 Des Moines Bldg.
 
         Des Moines, Iowa  50309-2464
 
 
 
         
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                            5-2206
 
                                            Filed October 17, 1989
 
                                            DAVID E. LINQUIST
 
         
 
                  BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         LINDA V. MORSE,
 
         
 
              Claimant,
 
                                                    File No. 813735
 
         vs.
 
         
 
         CHAMPION GLOVE MFG. CO.,                      A P P E A L
 
         
 
              Employer,
 
                                                    D E C I S I 0 N
 
         and
 
         
 
         EMPLOYERS MUTUAL CASUALTY
 
         COMPANY,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         5-2206
 
         
 
              Claimant failed to show that her preexisting asthma was 
 
         permanently aggravated by her exposure to dust at work.  
 
         Temporary disability benefits only were awarded.
 
         
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
                                                
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                    BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         LINDA V. MORSE,
 
         
 
              Claimant,
 
                                                    FILE NO. 813735
 
         VS.
 
                                                A R B I T R A T I 0 N
 
         CHAMPION GLOVE MFG. CO.,
 
                                                    D E C I S I 0 N
 
              Employer,
 
         
 
         and
 
         
 
         EMPLOYERS MUTUAL CASUALTY
 
         COMPANY,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         
 
                              STATEMENT OF THE CASE
 
         
 
              This is a proceeding in arbitration brought by Linda V. 
 
         Morse, claimant, against Champion Glove Manufacturing Company, 
 
         employer (hereinafter referred to as Champion), and Employers 
 
         Mutual Casualty Company, insurance carrier, for workers' 
 
         compensation benefits as a result of an alleged injury on May 10, 
 
         1985.  On March 25, 1988, a hearing was held on claimant's 
 
         petition and the matter was considered fully submitted at the 
 
         close of this hearing.
 
         
 
              The parties have submitted a prehearing report of contested 
 
         issues and stipulations which was approved and accepted as a part 
 
         of the record of this case at the time of hearing.  Oral 
 
         testimony was received during the hearing only from claimant.  
 
         The exhibits received into the evidence at the hearing are listed 
 
         in the prehearing report.  According to the prehearing report, 
 
         the parties have stipulated to the following matters:
 
         
 
              1.  Claimant's rate of weekly compensation in the event of 
 
         an award of weekly benefits from this proceeding shall be 
 
         $235.00.
 
         
 
              2.  If the injury is found to have caused permanent 
 
         disability, the type of disability is an industrial disability to 
 
         the body as a whole.
 
         
 
                                      ISSUES
 
         
 
              The parties submit the following issues for determination in 
 
         this proceeding:
 
              
 
              I.  Whether claimant received an injury or an occupational 
 
         disease arising out of and in the course of employment;
 
         
 
              II. Whether there is a causal relationship between the work 
 
         injury or disease and the claimed disability; and,
 
         
 
            III.  The extent of weekly disability benefits to which 
 

 
         
 
         
 
         
 
         MORSE V. CHAMPION GLOVE MFG. CO.
 
         Page   2
 
         
 
         claimant is entitled.
 
         
 
         
 
                             SUMMARY OF THE EVIDENCE
 
         
 
              The following is a summary of the evidence presented in this 
 
         case.  For the sake of brevity, only the evidence most pertinent 
 
         to this decision is discussed.  Whether or not specifically 
 
         referred to in this summary, all of the evidence received at the 
 
         hearing was considered in arriving at this decision.  As will be 
 
         the case in any attempted summarization, conclusions about what 
 
         the evidence offered may show are inevitable.  Such conclusions, 
 
         if any, in the following summary should be considered as 
 
         preliminary findings of fact.
 
         
 
              Claimant testified that she worked for Champion from 
 
         February 18, 1971 until the latter part of May, 1985, at which 
 
         time she quit upon the advice of her physician.  Claimant has 
 
         held more than one job at Champion but primarily she was a 
 
         "cutter" and a sewing machine operator.  Champion manufactures 
 
         sport gloves such as leather gloves to use to play golf.  
 
         Claimant's job involved the cutting and sewing of leather used to 
 
         make these gloves.  Claimant testified that she was earning $9.10 
 
         per hour ($375.00 per week) in her job before she left in May, 
 
         1985.
 
         
 
              Claimant testified that her work at Champion involved 
 
         working in a very dusty environment from handling the leather 
 
         used in the manufacturing process and that the "chalk" dust was 
 
         visible.  Claimant testified that on May 15, 1985, she was 
 
         hospitalized for a severe asthma attack consisting of shortness 
 
         of breath, coughing and running of the nose.  Claimant was 
 
         treated by Donald Burrows, M.D., a specialist in pulmonary care 
 
         (lungs and breathing mechanisms).  Dr. Burrows related the attack 
 
         to the dust at work noting a prior diagnosis eight years previous 
 
         for asthma and intermittent treatment since that time.  Treatment 
 
         by Dr. Burrows consisted of rest and increase in medication.  
 
         Claimant was also placed on a "nebulizerO machine which is a 
 
         device to nebulize medicine and blow the medicine into the 
 
         bronchial tubes and lungs.  After her release from the hospital 
 
         on May 21, 1985, claimant testified that she returned to work for 
 
         approximately four hours and again experienced breathing 
 
         difficulties with coughing and she returned home to use the 
 
         nebulizer.  Claimant has had continuing problems since that time.  
 
         Claimant has not returned to work at Champion upon the advice of 
 
         Dr. Burrows.
 
         
 
         
 
              Dr. Burrows continued treatment of claimant and she was 
 
         again hospitalized in June, 1985, after awaking one morning with 
 
         another asthma attack.  Dr. Burrows' treatment lasted until 
 
         February, 1986.  Since that time, claimant has been admitted to 
 
         the emergency rooms of various hospitals on three occasions to 
 
         receive shots and other treatment to control episodes of asthma 
 
         attacks.  The most recent episode occurred in December, 1987, 
 
         while she was baking pies for Christmas.  Claimant attributes 
 
         this episode to the baking flour in the air at the time.  
 
         Claimant also has no real explanation as to the precipitating 
 
         factors in the other attacks.
 
         
 

 
         
 
         
 
         
 
         MORSE V. CHAMPION GLOVE MFG. CO.
 
         Page   3
 
         
 
              In his deposition, Dr. Burrows opines that claimant has not 
 
         suffered a permanent injury to her lungs as a result of the dust 
 
         exposure at Champion.  The doctor notes that what may appear 
 
         dusty and dirty to asthmatics may not be dusty and dirty to 
 
         nonasthmatics.  The doctor describes claimant's asthma episode at 
 
         Champion as an aggravation of a preexisting asthmatic condition.  
 
         The doctor explained that although he does not believe that 
 
         claimant was exposed to any specific chemicals, he believes that 
 
         the dust exposure set up an irritation of the bronchial tubes in 
 
         claimant's lungs and this irritation caused her to have increased 
 
         sensitivity and susceptibility to asthma attacks from lesser 
 
         concentrations of dust or other items or from physical activity.  
 
         When asked whether this aggravation has any permanency, the 
 
         doctor felt that he expects claimant's aggravation to be fully 
 
         reversed by modification in medications and removal of claimant 
 
         from dusty environments.  He has specifically prohibited claimant 
 
         from working in any dusty work or play environments.  In response 
 
         to a specific question on whether the aggravation was permanent 
 
         the doctor responsed in his deposition as follows:
 
         
 
                   A.  I'm not sure.  And the reason being is I have 
 
              asthmatics who can't work, who are disabled because we 
 
              cannot fully reverse their disease, and it seems we have 
 
              done everything we can possible to rid them of various 
 
              exposures.  So that in Linda MorseO case I would summarize 
 
              she has very bad asthma that puts her at great risk for 
 
              having problems with breathing in any type of dusty 
 
              environment, that theoretically outside the dusty 
 
              environment she should do well on the medication.  But that 
 
              doesn't take into account that when she gets older her 
 
              asthma may get harder to control.  It may not become 
 
              reversible.  Other factors may develop that cause her 
 
              problems.  It is not something that stays exactly the same 
 
              way all the time.
 
         
 
                   The analogy is good from the point of view -- maybe the 
 
              point of view back then; but, generally our bad asthmatics, 
 
              they would not qualify.  I wouldn't say that the only 
 
              problem she had was her work environment.  I think it 
 
              contributed to her problem.  I don't think if you remove her 
 
              from the work environment she no longer has a problem with 
 
              that.  I would not make that statement.
 
         
 
                 Q.  Because?
 
         
 
                 A.  Because she has asthma.  She has a tendency to react 
 
              to various things.  This discussion we are having, let me 
 
              tell you, is debated what asthma is and what it means with 
 
              lung doctors in lung conferences.  It seems so simple but it 
 
              is very complex, what is defined as asthma and what we call 
 
              asthma and what it can do and not do.
 
         
 
                 If somebody has coronary artery disease, in other words, 
 
              they have angina, the flow to their heart is decreased and 
 
              when they exercise they get chest pain and potentially get a 
 
              heart attack.  If their job is chasing after dogs, well, 
 
              they're going to have a lot of pain when they chase the 
 
              dogs.  Take them away from that job and put them at a desk 
 
              job, they still have the coronary artery disease; but you 
 
              have taken them away from the environment that makes it 
 

 
         
 
         
 
         
 
         MORSE V. CHAMPION GLOVE MFG. CO.
 
         Page   4
 
         
 
              worse, in a sense.
 
         
 
                 Q.  And the chasing of dogs didn't cause the coronary 
 
              artery disease?
 
         
 
                 A. Correct.
 
         
 
                 Q. It just --
 
         
 
                 A. It could cause the heart attack in a sense 
 
              precipitated on top of the coronary artery disease but 
 
              didn't cause the underlying condition.
 
         
 
                 Q.  And the same thing is true in this case?
 
         
 
                 A.  Yes.
 
         
 
                 Q. The work environment of Linda Morse isn't the cause?
 
         
 
                 A.  I don't think so.
 
         
 
              Claimant does not dispute that she was diagnosed as an 
 
         asthmatic prior to May, 1985, but denies any lost time due to 
 
         asthmatic problems before May, 1985.  She states that she also 
 
         has been troubled by dust in her nonemployment activities and 
 
         gave up horseback riding in 1983 because of her asthmatic 
 
         condition.
 
         
 
              Claimant is 39 years of age and is a high school graduate.  
 
         Claimant testified that she has average academic skills.  Prior 
 
         to working for Champion claimant was involved in various jobs in 
 
         manufacturing plants at minimum wage.  According to vocational 
 
         assessments made by the State Vocational Rehabilitation Agency, 
 
         claimant performs at the eighth to tenth grade level in math, 
 
         reading and spelling; at the 90th percentile level in space 
 
         relation; and at the 100 percent level in ruler measurement.  
 
         Claimant also possesses good people skills and potential for 
 
         retraining in accounting and computer operation.  According to 
 
         Marion Jacobs, a vocational rehabilitation consultant, claimant 
 
         has potential to fill such jobs as receptionist, various clerk 
 
         positions and telephone sales earning from $4.35 per hour to 
 
         $8.00 per hour.  Jacobs states that if she could find a dust free 
 
         manufacturing environment, she could use her manufacturing skills 
 
         to earn from $6.25 per hour to $12.59 per hour.  It was the 
 
         opinion of Jacobs that claimant could return to work as a sewing 
 
         machine operator at Champion.  This opinion was based upon her 
 
         observation that it was not dusty at Champion.
 
         
 
              Since September, 1987, claimant has worked as a sewing 
 
         machine operator of textile products and gun cases in a 
 
         manufacturing environment that is dust free.  Claimant testified 
 
         that if she were physically able to return to her cutter job at 
 
         Champion she would be making $10.50 per hour.
 
         
 
              Claimant's appearance and demeanor at the hearing indicated 
 
         that she was testifying truthfully.
 
         
 
         
 
                           APPLICABLE LAW AND ANALYSIS
 
         
 

 
         
 
         
 
         
 
         MORSE V. CHAMPION GLOVE MFG. CO.
 
         Page   5
 
         
 
              I.  Claimant has the burden of proving by a preponderance of 
 
         the evidence that claimant received an injury which arose out of 
 
         and in the course of employment.  The words "out of" refer to the 
 
         cause or source of the injury.  The words "in the course of" 
 
         refer to the time and place and circumstances of the injury.  
 
         See Cedar Rapids Community Sch. v. Cady, 278 N.W.2d 298 (Iowa 
 
         1979); Crowe v. DeSoto Consol. Sch. Dist., 246 Iowa 402, 68 
 
         N.W.2d 63 (1955).  An employer takes an employee subject to any 
 
         active of dormant health impairments, and a work connected injury 
 
         which more than slightly aggravates the condition is considered 
 
         to be a personal injury.  Ziegler v. United States Gypsum Co., 
 
         252 Iowa 613, 620, 106 N.W.2d 591 (1960) and cases cited 
 
         therein.
 
         
 
              There is little question in this case that claimant has 
 
         shown at least a work injury whether there is permanent effects 
 
         or not in the form of an aggravation of a preexisting asthmatic 
 
         condition.  The causal connection views of Dr. Burrows on the 
 
         relation of claimant's dust at work to her problems is only 
 
         controverted by the observations of Marion Jacobs that she felt 
 
         that the environment was dust free.  As pointed out by Dr. 
 
         Burrows, what may be clean to a nonasthmatic may very well be a 
 
         different story for an asthmatic.
 
         
 
              Claimant argues in the alternative for benefits under 
 
         Chapter 85A due to an occupational disease.  However, claimant 
 
         failed to show that the dust to which claimant was exposed was 
 
         more prevalent at Champion then in other occupations or in every 
 
         day life.  Consequently, no occupational disease could be found. 
 
         McSpadden v. Big Ben Coal Co., 288 N.W.2d 181, 190 (Iowa 1980).
 
         
 
              II.  The claimant has the burden of proving by a 
 
         preponderance of the evidence that the work injury is a cause of 
 
         the claimed disability.  A disability may be either temporary or 
 
         permanent.  In the case of a claim for temporary disability, the 
 
         claimant must establish that the work injury was a cause of 
 
         absence from work and lost earnings during a period of recovery 
 
         from the injury.  Generally, a claim of permanent disability 
 
         invokes an initial determination of whether the work injury was a 
 
         cause of permanent physical impairment or permanent limitation in 
 
         work activity.  However, in some instances, such as a job 
 
         transfer caused by a work injury, permanent disability benefits 
 
         can be awarded without a showing of a causal connection to a 
 
         physical change of condition.  Blacksmith v. All-American, Inc., 
 
         290 N.W.2d 348, 354 (Iowa 1980); McSpadden, 288 N.W.2d 181 (Iowa 
 
         1980).
 
         
 
              The question of causal connection is essentially within the 
 
         domain of expert medical opinion.  Bradshaw v. Iowa Methodist 
 
         Hospital, 251 Iowa 375, 101 N.W.2d 167 (1960).  The opinion of 
 
         experts need not be couched in definite, positive or unequivocal 
 
         language and the expert opinion may be accepted or rejected, in 
 
         whole or in part, by the trier of fact.  Sondag v. Ferris 
 
         Hardware, 220 N.W.2d 903 (Iowa 1974).  The weight to be given to 
 
         such an opinion is for the finder of fact, and that may be 
 
         affected by the completeness of the premise given the expert and 
 
         other surrounding circumstances.  Bodish v. Fischer, Inc., 257 
 
         Iowa 516, 133 N.W.2d 867 (1965).
 
         
 
              Furthermore, if the available expert testimony is 
 

 
         
 
         
 
         
 
         MORSE V. CHAMPION GLOVE MFG. CO.
 
         Page   6
 
         
 
         insufficient alone to support a finding of causal connection, 
 
         such testimony may be coupled with nonexpert testimony to show 
 
         causation and be sufficient to sustain an award.  Giere v. Aase 
 
         Haugen Homes, Inc., 259 Iowa 1065, 146 N.W.2d 911, 915 (1966). 
 
         Such evidence does not, however, compel an award as a matter of 
 
         law.  Anderson v. Oscar Mayer & Co., 217 N.W.2d 531, 536 (Iowa 
 
         1974).  To establish compensability, the injury need only be a 
 
         significant factor, not be the only factor causing the claimed 
 
         disability.  Blacksmith, 290 N.W.2d 348, 354.  In the case of a 
 
         preexisting condition, an employee is not entitled to recover for 
 
         the results of a preexisting injury or disease but can recover 
 
         for an aggravation thereof which resulted in the disability found 
 
         to exist.  Olson v. Goodyear Service Stores, 255 Iowa 1112, 125 
 
         N.W.2d 251 (1963).
 
         
 
              The obvious fighting issue in the case sub judice is whether 
 
         claimant has suffered permanent effects from the aggravation 
 
         injury.  The views of Dr. Burrows that claimant has no permanent 
 
         damage to her lungs or bronchial tubes is uncontroverted and 
 
         accepted.  However, to conclude from the doctor's statements in 
 
         his deposition that he believes to a medical certainty that 
 
         claimant has not suffered permanent effects or impairment from 
 
         the acute attack of May, 1985, is incorrect.  The doctor, 
 
         approaching the problem scientifically, is simply unsure 
 
         according to the passages quoted above in his deposition.  The 
 
         doctor clearly stated that dust was a contributing factor to 
 
         claimant's problems.  He described a scenario in which exposure 
 
         leads to an attack which further leads to increased sensitivity 
 
         or susceptibility to future attacks in less hazardous 
 
         environments at work or at home.  Critical to Dr. Burrows' views 
 
         and to the issue of whether claimant has suffered permanency from 
 
         the Champion dust exposure is whether there has been a reversal 
 
         of symptomatology and a reduction of the frequency of her attacks 
 
         after leaving the dusty environment.  It is rather obvious that a 
 
         complete reversal of claimant's symptomatology has not happened.  
 
         Dr. Burrows' analogy to angina pain in the quoted section of his 
 
         deposition is not typical of claimant's situation because 
 
         claimant continued to have difficulties despite leaving the dusty 
 
         environment at Champion.  This deputy commissioner has come to 
 
         the realization in this case that a detailed analysis of each and 
 
         every confusing and conflicting phrase in Dr. Burrows' deposition 
 
         loses sight of an obvious fact.  Claimant worked without lost 
 
         time for almost 14 years at Champion and since the May, 1985, 
 
         episode she has been unable to return to Champion or any other 
 
         dusty environment.  She now, unlike before, has permanent 
 
         restrictions on her work activity no less devastating than a 
 
         restriction against heavy lifting for a manual laborer.  But for 
 
         her episode in May, 1985, she would be working at Champion today.  
 
         Therefore, the greater weight of all the evidence shows that 
 
         claimant has suffered permanent restrictions on the type of work 
 
         she can perform, whether you consider this a  permanent partial 
 
         impairment or not.
 
         
 
              III.  Claimant must establish by a preponderance of the 
 
         evidence the extent of weekly benefits for permanent disability 
 
         to which claimant is entitled.  As the claimant has shown that 
 
         the work injury was a cause of a permanent physical impairment or 
 
         limitation upon activity involving the body as a whole, the 
 
         degree of permanent disability must be measured pursuant to Iowa 
 
         Code section 85.34(2)(u).  However, unlike scheduled member 
 

 
         
 
         
 
         
 
         MORSE V. CHAMPION GLOVE MFG. CO.
 
         Page   7
 
         
 
         disabilities, the degree of disability under this provision is 
 
         not measured solely by the extent of a functional impairment or 
 
         loss of use of a body member.  A disability to the body as a 
 
         whole or an "industrial disability" is a loss of earning capacity 
 
         resulting from the work injury.  Diederich v. Tri-City Railway 
 
         Co., 219 Iowa 587, 593, 258 N.W. 899 (1935).  A physical 
 
         impairment or restriction on work activity may or may not result 
 
         in such a loss of earning capacity.  The extent to which a work 
 
         injury and a resulting medical condition has resulted in an 
 
         industrial disability is determined from examination of several 
 
         factors.  These factors include the employeeOs medical condition 
 
         prior to the injury, immediately after the injury and presently; 
 
         the situs of the injury, its severity and the length of healing 
 
         period; the work experience of the employee prior to the injury, 
 
         after the injury and potential for rehabilitation; the employee's 
 
         qualifications intellectually, emotionally and physically; 
 
         earnings prior and subsequent to the injury; age; education; 
 
         motivation; functional impairment as a result of the injury; and 
 
         inability because of the injury to engage in employment for which 
 
         the employee is fitted.  Loss of earnings caused by a job 
 
         transfer for reasons related to the injury is also relevant.  
 
         Olson, 255 Iowa 1112, 1121, 125 N.W.2d 251, 257 (1963).  See 
 
         Peterson v. Truck Haven Cafe, Inc., (Appeal Decision, February 
 
         28, 1985).
 
         
 
              Claimant's medical condition before the work injury was 
 
         excellent and she had no ascertainable disabilities before May, 
 
         1985.  Claimant was fully able to perform her physical tasks 
 
         before May, 1985.  Claimant's treating physicians have restricted 
 
         claimant's work activities by prohibiting work in a dusty 
 

 
         
 
         
 
         
 
         MORSE V. CHAMPION GLOVE MFG. CO.
 
         Page   8
 
         
 
         environment.  This restriction prevents her from returning to her 
 
         former work or any other work which requires claimant to work in 
 
         a dusty manufacturing environment.  As a result of claimant's 
 
         inability to return to her job at Champion she has suffered a 40 
 
         percent loss of earnings from a comparison of claimantOs current 
 
         earnings to that which she would make had she been working at 
 
         Champion at the present time.
 
         
 
              However, despite this loss of earnings, claimant is not 
 
         physically impaired so long as she remains in a suitable 
 
         environment and can fully perform manufacturing jobs such as the 
 
         one she is performing today.  As pointed out by Jacobs, claimant 
 
         is able to perform numerous jobs in the labor market and will 
 
         probably make more money in the future than her current salary.  
 
         The exclusion of claimant from a certain portion of the labor 
 
         market despite a lack of functional impairment is compensable 
 
         under Chapters 85 or 85A.  Blacksmith, 290 N.W.2d 348 (Iowa 
 
         1980).
 
         
 
              Claimant is 39 years of age and has a high school education. 
 
          Claimant's vocational counselors indicate that she is 
 
         retrainable.
 
         
 
              After examination of all the factors, it is found as a 
 
         matter of fact that she has suffered a 15 percent loss of her 
 
         earning capacity from her work injury.  Based upon such a 
 
         finding, claimant is entitled as a matter of law to 75 weeks of 
 
         permanent partial disability benefits under Iowa Code section 
 
         85.34(2)(u) which is 15 percent of 500 weeks, the maximum 
 
         allowable number of weeks for an injury to the body as a whole in 
 
         that subsection.  As it was found that claimant reached maximum 
 
         healing upon a discharge from the hospital on May 21, 1985, 
 
         benefits will be awarded from May 22, 1985.
 
         
 
              As claimant has established entitlement to permanent partial 
 
         disability benefits, claimant is entitled to weekly benefits for 
 
         healing period under Iowa Code section 85.34 from the date of 
 
         injury until claimant reaches maximum medical improvement.
 
         
 
              Claimant left work on May 10, 1985, due to her asthmatic 
 
         condition and she was discharged from the hospital on May 21, 
 
         1985.  Claimant's asthmatic condition and treatment of that 
 
         condition has remained essentially constant since that time.  
 
         Therefore, claimant is entitled to healing period benefits from 
 
         May 10, 1985 through May 21, 1985.
 
         
 
                                 FINDINGS OF FACT
 
         
 
              1.  Claimant was a credible witness.
 
         
 
              2.  On May 10, 1985, claimant suffered an injury to her 
 
         lungs which arose out of and in the course of her employment with 
 
         Champion.  Claimant suffered a severe asthmatic attack as a 
 
         result of exposure to dust which aggravated a preexisting 
 
         condition.
 
         
 
              3.  The work injury of May 10, 1985, was a cause of a period 
 
         of temporary disability from work beginning on May 10, 1985 and 
 
         ending on May 21, 1985, at which time claimant reached maximum 
 
         healing.  The treatment in the form of medication and other 
 

 
         
 
         
 
         
 
         MORSE V. CHAMPION GLOVE MFG. CO.
 
         Page   9
 
         
 
         modalities prescribed during this hospitalization continues for 
 
         the most part today.  Claimant's condition has remained stable 
 
         since May 21, 1985.
 
         
 
              4.  The work injury of May 10, 1985, was one of the 
 
         significant causes of a permanent restriction against working in 
 
         a dusty or fumy environment.  The dust exposure at Champion 
 
         caused increased sensitivity and susceptibility to asthmatic 
 
         attacks from exposure to anything other than a dust free 
 
         environment.  Although claimant improved after leaving the work 
 
         environment at Champion in May, 1985, she remains on medication 
 
         and other modalities and continues to suffer periodic episodes of 
 
         attacks from relatively minor exposures to dust and other 
 
         activity.
 
         
 
              5.  The work injury of May 10, 1985, was a cause of a 15 
 
         percent loss of earning capacity.  Claimant is unable to return 
 
         to work as a cutter at Champion.  Cutters currently make $10.50 
 
         per hour at Champion.  Claimant currently only earns $6.25 per 
 
         hour in her job as a sewing machine operator.  Claimant has 
 
         suffered a 40 percent loss of actual earnings but she will 
 
         probably make significantly more money in the future.  Claimant 
 
         is retrainable and is able to perform sedentary and clerical work 
 
         or manufacturing work in a suitable environment.  Claimant is 
 
         currently working in a suitable and stable job.
 
         
 
                                CONCLUSIONS OF LAW
 
         
 
              Claimant has established by a preponderance of the evidence 
 
         entitlement to permanent partial disability benefits and healing 
 
         period benefits as awarded below.
 
         
 
                                      ORDER
 
         
 
              1.  Defendants shall pay to claimant seventy-five (75) weeks 
 
         of permanent partial disability benefits at the rate of two 
 
         hundred thirty-five and no/100 dollars ($235.00) per week from 
 
         February 22, 1985.
 
         
 
              2.  Defendants shall pay to claimant healing period benefits 
 
         from May 10, 1985 through May 21, 1985 at the rate of two hundred 
 
         thirty-five and no/100 dollars ($235.00) per week.
 
         
 
              3.  Defendants shall pay accrued weekly benefits in a lump 
 
         sum.
 
         
 
              4.  Defendants shall pay interest on  benefits  awarded 
 
         herein  as set forth in Iowa Code section 85.30.
 
         
 
              5.  Defendants shall pay costs of this action pursuant to 
 
         Division of Industrial Services Rule 343-4.33.
 
         
 
              6.  Defendants shall file activity reports on the payment of 
 
         this award as requested by this agency pursuant to Division of 
 
         Industrial Services Rule 343-3.1.
 
         
 
         
 
              Signed and filed this 29th day of April, 1988.
 
         
 
         
 

 
         
 
         
 
         
 
         MORSE V. CHAMPION GLOVE MFG. CO.
 
         Page  10
 
         
 
         
 
         
 
         
 
         
 
         
 
                                           LARRY P. WALSHIRE
 
                                           DEPUTY INDUSTRIAL COMMISSIONER
 
         
 
         Copies To:
 
         
 
         Mr. Robert W. Pratt
 
         Attorney at Law
 
         1913 Ingersoll
 
         Des Moines, Iowa 50309-3320
 
         
 
         Mr. Cecil L. Goettsch
 
         Mr. Brian L. Campbell
 
         Attorneys at Law
 
         1100 Des Moines Building
 
         Des Moines, Iowa 50309-2464
 
         
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                                    1803
 
                                                    Filed April 29, 1988
 
                                                    LARRY P. WALSHIRE
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         LINDA V. MORSE,
 
         
 
              Claimant,
 
                                                   FILE NO. 813735
 
         vs.
 
                                               A R B I T R A T I 0 N
 
         CHAMPION GLOVE MFG. CO.,
 
                                                  D E C I S I 0 N
 
              Employer,
 
         
 
         and
 
         
 
         EMPLOYERS MUTUAL CASUALTY COMPANY,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         
 
         1803
 
         
 
              Claimant awarded permanent disability benefits for a 15 
 
         percent industrial disability caused by chronic effects stemming 
 
         from a severe episode of an asthma attack at work.  Before her 
 
         severe episode of asthmatic attack caused by dust at work, 
 
         claimant was at work for 14 years in the plant and had no lost 
 
         time as a result of her asthmatic condition.
 
 
 
         
 
         
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            ALLEN F. HARDY,               :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :      File No. 814126
 
            ABELL-HOWELL COMPANY,         :
 
                                          :        A P P E A L
 
                 Employer,                :
 
                                          :      D E C I S I O N
 
            and                           :
 
                                          :
 
            LIBERTY MUTUAL INSURANCE CO., :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
 
 
            
 
 
 
                              STATEMENT OF THE CASE
 
 
 
            
 
 
 
                 Defendants appeal from an arbitration decision awarding 
 
 
 
            permanent total disability benefits as the result of an 
 
 
 
            alleged injury on January 11, 1986.  Claimant cross-appeals.
 
 
 
            
 
 
 
                 The record on appeal consists of the transcript of the 
 
 
 
            arbitration proceeding; claimant's exhibits A through S; and 
 
 
 
            defendants' exhibits D-1 through D-6.  Both parties filed 
 
 
 
            briefs on appeal.  Defendants filed a reply brief.
 
 
 
            
 
 
 
                                      ISSUES
 
 
 
            
 
 
 
                 1.  Whether the deputy erred in finding that there is a 
 
 
 
            causal connection between the alleged injury and claimant's 
 
 
 
            disability.
 
 
 
            
 
 
 
                 2.  Whether the deputy erred by finding that claimant 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            
 
            has a permanent total disability.
 
 
 
            
 
 
 
                 Claimant states the following issue on cross-appeal:
 
 
 
            
 
 
 
                 Claimant's correct weekly benefit rate should be 
 
 
 
            $288.87 per week.
 
 
 
            
 
 
 
                              REVIEW OF THE EVIDENCE
 
 
 
            
 
 
 
                 The arbitration decision adequately and accurately 
 
 
 
            reflects the pertinent evidence and it will not be totally 
 
 
 
            set forth herein. 
 
 
 
            
 
 
 
                 Briefly stated, claimant worked for 25 years as an 
 
 
 
            ironworker.  On January 11, 1986, claimant injured his leg, 
 
 
 
            arm and back in a fall.  Claimant was 55 years old at the 
 
 
 
            time of his injury, and had an eleventh grade education.  
 
 
 
            Claimant's work experience was limited to his work as an 
 
 
 
            ironworker, which required claimant to climb, work in high 
 
 
 
            places, lift, bend, twist, and carry 70 pounds of equipment.
 
 
 
            
 
 
 
                 Following his injury, claimant was treated by several 
 
 
 
            physicians.  Donald Berg, M.D., performed surgery on 
 
 
 
            claimant's leg.  Claimant was then referred to Edward P. 
 
 
 
            Hermann, D.O.  Dr. Hermann performed surgery on claimant's 
 
 
 
            wrists and elbows.  A CT scan of claimant's back ordered by 
 
 
 
            Dr. Hermann showed claimant was suffering from degenerative 
 
 
 
            disk disease with slight nerve root narrowing on the right 
 
 
 
            of L4,5; and a marked degenerative bony spur formation nerve 
 
 
 
            root on the left at L5, S1.  Dr. Hermann attributed 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            
 
            claimant's back condition to his fall.
 
 
 
            
 
 
 
                 Dr. Hermann opined that claimant cannot sit or stand 
 
 
 
            for longer than twenty to thirty minutes, cannot walk beyond 
 
 
 
            4-6 blocks without back pain, and that claimant has 
 
 
 
            permanent restrictions to avoid any bending, stooping or 
 
 
 
            lifting.  Claimant was also advised to avoid riding in motor 
 
 
 
            vehicles to prevent aggravating his back pain.  Dr. Hermann 
 
 
 
            assigned claimant a 25 to 30 percent permanent partial 
 
 
 
            "disability" of the body as a whole.
 
 
 
            
 
 
 
                 Dr. Hermann also recommended that claimant undergo 
 
 
 
            either an epidural block, or a laminectomy.  Claimant 
 
 
 
            refused both types of treatment. 
 
 
 
            
 
 
 
                 Claimant was also seen by David J. Boarini, M.D., a 
 
 
 
            neurosurgeon, at defendants' request.  Dr. Boarini opined 
 
 
 
            that claimant has some limitation in the range of motion for 
 
 
 
            his lower back in all directions, and that claimant's low 
 
 
 
            back pain is due to his osteoarthritis, which was aggravated 
 
 
 
            by his fall.  Dr. Boarini imposed a 50 pound lifting 
 
 
 
            restriction, and avoidance of bending.  Dr. Boarini rated 
 
 
 
            claimant's impairment as three percent "disability of the 
 
 
 
            whole man."  Dr. Boarini also recommended that claimant 
 
 
 
            undergo a myelogram.
 
 
 
            
 
 
 
                 Claimant was also evaluated by David L. Cunningham, 
 
 
 
            M.D., also at defendants' request.  Dr. Cunningham found 
 
 
 
            that claimant exhibited pain in the lumbar area, and that 
 
 
 
            flexion and extension of the lumbar spine were limited to 20 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            
 
            percent of normal limits.  An MRI recommended by Dr. 
 
 
 
            Cunningham showed a bulging or ruptured disc at the L4 level 
 
 
 
            protruding toward the right plus some midline posterior 
 
 
 
            bulging of the L2,3 intervertebral disk.  Dr. Cunningham 
 
 
 
            recommended claimant undergo outpatient lumbar myelography.
 
 
 
            
 
 
 
                 Claimant attempted to return to work, but was initially 
 
 
 
            told no work was available.  Claimant did eventually return 
 
 
 
            to work, but pain in his back prevented him from continuing 
 
 
 
            to work.  
 
 
 
            
 
 
 
                 Claimant was evaluated by vocational rehabilitation 
 
 
 
            specialist George Brian Paprocki.  Paprocki opined that 
 
 
 
            based on claimant's inability to work for eight hours and 
 
 
 
            the fact that claimant's skills as a welder and ironworker 
 
 
 
            did not transfer to a sedentary occupation, claimant was 
 
 
 
            unemployable.  H. Shelby Swain, another vocational 
 
 
 
            rehabilitation consultant, opined that claimant preferred to 
 
 
 
            be working but had perhaps given up looking for work in 
 
 
 
            light of his physical limitations.
 
 
 
            
 
 
 
                 Claimant's earnings with the defendant employer were as 
 
 
 
            follows:
 
 
 
            
 
 
 
                 w/e 10/19/85                       120.00
 
 
 
                 w/e 10/26/85                       ------
 
 
 
                 w/e 11/02/85                       ------
 
 
 
                 w/e 11/09/85                        60.00
 
 
 
                 w/e 11/16/85                       496.00
 
 
 
                 w/e 11/23/85                       620.00
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            
 
                 w/e 11/30/85                       372.00
 
 
 
                 w/e 12/07/85                       620.00
 
 
 
                 w/e 12/14/85                       651.00
 
 
 
                 w/e 12/21/85                       372.00
 
 
 
                 w/e 12/28/85                       201.50
 
 
 
                 w/e 01/04/86                       ------
 
 
 
                 w/e 01/11/86                       209.25
 
 
 
            
 
 
 
                                  APPLICABLE LAW
 
 
 
            
 
 
 
                 The citations of law in the arbitration decision are 
 
 
 
            appropriate to the issues and the evidence.  In addition, 
 
 
 
            the following authorities are noted:
 
 
 
            
 
 
 
                 An unreasonable refusal of proffered medical benefits 
 
 
 
            can result in a loss of weekly benefits.  Johnson v. 
 
 
 
            Tri-City Fabricating & Welding Co., 33rd Biennial Report of 
 
 
 
            the Iowa Industrial Commissioner 179 (Appeal Decision 1977).
 
 
 
            
 
 
 
                 Failure to undergo surgery which carries some 
 
 
 
            significant risk and the outcome of which is not altogether 
 
 
 
            certain does not represent an unreasonable refusal of 
 
 
 
            medical care.  Arnaman v. Mid-American Freight Lines, I-3 
 
 
 
            Iowa Industrial Commissioner Decisions 497 (1985); Barkdoll 
 
 
 
            v. American Freight System, Inc., Appeal Decision, June 28, 
 
 
 
            1988.
 
 
 
            
 
 
 
                 Iowa Code sections 85.36(6) and (7) state in part:
 
 
 
            
 
 
 
                 6.  In the case of an employee who is paid on a 
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
                 
 
                 daily, or hourly basis, or by the output of the 
 
 
 
                 employee, the weekly earnings shall be computed by 
 
 
 
                 dividing by thirteen the earnings, not including 
 
 
 
                 overtime or premium pay, of said employee earned 
 
 
 
                 in the employ of the employer in the last 
 
 
 
                 completed period of thirteen consecutive calendar 
 
 
 
                 weeks immediately preceding the injury.
 
 
 
            
 
 
 
                 7.  In the case of an employee who has been in the 
 
 
 
                 employ of the employer less than thirteen calendar 
 
 
 
                 weeks immediately preceding the injury, the 
 
 
 
                 employee's weekly earnings shall be computed under 
 
 
 
                 subsection 6, taking the earnings, not including 
 
 
 
                 overtime or premium pay, for such purpose to be 
 
 
 
                 the amount the employee would have earned had the 
 
 
 
                 employee been so employed by the employer the full 
 
 
 
                 thirteen calendar weeks immediately preceding the 
 
 
 
                 injury and had worked, when work was available to 
 
 
 
                 other employees in a similar occupation.
 
 
 
            
 
 
 
                                     ANALYSIS
 
 
 
            
 
 
 
                 The first issue on appeal is whether claimant has 
 
 
 
            carried his burden to show that his present condition is 
 
 
 
            causally connected to his work injury.  Dr. Hermann opined 
 
 
 
            that claimant's present back condition was the result of 
 
 
 
            claimant's fall at work.  Dr. Boarini stated that it was his 
 
 
 
            opinion that claimant's fall did aggravate his preexisting 
 
 
 
            osteoarthritis, but that this aggravation later stabilized, 
 
 
 
            followed by further natural degeneration.  When questioned 
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
            
 
            on this point in his deposition, Dr. Hermann expressed the 
 
 
 
            belief that claimant's present back problems were not the 
 
 
 
            result of natural degeneration, but rather were caused by 
 
 
 
            trauma.  Dr. Berg also testified that claimant's back 
 
 
 
            condition was caused by "lumbosacral strain."
 
 
 
            
 
 
 
                 It is noted that Dr. Hermann is claimant's treating 
 
 
 
            physician.  Dr. Hermann has had more contact with claimant, 
 
 
 
            and has had more opportunity to observe claimant's back 
 
 
 
            condition.  In addition, claimant did not experience back 
 
 
 
            pain or limitations in movement prior to his fall.  These 
 
 
 
            symptoms appeared soon in time after the fall, and have not 
 
 
 
            alleviated.  It is not necessary that claimant's injury be 
 
 
 
            the only cause of his present condition.  It is sufficient 
 
 
 
            if it is a substantial cause.  Blacksmith v. All-American, 
 
 
 
            Inc., 290 N.W.2d 348, 354 (Iowa 1980).  The opinion of Dr. 
 
 
 
            Hermann will be given the greater weight.  Claimant's work 
 
 
 
            injury was a substantial cause of his present back 
 
 
 
            condition.
 
 
 
            
 
 
 
                 The next issue raised by defendants is whether claimant 
 
 
 
            has proven entitlement to permanent total disability 
 
 
 
            benefits.  However, defendants offer no argument in their 
 
 
 
            appeal brief that claimant is not permanently and totally 
 
 
 
            disabled at this time.  No argument is offered on the 
 
 
 
            various factors that determine industrial disability.  
 
 
 
            Rather, defendants on appeal appear to urge that claimant is 
 
 
 
            not entitled to permanent total disability benefits due to 
 
 
 
            his refusal to undergo certain recommended medical 
 
 
 
            treatment.
 

 
            
 
            Page   8
 
            
 
            
 
            
 
            
 
            
 
            
 
 
 
                 Claimant was advised by Dr. Hermann to undergo an 
 
 
 
            epidural block or a laminectomy.  Both Dr. Cunningham and 
 
 
 
            Dr. Boarini recommended a myelogram.  Claimant has declined 
 
 
 
            to undergo the recommended procedures.  Benefits cannot be 
 
 
 
            reduced, however, unless the refusal to undergo medical 
 
 
 
            procedures is unreasonable. 
 
 
 
            
 
 
 
                 Dr. Hermann has stated that even with the recommended 
 
 
 
            procedures, claimant would still not be able to work for 
 
 
 
            eight hours at a time.  Dr. Boarini acknowledged that even 
 
 
 
            if claimant underwent the surgery, he would still have a 
 
 
 
            lifting and bending restriction.  Dr. Boarini predicted an 
 
 
 
            80 percent chance of success with surgery.  The other 
 
 
 
            physicians predicted no more than a 35 percent to 50 percent 
 
 
 
            chance of improvement.  Dr. Hermann testified that some 
 
 
 
            people would not benefit from the surgery, and could even 
 
 
 
            become worse.  Dr. Hermann stated he could not say claimant 
 
 
 
            would be improved with surgery, but that he possibly would.
 
 
 
            
 
 
 
                 None of the physicians were able to state that surgery, 
 
 
 
            even if successful, would significantly improve claimant's 
 
 
 
            impairment.  Claimant testified that Dr. Hermann told him he 
 
 
 
            would not be able to return to his work as an ironworker 
 
 
 
            even with the surgery. 
 
 
 
            
 
 
 
                 There was little evidence offered on the risk of the 
 
 
 
            procedures recommended.  Claimant did testify that Dr. 
 
 
 
            Hermann told him he could be better after surgery, he could 
 
 
 
            be worse, or he could be in a wheelchair.  Claimant stated 
 

 
            
 
            Page   9
 
            
 
            
 
            
 
            
 
            
 
            he would not undergo surgery unless he became paralyzed.  
 
 
 
            Dr. Hermann stated that he felt claimant's refusal was 
 
 
 
            reasonable under the circumstances.  
 
 
 
            
 
 
 
                 In addition, impairment is only one of the factors that 
 
 
 
            determine industrial disability.  Claimant's decision not to 
 
 
 
            undergo surgery is reasonable, and benefits should not be 
 
 
 
            reduced because of this refusal.  In light of claimant's age 
 
 
 
            of 55, his ratings of physical impairment, his eleventh 
 
 
 
            grade education, his past work history, his loss of earnings 
 
 
 
            since his injury, his lack of potential for vocational 
 
 
 
            rehabilitation as shown by the testimony of the vocational 
 
 
 
            rehabilitation experts, as well as the other factors that 
 
 
 
            determine industrial disability, it is concluded that 
 
 
 
            claimant is permanently and totally disabled. 
 
 
 
            
 
 
 
                 Claimant raises the issue of rate of weekly 
 
 
 
            compensation as an issue on cross-appeal.  The defendants 
 
 
 
            calculated claimant's weekly benefit rate by including three 
 
 
 
            weeks in which claimant apparently received no earnings due 
 
 
 
            to being laid off.  Defendants also included in the 
 
 
 
            calculation one week where claimant earned only $60 due to 
 
 
 
            claimant only working part of one day due to lead poisoning, 
 
 
 
            and another week where claimant was laid off part way 
 
 
 
            through the week and only earned $120.  Claimant's position 
 
 
 
            is that these weeks are unrepresentative and should not be 
 
 
 
            considered.  Rather, claimant urges, the previous five weeks 
 
 
 
            that he worked for another employer should be used to 
 
 
 
            calculate his rate.
 
 
 
            
 

 
            
 
            Page  10
 
            
 
            
 
            
 
            
 
            
 
                 Initially, a determination must be made which 
 
 
 
            subsection of Iowa Code section 85.36 is appropriate.  
 
 
 
            Section 85.36(6) deals with employees paid on an hourly 
 
 
 
            basis.  Section 85.36(7) deals with employees that have been 
 
 
 
            in the employ of the employer less than thirteen calendar 
 
 
 
            weeks immediately preceding the injury.  
 
 
 
            
 
 
 
                 Claimant was apparently paid on an hourly basis for the 
 
 
 
            work he performed for defendant employer.  Under Iowa Code 
 
 
 
            section 85.36(6), the weekly earnings for an employee who is 
 
 
 
            paid on an hourly basis is computed by dividing by thirteen 
 
 
 
            the earnings of the employee earned in the last completed 
 
 
 
            period of thirteen consecutive calendar weeks immediately 
 
 
 
            preceding the injury.  Claimant's work from October 16, 
 
 
 
            1985, through his injury on January 11, 1986, constitutes 
 
 
 
            twelve and one-half weeks only.  Thus, section 85.36(7) is 
 
 
 
            the appropriate method to determine claimant's earnings.
 
 
 
            
 
 
 
                 Section 85.36(7) states that the weekly earnings shall 
 
 
 
            be computed as under section 85.36(6), but the earnings to 
 
 
 
            be divided by thirteen shall be the amount the employee 
 
 
 
            would have earned had the employee been so employed by the 
 
 
 
            employer the full thirteen calendar weeks immediately 
 
 
 
            preceding the injury and had worked, when work was available 
 
 
 
            to other employees in a similar occupation.  
 
 
 
            
 
 
 
                 Claimant urges that the three full weeks and one 
 
 
 
            partial week where he earned no wages or less than his usual 
 
 
 
            wages due to being laid off should not be considered.  Weeks 
 
 
 
            that are not representative of claimant's usual earnings 
 

 
            
 
            Page  11
 
            
 
            
 
            
 
            
 
            
 
            should not be utilized in the calculation of claimaant's 
 
 
 
            rate.  Claimant earned no wages during three of the thirteen 
 
 
 
            weeks immediately preceding his injury, due to being laid 
 
 
 
            off.  These weeks are not representative of claimant's 
 
 
 
            normal earnings.  Thus, claimant's earnings for the weeks 
 
 
 
            ending October 26, 1985;  November 2, 1985; and January 4, 
 
 
 
            1986, should not be included in the thirteen weeks 
 
 
 
            calculation under section 85.36(7). 
 
 
 
            
 
 
 
                 The week ending October 19, 1985, was a partial week 
 
 
 
            only, with claimant earning $120.  Claimant began working 
 
 
 
            for defendant during that week, on October 16, 1985.  If 
 
 
 
            this week was a partial week due to claimant beginning work 
 
 
 
            in the middle of the workweek, it might very well constitute 
 
 
 
            an unrepresentative week.  However, in his answers to 
 
 
 
            interrogatories, admitted into the record as Exhibit J, 
 
 
 
            claimant states: "The week ending 10/19/85 was only a 
 
 
 
            partially completed week with earnings of $120.  Claimant 
 
 
 
            worked only part of the week ending 10/19/85 because of no 
 
 
 
            work from the employer."
 
 
 
            
 
 
 
                 Thus, it appears that the week ending October 19, 1985, 
 
 
 
            was a "short" week not because claimant began his employment 
 
 
 
            in the middle of the pay period, but because of a lack of 
 
 
 
            work.  Although weeks in which claimant earned no wages at 
 
 
 
            all due to being laid off are not to be included in the 
 
 
 
            calculation of claimant's rate, weeks in which claimant did 
 
 
 
            earn some wages, even though he was laid off for a portion 
 
 
 
            of the week, are to be included in the calculation.  Thus, 
 
 
 
            the week ending October 19, 1985, is to be included in the 
 

 
            
 
            Page  12
 
            
 
            
 
            
 
            
 
            
 
            rate calculation.
 
 
 
            
 
 
 
                 During the week ending November 9, 1985, claimant 
 
 
 
            worked only one day due to steel poisoning.  There is no 
 
 
 
            contrary assertion from defendants.  Absence from work due 
 
 
 
            to illness does make the week ending November 9, 1985, 
 
 
 
            unrepresentative of claimant's true earnings, and thus that 
 
 
 
            week's earnings will not be included in the 85.36(7) 
 
 
 
            calculation.
 
 
 
            
 
 
 
                 Thus, there remain only 9 representative weeks of 
 
 
 
            earnings with defendant employer.  Claimant urges utilizing 
 
 
 
            his earnings with a prior employer to complete the 
 
 
 
            requirement of a representative thirteen weeks.  However, 
 
 
 
            both sections 85.36(6) and 85.36(7) refer to "the employer," 
 
 
 
            which indicates that the earnings to be included are limited 
 
 
 
            to those earned from the defendant employer.  Utilizing the 
 
 
 
            earnings of claimant with a prior employer would not be 
 
 
 
            appropriate in this case. 
 
 
 
            
 
 
 
                 Under section 85.36(7), when the claimant has worked 
 
 
 
            less than thirteen weeks for the employer, a determination 
 
 
 
            is to be made as to what the claimant's earnings would have 
 
 
 
            been had the claimant been employed by the employer for the 
 
 
 
            full thirteen calendar weeks immediately preceding the 
 
 
 
            injury and had worked, when work was available to other 
 
 
 
            employees in a similar occupation.
 
 
 
            
 
 
 
                 The record in the present case does not disclose what 
 
 
 
            claimant's earnings would have been had he been employed the 
 

 
            
 
            Page  13
 
            
 
            
 
            
 
            
 
            
 
            full thirteen weeks preceding his injury, nor does the 
 
 
 
            record show what employees in a similar occupation earned 
 
 
 
            from the employer during this period.  
 
 
 
            
 
 
 
                 When it is not possible to determine a representative 
 
 
 
            thirteen weeks of earnings for claimant, a proper 
 
 
 
            determination of earnings can be made by dividing claimant's 
 
 
 
            wages for the weeks he did work by the number of weeks.  
 
 
 
            Barker v. City Wide Cartage, I Iowa Industrial Commissioner 
 
 
 
            Report, 12, 15, (Appeal Decision, 1980).  Claimant worked 
 
 
 
            nine representative weeks for the defendant employer.  His 
 
 
 
            total earnings for those nine weeks was $3,661.75.  Divided 
 
 
 
            by nine, this yields weekly earnings of $406.86.  Under the 
 
 
 
            rate tables pertaining to an injury occurring on January 11, 
 
 
 
            1986, a married claimant with two dependents would have a 
 
 
 
            weekly rate of $252.82.
 
 
 
            
 
 
 
                                 FINDINGS OF FACT
 
 
 
            
 
 
 
                 1.  Claimant worked as an ironworker for defendant 
 
 
 
            employer. 
 
 
 
            
 
 
 
                 2.  Claimant suffered an injury to his back arising out 
 
 
 
            of and in the course of his employment on January 11, 1986.
 
 
 
            
 
 
 
                 3.  Claimant received ratings of permanent physical 
 
 
 
            impairment of 25-30 percent of the body as a whole, and 
 
 
 
            three percent of the body as a whole.
 
 
 
            
 
 
 
                 4.  Claimant has permanent restrictions on lifting, 
 

 
            
 
            Page  14
 
            
 
            
 
            
 
            
 
            
 
            bending, and stooping, and claimant has difficulty in 
 
 
 
            walking or standing as a result of his work injury.  
 
 
 
            Claimant cannot work eight hours at a time without lying 
 
 
 
            down to rest.
 
 
 
            
 
 
 
                 5.  Claimant did not have back problems prior to his 
 
 
 
            work injury.
 
 
 
            
 
 
 
                 6.  Claimant had a preexisting case of osteoarthritis 
 
 
 
            in his back.
 
 
 
            
 
 
 
                 7.  Claimant experienced back pain after his work 
 
 
 
            injury which continues to the present time.
 
 
 
            
 
 
 
                 8.  Dr. Hermann expressed the opinion that claimant's 
 
 
 
            back condition was caused by trauma and not by degenerative 
 
 
 
            disease.
 
 
 

 
            
 
            Page  15
 
            
 
            
 
            
 
            
 
            
 
 
 
                 9.  Claimant was advised to undergo either an epidural 
 
 
 
            block or a laminectomy, but claimant refused to do so.
 
 
 
            
 
 
 
                 10. Dr. Hermann indicated that surgery on claimant's 
 
 
 
            back might or might not improve his condition, and might 
 
 
 
            make claimant's condition worse.
 
 
 
            
 
 
 
                 11. Dr. Hermann expressed the opinion that claimant's 
 
 
 
            refusal was reasonable from a medical standpoint.
 
 
 
            
 
 
 
                 12. Dr. Boarini expressed the opinion that even with 
 
 
 
            surgery, claimant would still have restrictions and pain.
 
 
 
            
 
 
 
                 13. Claimant was 55 years old at the time of his injury 
 
 
 
            and had an eleventh grade education.
 
 
 
            
 
 
 
                 14. Claimant's work experience is limited to 
 
 
 
            ironworking.  Claimant cannot return to ironworking or work 
 
 
 
            at other occupations involving manual labor due to his 
 
 
 
            impairment.
 
 
 
            
 
 
 
                 15. A vocational rehabilitation expert concluded that 
 
 
 
            claimant is unemployable.
 
 
 
            
 
 
 
                 16. Claimant was paid an hourly wage.
 
 
 
            
 
 
 
                 17. Claimant's wages from defendant were as follows:
 
 
 
            
 
 
 
                 w/e 10/19/85                       120.00
 
 
 

 
            
 
            Page  16
 
            
 
            
 
            
 
            
 
                 w/e 10/26/87                       ------
 
 
 
                 w/e 11/02/85                       ------
 
 
 
                 w/e 11/09/85                        60.00
 
 
 
                 w/e 11/16/85                       496.00
 
 
 
                 w/e 11/23/85                       620.00
 
 
 
                 w/e 11/30/90                       372.00
 
 
 
                 w/e 12/07/85                       620.00
 
 
 
                 w/e 12/14/85                       651.00
 
 
 
                 w/e 12/21/85                       372.00
 
 
 
                 w/e 12/28/85                       201.50
 
 
 
                 w/e 01/04/86                       ------
 
 
 
                 w/e 01/11/86                       209.25
 
 
 
            
 
 
 
                                CONCLUSIONS OF LAW
 
 
 
            
 
 
 
                 Claimant's present back condition is causally connected 
 
 
 
            to his January 11, 1986 work injury.
 
 
 
            
 
 
 
                 Claimant's refusal to undergo recommended medical 
 
 
 
            treatment was reasonable.
 
 
 
            
 
 
 
                 Claimant is permanently and totally disabled.
 
 
 
            
 
 
 
                 Claimant's rate of compensation is $252.82 per week.
 
 
 
            
 
 
 
                 WHEREFORE, the decision of the deputy is affirmed and 
 
 
 
            modified.
 
 
 
            
 
 
 
                                      ORDER
 
 
 
            
 
 
 

 
            
 
            Page  17
 
            
 
            
 
            
 
            
 
                 THEREFORE, it is ordered:
 
 
 
            
 
 
 
                 That defendants are to pay unto claimant permanent 
 
 
 
            total disability benefits at the rate of two hundred fifty 
 
 
 
            two and 82/100 dollars ($252.82) per week during the period 
 
 
 
            of his disability.
 
 
 
            
 
 
 
                 That defendants shall pay interest on unpaid weekly 
 
 
 
            benefits awarded herein as set forth in Iowa Code section 
 
 
 
            85.30. 
 
 
 
            
 
 
 
                 That defendants are to be given credit for benefits 
 
 
 
            previously paid. 
 
 
 
            
 
 
 
                 That defendants are to pay the costs of this action.  
 
 
 
            Defendants and claimant shall share equally the costs of the 
 
 
 

 
            
 
            Page  18
 
            
 
            
 
            
 
            
 
            appeal, including the preparation of the appeal transcript.
 
 
 
            
 
 
 
                 That defendants shall file claim activity reports as 
 
 
 
            required by this agency pursuant to rule 343 IAC 3.1(2). 
 
 
 
            
 
 
 
                 Signed and filed this ____ day of December, 1990.
 
 
 
            
 
 
 
            
 
 
 
            
 
 
 
                                          
 
 
 
            ________________________________
 
 
 
                                                   CLAIR R. CRAMER
 
 
 
                                           ACTING INDUSTRIAL 
 
 
 
            COMMISSIONER
 
 
 
            
 
 
 
            Copies To:
 
 
 
            
 
 
 
            Mr. Dennis W. Emanuel
 
 
 
            Attorney at Law
 
 
 
            P.O. Box 601
 
 
 
            Ottumwa, Iowa 52501-0601
 
 
 
            
 
 
 
            Mr. Walter F. Johnson
 
 
 
            Attorney at Law
 
 
 
            P.O. Box 716
 
 
 
            Ottumwa, Iowa 52501
 
 
 
            
 
 
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
            5-1108.50; 2700; 3001
 
            Filed December 21, 1990
 
            MAM
 
            Clair R. Cramer
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            ALLEN F. HARDY,               :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :      File No. 814126
 
            ABELL-HOWELL COMPANY,         :
 
                                          :        A P P E A L
 
                 Employer,                :
 
                                          :      D E C I S I O N
 
            and                           :
 
                                          :
 
            LIBERTY MUTUAL INSURANCE CO., :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
            5-1108.50
 
            Opinion of treating physician that claimant's back condition 
 
            was the result of trauma and not a degenerative condition 
 
            was given greater weight than contrary opinion of an 
 
            examining physician.
 
            
 
            2700
 
            Claimant refused to undergo surgery or epidural block for 
 
            his back condition.  Defendants requested a reduction of 
 
            benefits due to this refusal.  A reduction in benefits is 
 
            justified only if the refusal is unreasonable.  To determine 
 
            if a refusal is unreasonable, a balancing test is used, 
 
            weighing the risks of the procedure versus the predicted 
 
            benefits.  Here, both physicians acknowledged that even with 
 
            surgery, claimant would still have significant restrictions.  
 
            One physician opined that the procedure often does not help, 
 
            and can in fact make claimant worse.  There was no medical 
 
            evidence to indicate to what degree claimant's impairment 
 
            would be improved even with successful surgery.  Based on 
 
            the facts of this case, claimant's refusal was not so 
 
            unreasonable as to justify a reduction in benefits. 
 
            
 

 
            
 
 
 
 
 
 
 
 
 
 
 
            3001
 
            Claimant's rate was at issue.  Claimant had worked for 
 
            defendant employer for 13 weeks prior to his injury.  Three 
 
            of those weeks, claimant was laid off and earned no wages.  
 
            One week, claimant worked only one day, then was laid off.  
 
            Another week, claimant worked a day and was then off sick 
 
            for the rest of the week.  
 
            Weeks where claimant earned no wages due to being laid off 
 
            are not counted.  A week where claimant earned some wages 
 
            and was then laid off, however, is counted.  The week where 
 
            claimant was sick is unrepresentative of claimant's true 
 
            wages and is not counted.  This yielded nine  representative 
 
            weeks. 
 
            Claimant urged that his three weeks with no wages not be 
 
            counted, but that additional weeks with a previous employer 
 
            be used in the calculation.  This was rejected, as 85.36(7) 
 
            refers to wages earned from the employer at the time of the 
 
            injury.  When there are less than 13 representative weeks, 
 
            section 85.36(7) requires a computation based on what the 
 
            employee would have earned had he been employed a full 13 
 
            weeks prior to the injury.  However, there was no evidence 
 
            in the record of what those wages would have been.  Thus, 
 
            under Barker v. City Wide Cartage, I Iowa Industrial 
 
            Commissioner Report 12, 15 (Appeal Decision, 1980), 
 
            claimant's gross weekly earnings were calculated by dividing 
 
            his total earnings over the nine representative weeks by 
 
            nine. 
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                   BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         
 
         ALLEN F. HARDY,
 
         
 
              Claimant,                           File No. 814126
 
         
 
         vs.                                   A R B I T R A T I O N
 
         
 
         ABELL-HOWELL COMPANY,                    D E C I S I O N
 
         
 
              Employer,
 
         
 
         and
 
         
 
         LIBERTY MUTUAL INSURANCE CO.,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         
 
                                   INTRODUCTION
 
         
 
              This is an arbitration proceeding brought by Allen F. Hardy, 
 
         claimant, against Abell-Howe Company, employer, and Liberty 
 
         Mutual Insurance Company, insurance carrier, defendants.  The 
 
         case was heard on August 5, 1988 in Ottumwa, Iowa by the 
 
         undersigned.
 
         
 
              The record consists of the testimony of:  Allen Hardy, 
 
         George Brian Paprocki, vocational specialist, and Ronald Mikel, 
 
         business agent for Ironworkers Local 577.  The record also 
 
         consists of exhibits A through S for claimant and defendants' 
 
         exhibits D-1 through D-6.
 
         
 
                                      ISSUES
 
         
 
              Pursuant to the prehearing report and order submitted and 
 
         approved on the second day of March, 1988, the following issues 
 
         are presented for resolution:
 
         
 
              1.  Whether there is a causal relationship between the 
 
         alleged injury and the disability;
 
         
 
              2.  Whether claimant is entitled to permanent partial or 
 
         total disability benefits;
 
         
 
              3.  Whether claimant is entitled to temporary 
 
         disability/healing period benefits;
 
         
 
              4.  Whether claimant is an employee under the odd-lot 
 
         doctrine;
 

 
         
 
         
 
         
 
         HARDY V. ABELL-HOWELL COMPANY
 
         PAGE   2
 
         
 
         
 
         
 
         
 
              5. The rate to be used including interest calculation; 
 
         and,
 
         
 
              6.  Whether claimant is entitled to medical benefits under 
 
         section 85.27.
 
         
 
         
 
                               FACTS PRESENTED
 
         
 
              Claimant, at the time of the hearing, was a 57 year old 
 
         ironworker with an eleventh grade education.  Up to the date of 
 
         his injury, claimant had been employed for nearly 25 years in 
 
         that capacity.  During the course of his career, claimant was 
 
         engaged in climbing and working in high places, lifting and 
 
         bending, twisting, and moving.  Additionally, claimant carried 
 
         approximately 70 pounds of equipment on his person.
 
         
 
              At the time of claimant's injury on January 11, 1986, 
 
         claimant was hired as an ironworker foreman.  On the day of the 
 
         injury, claimant fell 13 to 17 feet and landed on concrete.  
 
         Claimant fell on his back.  He attempted to break his fall by 
 
         grabbing onto a safety bar with both hands.
 
         
 
              Claimant was hospitalized after his injury.  Surgery on 
 
         claimant's leg was performed by Donald Berg, M.D.
 
         
 
              Claimant's medical treatment was transferred from Dr. Berg 
 
         to Edward P. Hermann, D.O.  Claimant was first seen by Dr. 
 
         Hermann on January 24, 1986.  Dr. Hermann, in his deposition, 
 
         described the extent of claimant's condition subsequent to the 
 
         injury date:
 
         
 
              A   HE HAD A DISLOCATION OF THE RIGHT GREAT TOE AT THE 
 
              METATARSAL PHALANGEAL JOINT, WHICH WAS REDUCED IN THE 
 
              EMERGENCY ROOM, AS I UNDERSTAND IT.  HE HAD A 
 
              NON-DISPLACED FRACTURE OF THE RIGHT FIBULA.  HE HAD A 
 
              CRUSH INJURY TO THE POSTERIOR PART OF THE CALF, OR THE 
 
              BACK OF THE CALF.  HE HAD A LACERATION TO THE SITE OF 
 
              THE LEG JUST BELOW THE KNEE, NEAR THE AREA OF THE 
 
              PROXIMAL END OF THE FIBULA.  HE ALSO COMPLAINED OF BACK 
 
              PAIN WHILE IN THE HOSPITAL UP THERE.  AND I BELIEVE THE 
 
              FINAL DIAGNOSIS OF DR. BERG INDICATES THAT, WITH THE 
 
              OTHER INJURIES, WHY, HE ALSO FELT THAT THERE WAS LUMBAR 
 
              SPRAIN.
 
         
 
         (Exhibit P, page 10, lines 6-16)
 
         
 
              Claimant's leg and big toe were treated.  Approximately six 
 
         months after the date of the injury, Dr. Hermann determined 
 
         surgery was necessary on both of claimant's wrists and elbows.  
 
         The surgeries were performed.  Afterwards, claimant gained 
 
         strength in both arms.
 
         
 
              On November 13, 1986, claimant was again seen by Dr. 
 
         Hermann.  According to the notes for that day, Dr. Hermann 
 
         writes:
 
         
 

 
         
 
         
 
         
 
         HARDY V. ABELL-HOWELL COMPANY
 
         PAGE   3
 
         
 
         
 
         
 
              Mr. Hardy was seen today for recheck.  He, at this 
 
              time, has normal sensation to his hands and fingers.  
 
              He does have discomfort in the hands and fingers at 
 
              times, but basically has normal sensation, normal range 
 
              of motion and appears to have good strength.  Surgical 
 
              incisions at the elbows are healed and non tender.  He 
 
              has discomfort in the right hip and trochanteric area 
 
              .... In general, I feel that he has reached almost 
 
              maximum improvement.  He is doing work and exercises at 
 
              home in an effort to try and get himself so that he can 
 
              return to work.  I feel that his condition is such that 
 
              he should be able to return to work and was given a 
 
              slip indicating my approval to return as of Monday, 
 
              11-17-86 ....
 
         
 
              Claimant tried to return to work in December of 1986.  
 
         However, no work was available to him.  Claimant eventually 
 
         returned on a very temporary basis.  He worked two and one half 
 
         days in December of 1986.  Claimant also worked 10 or 11 days in 
 
         March of 1987.  Because of pain in his back and a throbbing pain 
 
         which began in the hips and ran down claimant's right leg, 
 
         claimant was unable to continue working.
 
         
 
              After the incident in March of 1987, Dr. Hermann ordered a 
 
         CT scan.  The CT scan report revealed:
 
         
 
              IMPRESSION:  1. Degenerative disk disease with slight
 
                              nerve root narrowing on the right of
 
                              L4,5;
 
                           2. Marked degenerative bony spur 
 
                               formation
 
                              nerve root on the left at L5, Sl;
 
                           3. Significant articulating facet 
 
                              sclerosis generalized through the study.
 
         
 
         (Ex. N)
 
         
 
              Dr. Hermann, in his deposition, opined the degenerative disk 
 
         disease was attributable to claimant's fall.  He stated:
 
         
 
              Q   WHAT WAS IT, DOCTOR, IN YOUR EXAMINATION OF MR. 
 
              HARDY'S SYMPTOMS AND THROUGHOUT YOUR COURSE OF 
 
              TREATMENT THAT ENABLED YOU TO FORMULATE THIS OPINION 
 
              THAT THE BULGING OF THE DISK AT L-4, L-5, REFERRED TO 
 
              IN THE RADIOLOGY REPORT AS DEGENERATIVE DISK DISEASE, 
 
              WAS DIRECTLY RELATED TO THE HORMEL FACILITY INCIDENT?
 
         
 
              A   TO MY KNOWLEDGE, THE MAN WAS ASYMPTOMATIC, OR HAD 
 
              NO SYMPTOMS RELATING TO HIS BACK OR LEGS WHATSOEVER 
 
              PRIOR TO HIS INJURY.  AND HE COMPLAINED OF BACK PAIN 
 
              WHILE IN OTTUMWA BEFORE I EVER SAW HIM, ACCORDING TO 
 
              DR. BERG'S RECORD, I BELIEVE.  AND AS LONG AS WE WERE 
 
              NOT -- AS LONG AS HE WAS NOT UP AND ABOUT AND DOING 
 
              VERY MUCH, WE DIDN'T HAVE TOO MUCH IN THE WAY OF 
 
              SYMPTOMATOLOGY.  AND ONCE WE STARTED TRYING TO STRESS 
 
              HIM AND DO ANYTHING THAT WAS REALLY ACTIVE OR 
 
              STRENUOUS, THEN WE COME UP WITH THE SYMPTOMS RELATING 
 

 
         
 
         
 
         
 
         HARDY V. ABELL-HOWELL COMPANY
 
         PAGE   4
 
         
 
         
 
         
 
              TO THE BACK INJURY, OR RELATING TO THE RUPTURED DISK.
 
         
 
              Q   DOCTOR, DO YOU HAVE AN OPINION TO A REASONABLE 
 
              DEGREE OF MEDICAL CERTAINTY AS TO WHETHER OR NOT THIS 
 
              HERNIATED DISK IS A PERMANENT CONDITION?
 
         
 
              A   I DO.
 
         
 
              Q   WHAT IS THAT OPINION?
 
         
 
              A   IT IS PERMANENT.
 
         
 
              Q   DO YOU HAVE AN OPINION, DOCTOR, BASED TO A 
 
              REASONABLE DEGREE OF MEDICAL CERTAINTY, AS TO THE 
 
              CAUSATION, AGAIN OF THE HERNIATED DISK, AS IT RELATES, 
 
              IF ANY, TO THE FALL THAT MR. HARDY HAD AT THE HORMEL 
 
              FACILITY IN 1986?
 
         
 
              A   I DO.
 
         
 
              Q   WHAT IS THAT OPINION?
 
         
 
              A   IT IS A RESULT OF THE FALL.
 
         
 
         (Ex. P, p. 28, 1. 21 to p. 30, 1. 1)
 
         
 
              After Dr. Hermann received the results of the CT scan, he 
 
         placed claimant on a non-steroidal anti-inflammatory drug.  
 
         Conservative treatment was ordered.  Claimant was advised not to 
 
         return to work.
 
         
 
              Conservative therapy was attempted.  However, claimant 
 
         remained in substantially the same condition.  Dr. Hermann, since 
 
         receiving the CT scan report, recommended two types of treatment 
 
         to claimant; an epidural block or a laminectomy.
 
         
 
              Claimant has strongly refused both forms of treatment.  
 
         Despite claimant's refusal to have surgery, Dr. Hermann has 
 
         continued to treat claimant.
 
         
 
              Dr. Hermann, in his second deposition, testified that:
 
         
 
              Q   BASED UPON YOUR EXPERIENCE, DOCTOR, IN TREATING 
 
              OTHER PATIENTS AND PERFORMING SURGERY ON THEM, AND 
 
              HAVING ANALYZED MR. HARDY'S CONDITION, WHAT IS YOUR 
 
              RECOMMENDATION, IF ANY, FOR MR. HARDY IN TERMS OF 
 
              FUTURE MANAGEMENT OF HIS BACK PROBLEM?
 
         
 
              A   MR. HARDY HAS INDICATED TO ME THAT HE WAS NOT 
 
              INTERESTED IN PROCEEDING WITH SURGERY.  ON THAT BASIS, 
 
              I COULD NOT, IN GOOD CONSCIENCE, RECOMMEND OR URGE HIM 
 
              TO PROCEED WITH SURGERY, BECAUSE WITH IDEAL RESULTS, A 
 
              CERTAIN PERCENTAGE OF PEOPLE ARE GOING TO BE BENEFITED.  
 
              THERE ARE GOING TO BE A CERTAIN PERCENTAGE THAT ARE 
 
              TOTALLY UNIDENTIFIABLE THAT ARE GOING TO BE JUST AS BAD 
 
              OR WORSE AFTER SURGERY, AND HE DID NOT WISH TO TAKE THE 
 
              CHANCE OF BEING IN THAT CATEGORY.- AND I'LL HONOR THAT 
 
              -- I CANNOT SAY THAT HE WOULD BE IMPROVED WITH THE 
 

 
         
 
         
 
         
 
         HARDY V. ABELL-HOWELL COMPANY
 
         PAGE   5
 
         
 
         
 
         
 
              SURGERY.  I CAN'T --- I THINK HE POSSIBLY WOULD, BUT I 
 
              CAN'T SAY THAT HE WOULD BE.
 
         
 
         (Ex. 0, p. 11, 11. 8-24)
 
         
 
              Dr. Hermann, as of June 24, 1988, also testified that 
 
         claimant's status at that time was as follows:
 
         
 
              A   HE DESCRIBED THE GENERAL AREA, AND THEN I USED A 
 
              PIN WHEEL TO STICK HIM, AND THERE DEFINITELY IS 
 
              NUMBNESS AND DECREASED SENSATION.  THE MAXIMUM THAT HE 
 
              CAN WALK IS FOUR TO SIX BLOCKS, AND THAT IS AS FAR AS 
 
              HE CAN GO WITHOUT CAUSING SEVERE PAIN IN THE BACK AND 
 
              HAVING MORE SEVERE BACK LASH PROBLEMS THAT PUT HIM BACK 
 
              IN BED.  HE IS UNABLE TO SIT FOR ANY LENGTH OF TIME 
 
              BECAUSE, AGAIN, DISCOMFORT BUILDS UP IN THE BACK AND 
 
              THE LEG.  I THINK IN ASKING HIM, I BELIEVE HE STATES 
 
              THAT ABOUT TWENTY TO THIRTY MINUTES IS THE MAXIMUM THAT 
 
              HE CAN SIT IN COMFORT, AND ABOUT THE SAME LENGTH OF 
 
              TIME IN STANDING.  SO HE HAS TO CHANGE POSITIONS, KEEP 
 
              MOVING.  LYING DOWN IS THE ONLY POSITION THAT IS REALLY 
 
              COMFORTABLE, AND THAT IS NOT ALWAYS COMFORTABLE.
 
         
 
              Q   DID YOU PRESCRIBE, DOCTOR, OR DO YOU HAVE AN 
 
              OPINION AS TO WHAT PERMANENT RESTRICTIONS OF ACTIVITY 
 
              YOU WOULD IMPOSE UPON ALLEN HARDY TODAY AS A RESULT OF 
 
              HIS IMPAIRMENT?
 
         
 
              A   HIS RESTRICTIONS ARE TO AVOID ANY BENDING, STOOPING 
 
              OR LIFTING.  HE IS TO AVOID AUTOMOBILES, OR VEHICLES OF 
 
              ANY KIND THAT -- BECAUSE THEY HAVE A TENDENCY TO JIGGLE 
 
              AND AGGRAVATE THE PAIN.  HE IS TO WALK WITHIN LIMITS, 
 
              AND AS LONG AS HE CAN -- FOR EXAMPLE, IF HE CAN WALK 
 
              SIX BLOCKS NOW WITHOUT A GREAT DEAL OF DISCOMFORT, OR 
 
              WITHOUT CAUSING TOO MUCH PROBLEM, HE SHOULD CONTINUE 
 
              THAT, AND THEN PERIODICALLY TRY TO EXTEND IT BY A HALF 
 
              A BLOCK OR A BLOCK TO BUILD UP VERY GRADUALLY, IF 
 
              POSSIBLE.  HE IS NOT TO DO ANYTHING THAT RESULTS IN 
 
              PAIN -- INCREASED PAIN AND DISABILITY, AND THE NEED TO 
 
              GO TO BED THE NEXT DAY.  AND IT'S A LOT BY TRIAL AND 
 
              ERROR, BUT IT'S MOSTLY NO BENDING, NO STOOPING, NO 
 
              LIFTING, AND WALK WITHIN THE LIMITS THAT HE HAS 
 
              DISCOVERED.
 
         
 
         (Ex. 0, p. 15, 1. 4 to p. 16, 1. 10)
 
         
 
              Dr. Hermann, in his deposition on June 22, 1987, rated 
 
         claimant for a permanent partial disability.  Dr. Hermann opined 
 
         as follows:
 
         
 
              Q   DOCTOR, ARE YOU IN A POSITION, BASED UPON YOUR 
 
              PROLONGED TREATMENT OF MR. HARDY, AND YOUR EXAMINATION 
 
              AND EVALUATION OF HIS CONDITION, ABLE TO ASSIGN A 
 
              PERMANENT PHYSICAL IMPAIRMENT RATING TO MR. HARDY AS IT 
 
              RELATES TO THE RESIDUALS OF THE FALL AT THE HORMEL 
 
              FACILITY?
 
         
 
              A   I COULD, YES.
 

 
         
 
         
 
         
 
         HARDY V. ABELL-HOWELL COMPANY
 
         PAGE   6
 
         
 
         
 
         
 
         
 
              Q   WHAT WOULD THAT IMPAIRMENT RATING BE, DOCTOR?
 
         
 
              A   I WOULD CONSIDER HIM TWENTY-FIVE TO THIRTY PERCENT 
 
              PERMANENT PARTIAL DISABILITY.
 
         
 
              Q   AND IS THAT RELATED TO THE BACK ONLY, DOCTOR?
 
         
 
              A   THAT'S MAINLY THE WHOLE OR -- NORMALLY, IF WE RATE 
 
              -- IF I RATE TO THE BACK, WHY, THAT IS THE MAN AS A 
 
              WHOLE.
 
         
 
              Q   HOW MUCH OF THAT PERCENTAGE, DOCTOR, IS RELATED TO 
 
              THE BACK?
 
         
 
              A   ALL OF IT.
 
         
 
         (Ex. P, p. 35, 1. 6-21)
 
         
 
              Claimant was evaluated by David J. Boarini, M.D., a 
 
         neurosurgeon, pursuant to a request by defendants.  In his.letter 
 
         of May 29, 1987, Dr. Boarini writes in relevant portion:
 
         
 
              Upon examination, the patient has a normal gait.  He 
 
     
 
         
 
         
 
         
 
         
 
         HARDY V. ABELL-HOWELL COMPANY
 
         PAGE   7
 
         
 
         
 
         
 
              has some limitation in the range of motion of the lower 
 
              back which is slight but in all directions.  
 
              Neurological exam demonstrates normal strength in the 
 
              lower extremities.  He has normal sensation except for 
 
              the right lateral calf which is probably related to his 
 
              fracture.  Knee reflexes are symmetric and physiologic 
 
              while ankle reflexes are bilaterally absent.  Straight 
 
              leg raising is negative bilaterally.
 
         
 
              I think this gentleman has low-back pain due to his 
 
              osteoarthritis but this was aggravated by his fall.  I 
 
              don't think I can make any further statement in regard 
 
              to his disability rating, based on his lower extremity 
 
              injury.  I certainly would not disagree with it.  Based 
 
              upon his back difficulties and his limited range of 
 
              motion, I would give him a 3% disability of the whole 
 
              man, based purely on his back trouble.  Although 
 
              strictly speaking, I would not limit him from returning 
 
              to work as an iron worker, symptomatically I don't 
 
              think he will tolerate that.  Probably some job with no 
 
              more than 50 pounds of lifting and a very limited 
 
              amount of bending would be more appropriate.
 
         
 
              Dr. Boarini conducted a follow-up examination of claimant on 
 
         November 19, 1987.  In his letter of December 2, 1987, Dr. 
 
         Boarini also relates in part:
 
         
 
              Upon examination, the patient has a markedly limited 
 
              range of motion of the back in all directions and quite 
 
              an antalgic gait.  Straight leg raising is positive on 
 
              the right.  He has clear-cut hypesthesia in both the 
 
              L-5 and S-1 distributions on the right, as well as 
 
              decreased strength of the extensors on the right foot 
 
              and toes.  Knee reflexes are 2 by 2 while ankle 
 
              reflexes are trace bilaterally.
 
         
 
              I think Mr. Hardy has had considerable worsening in his 
 
              condition since his last. examination.  He clearly has 
 
              radicular signs and symptoms at this time.  I told him 
 
              I think he needs a myelogram and is certainly a 
 
              surgical candidate.  He apparently no longer lives in 
 
              this state but I assured him a neurosurgeon can be 
 
              found locally who would be able to take care of him.
 
         
 
              For purposes of evaluation, claimant was seen by David L. 
 
         Cunningham, M.D., pursuant to a request by defendants.  He writes 
 
         in his office notes for December of 1987:
 
         
 
              Today on examination the patient is lying quietly on 
 
              the examination table and exhibits straight leg raising 
 
              pain which seems to be quite severe to about 300 
 
              bilaterally however in a sitting position with his 
 
              attention diverted full extension of either leg is 
 
              possible without any evidence of discomfort.  He has 
 
              positive actual compression test when pressing on the 
 
              top of the head and exhibits pain in the lumbar area as 
 
              well as in the cervical area.  He has a stocking type 
 
              hypothesia of non-anatomical distribution over the 
 

 
         
 
         
 
         
 
         HARDY V. ABELL-HOWELL COMPANY
 
         PAGE   8
 
         
 
         
 
         
 
              right lower extremity to about the level of the 
 
              umbilicus.  Flexion and extension of the lumbar spine 
 
              are limited to about 20% of normal limits.  Deep tendon 
 
              reflexes are present and symmetrical and motor function 
 
              is normal.  The patient can heal and toe walk without 
 
              any difficulty and can stand on either foot and bend at 
 
              the knee.
 
         
 
              I am going to obtain an MRI scan of his lumbar spine 
 
              for further evaluation however at this point I feel 
 
              that this man has definite [sic] amplification of 
 
              symptoms with little or no objective findings to 
 
              substantiate his complaints referable to to [sic] his 
 
              low back and lower extremities.
 
         
 
              Dr. Cunningham also writes in his notes for December 31, 
 
         1987:
 
         
 
              Allen Hardy was seen in the office on the 31st of 
 
              December.  I relayed to him that the MRI scan shows an 
 
              apparent bulging or ruptured disc at the L4 level 
 
              protruding toward the right side plus some midline 
 
              posterior bulging of the L2,3 intervertebral disc.  
 
              This was reported by Neuro-Radiologist Dr. Halford.  I 
 
              told the man I feel he needs outpatient lumbar 
 
              myelography to further clarify his condition and to 
 
              determine whether or not he might able [sic] to do some 
 
              sort of useful work, however, he does not appear to be 
 
              inclined to have this done at this time and says he 
 
              wishes to go back to Dr. Hermann, who has also 
 
              suggested myelography.  I discussed on his initial 
 
              visit whether or not he had ever had a vocational/ 
 
              behavioral medicine workup and he said this has been on 
 
              two or three occasions.  If, however, is [sic] has not 
 
              I would suggest such an evaluation by Dr. Greg Cates.
 
         
 
              Claimant was also seen by several vocational rehabilitation 
 
         specialists.  Elaine Platz, of the State of Missouri, determined 
 
         claimant did not meet the criteria established by that state for 
 
         rehabilitation.
 
         
 
              Claimant was also seen and evaluated by George Brian 
 
         Paprocki, a specialist in diagnostic vocational evaluation.  Mr. 
 
         Paprocki interviewed claimant on August 27, 1987.  Mr. Paprocki 
 
         determined a significant factor in assessing claimantOs 
 
         employability was claimant's " ... inability to work for a 
 
         continuous period of time, eight hours was specified by Dr. 
 
         Hermann [sic]." (Transcript, p. 102, 11. 15-17)
 
         
 
              Mr. Paprocki also determined:    ... he [claimant] would not 
 
         be able to be employed in some type of identifiable job, because 
 
         of his limitations." (Tr., p. 107, 11. 15-17)
 
         
 
              Q.  Based upon your evaluation and assessment of Mr. 
 
              Hardy, and review of the medical material, and even 
 
              best case scenario of surgery, do you have an opinion 
 
              whether Mr. Hardy is now employable or at any time in 
 
              the future can be employable in a competitive labor 
 

 
         
 
         
 
         
 
         HARDY V. ABELL-HOWELL COMPANY
 
         PAGE   9
 
         
 
         
 
         
 
              market?
 
         
 
              A.  I don't believe he is.  At this time he definitely 
 
              is not because held be unable to sustain regular 
 
              employment.  And my understanding is that in the future 
 
              with the best possible results of surgery, I don't 
 
              believe that he would be able to go out into a 
 
              particular line of work that's a sedentary unskilled, 
 
              and take virtually any job that would be in that 
 
              category, or cashier work and be able and compete 
 
              successfully for any cashier job.
 
         
 
                 I think you are talking about somebody who would 
 
              have to have a very selective placement with an 
 
              employer who would be accepting of his problems and 
 
              willing to work with him.  And the prospect of actually 
 
              locating that type of employment, I think, would be 
 
              fairly nil.
 
         
 
              Q.  Did any of the skills that Mr. Hardy has acquired 
 
              over his work life, do any of them transfer to 
 
              sedentary type of work activity?
 
         
 
              A.  No.  No.  Basically the skills would involve 
 
              welding, and that's at least a medium physical exertion 
 
              job from a lifting standpoint.
 
         
 
                 If you could find a job that didn't require anything 
 
              by the way of lifting, would require probably a 
 
              continual bending or leaning forward, stooping, those 
 
              type jobs just don't exist, at least not in any 
 
              significant number.
 
         
 
              You may find some isolated position here or there.
 
         
 
         (Tr., p. 116, 11. 7-25 and p. 117, 11. 1-15)
 
              Claimant was also evaluated by H. Shelby Swain, MS, CIRS, 
 
         rehabilitation consultant.  This was done November 19, 1987 
 
         pursuant to defendants' request.  Mr. Swain concluded and 
 
         recommended the following:
 
         
 
              CONCLUSIONS:
 
         
 
              Mr. Hardy impressed this consultant as being sincere 
 
              and no doubt was a good worker over a long period of 
 
              time.  He readily admitted to being somewhat depressed, 
 
              partly because they had lost their home in Missouri, 
 
              due to economic difficulties, and because he can not be 
 
              as active as he would like to be or once was.  It is 
 
              this consultant's impression that perhaps Mr. Hardy has 
 
              "given up" and has not tried very hard to find work, 
 
              since he simply assumes that there is no work available 
 
              to a person in his condition.  This consultant did feel 
 
              that both Mr. and Mrs. Hardy were extremely nice people 
 
              who would much prefer that Mr. Hardy was employed in a 
 
              good job.
 
         
 
              RECOMMENDATIONS:
 

 
         
 
         
 
         
 
         HARDY V. ABELL-HOWELL COMPANY
 
         PAGE  10
 
         
 
         
 
         
 
         
 
              1.  Perhaps the insurance company should consider 
 
              having a vocational or rehabilitation agency in Memphis 
 
              explore job possibilities for this individual.
 
         
 
              2.  Mr. Hardy should definitely consider obtaining his 
 
              GED through adult education services if he is at all 
 
              interested in trying to find employment.
 
         
 
              3.  Possibly, Mr. Hardy would benefit from a pain 
 
              clinic setting.
 
         
 
                               APPLICABLE LAW
 
         
 
              An employee is entitled to compensation for any and all 
 
         personal injuries which arise out of and in the course of the 
 
         employment.  Section 85.3(l).
 
         
 
              Claimant has the burden of proving by a preponderance of the 
 
         evidence that he received an injury on January 11, 1986 which 
 
         arose out of and in the course of his employment.  McDowell v. 
 
         Town of Clarksville, 241 N.W.2d 904 (Iowa 1976); Musselman v. 
 
         Central Telephone Co., 261 Iowa 352, 154 N.W.2d 128 (1967).
 
         
 

 
         
 
         
 
         
 
         HARDY V. ABELL-HOWELL COMPANY
 
         PAGE  11
 
         
 
         
 
         
 
              The claimant has the burden of proving by a preponderance of 
 
         the evidence that the injury of January 11, 1986 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, 257 Iowa 516, 133 N.W.2d 867 (1965).  The 
 
         expert medical evidence must be considered with all other 
 
         evidence introduced bearing on the causal connection between the 
 
         injury and the disability.  Burt, 247 Iowa 691, 73 N.W.2d 732 
 
         (1955).  In regard to medical testimony, the commissioner is 
 
         required to state the reasons on which testimony is accepted or 
 
         rejected.  Sondag, 220 N.W.2d 903 (1974).
 
         
 
              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, 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, 26 Iowa 352, 154 N.W.2d 128 (1967).
 
         
 
              If a claimant contends he has an industrial disability he 
 
         has the burden of proving his injury results in an ailment 
 
         extending beyond the scheduled loss.  Kellogg v. Shute and Lewis 
 
         Coal Co., 256 Iowa 1257, 130 N.W.2d 667 (1964).
 
         
 
              As a 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 disability is an element to be considered in 
 
         determining industrial disability which is the reduction of 
 
         earning capacity, but consideration must also be given to the 
 
         injured employee's age, education, qualifications, experience and 
 
         inability to engage in employment for which he is fitted.  Olson 
 
         v. Goodyear Service Stores, 255 Iowa 1112, 125 N.W.2d 251 (1963).  
 
         Barton v. Nevada Poultry, 253 Iowa 285, 110 N.W.2d 660 (1961).
 

 
         
 
         
 
         
 
         HARDY V. ABELL-HOWELL COMPANY
 
         PAGE  12
 
         
 
         
 
         
 
         
 
              A finding of impairment to the body as a whole found by a 
 
         medical evaluator does not equate to industrial disability.  This 
 
         is so as impairment and disability are not synonymous.  Degree of 
 
         industrial disability can in fact be much different than the 
 
         degree of impairment because in the first instance reference is 
 
         to loss of earning capacity and in the later to anatomical or 
 
         functional abnormality or loss.  Although loss of function is to 
 
         be considered and disability can rarely be found without it, it 
 
         is not so that a degree of industrial disability is 
 
         proportionally related to a degree of impairment of bodily 
 
         function.
 
         
 
              Factors to be considered in determining industrial 
 
         disability include the employee's medical condition prior to the 
 
         injury, immediately after the injury, and presently; the situs of 
 
         the injury, its severity and the length of healing period; the 
 
         work experience of the employee prior to the injury, after the 
 
         injury and potential for rehabilitation; the employee's 
 
         qualifications intellectually, emotionally and physically; 
 
         earnings prior and subsequent to the injury; age; education; 
 
         motivation; functional impairment as a result of the injury; and 
 
         inability because of the injury to engage in employment for which 
 
         the employee is fitted.  Loss of earnings caused by a job 
 
         transfer for reasons related to the injury is also relevant.  
 
         These are matters which the finder of fact considers collectively 
 
         in arriving at the determination of the degree of industrial 
 
         disability.
 
         
 
              There are no weighting guidelines that indicate how each of 
 
         the factors are to be considered.  There are no guidelines which 
 
         give, for example, age a weighted value of ten percent of the 
 
         total value, education a value of fifteen percent of total, 
 
         motivation - five percent; work experience - thirty percent, etc.  
 
         Neither does a rating of functional impairment directly correlate 
 
         to a degree of industrial disability to the body as a whole.  In 
 
         other words, there are no formulae which can be applied and then 
 
         added up to determine the degree of industrial disability.  It 
 
         therefore becomes necessary for the deputy or commissioner to 
 
         draw upon prior experience, general and specialized knowledge to 
 
         make the finding with regard to degree of industrial disability.  
 
         See Peterson v. Truck Haven Cafe, Inc., (Appeal Decision, 
 
         February 28, 1985); Christensen v. Hagen, Inc., (Appeal Decision, 
 
         March 26, 1985).
 
         
 
              Under the odd-lot doctrine, which was formally adopted by 
 
         the Iowa Supreme Court in Guyton, supra, a worker becomes an 
 
         odd-lot employee when an injury makes the worker incapable of 
 
         obtaining employment in any well-known branch of the labor 
 
         market.  An odd-lot worker is thus totally disabled if the only 
 
         services the worker can perform are so limited in quality, 
 
         dependability, or quantity that a reasonably stable market for 
 
         them does not exist.  Id., citing Lee v. Minneapolis Street 
 
         Railway Company, 230 Minn. 315, 320, 41 N.W.2d 433, 436 (1950).  
 
         The rule of odd-lot allocates the burden of production of 
 
         evidence.  If the evidence of degree of obvious physical 
 
         impairment, coupled with other facts such as claimant's mental 
 
         capacity, education, training or age, places claimant prima facie 
 

 
         
 
         
 
         
 
         HARDY V. ABELL-HOWELL COMPANY
 
         PAGE  13
 
         
 
         
 
         
 
         in the odd-lot category, the burden should be on the employer to 
 
         show that some kind of suitable work is regularly and 
 
         continuously available to the claimant.  Certainly in such a case 
 
         it should not be enough to show that claimant is physically 
 
         capable of performing light work and then round out the case for 
 
         non-compensable by adding a presumption that light work is 
 
         available.  Guyton, 373 N.W.2d at 105.
 
         
 
              When a worker makes a prima facie case of total disability 
 
         by producing substantial evidence that the worker is not 
 
         employable in the competitive labor market, the burden to produce 
 
         evidence of suitable employment shifts to the employer.  If the 
 
         employer fails to produce such evidence and the trier of fact 
 
         finds the worker falls in the odd-lot category, the worker is 
 
         entitled to a finding of total disability.  Even under the 
 
         odd-lot doctrine, the trier of fact is free to determine the 
 
         weight and credibility of the evidence in determining whether the 
 
         worker's burden of persuasion has been carried.  Only in an 
 
         exceptional case would evidence be sufficiently strong to compel 
 
         a finding of total disability as a matter of law.  Guyton, 373 
 
         N.W.2d at 106.  The court went on to state:
 
         
 
                 The commissioner did not in his analysis address any 
 
              of the other factors to be considered in determining 
 
              industrial disability.  Industrial disability means 
 
              reduced earning capacity.  Bodily impairment is merely 
 
              one factor in a gauging industrial disability.  Other 
 
              factors include the worker's age, intelligence, 
 
              education, qualifications, experience, and the effect 
 
              of the injury on the worker's ability to obtain 
 
              suitable work.  See Doerfer Division of CCA v. Nicol, 
 
              359 N.W.2d 428, 438 (Iowa 1984).  When the combination 
 
              of factors precludes the worker from obtaining regular 
 
              employment to earn a living, the worker with only a 
 
              partial functional disability has a total disability.  
 
              See McSpadden v. Big Ben Coal Co., 288 N.W.2d 181, 192 
 
              Iowa 1980).
 
         
 
              In Diederich v. Tri-City R. Co., 219 Iowa 587, 258  N.W. 899 
 
         (1935) the court, addressing the issue of the meaning of 
 
         disability stated:
 
         
 
                 What is "permanent total disability"?  Does this 
 
              clause refer to "functional disability" or to 
 
              "industrial disability"?
 
         
 
                 For clearness we shall use the term "industrial 
 
              disability" as referring to disability from carrying on 
 
              a gainful occupation--inability to earn wages.  By 
 
              "functional disability" we shall refer to the 
 
              disability to perform one or more of the physical 
 
              movements which a normal human being can perform.
 
         
 
                 ....
 
         
 
                 It is obvious that "disability" here used cannot 
 
              refer to mere "functional disability',...
 
         
 

 
         
 
         
 
         
 
         HARDY V. ABELL-HOWELL COMPANY
 
         PAGE  14
 
         
 
         
 
         
 
                 It is ... 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 terms of percentages of 
 
              the total physical and mental ability of a normal man.
 
         
 
                 ....
 
         
 
              ... [T]he Compensation law was passed for the purpose 
 
              of compensating the working man when injured.  The loss 
 
              which this claimant suffered due to the injury which he 
 
              received while in the employ of the company is the 
 
              inability to carry on the work he was doing prior to 
 
              the time of the injury, or any work which he could 
 
              perform.  This man at fifty-nine years of age, after 
 
              thirty years as a street car motorman, with little 
 
              education, cannot find or hold a position that would 
 
              not require some manual labor, and, of course, due to 
 
              the condition of his back, he cannot perform such work.  
 
              To say that he might become a stenographer or a lawyer 
 
              or a clerk or a bookkeeper is to suppose the 
 
              impossible, for a fifty-nine-year old man, with no 
 
              education, is not capable of securing or filling any 
 
              such position.  His disability may be only a 
 
     
 
         
 
         
 
         
 
         
 
         HARDY V. ABELL-HOWELL COMPANY
 
         PAGE  15
 
         
 
         
 
         
 
              twenty-five or thirty per cent disability compared with 
 
              the one hundred per cent perfect man, but, from the 
 
              standpoint of his ability to go back to work to earn a 
 
              living for himself and his family, his disability is a 
 
              total disability, for he is not able to again operate 
 
              the street car and perform the work which the company 
 
              demanded of him prior to the time of the accident.
 
         
 
              The basis of compensation is the weekly earnings of the 
 
         injured employee at the time of the injury.  Iowa Code section 
 
         85.36.  Weekly earnings is defined in Iowa code section 85.36:
 
              Weekly earnings means gross salary, wages, or earnings 
 
              of an employee to which such employee would have been 
 
              entitled had he worked the customary hours for the full 
 
              pay period in which he was injured, as regularly 
 
              required by his employer for the work or employment for 
 
              which he was employed,....
 
         
 
              Section 85.36 also provides various methods of computing 
 
         weekly earnings depending upon the type of earnings and 
 
         employment.  If an employee is paid on a weekly basis, the weekly 
 
         gross earnings shall be the basis of the compensation.  Section 
 
         85.36(l), Code of Iowa.  If an employee is paid on a daily basis 
 
         or hourly basis or by output, the weekly earnings are computed by 
 
         dividing by thirteen the earnings over the thirteen week period 
 
         prior to the work injury.  Section 85.36(6), Code of Iowa.
 
         
 
                                     ANALYSIS
 
         
 
              Claimant has met his burden of proving there is a causal 
 
         connection between the fall which claimant sustained on January 
 
         11, 1986 and the disability on which he now bases his claim.  The 
 
         medical testimony of Dr. Hermann supports a direct causal 
 
         connection.  Furthermore, there is no evidence to indicate 
 
         claimant had ever had back problems prior to the date of the 
 
         injury, or that claimant was incapable of performing his job 
 
         duties prior to the January eleventh date.
 
         
 
              Claimant has also established he has an impairment to the 
 
         body as a whole.  Therefore, an industrial disability has been 
 
         sustained.
 
         
 
              Physicians for both sides agree claimant has a functional 
 
         impairment.  They disagree as to the extent of the functional 
 
         impairment.  More weight should be accorded the treating 
 
         physician.
 
         
 
              The treating physician for claimant is a board certified 
 
         orthopedic surgeon.  Dr. Hermann assessed a 25 to 30 percent 
 
         functional impairment of the body as a whole.  This rating was 
 
         based solely on claimant's back injury.  However, the impairment 
 
         rating was not calculated according to the Guides to the 
 
         Evaluation of Permanent Impairment by the AMA.  Dr. Hermann 
 
         calculated the impairment rating as follows:
 
         
 
              Q   DOCTOR, IOD LIKE TO GO BACK TO THE ASSIGNMENT THE 
 
              PERMANENT PHYSICAL IMPAIRMENT ASSIGNMENT THAT YOU GAVE 
 
              TO MR. HARDY'S BACK OF TWENTY-FIVE PERCENT.
 

 
         
 
         
 
         
 
         HARDY V. ABELL-HOWELL COMPANY
 
         PAGE  16
 
         
 
         
 
         
 
         
 
              Q   HOW IS THAT -- IS THAT BASED SOLELY UPON THE 
 
              AMERICAN MEDICAL ASSOCIATION, OR THE ORTHOPEDIC GUIDE? 
 
              OR HOW DID YOU ARRIVE AT THAT?
 
         
 
              A   ORDINARILY, WITH A BACK THAT IS OPERATED OR 
 
              INJURED, AND HAS THE EQUIVALENT INJURY OF SURGERY, THE 
 
              SAME RESTRICTION AS SURGERY, IF IT HAS A GOOD RESULT, 
 
              WE NORMALLY CONSIDER ABOUT A TWENTY PERCENT DISABILITY 
 
              BECAUSE OF THE INJURY -- BECAUSE OF THE INSULT OF THE 
 
              SURGERY, ET CETERA, ET CETERA.  IN TRYING TO CORRELATE 
 
              THAT WITH MR. HARDY, WHO HAS A PROBLEM THAT IS NOT 
 
              COMMENSURATE WITH A GOOD RESULT FROM SURGERY, OR A GOOD 
 
              RESULT FOLLOWING INJURY, HE STILL -- HE DOES HAVE 
 
              SEQUELA, HE HAS RADICULOPATHY, THE PAIN RADIATING INTO 
 
              THE LEGS.  HE HAS THE PAIN WHEN HE TRIES TO LIFT OR 
 
              TRIES TO STAND.  THAT THEN RAISES IT TO TWENTY-FIVE TO 
 
              THIRTY PERCENT, BECAUSE OF THE SEQUELA THAT HE DOES 
 
              HAVE.  THAT'S THE WAY I WOULD RATE IT, OR WHY I RATED 
 
              HIM THAT WAY.
 
         
 
              Q   DOES THIS PERMANENT PHYSICAL IMPAIRMENT OF MR. 
 
              HARDYOS BACK, DOCTOR, PRECLUDE HIM FROM ENGAGING ONE 
 
              HUNDRED PERCENT IN THE WORK THAT HE FORMERLY ENGAGED IN 
 
              AS AN IRON WORKER?
 
         
 
              A  YES.  YES, IT DOES.
 
         
 
         (Ex. P, p. 40, 11. 7-25)
 
         
 
              One of defendants' physicians, Dr. Boarini, a neurologist, 
 
         not an orthopedic surgeon, assessed a three percent impairment of 
 
         the whole man based on the back alone.  Dr. Boarini did not 
 
         believe claimant would be able to handle returning to his 
 
         position as an ironworker.  This physician only saw claimant on 
 
         two occasions.  Both visits were for purposes of examination and 
 
         evaluation only.  Dr. Boarini was not the treating physician.
 
         
 
              The second of defendants' physicians, Dr. Cunningham, 
 
         neglected to discuss an impairment rating.  He did find evidence 
 
         of a ruptured disk at the L-4 level.
 
         
 
              Defendants assert that any functional impairment rating 
 
         assessed by claimant's physician must be discredited because 
 
         claimant refuses to submit to an epidural block or to a 
 
         laminectomy.  Defendants argue claimant's refusal is subjective 
 
         and unreasonable based upon unfounded fears.  The undersigned 
 
         finds otherwise.
 
         
 
              Dr. Hermann could not state claimant's condition would 
 
         improve if surgery was performed.  Dr. Hermann stated some 
 
         conditions worsened after surgery.  Even with surgical 
 
         intervention, claimant would not be able to return to his 
 
         position as an ironworker.  Claimant testified he had seen news 
 
         accounts on the epidural block and he had spoken to others who 
 
         had had the laminectomy.  From both sources, claimant had 
 
         received negative view points.  Therefore, it would not be 
 
         unreasonable for claimant to refuse surgery.
 

 
         
 
         
 
         
 
         HARDY V. ABELL-HOWELL COMPANY
 
         PAGE  17
 
         
 
         
 
         
 
         
 
              While claimant asserts the.applicability of the odd-lot 
 
         doctrine, it is concluded that whether or not claimant is an 
 
         odd-lot employee under Guyton is irrelevant to this case as the 
 
         evidence presented establishes claimant is permanently and 
 
         totally disabled under the principles recited in Diederich.
 
         
 
              Dr. Hermann reported claimant is to avoid all bending, 
 
         stooping or lifting.  Claimant is to avoid riding in vehicles.  
 
         He is unable to sit for more than 20 or 30 minutes.  Claimant is 
 
         unable to walk more than six blocks.  Claimant is unable to stand 
 
         for more than 20 minutes.  Claimant is under lifting 
 
         restrictions.
 
         
 
              Claimant is 57 years old and was 55 at the time of his 
 
         injury.  Claimant's work history is primarily that of a laborer 
 
         which required a sustained physical effort on his part.  Clearly, 
 
         as a result of his injuries, claimant has been precluded from 
 
         this type of employment. claimant has an eleventh grade 
 
         education.  Mr. Paprocki does not believe claimant is functioning 
 
         even on that level.  Further education appears remote.  
 
         Claimant's current skills, including welding, do not transfer to 
 
         sedentary type jobs.  Besides, claimant is incapable of sitting 
 
         or standing beyond 30 minutes.  He is unable to work an eight 
 
         hour shift.  Claimant's limitations are clearly a result of his 
 
         injuries.  Claimant has relocated.  Yet, his relocation will not 
 
         enhance his employability since his employability is not directly 
 
         related to the area in which he lives.
 
         
 
              Claimant has established to the satisfaction of the 
 
         undersigned that he is capable of working for only 20 to 30 
 
         minutes before he is required to lie down and rest.  Claimant may 
 
         not have the mental capacities to complete retraining and/or 
 
         further his education.  Claimant's age is working against any 
 
         further academic endeavors.  Given the above, claimant has 
 
         established that he is permanently and totally disabled from 
 
         employment during the period of his disability.  See: Iowa code 
 
         section 85.34(3).  It is unnecessary to further evaluate 
 
         claimant's status or disability under the Guyton test.  However, 
 
         even if the factors of Guyton are applicable, claimant is a 
 
         worker incapable of securing employment in any well-known blanch 
 
         of the labor market.  Claimant is totally disabled under Guyton 
 
         in that the only services claimant can perform are so limited in 
 
         quality, dependability, or quantity that a reasonably stable 
 
         labor market for him does not exist.
 
         
 
              Also in dispute, is claimant's entitlement to healing period 
 
         benefits.  Section 85.34(l) of the Iowa Code defines healing 
 
         period as follows:
 
         
 
              If an employee has suffered a personal injury causing 
 
              permanent partial disability for which compensation is 
 
              payable as provided in subsection 2 of this section, 
 
              the employer shall pay to the employee compensation for 
 
              a healing period, as provided in section 85.37, 
 
              beginning on the date of injury, and until the employee 
 
              has returned to work or it is medically indicated that 
 
              significant improvement from the injury is not 
 

 
         
 
         
 
         
 
         HARDY V. ABELL-HOWELL COMPANY
 
         PAGE  18
 
         
 
         
 
         
 
              anticipated or until the employee is medically capable 
 
              of returning to employment substantially similar to the 
 
              employment in which the employee was engaged at the 
 
              time of injury, whichever occurs first. (Emphasis 
 
              added).
 
         
 
              Because this case involves permanent total disability 
 
         benefits, the undersigned does not need to address the issue of 
 
         healing period benefits.
 
         
 
              Also at issue is claimant's entitlement to certain medical 
 
         benefits under Iowa Code section 85.27.  Claimant is entitled to 
 
         be reimbursed for pharmacy expenditures in the sum of $317.97. 
 
         Claimant is also entitled to be reimbursed for mileage as 
 
         follows:
 
         
 
              1-18-86 to 7-1-86       2677.5 miles  x  .24  =  $642.60
 
         plus 
 
              7-1-86 to 7-16-88       2448 miles    x  .21  =  $514.08
 
         
 
                                         Total               $1,156.68
 
         
 
              The final issue for disposition is the appropriate rate of 
 
         compensation.  At the time of the injury claimant was married 
 

 
         
 
         
 
         
 
         HARDY V. ABELL-HOWELL COMPANY
 
         PAGE  19
 
         
 
         
 
         
 
         with two exemptions.  Defendants eventually paid claimant at the 
 
         rate of $270.76 per week for 61 weeks.  However, initially, 
 
         defendants calculated the rate as follows:
 
         
 
              Started 7/23/85
 
              w/e 7/27/85                   496.00
 
              came back 10/16/85
 
              w/e 10/19/85                  120.00
 
              w/e 10/26/85                        
 
              w/e 11/2/85                         
 
              w/e 11/9/85                    60.00
 
              w/e 11/16/85                  496.00
 
              w/e 11/23/85                  620.00
 
              w/e 11/30/85                  372.00
 
              w/e 12/7/85                   620.00
 
              w/e 12/14/85                  651.00
 
              w/e 12/21/85                  372.00
 
              w/e 12/28/85                  201.50
 
              w/e 1/4/86                          
 
              w/e 1/11/86                   209.25
 
         
 
         Claimant disputes this method of calculation.  Claimant contends 
 
         the correct weekly benefit rate for the claimant is $288.87.  He 
 
         calculates this rate as follows:
 
         
 
              ...There were five weeks of the thirteen weeks prior to 
 
              the date of injury at Abell-Howe that did not represent 
 
              completed weeks of employment.  Therefore, the five 
 
              prior weeks of work had to be considered.  This 
 
              employment was with Chilstrom Wayne Gateway.  See the 
 
              following for Claimant's calculation of the appropriate 
 
              rate.
 
         
 
              Week Ending             Employer              Amount
 
              8/22/85                 Chilstrom              $544
 
              8/29/85                 Chilstrom              $584
 
                                      (Exhibit 1)
 
              9/5/85                  Chilstrom              $528
 
              9/12/85                 Chilstrom              $512
 
              9/19/85                 Chilstrom              $416
 
              10/19/85                Abell-Howe Co.         $120
 
              11/16/85                Abell-Howe Co.         $496
 
              11/23/85                Abell-Howe Co.         $620
 
              11/30/85                Abell-Howe Co.         $372
 
              12/7/85                 Abell-Howe Co.         $620
 
              12/14/85                Abell-Howe Co.         $651
 
              12/21/85                Abell-Howe Co.         $372
 
              12/28/85                Abell-Howe Co.         $201.50
 
              1/11/86                 Abell-Howe Co.         $209.25
 
         
 
                           TOTAL for 13 weeks              $6,185.75
 
         
 
              Average Weekly Gross Earnings:               $  475.83
 
                   ($6,185.75 divided by 13)
 
         
 
              Weekly Benefit Rate for Gross
 
              Weekly Earnings of                           $  475.83
 
              with 2 exemptions:                           $  288.87
 

 
         
 
         
 
         
 
         HARDY V. ABELL-HOWELL COMPANY
 
         PAGE  20
 
         
 
         
 
         
 
         
 
                 The following five weeks of the 13 weeks prior to 
 
              Claimant's injuries are not representative weeks for 
 
              the following reasons:
 
         
 
                 a.  Claimant was laid off from Abell-Howe because of 
 
              no work for weeks ending 10/26/85, 11/2/85, and 
 
              1/4/86.
 
         
 
                 b.  Claimant worked only part of one day during the 
 
              week ending 11/9/85 ($60 earnings) because of work 
 
              missed due to steel poisoning at work.
 
         
 
                 c. The week ending 10/19/85 was only a partially 
 
              completed week with earnings of $120.  Claimant worked 
 
              only part of the week ending 10/19/85 because of no 
 
              work from the employer.
 
         
 
                 Because of the foregoing, the five weeks prior 
 
              thereto had to be considered.  This was work performed 
 
              by Allen Hardy at Chilstrom.  The check stubs from 
 
              Chilstrom and Abell-Howe are attached hereto.
 
         
 
              The undersigned finds the correct method of calculation is 
 
         as follows:
 
         
 
              Add all weekly earnings for the ten weeks worked.  Divide by 
 
         the number of weeks for which there are earnings.
 
         
 
              $  496.00
 
                 120.00
 
                  60.00
 
                 496.00
 
                 620.00
 
                 372.00
 
                 620.00
 
                 651.00
 
                 372.00
 
                 201.50
 
              $4,008.50 divided by 10 =
 
         
 
              $400.85 average weekly earnings.  Use the figure for the 
 
         average weekly earnings and compute as follows:
 
         
 
              Started 7/23/85
 
              w/e 7/27/85                496.00
 
              came back 10/16/85
 
              w/e 10/19/85               120.00
 
              w/e 10/26/85               400.85
 
              w/e 11/2/85                400.85
 
              w/e 11/9/85                 60.00
 
              w/e 11/16/85               496.00
 
              w/e 11/23/85               620.00
 
              w/e 11/30/85               372.00
 
              w/e 12/7/85                620.00
 
              w/e 12/14/85               651.00
 
              w/e 12/21/85               372.00
 
              w/e 12/28/85               201.50
 

 
         
 
         
 
         
 
         HARDY V. ABELL-HOWELL COMPANY
 
         PAGE  21
 
         
 
         
 
         
 
              w/e 1/4/86                 400.85
 
              w/e 1/11/86                400.85
 
                                       5,211.05 divided by 13 = $400.85
 
         
 
              According to the benefit schedule, claimant is married with 
 
         two exemptions.  His weekly compensation rate is $248.87 per 
 
         week.
 
         
 
                     FINDINGS OF FACT AND CONCLUSIONS OF LAW
 
         
 
              WHEREFORE, based on the evidence presented and the 
 
         principles of law previously stated, the following findings of 
 
         fact and conclusions of law are made:
 
         
 
              FINDING 1.  On January 11, 1986, claimant received an injury 
 
         while working for defendants.
 
         
 
              FINDING 2.  As a result of the injury, claimant now has a 
 
         permanent functional impairment of 25 to 30 percent of the body 
 
         as a whole.
 
         
 
              CONCLUSION A.  Claimant- has met his burden of proving his 
 
         present back injury is causally connected to his injury on 
 
         January 11, 1986.
 
         
 
              FINDING 3.  Claimant is a 57 year old individual.who went 
 
         through the eleventh grade in high school.
 
         
 
              FINDING 4.  Claimant has spent most of his working career 
 
         engaged in highly physical occupations.
 
         
 
              CONCLUSION B.  As a result of his injury on January 11, 
 
         1986, claimant has a permanent total disability.
 
         
 
              FINDING 5.  Claimant's rate of weekly compensation is 
 
         $248.87 per week.
 
         
 
              FINDING 6.  Claimant has incurred medical expenses and 
 
         mileage as a result of the January 11, 1986 injury.
 
         
 
               CONCLUSIONS C.  Claimant is entitled to have the following 
 
         paid by defendants:
 
         
 
              pharmacy expenditures        $  317.97
 
              mileage                       1,156.68
 
                               Total       $1,474.65
 
         
 
                                      ORDER
 
         
 
              THEREFORE, defendants are to pay unto claimant weekly 
 
         benefits for the duration of claimant's period of permanent total 
 
         disability with said benefits commencing on January 11, 1986 and 
 
         running continuously with the exception of twelve (12) days when 
 
         claimant attempted to return to work at a rate of two hundred 
 
         forty-eight and 87/100 dollars ($248.87) per week.
 
         
 
              Defendants are also to pay unto claimant mileage and 
 
         pharmacy charges in the amount of one thousand four hundred 
 

 
         
 
         
 
         
 
         HARDY V. ABELL-HOWELL COMPANY
 
         PAGE  22
 
         
 
         
 
         
 
         seventy-four and 65/100 dollars ($1,474.65).
 
         
 
              Defendants shall take credit for benefits previously paid 
 
         claimant.
 
         
 
              Accrued benefits are to be made in a lump sum together with 
 
         statutory interest at the rate of ten percent (10%) per year 
 
         pursuant to section 85.30, Iowa code, as amended.
 
         
 
              Costs are taxed to defendants pursuant to Division of 
 
         Industrial Services Rule 343-4.33 which shall include the 
 
         following costs which have been advanced by claimant:
 
         
 
                                                          Amount
 
              Northeast Missouri Orthopedic
 
              Associates, P.C.records                      15.00
 
         
 
              Smart Corp. Grim-Smith Hospital
 
              Med records                                  35.25
 
         
 
              Edward Hermann, D.O. - deposition
 
              Paid $500.00                                150.00
 
         
 
              Susan Kirkpatrick-Certified Court
 

 
         
 
         
 
         
 
         HARDY V. ABELL-HOWELL COMPANY
 
         PAGE  23
 
         
 
         
 
         
 
              Reporter - Hermann Deposition               308.40
 
         
 
              G. Brian Paprocki - vocational              150.00
 
         
 
              Dr. Hermann - deposition                    150.00
 
         
 
              Susan Richardson, Court Reporter            185.60
 
         
 
                                  Total                  $994.25
 
         
 
              Defendants shall file a claim activity report upon payment 
 
         of this award.
 
         
 
              Signed and filed this 23rd day of November, 1988.
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
                                        MICHELLE A. McGOVERN
 
                                        DEPUTY INDUSTRIAL COMMISSIONER
 
         
 
         Copies To:
 
         
 
         Mr. Dennis W. Emanuel
 
         Attorney at Law
 
         112 N. Court
 
         P. O. Box 601
 
         Ottumwa, Iowa 52501
 
         
 
         Mr. Walter F. Johnson
 
         Attorney at Law
 
         111 W. Second St.
 
         P. O. Box 716
 
         Ottumwa, Iowa 52501
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                                1402.60; 1803
 
                                                Filed November 23, 1988
 
                                                MICHELLE A. McGOVERN
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         ALLEN F. HARDY,
 
         
 
              Claimant,                         File No. 814126
 
         
 
         vs.                                 A R B T T R A T I O N
 
         
 
         ABELL-HOWELL COMPANY,                  D E C I S I O N
 
         
 
              Employer,
 
         
 
         and
 
         
 
         LIBERTY MUTUAL INSURANCE CO.,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         
 
         1402.60
 
         
 
              As a result of the January 11, 1986 injury, claimant is 
 
         entitled to the reimbursement of reasonable medical expenses 
 
         which he has incurred.
 
         
 
         1803
 
         
 
              Claimant awarded permanent total disability subsequent to 
 
         injury resulting in functional impairment of the body as a 
 
         whole.