BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
          ROBERT A. SLIFER, JR.,
 
          
 
               Claimant,
 
          
 
          VS.
 
                                               File  No. 814202
 
          SWIFT INDEPENDENT PACKING
 
          COMPANY,                          A R B I T R A T I 0 N
 
          
 
               Employer,                        D E C I S I 0 N
 
          
 
          and
 
         
 
         TRANSPORTATION INSURANCE
 
         COMPANY/CNA
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
                                   INTRODUCTION
 
                                        
 
              This is a proceeding in arbitration wherein Robert A. 
 
         Slifer, Jr., seeks additional compensation for permanent partial 
 
         disability.  The case was heard and fully submitted on November 
 
         2, 1988 at Fort Dodge, Iowa.  The record in the proceeding 
 
         consists of claimant's exhibit A, defendants' exhibits 1 through 
 
         11, and the testimony of claimant, Elmer Freese, and John C. 
 
         Jontz.
 
         
 
                                      ISSUES
 
                                        
 
              The issues presented by the parties for determination are 
 
         whether claimant sustained an injury on December 13, 1985,.which 
 
         arose out of and in the course of employment with the employer; 
 
         whether the alleged injury is a cause of temporary or permanent 
 
         disability; and, determination of claimant's entitlement, if any, 
 
         to compensation for permanent partial disability.  It was 
 
         stipulated by the parties that, in the event of an award, 
 
         claimant's healing period entitlement commences on December 14, 
 
         1985 and runs through July 15, 1986.  It was stipulated that any 
 
         compensation for permanent partial disability should be payable 
 
         commencing, July 16, 1986 and that the rate of compensation is 
 
         $240.74 per week.  It was further stipulated that defendants are 
 
         entitled to credit for 29 and 5/7 weeks of healing period 
 
         compensation previously paid and for 125 weeks of permanent 
 
         partial disability compensation.
 
         
 
         
 
         
 
         SLIFER V. SWIFT INDEPENDENT PACKING COMPANY
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         Page 2
 
         
 
         
 
                               SUMMARY OF EVIDENCE
 
                                        
 
              The following is a summary of evidence presented in this 
 
         case.  Of all the evidence received at the hearing, only that 
 
         considered most pertinent to this decision is discussed.  
 
         Conclusions about what the evidence showed are inevitable with 
 
         any summarization.  The conclusions in the following summary 
 
         should be considered to be preliminary findings of fact.
 
         
 
              Robert A. Slifer, Jr., is a 35-year-old high school 
 
         graduate.  Slifer has worked in a factory, at a grain elevator 
 
         and has performed odd jobs.  Slifer has been employed by Swift 
 
         Independent Packing Company since 1974 where he has performed a 
 
         multitude of different jobs.  Claimant denied having sustained 
 
         any injuries to his back prior to the commencement of his 
 
         employment with Swift.
 
         
 
              Slifer engaged in sports when he was in high school and has 
 
         since engaged in activities such as softball, flag football, 
 
         hunting, fishing and horseback riding.
 
         
 
              Slifer testified that, on December 13, 1985, he was coming 
 
         down off a ladder backwards when his left foot stepped onto a 
 
         piece of fat on the floor and slid causing him to do "the 
 
         splits."  Claimant stated that he felt pain in his low back 
 
         immediately, but did not think too much about it and went on to 
 
         another job.  He stated that the pain kept increasing so he 
 
         contacted the nurse who eventually sent him to E. L. Keyser, M.D. 
 
         Claimant stated that Dr. Keyser examined him and found nothing, 
 
         but took him off work for a week.  Claimant stated that, when he 
 
         did not recover, a CT scan was  performed which was interpreted 
 
         as showing a ruptured disc.  Claimant was referred to Thomas A. 
 
         Carlstrom, M.D. After conservative treatment and diagnostic 
 
         testing, claimant underwent lumbar laminectomy surgery on March 
 
         7, 1986 at which time it was found that claimant had herniated 
 
         discs at the L4,5 and L5,Sl levels of his spine.  The free 
 
         fragments were removed and the discs were curetted out in order 
 
         to decompress the nerve roots (exhibit 1, page 93).  On May 27, 
 
         1986, Dr. Carlstrom indicated that claimant would be a poor 
 
         candidate for returning to work requiring heavy exertion.  On 
 
         July 16, 1986, Dr. Carlstrom indicated that claimant had attained 
 
         maximum benefits of healing and rated his permanent impairment at 
 
         8-10 percent of the body as a whole (exhibit 1, page 20).  
 
         Thereafter, on July 22, 1986, Dr. Carlstrom recommended 
 
         restrictions upon claimant's activities including avoidance of 
 
         heavy lifting, a maximum lifting limit of 35-40 pounds, avoidance 
 
         of repetitive lifting and avoidance of prolonged sitting or 
 
         standing (exhibit 1, page 19).  On September 25, 1986, however, 
 
         after observing videotapes of claimant engaging in trail riding 
 
         activities, Dr. Carlstrom changed his assessment to state that 
 
         claimant could work without restrictions and reduced the 
 
         impairment rating to five percent of the body as a whole (exhibit 
 
         1, page 15).
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         
 
         
 
         SLIFER V. SWIFT INDEPENDENT PACKING COMPANY
 
         Page 3
 
         
 
         
 
              Following recuperation from surgery, claimant exhibited a 
 
         great deal of difficulty in making a successful resumption of 
 
         employment.
 
         
 
              Claimant was evaluated by Mark P. Brodersen, M.D., who 
 
         concluded that claimant had a physical impairment of 20 percent 
 
         of the person due to persistent pain and the surgical 
 
         proceedings.  Dr. Brodersen, who also examined the depictions of 
 
         claimant's horseback riding, stated that the fact that claimant 
 
         engaged in those activities is not completely conclusive since 
 
         bales of hay can vary in weight, with some being within the 
 
         weight limits initially suggested by Dr. Carlstrom, and also 
 
         since the activities were done for short periods of time rather 
 
         than on an all day, every day basis.  Dr. Brodersen recommended 
 
         that claimant avoid lifting objects on a regular basis which 
 
         weigh more than 40 pounds and that he also avoid repetitive 
 
         bending, lifting and twisting (exhibit 1, pages 1-4).
 
         
 
              Claimant was also evaluated by John R. Walker, M.D., who 
 
         concluded that claimant presently had a temporary disability of 
 
         65 percent, but that it would be reducible to 27 percent with 
 
         further surgical treatment.  He recommended that claimant 
 
         restrict his activities.
 
         
 
              Claimant was gainfully employed on a full-time basis at the 
 
         time of hearing performing work similar to, but lighter than, 
 
         that which he had performed at the time of injury.  He stated 
 
         that he has bid into the lighter jobs and that doing so has 
 
         reduced his income.  Claimant complained of continuing residual 
 
         pain and difficulties.
 
         
 
              The record contains five video cassettes  and  numerous 
 
         photographs which demonstrate that claimant is capable of 
 
         performing activities which are within the range of activities 
 
         that would have been contemplated by Dr. Carlstrom's original 
 
         restrictions.  Claimant did not deny being capable of performing 
 
         activities of the nature initially recommended by Dr. Carlstrom 
 
         or those shown in the video cassette or photographic depictions.
 
         
 
              Claimant has sought additional care and further surgery has 
 
         been identified as a possible course of conduct, but only Dr. 
 
         Walker recommends further surgery at this time.
 
         
 
                           APPLICABLE LAW AND ANALYSIS
 
                                        
 
              Claimant has the burden of proving by a preponderance of the 
 
         evidence that he received an injury on December 13, 1985 which 
 
         arose out of and in the course of his employment. McDowell v. 
 
         Town of Clarksville, 241 N.W.2d 904 (Iowa 1976); Musselman v. 
 
         Central Telephone Co., 261 Iowa 352, 154 N.W.2d .128 (1967).
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         
 
         
 
         SLIFER V. SWIFT INDEPENDENT PACKING COMPANY
 
         Page 4
 
         
 
         
 
              Claimant's appearance and demeanor was observed when he 
 
         testified.  All the records in the case were considered.  It is 
 
         determined that claimant did injure his back when he stepped from 
 
         the ladder on December 13, 1985 as he testified, despite the 
 
         existence of apparent inconsistencies found in some of the 
 
         medical reports and records.  It is therefore determined that 
 
         claimant sustained an injury to his back on December 13, 1985 
 
         which arose out of and in the course of his employment with Swift 
 
         Independent Packing Company.
 
         
 
              The claimant has the burden of proving by a preponderance of 
 
         the evidence that the injury of December 13, 1985 is causally 
 
         related to the disability on which he now bases his claim. Bodish 
 
         v. Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867 (1965). Lindahl v. 
 
         L.O. Boggs, 236 Iowa 296, 18 N.W.2d 607 (1945).  A possibility is 
 
         insufficient; a probability is necessary. Burt v. John Deere 
 
         Waterloo Tractor Works, 247 Iowa 691, 73 N.W.2d 732 (1955).  The 
 
         question of causal connection is essentially within the domain of 
 
         expert testimony.  Bradshaw v. Iowa Methodist Hospital, 251 Iowa 
 
         375, 101 N.W.2d 167 (1960).
 
         
 
              However, expert medical evidence must be considered with all 
 
         other evidence introduced bearing on the causal connection. 
 
         Burt, 247 Iowa 691, 73 N.W.2d 732.  The opinion of experts need 
 
         not be couched in definite, positive or unequivocal language. 
 
         Sondag v. Ferris Hardware, 220 N.W.2d 903 (Iowa 1974).  However, 
 
         the expert opinion may be accepted or rejected, in whole or in 
 
         part, by the trier of fact.  Id. at 907.  Further, the weight to 
 
         be given to such an opinion is for the finder of fact, and that 
 
         may be affected by the completeness of the premise given the 
 
         expert and other surrounding circumstances.  Bodish, 257 Iowa 
 
         516, 133 N.W.2d 867.  See also Musselman v. Central Telephone Co.
 
         , 261 Iowa 352, 154 N.W. d@128 (1967).
 
         
 
              Dr. Carlstrom indicated that the incident of stepping down 
 
         at work which claimant described to him was a likely cause for 
 
         his problems (exhibit 1, page 26).  Dr. Walker and Dr. Brodersen 
 
         agree on the issue of causation (exhibit 1, page 83; exhibit 1, 
 
         page 1).  While defense counsel speculates upon other possible 
 
         sources of injury or causes of injury, the evidence in the case 
 
         fails to support the speculation.  It is therefore determined 
 
         that the injury of doing "the splits" when stepping off a ladder 
 
         and onto a piece of fat on the floor is a proximate cause of the 
 
         herniated discs which were found in claimant's back at the time 
 
         of surgery and of the resulting permanent partial disability 
 
         affecting claimant's back at the present time.  While there is 
 
         some evidence in the record that claimant may have previously 
 
         injured his back, there is no showing that any prior back injury 
 
         had produced any permanent disability or limitations which 
 
         preexisted December 13, 1985.  Accordingly, it is determined that 
 
         all of claimant's current disability was proximately caused by 
 
         the December 13, 1985 injury.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         
 
         
 
         SLIFER V. SWIFT INDEPENDENT PACKING COMPANY 
 
         Page 5
 
         
 
         
 
              As claimant has an impairment to the body as a whole, an 
 
         industrial disability has been sustained.  Industrial disability 
 
         was defined in Diederich v. Tri-City Railway Co., 219 Iowa 587, 
 
         593, 258 N.W. 899, 902 (1935) as follows: "It is therefore plain 
 
         that the legislature intended the term 'disability' to mean 
 
         'industrial disability' or loss of earning capacity and not a 
 
         mere 'functional disability' to be computed in the terms of 
 
         percentages of the total physical and mental ability of a normal 
 
         man."
 
         
 
              Functional impairment is an element to be considered in 
 
         determining industrial disability which is the reduction of 
 
         earning capacity, but consideration must also be given to the 
 
         injured employee's age, education, qualifications, experience and 
 
         inability to engage in employment for which he is fitted. Olson 
 
         v. Goodyear Service Stores, 255 Iowa 1112, 1121 125 N.W.2d 251, 
 
         257 (1963).
 
         
 
              Claimant has undergone surgery at two levels of his spine.  
 
         He exhibits complaints of continuing pain.  He exhibits 
 
         neurological changes in his left leg.  Much of the defense of 
 
         this case deals with claimant's activities at his home and while 
 
         attending a trail ride.  Upon observing all the photographs and 
 
         videotapes together with all the other evidence in the record, it 
 
         is determined that the initial evaluation made by Dr. Carlstrom 
 
         and the evaluation made by Dr. Brodersen are most fairly 
 
         representative of claimant's actual physical status.  As 
 
         indicated by Dr. Brodersen, bales of hay can vary in weight with 
 
         many weighing less than 35 pounds.  The ability to engage in 
 
         activities at one's own pace and in a manner which an individual 
 
         finds to be relatively comfortable is much different from 
 
         engaging in all day, every day types of activities which are 
 
         performed at a competitive pace.  Claimant has resumed employment 
 
         in positions that are appropriate for his physical limitations.  
 
         The employer's action in making work available to him within his 
 
         limitations has avoided claimant from experiencing what could 
 
         have otherwise been a very substantial wage loss.  The 25 percent 
 
         permanent partial disability which defendants had voluntarily 
 
         chosen to pay is appropriate and fairly represents claimant's 
 
         permanent partial disability.
 
         
 
              Since claimant prevailed upon the issue of determining 
 
         whether or not his injury arose out of and in the course of 
 
         employment, claimant is entitled to recover costs, despite the 
 
         fact that he has been fully paid for all permanent partial 
 
         disability to which he is entitled.  Establishing liability is 
 
         necessary to ensure rights for future medical care and to 
 
         review-reopen.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
                                 FINDINGS OF FACT
 
                                        
 
              1. Robert A. Slifer, Jr., injured his low back on December 
 
         13, 1985 when he stepped off a ladder onto a piece of fat.
 
         
 
         
 
         
 
         SLIFER V. SWIFT INDEPENDENT PACKING COMPANY
 
         Page 6
 
         
 
         
 
              2. That injury was a substantial factor in producing two 
 
         herniated lumbar discs in his low back and also in producing the 
 
         residual physical impairment which exists regarding his low back.
 
         
 
              3. Claimant has a 10-20 percent impairment of his low back 
 
         and is restricted in his activities to include lifting of not 
 
         more than 40 pounds on a regular basis and avoidance of 
 
         repetitive motions involving his low back, all as indicated by 
 
         Dr. Carlstrom in his initial report and by Dr. Brodersen.
 
         
 
              4. The activities shown in the video cassettes are not 
 
         inconsistent with the restrictions initially indicated by Dr. 
 
         Carlstrom or those which were issued by Dr. Brodersen.
 
         
 
              5. Claimant has sustained a 25 percent loss of his earning 
 
         capacity as a result of the injuries he sustained on December 13, 
 
         1985.
 
         
 
              6. There is no evidence in the record which establishes that 
 
         claimant had any permanent disability affecting his low back 
 
         prior to December 13, 1985.
 
         
 
                                CONCLUSIONS OF LAW
 
                                        
 
              1.This agency has jurisdiction of the subject matter of this 
 
         proceeding and its parties.
 
         
 
              2. Robert A. Slifer, Jr., sustained an injury to his low 
 
         back on December 13, 1985 which arose out of and in the course of 
 
         his employment with Swift Independent Packing Company.
 
         
 
              3.The injury was followed by a period of recuperation and 
 
         healing for which claimant was paid 29 and 5/7 weeks of healing 
 
         period compensation, an amount stipulated to be correct.
 
         
 
              4. Claimant has a 25 percent permanent,partial disability of 
 
         the body as a whole which entitles him to receive 125 weeks of 
 
         compensation for permanent partial disability.
 
         
 
              5. Claimant is entitled to recover the costs of this.action 
 
         since claimant prevailed on the disputed issue of liability.
 
         
 
                                      ORDER
 

 
         
 
 
 
 
 
 
 
 
 
 
 
                                        
 
              IT IS THEREFORE ORDERED that defendants pay claimant one 
 
         hundred twenty-five (125) weeks of compensation for permanent 
 
         partial disability at the stipulated rate of two hundred forty 
 
         and 74/100 dollars ($240.74) per week payable commencing July 16, 
 
         1986.  Defendants are entitled to full credit for all amounts 
 
         previously paid.
 
         
 
         
 
         
 
         SLIFER V. SWIFT INDEPENDENT PACKING COMPANY
 
         Page 7
 
         
 
         
 
              IT IS FURTHER ORDERED that defendants pay the costs of this 
 
         proceeding pursuant to Division of Industrial Services Rule 
 
         343-4.33.
 
         
 
              IT IS FURTHER ORDERED that defendants file claim activity 
 
         reports as requested by this agency pursuant to Division of 
 
         Industrial Services Rule 343-3.1.
 
         
 
              Signed and filed this 27th day of June, 1989.
 
         
 
         
 
                                         MICHAEL G. TRIER
 
                                         DEPUTY INDUSTRIAL COMMISSIONER
 
         
 
         
 
         
 
         Copies To:
 
         
 
         Mr. Patrick L. Wilson
 
         Attorney at Law
 
         208 Masonic Temple
 
         Marshalltown, Iowa 50158
 
         
 
         Mr. Michael R. Hoffmann
 
         Attorney at Law
 
         500 Liberty Building
 
         Des Moines, Iowa 50309
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
 
                                                 
 
 
 
 
 
 
 
 
 
 
 
                                                 51402.20, 51402.30
 
                                                 51803, 2907
 
                                                 Filed June 27, 1989
 
                                                 MICHAEL G. TRIER
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         ROBERT A. SLIFER, JR.,
 
          
 
               Claimant,
 
          
 
          VS.
 
                                                File No. 814202
 
          SWIFT INDEPENDENT PACKING
 
          COMPANY,                            A R B I T R A T I 0 N
 
          
 
               Employer,                         D E C I S I 0 N
 
          
 
          and
 
          
 
          TRANSPORTATION INSURANCE
 
          COMPANY/CNA
 
          
 
                Insurance Carrier,
 
                Defendants.
 
         
 
         
 
         51402.20, 51402.30
 
         
 
              Claimant's appearance and demeanor were observed as he 
 
         testified and compared with the other evidence in the record.  
 
         Claimant's description of the injurious event was found to be 
 
         correct.
 
         
 
         51803
 
         
 
              Claimant, who had a lumbar laminectomy at two levels of his 
 
         spine, was awarded 25 percent permanent partial disability where 
 
         he was able to return to work substantially similar to that he 
 
         engaged in at the time of injury with the same employer.
 
         
 
         2907
 
         
 
              Where defendants denied liability, costs were awarded to 
 
         claimant despite the fact that defendants had previously paid the 
 
         full amount of the award voluntarily prior to hearing.
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         NORMAN THOMPSON,
 
         
 
              Claimant,                               File No. 814236
 
         
 
         vs.                                           R E V I E W -
 
         
 
         DES MOINES WATER WORKS,                     R E O P E N I N G
 
         
 
              Employer,                               D E C I S I O N
 
         
 
         and
 
                                                         F I L E D
 
         UNITED STATES FIDELITY AND
 
         GUARANTY,                                      FEB 15 1990
 
          
 
               Insurance Carrier,                   INDUSTRIAL SERVICES
 
               Defendants.
 
         
 
         
 
                                   INTRODUCTION
 
         
 
              This is a proceeding in review-reopening brought by Norman 
 
         Thompson against his employer, Des Moines Water Works, and its 
 
         insurance carrier, United States Fidelity and Guaranty.  The case 
 
         was heard and fully submitted at Des Moines, Iowa on August 30, 
 
         1989.  The record in the proceeding consists of testimony from 
 
         Eriks H. Walter, Betty Hannon, Norman Thompson, William Thompson, 
 
         Larry Soloman and William Lloyd, Jr.  The record also contains 
 
         claimant's exhibits 1 through 4 and defendants' exhibits A, B, C, 
 
         E, F, G and H.  Official notice was taken of the settlement 
 
         documents in the agency file dealing with the Agreement for 
 
         Settlement which was approved November 10, 1987.
 
         
 
                                      ISSUES
 
         
 
              Claimant seeks additional compensation based upon an injury 
 
         that occurred on December 11, 1985.  The disputes in this case 
 
         center upon determining whether or not claimant's cervical 
 
         condition, for which he has undergone surgery, was proximately 
 
         caused by the December 11, 1985 injury and whether there has been 
 
         a change of condition to permit reopening of the Agreement for 
 
         Settlement.  It was stipulated that in the event of an award, 
 
         claimant's entitlement for healing period dealing with the 
 
         cervical condition runs from May 5, 1988 to August 23, 1988. 
 
         Claimant was paid 16 weeks of temporary total disability 
 
         compensation at the stipulated rate of $287.54 per week prior to 
 
         hearing, credit for which is stipulated.  An issue also exists 
 
         regarding whether defendants are entitled to credit against any 
 
         award made herein for permanent partial disability compensation 
 
         paid under the 1987 settlement agreement.
 
         
 
                               SUMMARY OF EVIDENCE
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              The following is a summary of evidence presented in this 
 
         case.  Only the evidence most pertinent to this decision is 
 
         discussed, but all of the evidence received at the hearing was 
 
         considered in arriving at this decision.  Conclusions about what 
 
         the evidence showed are inevitable with any summarization.  The 
 
         conclusions in the following summary should be considered to be 
 
         preliminary findings of fact.
 
         
 
              Norman Thompson is now a 60-year-old man with an eighth 
 
         grade education which he completed at the age of 16.  He stated 
 
         that he was held back and had difficulty with school.  After 
 
         leaving school, he worked in factories and the meat packing 
 
         industry.  He helped his uncle performing sanitation work and 
 
         junking cars.  He served in the Army on two separate occasions.  
 
         He was wounded in Korea for which he receives a monthly 
 
         disability payment from the Veterans Administration.
 
         
 
              Claimant commenced employment with the Des Moines Water 
 
         Works on March 23, 1954 and has been employed there continually 
 
         ever since.  He started as a laborer and in approximately ten 
 
         years became a machine operator.  At one time, machine or 
 
         equipment operators did not perform physical labor, but in recent 
 
         years there was a change in policy which requires them to work 
 
         with the laborers whenever actual machine work is not needed.  
 
         Claimant estimated that 45 percent of his time on the job, prior 
 
         to injury, was performing physical labor.
 
         
 
              Thompson's past medical history prior to 1985 is remarkable 
 
         for low back problems and a finger injury.  He has also had other 
 
         medical problems which do not appear particularly pertinent to 
 
         this proceeding.
 
         
 
              On or about November 13, 1985 claimant and his supervisors 
 
         thought he was having a heart attack at work and he was taken to 
 
         Lutheran Hospital.  After appropriate testing, it was determined 
 
         that his chest pains were not from a cardiac problem.  Claimant 
 
         saw Joshua Kimelman, D.O., a Des Moines orthopaedic surgeon, who 
 
         found claimant to have a cervical radiculopathy affecting his 
 
         left arm.  EMG testing showed early carpal tunnel syndrome in 
 
         claimant's left hand, but neither confirmed nor denied the 
 
         existence of a cervical radiculopathy (exhibit 2, pages 5 and 6).
 
         
 
              On December 11, 1985, claimant had been operating a piece of 
 
         equipment which was used to break concrete.  He was driving it on 
 
         Indianola Road returning to the shop from the work site when he 
 
         hit ice, lost control and was thrown from the machine.  Claimant 
 
         testified that he landed on the road six or eight feet from the 
 
         machine, landing with his neck, right shoulder and right arm 
 
         coming into contact with the street.  Shortly after the accident, 
 
         he was joined by fellow worker Paul Crutchlow and his crew leader 
 
         Eriks Walter.  Claimant testified that he had pain in his neck, 
 
         shoulder and right arm and that he was bleeding from an injured 
 
         leg.  Eriks Walter, claimant's crew leader who testified at 
 
         hearing, stated that when he arrived at the scene, Thompson 
 
         complained about his arm, neck and legs.  Walter confirmed that 
 
         Thompson reported landing on the back of his neck when he was 
 
         thrown from the machine.  Walter stated that claimant appeared as 
 
         though he had hit the street.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              Claimant sought medical treatment and eventually came under 
 
         the care of Dr. Kimelman.  Dr. Kimelman diagnosed fractures in 
 
         claimant's right arm and applied a cast.  The fractures healed 
 
         and claimant was released to return to work on April 14, 1986.  
 
         After follow-up visits, Dr. Kimelman indicated on August 28, 1986 
 
         that as much healing as was likely had occurred and that the 
 
         remaining residual limitations should be considered permanent.
 
         
 
              On September 24, 1986, claimant voiced complaints of pain, 
 
         tingling and numbness in his right hand to Dr. Kimelman.  Dr. 
 
         Kimelman had EMG testing performed and diagnosed claimant as 
 
         having carpal tunnel syndrome.  Right carpal tunnel release 
 
         surgery was performed on October 27, 1986.  After a relatively 
 
         uneventful period of recuperation, claimant was released to 
 
         resume full duty employment on January 28, 1987.  Dr. Kimelman 
 
         stated that the carpal tunnel syndrome was related to the 
 
         December 11, 1985 injury (exhibit 2, pages 13 and 14).  On May 
 
         21, 1987, Dr. Kimelman issued a report that claimant had a 5-7 
 
         percent permanent impairment of the right upper extremity as a 
 
         result of the injuries he had sustained to his right upper 
 
         extremity.  Dr. Kimelman expressed that same impairment.rating 
 
         when he was subsequently deposed on June 13, 1989 (exhibit 2, 
 
         page 15).  From the deposition, it appears as though Dr. Kimelman 
 
         did not include any impairment related to claimant's cervical 
 
         condition when making that rating.
 
         
 
              In late 1987, claimant entered into an agreement for 
 
         settlement working through adjuster Ray Card.  The settlement 
 
         contained a stipulation that claimant had a four percent 
 
         permanent partial impairment of his right arm as a result of the 
 
         December 11, 1985 injury.  It was supported by a statement from 
 
         Dr. Kimelman and also from the report of an evaluation performed 
 
         by Alfredo D. Socarras, M.D., on October 2, 1987.  Dr. Socarras 
 
         concluded that there was no objective evidence of a carpal tunnel 
 
         syndrome and no functional impairment from a neurological 
 
         standpoint.  The report indicates that when examined, claimant 
 
         reported that his right elbow continued to feel stiff and that he 
 
         was unable to straighten it.  Claimant complained that his 
 
         fingers were stiff when he tried to make a fist and that he had 
 
         occasional pain in his right wrist and the entire arm.  The 
 
         report indicates that claimant told the doctor that he would 
 
         continue to experience tingling in the fingers of his right hand 
 
         approximately once per week.  Dr. Socarras' examination reports 
 
         that claimant's reflexes were active and equal, that there was no 
 
         muscle weakness or atrophy and that, in summary, the neurological 
 
         examination was entirely normal.  The settlement documents were 
 
         signed by the claimant on November 9, 1987.  Rather than simply 
 
         provide ten weeks of compensation at the stipulated rate of 
 
         $287.54 per week, a structured settlement was used which gave 
 
         claimant $1,000 upon approval of the agreement and an additional 
 
         sum of $2,923.33 which will become payable on November 13, 1992.  
 
         The settlement documents indicate that claimant would receive a 
 
         total of $3,923.33 rather than the $2,875.40 which would 
 
         represent ten weeks of permanent partial disability compensation.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              Claimant testified that his neck and right arm pain did not 
 
         ever completely resolve and that the carpal tunnel surgery did 
 
         not provide any major change in his symptoms.  Claimant stated 
 
         that the pain worsened and he then returned to Dr. Kimelman in 
 
         early 1988 for further treatment.
 
         
 
              Betty Hannon testified that following the December, 1985 
 
         injury, claimant exhibited problems with his right arm including 
 
         dropping things.  She stated that he continued to express 
 
         complaints regarding his neck and right shoulder.  She stated 
 
         that she had encouraged him to seek further medical care and that 
 
         he finally did so.
 
         
 
              Eriks Walter testified that during the winter of 1987-1988, 
 
         claimant had made a statement that he was not getting better and 
 
         that he was hurting more and more.  Walter stated that claimant 
 
         complained of his shoulder and arm occasionally.
 
         
 
              When claimant was seen on March 8, 1988 by Dr. Kimelman, he 
 
         reported a zinging pain running from his right shoulder to his 
 
         right hand.  EMG's conducted on March 22, 1988 were interpreted 
 
         as being normal, but Dr. Kimelman diagnosed a cervical 
 
         radiculopathy based upon weakness in claimant's right triceps.  
 
         When the symptoms did not improve with conservative treatment, 
 
         Dr. Kimelman referred claimant to Des Moines orthopaedic surgeon 
 
         Robert C. Jones, M.D.  (exhibit 2, pages 10-12).
 
         
 
              Dr. Jones examined claimant and formed the opinion that he 
 
         had a cervical radicular compression syndrome.  Dr. Jones stated 
 
         that claimant had preexisting degenerative changes in his 
 
         cervical spine due to aging and hard work and that the condition 
 
         was aggravated when claimant fell from the concrete breaker 
 
         machine, leading to the need for surgery (exhibit 1, pages 5 and 
 
         6; exhibit 3; exhibit H, page 185).  After conducting diagnostic 
 
         tests, Dr. Jones performed an anterior cervical interbody fusion 
 
         at the C5-6 and C6-7 levels of claimant's spine on May 17, 1988.  
 
         After a relatively uneventful period of recovery claimant 
 
         returned to work on August 22, 1988 with restrictions.  
 
         Initially, he performed only paperwork, but then was authorized 
 
         to perform painting of water hydrants and to operate the backhoe.  
 
         The employer continues to carry claimant in a light-duty status.  
 
         Claimant does perform physical labor of some types, however, as 
 
         observed by Cecilia O'Brien.  Claimant stated that if he 
 
         overexerts himself, he experiences an increase in his symptoms.
 
         
 
              Claimant has received regular pay increases since the 
 
         injury. He feels that on one occasion the absences resulting from 
 
         the injuries resulted in a reduced amount of an annual pay 
 
         increase.
 
         
 
              Dr. Jones expressed the opinion that claimant has received a 
 
         good result from the fusion surgery and has a residual 8-10 
 
         percent permanent partial impairment of the body as a whole 
 
         (exhibit 1, pages 13, 16 and 22; exhibit H, page 170).  Dr. Jones 
 
         stated that claimant should avoid undue stress on his neck such 
 
         as excessive turning (exhibit 1, pages 14 and 23).  He was unable 
 
         to apportion the degeneration in claimant's cervical spine 
 
         between claimant's employment and nonemployment activities or 
 
         causes.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              Dr. Jones indicated that it was possible for the cervical 
 
         radiculopathy to have been missed by other physicians in earlier 
 
         examinations and that the fact they did not discover it does not 
 
         necessarily establish that the condition did not result from the 
 
         December 11, 1985 accident.  Dr. Kimelman had indicated in his 
 
         opinion that it was possible, though not probable, that the 
 
         cervical radiculopathy had resulted from the December 11, 1985 
 
         injury.  He also indicated, however, that he would not dispute an 
 
         opinion of Dr. Jones which found the December, 1985 accident to 
 
         have been a cause of the cervical radiculopathy (exhibit 2, pages 
 
         23 and 24).
 
         
 
              Eriks Walter stated that he has not had claimant on his crew 
 
         very frequently since the neck surgery was performed, but that 
 
         from his observations, claimant has required assistance when 
 
         lifting.  Betty Hannon stated that claimant has continued to 
 
         exhibit difficulties with the use of his right hand.
 
         
 
              William Thompson, the risk manager for the Des Moines Water 
 
         Works testified that claimant had indicated to him that he had 
 
         hurt his arm on the spinner on the steering wheel of the concrete 
 
         breaker equipment and said nothing about being thrown from the 
 
         equipment.  Thompson also agreed that he was aware claimant had 
 
         experienced leg injuries, but did not inquire about those.  He 
 
         agreed that claimant's leg bleeding would be consistent with him 
 
         having been thrown to the pavement.
 
         
 
              Larry Soloman, human resources coordinator for the Des 
 
         Moines Water Works, stated that claimant has been on the 
 
         light-duty list for approximately one year.  Soloman stated that 
 
         at one point in time equipment operators ceased being limited to 
 
         operating equipment and began to be required to perform other 
 
         work when needed.
 
         
 
              William Lloyd, Jr., assistant supervisor at the Des Moines 
 
         Water Works, stated that since claimant's return to work in 1988, 
 
         claimant has been a machine operator on light duty.  Lloyd was 
 
         not aware of claimant making any complaints since returning to 
 
         work in 1988 and was not aware of claimant having any difficulty 
 
         performing his job since returning to work in 1988.  Lloyd stated 
 
         that claimant is paid the same on light duty as he would be paid 
 
         if he were on full duty.
 
         
 
              Claimant denied suffering any injury to his neck between 
 
         December, 1985 and when he began receiving treatment from Drs. 
 
         Kimelman and Jones in 1988.  He denied having any prior 
 
         difficulties with his neck.  Betty Hannon, who has known claimant 
 
         for several years, stated that she was not aware of him having 
 
         any problems with his neck prior to the December, 1985 accident.
 
         
 
                           APPLICABLE LAW AND ANALYSIS
 
         
 
              In a review-reopening proceeding, the claimant has the 
 
         burden of establishing that he has suffered an additional 
 
         impairment or lessening of his earning capacity as a proximate 
 
         result of the original injury, subsequent to the date that the 
 
         agreement for settlement which is now under review was entered 
 
         into.  Deaver v. Armstrong Rubber Co., 170 N.W.2d 455, 457 (Iowa 
 
         1969).  One cause for allowance of additional compensation is 
 
         when it is shown that facts relative to an employment-connected 
 
         injury existed, but were unknown and could not have been 
 
         discovered by the exercise of reasonable diligence.  Gosek v. 
 
         Garmer & Stiles Co., 158 N.W.2d 731 (Iowa 1986).  
 
         Review-reopening has been allowed where the employee did not 
 
         improve as much as had been anticipated.  Meyers v. Holiday Inn 
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         of Cedar Falls, Iowa, 272 N.W.2d 24 (Iowa App. 1978).
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              In this case, Norman Thompson settled the case based upon 
 
         the assessment from the physicians which stated that his problem 
 
         was limited to his right arm.  The cervical radiculopathy had not 
 
         been diagnosed at that time.  Further, there is no showing in the 
 
         record that claimant knew he would need cervical surgery.  The 
 
         identification of the previously undiagnosed cervical condition 
 
         is clearly a sufficient change of condition to warrant 
 
         review-reopening and reconsideration of claimant's award.
 
         
 
              All witnesses who testified at the hearing were observed by 
 
         the undersigned.  All appeared to be credible witnesses. 
 
         Claimant's testimony that he continued to experience neck pain 
 
         following the December 11, 1985 injury, and his denial of prior 
 
         neck pain, is accepted as being correct.  It is corroborated by 
 
         Betty Hannon and Eriks Walter.  Thompson appeared to be a rather 
 
         stoic individual.  It is not the least bit surprising that he 
 
         would have worked despite being in substantial discomfort.  His 
 
         testimony of a worsening of his condition in 1988 which led him 
 
         to seek further medical treatment is likewise accepted as being 
 
         correct.  The EMG tests do not appear to have been a reliable 
 
         indicator of the radiculopathy.  It is therefore determined that 
 
         the medical history which Norman Thompson provided to Dr. Jones 
 
         is accurate and correct and that the opinions regarding 
 
         causation, permanent impairment and physical restrictions as 
 
         assessed by Dr. Jones are also correct.  When deposed, Dr. 
 
         Kimelman indicated that he would essentially defer to Dr. Jones 
 
         with regard to the issue of causation for the cervical condition.  
 
         It is therefore determined that there has been a change of 
 
         condition which was proximately caused by the December 11, 1985 
 
         injury and which was not discoverable in the exercise of 
 
         reasonable diligence at the time the settlement was entered into 
 
         in November, 1987.  It is further determined that the cervical 
 
         radiculopathy is a part of the injury which arose out of and in 
 
         the course of claimant's employment on December 11, 1985.
 
         
 
              If claimant has an impairment to the body as a whole, an 
 
         industrial disability has been sustained.  Industrial disability 
 
         was defined in Diederich v. Tri-City Railway Co., 219 Iowa 587, 
 
         593, 258 N.W.2d 899, 902 (1935) as follows:  "It is therefore 
 
         plain that the legislature intended the term 'disability' to mean 
 
         'industrial disability' or loss of earning capacity and not a 
 
         mere 'functional disability' to be computed in the terms of 
 
         percentages of the total physical and mental ability of a normal 
 
         man."
 
         
 
              Functional impairment is an element to be considered in 
 
         determining industrial disability which is the reduction of 
 
         earning capacity, but consideration must also be given to the 
 
         injured employee's age, education, qualifications, experience and 
 
         inability to engage in employment for which he is fitted.  Olson 
 
         v. Goodyear Service Stores, 255 Iowa 1112, 1121, 125 N.W.2d 251, 
 
         257 (1963).
 
         
 
              Industrial disability or loss of earning capacity is a 
 
         concept that is quite similar to impairment of earning capacity, 
 
         an element of damage in a tort case.  Impairment of physical 
 
         capacity creates an inference of lessened earning capacity.  The 
 
         basis element to be determined, however, is the reduction in 
 
         value of the general earning capacity of the person, rather than 
 
         the loss of wages or earnings in a specific occupation.  
 
         Post-injury earnings create a presumption of earning capacity.  
 
         The earnings are not synonymous with earning capacity and the 
 
         presumption may be rebutted by evidence showing the earnings to 
 
         be an unreliable indicator.  Carradus v. Lange, 203 N.W.2d 565 
 
         (Iowa 1973); Holmquist v. Volkswagon of America, Inc., 261 N.W.2d 
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         516 (Iowa App. 1977) A.L.R.3d 143; Michael v. Harrison County, 
 
         34th Biennial Report, 218 (1979); 2 Larson Workmen's Compensation 
 
         Law, sections 57.21 and 57.31.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              Claimant is nearing retirement age where pensions and social 
 
         security would be expected to replace wages.  It is speculative 
 
         to determine whether he would retire at age 62 or 65 or any other 
 
         particular age, but the fact of retiring at some point in the 
 
         near future is probable.  Brecke v. Turner-Busch, Inc., 34th 
 
         Biennial Report of the Industrial Commissioner 34 (App. Decn. 
 
         1979). Considering claimant's age and apparent academic aptitude, 
 
         retraining of any type is not practical.  The best employment 
 
         opportunity for Norman Thompson is the employment which he 
 
         currently holds with the Des Moines Water Works.  It has not been 
 
         proven by a preponderance of the evidence that he has experienced 
 
         any loss of actual wages as a result of the December 11, 1985 
 
         injury, although there is some possibility that an annual 
 
         increase may have been slightly reduced.  Nevertheless, he does 
 
         have a notable physical impairment and activity restrictions.  
 
         The fact that he is likely to retire in the near future does not 
 
         mean that he, like many others, would not engage in any type of 
 
         post-retirement gainful employment or other gainful activity.  
 
         The employer's actions in this case in keeping him on the job in 
 
         a light-duty status have, however, clearly insulated Norman 
 
         Thompson from what would most likely be a major reduction in his 
 
         actual earnings if he were forced to reenter the job market with 
 
         a new employer.  It is clear that he has sustained some degree of 
 
         disability on an industrial basis.  When all the pertinent 
 
         factors of industrial disability are considered, that degree is 
 
         determined to be a ten percent permanent partial disability.  
 
         This entitles him to receive 50 weeks of compensation.
 
         
 
              The ten percent permanent partial disability determination 
 
         includes not only claimant's cervical condition but also the 
 
         impairment in his right arm.  When an injury produces disability 
 
         which is evaluated industrially, the entire disability is 
 
         evaluated in that manner and is not added on to any scheduled 
 
         member disability which may also exist.  Defendants are therefore 
 
         entitled to a credit for the ten weeks of permanent partial 
 
         disability to be paid under the Agreement for Settlement.  The 
 
         remaining 40 weeks are payable to claimant commencing on the date 
 
         of this decision.  Bousfield v. Sisters of Mercy, 249 Iowa 64, 86 
 
         N.W.2d 109 (1957).  It should be noted that this is a case in 
 
         review-reopening where it was necessary for the claimant to show 
 
         a change of condition in order to recover additional 
 
         compensation. Bousfield has not been overruled for cases 
 
         requiring a change of condition.  Where the necessity to show a 
 
         change of condition exists, the additional award runs from the 
 
         date of the decision which awards it, rather than from an earlier 
 
         date as would be the case if there had been no need for the 
 
         claimant to prove a change of condition.  As stipulated by the 
 
         parties, defendants are also entitled to a credit for overpaid 
 
         temporary total disability in the amount of $442.24.  The credit 
 
         is to be applied against the permanent partial disability award.
 
         
 
                                 FINDINGS OF FACT
 
         
 
              1.  The cervical radiculopathy which was diagnosed in 1988 
 
         was proximately caused by the December 11, 1985 accident.  It was 
 
         an aggravation of a preexisting degenerative condition which had 
 
         resulted, in substantial part, from claimant's employment 
 
         activities.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              2.  When the Agreement for Settlement was entered into in 
 
         November, 1987, the existence of the cervical radiculopathy was 
 
         not discoverable in the exercise of reasonable diligence.  It had 
 
         not been discovered by claimant's examining physicians and 
 
         claimant was not aware that it existed.  He knew of his symptoms, 
 
         but not of their anatomical cause.
 
         
 
              3.  The assessment of this case made by Dr. Jones is 
 
         correct.
 
         
 
              4.  All witnesses who testified at hearing are fully 
 
         credible.  There are no irreconcilable conflicts when their 
 
         testimony is considered.
 
         
 
              5.  Claimant has experienced a ten percent loss of his 
 
         earning capacity as a result of the December 11, 1985 injuries.
 
         
 
                                CONCLUSIONS OF LAW
 
         
 
              1.  This agency has jurisdiction of the subject matter of 
 
         this proceeding and its parties.
 
         
 
              2.  Diagnosis of the cervical radiculopathy is a change of 
 
         condition which is sufficient to warrant review-reopening.
 
         
 
              3.  Claimant is entitled to recover 50 weeks of compensation 
 
         under the provisions of Iowa Code section 85.34(2)(u).
 
         
 
              4.  Defendants are entitled to credit for the 10 weeks of 
 
         compensation paid in accordance with the Agreement for Settlement 
 
         entered into in November, 1987.
 
         
 
              5.  Claimant is entitled to recover 15 5/7 weeks of healing 
 
         period compensation commencing May 5, 1988 as stipulated.
 
         
 
                                      ORDER
 
         
 
              IT IS THEREFORE ORDERED that defendants pay claimant fifteen 
 
         and five-sevenths (15 5/7) weeks of compensation for healing 
 
         period commencing May 5, 1988 at the stipulated rate of two 
 
         hundred eighty-seven and 54/100 dollars ($287.54) per week. 
 
         Defendants are entitled to credit for the amounts of healing 
 
         period compensation previously paid.
 
         
 
              IT IS FURTHER ORDERED that defendants pay claimant forty 
 
         (40) weeks of compensation for permanent partial disability at 
 
         the stipulated rate of two hundred eighty-seven and 54/100 
 
         dollars ($287.54) per week payable commencing on the date of this 
 
         decision.  Defendants are entitled to recover the stipulated 
 
         credit in the amount of four hundred forty-two and 24/100 dollars 
 
         ($442.24) for overpaid healing period compensation against this 
 
         award.
 
         
 
              IT IS FURTHER ORDERED that defendants pay the costs of this 
 
         action pursuant to Division of Industrial Services Rule 343-4.33.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              IT IS FURTHER ORDERED that defendants file claim activity 
 
         reports as requested by this agency pursuant to Division of 
 
         Industrial Services Rule 343-3.1.
 
         
 
              Signed and filed this 15th day of February, 1990.
 
         
 
         
 
         
 
         
 
         
 
         
 
                                            MICHAEL G. TRIER
 
                                            DEPUTY INDUSTRIAL COMMISSIONER
 
         
 
         Copies To:
 
         
 
         Mr. H. Alan Bowers
 
         Attorney at Law
 
         942 Insurance Exchange Building
 
         505 5th Avenue
 
         Des Moines, Iowa  50309
 
         
 
         Ms. Iris J. Post
 
         Attorney at Law
 
         2222 Grand Avenue
 
         P.O. Box 10434
 
         Des Moines, Iowa 50306
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
 
                                            
 
 
 
 
 
 
 
 
 
 
 
                                            1108.50, 1302.1, 1402.30
 
                                            1702, 1703, 1803, 2206
 
                                            2905, 3800
 
                                            Filed February 15, 1990
 
                                            MICHAEL G. TRIER
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         NORMAN THOMPSON,
 
         
 
              Claimant,
 
         
 
         vs.                                        File No. 814236
 
         
 
         DES MOINES WATER WORKS,                     R E V I E W -
 
         
 
              Employer,                            R E 0 P E N I N G
 
         
 
         and                                        D E C I S I 0 N
 
         
 
         UNITED STATES FIDELITY AND
 
         GUARANTY,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         1108.50, 1302.1, 1402.30. 2905
 
         
 
              Claimant entered into a settlement regarding his right arm. 
 
         It was subsequently determined that he also had a cervical 
 
         condition which required surgery.  The belated diagnosis was held 
 
         to be a sufficient change of condition to warrant 
 
         review-reopening.
 
         
 
         1702, 1703, 1803, 2206
 
         
 
              Sixty-year-old man who had not experienced any actual loss 
 
         of wages awarded ten percent permanent partial disability.  The 
 
         employer was granted credit toward the award for the full amount 
 
         paid in the settlement based upon the stipulated disability 
 
         rather than the total amount of the payments which were to be 
 
         paid under the structured settlement arrangement.
 
         
 
         2905, 3800
 
         
 
              Payments were held to be due commencing on the date of this 
 
         decision since a change of condition needed to be shown in order 
 
         to obtain any further recovery citing Bousfield.
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                    BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         MARGIRET LANHART,
 
         
 
              Claimant,
 
                                                   File No. 814417
 
         vs.
 
                                                A R B I T R A T I O N
 
         ORKIN PEST CONTROL,
 
                                                   D E C I S I O N
 
              Employer,
 
                                                      F I L E D
 
         and
 
                                                     APR 7 1989
 
         UNDERWRITERS ADJUSTING CO.,
 
                                            IOWA INDUSTRIAL COMMISSIONER
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
                                   INTRODUCTION
 
         
 
              This is a proceeding in arbitration brought by claimant, 
 
         Margiret Lanhart, against Orkin Pest Control, employer, and 
 
         Underwriters Adjusting Co., insurance carrier, to recover 
 
         benefits as a result of an injury sustained on November 29, 1985. 
 
         This matter came on for hearing before the undersigned deputy 
 
         industrial commissioner in Des Moines, Iowa, on January 31, 1989. 
 
         The record consists of the testimony of claimant, Michael 
 
         Lanhart, claimant's husband, Michael Kenneth Polaski; joint 
 
         exhibits 1 through 15 and claimant's exhibits A and B.
 
         
 
              Pursuant to the prehearing report, the parties stipulated 
 
         that:  There was an employer-employee relationship; that 
 
         temporary total disability/healing period was paid for the period 
 
         of December 4, 1985 to July 13, 1986, inclusive, (31 5/7 weeks) 
 
         and temporary partial disability benefits from July 14, 1986 to 
 
         July 23, 1986, inclusive, (1 3/7 weeks) both at the agreed to 
 
         rate of $147.06 per week.  If an injury is found which is 
 
         causally connected to claimant's disability, then it is an 
 
         industrial disability to the body as a whole and permanent 
 
         disability benefits would begin July 24, 1986.
 
         
 
                                     ISSUES
 
         
 
              The issues for resolution are:
 
         
 
              1.  Whether claimant's injury arose out of and in the course 
 
         of her employment;
 
         
 
              2.  Whether there is a causal connection between claimant's 
 
         injury and her disability;
 
         
 
              3.  The nature and extent of claimant's disability;
 
                                                
 
                                                         
 
         
 
              4.  Whether certain medical benefits should be paid under 
 
         Iowa Code section 85.27; and
 
         
 
              5.  Whether said medical was necessary and causally 
 
         connected to the claimant's injury and services rendered.
 
         
 
                             REVIEW OF THE EVIDENCE
 
         
 
              Claimant testified that on November 29, 1985, she was 
 
         soliciting business door-to-door for defendant employer when she 
 
         slipped on a porch step of a potential customer and landed on her 
 
         back, injuring herself.  Claimant stated she started working for 
 
         defendant employer on November 4, 1985.  Claimant indicated that 
 
         she had hit her head on a door while working for defendant 
 
         employer one-half week prior to the November 29, 1985 injury and 
 
         also was in a minor car accident while working for this employer 
 
         approximately one week before the November 29, 1985 injury. 
 
         Claimant emphasized that these accidents caused no resulting 
 
         physical problems.
 
         
 
              Claimant testified her job consisted of trying to sell a 
 
         pest control program to a potential customer of defendant 
 
         employer and involved inspecting homes.  Claimant stated the 
 
         inspection process at times would involve bending, stooping, 
 
         looking under crawl spaces, under houses with no basement, 
 
         crawling on her stomach, squatting, and getting on her knees, and 
 
         mixing chemicals and spraying at customers' premises.  Claimant 
 
         stated she attempted to continue working but was unable to do the 
 
         required work because of her back and neck pain.  Claimant was 
 
         off work December 4, 1985 up to July 13, 1986.  Claimant 
 
         testified she returned to work on July 13, 1986 for two weeks 
 
         part-time, four hours per day and that she had to do some 
 
         lifting.  Claimant indicated that she had problems working and 
 
         that her back pain increased.  Claimant stated that she thought 
 
         that she recovered the best she would when she returned to work 
 
         on July 13, 1986.  Claimant said that she resigned from defendant 
 
         employer at the end of the workday on July 23, 1986 because her 
 
         back problems continued and her pain increased.
 
         
 
              Claimant indicated she then went back to work for Cedar 
 
         Rapids Grain in approximately August or September 1986 and worked 
 
         until September 2, 1988 when she was laid off.  This company was 
 
         bought by another company and claimant was not rehired although 
 
         she did apply for a job with the take-over company.  Claimant 
 
         indicated that she had formerly worked for Cedar Rapids Grain two 
 
         months in September and October 1985 and that her husband has 
 
         been employed at Cedar Rapids Grain for several years.  Claimant 
 
         testified she has not worked since September 2, 1988.
 
         
 
              Claimant emphasized she could not do the required work at 
 
         Cedar Rapids Grain that she had done when she first worked for 
 
         them in 1985.  Claimant indicated her duties were to operate a 
 
         probe, to climb on railroad cars and take a test sample of grain, 
 
         carry the test corn in buckets weighing 25 to 30 pounds each and 
 
                                                
 
                                                         
 
         carry sample bags of corn weighing two or three pounds each. 
 
         Claimant contends that the doctor put a five pound weight 
 
         restriction on her.  Claimant also stated that upon returning to 
 
         work at Cedar Rapids Grain she was then unable to remember the 
 
         grain test figures that she had obtained and that she still has 
 
         this memory problem to this date.  Claimant relates this memory 
 
         problem also to the November 29, 1985 injury.
 
         
 
              Claimant testified that she had scoliosis as a child and 
 
         wore a Milwaukee brace for two and one-half years at age 12 to 13 
 
         and has had pain in her low back and between the shoulder blades 
 
         her entire life.
 
         
 
              Claimant summarized her employment history which included a 
 
         waitress in high school, two months as a nurse's aide in 1976, no 
 
         work between 1976 and 1983 due to her pregnancies and caring for 
 
         her children, a jewelry store in 1983 and 1984, Cedar Rapids 
 
         Grain September and October 1985, Orkin 1985, and Cedar Rapids 
 
         Grain 1986 to 1988.  Claimant admitted that Orkin Pest Control 
 
         was her only full-time job.
 
         
 
              Claimant testified her complaints today which she relates to 
 
         the November 29, 1985 injury are numbness in her leg, back pain, 
 
         very bad headaches which she describes as "unreal and hard to 
 
         describe," nausea at times, dizziness, ringing in her ears, pain 
 
         in her neck, ears, eyes and temple, loss of smell, fatigue, low 
 
         energy level, depression, and can't do her household chores or 
 
         duties.  Claimant indicated aspirin and Tylenol do nothing for 
 
         her.  Claimant also revealed that certain foods like chocolate 
 
         and cheese and certain stress result in her headaches.  Claimant 
 
         stated she is unable go to her children's ball games as her leg 
 
         goes numb and she has pain.  She indicates she is unable to sit 
 
         for more than one-half hour to 45 minutes or stand for longer 
 
         than one-half or one hour because of the pain.
 
         
 
              Michael Lanhart, claimant's husband, testified that his 
 
         family's move from Wisconsin to Iowa did create some emotional 
 
         problems with his wife since they had lived in Wisconsin all 
 
         their life prior to coming to Iowa and had ties there.  Mr. 
 
         Lanhart testified that claimant was in good physical condition 
 
         prior to the accident on November 29, 1985.  Mr. Lanhart 
 
         contended that claimant's physical condition changed due to this 
 
         November 1985 accident and claimant could no longer do the 
 
         required physical work.  Mr. Lanhart then stated that his wife is 
 
         real moody now and has headaches, cramp spasms and he would have 
 
         to rub her back and shoulder and at times would have to help her 
 
         to get moving and to get out of bed.  Mr. Lanhart admitted that 
 
         he lived with his boss, Michael Kenneth Polaski, at the Cedar 
 
         Rapids Grain, who was also claimant's boss when she worked there.  
 
         Mr. Lanhart indicated he comes home to his wife in Ottumwa, Iowa, 
 
         on weekends.  Mr. Lanhart acknowledged that Mr. Polaski is his 
 
         wife's third cousin.  Mr. Lanhart emphasized that prior to 
 
         November 29, 1985 his wife was in good physical condition but he 
 
         did not deny that claimant had problems like fatigue and 
 
         headaches but claimed no knowledge of prior back pain, numbness 
 
                                                
 
                                                         
 
         in the arms and medication for anxiety and depression
 
         
 
              Michael Kenneth Polaski, the owner and president of Cedar 
 
         Rapids Grain, testified that he is familiar with claimant's job 
 
         and its requirements and how she was able to do the job before 
 
         her injury and after her injury of November 29, 1985.  Polaski 
 
         indicated he would not let claimant climb on the railroad cars 
 
         for inspections as he was afraid she would not be able to get her 
 
         down once she got up.  He would be concerned for her safety.  
 
         Polaski indicated that he would observe what the claimant would 
 
         do and could tell by her grinding her teeth or moaning and 
 
         groaning that she was having problems or stress on her body.  
 
         Polaski indicated that before November 29, 1985 claimant could do 
 
         all those things required including using the probe, lifting 10 
 
         to 15 pounds, lifting the buckets of corn, climbing on railroad 
 
         cars, and raising buckets for testing above her head to test the 
 
         grain. Polaski indicated that after the November 29, 1985 injury, 
 
         at the end of four hours work claimant had a hard time lifting 
 
         the buckets over her head, and sometimes would drop the bucket. 
 
         Polaski acknowledged that the claimant was a good worker and that 
 
         she was laid off in 1988 when Cargill took over the Cedar Rapids 
 
         Grain Company and changed the inspection process.
 
         
 
              Marc E. Hines, M.D., a neurologist, on December 17, 1985, 
 
         wrote:  "IMPRESSION:  At the time of admission is that the 
 
 
 
                             
 
                                                         
 
         patient has spinal cord contusion we were admitting her to 
 
         exclude the possibility of a concommittant [sic] demyelinating 
 
         disease and will continue to treat her as if she may have post 
 
         traumatic migraines."  (Joint Exhibit 4)  On December 18, 1985, 
 
         complete myelogram with pantopaque was done on this patient at 
 
         Dr. Hines' request with the impression "normal complete 
 
         myelogram."  On December 17, 1985, a CT scan of the head and 
 
         double dose delayed films was performed.  The impression was:  
 
         "normal brain CT with double dose and delayed filming technique."  
 
         (Exhibit 5)  In December 1985, claimant had several other 
 
         neurological tests all of which were normal including nerve 
 
         reduction velocities and EEG. Claimant had two other CT scans on 
 
         May 7, 1986 and December 7, 1987 which showed normal lumbar and 
 
         no evidence of herniated discs.  There was no significant 
 
         pathology that could be identified.
 
         
 
              On October 21, 1986, Dr. Hines, in his notes, states:
 
         
 
                   Margiret came back in today having.developed new wrist 
 
              symptoms and numbness in the median distribution in her 
 
              right hand which may represent a carpal tunnel syndrome.  We 
 
              will be obtaining an EMG and Nerve Conduction Velocity for 
 
              this, and the patient will use a wrist splint while at work 
 
              and at night.
 
         
 
         (Jt. Ex. 6, p. 20)
 
         
 
              On November 23, 1987, Dr. Hines wrote:
 
         
 
              Obviously, the situation has been very difficult to follow 
 
              even for those of us who have been close at hand since 
 
              following her concussion and whiplash injury.  Following the 
 
              determination that she has suffered a mild brain stem 
 
              contusion, the patient has been involved in additional 
 
              accidents and injuries.
 
         
 
              .....Although, the accidents have worsened her 
 
              symptomotology, they have done this merely on the basis of 
 
              exacerbating a pre-existent condition which was secondary to 
 
              her work injury.  Symptoms of headache, neck pain, arm pain, 
 
              episodic numbness, and dizziness have continued despite a 
 
              wide variety of therapies.  No other etiology has been found 
 
              despite a very extensive investigation.  So far as there has 
 
              been involvement of the upper extremities, this problem is 
 
              primarily secondary to the contusion of the spinal cord 
 
              and/or stretch injury to the cervical nerve roots.
 
         
 
                   In that regard, her difficulty falls under the 
 
              classification of spinal cord injuries in the AMA Guides to 
 
              the Evaluation of Permanent Medical Impairment, Second 
 
              Edition, page 65 in which there is impairment in use of both 
 
              upper extremities in which the patient can use the upper 
 
              extremities for self care, grasping, and holding but has 
 
              difficulty with digital dexterity.  The patient has 
 
              approximately a 10% impairment to the whole person.  
 
                                                
 
                                                         
 
                   Headaches have been the other major symptomatology which she 
 
              has continued to have but is not rated by the AMA Guides.  We 
 
              are strictly instructed by the AMA Guides not to exclude the 
 
              rating of other impairments which simply are not covered by 
 
              the guides through oversight, ommission [sic], or other 
 
              cause. Her headaches have been significantly disabling, and I 
 
              have given her a 10% impairment to the whole person.  In the 
 
              Combined Values Charts on page 240 of the AMA guides, a 10% 
 
              impairment combined with a 10% impairment is a 15% impairment 
 
              to the whole person.
 
         
 
         (Jt. Ex. 6, P. 35)
 
         
 
              Dr. Hines wrote on December 2, 1987, in his history and 
 
         physical examination notes:
 
         
 
                   Margiret is a very complex patient who has many somatic 
 
              symptoms which go back some time and involve a variety of 
 
              areas primarily arthralgias and back pain, neck, and head 
 
              pain all following accidents and injuries which she has had. 
 
              She has been involved in several auto accidents, and 
 
              accident at work in which she hit her head and has for these 
 
              reasons had a number of EMG's and other intensive 
 
              investigations with very little in the way of any 
 
              significant objective abnormalities being found.
 
         
 
                   ....
 
         
 
                   IMPRESSION:  Patient has considerable somatic 
 
              complaints primarily consisting of arthralgias and arthritis 
 
              types of complaints, multiple injuries in auto accidents, 
 
              falls and head injuries as well as new onset of abdominal 
 
              complaints, all of unexplained etiology at this time.  The 
 
              patient will have further evaluation and treatment.
 
         
 
         (Jt. Ex. 6, P. 47)
 
         
 
              On December 2, 1987, claimant was referred to T. Phillips, 
 
         M.D., for evaluation of an abdominal pain.  Dr Phillips wrote: 
 
         "IMPRESSION:  Abdominal pain cause unclear.  The interpretation 
 
         of her symptoms is made difficult in that I think she has a 
 
         somewhat histrionic personality."  (Jt. Ex. 4, p. 88)
 
         
 
              Alfredo D. Socarras, M.D., performed an independent 
 
         neurological evaluation on claimant on November 30, 1987 and 
 
         opined:
 
         
 
                   It is my opinion that there is a great disproportion 
 
              between patient's symptoms and the lack of objective 
 
              findings, suggesting a large psychophysiological element in 
 
              this case.  Some of the headaches are suggestive of migraine 
 
              and equivalents, however, the constant headache for the past 
 
              two years is likely to be on a tension basis.  Clinically I 
 
              do not feel that this patient ever had a cervical cord 
 
              contusion.  Dr. Hines diagnosis was purely speculative and 
 
                                                
 
                                                         
 
                   without proper clinical foundation.  Her symptomatology, the 
 
              normal neurological examination of November 28, 1985 and all 
 
              the laboratory tests after the incident of November 28, 1985 
 
              did not corroborate this diagnosis.  I believe that this 
 
              patient's medical treatment has been rather ineffective and 
 
              has protracted the situation.  I am recommending a 
 
              psychological evaluation, including MMPI.  From the 
 
              neurological standpoint I find no functional impairment.
 
         
 
         (Ex. 1, p. 4)
 
         
 
              Robert G. Siekert, M.D., Department of Neurology, Mayo 
 
         Clinic, did a neurologic examination, performed.a CT scan of the 
 
         head with contrast, and an electromyographic examination on 
 
         claimant on an outpatient basis between June 16 and 24, 1988.  
 
         Dr. Siekert wrote:
 
         
 
                   Because of her complaint of memory impairment, she was 
 
              seen by Dr. Robert Ivnik, psychologist, who performed 
 
              extensive neurocognitive examination.  In summary, he states 
 
              "neurocognitive testing suggests an individual whose basic 
 
              intellectual endowment is now average and the person has 
 
              probably always been of average intelligence.  There are no 
 
              definite signs of acquired neurocognitive impairment.  There 
 
              are clearly no signs of any significant generalized 
 
              intellectual deficit or compromise."
 
         
 
                   She was seen in the Impairment Evaluation Center 
 
              because I wished to have an opinion concerning any component 
 
              of the narrowing of the lumbosacral interspace in the 
 
              causation of her symptoms.  Dr. G. S. Peterson of the 
 
              Department of Physical Medicine and Rehabilitation reviewed 
 
              the problem and concluded that she had diffuse tension 
 
              myalgia, chronic pain syndrome, and believed that the 
 
              narrowing of the L5-S1 interspace was of no clinical 
 
              significance in her present complaints.
 
         
 
                   At the present time, I could not make a diagnosis of 
 
              any organic disease of the central nervous or peripheral 
 
              nervous system, that her symptoms appeared 
 
              psychophysiologic, that she has a chronic pain syndrome and 
 
              likely pain amplification syndrome, and that we found no 
 
              evidence of physical impairment.  Doctor Peterson discussed 
 
              the matter of her psychophysiologic symptom formation with 
 
              her.
 
         
 
         (Ex. 2, p. 3)
 
         
 
              Claimant was seen at the Impairment Evaluation Center for 
 
         musculoskeletal evaluation at Mayo Clinic beginning June 24, 
 
         1988. Claimant related her present symptoms to the doctor as:
 
         
 
                   Mrs. Lanhart describes constant, dull low back pain 
 
              with intermittent sharp pain.  When she has these sharp 
 
              pains in her back she states that her leg [sic] feel like 
 
                                                
 
                                                         
 
                   they are paralyzed".  She also has sensation of numbness of 
 
              her entire right foot.  Her right hip, ankle, and 
 
              occasionally her [sic] feel weak.  She also describes 
 
              constant tight aching pain in her neck radiating into her 
 
              shoulders.  She denies cough, strain, sneeze affect.  She 
 
              denies urinary incontinence but notes occasionally fecal 
 
              soiling.
 
         
 
         (Ex. 2)
 
         
 
              Gregory S. Peterson, M.D., rendered the following diagnosis, 
 
         conclusions and recommendations:
 
         
 
              DIAGNOSIS:
 
         
 
                    1.  Chronic pain syndrome.
 
         
 
                    2.  Diffuse tension myalgia.
 
         
 
                    3.  Narrowed L5-S1 interspace, doubtful clinical 
 
              significant to her present complaints.
 
         
 
              CONCLUSIONS/RECOMMENDATIONS:
 
         
 
                   Mrs. Lanhart has reached maximum medical improvement 
 
              from formal medical treatment, and is left with a permanent 
 
              partial impairment of the whole body of 0 percent from the 
 
              musculoskeletal standpoint.  No surgery or further extensive 
 
              investigation is indicated.
 
         
 
                   However, she might benefit from a program of emotional, 
 
              psychological and physical reconditioning.  Specifically, I 
 
              would recommend that she participate in a 
 
     
 
                     
 
                                                         
 
              psychiatrically-based pain management program which would 
 
              include supervised conditioning to improve her endurance, 
 
              flexibility and work tolerance.
 
         
 
                   It is difficult to directly relate her current symptoms 
 
              to her reported work-related injuries, as the history is 
 
              vague and atypical.  Her symptoms currently are primarily 
 
              those of pain amplification.  I think that it would be 
 
              difficult for Mrs. Lanhart to return to work until her 
 
              chronic pain problem is addressed.  After resolution of her 
 
              litigation, she may benefit from the pain management center 
 
              approach such as is available at Mayo Clinic.
 
         
 
         (Ex. 2)
 
         
 
              Claimant had complaints of backaches, weakness in her legs 
 
         and low back pain in 1980.  In 1982, claimant went for an 
 
         evaluation of back and lower extremity pain and indicated she had 
 
         a long history of back pain and discomfort.  At that time, 
 
         claimant indicated a number of subjective neurologic complaints, 
 
         parethesias in her hands and legs and numbness and cold feeling 
 
         in her lower extremities.  At that time, the examination did not 
 
         reveal any objective neurologic abnormalities.  It was suggested 
 
         that she should have a evaluation at that time.
 
         
 
              Medical records of the Duluth Clinic on May 10, 1982 set out 
 
         the following pursuant to a neurological evaluation:
 
         
 
              She has been complaining of 3 main symptoms---numbness in 
 
              her arms and legs, coldness in all 4 extremities.  She 
 
              claims that the pain in the low back has been present for 
 
              approximately 2 years intermittent and that at times when 
 
              she is walking she may fall for no apparent reason.  In 
 
              addition to this, within the last 12 months, she has had 
 
              trouble with her arms with pain in the elbows....In 
 
              addition, her legs and feet would also get numb and cold.
 
         
 
         (Ex. 10)
 
         
 
              The medical records of this same clinic indicate the same or 
 
         similar complaints of this claimant in 1972, 1974 and 1975.  On 
 
         August 19, 1974, the Duluth Clinic notes indicate:  "upset with 
 
         Dr. RPH because he indicated it was 'all in my head.'"
 
         
 
                            APPLICABLE LAW AND ANALYSIS
 
         
 
              The injury must both arise out of and be in the course of 
 
         the employment.  Crowe v. DeSoto Consol. Sch. Dist., 246 Iowa 
 
         402, 68 N.W.2d 63 (1955) and cases cited at pp. 405-406 of the 
 
         Iowa Report.  See also Sister Mary Benedict v. St. Mary's Corp., 
 
         255 Iowa 847, 124 N.W.2d 548 (1963) and Hansen v. State of Iowa, 
 
         249 Iowa 1147, 91 N.W.2d 555 (1958).
 
         
 
              The claimant has the burden of proving by a preponderance of 
 
         the evidence that the injury of November 29, 1985 is causally 
 
                                                
 
                                                         
 
         related to the disability on which she now bases her claim.  
 
         Bodish v. Fischer, Inc., 257 Iowa 516,,133 N.W.2d 867 (1965).  
 
         Lindahl v. L.O. Boggs, 236 Iowa 296, 18 N.W.2d 607 (1945).  A 
 
         possibility is insufficient; a probability is necessary.  Burt v. 
 
         John Deere Waterloo Tractor Works, 247 Iowa 691, 73 N.W.2d 732 
 
         (1955).  The question of causal connection is essentially within 
 
         the domain of expert testimony.  Bradshaw v. Iowa Methodist 
 
         Hospital, 251 Iowa 375, 101 N.W.2d 167 (1960).
 
         
 
              However, expert medical evidence must be considered with all 
 
         other evidence introduced bearing on the causal connection.  
 
         Burt, 247 Iowa 691, 73 N.W.2d 732.  The opinion of experts need 
 
         not be couched in definite, positive or unequivocal language.  
 
         Sondag v. Ferris Hardware, 220 N.W.2d 903 (Iowa 1974).  However, 
 
         the expert opinion may be accepted or rejected, in whole or in 
 
         part, by the trier of fact. Id. at 907.  Further, the weight to 
 
         be given to such an opinion is for the finder of fact, and that 
 
         may be affected by the completeness of the premise given the 
 
         expert and other surrounding circumstances.  Bodish, 257 Iowa 
 
         516, 133 N.W.2d 867.  See also Musselman v. Central Telephone 
 
         Co., 261 Iowa 352, 154 N.W.2d 128 (1967).
 
         
 
              While a claimant is not entitled to compensation for the 
 
         results of a preexisting injury or disease, the mere existence at 
 
         the time of a subsequent injury is not a defense.  Rose v. John 
 
         Deere Ottumwa Works, 247 Iowa 900, 908, 76 N.W.2nd 756, 1956).  
 
         If the claimant had a preexisting condition or disability that is 
 
         aggravated, accelerated, worsened or lighted up so that it 
 
         results in disability, claimant is entitled to recover.  Nicks v 
 
         Davenport Produce Co., 254 Iowa 130, 115 N.W.2d 812, (1962).
 
         
 
              When an aggravation occurs in the performance of an 
 
         employer's work and a causal connection is established, claimant 
 
         may recover to the extent of the impairment   Ziegler v. United 
 
         States Gypsum Co., 252 Iowa 613, 620, 106 N.W.2d 591, (1960).
 
         
 
              The Iowa Supreme Court cites, apparently with approval, the 
 
         C.J.S. statement that the aggravation should be material if it is 
 
         to be compensable.  Yeager v. Firestone Tire & Rubber Co., 253 
 
         Iowa 369, 112 N.W.2d 299 (1961); 100 C.J.S. Workmen's 
 
         Compensation section 555(17)a.
 
         
 
              An employer takes an employee subject to any active or 
 
         dormant health impairments, and a work connected injury which 
 
         more than slightly aggravates the condition is considered to be a 
 
         personal injury.  Ziegler v. United States Gypsum Co., 252 Iowa 
 
         613, 620, 106 N.W.2d 591 (1960), an cases cited.
 
         
 
              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); 
 
         Yeager v. Firestone Tire & Rubber Co., 253 Iowa 369, 112 N.W.2d 
 
         299 (1961); Ziegler v. United States Gypsum Co., 252 Iowa 613, 
 
         106 N.W.2d 591 (1960).  See also Barz v.Oler, 257 Iowa 508, 133 
 
                                                
 
                                                         
 
         N.W.2d 704 (1965); Almquist v. Shenandoah Nurseries, 218 Iowa 
 
         724, 254 N.W. 35 (1934).
 
         
 
              Iowa Code section 85.32 provides:
 
         
 
                   Except as to injuries resulting in permanent partial 
 
              disability, compensation shall begin on the fourth day of 
 
              disability after the injury.
 
         
 
                   If the period of incapacity extends beyond the 
 
              fourteenth day following the date of injury, then the 
 
              compensation due during the third week shall be increased by 
 
              adding thereto an amount equal to three days of 
 
              compensation.
 
         
 
              Iowa Code section 85.33(1) provides:
 
         
 
                   Except as provided in subsection 2 of this section, the 
 
              employer shall pay to an employee for injury producing 
 
              temporary total disability weekly compensation benefits, as 
 
              provided in section 85.32, until the employee has returned 
 
              to work or is medically capable of returning to the 
 
              employment substantially similar to the employment in which 
 
              the employee was engaged at the time of injury, whichever 
 
              occurs first.
 
         
 
              Claimant is approximately 36 years old.  She has not worked 
 
         since September 2, 1988 and was laid off from Cedar Rapids Grain 
 
         Company when it was purchased by Cargill.  The evidence shows 
 
         that claimant most likely would not have been laid off and would 
 
         still be working for Cedar Rapids Grain Company had it not been 
 
         purchased by the new owner.
 
         
 
              Claimant has a history of problems before her alleged injury 
 
         of November 29, 1985 which includes the same or similar 
 
         complaints from which claimant now complains.  The greater weight 
 
         of medical evidence shows no causal connection between claimant's 
 
         present disability and the injury of November 29, 1985.
 
         
 
              Dr. Socarras found no functional impairment and a lack of 
 
         objective findings and suggested a large psychophysiological 
 
         element.  Dr. Hines, who treated claimant over the years, could 
 
         not determine with any clear medical certainty the etiology of 
 
         claimant's complaint.  Dr. Hines referred claimant to Dr. 
 
         Phillips who thought claimant had a somewhat histrionic 
 
         personality. Claimant went to Mayo Clinic and saw several doctors 
 
         including a neurologist and psychologist and was put through 
 
         several tests and evaluations.  Dr. Ivnik, a psychologist, found 
 
         no definite signs of acquired neurocognitive impairment.  Dr. 
 
         Petersen indicated that claimant's symptoms appear 
 
         psychophysiologic.  Dr. Petersen further opined a zero permanent 
 
         partial impairment of the body as a whole from the 
 
         musculoskeletal standpoint.
 
         
 
              Medical evidence leads one to conclude that claimant's 
 
                                                
 
                                                         
 
         problems are psychogenic.  In August 1984, claimant was upset 
 
         with a doctor because he indicated it was "all in my head."  
 
         There is no evidence that the psychophysiological problems are 
 
         causally connected to claimant's injury of November 29, 1985 nor 
 
         was there any material aggravation or worsening of any 
 
         preexisting medical conditions that claimant had as a result of 
 
         this November 29, 1985 injury.  Claimant's November 29, 1985 
 
         injury did not cause any of claimant's present medical complaints 
 
         or conditions.  Claimant has had extensive tests since her 
 
         November 29, 1985 injury by various medical personnel and in some 
 
         instances duplicate tests which turned out normal.
 
         
 
              There was very disturbing evidence in the record as to 
 
         claimant's and her husband's substantial or total lack of recall 
 
         or knowledge of claimant's prior medical record or problems.  By 
 
         listening to claimant and her husband alone, it could be 
 
         concluded that claimant was a person in good health and no 
 
         mentionable problems and that all her present problems are a 
 
         result of her November 29, 1985 injury.  Claimant and her husband 
 
         are not credible witnesses in that the greater weight of evidence 
 
         indicates claimant had prior physical problems.
 
         
 
              Claimant's present disability is not causally connected to 
 
         her injury of November 29, 1985.  Claimant has no permanent 
 
         impairment or disability nor permanent loss of earning capacity 
 
         as a result of her November 29, 1985 injury.  Claimant's 
 
         temporary total disability began December 4, 1985 and ended up to 
 
         but not including July 13, 1986 amounting to 31.571 weeks.
 
         
 
              As to exhibit B and the medical bills, the evidence is 
 
         unclear as to the nature and purpose of the drugs set out therein 
 
         considering the medical problems claimant had before her November 
 
         29, 1985 injury and those that carried over to the present.  The 
 
 
 
                            
 
                                                         
 
         record shows that claimant had treatment for medical problems 
 
         since the November 29, 1985 injury that are not causally 
 
         connected to this injury.  Defendants are not responsible for any 
 
         drug bills or medical expenses incurred beginning July 13, 1986 
 
         to present, except defendants shall pay all the Mayo Clinic bill 
 
         of which the defendants have paid all but a balance of $353.63.  
 
         All of the prescription charges and medical bills beginning 
 
         November 29, 1985 up to and not including July 13, 1987 are to be 
 
         paid by defendants.
 
         
 
              As to the taxation of costs, defendants shall pay,,$150 of 
 
         the $1000 deposition fee of Dr. Hines which is the maximum amount 
 
         allowed for an expert witness per chapter 622.72, Code of Iowa, 
 
         and the $371.25 for Dr. Hines' deposition.  All other costs or 
 
         balance set out in part D of defendants' statement of disputes 
 
         and issues are the responsibility of the claimant as a cost of 
 
         doing business in litigating this claim.
 
         
 
                             FINDINGS OF FACT
 
         
 
              WHEREFORE, it is found:
 
         
 
              1.  Claimant temporarily injured her back on November 29, 
 
         1985 when she fell while making inspections for defendant 
 
         employer.
 
         
 
              2.  Claimant had preexisting injuries and medical conditions 
 
         which were not materially aggravated or worsened as a result of 
 
         her November 29, 1985 injury.
 
         
 
              3.  Claimant was temporarily disabled as a result of her 
 
         injury of November 29, 1985.
 
         
 
              4.  Claimant's temporary disability began December 4, 1985 
 
         to and not including July 13, 1986 at the weekly rate of 
 
         $147.06.
 
         
 
              5.  Claimant incurred no permanent impairment as a result of 
 
         her injury of November 29, 1985.
 
         
 
              6.  Claimant incurred no healing period as a result of her 
 
         injury of November 29, 1985.
 
         
 
              7.  Claimant returned to work July 13, 1986.
 
         
 
              8.  Claimant incurred no permanent loss of earning capacity 
 
         as a result of her November 29, 1985 injury.
 
         
 
              9.  Claimant incurred certain medical expenses during her 
 
         period of temporary total disability as a result of her injury of 
 
         November 29, 1985.
 
         
 
                                   CONCLUSIONS
 
         
 
              THEREFORE, it is concluded:
 
                                                
 
                                                         
 
         
 
              Claimant's injury arose out of and in the course of her 
 
         employment on November 29, 1985.
 
         
 
              Claimant was temporary totally disabled beginning December 
 
         4, 1985 up to but not including July 13, 1986 as a result of her 
 
         injury of November 29, 1985.
 
         
 
              Claimant's preexisting injuries and medical conditions were 
 
         not materially aggravated or worsened as a result of her November 
 
         29, 1985 injury.
 
         
 
              Claimant incurred no permanent impairment as a result of her 
 
         November 29, 1985 injury.
 
         
 
              Claimant incurred no permanent loss of earning capacity as a 
 
         result of her November 29, 1985 injury.
 
         
 
              Claimant was not permanently partially disabled as a result 
 
         of her November 29, 1985 injury.
 
         
 
              Claimant is not entitled to any healing period or permanent 
 
         partial disability benefits as a result of her November 29, 1985 
 
         injury.
 
         
 
                                      ORDER
 
         
 
              THEREFORE, it is ordered:
 
         
 
              Defendants are to pay unto claimant thirty-one point five 
 
         seven one (31.571) weeks of temporary total disability benefits 
 
         at the stipulated rate of one hundred forty-seven and 06/100 
 
         dollars ($147.06) per week which amount defendants have already 
 
         paid.
 
         
 
              Defendants are to pay unto claimant three hundred 
 
         fifty-three and 63/100 dollars ($353.63) balance of the Mayo 
 
         Clinic bill and reimburse claimant for all prescription drug 
 
         expenses beginning November 29, 1985 up to but not including July 
 
         13, 1986.
 
         
 
              Defendants shall pay the court reporter fee of appearance 
 
         and taking of the deposition of Dr. Hines in the amount of three 
 
         hundred seventy-one and 25/100 dollars ($371.25).
 
         
 
              Defendants shall be given credit for the benefits already 
 
         paid.
 
         
 
              Defendants shall pay one hundred fifty dollars ($150.00) of 
 
         the one thousand dollar ($1,000.00) deposition expense of Dr. 
 
         Hines per Iowa Code chapter 622.72.
 
         
 
              Claimant is responsible for the deposition transcript of Dr. 
 
         Socarras in the amount of sixty and 40/100 dollars ($60.40), the 
 
         court reporter regarding Dr. Hines in the the amount of eighty 
 
                                                
 
                                                         
 
         and 70/100 dollars ($80.70), and the Held Concepts-Dr. Hines' 
 
         records of thirty dollars ($30.00).
 
         
 
              All other costs are taxed to defendants per Division of 
 
         Industrial Services Rule 343-4.33.
 
         
 
              . Defendants shall file a claim activity report upon payment 
 
         of this award as required by this agency pursuant to Division of 
 
         Industrial Services Rule 343-3.1.
 
         
 
              Signed and filed this 7th day of March, 1989.
 
         
 
         
 
         
 
         
 
         
 
                                            BERNARD J. O'MALLEY
 
                                            DEPUTY INDUSTRIAL 
 
                                            COMMISSIONER
 
         
 
         Copies to:
 
         
 
         Mr. W. Michael Murray
 
         Attorney at Law
 
         2323 Grand
 
         Des Moines, IA  50312
 
         
 
         Ms. Dorothy L. Kelley
 
         Attorney at Law
 
         500 Liberty Bldg
 
         Des Moines, IA  50309
 
         
 
         Mr. Thomas M. Wertz
 
         Attorney at Law 
 
         4089 21st Ave SW
 
         Suite 114
 
         Cedar Rapids, IA  52404
 
 
 
         
 
 
            
 
 
 
 
 
            
 
 
 
                                            1108; 1801
 
                                            Filed April 7, 1988
 
                                            Bernard J. O'Malley
 
         
 
                  BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         MARGIRET LANHART,
 
         
 
              Claimant,
 
                                                  File No. 814417
 
         vs.
 
         
 
         ORKIN PEST CONTROL,                   A R B I T R A T I 0 N
 
         
 
              Employer,                           D E C I S I 0 N
 
         
 
         and
 
         
 
         UNDERWRITERS ADJUSTING CO.,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         1108
 
         
 
              Claimant has considerable preinjury medical problems 
 
         including psychogenic and psychophysiological symptom formation 
 
         problems which carried over post-injury.  Medical evidence showed 
 
         claimant had a histrionic personality which affected any 
 
         perceived permanent disability.  No causal connection between 
 
         injury and alleged permanent partial disability found.
 
         
 
         1801
 
         
 
              Claimant awarded only temporary total disability for her 
 
         injury resulting from slipping on a porch step.
 
         
 
         
 
         
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
                                                
 
 
            
 
            Page   1
 
            
 
                        
 
            
 
                                 
 
            
 
            
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                                          :
 
            HARVEY HUGO,                  :
 
                                          :
 
                 Claimant,                :         File Nos. 814422
 
                                          :                   916717
 
            vs.                           :                   916718
 
                                          :                   916719
 
            WILBERT HASSEBROEK, d/b/a     :                   916720
 
            HASSEBROEK TRUCKING and       :
 
            J & J LIVESTOCK,              :      A R B I T R A T I O N
 
                                          :
 
                 Employers,               :         D E C I S I O N
 
                                          :
 
            and                           :
 
                                          :
 
            ALLIED INSURANCE COMPANY,     :
 
            BITUMINOUS CASUALTY, and      :
 
            GREAT WEST CASUALTY COMPANY,  :
 
                                          :
 
                 Insurance Carriers,      :
 
                 Defendants.              :
 
            ____________________________________________________________
 
            
 
                              STATEMENT OF THE CASE
 
            
 
                 This decision concerns five proceedings in arbitration 
 
            brought by Harvey Hugo against his former employer based 
 
            upon injuries alleged to have occurred on or about January 
 
            10, 1986, October 1, 1986, May 5, 1987, January 11, 1988, 
 
            and December 12, 1989, respectively.  Hugo seeks 
 
            compensation for healing period, permanent partial 
 
            disability, interest, penalty under section 86.13 of The 
 
            Code and expenses under section 85.27 of The Code for 
 
            medical services and transportation.
 
            
 
                 The respective parties have stipulated to the 
 
            occurrence of an injury on January 10, 1986, as represented 
 
            in file number 814422.  In the other four files, the 
 
            occurrence of injury arising out of and in the course of 
 
            employment with the employer is disputed.  It is further 
 
            stipulated that, with regard to the January 10, 1986, 
 
            injury, Hugo is entitled to healing period compensation from 
 
            January 10, 1986, through November 28, 1986, but the 
 
            entitlement to compensation for permanent partial disability 
 
            resulting from that injury is disputed.  Hugo also seeks 
 
            compensation for lost time from work to attend doctor 
 
            appointments on February 18, 1987, May 1, 1987, September 
 
            14, 1987, and January 27, 1988.  The commencement date for 
 
            permanent partial disability resulting from the January 10, 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
            1986, injury is disputed.  The parties stipulated to an 
 
            appropriate rate of compensation for all five of the alleged 
 
            injuries.  The employer asserts a lack of notice defense 
 
            with regard to the alleged January 12, 1989, injury and a 
 
            statute of limitations defense under section 85.26(1) with 
 
            regard to the alleged injuries of October 1, 1986, May 5, 
 
            1987, and January 12, 1989.  It was further stipulated that, 
 
            in addition to what were substantially weekly payments made 
 
            during the time span of from January 20, 1986, through 
 
            December 9, 1986, claimant was paid the sum of $8,410.00 on 
 
            January 26, 1988, apparently for permanent partial 
 
            disability compensation associated with the January 10, 
 
            1986, injury.
 
            
 
                 The case was heard and fully submitted at Mason City, 
 
            Iowa, on January 9, 1992.  The evidence in the case consists 
 
            of joint exhibit 1, claimant's exhibits A and B, defendants' 
 
            exhibits 1 and 2, and testimony from Harvey Hugo, Loretta 
 
            Hugo and Ray Smalley.
 
            
 
                                 FINDINGS OF FACT
 
            
 
                 Having considered all the evidence received, together 
 
            with the appearance and demeanor of the witnesses, the 
 
            following findings of fact are made.
 
            
 
                 Harvey Hugo is a 50-year-old married man who lives near 
 
            Buffalo Center, Iowa, with his wife Loretta.  Harvey's 
 
            formal education is limited to the ninth grade.  Most of his 
 
            working life has involved unskilled manual labor.  He has 
 
            worked as a farmhand and mechanic.  He has performed 
 
            production work and metal work such as welding.  He has 
 
            apparently attempted self-employment without success on at 
 
            least three occasions.  He has typically salvaged scrap 
 
            metal as a part-time vocation for several years.  Claimant's 
 
            typical hourly earnings have been $6.00 per hour or less, 
 
            except for approximately one year when he was employed by 
 
            Winnebago Industries at $7.58 per hour (claimant's exhibit 
 
            B, pages 11-13).
 
            
 
                 Hugo asserts five injuries.  The first four are 
 
            asserted as separate events of acute trauma.  The claimant's 
 
            descriptions of the manner in which he was injured on each 
 
            of those first four occasions, namely, January 10, 1986, on 
 
            or about October 1, 1986, May 5, 1987, and January 11, 1988, 
 
            are all found to be correct.
 
            
 
                 With regard to the January 10, 1986, injury, the 
 
            claimant was driving a truck when he lost control.  The 
 
            medical records show him to have rather severely injured his 
 
            right knee.  The parties stipulated in the prehearing report 
 
            that the healing period for the knee injury ran from January 
 
            10, 1986, through November 28, 1986, a span of 46 and 1/7 
 
            weeks.  T. C. Mead, M.D., had released claimant to resume 
 
            work effective December 1, 1986 (joint exhibit 1, pages 33 
 
            and 46).  The stipulation showing the healing period to have 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
            ended on November 28 will not be disturbed despite the fact 
 
            that the return to work release would indicate that November 
 
            30, 1986, would be a more appropriate termination date for 
 
            healing period benefits.
 
            
 
                 The injury consisted in pertinent part of a fracture of 
 
            the tibial plateau of the claimant's right knee.  He 
 
            underwent open reduction with internal fixation surgery on 
 
            January 11, 1986 (joint exhibit 1, pages 5-13).  The 
 
            surgical procedure included removal of the lateral meniscus 
 
            (joint exhibit 1, pages 9 and 28).  After release from the 
 
            Sioux City, Iowa, hospital where the surgery was performed, 
 
            the claimant's care was transferred to Mason City 
 
            orthopaedic surgeons, M. W. Crane, M.D., and T. C. Mead, 
 
            M.D.  On October 1, 1986, Dr. Mead removed the metallic 
 
            fixation devices from the knee (joint exhibit 1, page 27).  
 
            On that same date, Dr. Mead issued a written report to Lorna 
 
            Stephenson, the claims representative for the insurance 
 
            carrier, in which he stated that it would be at least three 
 
            or four months until permanent impairment could be assigned, 
 
            but that he estimated that, with the post-traumatic 
 
            deformity and loss of range of motion and the meniscectomy, 
 
            the impairment would be approximately 25 percent of the 
 
            lower extremity (joint exhibit 1, page 25).  On June 2, 
 
            1987, Dr. Mead answered a report indicating that it was 
 
            undetermined if there would be permanent disability (joint 
 
            exhibit 1, page 46).  Later, in response to a letter dated 
 
            January 13, 1988, (joint exhibit 1, page 51), Dr. Mead 
 
            reported to the insurance carrier that claimant had a 25 
 
            percent impairment of the lower extremity as a result of the 
 
            injury (joint exhibit 1, page 56).  It is found that, based 
 
            upon the October 1, 1986, report and the fact of the removal 
 
            of the lateral meniscus, it was reasonably certain that 
 
            claimant would have some permanent disability affecting the 
 
            right knee as early as October 1, 1986, when Dr. Mead issued 
 
            his report.  It was only the percentage of impairment that 
 
            was uncertain.  In October of 1986, the best estimate was 
 
            that the impairment would be 25 percent.  That estimate 
 
            ultimately proved to be accurate.  According to the 
 
            stipulation attached to the prehearing report showing 
 
            payments of weekly compensation, the bulk of the permanent 
 
            partial disability compensation was not paid until January 
 
            26, 1988.  It was unreasonable for the insurance carrier not 
 
            to have paid some permanent partial disability compensation 
 
            immediately at the end of the healing period since the fact 
 
            that some permanency would result was a certainty.  It is 
 
            found that, under the circumstances which were known to 
 
            exist, it was unreasonable not to have paid compensation for 
 
            at least a 20 percent permanent partial disability of the 
 
            right leg, even though the final impairment rating had not 
 
            been made.  The record does not show an express request for 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
            a permanent impairment rating to have been made by the 
 
            insurance carrier until the January 13, 1988, letter.  The 
 
            letter to the insurance carrier which was dated January 21, 
 
            1988, contains an impairment rating which was apparently 
 
            based upon Dr. Mead's last examination of the claimant.  
 
            That examination had been performed on September 14, 1987.  
 
            It is found that Dr. Mead could have rated the impairment on 
 
            September 14, 1987, if he had been asked to do so.  If the 
 
            insurance carrier had acted reasonably, it would have 
 
            voluntarily paid 44 weeks of permanent partial disability 
 
            compensation commencing at the end of the healing period.  
 
            Those 44 weeks would have provided compensation through 
 
            November 2, 1987.  With Dr. Mead's examination on September 
 
            14, 1987, the final impairment rating of 25 percent could 
 
            have been received by the insurance carrier, if it had 
 
            requested the same promptly, in order to have permitted 
 
            paying the additional five percent permanent partial 
 
            disability (11 weeks) without there having been any 
 
            interruption in benefits.
 
            
 
                 Based upon the stipulation, the healing period is 46 
 
            and 1/7 weeks.  Twenty-five percent permanent partial 
 
            disability of the claimant's right leg would entitle him to 
 
            55 weeks of permanent partial disability compensation.  The 
 
            total entitlement would therefore be 101 and 1/7 weeks.  
 
            According to the stipulated record of payments shown at page 
 
            6 of the prehearing report, an amount equal to 101 and 2/7 
 
            weeks of benefits has been paid.  The initial 47 and 4/7 
 
            weeks were paid timely.  The remaining 53 and 4/7 weeks 
 
            (including 1/7 week overpayment) was not paid until January 
 
            26, 1988.  Payment of 53 and 4/7 weeks of permanent partial 
 
            disability compensation was therefore unreasonably delayed.  
 
            It is found to have been entirely unreasonable not to have 
 
            paid the claimant permanent partial disability compensation 
 
            for a right leg injury in a timely manner.
 
            
 
                 With regard to the January 10, 1986, injury, claimant 
 
            also seeks to prove that the injury permanently affected his 
 
            back or otherwise extended into his body.  The first mention 
 
            of any back complaints in the medical records following the 
 
            January 10, 1986, injury is found at a note dated February 
 
            18, 1987 (joint exhibit 1, page 35).  X-rays showed some 
 
            degenerative disc disease.  In a report dated September 5, 
 
            1989, Dr. Crane stated that, if claimant had no chronic back 
 
            pain before his injury but then had pain subsequently, the 
 
            pain would be directly related by history to the accident 
 
            (joint exhibit 1, page 67).  The history given in that 
 
            report shows the onset of back pain with the accident 
 
            suffered while driving a truck.  That same report shows that 
 
            the claimant states his right shoulder is not much of a 
 
            problem (joint exhibit 1, page 67).  In a report dated 
 
            December 23, 1991, Dr. Mead states that the claimant's 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
            arthritic changes in his spine and shoulder are most likely 
 
            related to the aging process and perhaps accelerated by 
 
            specific traumatic events such as a motor vehicle accident.  
 
            The report goes on to state that claimant may not be able to 
 
            do very heavy lifting but could probably tolerate lighter 
 
            duty (claimant's exhibit B, page 71).  The history of the 
 
            onset of back pain immediately following the January 1986 
 
            truck accident is not corroborated by any medical record.  
 
            The process which has been identified through x-rays is 
 
            consistent with normal aging and deterioration.  It is not a 
 
            condition which is indicative of acute injury.  The accident 
 
            of January 10, 1986, that was described by the claimant does 
 
            not show a series of events which would be likely to have 
 
            produced a substantial back injury.  It is therefore found 
 
            that the evidence in this case does not show it to be 
 
            probable that any permanent injury to the claimant's back 
 
            resulted from the January 10, 1986, accident.
 
            
 
                 The second injury alleged, file number 916719, deals 
 
            with an accident that occurred on or shortly before October 
 
            1, 1986, while claimant was driving the employer's pickup.  
 
            The record does not show the claimant to have sustained any 
 
            identifiable injury, to have incurred any medical expenses 
 
            for treatment of any injuries which were sustained, to have 
 
            experienced any disability from performing his normal work 
 
            or to have received any degree of permanent disability of 
 
            any type whatsoever as a result of that accident.  While 
 
            claimant likely had some bumps, bruises or abrasions, the 
 
            record fails to show that he sustained any injury which was 
 
            sufficiently severe as to require medical treatment or to 
 
            have disabled him to any extent either temporarily or 
 
            permanently.
 
            
 
                 The third injury which the claimant asserts occurred on 
 
            May 5, 1987, when a sow caused him to fall upon his right 
 
            shoulder.  The incident was witnessed by his employer.  
 
            Claimant has sought medical care for the shoulder on various 
 
            occasions.  Claimant expresses residual complaints regarding 
 
            the shoulder, but there is nothing in the record which 
 
            indicates that those complaints have any significant 
 
            detrimental effect upon his ability to hold employment or 
 
            limit his access to employments which would otherwise be 
 
            appropriate for him.
 
            
 
                 The fourth injury occurred on January 11, 1988, while 
 
            he was loading sows.  A sow ran into the gate he was holding 
 
            and caused him to injure his back.  The record shows that 
 
            claimant did incur some expenses for treatment and travel, 
 
            but it does not show any period of disability related to 
 
            that injury.  The injury was a temporary aggravation which 
 
            did not cause any permanent disability as noted by Dr. Mead 
 
            (joint exhibit 1, page 57).
 
            
 
                 Claimant asserts an injury resulting from cumulative 
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
            trauma with an injury date of January 12, 1989, claimant's 
 
            last day of work for the employer.  Claimant's employment 
 
            was terminated due to an accident wherein the employer's 
 
            property was damaged.  The claimant was not injured in that 
 
            accident.  Since that date, the claimant has obtained and 
 
            held employment regularly.  There is no indication that he 
 
            has been disabled by any type of cumulative injury process.
 
            
 
                 It was stipulated that the expenses incurred for 
 
            treatment were fair and reasonable, that the treatment was 
 
            reasonable and necessary and that it was causally connected 
 
            to the alleged work injury.  The expenses were not, however, 
 
            authorized by any defendant.  The itemized expenses include 
 
            travel expenses as well as charges for chiropractic 
 
            treatment and prescription medications.
 
            
 
                 With regard to the January 10, 1986, injury, it is 
 
            found that claimant received treatment for that injury 
 
            running through May 1, 1987.  In doing so, he traveled a 
 
            total of 1,030 miles which entitles him to receive $216.30 
 
            in commuting expenses.  There is no evidence in the record 
 
            to indicate that the claimant ever obtained any treatment 
 
            for the injuries he allegedly sustained on or about October 
 
            1, 1986.
 
            
 
                 Claimant was injured on May 5, 1987, and thereafter 
 
            received some treatment for his shoulder.  Those treatments 
 
            are the ones received commencing May 5, 1987, and running 
 
            through September 14, 1987.  He also incurred expenses in 
 
            the amount of $35.00 with Judith M. Edling, D.C., for 
 
            services performed on May 18 and May 21, 1987.
 
            
 
                 Claimant was again injured while loading sows on 
 
            January 11, 1988.  It is found that the travel and expenses 
 
            performed commencing January 13, 1988, and running through 
 
            May 9, 1988, resulted from that incident.
 
            
 
                 Claimant's visit to Dr. Crane on September 5, 1989, and 
 
            the resulting prescription appear to be a temporary 
 
            aggravation of his underlying condition which was related to 
 
            his scrap iron business rather than to any of the earlier 
 
            accidents.
 
            
 
                 A radiographic report dated September 5, 1989, shows 
 
            deterioration of the right rotator cuff and degenerative 
 
            changes in the lumbar spine.  There is no evidence in the 
 
            record which directly relates either of those conditions to 
 
            any of the injuries or injury processes which are present in 
 
            the record of this case.
 
            
 
                                CONCLUSIONS OF LAW
 
            
 
                 The claimant has the burden of proving by a 
 
            preponderance of the evidence that the alleged injury 
 
            actually occurred and that it arose out of and in the course 
 
            of employment.  McDowell v. Town of Clarksville, 241 N.W.2d 
 
            904 (Iowa 1976); Musselman v. Cent. Tel. Co., 261 Iowa 352, 
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
            154 N.W.2d 128 (1967).  The words "arising out of" refer to 
 
            the cause or source of the injury.  The words "in the course 
 
            of" refer to the time, place and circumstances of the 
 
            injury.  Sheerin v. Holin Co., 380 N.W.2d 415 (Iowa 1986); 
 
            McClure v. Union County, 188 N.W.2d 283 (Iowa 1971).
 
            
 
                 A personal injury contemplated by the workers' 
 
            compensation law means an injury, the impairment of health 
 
            or a disease resulting from an injury which comes about, not 
 
            through the natural building up and tearing down of the 
 
            human body, but because of trauma.  The injury must be 
 
            something which acts extraneously to the natural processes 
 
            of nature and thereby impairs the health, interrupts or 
 
            otherwise destroys or damages a part or all of the body.  
 
            Although many injuries have a traumatic onset, there is no 
 
            requirement for a special incident or an unusual occurrence.  
 
            Injuries which result from cumulative trauma are 
 
            compensable.  McKeever Custom Cabinets v. Smith, 379 N.W.2d 
 
            368 (Iowa 1985); Olson v. Goodyear Serv. Stores, 255 Iowa 
 
            1112, 125 N.W.2d 251 (1963); Ford v. Goode, 240 Iowa 1219, 
 
            38 N.W.2d 158 (1949); Almquist v. Shenandoah Nurseries, 
 
            Inc., 218 Iowa 724, 254 N.W. 35 (1934).
 
            
 
                 When the disability develops gradually over a period of 
 
            time, the "cumulative injury rule" applies.  For time 
 
            limitation purposes, the compensable injury is held to occur 
 
            when because of pain or physical disability, the claimant 
 
            can no longer work.  McKeever Custom Cabinets v. Smith, 379 
 
            N.W.2d 368 (Iowa 1985).
 
 
 
                 Claimant has failed to prove, by a preponderance of the 
 
            evidence, that he sustained any injury on or about January 
 
            12, 1989.  Claimant has proven that he sustained injury on 
 
            each of the other four dates alleged.
 
            
 
                 The claimant has the burden of proving by a 
 
            preponderance of the evidence that the injury is a proximate 
 
            cause of the disability on which the claim is based.  A 
 
            cause is proximate if it is a substantial factor in bringing 
 
            about the result; it need not be the only cause.  A 
 
            preponderance of the evidence exists when the causal 
 
            connection is probable rather than merely possible.  
 
            Blacksmith v. All-American, Inc., 290 N.W.2d 348 (Iowa 
 
            1980); Holmes v. Bruce Motor Freight, Inc., 215 N.W.2d 296 
 
            (Iowa 1974).
 
            
 
                 The question of causal connection is essentially within 
 
            the domain of expert testimony.  The expert medical evidence 
 
            must be considered with all other evidence introduced 
 
            bearing on the causal connection between the injury and the 
 
            disability.  The weight to be given to any expert opinion is 
 
            determined by the finder of fact and may be affected by the 
 
            accuracy of the facts relied upon by the expert as well as 
 
            other surrounding circumstances.  The expert opinion may be 
 
            accepted or rejected, in whole or in part.  Sondag v. Ferris 
 
            Hardware, 220 N.W.2d 903 (Iowa 1974); Anderson v. Oscar 
 
            Mayer & Co., 217 N.W.2d 531 (Iowa 1974); Bodish v. Fischer, 
 

 
            
 
            Page   8
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
            Inc., 257 Iowa 516, 133 N.W.2d 867 (1965).
 
            
 
                 Claimant has failed to prove that any of the three 
 
            injuries, except for the injury of January 10, 1986, caused 
 
            any temporary disability which exceeded three days or any 
 
            permanent disability.
 
            
 
                 With regard to the injury of on or about October 1, 
 
            1986, he has not introduced evidence showing any disability 
 
            or medical treatment.
 
            
 
                 With regard to the injury of May 5, 1987, claimant has 
 
            not proven that the injury produced any disability, but he 
 
            has proven that he traveled 64 miles in obtaining medical 
 
            treatment for the injury which entitles him to receive 
 
            $13.44 and that he incurred charges in the amount of $35.00 
 
            with Dr. Edling in treating the injury.
 
            
 
                 With regard to the injury of January 11, 1988, claimant 
 
            has not proven that he sustained any temporary or permanent 
 
            disability, but he has proven an entitlement to medical 
 
            expenses and mileage.  He traveled 419 miles which entitles 
 
            him to $87.99.  He incurred charges in the amount of $30.00 
 
            with Dr. Edling and prescription expenses prescribed by Dr. 
 
            Mead in the amount of $52.92.
 
            
 
                 The injury of January 10, 1986, produced a 25 percent 
 
            permanent partial disability of the claimant's right leg.  
 
            It also caused an entitlement to healing period compensation 
 
            running from January 10, 1986, through November 28, 1986.
 
            
 
                 Iowa Code sections 85.33 and 85.34 provide the dates 
 
            when weekly compensation benefits are due and payable.  The 
 
            record in this case does not show the precise dates when the 
 
            claimant received any of his weekly benefits, but it does 
 
            show the dates that the payments were issued to him.  Any 
 
            delay in his healing period compensation is determined to be 
 
            de minimus.  The record shows a regular practice of making 
 
            periodic payments.
 
            
 
                 There was a considerable delay in making the claimant's 
 
            permanent partial disability compensation payments.  The 
 
            amount of that delay has been previously found to be 
 
            unreasonable.  Claimant is entitled to recover interest from 
 
            the time each weekly payment came due until the date it was 
 
            actually paid to him.  Twenty-five percent permanent partial 
 
            disability of the right leg entitles claimant to recover 55 
 
            weeks of permanent partial disability compensation.  
 
            Benefits were regularly paid through December 9, 1986.  
 
            Those payments paid all 46 and 1/7 weeks of the healing 
 
            period entitlement and 1 and 3/7 weeks of the permanent 
 
            partial disability compensation entitlement.  The balance of 
 
            53 and 4/7 weeks of the permanent partial disability 
 
            compensation entitlement was paid in a lump sum on January 
 
            26, 1988.  Interest on permanent partial disability 
 
            compensation is computed from the date each weekly payment 
 
            came due until it is finally paid.  Code section 85.30.  The 
 

 
            
 
            Page   9
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
            current rate is ten percent per annum.
 
            
 
                 It is also recognized that the proper method of 
 
            allocating partial payments is to apply the payment first to 
 
            interest which is then accrued with the balance of the 
 
            payment being applied to the principal.  A claimant's unpaid 
 
            weekly compensation is essentially an open account and 
 
            interest should be computed accordingly.  Fockler v. Beach, 
 
            32 Iowa 187 (1871); Smith, Twogood & Co. v. Coopers, 9 Iowa 
 
            376 (1859); Huner v. Doolittle, 3 Greene 76, 54 Am. Dec. 489 
 
            (Iowa 1851).
 
            
 
                 The proper method of computing interest is found in the 
 
            Guide to Iowa Workers' Compensation Claim Handling.  The 
 
            factors for 53 weeks and 54 weeks are 2.6500 and 2.7519, 
 
            respectively.  The period in question is 53 and 4/7 weeks 
 
            and four-sevenths of the difference between these two 
 
            factors for the full weeks is .0582.  The factor for 53 and 
 
            4/7 weeks is therefore 2.7082.  Interest under Step 1 is 
 
            therefore computed as $156.57 x 2.7082 = $424.02.  The 
 
            period during which permanency benefits were payable ended 
 
            December 18, 1987 (55 weeks after November 29, 1986).  As of 
 
            December 18, 1987, claimant was owed $8,387.61 in unpaid 
 
            weekly compensation for permanent partial disability.  
 
            Interest on that amount from December 19, 1987, to January 
 
            26, 1988, (5 4/7 weeks) is $89.86.  the amounts due claimant 
 
            on January 26, 1988, were therefore $513.88 of interest and 
 
            $8,387.61 of compensation for a total of $8,901.49.  Payment 
 
            of $8,410.00 on January 26, 1988, left $491.49 unpaid and 
 
            subject to interest.  From January 27, 1988, to June 4, 
 
            1992, is 227 and 2/7 weeks.  Interest accrued during that 
 
            period is $214.82.  On June 4, 1992, the total owed to 
 
            claimant for weekly compensation and interest is $706.31.
 
            
 
                 If weekly compensation is not paid when due and is 
 
            unreasonably delayed or denied, a penalty of up to 50 
 
            percent of the amount which was unreasonably delayed or 
 
            denied can be assessed under the provisions of Code section 
 
            86.13.  The test is whether or not the claim is fairly 
 
            debatable.  Stanley v. Wilson Foods Corp., File No. 753405 
 
            (App. Decn., August 23, 1990).  The debate may be either a 
 
            matter of fact or law.  In this case, the only significant 
 
            delay is the delay in payment of permanent partial 
 
            disability for the claimant's right knee.  In October of 
 
            1986, Dr. Mead had indicated that he expected a 25 percent 
 
            permanent impairment of the leg, but that it would be at 
 
            least three or four months before the amount of impairment 
 
            could be determined with certainty (joint exhibit 1, page 
 
            25).  It was stipulated by the parties that the healing 
 
            period ended November 28, 1986.  Under Code section 
 
            85.34(2), compensation for permanent partial disability is 
 
            payable commencing at the end of the healing period.  Teel 
 
            v. McCord, 394 N.W.2d 405 (Iowa 1986).  The duty to pay 
 

 
            
 
            Page  10
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
            permanent partial disability, even for a scheduled member, 
 
            is not conditioned upon having a precise, final impairment 
 
            rating.  In this case, the claimant's knee injury was 
 
            sufficiently severe that some degree of permanency would 
 
            have been apparent even in the absence of any impairment 
 
            rating.  The simple removal of the lateral meniscus at the 
 
            time of the initial surgery would have warranted a rating of 
 
            some impairment.  The fracture of the tibial plateau is also 
 
            an injury which typically leaves some permanent impairment.  
 
            The nature of a claim for penalty under the fourth 
 
            unnumbered paragraph of section 86.13 is not a direct claim 
 
            for injury.  It is a claim based upon claim handling 
 
            practices and is similar to the first party bad faith 
 
            failure to pay tort recognized in Dolan v. Aid Ins. Co., 431 
 
            N.W.2d 790 (Iowa 1988).  It is a separate and distinct claim 
 
            from the underlying injury claim.  It is a claim which may 
 
            arise years after the original injury, depending upon the 
 
            claim handling practices which were followed.  In October of 
 
            1986, the only indications in the record were that a 25 
 
            percent impairment of the leg was to be expected.  A 25 
 
            percent impairment of the leg under Code section 85.34(2)(o) 
 
            entitles the employee to 55 weeks of permanent partial 
 
            disability compensation benefits.  It might have been 
 
            reasonable for defendants to take a conservative approach 
 
            and plan to pay only 20 percent permanent partial disability 
 
            voluntarily and then await the final impairment rating, 
 
            which was to be expected in three or four months after 
 
            October of 1986, before making their final determination on 
 
            the claim.  It should be noted that four months after 
 
            October 1, 1986, would be February 1, 1987.  Even by June 2, 
 
            1987, less than 27 weeks of permanent partial disability 
 
            benefits were due and payable.  In Dr. Mead's supplemental 
 
            medical report dated June 2, 1987, the indication with 
 
            regard to permanent disability was "undetermined at 
 
            present."  (Joint exhibit 1, page 46).  It was not until Dr. 
 
            Mead was specifically asked to provide an impairment rating 
 
            that he did so.  The claims representative for Allied did 
 
            not ask for that rating until January 13, 1988 (joint 
 
            exhibit 1, page 51).  After receiving the request, the 
 
            doctor promptly responded and the permanent partial 
 
            disability compensation was then paid.  It is important to 
 
            note that the impairment rating given by Dr. Mead in January 
 
            was based upon his last office call with the claimant which 
 
            occurred on September 14, 1987 (joint exhibit 1, page 56).  
 
            It therefore stands to reason that, if the insurance carrier 
 
            had seen fit to ask the doctor for an impairment rating 
 
            following that September 14, 1987, office call, an 
 
            impairment rating could have been given at that time.  It 
 
            also stands to reason that the rating would have been 25 
 
            percent if it had been given in September of 1987, just as 
 

 
            
 
            Page  11
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
            it was when it was finally given in January of 1988.  
 
            Nothing prohibited the doctor from being asked for a rating 
 
            sooner than January.  Under these circumstances the failure 
 
            to pay promptly was entirely unreasonable.  Defendants 
 
            should have promptly commenced permanent partial disability 
 
            payments and paid a conservative estimate of what the 
 
            impairment was likely to be.  Such a conservative estimate 
 
            would have run through September of 1987.  If they had asked 
 
            for the rating sooner, defendants could have received the 
 
            final rating in late September or early October of 1987, and 
 
            should have then been in a position to pay the balance in a 
 
            timely fashion.  This was not done.  Awaiting a final 
 
            impairment rating is not a justifiable cause for failing to 
 
            pay any permanent partial disability compensation.  Teel v. 
 
            McCord, 394 N.W.2d 405 (Iowa 1986).  The duty of an adjuster 
 
            is to adjust the claim based upon the information that is 
 
            available at the time when decisions regarding the claim 
 
            must be made.  One and three-sevenths weeks of permanent 
 
            partial disability had been paid in December of 1986.  
 
            Therefore, the remaining 53 and 4/7 weeks were not timely 
 
            paid and the failure to pay in on a timely basis was without 
 
            probable cause or excuse.  In view of all the foregoing, it 
 
            is determined that it was unreasonable not to have paid at 
 
            least a 20 percent permanent partial disability voluntarily, 
 
            despite the absence of a final impairment rating.  Twenty 
 
            percent equates to 44 weeks of compensation.  It is 
 
            determined that a penalty in an amount which is 
 
            approximately equal to 50 percent of 40 weeks would be 
 
            appropriate.  The penalty is therefore assessed at $3,000.
 
            
 
                                      ORDER
 
            
 
                 IT IS THEREFORE ORDERED that, in file number 814422, 
 
            defendant employer and Allied Insurance Company pay Harvey 
 
            Hugo forty-six and one-seventh (46 1/7) weeks of 
 
            compensation for healing period at the rate of one hundred 
 
            fifty-six and 57/100 dollars ($156.57) per week payable 
 
            commencing January 10, 1986.
 
            
 
                 IT IS FURTHER ORDERED that, in file number 814422, 
 
            defendant employer and Allied Insurance Company pay Harvey 
 
            Hugo fifty-five (55) weeks of compensation for permanent 
 
            partial disability affecting his right leg at the rate of 
 
            one hundred fifty-six and 57/100 dollars ($156.57) per week 
 
            payable commencing November 29, 1986.
 
            
 
                 IT IS FURTHER ORDERED that, after credit for all 
 
            payments previously paid to the claimant in file number 
 
            814422, defendant employer and Allied Insurance Company pay 
 
            claimant the additional sum of seven hundred six and 31/100 
 
            dollars ($706.31) representing four hundred ninety-one and 
 
            49/100 dollars ($491.49) in weekly compensation and two 
 
            hundred fourteen and 82/100 dollars ($214.82) in interest.
 
            
 
                 IT IS FURTHER ORDERED that, in file number 814422, 
 

 
            
 
            Page  12
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
            defendant employer and Allied Insurance Company pay claimant 
 
            the sum of three thousand and 00/100 dollars ($3,000.00) as 
 
            a penalty under the provisions of the fourth unnumbered 
 
            paragraph of Code section 86.13.
 
            
 
                 IT IS FURTHER ORDERED that, in file number 814422, 
 
            defendant employer and Allied Insurance Company pay Harvey 
 
            Hugo two hundred sixteen and 30/100 dollars ($216.30) for 
 
            transportation expenses under the provisions of Code section 
 
            85.27.
 
            
 
                 IT IS FURTHER ORDERED that, in file number 916719, no 
 
            award of any type is due to the claimant from the defendant 
 
            employer and its insurance carrier.
 
            
 
                 IT IS FURTHER ORDERED that, in file number 916718, 
 
            defendant employer and Bituminous Casualty Company pay 
 
            Harvey Hugo thirteen and 44/100 dollars ($13.44) for 
 
            transportation expenses and thirty-five and 00/100 dollars 
 
            ($35.00) for expenses of treatment incurred with Dr. Edling.
 
            
 
                 IT IS FURTHER ORDERED that, in file number 916720, 
 
            defendant employer and Bituminous Casualty Company pay 
 
            Harvey Hugo eighty-seven and 99/100 dollars ($87.99) for 
 
            transportation expenses, thirty and 00/100 dollars ($30.00) 
 
            for expenses of treatment with Dr. Edling, and fifty-two and 
 
            92/100 dollars ($52.92) for prescription medication.
 
            
 
                 IT IS FURTHER ORDERED that, in file number 916717, 
 
            claimant receive no recovery.
 
            
 
                 IT IS FURTHER ORDERED that the costs of this proceeding 
 
            are assessed against the defendant employer and its 
 
            insurance carrier in file numbers 814422, 916718 and 916720.  
 
            The costs in file numbers 916717 and 916719 are assessed 
 
            against the claimant.  All witness fees are assessed against 
 
            the defendant employer and Allied Insurance Company in file 
 
            number 814422.  The costs in each file are seventy-one and 
 
            60/100 dollars ($71.60), except for 814422 where the amount 
 
            is one hundred forty and 54/100 dollars ($140.54).
 
            
 
                 IT IS FURTHER ORDERED that defendant employer and its 
 
            respective insurance companies shall each file claim 
 
            activity reports as requested by this agency pursuant to 
 
            rule 343 IAC 3.1.
 
            
 
                 Signed and filed this ______ day of ____________, 1992.
 
            
 
                 
 
            
 
                 
 
                 
 
                                          ______________________________
 
                                          MICHAEL G. TRIER
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 

 
            
 
            Page  13
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
            Mr. Mark S. Soldat
 
            Attorney at Law
 
            714 East State Street
 
            Algona, Iowa  50511
 
            
 
            Mr. Brian L. Campbell
 
            Attorney at Law
 
            801 Grand Avenue, Suite 3700
 
            Des Moines, Iowa  50309-2727
 
            
 
            Mr. Rustin T. Davenport
 
            Attorney at Law
 
            30 4th Street NW
 
            P.O. Box 1953
 
            Mason City, Iowa  50401
 
            
 
            Mr. Stephen W. Spencer
 
            Attorney at Law
 
            Suite 300, Fleming Building
 
            P.O. Box 9130
 
            Des Moines, Iowa  50306-9130
 
            
 
 
         
 
 
 
 
 
                                        1402.40; 2101; 2209; 3800
 
                                        4000.2
 
                                        Filed June 4, 1992
 
                                        MICHAEL G. TRIER
 
         
 
                   BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         ____________________________________________________________
 
                   
 
         HARVEY HUGO,   
 
                   
 
              Claimant,                          File Nos. 814422
 
                                                           916717
 
         vs.                                               916718
 
                                                           916719
 
         WILBERT HASSEBROEK, d/b/a                         916720
 
         HASSEBROEK TRUCKING and  
 
         J & J LIVESTOCK,                     A R B I T R A T I O N
 
                   
 
              Employers,                         D E C I S I O N
 
                   
 
         and       
 
                   
 
         ALLIED INSURANCE COMPANY,     
 
         BITUMINOUS CASUALTY, and 
 
         GREAT WEST CASUALTY COMPANY,  
 
                   
 
              Insurance Carriers, 
 
              Defendants.    
 
         ____________________________________________________________
 
         
 
         2209
 
         Claimant brought five cases against the employer.  A cumulative 
 
         injury claimant was denied where the last day of work before 
 
         being fired was the date of alleged injury.
 
         
 
         1402.40
 
         Two were minor injuries where medical expenses were awarded but 
 
         no temporary or permanent disability was found.  A fourth 
 
         involved injuries so minor that no recovery was awarded.  The 
 
         first injury in time severely injured claimant's knee and 
 
         produced nearly a year of healing period and permanent partial 
 
         disability.
 
         
 
         3800
 
         Permanent partial disability was delayed over one year and then a 
 
         lump sum was paid.  Where partial payments are paid, they are 
 
         applied first to accrued interest and the balance reduces the 
 
         amount of unpaid weekly compensation.  The unpaid balance then 
 
         accrues interest until the next payment.
 
         
 
         4000.2; 2101
 
         Lack of a final impairment rating does not excuse failure to pay 
 
         some reasonable amount of permanent partial disability where the 
 
         condition typically results in permanency and an expected final 
 
         rating has been given by the doctor.