Page   1
 
         
 
         
 
         
 
         
 
         before the iowa industrial commissioner
 
         _________________________________________________________________
 
                                         :
 
         MARY SHUEY,                     :
 
                                         :
 
              Claimant,                  :
 
                                         :
 
         vs.                             :     File Nos. 816824/854124
 
                                         :               931336
 
         FURNAS ELECTRIC COMPANY,        :
 
                                         :            A P P E A L
 
              Employer,                  :
 
                                         :          D E C I S I O N
 
         and                             :
 
                                         :
 
         LIBERTY MUTUAL INSURANCE CO.    :
 
         and NORTHBROOK PROPERTY &       :
 
         CASUALTY,                       :
 
                                         :
 
              Insurance Carrier,         :
 
              Defendants.                :
 
         _________________________________________________________________
 
         The record, including the transcript of the hearing before the 
 
         deputy and all exhibits admitted into the record, has been 
 
         reviewed de novo on appeal.  The decision of the deputy filed 
 
         December 13, 1991 is affirmed and is adopted as the final agency 
 
         action in this case.
 
         Claimant shall pay the costs of the appeal, including the 
 
         preparation of the hearing transcript.
 
         Signed and filed this ____ day of December, 1992.
 
         
 
         
 
         
 
         
 
                   ________________________________
 
                            BYRON K. ORTON
 
                       INDUSTRIAL COMMISSIONER
 
         
 
         Copies To:
 
         
 
         Mr. Steven C. Jayne
 
         Attorney at Law
 
         5835 Grand Ave., Ste 201
 
         Des Moines, Iowa 50312
 
         
 
         Mr. Helmut Mueller
 
         Attorney at Law
 
         Rural Route 5
 
         Osceola, Iowa 50213
 
         
 

 
         
 
         Page   2
 
         
 
         
 
         
 
         
 
         Mr. E. J. Kelly
 
         Mr. Jeff M. Margolin
 
         Attorneys at Law
 
         2700 Grand Ave., Ste 111
 
         Des Moines, Iowa 50312
 
         
 
         Mr. Jon K. Hoffmann
 
         Attorney at Law
 
         500 Liberty Bldg.
 
         Des Moines, Iowa 50309
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                          9998
 
                                          Filed December 21, 1992
 
                                          BYRON K. ORTON
 
                                          MGT
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
            _____
 
                                            :
 
            MARY SHUEY,                     :
 
                                            :
 
                 Claimant,                  :
 
                                            :
 
            vs.                             :     File Nos. 
 
            816824/854124
 
                                            :               931336
 
            FURNAS ELECTRIC COMPANY,        :
 
                                            :            A P P E A L
 
                 Employer,                  :
 
                                            :          D E C I S I O N
 
            and                             :
 
                                            :
 
            LIBERTY MUTUAL INSURANCE CO.    :
 
            and NORTHBROOK PROPERTY &       :
 
            CASUALTY,                       :
 
                                            :
 
                 Insurance Carrier,         :
 
                 Defendants.                :
 
            ____________________________________________________________
 
            _____
 
            
 
            
 
            9998
 
            
 
                 Summary affirmance of deputy's decision filed December 
 
            13, 1991.
 
            
 
            
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            MARY SHUEY,                   :
 
                                          :
 
                 Claimant,                :
 
                                          :         File Nos. 816824
 
            vs.                           :                   854124
 
                                          :                   931336
 
            FURNAS ELECTRIC COMPANY,      :
 
                                          :      A R B I T R A T I O N
 
                 Employer,                :
 
                                          :         D E C I S I O N
 
            and                           :
 
                                          :
 
            LIBERTY MUTUAL INSURANCE CO., :
 
            and NORTHBROOK PROPERTY &     :
 
            CASUALTY,                     :
 
                                          :
 
                 Insurance Carriers,      :
 
                 Defendants.              :
 
            ____________________________________________________________
 
            
 
                              statement of the case
 
            
 
                 This decision concerns three proceedings in arbitration 
 
            brought by Mary Shuey against her former employer, Furnas 
 
            Electric Company, and the employer's insurance carriers.
 
            
 
                 File number 816824 deals with the claimant's carpal 
 
            tunnel syndrome and asserts an injury date of February 28, 
 
            1986.  A particular issue exists regarding whether the 
 
            condition is an injury or an occupational disease.  Claimant 
 
            seeks compensation for permanent disability related to the 
 
            carpal tunnel syndrome condition.  The employer asserts 
 
                 includes farm work, fertilizer and feed businesses.  She has 
 
            driven trucks, inspected grain and operated equipment.  She 
 
            worked on the kill floor briefly for Jimmy Dean Meats and 
 
            worked as an assembler and inspector at Lamoni Products, all 
 
            prior to commencing employment with Furnas Electric Company 
 
            in 1981.  After working five months for Furnas, she was laid 
 
            off.  During that layoff, she worked in a foundry and also 
 
            worked as a nurse's aide before returning to Furnas in May 
 
            1983.
 
            
 
                 Mary has been afflicted with diabetes mellitus since at 
 
            least 1982.  The condition has not always been well 
 
            controlled (defendants' exhibit 1, page 141).  While working 
 
            in the foundry, Mary developed carpal tunnel syndrome.  It 
 
            was characterized in an EMG report as being of moderate 
 
            severity.  The treating neurosurgeon, Thomas A. Carlstrom, 
 
            M.D., related the condition to the wear and tear associated 
 
            with her work in the foundry and recommended that she 
 
            undergo surgical treatment.  While working at the foundry, 
 
            Mary also sustained a back injury.  Her complaints included 
 
            pain in her low back and also pain radiating down her left 
 
            leg (defendants' exhibit 3, pages 13-16).
 
            
 
                 Commencing in May 1983, Mary was in a job where she 
 
            used a chain hoist.  She then became an inspector and worked 
 
            as an inspector until April 1984 when she was involved in a 
 
            motor vehicle accident in Des Moines in which she injured 
 
            her back.  While off work, Mary received a considerable 
 
            amount of treatment at the Clarke County Hospital 
 
            (defendants' exhibit 8, pages 99-106).  Thereafter, she 
 
            missed a considerable amount of time from work, including an 
 
            extended leave of absence running from July 25, 1984, 
 
            through November 1984 (defendants' exhibit 9, page 117; 
 
            defendants' exhibit 10, pages 134-137; defendants' exhibit 
 
            13, pages 167-169).
 
            
 
                 Mary also missed time for her back in 1985.  She 
 
            obtained a leave of absence running from June through 
 
            September (defendants' exhibit 13, page 166).  In May of 
 
            1985, she commenced treating for her back with Des Moines 
 
            orthopaedic surgeon Marshall Flapan, M.D.  At that time, 
 
            Mary related the onset of her complaints to the 1984 
 
            automobile accident.  She complained of pain in her low back 
 
            and occasional numbness down her left leg.  Mary was 
 
            hospitalized for tests and therapy.  The diagnostic testing 
 
            failed to show anything other than degenerative disc 
 
            disease.  Dr. Flapan noted that she will have to learn to 
 
            live with her discomfort (defendants' exhibit 5, pages 
 
            50-52).
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            
 
                 Mary was seen again by Dr. Flapan in January 1986.  She 
 
            again expressed back complaints.  She underwent left carpal 
 
            tunnel release surgery on February 28, 1986, and right 
 
            carpal tunnel release surgery on March 17, 1986.  Mary 
 
            received a good result from the surgery and returned to her 
 
            former work.  Dr. Flapan felt that the carpal tunnel 
 
            syndrome condition included the underlying disorder of 
 
            tenosynovitis and that it was causally related to her 
 
            employment duties with Furnas Electric (defendants' exhibit 
 
            5, pages 37-39).  He initially assigned an impairment rating 
 
            of zero, but later raised that rating to seven percent of 
 
            each upper extremity (defendants' exhibit 5, pages 37-39).
 
            
 
                 Claimant again sought treatment for her back in January 
 
            1987 and was prescribed a Warm and Form corset which was 
 
            apparently acquired from the Haines Prosthetics Company 
 
            (defendants' exhibit 5, pages 45 and 46).
 
            
 
                 Commencing in January 1985, claimant worked as an 
 
            assembler.  She described the work as requiring gripping and 
 
            twisting with both hands, including an activity which 
 
            involved compressing a strong spring.  When Mary resumed 
 
            work following recuperation from carpal tunnel surgery, she 
 
            was able to work with her hands though she still had some 
 
            back discomfort.  She worked as an inspector and also as an 
 
            assembler.  She continued to have back pain.
 
            
 
                 On April 22, 1987, Mary was walking in the plant when 
 
            she slipped and fell.  In her testimony at hearing, she 
 
            stated that she went into the air like an eagle and fell on 
 
            her back, then got up onto her knee and fell again.  Various 
 
            medical records contain histories of the incident which 
 
            include nearly falling (defendants' exhibit 8, page 94) as 
 
            well as falling on her outstretched arms (defendants' 
 
            exhibit 5, page 42) and of slipping and falling but catching 
 
            herself before hitting the ground (defendants' exhibit 5, 
 
            page 44).  The supervisor's accident investigation report 
 
            indicates that Mary slipped and fell on her knee and that 
 
            her left knee and back were injured (claimant's exhibit 
 
            10b).  The records of Thomas J. Lower, D.O., the claimant's 
 
            treating physician, indicate in his notes that she struck 
 
            her left knee and strained her back in the incident.  His 
 
            notes indicate that she had a slight contusion on her left 
 
            knee (defendants' exhibit 4, page 22).  There is no mention 
 
            of any bumps, bruises or contusions on the back of Mary's 
 
            head or on her back.
 
            
 
                 She resumed working but continued to have problems.  
 
            She received physical therapy at Clarke County Hospital 
 
            (defendants' exhibit 8, pages 92-94).  Mary was then 
 
            referred to Dr. Flapan for her back complaints.  Dr. Flapan 
 
            diagnosed claimant's condition as chronic low back syndrome 
 
            and chronic pain syndrome (defendants' exhibit 5, page 44).  
 
            Dr. Flapan allowed claimant to return to light work 
 
            effective July 20, 1987 (claimant's exhibit 2c).  Mary also 
 
            received treatment at the Mercy Arthritis Center under the 
 
            direction of Theodore W. Rooney, D.O.
 
            
 
                 Mary never made a sustained return to full-time work 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            following the April 22, 1987, fall.  She entered into an 
 
            extended leave of absence effective on or about May 13, 
 
            1988, and did not resume work thereafter.  Her employment 
 
            was terminated February 28, 1989, as a result of being off 
 
            work for one year under the leave of absence (claimant's 
 
            exhibit 10j).  Her last full day of work had been January 
 
            29, 1988.  She had worked part days from May 2, 1988, 
 
            through May 10, 1988 (claimant's exhibit 10k).
 
            
 
                 Prior to Mary's last return to part-time work with this 
 
            employer, she had undergone a month of treatment at the Iowa 
 
            Methodist Medical Center pain management program.  Her 
 
            primary treating physician in the program was Charles 
 
            Denhart, M.D. (defendants' exhibit 6).  Dr. Denhart assigned 
 
            very substantial activity restrictions which would limit 
 
            Mary to either light or sedentary work.  When deposed, Dr. 
 
            Denhart stated that the activity restrictions are a 
 
            consequence of her degenerative disc disease and chronic 
 
            pain syndrome (claimant's exhibit 1a, pages 20 and 21).  He 
 
            also related that her restrictions prohibiting heavy 
 
            repetitive activity with her hands and arms are due to the 
 
            carpal tunnel syndrome condition (claimant's exhibit 1a, 
 
            page 21).
 
            
 
                 Dr. Denhart feels that the 1987 fall is a cause of her 
 
            current disability based upon the history which he has been 
 
            provided, namely that she has more pain since the fall 
 
            (claimant's exhibit 1a, pages 22-29).  Dr. Denhart stated 
 
            that claimant's diabetic condition is a potential cause for 
 
            her carpal tunnel syndrome and that he believes that it does 
 
            contribute to the condition (claimant's exhibit 1a, pages 
 
            33, 40 and 41).
 
            
 
                 Dr. Denhart rated claimant as having a 26 percent 
 
            permanent impairment of the whole person, part of which 
 
            impairment includes her carpal tunnel syndrome and part of 
 
            which preexisted the 1987 fall.  He was unable to state how 
 
            much preexisted the 1987 injury or how much was due to her 
 
            carpal tunnel syndrome, though he felt that the carpal 
 
            tunnel syndrome was an insignificant portion of her problem.  
 
            He felt that her primary problem was chronic pain 
 
            (claimant's exhibit 1a, pages 27-29, 39 and 40).
 
            
 
                 According to Mary, she was unable to perform half-day 
 
            work when she was released by Dr. Denhart in early 1988.  
 
            She related that her last day of work was May 13, 1988, and 
 
            that she was in so much pain she was unable to tolerate it 
 
            any further.  Mary complained that though assistance from a 
 
            vocational consultant had been recommended in 1988, the 
 
            employer did not provide any vocational assistance until 
 
            July of 1991 when Kathryn Bennett became involved in the 
 
            case.  Bennett did not perform any actual placement 
 
            activity.  She merely conducted a survey in order to 
 
            determine whether any jobs were available for the claimant.  
 
            Bennett found no full-time job openings which were within 
 
            Mary's physical capacity.
 
            
 
                 Vocational consultant Kathryn Bennett reviewed 
 
            claimant's medical records and stated that she was 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            physically capable of light to medium work based upon the 
 
            restrictions issued by Dr. Denhart.  Bennett was of the 
 
            opinion that Mary is employable and has skills which can be 
 
            sold to an employer.  Bennett stated that there are jobs in 
 
            existence in the Osceola, Iowa area, as well as in 
 
            surrounding towns which fit within Mary's restrictions.  
 
            Bennett felt that Mary was not motivated to return to work.  
 
            Bennett acknowledged that there is a lot of competition for 
 
            work in the Osceola, Iowa area.  She felt it would be 
 
            necessary for Mary to make the fact that she was looking for 
 
            work well known in the community.  Mary had applied only at 
 
            the jobs identified by Bennett and the jobs needed for her 
 
            to receive her unemployment benefits.  She had not performed 
 
            any other work search.  In early 1989, Mary applied for and 
 
            received 13 weeks of unemployment compensation benefits.
 
            
 
                 Mary complained of presently experiencing generalized 
 
            pain.  She stipulated that she is unable to sit for more 
 
            than one hour and has difficulty going up and down stairs.  
 
            She is able to drive a vehicle but is limited in the amount 
 
            of driving she can perform.  She does perform her own 
 
            grocery shopping and at times drives to Des Moines from her 
 
            home at Osceola, Iowa or to visit friends in Missouri.  She 
 
            expressed difficulty sleeping.  She stated that she is 
 
            unable to perform gardening or home maintenance activities.
 
            
 
                 In early 1989, claimant sought additional treatment 
 
            from Dr. Denhart.  In view of her increased hand and arm 
 
            complaints, she was referred back to Dr. Flapan.  EMG 
 
            testing showed abnormalities, but those abnormalities were 
 
            concluded by Dr. Flapan to be residual symptoms from the 
 
            original carpal tunnel syndrome condition rather than a 
 
            recurrence of the condition (defendants' exhibit 5, page 
 
            41).
 
            
 
                 Claimant's records were reviewed by Daniel J. McGuire, 
 
            M.D.  Dr. McGuire found claimant to have no physiological 
 
            reason for her back and arm complaints and felt she had no 
 
            permanent partial disability for her back.  His report 
 
            ignores the EMG tests from 1989 which showed residual 
 
            abnormalities and also the radiographic tests showing 
 
            pronounced degenerative disc disease in claimant's back.  
 
            Dr. McGuire's assessment is rejected for those reasons as 
 
            well as for the reason that it differs irreconcilably from 
 
            the assessments made by the other physicians who are 
 
            involved in this case (defendants' exhibit 2).
 
            
 
                 It is specifically found that Mary Shuey has been 
 
            afflicted with diabetes since at least 1982, that she 
 
            contracted carpal tunnel syndrome in 1982 while employed at 
 
            the foundry and also sustained a back injury in 1982 while 
 
            employed at the foundry.  Thereafter, she aggravated her 
 
            back injury in an automobile accident in 1984 and again when 
 
            she fell at work in 1987.  She further aggravated the carpal 
 
            tunnel syndrome condition by work as an assembler performed 
 
            in 1985 leading to surgical treatment by Dr. Flapan in early 
 
            1986.  Following recuperation from that surgery, Mary 
 
            resumed work and continued to work without making any 
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            complaints regarding her hands or arms until 1988 after she 
 
            had left the employment due to difficulties with her back.  
 
            Mary had a good result from the carpal tunnel surgery.  Any 
 
            increase in her symptoms and the resulting disability which 
 
            has subsequently been found to exist is found to be more 
 
            likely related to her diabetes condition as indicated by Dr. 
 
            Denhart than to her employment with Furnas.  She was having 
 
            little problem with her hands when she last performed work 
 
            for any significant period of time in 1987 and early 1988.  
 
            In fact, Mary worked only briefly at any time subsequent to 
 
            the April 1987 fall.
 
            
 
                 It is found that, in the 1987 fall, Mary injured her 
 
            back, but the evidence does not support any claim that she 
 
            injured her hands or arms.  The injury to her back was an 
 
            aggravation of the preexisting condition which had resulted 
 
            primarily from the 1984 automobile accident, though the 
 
            degenerative condition had preexisted 1984.  Mary's carpal 
 
            tunnel syndrome did not cause her to be disabled from her 
 
            employment.  The disablement resulted from the back injury.
 
            
 
                 Neither claimant's arms nor her back were subjected to 
 
            any cumulative injury process subsequent to the time 
 
            claimant resumed employment following her carpal tunnel 
 
            release surgery in 1986.  While she may have engaged in some 
 
            repetitive activities, such occurred for limited, brief 
 
            periods of time.  After the 1987 injury, she worked very 
 
            little.
 
            
 
                 Mary Shuey is not particularly well motivated to find 
 
            employment at this time, though it is likewise probable that 
 
            it would be extremely difficult for her to find employment 
 
            in south central Iowa, the region in which she resides.  Her 
 
            carpal tunnel condition eliminates her from most assembly 
 
            line type of work.  Her back condition limits her to 
 
            sedentary or light work.  She needs a job in which she is 
 
            able to get up and move about since her ability to engage in 
 
            prolonged sitting is limited.  The evidence from Kathryn 
 
            Bennett indicates that there might be some part-time work 
 
            available, but there is no showing in the record of this 
 
            case that there is any reasonable chance that Mary would be 
 
            able to obtain sustained gainful competitive employment 
 
            which would enable her to support herself regardless of how 
 
            extensive or sincere a work search she might make.  In view 
 
            of her multiple physical problems, it is quite easy to 
 
            understand how Mary might be discouraged by her limited 
 
            prospects for obtaining employment.  It requires a complete 
 
            change from the physical type of work which she had 
 
            performed throughout most of her working life.  Though Mary 
 
            might be quite reasonably discouraged and pessimistic, the 
 
            evidenief he domain of expert 
 
            testimony.  Bradshaw v. Iowa Methodist Hosp., 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 
 

 
            
 
            Page   8
 
            
 
            
 
            
 
            
 
            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. Cent. Tel. Co., 261 
 
            Iowa 352, 154 N.W.2d 128 (1967).
 
            
 
                 The claimant in this case has failed to prove that any 
 
            change in the condition of her carpal tunnel syndrome that 
 
            has occurred since she recuperated from surgery in 1986 is 
 
            attributable to her employment.  The evidence shows it to be 
 
            at least, if not more likely that her diabetic condition is 
 
            responsible.  It is therefore concluded that Mary Shuey is 
 
            not entitled to any recovery from this employer on account 
 
            of her bilateral carpal tunnel syndrome and any impairment 
 
            or disability which has resulted from that condition.  The 
 
            claimant's claim in file number 816824 is therefore denied 
 
            as is the portion of her claim in file number 931336 which 
 
            is based upon the condition of her hands and arms.
 
            
 
                 File number 931336 is based upon a cumulative trauma or 
 
            cumulative injury theory.  In view of the previous finding 
 
            that there was no injurious cumulative trauma subsequent to 
 
            1986 affecting either claimant's arms, hands or back, the 
 
            claimant is not entitled to any recovery under file number 
 
            931336.  The last date of work is a proper lawful injury 
 
            date only when dealing with cumulative trauma conditions.  
 
            It does not apply to conditions which have their origin in 
 
            an earlier acute trauma.  McKeever Custom Cabinets v. Smith, 
 
            379 N.W.2d 368 (Iowa 1985).
 
            
 
                 File number 854124 deals with the fall injury of April 
 
            22, 1987.  It is clear that this claimant had very 
 
            substantial preexisting problems with her back prior to that 
 
            date.  The existence of those preexisting disabilities does 
 
            not, however, prohibit a recovery.
 
            
 
                 Aggravation of a preexisting condition is one form of 
 
            compensable injury.  While a claimant is not entitled to 
 
            compensation for the results of a preexisting injury or 
 
            disease, the mere existence at the time of a subsequent 
 
            injury is not a defense.  Rose v. John Deere Ottumwa Works, 
 
            247 Iowa 900, 908, 76 N.W.2d 756, 760-61 (1956).  If the 
 
            claimant had a preexisting condition or disability that is 
 
            aggravated, accelerated, worsened or lighted up so that it 
 
            results in disability, claimant is entitled to recover.  
 
            Nicks v. Davenport Produce Co., 254 Iowa 130, 115 N.W.2d 
 
            812, 815 (1962).
 
            
 
                 In this case, Mary Shuey clearly did aggravate a 
 
            preexisting condition when she fell on April 22, 1987.  The 
 
            record in this case, however, brings with it some 
 
            considerable discrepancies regarding the description of the 
 
            fall.  It is difficult to understand how the claimant could 
 
            have received a contusion on her knee if she fell flat on 
 

 
            
 
            Page   9
 
            
 
            
 
            
 
            
 
            her back as she described in her deposition and at hearing.  
 
            Getting onto her knee while attempting to get up and then 
 
            falling again would not be expected to cause a contusion on 
 
            the knee.  The medical treatment histories which were made 
 
            shortly following the incident do not support the claimant's 
 
            more recent testimony of falling flat on her back.  It is 
 
            more likely that, while the claimant did fall on April 22, 
 
            1987, it occurred in the nature of falling to her knee and 
 
            not completely falling as is indicated in the initial 
 
            medical treatment reports and the supervisor's accident 
 
            report.  While the undersigned cannot be absolutely certain, 
 
            the greater weight of the evidence does not support the 
 
            claimant's claim of falling flat on her back in the manner 
 
            she described at hearing.  Such a fall would not only be 
 
            unlikely to produce a contusion of the knee, it would be 
 
            quite likely to produce some type of bump on the back or the 
 
            back of the head, conditions which are not mentioned in any 
 
            of the records or even by the claimant in her own testimony.  
 
            It is therefore found that the fall was an injury of limited 
 
            magnitude.
 
            
 
                 This is a case in which the severity of the claimant's 
 
            preexisting back problems cannot be overlooked.  Those 
 
            problems had caused her to be disabled from work on a number 
 
            of occasions.  In January, only approximately three months 
 
            before the fall which occurred in April, she was fitted with 
 
            a corset in order to help control her back complaints.  It 
 
            is apparent in this case that a very substantial degree of 
 
            disability preexisted the April 22, 1987, fall.
 
            
 
                 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 basic element to be determined, 
 
            however, is the reduction in value of the general earning 
 
            capacity of the person, rather than the loss of wages or 
 
            earnings in a specific occupation.  Post-injury earnings 
 
            create a presumption of earning capacity.  The earningof a 1988, and worked through May 10, 
 
            1988, her last day.  She is entitled to recover temporary 
 
            partial disability compensation through those dates.  Her 
 
            healing period is therefore effectively ended May 10, 1988, 
 
            as it is apparent that the physician did not expect any 
 
            further improvement in her condition after that date 
 
            (defendants' exhibit 6, page 74).
 
            
 
                 The evidence regarding the days when she did work 
 
            following April 22, 1987, is conflicting and uncertain.  
 
            While it can be determined that the claimant is entitled to 
 
            healing period compensation commencing April 22, 1987, and 
 
            running through May 10, 1988, the employer's credit for days 
 
            actually worked is not accurately determinable from the 
 
            record that has been made.  None of the parties address the 
 
            healing period issue in their briefs.  What appear to be the 
 
            claimant's work attendance records appears in defendants' 
 
            exhibit 13 at pages 2 and 3.  Those records appear to show 
 
            that claimant was off work from April 23 through April 28, a 
 
            span of 6/7 weeks.  She then worked April 29 through May 18, 
 
            1987.  She was then again off from May 19, 1987, through 
 
            July 19, 1987, a span of 8 and 6/7 weeks.  She then worked 
 
            July 20 through October 31, 1987.  She was again off work 
 
            from November 1, 1987, through January 12, 1988, a span of 
 
            10 and 3/7 weeks.  Mary worked from January 13 through 
 
            January 29, 1988.  She was again off from January 30, 1988, 
 
            through May 1, 1988, a span of 13 and 2/7 weeks.  She next 
 
            worked four hours per day on May 2, 3, 4, 5, 6, 9 and 10, 
 
            1988.  May 10, 1988, is her last day of work for this 
 
            employer (defendants' exhibit 13, page 1).  The dates shown 
 
            on exhibit 13, page 1 are determined to be substantially 
 
            correct.  The claimant's healing period entitlement is 
 
            therefore 33 and 3/7 weeks.  Exhibit 13, page 3 seems to 
 
            indicate that claimant was paid $6.04 per hour.  Working 
 
            four hours per day would cause her gross earnings to be 
 
            $24.16 per day, or $120.80 per week.  According to the 
 
            stipulations made in the prehearing report, claimant's gross 
 
            weekly earnings at the time of injury were $291.20 per week.  
 
            The difference between those and the temporary partial 
 
            earnings is $170.40 per week.  Two-thirds of that amount, 
 
            the temporary partial disability benefit under section 
 
            85.33(4), is $113.66 per week.
 
            
 
                 It is therefore concluded that Mary Shuey is entitled 
 
            to recover 33 and 3/7 weeks of compensation for healing 
 
            period payable at the stipulated rate of $177.82 per week 
 
            with 6/7 weeks thereof payable commencing April 23, 1987; 
 
            with 8 and 6/7 weeks thereof payable commencing May 19, 
 
            1987; with 10 and 3/7 weeks thereof payable commencing 
 
            November 1, 1987; and, with 13 and 2/7 weeks thereof payable 
 
            commencing January 30, 1988.  Mary Shuey is also entitled to 
 
            recover 1 and 2/7 weeks of temporary partial disability 
 
            compensation payable at the rate of $113.66 per week 
 
            commencing May 2, 1988.
 
            
 
                 Compensation for permanent partial disability is 
 
            payable commencing at the end of the healing period.  When 
 

 
            
 
            Page  12
 
            
 
            
 
            
 
            
 
            the healing period is interrupted, the compensation is to be 
 
            paid during those times the employee has resumed working.  
 
            Teel v. McCord, 394 N.W.2d 405 (Iowa 1986).  Claimant is 
 
            therefore entitled to recover 2 and 6/7 weeks of permanent 
 
            partial disability compensation payable commencing April 29, 
 
            1987; 14 and 6/7 weeks of permanent partial disability 
 
            compensation payable commencing July 20, 1987; and, 2 and 
 
            3/7 weeks of permanent partial disability compensation 
 
            payable commencing January 13, 1988.  The remaining 
 
            permanent partial disability entitlement of 179 and 6/7 
 
            weeks is therefore payable commencing May 11, 1988.  In 
 
            making the determination of when claimant did and did not 
 
            work, it is considered that claimant was off work from April 
 
            23 through April 28, 1987, as shown in defendants' exhibit 
 
            13, page 3 and returned to work on April 29, 1987, 
 
            consistent with the release from Dr. Lower found at 
 
            defendants' exhibit 4, page 30.  Defendants' exhibit 13, 
 
            page 3 likewise shows that claimant actually returned to 
 
            work on July 20, 1987, and was not absent on July 20, 1987, 
 
            as indicated in exhibit 13, page 1.  Claimant was likewise 
 
            considered as being off work from January 30, 1988, through 
 
            May 1, 1988, since she did not resume work until May 2, 
 
            1988.
 
            
 
                                      order
 
            
 
                 IT IS THEREFORE ORDERED that, in file number 854124, 
 
            defendants Furnas Electric Company and Northbrook Property & 
 
            Casualty pay Mary Shuey thirty-three and three-sevenths (33 
 
            3/7) weeks of compensation for healing period payable at the 
 
            stipulated rate of one hundred seventy-seven and 82/100 
 
            dollars ($177.82) per week with six-sevenths (6/7) weeks 
 
            thereof payable commencing April 23, 1987; with eight and 
 
            six-sevenths (8 6/7) weeks thereof payable commencing May 
 
            19, 1987; with ten and three-sevenths (10 3/7) weeks thereof 
 
            payable commencing November 1, 1987; and, with thirteen and 
 
            two-sevenths (13 2/7) weeks thereof payable commencing 
 
            January 30, 1988.
 
            
 
                 IT IS FURTHER ORDERED that, in file number 854124, 
 
            defendants Furnas Electric Company and Northbrook Property & 
 
            Casualty pay Mary Shuey one and two-sevenths (1 2/7) weeks 
 
            compensation for temporary partial disability at the rate of 
 
            one hundred thirteen and 66/100 dollars ($113.66) per week 
 
            payable commencing May 2, 1988.
 
            
 
                 IT IS FURTHER ORDERED that, in file number 854124, 
 
            defendants Furnas Electric Company and Northbrook Property & 
 
            Casualty pay Mary Shuey two hundred (200) weeks of 
 
            compensation for permanent partial disability at the 
 
            stipulated rate of one hundred seventy-seven and 82/100 
 
            dollars ($177.82) per week with two and six-sevenths (2 6/7) 
 
            weeks thereof payable commencing April 29, 1987; with 
 
            fourteen and six-sevenths (14 6/7) weeks thereof payable 
 
            commencing July 20, 1987; with two and three-sevenths (2 
 
            3/7) weeks thereof payable commencing January 13, 1988; and, 
 
            with the remaining one hundred seventy-nine and six-sevenths 
 
            (179 6/7) weeks thereof payable commencing May 11, 1988.
 

 
            
 
            Page  13
 
            
 
            
 
            
 
            
 
            
 
                 IT IS FURTHER ORDERED that all past due, accrued 
 
            amounts shall be paid to the claimant in a lump sum together 
 
            with interest pursuant to section 85.30 after credit for the 
 
            two hundred seven and five-sevenths (207 5/7) weeks of 
 
            compensation previously paid.
 
            
 
                 IT IS FURTHER ORDERED that the costs in file number 
 
            854124 are assessed against defendants Furnas Electric 
 
            Company and Northbrook Property & Casualty pursuant to rule 
 
            343 IAC 4.33.
 
            
 
                 IT IS FURTHER ORDERED that claimant take nothing in 
 
            file numbers 816824 and 931366 and the costs in each of 
 
            those proceedings is assessed against the claimant pursuant 
 
            to rule 343 IAC 4.33.
 
            
 
                 IT IS FURTHER ORDERED that defendants Furnas Electric 
 
            Company and Northbrook Property & Casualty file claim 
 
            activity reports in file number 854124 as requested by the 
 
            agency pursuant to rule 343 IAC 3.1.
 
            
 
                 Signed and filed this ______ day of ____________, 1991.
 
            
 
                 
 
            
 
                 
 
                 
 
                                          ______________________________
 
                                          MICHAEL G. TRIER
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr. Steven C. Jayne
 
            Attorney at Law
 
            5835 Grand Avenue
 
            Suite 201
 
            Des Moines, Iowa  50312
 
            
 
            Mr. Helmut Mueller
 
            Attorney at Law
 
            Rural Route 5
 
            Osceola, Iowa  50213
 
            
 
            Mr. E. J. Kelly
 
            Mr. Jeff M. Margolin
 
            Attorneys at Law
 
            Suite 111, Terrace Center
 
            2700 Grand Avenue
 
            Des Moines, Iowa  50312
 
            
 
            Mr. Jon K. Hoffmann
 
            Attorney at Law
 
            500 Liberty Building
 
            Des Moines, Iowa  50309
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                    BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         SONYA ATKINS,
 
         
 
              Claimant,                              File No. 816825
 
         
 
         vs.                                      A R B I T R A T I O N
 
         
 
         MONARCH MANUFACTURING,                      D E C I S I O N
 
         
 
              Employer,
 
                                                        F I L E D
 
         and
 
                                                       MAR 27 1990
 
         MARYLAND CASUALTY COMPANY,
 
                                              IOWA INDUSTRIAL COMMISSIONER
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
                              STATEMENT OF THE CASE
 
         
 
              This is a proceeding in arbitration brought by Sonya Atkins, 
 
         claimant, against Monarch Manufacturing Company, employer 
 
         (hereinafter referred to as Monarch), and Maryland Casualty 
 
         Company, insurance carrier, defendants, for workers' compensation 
 
         benefits as a result of an alleged occupational disease or injury 
 
         on December 18, 1985.  On August 30, 1989, a hearing was held on 
 
         claimant's petition and the matter was considered fully submitted 
 
         at the close of this hearing.
 
         
 
              The parties have submitted a prehearing report of contested 
 
         issues and stipulations which was approved and accepted as a part 
 
         of the record of this case at the time of hearing.  Oral 
 
         testimony and written exhibits were received during the hearing 
 
         from the parties.  The exhibits offered into the evidence are 
 
         listed in the prehearing report.
 
         
 
              According to the prehearing report, the parties have 
 
         stipulated to the following matters:
 
         
 
              1.  If defendants are held liable for temporary total 
 
         disability or healing period benefits, claimant's entitlement to 
 
         such benefits extend from February 10, 1986 through July 19, 
 
         1986.
 
         
 
              2.  If permanent disability benefits are awarded, they shall 
 
         begin as of July 20, 1986.
 
         
 
              3.  Claimant's rate of weekly compensation in the event of 
 
         an award of weekly benefits from this proceeding shall be 
 
         $186.10.
 
         
 
                                                
 
                                                         
 
              4.  All requested medical benefits have been or will be paid 
 
         by defendants.
 
         
 
              5.  At the time of the alleged injury or occupational 
 
         disease, the employer-employee relationship existed between 
 
         Monarch and claimant at all times material herein.
 
         
 
                                   ISSUES
 
         
 
              The parties have submitted the following issues for 
 
         determination in this proceeding:
 
         
 
                I.  Whether claimant received an occupational disease or 
 
         injury arising out of and in the course of her employment at 
 
         Monarch;
 
         
 
               II.  Whether there is a causal relationship between the 
 
         work injury or disease and the claimed disability;
 
         
 
              III.  The extent of claimant's entitlement to weekly 
 
         benefits for permanent disability; and,
 
         
 
               IV.  The extent of claimant's entitlement, if any, to 
 
         additional benefits under Iowa Code section 85.13(4) for an 
 
         unreasonable denial or delay in the payment of weekly benefits.
 
         
 
                           STATEMENT OF THE FACTS
 
         
 
              The following is a brief statement highlighting some of the 
 
         more pertinent evidence presented.  Whether or not specifically 
 
         referred to in this statement, all of the evidence received at 
 
         the hearing was independently reviewed and considered in arriving 
 
         at this decision.  Any conclusions about the evidence received 
 
         contained in the following statement shall be viewed as 
 
         preliminary findings of fact.
 
         
 
              Claimant testified that she worked for Monarch from August 
 
         3, 1978 until February 7, 1986.  Monarch manufactures basement 
 
         windows.  Claimant stated that during her last three years at 
 
         Monarch  she was assigned 80 percent of the time to a specific 
 
         job called "hoppers."  This work involved the installation of 
 
         glass into frames using glue and a very repetitive task of 
 
         installing plastic snap inserts into the frame.  Claimant 
 
         emphasized that the inserting of these plastic snaps was very 
 
         difficult when the snaps did not exactly fit the frame which she 
 
         said occurred frequently. Also, claimant said,that she was 
 
         assigned to other jobs such as assembly of frames using a thumb 
 
         operated air gun, boxing assembled windows, assembly of boxes and 
 
         stacking of boxes. Claimant testified that she assembled 175 to 
 
         200 windows a day. Management testified that this was only 125 to 
 
         175 windows a day.
 
         
 
              Claimant testified that the Monarch work force is divided 
 
         between two buildings - one called the "men's building" and the 
 
         other called the "women's building."  As the names imply, 
 
                                                
 
                                                         
 
         primarily men were assigned to fabrication work in the men's 
 
         building and primarily women were assigned to assembly work in 
 
         their building during the time claimant was employed by Monarch. 
 
         Claimant was assigned to the women's building.  According to 
 
         Monarch's production supervisor, Robert Benge, approximately 25 
 
         employees were assigned in 1983 to the women's building of which 
 
         only five or six were men.
 
         
 
              Claimant testified that prior to 1983, employees in the 
 
         women's building were regularly rotated among the various jobs 
 
         within the building.  She said that this allowed no single person 
 
         to perform the same physical task for a prolonged period of time. 
 
         Claimant said that although she had a few problems with her arm 
 
         and wrist before 1983, there was a dramatic change in her 
 
         condition after 1983.  At that time, Robert Benge, assumed 
 
         responsibility over operations and ended the practice of rotating 
 
         jobs in the women's building in an effort to increase 
 
         productivity.  It was at this time claimant was assigned to the 
 
         single, repetitive hopper job.
 
         
 
              Claimant stated that she earned $5.80 per hour in this 
 
         hopper job at the time she left Monarch in addition to receiving 
 
         fringe benefits of health and life insurance.  Benge testified at 
 
         hearing that this job now pays $6.30 and that employees also now 
 
         have dental insurance.  Claimant said that she worked part-time 
 
         for Target stores while working for Monarch averaging 
 
         approximately 20 hours per week.  This job involved "zoning" or 
 
         the process of straightening up and reshelving merchandise while 
 
         the stores were closed for business.  Claimant was paid $3.10 per 
 
         hour in this job at the time she left Monarch.
 
         
 
              In 1979, medical records indicate that claimant was treated 
 
         over several weeks for pain in the right forearm and wrist pain 
 
         due to repetitive gripping at work.  This treatment was provided 
 
         by an orthopedic surgeon, Sinesio Misol, M.D., and consisted of 
 
         anti-inflammatory medication and physical therapy.  In April 
 
         1980, a ganglion on the right wrist was removed.  Claimant 
 
         improved from this surgery and was released to return to work in 
 
         June of 1980 without restrictions by Dr. Misol.  Dr. Misol 
 
         referred to these difficulties as a form of synovitis.
 
         
 
              Claimant then did not seek any further treatment for hand 
 
         and arm problems until late fall of 1985.  At that time, claimant 
 
         testified that she developed pain in her right thumb and 
 
         numbness, pain and loss of strength in both hands extending up to 
 
         her shoulders and neck.  A neurologist, Robert Jones, M.D., gave 
 
         claimant an EMG test on the right hand which indicated to him 
 
         evidence of carpal tunnel syndrome and he referred claimant back 
 
         to Dr. Misol.
 
         
 
              After his testing and examination of claimant, Dr. Misol 
 
         diagnosed degenerative arthritis of the trapeziometacarpal joint 
 
         on the right wrist and carpal tunnel syndrome of the right wrist. 
 
         Dr. Misol indicated that symptoms from both conditions were 
 
         triggered by claimant's repetitive work at Monarch.  In February 
 
                                                
 
                                                         
 
         1986, claimant underwent a surgical procedure called a Swanson 
 
         arthroplasty to replace the degenerative trapezium bone at the 
 
         base of the thumb.  In April 1986, claimant underwent a surgical 
 
         release of the right carpal tunnel to treat the syndrome.  Dr. 
 
         Misol did not discuss or treat claimant's shoulder pain 
 
         complaints.  Dr. Misol opined that claimant suffers from a 21 
 
         percent permanent partial impairment of the right arm due to 
 
         these two work related problems.  Claimant was released to return 
 
         to work but only with permanent restrictions against use of the 
 
         thumb for pushing, pressing or pinching with more than one or two 
 
         pounds.
 
         
 
              With reference to the cause of claimant's carpal tunnel 
 
         syndrome problems, Dr. Misol stated in his deposition as follows: 
 
         "All I can tell you is that it seems to contribute to it, that a 
 
         profession or jobs where repetitious use is required they seem to 
 
         have more people with the condition."  Later on, Dr. Misol also 
 
         stated:  "All I can tell you is that the job that she was doing 
 
         repetitious use, bending of the fingers and the wrist, made it, 
 
         in my opinion, bad enough that she had to have surgery."  
 
         However, Dr. Misol emphasized that carpal tunnel syndrome can 
 
         occur independently of repetitive use in an occupational setting.  
 
         Dr. Misol indicated to a rehabilitation specialist, Jeff Johnson, 
 
         that claimant's left carpal tunnel syndrome developed due to 
 
         overuse and compensating for claimant's inability to use her 
 
 
 
                           
 
                                                         
 
         right hand from these problems.
 
         
 
              A physician specializing in plastic and reconstructive 
 
         surgery, including the hand, A. Ivan Pakiam, M.D., also testified 
 
         by deposition concerning claimant's difficulties.  From his 
 
         evaluation in March 1988, Dr. Pakiam states that claimant suffers 
 
         from carpal tunnel syndrome which is an outgrowth of a condition 
 
         called "tenosynovitis."  He stated that this condition arose from 
 
         the extensive repetitive use of claimant's fingers and thumbs at 
 
         Monarch.  Dr. Pakiam opines that claimant suffers from an 18 
 
         percent and a nine percent permanent partial impairment of the 
 
         right and left extremities respectively.  There appears to be no 
 
         rating by Dr. Pakiam of claimant's shoulder problems.  Dr. Pakiam 
 
         also stated that claimant's work at Target was only 
 
         intermittently repetitive and would not cause her much 
 
         difficulty.
 
         
 
              Dr. Jones opined in a letter report that claimant suffered 
 
         neck and left wrist complaints in December 1985 but he said that 
 
         he did not have sufficient information to render any sort of 
 
         causal connection opinion.
 
         
 
              Claimant last worked for Monarch on February 7, 1986, prior 
 
         to her first surgery.  Claimant has not returned to work.  Benge 
 
         testified that there was no work available in the Monarch plant 
 
         with the restrictions imposed by Dr. Misol and Dr. Jones and 
 
         there is no light duty work in the plant.  Claimant disputes this 
 
         in stating that there are jobs within the plant that she could 
 
         perform.  Dr. Jones had indicated that claimant should not return 
 
         to her former job as a hopper.
 
         
 
              Claimant testified that she has remained working for Target 
 
         stores in the same job that she performed before leaving Monarch 
 
         and is now averaging approximately 25 hours a week.  She stated 
 
         that she has attempted to secure replacement employment for the 
 
         job at Monarch by applying at several employers near her 
 
         residence.  This effort has only resulted in part-time work as a 
 
         receptionist for a local funeral home.  She works approximately 
 
         20 hours a week in this job in addition to her work at Target. 
 
         Claimant is now being paid $5.60 an hour by Target and is now 
 
         able to purchase some form of health insurance for $3.00 a week. 
 
         Claimant's earning records indicate the following:
 
         
 
         ATKINS INCOME SUMMARY
 
         
 
                                    1984-1988
 
         
 
              1984
 
                       Target                        
 
                       $1,556
 
                       Unemployment                     
 
                       358
 
                       Monarch                       
 
                       11,168
 
         
 
                                                
 
                                                         
 
              1985
 
                       Target                         
 
              3,974
 
                       Monarch                       
 
              12,324
 
         
 
              1986
 
                       Target                        2,205
 
                       Unemployment                  2,353
 
                       Monarch                       2,410
 
         
 
              1987
 
                       Target                        5,763
 
                       Unemployment                  2,171
 
         
 
              1988
 
                       Target                        7,991
 
         
 
              Theresa Ramsey testified that she worked for Monarch for 10 
 
         years prior to leaving in 1987 as a result of carpal tunnel 
 
         syndrome in both of her hands.  Ramsey said that she worked with 
 
         claimant in the women's building.  Although she was assigned to a 
 
         job using the air gun, Ramsey said that her thumb would bother 
 
         her when she would occasionally perform claimant's hopper job.  
 
         Ramsey also indicated that in 1983, management at Monarch had 
 
         ended the job rotation policy.
 
         
 
              Ramsey testified further that since 1983 there has been no 
 
         new hiring of female employees in the assembly building.  She 
 
         said that most of the female employees in the building developed 
 
         carpal tunnel syndrome problems and have since left Monarch's 
 
         employment. She admitted, however, that she did not know the 
 
         specific reasons why each one of these employees had left.
 
         
 
              In his testimony, Benge, the production supervisor, admitted 
 
         to the change in policy ending job rotation and stated that in 
 
         1988 he obtained the same volume of production with fewer number 
 
         of employees due to this policy.  Benge denied any policy of not 
 
         hiring women and initially could not recall any of the women that 
 
         had left due to carpal tunnel syndrome.  However, upon 
 
         cross-examination, he recalled three or four individuals who had 
 
         left as a result of this medical condition.  Benge testified that 
 
         there are now 78 women and 12 to 13 men in the former "women's 
 
         building."  He admitted to replacing all the women who have left 
 
         with men.  Benge also testified that he also allowed some persons 
 
         suffering from carpal tunnel syndrome and surgery to return to 
 
         work if they are permitted to do so under physician imposed 
 
         restrictions.
 
         
 
              Benge testified that he now rotates jobs but denies that 
 
         this was due to carpal tunnel syndrome problems.  He stated that 
 
         Monarch had no carpal tunnel problem until a Des Moines register 
 
         published an article on the subject.
 
         
 
              Claimant testified that her employment prior to Monarch only 
 
                                                
 
                                                         
 
         consisted of mail room supervision for an insurance company and 
 
         work as a nurse's aid for a state hospital.  Between 1959 and 
 
         1972, claimant was not employed outside the home.
 
         
 
              Claimant is 55 years of age and has a high school education. 
 
         She has no formal schooling or training beyond high school.  Jeff 
 
         Johnson, a vocational consultant, testified at hearing.  He 
 
         stated that claimant is employable in the type of work she is 
 
         currently performing.  However, claimant is unable to perform 
 
         processing, machine trades or bench work manufacturing jobs which 
 
         pay from $7.45 to $11.07 per hour in the Des Moines area.  
 
         Johnson indicated that the job categories open to claimant are 
 
         clerical (with the possible exception of typing), sales and 
 
         service positions which pay from $4.89 an hour to $6.28 per hour.  
 
         Also, Johnson said that in his experience claimant's access to 
 
         the labor market is significantly restricted because employers 
 
         restrict their hiring of persons with the history of claiming 
 
         workers' compensation benefits.
 
         
 
                        APPLICABLE LAW AND ANALYSIS
 
         
 
              Note:  A credibility finding is necessary to this decision 
 
         as defendants place claimant's and her witnesses' credibility at 
 
         issue during cross-examination as well as the submission of 
 
         contrary witnesses as to the nature and extent of the cause of 
 
         claimant's hand difficulties and to the nature and extent that 
 
         these difficulties are experienced by other employees at Monarch. 
 
         From their demeanor while testifying, claimant and Theresa Ramsey 
 
         are found credible.  From his demeanor while testifying, Robert 
 
         Benge is not found credible.
 
         
 
                I.  Claimant alleges to have an occupational disease under 
 
         Chapter 85A of the Iowa Code or, in the alternative, a work 
 
         injury under Chapter 85 of the Code.  Iowa Workers' Compensation 
 
         Law distinguishes between work injuries and occupational 
 
         diseases. Iowa Code section 85A.61(5) excludes from the 
 
         definition of injury occupational diseases as defined in section 
 
         85A.8.  Iowa Code section 85A.8 states as follows:
 
         
 
              Occupational diseases shall be only those diseases which 
 
              arise out of and in the course of the employee's employment. 
 
              Such diseases shall have a direct causal connection with the 
 
              employment and must have followed as a natural incident 
 
              thereto from injurious exposure occasioned by the nature of 
 
              the employment.  Such disease must be incidental to the 
 
              character of the business, occupation or process in which 
 
              the employee was employed and not independent of the 
 
              employment. Such disease need not have been foreseen or 
 
              expected but after its contraction it must appear to have 
 
              had its origin in a risk connected with the employment and 
 
              to have resulted from that source as an incident in rational 
 
              consequence.  A disease which follows from a hazard to which 
 
              an employee has or would have been equally exposed outside 
 
              of said occupation is not compensable as an occupational 
 
              disease.
 
                                                
 
                                                         
 
         
 
              In further explanation of the distinction between work 
 
         injuries and occupational diseases, the Iowa Supreme Court in 
 
         McSpadden v. Big Ben Coal Co., 288 N.W.2d 181 (Iowa 1980) at 
 
         page 190 states as follows:
 
         
 
              [T]o prove causation of an occupational disease, the 
 
              claimant need only meet the two basic requirements imposed 
 
              by the statutory definition of occupational disease, given 
 
              in section 85A.8.  First, the disease must be causally 
 
              related to the exposure to harmful conditions of the field 
 
              of employment....Secondly, those harmful conditions must be 
 
              more prevalent in the employment concerned than in everyday 
 
              life or in other occupations....
 
         
 
              In the case sub judice, claimant demonstrated that her 
 
         carpal tunnel syndrome is a medical condition called 
 
         tenosynovitis. Claimant argues that her tenosynovitis is an 
 
         occupational disease compensable under Chapter 85A, not an injury 
 
         compensable under Chapter 85.  Indeed, prior to 1983, 
 
         tenosynovitis was one of several occupational diseases 
 
         specifically listed in section 85A.9 as compensable under Chapter 
 
         85A of the Code.  In 1973, the Iowa legislature eliminated this 
 
         specific listing of diseases and at the same time restricted the 
 
         definition of injury in section 85.61(4) to exclude occupational 
 
         diseases.  The supreme court held in McSpadden that this change 
 
         was intended to broaden, not restrict, the definition of 
 
         occupational disease.  McSpadden, 288 N.W.2d at 190.;
 
         
 
              In response, defendant cites Simbro v. Delong's Sportswear, 
 
         332 N.W.2d 886 (Iowa 1983) for the proposition that bilateral 
 
         carpal tunnel syndrome is compensable under Chapter 85.  In that 
 
         case, the sole issue was whether the bilateral carpal tunnel 
 
 
 
                        
 
                                                         
 
         syndrome was an injury to the body as a whole under Iowa.Code 
 
         section 85.34(2)(o) or a simultaneous injury to two body members 
 
         invoking the language of Iowa Code section 85.34(2)(s).  Neither 
 
         party raised the issue of occupational disease in Simbro.  Also, 
 
         in McKeever Custom Cabinets v. Smith, 379 N.W.2d 368 (Iowa 1985), 
 
         it was held that many types of conditions, including 
 
         tenosynovitis, which occur gradually over time from cumulative 
 
         trauma can constitute an injury under Chapter 85 of the Code. 
 
         However, neither Simbro nor McKeever contained any discussion or 
 
         language to suggest a carpal tunnel syndrome, tenosynovitis or 
 
         any other gradually developing illness or condition was to be 
 
         exclusively compensated as an injury under Chapter 85 or that 
 
         such conditions could never qualify as an occupational disease 
 
         under Chapter 85A.
 
         
 
              The most notable prior decision of this agency on this matter 
 
         is discussed by claimant in her brief, namely:  Peters v. Lamoni 
 
         Auto Assemblies, Inc., File No. 809203, Appeal Decision dated 
 
         March 31, 1989.  This decision is important to the extent that it 
 
         is a decision by the industrial commissioner himself and as such 
 
         constitutes for the undersigned a binding prior agency precedent. 
 
         In Peters, a tenosynovitis condition was held to be an injury, not 
 
         an occupational disease, and compensable under Chapter 85 of the 
 
         Code.  However, my reading of the Peters decision does not 
 
         foreclose a finding that such conditions can also constitute an 
 
         occupational disease in appropriate cases.  Both the appeal 
 
         decision and the arbitration decision specifically held that 
 
         Peters had not proven by a preponderance of the evidence that she 
 
         had sustained an occupational disease.  In that case, claimant had 
 
         developed carpal tunnel syndrome prior to her employment.  Also, 
 
         it was pointed out by the deputy that Peters failed to inform the 
 
         employer of her prior problems in her employment application.  
 
         Such deception precludes application of the Occupational Disease 
 
         statute pursuant to section 85A.7(1).
 
         
 
              The supreme court directs that workers' compensation 
 
         statutes are to be liberally construed in favor of the injured 
 
         worker. Beier Glass Co. v. Brundige, 329 N.W.2d 280, 283 (Iowa  
 
         1983); Iowa Beef Processors, Inc., v. Miller, 312 N.W.2d 530, 532 
 
         (Iowa 1981).  Consequently, given the language of the statutes 
 
         and the  supreme court decisions of McSpadden, Simbro and 
 
         McKeever, as well as the distinguishing facts in the prior 
 
         agency decision in Peters, the undersigned concludes that the 
 
         correct law is that tenosynovitis conditions, and many other 
 
         conditions of ill health for that matter, can constitute either 
 
         an injury or an occupational disease, depending upon the facts of 
 
         each case.  In other words, if a claimant satisfies the two 
 
         requirements for a showing of an occupational disease set forth 
 
         in McSpadden, the medical condition constitutes an occupational 
 
         disease compensable under Chapter 85A.  As a result of the 
 
         statutory definition of injury, such a condition then cannot be 
 
         considered an injury.  On the other hand, if claimant fails in 
 
         such a showing as was the case in Peters, the claimant may still 
 
         be compensated under Chapter 85, provided the medical condition 
 
         arose out of and in the course of employment.  Support for this 
 
                                                
 
                                                         
 
         interpretation is found in McSpadden's footnote explaining the 
 
         second causative test:
 
         
 
              We do not construe this sentence to also mean that the 
 
              claimant's disease should be excluded merely because it is 
 
              one which members of the general public may acquire under 
 
              ordinary circumstances, provided that the claimant's 
 
              particular disease arose from the peculiar hazards of his 
 
              employment.  McSpadden, 288 N.W.2d at 190, footnote 5 
 
              (emphasis added).
 
         
 
              In other words, the question of whether a medical condition 
 
         constitutes an occupational disease or an injury must be 
 
         approached on a case by case basis with close analysis of the 
 
         specific employment hazard giving rise to the condition.  The 
 
         fact that the condition could also constitute a work injury does 
 
         not preclude application of the McSpadden test and a finding of 
 
         an occupational disease.
 
         
 
              It is pointed out that the occupational disease issue may be 
 
         moot as this agency has held in the past that regardless of a 
 
         showing of an occupational disease, the amount of compensation 
 
         would not change.  Hall v. Backman Sheet Metal, I-3, Iowa 
 
         Industrial Commissioner Decisions 595, 600 (Review-Reopening 
 
         Decision 1985).  In Hall, a deputy commissioner held that 
 
         although claimant suffered an occupational disease to his hands, 
 
         his permanent disability benefits are limited to a percentage of 
 
         the number of weeks allowed for a loss of the hand set forth in 
 
         Chapter 85.34(2) determined solely from a physician's functional 
 
         impairment rating.
 
         
 
              First, although an arbitration decision by a fellow deputy 
 
         commissioner is a precedent that should be given serious 
 
         consideration, such decisions are not binding on the undersigned. 
 
         Secondly, although that deputy has the undersigned's deep 
 
         respect, the undersigned simply disagrees.  As aptly pointed out 
 
         by claimant in her brief, the Iowa Supreme Court has clearly 
 
         directed that permanent disability benefits for occupational 
 
         diseases under Chapter 85A are to be awarded in the same manner 
 
         as body as a whole injuries under Chapter 85 - industrially on 
 
         the basis of claimant's loss of earning capacity.  In McSpadden, 
 
         the court stated that the language of Iowa Code section 85A.4 
 
         which defines "disablement" sets the standard for compensating 
 
         disability in occupational disease cases.  In rejecting the 
 
         argument that the disability analysis is limited to an evaluation 
 
         of functional loss, the court stated as follows with reference to 
 
         the industrial disability factors of age, education, 
 
         qualifications, experience and employability:
 
         
 
              There is no reason to believe that these criteria should not 
 
              also be applicable in determining the claimant's capacity to 
 
              perform his work or to earn equal wages in other suitable 
 
              employment, the standards for determining disability under 
 
              section 85A.4.  (Emphasis added)
 
         
 
                                                
 
                                                         
 
         McSpadden, 288 N.W.2d at 192.
 
         
 
              Turning to Iowa Code section 85A.4, we find the following 
 
         definition of disablement:  "[T]he event or condition where an 
 
         employee becomes actually incapacitated from performing the 
 
         employee's work or from earning equal wages in other suitable 
 
         employment because of an occupational disease...11  This deputy 
 
         commissioner can find no basis in this language to distinguish 
 
         between body as a whole and scheduled member disabilities under 
 
         Chapter 85A.  This view is further supported by Dahl, The Iowa 
 
         Workers' Compensation Law and Federal Recommendations, 24 Drake 
 
         Law Review 336, 343 (1975).  This law review article was 
 
         favorably cited by the supreme court in McSpadden.
 
         
 
              In the case sub judice, claimant has satisfied the two 
 
         McSpadden requirements for finding of an occupational disease. 
 
         Consequently, she will be compensated industrially, taken into 
 
         account her functional loss only as it relates to a loss of 
 
         earning capacity.  Claimant has clearly established medical 
 
         causation of her right and left thumb and carpal tunnel 
 
         syndrome/tenosynovitis problems and resulting permanent partial 
 
         impairment to a hazard in employment, namely constant repetitive 
 
         work involving her fingers and thumbs at Monarch.  The work 
 
         accelerated the degenerative process of a bone in the base of her 
 
         thumb and enlarged the tendons in the carpal tunnel of both 
 
         hands. This required surgery and resulting permanent partial 
 
         impairment. The causal connection views of Drs. Misol and Pakiam 
 
         are uncontroverted in the record.
 
         
 
              The determinative issue is whether this hazard is peculiar 
 
         to Monarch's employment under the second test required by 
 
         McSpadden. The greater weight of the evidence presented in this 
 
         case appears to show that the type of repetitive work 
 
         constituting the hazard was more prevalent at Monarch than in 
 
         everyday life. or in other occupations.  As noted by Dr. Misol, 
 
         all occupations have some repetitive work.  However, the 
 
         assignment of a worker to a single repetitive task involving the 
 
         same body movement in the same part of the anatomy, hour after 
 
         hour, day after day, year after year, to achieve some sort of 
 
         productivity goal is indeed a hazard peculiar to Monarch and to 
 
         any other employer who may engage in the same practice.  The 
 
         plant supervisor never disputed Ramsey's testimony that most of 
 
         the female employees experience carpal tunnel problems after he 
 
         ended job rotation.  His only explanation was to blame this on an 
 
         article in a local newspaper which apparently made his workers 
 
         aware of the problems.  Therefore, claimant has shown by a 
 
         preponderance of the evidence that an occupational disease 
 
         compensable under Chapter 85A of the Code. The evidence also 
 
         clearly establishes disablement to have occurred on February 8, 
 
         1986, the day after claimant's last injurious exposure at work on 
 
         February 7, 1986.
 
         
 
               II.  As discussed above, claimant will be compensated 
 
         industrially.  An "industrial disability" is measured by a loss 
 
         of earning capacity.  Diederich v. Tri-City R. Co., 219 Iowa 587, 
 
                                                
 
                                                         
 
         593, 258 N.W. 899 (1935).  A physical impairment or restriction 
 
         on work activity may or may not result in such a loss of earning 
 
         capacity.  This is assessed by examination of several factors. 
 
         These factors include the employee's medical condition prior to 
 
         disablement, immediately after disablement and presently; the 
 
         situs of the medical problems, its severity and the length of 
 
         healing period; the work experience of the employee prior to and 
 
         since disablement and potential for rehabilitation; the 
 
         employee's qualifications intellectually, emotionally and 
 
         physically; earnings prior to and subsequent to disablement; age; 
 
         education; motivation; functional impairment; and inability 
 
         because of the occupational disease to engage in employment for 
 
         which the employee is best fitted.  Loss of earning caused by job 
 
         transfer for reasons related to injury is also relevant.  See 
 
         Peterson v. Truck Haven Cafe, Inc. (Appeal Decision February 28, 
 
         1985).
 
         
 
              Claimant's medical condition before her employment at 
 
         Monarch was fairly excellent and she had no ascertainable 
 
         functional impairments or ascertainable disabilities.  Claimant 
 
         was able to fully perform repetitive physical tasks involving her 
 
         hands and arms.
 
         
 
              Claimant's treating physician, Dr. Misol, has given claimant 
 
         a significant permanent partial impairment rating.  Dr. Misol 
 
         never rated claimant's left carpal tunnel syndrome although it is 
 
         clear that such would be work related.  Claimant had prior 
 
         overuse type of syndrome problems but not before her employment 
 
         at Monarch and the record does not indicate that such problems 
 
         resulted into any disablement until February 7, 1986..
 
         
 
              Claimant's physicians have restricted claimant's work 
 
         activities by prohibiting tasks involving her thumb.  Evaluating 
 
 
 
                        
 
                                                         
 
         physicians have indicated that the type of assembly work that she 
 
         was performing she could no longer perform.  Claimant's medical 
 
         condition prevents her from returning to work for which she is 
 
         best suited given her past education and work experience.
 
         
 
              Claimant is 55 years of age and retraining may be difficult. 
 
         Claimant has shown considerable motivation to replace her lost 
 
         income from Monarch but to date she has not received equivalent 
 
         income from such efforts.
 
         
 
              Although claimant has a high school education and exhibited 
 
         average intelligence at hearing, little was shown to indicate 
 
         claimant's actual potential for vocational rehabilitation through 
 
         retraining.
 
         
 
              The vocational rehabilitation counselor has indicated that 
 
         claimant has suffered a significant loss of potential earnings 
 
         due to her disability.
 
         
 
              Also, it must be emphasized that the employer's refusal to 
 
         accommodate for claimant's disability and allow for a return to 
 
         work has substantially affected her earnings.
 
         
 
              After examination of all the factors, it is found as a 
 
         matter of fact that claimant has suffered a 40 percent loss in 
 
         her earning capacity from her occupational disease.  Based upon 
 
         such a finding, claimant is entitled as a matter of law to 200 
 
         weeks of permanent partial disability benefits under Iowa Code 
 
         section 85.34(2)(u) which is 40 percent of 500 weeks, the maximum 
 
         allowable number of weeks for an injury to the body as a whole in 
 
         that subsection.
 
         
 
              There was no dispute as to claimant's entitlement to healing 
 
         period benefits.  Permanent partial disability benefits will 
 
         begin as stipulated.
 
         
 
              III.  With reference to penalty benefits under Iowa Code 
 
         section 86.13, defendants offered no explanation at hearing why 
 
         they failed to fully pay the 21 percent permanent partial 
 
         impairment rating of Dr. Misol even under their theory that the 
 
         medical condition was an injury under Chapter 85.  This rating by 
 
         Dr. Misol was relied upon in this case by the defense. 
 
         Consequently, a full penalty will be imposed on the unpaid 
 
         portion of Dr. Misol's impairment rating.
 
         
 
                              FINDINGS OF FACT
 
         
 
              1.  From their demeanor while testifying, claimant and 
 
         Theresa Ramsey are found to be credible witnesses but Robert 
 
         Benge is not found to be a credible witness.  Benge was 
 
         particularly not credible in denying that a significant number of 
 
         employees left Monarch for carpal tunnel syndrome problems.
 
         
 
              2.  On February 7, 1986, claimant suffered disablement from 
 
         an occupational disease of carpal tunnel syndrome as a result of 
 
                                                
 
                                                         
 
         tenosynovitis in conjunction with a deterioration of the trapezium 
 
         bone in her right wrist.  These conditions resulted from exposure 
 
         during her employment at Monarch to harmful, repetitive work.  
 
         This harmful repetitive work included the assembly of windows by 
 
         using her thumb and fingers to push small plastic inserts into 
 
         window frames approximately 1200 times a day over a period of 
 
         approximately three years with a few periods of layoff.  The work 
 
         at Monarch also involved the operation of a thumb operated air gun 
 
         as well as making and stacking boxes.  As a result of the work 
 
         restrictions by Dr. Misol against any pushing, pulling or pinching 
 
         of the thumb in excess of two pounds and a general prohibition by 
 
         Dr. Jones against performing claimant's hopper job at Monarch, 
 
         claimant has been unable to return to work at Monarch or any other 
 
         type of employment involving repetitive hand work.
 
         
 
              3.  The type of repetitive work in Monarch's assembly 
 
         operation within the so-called women's building, was a work 
 
         hazard peculiar to Monarch and more prevalent at Monarch than in 
 
         everyday life or in other occupations.  Beginning in 1983, 
 
         Monarch's management purposely assigned each assembly employee a 
 
         specific job ending a prior practice of job rotation.  As a 
 
         result, a significant number of employees developed carpal tunnel 
 
         syndrome/tenosynovitis.  A significant number of these employees 
 
         left their Monarch employment due to these problems.  Monarch's 
 
         refusal to accommodate for carpal tunnel syndrome problems of 
 
         their employees is a further indication of the peculiar risk of 
 
         the employment of Monarch.
 
         
 
              4.  As a result of her occupational disease and resulting 
 
         disablement as found herein, claimant has suffered a 40 percent 
 
         loss of earning capacity.  The disease is a cause of a 
 
         significant loss of function to her right hand and arm.  Claimant 
 
         has not shown that her left hand and shoulder problems are the 
 
         result of permanent impairment although the claimant has shown 
 
         that they are work related.  Claimant is 55 years of age and has 
 
         a high school education.  Claimant had no ascertainable loss of 
 
         earning capacity or prior functional impairments before 
 
         disablement began herein. Claimant's physician imposed 
 
         work/activity restrictions prevents claimant from returning to 
 
         the job she was performing at the time of her last injurious 
 
         exposure to repetitive work at Monarch.  The employer refuses to 
 
         accommodate for claimant's disability which prevents a return to 
 
         work at Monarch in some other capacity. Claimant is unable to 
 
         return to a significant number of higher paying manufacturing 
 
         jobs, the type of employment for which she is best suited given 
 
         her past work history and lack of formal education or specialized 
 
         training.  Claimant's earning potential has been significantly 
 
         reduced by $3.00 to $5.00 an hour.  Despite good motivation in an 
 
         effort to return to gainful employment, claimant has not been 
 
         able to secure one full time job and must rely on two part-time 
 
         jobs in an attempt to achieve equivalent income that she was 
 
         receiving at Monarch and at a second job at Target.  To date, she 
 
         still is suffering a loss of significant income from her 
 
         inability to return to Monarch.
 
         
 
                                                
 
                                                         
 
              5.  Although defendants relied upon the opinions of Dr. 
 
         Misol in this case and argued that the condition is an injury 
 
         compensable as a scheduled member under Chapter 85, defendants 
 
         have still not fully paid weekly benefits under Chapter 85 
 
         pursuant to their own theories of this case.  Defendants still 
 
         owe 18.214 weeks under the lowest rating of permanent partial 
 
         impairment offered by Dr. Misol.  Denial of payment of these 
 
         weeks of compensation without explanation is unreasonable.
 
         
 
                               CONCLUSIONS OF LAW
 
         
 
              Claimant has established under law entitlement to 200 weeks 
 
         of permanent partial disability benefits and to an additional 
 
         9.107 weeks for an unreasonable delay in paying weekly benefits.
 
         
 
                                     ORDER
 
         
 
              1.  Defendants shall pay to claimant two hundred (200) weeks 
 
         of permanent partial disability benefits at the rate of one 
 
         hundred eighty-six and 10/100 dollars ($186.10) per week from 
 
         July 20, 1986.
 
         
 
              2.  Defendants shall pay to claimant an additional nine 
 
         point one-zero-seven (9.107) weeks for their unreasonable delay 
 
         in payment of benefits pursuant to the rating of Dr. Misol.
 
         
 
              3.  Defendants shall pay accrued weekly benefits in a lump 
 
         sum and shall receive a credit against this award for benefits 
 
         previously paid.
 
         
 
              4.  Defendants shall pay interest on weekly benefits awarded 
 
         herein as set forth in Iowa Code section 85.30.
 
         
 
              5.  Defendants shall pay the costs of this action pursuant 
 
         to Division of Industrial Services Rule 343-4.33.
 
         
 
              6.  Defendants shall file activity reports on the payment of 
 
         this award as requested by this agency pursuant to Division of 
 
         Industrial Services Rule 343-3.1.
 
         
 
         
 
              Signed and filed this 27th day of March, 1990.
 
         
 
         
 
         
 
         
 
         
 
         
 
                                            LARRY P. WALSHIRE
 
                                            DEPUTY INDUSTRIAL 
 
                                            COMMISSIONER
 
         
 
         Copies To:
 
         
 
         Mr. Steven C. Jayne
 
                                                
 
                                                         
 
         Attorney at Law
 
         5835 Grand Ave, Suite 201
 
         Des Moines, IA  50312
 
         
 
         Mr. Joseph A. Happe
 
         Attorney at Law
 
         500 Liberty Bldg.
 
         Des Moines, IA  50309
 
         
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                                 2203; 4000.2
 
                                                 Filed March 27, 1990
 
                                                 LARRY P. WALSHIRE
 
         
 
                  BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         SONYA ATKINS,
 
         
 
              Claimant,
 
         
 
         vs.
 
                                                     File No. 816825
 
         MONARCH MANUFACTURING,
 
                                                 A R B I T R A T I 0 N
 
              Employer,
 
                                                     D E C I S I 0 N
 
         and
 
         
 
         MARYLAND CASUALTY COMPANY,
 
         
 
              Insurance carrier,
 
              Defendants.
 
         
 
         
 
         2203 - Occupational disease/tenosynovitis
 
         
 
              It was found that claimant proved by a preponderance of the 
 
         evidence that her carpal tunnel syndrome/tenosynovitis of the 
 
         right arm and a degeneration of the bone in her right wrist was 
 
         an occupational disease compensable under Chapter 85A and that 
 
         weekly benefits for all occupational diseases are to be 
 
         compensated in the same manner as body as a whole injuries under 
 
         Chapter 85. Prior agency decisions cited by the defense were 
 
         either distinguished or held not controlling.
 
         
 
              It was held that whether or not a condition is an injury or 
 
         an occupational disease is not a matter of analysis of the 
 
         particular condition or disease involved but a case by case 
 
         analysis of the harmful conditions under the McSpadden test for 
 
         occupational disease.  Tenosynovitis can be either depending upon 
 
         the harmful conditions exposed to in the particular work 
 
         environment involved.  In this case, it was found that claimant's 
 
         extremely repetitive work was a harmful condition peculiar to her 
 
         employment at Monarch and more prevalent at Monarch than in 
 
         everyday life or in other occupations.  Claimant was required to 
 
         perform a single type of task with her right thumb and fingers 
 
         approximately 1200 times a day over a period of approximately 
 
         three years.  In 1983, management decided to end a policy of job 
 
         rotation in the plant to increase productivity.  It is found that 
 
         carpal tunnel syndrome became a significant problem among 
 
         employees in the plant as a result of this decision.
 
         
 
         
 
         4000.2 - Penalty benefits under Iowa Code section 86.13
 
                                                
 
                                                         
 
         
 
              No explanation was offered by defendants why it did not 
 
         fully pay the lowest physical impairment pay benefits according 
 
         to the lowest physical impairment rating of the hand under 
 
         Chapter 85. Defense relied upon this theory at the time of 
 
         hearing.     Therefore, a full penalty of 9.107 weeks was 
 
         imposed.
 
         
 
         
 
         
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
                                                
 
 
            
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
                                                    2203; 4000.2
 
                                                    Filed March 27, 1990
 
                                                    LARRY P. WALSHIRE
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            SONYA ATKINS,                 :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :         File No. 816825
 
            MONARCH MANUFACTURING,        :
 
                                          :      A R B I T R A T I O N
 
                 Employer,                :
 
                                          :         D E C I S I O N
 
            and                           :
 
                                          :
 
            MARYLAND CASUALTY COMPANY,    :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
            
 
            2203 - Occupational disease/tenosynovitis
 
            
 
                 It was found that claimant proved by a preponderance of 
 
            the evidence that her carpal tunnel syndrome/tenosynovitis 
 
            of the right arm and a degeneration of the bone in her right 
 
            wrist was an occupational disease compensable under Chapter 
 
            85A and that weekly benefits for all occupational diseases 
 
            are to be compensated in the same manner as body as a whole 
 
            injuries under Chapter 85.  Prior agency decisions cited by 
 
            the defense were either distinguished or held not 
 
            controlling.
 
            
 
                 It was held that whether or not a condition is an 
 
            injury or an occupational disease is not a matter of 
 
            analysis of the particular condition or disease involved but 
 
            a case by case analysis of the harmful conditions under the 
 
            McSpadden test for occupational disease.  Tenosynovitis can 
 
            be either depending upon the harmful conditions exposed to 
 
            in the particular work environment involved.  In this case, 
 
            it was found that claimant's extremely repetitive work was a 
 
            harmful condition peculiar to her employment at Monarch and 
 
            more prevalent at Monarch than in everyday life or in other 
 
            occupations.  Claimant was required to perform a single type 
 
            of task with her right thumb and fingers approximately 1200 
 
            times a day over a period of approximately three years.  In 
 
            1983, management decided to end a policy of job rotation in 
 
            the plant to increase productivity.  It is found that carpal 
 
            tunnel syndrome became a significant problem among employees 
 

 
            
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
            in the plant as a result of this decision.
 
            
 
                 
 
            4000.2 - Penalty benefits under Iowa Code section 86.13
 
            
 
                 No explanation was offered by defendants why it did not 
 
            fully pay the lowest physical impairment pay benefits 
 
            according to the lowest physical impairment rating of the 
 
            hand under Chapter 85.  Defense relied upon this theory at 
 
            the time of hearing.  Therefore, a full penalty of 9.107 
 
            weeks was imposed.
 
            
 
                 
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         KARL BARKDOLL,                               File Nos. 816913
 
                                                                778471
 
              Claimant,
 
                                                        A P P E A L
 
         vs.
 
                                                      D E C I S I O N
 
         AMERICAN FREIGHT SYSTEM, INC.,
 
                                                         F I L E D
 
              Employer,
 
              Self-insured,                             JUN 28 1988
 
              Defendant.
 
         
 
         
 
                            STATEMENT OF THE CASE
 
         
 
              Defendant appeals and claimant cross-appeals from an 
 
         arbitration decision awarding permanent partial disability 
 
         benefits.
 
         
 
              The record on appeal consists of the transcript of the 
 
         arbitration proceeding; joint exhibits 1 through 12; and 
 
         defendant's exhibits A through D.  Both parties filed briefs on 
 
         appeal.
 
         
 
                                  ISSUES
 
         
 
              Defendant states the following issues on appeal:
 
         
 
              1.  Whether the employer is liable for disability benefits 
 
         during the periods when claimant failed or refused to obtain the 
 
         medical care authorized by the employer under section 85.39.
 
         
 
              2.  Whether the employer is liable for either temporary or 
 
         permanent disability benefits when the claimant failed and 
 
         refused to follow the medical advice of the physicians to whom he 
 
         had been referred.
 
         
 
              3.  Whether the available medical and other expert testimony 
 
         coupled with claimant's testimony, supports the industrial 
 
         disability awarded by the deputy commissioner.
 
         
 
              4.  Whether the record as a whole contains substantial 
 
         evidence to support the deputy commissioner's conclusions as to 
 
         facts and the application of the law.
 
         
 
              Claimant states the following issues on cross-appeal:
 
         
 
              1.  The finding of industrial disability is too low and 
 
         unsupported by substantial evidence in the record made before the 
 
         Iowa Industrial Commissioner when the record is viewed as a 
 
         whole.
 
         
 
                                                
 
                                                         
 
              2.  The limitation assessed on loss of earning capacity due 
 
         to claimant's age is in error of law.
 
         
 
                             REVIEW OF THE EVIDENCE
 
         
 
              The arbitration decision adequately and accurately reflects 
 
         the pertinent evidence and it will not be totally set forth 
 
         herein.
 
         
 
              Briefly stated, claimant's duties at American Freight 
 
         involved freight handling and truck driving.  The weight of the 
 
         freight that was handled by claimant ranged from only a few 
 
         pounds to over 1000 pounds.  Claimant used lift trucks and other 
 
         devices to handle the heavier freight.  Claimant testified that 
 
         this job required repetitive bending, balancing, kneeling and 
 
         crawling.
 
         
 
              On April 11, 1984, while attempting to unhook a trailer from 
 
         a truck-tractor, a step on the tractor broke and claimant fell 
 
         two feet to the ground on his right side.  Claimant felt pain in 
 
         the right shoulder and arm and saw Michael Stark, D.O., the 
 
         company doctor.  Claimant missed a few days of work over the next 
 
         two months as a result of this incident.
 
         
 
              On August 30, 1984, claimant was unloading a trailer and a 
 
         30 pound box fell on his right shoulder and arm.  Claimant again 
 
         felt severe pain in his right shoulder and arm.  He then 
 
         attempted to return to Dr. Stark but became impatient about 
 
         having to wait more than an hour for the appointment and went to 
 
         his own family doctor, Yang Ahn, M.D.  Dr. Ahn told claimant to 
 
         take a week off from work and referred claimant to an orthopedic 
 
         surgeon, W.J. Robb, M.D.
 
         
 
              Claimant was seen by Dr. Robb on October 9, 1984 with 
 
         complaints of neck and right shoulder pain radiating into his 
 
         right arm and numbness in his right little finger.  Dr. Robb 
 
         diagnosed a sprain to the cervical spine and probable protruded 
 
         disc at the C-6 level.  Dr. Robb concluded on April 18, 1985 that 
 
         claimant would not be able to return to his job at American 
 
         Freight and gave claimant a permanent impairment rating to his 
 
         right upper extremity:
 
         
 
                   Karl Barkdoll is not going to be able to resume his 
 
              previous occupation which is truck driving largely because 
 
              of the nature of the stress to his low back.  He, however, 
 
              will be able to persue [sic] a relatively sedentary type of 
 
              work, clerical work, or that which requires merely walking, 
 
              standing and occasional sitting.  He will not be able to do 
 
              any job that requires heavy lifting or repetitive bending, 
 
              stooping and lifting.
 
         
 
         (Joint Exhibit 1, page 40)
 
         
 
              On April 23, 1985, Dr. Robb stated:  "I estimate that he 
 
         will have a 10-15% permanent impairment of function of the right 
 
                                                
 
                                                         
 
         upper extremity as a result of the secondary radiculitis and 
 
         involvement of the nerves to the right shoulder and right arm."  
 
         (Jt. Ex. 1, p. 35)
 
         
 
              Richard Neiman, M.D., who specializes in neurology, examined 
 
         claimant in May 1985, and also felt that claimant's condition was 
 
         permanent at that time:
 
         
 
              Based on his refusal to have further medical care, I would 
 
              have to think that he has probably reached maximum healing 
 
              around the first of May.  I think he will probably have a 
 
              permanent disability of approximately 15% based upon the 
 
              Manual of Orthopedic Surgeons recommendation....I think he 
 
              should avoid heavy lifting, particularly jobs that require 
 
              excessive flexion and extension and hyperextension of the 
 
              neck.  Light type duty such as lifting 15-20 pounds 
 
              certainly would not be a problem.
 
         
 
         (Jt. Ex. 1, p. 57)
 
         
 
              Dr. Neiman suggested a myelogram and surgery.  Claimant 
 
         refused this treatment and chose to live with the pain.
 
         
 
              Dr. Neiman also stated that the permanent impairment was 
 
         caused by the August 1984 injury as the earlier injury in April 
 
         appeared minor:
 
         
 
              Mr. Barkdoll's 15% permanent disability is based on the body 
 
              as a whole.  It is my contention that his injury of April, 
 
              1984, really was a minor one and the major insult occurred 
 
              in August, 1984, in which a carton fell 3 1/2 feet upon  him 
 
              weighing approximately 30 pounds.  Obviously his permanent 
 
              disability would then be related to this accident.
 
         
 
         (Jt. Ex. 1, p. 56)
 
         
 
              On August 4, 1986, John Walker, M.D., an orthopedic surgeon 
 
         from Waterloo, Iowa, stated:
 
         
 
              This patient undoubtedly has a cervical disc problem 
 
              producing a headache and radicular pain down the right 
 
              arm....This problem arises of course as a result of his two 
 
              injuries which occurred on the job.  As far as the sciatica 
 
              of the right lower extremity is concerned, this is probably 
 
              a sciatica with a so called pinched nerve syndrome on the 
 
              basis of a lumbar disc, but I cannot relate it to any 
 
              industrial accident.  This is something which has come on 
 
              for what reason I cannot explain.  As far as the cervical 
 
              spine and cervical disc problem is concerned, I believe that 
 
              he has a permanent, partial impairment of 15% of the body as 
 
              a whole. He apparently is able to live with this and 
 
              apparently it is not severe enough for him to undergo 
 
              myelographic study and surgery.  This is a completely 
 
              understandable attitude in my opinion and I do not believe 
 
              in doing myelographic studies unless surgery is 
 
                                                
 
                                                         
 
                   contemplated....I believe that he probably cannot do the 
 
              heavy unloading and the heavy lifting which is required in 
 
              his job....
 
         
 
         (Jt. Ex. 1, p. 45)
 
         
 
              On October 23, 1986, Dr. Walker stated:
 
         
 
                   I have re-read my August 4, 1986 report to you and I 
 
              note that he was injured first on April 11, 1984 and then 
 
              again on August 30, 1984.  Since this time the patient has 
 
              had symptomatology in the form of headache, neck pain and 
 
              radicular pain down the right arm, which I have related to 
 
              the industrial accident.  It is my opinion that this patient 
 
              has a permanent, partial disability of 7% of the body as a 
 
              whole based on the cervical problem, however, I also note 
 
              that the sciatica I could not relate to any industrial 
 
              accident, therefore, that 8% of the body as a whole, would 
 
              not be related to either of the accidents as I review my 
 
              writing and my report to you as of August 4, 1986.
 
         
 
         (Jt. Ex. 1, p. 50)
 
         
 
              Claimant owns and operates a caterpillar and a backhoe used 
 
         in earth moving projects.  Claimant testified that he has not 
 
 
 
                             
 
                                                         
 
         used this equipment extensively in recent years.  Surveillance 
 
         evidence was introduced showing claimant operating a bulldozer 
 
         and other equipment.  Claimant testifies that he was able to 
 
         operate this equipment without difficulty.  Claimant earned $350 
 
         to $400 with his equipment in 1986.
 
         
 
              Claimant also testified that prior to his injuries, his 
 
         earnings were $35,000 per year.  Claimant can no longer work on 
 
         the dock due to his medical restrictions, and cannot drive a 
 
         truck, in part due to Department of Transportation regulations. 
 
         Subsequent to his injuries, claimant's income is $9000 annually 
 
         from a pension.  Claimant stated that the amount of the pension 
 
         is much lower due to his early retirement than it would have been 
 
         had he continued to work.  Claimant has purchased two computers 
 
         in order to learn a new trade, but has not taken any 
 
         instructional courses in their use.
 
         
 
              Claimant also refused a request to pick up and transport his 
 
         X-rays to Dr. Neiman which would have required claimant to 
 
         deviate nine miles from his route.  Claimant was referred by Dr. 
 
         Robb to a doctor for his headaches, but claimant did not make an 
 
         appointment.  Claimant is 59 years of age and has a sixth grade 
 
         education.
 
         
 
              The parties stipulated:  (1) on April 11, 1984 and August 
 
         30, 1984, claimant received injuries which arose out of and in 
 
         the course of his employment with American Freight; and, (2) 
 
         claimant was off work from March 20, 1985 through April 30, 1985.  
 
         Although some confusion existed at the hearing, the parties have 
 
         stipulated that the rate of compensation is $275.37 per week.
 
         
 
                             APPLICABLE LAW
 
         
 
              Section 85.27, Code of Iowa (1983), states, in part:
 
         
 
                   The employer, for all injuries compensable under this 
 
              chapter or chapter 85A, shall furnish reasonable surgical, 
 
              medical, dental, osteopathic, chiropractic, podiatric, 
 
              physical rehabilitation, nursing, ambulance and hospital 
 
              services and supplies therefor and shall allow reasonable 
 
              necessary transportation expenses incurred for such 
 
              services....
 
         
 
                   ....
 
         
 
                   For purposes of this section, the employer...has the 
 
              right to choose the care....If the employee has reason to be 
 
              dissatisfied with the care offered, he should communicate 
 
              the basis of such dissatisfaction to the employer, in 
 
              writing if requested, following which the employer and 
 
              employee may agree to alternate care reasonably suited to 
 
              treat the injury.
 
         
 
              Section 85.39 states, in part:
 
         
 
                                                
 
                                                         
 
                   After an injury, the employee, if requested by the 
 
              employer, shall submit for examination at some reasonable 
 
              time and place and as often as reasonably requested, to a 
 
              physician or physicians authorized to practice under the 
 
              laws of this state or another state, without cost to the 
 
              employee; but if the employee requests, the employee, at the 
 
              employee's own cost, is entitled to have a physician or 
 
              physicians of the employee's own selection present to 
 
              participate in the examination.  If an employee is required 
 
              to leave work for which the employee is being paid wages to 
 
              attend the requested examination, the employee shall be 
 
              compensated at the employee's regular rate for the time the 
 
              employee is required to leave work, and the employee shall 
 
              be furnished transportation to and from the place of 
 
              examination, or the employer may elect to pay the employee 
 
              the reasonable cost of the transportation.  The refusal of 
 
              the employee to submit to the examination shall suspend the 
 
              employee's right to any compensation for the period of the 
 
              refusal.  Compensation shall not be payable for the period 
 
              of suspension.
 
         
 
              Permanent partial disabilities are classified as either 
 
         scheduled or unscheduled.  A specific scheduled disability is 
 
         evaluated by the functional method; the industrial method is used 
 
         to evaluate an unscheduled disability.  Martin v. Skelly Oil Co., 
 
         252 Iowa 128, 133, 106 N.W.2d 95, 98 (1960); Graves v. Eagle Iron 
 
         Works, 331 N.W.2d 116 (Iowa 1983); Simbro v DeLong's Sportswear, 
 
         332 N.W.2d 886, 887 (Iowa 1983).
 
         
 
              If a claimant contends he has industrial disability he has 
 
         the burden of proving his injury results in an ailment extending 
 
         beyond the scheduled loss.  Kellogg v. Shute and Lewis Coal Co., 
 
         256 Iowa 1257, 130 N.W.2d 667 (1964).
 
         
 
              If claimant has an impairment to the body as a whole, an 
 
         industrial disability has been sustained.  Industrial disability 
 
         was defined in Diederich v. Tri-City Railway Co., 219 Iowa 587, 
 
         593, 258 N.W. 899, 902 (1935) as follows:  It is therefore plain 
 
         that the legislature intended the term 'disability' to mean 
 
         'industrial disability' or loss of earning capacity and not a 
 
         mere 'functional disability' to be computed in the terms of 
 
         percentages of the total physical and mental ability of a normal 
 
         man."
 
         
 
              The opinion of the supreme court in Olson v. Goodyear 
 
         Service Stores, 255 Iowa 1112, 1121, 125 N.W.2d 251, 257 (1963) 
 
         cited with approval a decision of the industrial commissioner for 
 
         the following proposition:
 
         
 
              Disability * * * as defined by the Compensation Act means 
 
              industrial disability, although functional disability is an 
 
              element to be considered . . .  In determining industrial 
 
              disability, consideration may be given to the injured 
 
              employee's age, education, qualifications, experience and 
 
              his inability, because of the injury, to engage in 
 
                                                
 
                                                         
 
                   employment for which he is fitted. * * * *
 
         
 
              Functional disability is an element to be considered in 
 
         determining industrial disability which is the reduction of 
 
         earning capacity, but consideration must also be given to the 
 
         injured employee's age, education, qualifications, experience and 
 
         inability to engage in employment for which he is fitted.  Olson 
 
         v. Goodyear Service Stores, 255 Iowa 1112, 125 N.W.2d 251 (1963). 
 
         Barton v. Nevada Poultry, 253 Iowa 285, 110 N.W.2d 660 (1961).
 
         
 
              A finding of impairment to the body as a whole found by a 
 
         medical evaluator does not equate to industrial disability.  This 
 
         is so as impairment and disability are not synonymous.  Degree of 
 
         industrial disability can in fact be much different than the 
 
         degree of impairment because in the first instance reference is 
 
         to loss of earning capacity and in the later to anatomical or 
 
         functional abnormality or loss.  Although loss of function is to 
 
         be considered and disability can rarely be found without it, it 
 
         is not so that a degree of industrial disability is 
 
         proportionally related to a degree of impairment of bodily 
 
         function.
 
         
 
              Factors to be considered in determining industrial 
 
         disability include the employee's medical condition prior to the 
 
         injury, immediately after the injury, and presently; the situs of 
 
         the injury, its severity and the length of healing period; the 
 
         work experience of the employee prior to the injury, after the 
 
         injury and potential for rehabilitation; the employee's 
 
         qualifications intellectually, emotionally and physically; 
 
         earnings prior and subsequent to the injury; age; education; 
 
         motivation; functional impairment as a result of the injury; and 
 
         inability because of the injury to engage in employment for which 
 
         the employee is fitted. Loss of earnings causes by a job transfer 
 
         for reasons related to the injury is also relevant.  These are 
 
         matters which the finder of fact considers collectively in 
 
         arriving at the determination of the degree of industrial 
 
         disability.
 
         
 
              There are no weighting guidelines that indicate how each of 
 
         the factors are to be considered.  There are no guidelines which 
 
         give, for example, age a weighted value of ten percent of the 
 
         total value, education a value of fifteen percent of total, 
 
         motivation - five percent; work experience - thirty percent, etc. 
 
         Neither does a rating of functional impairment directly correlate 
 
         to a degree of industrial disability to the body as a whole.  In 
 
         other words, there are no formulae which can be applied and then 
 
         added up to determine the degree of industrial disability.  It 
 
         therefore becomes necessary for the deputy or commissioner to 
 
         draw upon prior experience, general and specialized knowledge to 
 
         make the finding with regard to degree of industrial disability.  
 
         See Peterson v. Truck Haven Cafe, Inc., (Appeal Decision, 
 
         February 28, 1985); Christensen v. Hagen, Inc., (Appeal Decision, 
 
         March 26, 1985).
 
         
 
              Section 85.39 refers to a medical examination, and a refusal 
 
                                                
 
                                                         
 
         to submit to an examination under that section may result in 
 
         suspension of the claimant's benefits.  Section 85.39 does not 
 
         refer to treatment.  A claimant will not suffer suspension of 
 
         benefits under section 85.39 for failure to attend treatment. 
 
         Assmann v. Blue Star Food (Declaratory Ruling, May 18, 1988).
 
         
 
              The approach of later years when it can be anticipated that 
 
         under normal circumstances a worker would be retiring is, without 
 
         some clear indication to the contrary, a factor which can be 
 
         considered in determining the loss of earning capacity or 
 
         industrial disability which is causally related to the injury. 
 
         Becke v. Turner-Busch, Inc., 34 Report of the Iowa Industrial 
 
         Commissioner 34 (Appeal Decision 1979).
 
         
 
                                  ANALYSIS
 
         
 
              Defendant's first two issues on appeal essentially raise the 
 
         same question, that is, whether claimant's conduct constitutes a 
 
         refusal of medical care such that claimant should suffer a 
 
         suspension, reduction or forfeiture of disability benefits. 
 
         Defendant recites a refusal of medical care under section 85.39. 
 
         However, section 85.39 refers to a medical examination, not 
 
         treatment.  Treatment is contemplated by section 85.27.
 
         
 
              The record does not show a refusal of medical examination 
 
         under section 85.39.  Claimant declined a myelogram and surgery 
 
         for his condition, in part because of a subjective perception of 
 
         the dangers involved in the procedures.  There is no showing that 
 
         if claimant had undergone surgery his disability would have been 
 
         less or that it would have improved function.  Dr. Walker stated 
 
         that this was a reasonable choice of treatment on the part of 
 
         claimant.  See Arnamon v. Mid-American Freight Lines, 1 State of 
 
         Iowa Industrial Commissioner Decisions 497 (Arbitration Decision 
 
 
 
                                  
 
                                                         
 
         February 28, 1985).  Claimant failed to set up an appointment 
 
         with a specialist to treat his headaches.  Again, there is no 
 
         showing that if the appointment had been kept that claimant's 
 
         disability would have been less.  Finally, claimant is alleged to 
 
         have refused medical treatment because he refused to transport 
 
         some of his medical records with him to an appointment with a 
 
         physician. Claimant declined on the ground that to do so would 
 
         have taken him nine miles out of his way, and he was not being 
 
         paid to provide courier service.  Although claimant's course of 
 
         conduct may reflect on his motivation, it is not so unreasonable 
 
         as to justify a suspension, reduction or forfeiture of benefits.  
 
         In addition, since the records in question were in fact 
 
         eventually made available to the treating physician, there is no 
 
         showing that claimant's actions affected his treatment or 
 
         examination.
 
         
 
              Defendant's issues 3 and 4 on appeal and claimant's issue 1 
 
         on cross-appeal all deal with the extent of industrial 
 
         disability. The medical evidence indicates that claimant's injury 
 
         on April 11, 1984 was minor and the August 30, 1984 injury was 
 
         more major. Claimant returned to work after the April injury but 
 
         did not return to work after the August injury.  Claimant has not 
 
         undergone surgery.
 
         
 
              Dr. Robb concluded that claimant would be restricted to no 
 
         heavy lifting or repetitive bending, stooping or lifting "largely 
 
         because of the nature of the stress to his low back."  (Jt. Ex. 
 
         1, P. 40)  There is no indication in the record that claimant's 
 
         low back problem is causally related to his injury of April 11, 
 
         1984 or his injury of August 30, 1984.  All of claimant's 
 
         complaints from both injuries were to his neck and his right 
 
         shoulder and arm.  Dr. Robb's rating of impairment was limited to 
 
         15 percent of the right upper extremity.  The lower back problem 
 
         is determined to be unrelated to claimant's work injuries.
 
         
 
              Dr. Neiman gave claimant an impairment rating of 15 percent 
 
         of the body as a whole, and attributed this to claimant's August 
 
         30, 1984 injury to his right smoulder and arm.  Dr. Neiman does 
 
         not indicate to what extent claimant's lower back problems may 
 
         have contributes to this rating.
 
         
 
              Dr. Walker did distinguish between claimant's cervical and 
 
         lumbar problems.  Dr. Walker rated claimant's impairment of the 
 
         body as a whole at 15 percent also, but Dr. Walker attributed 
 
         eight percent to claimant's lower back problem, of unknown origin 
 
         and which Dr. Walker could not causally relate to either of 
 
         claimant's injuries.  The other seven percent was attributed by 
 
         Dr. Walker to claimant's cervical problem.  The opinion of Dr. 
 
         Walker is given the greater weight.  It is determined that 
 
         claimant has a permanent partial impairment as a result of his 
 
         injury on August 30, 1984.
 
         
 
              A rating of impairment is but one factor in the 
 
         determination of industrial disability.  Claimant's work 
 
         experience is limited to truck driving and freight moving.  
 
                                                
 
                                                         
 
         Claimant's education is limited to the 6th grade.
 
         
 
              Claimant has experienced a loss of earnings as a result of 
 
         his injuries.  Defendant has been unable to provide him with 
 
         substitute employment due to his restrictions but those 
 
         restrictions are because of his low back complaints which have 
 
         not been causally connected to his injuries at work.  Claimant 
 
         presently has no earned income.
 
         
 
              Claimant is able to operate heavy equipment that he owns 
 
         even with his restrictions.  Claimant testified that he had not 
 
         done very much of this type of work while he was on workers' 
 
         compensation. it appears that at least part of the reason 
 
         claimant did not engage in heavy equipment work was because he 
 
         was collecting workers' compensation benefits at the time.  
 
         Claimant would have some earning capacity in the field of heavy 
 
         equipment operation.
 
         
 
              Claimant's investment in computers, which he indicated was 
 
         for the purposes of learning a new marketable skill suggests 
 
         motivation on the part of claimant to earn an income.  However, 
 
         claimant has not taken any further steps such as undergoing 
 
         training in computer use or applying for computer-related jobs. 
 
         Claimant's limited education would indicate that intensive 
 
         training would be needed to enable claimant to realistically 
 
         compete for jobs in the computer field.
 
         
 
              Claimant's age is also a relevant factor in determining the 
 
         extent of industrial disability.  Claimant alleges, in his issue 
 
         2 on cross-appeal that the deputy improperly considered 
 
         claimant's age of 59 in determining industrial disability.  Age 
 
         is a proper factor in determining industrial disability.  In 
 
         addition, this agency has held in the past that a claimant's 
 
         proximity in age to the age at which retirement can normally be 
 
         expected is a factor to be considered in determining industrial 
 
         disability.
 
         
 
              Several factors presented in evidence indicate that 
 
         claimant's motivation is questionable.  Claimant is now receiving 
 
         pension income.  Claimant has been less than cooperative in the 
 
         course of his medical treatment and has a reduced need for income 
 
         as a result of his pension.
 
         
 
              Based on these and all other appropriate factors for 
 
         determining industrial disability, claimant's industrial 
 
         disability is determined to be 15 percent as a result of his 
 
         injuries on April 11, 1984 and August 30, 1984.
 
         
 
                            FINDINGS OF FACT
 
         
 
              1.  Claimant was employed as a truck driver and freight 
 
         mover, which required him to lift, bend, kneel and crawl.
 
         
 
              2.  Claimant suffered an injury on April 11, 1984 which 
 
         arose out of and in the course of his employment with defendant.
 
                                                
 
                                                         
 
         
 
              3.  Claimant suffered an injury on August 30, 1984 which 
 
         arose out of and in the course of his employment with defendant.
 
         
 
              4.  As a result of his injuries, claimant has received a 
 
         medical rating of physical impairment of seven percent of the 
 
         body as a whole.
 
         
 
              5.  Claimant was able to return to his job after his injury 
 
         of April 11, 1984.
 
         
 
              6.  Claimant was not able to return to his job.after his 
 
         injury of August 30, 1984.
 
         
 
              7.  Subsequent to his injury of August 30, 1984, claimant 
 
         has a lifting restriction of not over 15 to 20 pounds, and a 
 
         restriction on repetitive lifting, bending and stooping.
 
         
 
              8.  Claimant's restrictions are the result of his low back 
 
         complaints which were not causally connected to his injuries on 
 
         April 11, 1984 and August 30, 1984.
 
         
 
              9.  Claimant has been advised by his physicians not to 
 
         return to his work as a truck driver and freight mover.
 
         
 
              10.  Claimant is able to operate some heavy equipment.
 
         
 
              11.  Claimant has a sixth grade education.
 
         
 
              12.  Claimant was 59 years old at the time of the hearing.
 
         
 
              13.  Claimant's work experience is limited to truck driving 
 
         and freight moving.
 
         
 
              14.  Claimant earned approximately $35,000 per year prior to 
 
         his work injuries.
 
         
 
              15.  Claimant has pension income of $9,000 per year 
 
         subsequent to his work injury.
 
         
 
              16.  Claimant has lost earnings as a result of his work 
 
         injuries.
 
         
 
              17.  Claimant did not unreasonably refuse medical 
 
         treatment.
 
         
 
              18.  Claimant is not well motivated to return to work.
 
         
 
              19.  As a result of his injuries of April 11, 1984 and 
 
         August 30, 1984, claimant has an industrial disability of 15 
 
         percent.
 
         
 
                             CONCLUSIONS OF LAW
 
         
 
              CLaimant did not unreasonably refuse medical treatment and 
 
                                                
 
                                                         
 
         should not suffer a suspension, reduction or forfeiture of 
 
         disability benefits.
 
         
 
              Claimant's proximity to retirement age is properly a factor 
 
         in the determination of claimant's industrial disability.
 
         
 
              Claimant has an industrial disability of 15 percent as a 
 
         result of his injuries on April 11, 1984 and August 30, 1984.
 
         
 
              The medical treatment by Dr. Ahn was not authorized by 
 
         defendant.
 
         
 
              WHEREFORE, the decision of the deputy is affirmed and 
 
         modified.
 
         
 
                                    ORDER
 
         
 
              THEREFORE, it is ordered:
 
         
 
              That defendant pay claimant healing period benefits from 
 
         August 30, 1984 to April 18, 1985 at the rate of two hundred 
 
         seventy-five and 37/100 dollars ($275.37) per week.
 
         
 
              That defendant pay claimant seventy-five (75) weeks of 
 
         permanent partial disability benefits at a rate of two hundred 
 
         seventy-five and 37/100 dollars ($275.37) per week from April 19, 
 
         1985.
 
         
 
              That defendant pay to claimant the following medical 
 
         expenses:
 
         
 
                   Medical mileage                       $ 38.40
 
                   Fee for Dr. Walker's exam              671.00
 
 
 
                                    
 
                                                         
 
         
 
              That claimant shall pay the medical expenses of Dr. Ahn.
 
         
 
              That defendant pay accrued weekly benefits in a lump sum.
 
         
 
              That defendant pay interest on weekly benefits pursuant to 
 
         Iowa Code section 85.30.
 
         
 
              That defendant be given credit for benefits previously 
 
              paid.
 
         
 
              That defendant pay the costs of this action, including the 
 
         costs enumerated in the attachment to the prehearing report.
 
         
 
              Defendant shall file claim activity reports as required by 
 
         this agency pursuant to Division of Industrial Services Rule 
 
         343-3.1(2).
 
         
 
              Signed and filed this 28th day of June, 1988.
 
         
 
         
 
         
 
         
 
                                                    DAVID E. LINQUIST
 
                                                 INDUSTRIAL COMMISSIONER
 
         
 
         Copies To:
 
         
 
         Mr. Thomas M. Wertz
 
         Attorney at Law
 
         4089 21st Avenue SW
 
         Suite 114
 
         Cedar Rapids, Iowa  52404
 
         
 
         Mr. W. C. Hoffmann
 
         Attorney at Law
 
         1000 Des Moines Building
 
         Des Moines, Iowa  50309
 
 
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                                 2505; 1803
 
                                                 Filed June 28, 1988
 
                                                 David E. Linquist
 
         
 
                   BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         KARL BARKDOLL,
 
         
 
              Claimant,                             File Nos. 816913
 
                                                              778471
 
         vs.
 
         
 
         AMERICAN FREIGHT SYSTEM, INC.,               A P P E A L
 
         
 
              Employer,                             D E C I S I 0 N
 
              Self-Insured,
 
              Defendant.
 
         
 
         
 
         2505; 1803
 
         
 
              Claimant's decision not to undergo surgery or myelogram and 
 
         failure to set up appointment with referred physician for his 
 
         headaches was not a refusal of medical treatment where there was 
 
         medical evidence that such a decision was reasonable and where 
 
         there was no showing that the surgery would have decreased his 
 
         disability.  Claimant's refusal to transport medical records to 
 
         his physician also was not a medical refusal where there was no 
 
         showing that his failure to do so prevented a reduction of his 
 
         disability.  However, his unreasonable refusal to do so may 
 
         reflect on his motivation.
 
         
 
         1803
 
         
 
              Claimant, age 59 and with a sixth grade education, suffering 
 
         from a cervical injury that restricts him from lifting and a 
 
         rating of impairment of 7% of the body as a whole was held to 
 
         have an industrial disability of 15% where some of the medical 
 
         restrictions were shown to stem from an unrelated lumbar injury. 
 
         In addition, claimant was able to operate heavy equipment he 
 
         owned on a self-employed basis, and was capable of earning income 
 
         thereby.  Claimant's age of 59 and proximity to normal retirement 
 
         age held to be properly considered as a factor in determination 
 
         of industrial disability.
 
 
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                    BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         KARL BARKDOLL,
 
         
 
              Claimant,                        FILE NOS. 816913 & 778471
 
         
 
         vs.                                     A R B I T R A T I 0 N
 
         
 
         AMERICAN FREIGHT SYSTEM, INC.,             D E C I S I O N
 
         
 
              Employer,
 
              Self-Insured,
 
              Defendant.
 
         
 
         
 
         
 
                              STATEMENT OF THE CASE
 
         
 
              This is a proceeding in arbitration brought by Karl 
 
         Barkdoll, claimant, against American Freight System, Inc., a 
 
         self-insured employer, hereinafter referred to as American 
 
         Freight, defendant, for workers' compensation benefits as a 
 
         result of alleged injuries on April 11, 1984 and August 30, 1984.  
 
         On February 25, 1987, a hearing was held on claimant's petition 
 
         and the matter was considered fully submitted at the close of 
 
         this hearing.
 
         
 
              Claimant is alleging in this proceeding that as a result of 
 
         two separate events, he injured his head, upper back, right 
 
         shoulder, right arm and hand from a fall while working for 
 
         American Freight.  Claimant seeks temporary total disability or 
 
         healing period benefits during his recovery from the claimed 
 
         injuries and permanent partial disability benefits arising from 
 
         alleged permanent physical impairment.  In addition, claimant is 
 
         seeking reimbursement for certain medical expenses.  Defendant 
 
         denies that the injury resulted in temporary or permanent 
 
         disability and contests the appropriateness of certain medical 
 
         expenses incurred by claimant.
 
         
 
              The parties have submitted a prehearing report of contested 
 
         issues and stipulations which was approved and accepted as a part 
 
         of the record of this case at the time of hearing. oral testimony 
 
         was received during the hearing from claimant and John Kesenich.  
 
         The exhibits received into the evidence at the hearing are listed 
 
         in the prehearing report.  All of the evidence received at the 
 
         hearing was considered in arriving at this decision.
 
         
 
              The prehearing report contains the following stipulations: 
 
         (1) on April 11, 1984 and on August 30, 1984, claimant received 
 
         injuries which arose out of and in the course of his employment 
 
         with American Freight; (2) claimant seeks temporary total
 
         disability or healing period benefits from March 20, 1985 
 
         through April 30, 1985 and claimant was off work for that 
 
         period of time; (3) claimant's rate of weekly compensation in 
 

 
         
 
         
 
         
 
         BARKDOLL V. AMERICAN FREIGHT SYSTEM, INC.
 
         Page   2
 
         
 
         
 
         the event of an award of benefits from this proceeding shall be 
 
         $275.37; and, (4) the physicians who provided medical services 
 
         to claimant for which defendant refuses to pay would testify 
 
         that their charges for such services are fair and reasonable 
 
         and defendant is not offering contrary evidence.
 
         
 
              The prehearing reports submit the following issues for 
 
         determination in this decision:
 
         
 
              I.  Whether there is a causal relationship between the 
 
         work injury and the claimed disability;
 
         
 
             II.  The extent of claimant's entitlement to weekly 
 
         disability benefits; and
 
         
 
            III.  The extent of claimant's entitlement to medical 
 
         benefits under Iowa Code section 85.27 and 85.39.
 
         
 
                           FINDINGS OF FACT
 
         
 
              1.  Claimant was a credible witness.
 
         
 
              Claimant's appearance and demeanor at the hearing indicated 
 
         that he was testifying in a candid and truthful manner.
 
         
 
              2.  Claimant was employed by American Freight from July, 
 
         1970 until October, 1985.
 
         
 
              There was no dispute that claimant's duties at American 
 
         Freight involved freight handling and truck driving.  The truck 
 
         driving was limited to occasional local freight delivery.  
 
         Freight handling was claimant's primary job.  The weight of the 
 
         freight that was handled by claimant ranged from only a few 
 
         pounds to over 1,000 pounds.  Claimant used lift trucks and other 
 
         devices to handle the heavier freight.  The freight also came in 
 
         different sizes and shapes such as barrels, pipes, rolls of 
 
         carpet and large pieces of equipment.  When claimant delivered 
 
         freight, he would use a large straight truck or a tractor-trailer 
 
         semi with a short trailer.  Aside from repetitive bending and 
 
         lifting, claimant testified that this job also required 
 
         balancing, kneeling and crawling to properly handle the freight.  
 
         Claimant was customarily paid $13.21 per hour over a 40 hour 
 
         week.
 
         
 
              3.  On April 11, 1984 and on August 30, 1984, claimant 
 
         suffered an injury to his head, right shoulder, upper back and 
 
         right arm which arose out of and in the course of his employment 
 
         with American Freight.
 

 
         
 
         
 
         
 
         BARKDOLL V. AMERICAN FREIGHT SYSTEM, INC.
 
         Page   3
 
         
 
         
 
         
 
              Claimant's credible testimony and the consistent histories 
 
         he provided to his physicians in this case established that he 
 
         injured his head, right shoulder, upper back, right arm and right 
 
         hand on two occasions while working as a freight handler for 
 
         American Freight.  Claimant testified that in April, 1984, while 
 
         attempting to unhook a trailer from a truck-tractor, a step on 
 
         the tractor broke and he fell two feet to the ground on his right 
 
         side.  The pain in the right shoulder and arm persisted after 
 
         this incident and he saw a Michael Stark, D.O., the company 
 
         doctor.  After x-rays, Dr. Stark told claimant to simply go home 
 
         and take it easy for a while.  Claimant continued, working but 
 
         continued to experience some pain and missed a few days of work 
 
         over the next couple of months.  On August 30, 1984, claimant was 
 
         unloading a trailer and a 30 pound box fell on his right shoulder 
 
         and arm.  Claimant testified that he again felt severe pain in 
 
         his right shoulder and arm.  He then attempted to return to Dr. 
 
         Stark but became angry about having to wait more than an hour for 
 
         the appointment and went to his own family doctor, Yang Ahn, 
 
         M.D., Dr. Stark's associate at MediCenter West in Cedar Rapids, 
 
         Iowa.  Dr. Ahn told claimant to take a week off from work and 
 
         return to his office.  After this week of rest, claimant's 
 
         condition remained unchanged and Dr. Ahn referred claimant to an 
 
         orthopedic surgeon, W. J. Robb, M.D.
 
         
 
              4.  The work injury of August 30, 1994 was a cause of a 
 
         temporary period of total disability while claimant was 
 
         recovering from the injury from October 8, 1984 through April 18, 
 
         1985.
 
         
 
              Claimant was first seen by Dr. Robb on October 9, 1984 with 
 
         complaints of neck and right shoulder pain radiating into his 
 
         right arm and numbness and tingling in his right fifth ring 
 
         finger.   Upon a diagnoses of a sprain to the cervical spine and 
 
         probable protruded disc at the C-6 level, Dr. Robb treated 
 
         claimant with a cervical collar, intermittent traction, physical 
 
         therapy, ultrasound therapy and medication over the next several 
 
         months.   Although claimant's condition improved to a limited 
 
         degree, Dr. Robb concluded on April 18, 1985, that claimant would 
 
         not be able to return to his job at American Freight and gave 
 
         claimant a permanent impairment rating to his right upper 
 
         extremity.  Another physician, Richard Neiman, M.D., who 
 
         specializes in neurology, reported that he examined claimant in 
 
         May, 1984, and likewise felt that claimant's condition was 
 
         permanent at that time.  Therefore, maximum healing from the work 
 
         injury occurred at the time claimant's condition was first 
 
         considered permanent by his treating physician, Dr. Robb, on 
 
         April 18, 1985.
 
         
 
              Defendant appears to contend that claimant had returned to 
 
         work at some point in time earlier than May, 1985.  Claimant owns 
 
         and operates a caterpillar and a backhoe used in earth moving 
 
         projects.  Claimant testified that he has owned this equipment 
 
         for some time and has not used this equipment extensively in 
 
         recent years.  Claimant testified that he only earned a few 
 
         hundred dollars a year in this endeavor.  The evidence does not 
 
         indicate that claimant was performing any of this work before 
 
         April 18, 1985.
 
         
 

 
         
 
         
 
         
 
         BARKDOLL V. AMERICAN FREIGHT SYSTEM, INC.
 
         Page   4
 
         
 
         
 
              Dr. Neiman suggested that claimant receive a myelogram and 
 
         surgery if necessary to correct a probable herniated cervical 
 
         disc.  Claimant refused this treatment and desires rather to live 
 
         with the pain.  The physicians in this case feel that claimant 
 
         has made a reasonable decision in this regard given the risk of 
 
         such tests and surgery.
 
         
 
              5.  The work injury of August 30, 1984 was a cause of 
 
         significant permanent partial impairment to claimant's body as a 
 
         whole.
 
         
 
              Claimant established by his testimony and the lack of 
 
         contrary medical evidence that he had no neck, back, shoulder or 
 
         arm difficulties or functional impairment before April, 1984.  
 
         Dr. Robb does not give a specific opinion concerning the causal 
 
         connection of claimant's permanent impairment to the work 
 
         injuries but his reports describe a constant pattern of treatment 
 
         stemming from the last incident on August, 1984.  Dr. Neiman 
 
         states that according to the history he took from claimant, the 
 
         permanent impairment was caused by the August, 1984, injury as 
 
         the earlier injury in April appeared minor.  A third opinion was 
 
         obtained from John Walker, M.D., an orthopedic surgeon from 
 
         Waterloo, Iowa.  Dr. Walker connects both work injuries to 
 
         permanent impairment, however, the greater weight of the evidence 
 
         presented demonstrates that only the later injury in August of 
 
         1984 was a cause of claimant's permanent functional impairment.
 
         
 
              Dr. Robb rates claimant as suffering from a 10 to 15 percent 
 
         permanent partial impairment to the right arm due to secondary 
 
         radiculitis and involvement of the nerves of the right shoulder 
 
         and arm.  Dr. Neiman rates claimant under orthopedic guidelines 
 
         as suffering from a 15 percent permanent partial impairment of 
 
         the body as a whole as the result of a probable disc problem.  
 
         Dr. Neiman restricts claimant's work activity to light duty with 
 
         lifting under 20 pounds.  However, occasional lifting in the 20 
 
         to 50 pound range would not be a problem for claimant.  According 
 
         to Dr. Neiman claimant should avoid repetitive bending, stooping 
 
         or lifting.  Dr. Walker concurs with Dr. Neiman's permanent 
 
         partial impairment rating to the body as a whole but believes 
 
         that only seven percent of this rating is attributable to the two 
 
         work injuries.  Claimant's credible testimony established that 
 
         prolonged sitting is likewise intolerable to him due to shoulder 
 
         pain and his headaches.  Dr. Robb causally relates these 
 
         headaches to the cervical back problem.
 
         
 
         
 
              The extent of claimant's functional impairment is tempered 
 
         to some degree but his demonstrated ability to operate heavy 
 
         earth moving equipment such as his caterpillar and backhoe.  This 
 
         type of equipment requires the extensive use of this hands and 
 
         arms, prolonged sitting and bouncing.  However, claimant's 
 
         credible testimony also established that he performs such 
 
         activity only in a very limited manner.
 
         
 
              6.  The work injury of August 30, 1984 was the cause of a 40 
 
         percent permanent loss of earning capacity or industrial 
 
         disability.
 
         
 
              As a result of his functional impairment and physician 
 

 
         
 
         
 
         
 
         BARKDOLL V. AMERICAN FREIGHT SYSTEM, INC.
 
         Page   5
 
         
 
         
 
         imposed restrictions, claimant is unable to return to the work he 
 
         was performing at the time of the work injury.  Claimant's 
 
         employment before working for American Freight primarily 
 
         consisted of over-the-road trucking.  It is the experience of 
 
         this agency that such work many times involves the responsibility 
 
         to load and unload cargo.  However, it is also the experience of 
 
         this agency that there are trucking jobs which do not require 
 
         unloading and that persons are many times available at delivery 
 
         points to load or unload cargo for drivers.  Also, claimant is 
 
         able to use his hands and arms and sit for long periods of time 
 
         in the oPeration of his caterpillar and backhoe.  However, 
 
         trucking requires prolonged sitting and the use of hands and arms 
 
         constantly, hour after hour, week after week, year after year 
 
         which claimant cannot do.  Therefore, claimant has demonstrated 
 
         an inability to return to over-the-road trucking.  Claimant's 
 
         only work experience involves manual labor and trucking, the work 
 
         he can no longer perform.
 
         
 
              Claimant has suffered a significant loss in actual earnings 
 
         from employment due to his work injury.  His only earnings at the 
 
         present time involve a few part-time jobs operating his 
 
         caterpillar and backhoe.  This type of work has only yielded a 
 
         few hundred dollars of earnings each year primarily because his 
 
         disability prevents him from becoming more involved in such 
 
         activity.
 
         
 
              Claimant is 59 years of age, and has only a sixth grade 
 
         education.  As claimant is close to normal retirement age, his 
 
         loss of earning capacity as a result of his disability is not as 
 
         great as that of a younger person.
 
         
 
              Claimant has demonstrated above average intelligence at the 
 
         hearing and a willingness to try a new endeavor such as computer 
 
         work.  However, it is quite unusual for a person to spend 
 
         hundreds of dollars on computer equipment and nothing on the 
 
         training that will be necessary to properly operate and secure 
 
         employment in the area of computers.  Apparently, computers are 
 
         more of a hobby than a real attempt at vocational 
 
         rehabilitation.
 
         
 
              Claimant has limited potential for successful vocational 
 
         rehabilitation due to his lack of formal education and a manual 
 
         labor background.
 
         
 
              8.  Treatment of the work injury by claimant's family 
 
         physician, Dr. Ahn, in October, 1984, was not authorized by 
 
         defendant.
 
         
 
              Although treatment from Dr. Ahn was necessary and reasonable 
 
         treatment, it was not authorized by defendant.  Defendant had 
 
         admitted to a work injury before this time.  Claimant's 
 
         impatience with Dr. Stark after the second injury was not 
 
         reasonable.
 
         
 
              9.  Claimant traveled 160 miles in an attempt to obtain 
 
         treatment from Dr. Stark, an employer authorized physician, in 
 
         October of 1984.
 
         
 
              In support of his medical mileage request, claimant 
 

 
         
 
         
 
         
 
         BARKDOLL V. AMERICAN FREIGHT SYSTEM, INC.
 
         Page   6
 
         
 
         
 
         testified that he traveled to Dr. Stark's office twice and 
 
         incurred an auto expense of 460 miles.  Any treatment by Dr. 
 
         Stark was authorized by defendant at the time.
 
         
 
              10.  The fee charged by Dr. Walker for an independent 
 
         disability evaluation in August, 1985, in the amount of $631 is 
 
         fair and reasonable.
 
         
 
              Dr. Robb as the employer retained physician first evaluated 
 
         claimant's disability in April, 1985.  Another employer retained 
 
         physician, Dr. Neiman, rated claimant's disability in May, 1985. 
 
          Claimant was dissatisfied and sought the opinion of Dr. Walker 
 
         as to the extent of his disability.  This independent evaluation 
 
         was approved by order of this agency in July, 1986.  Defendant 
 
         stipulated that Dr. Walker would testify that his fee was 
 
         reasonable and that they are not offering any contrary evidence.  
 
         Consequently, the fee is found to be reasonable.
 
         
 
                                CONCLUSIONS OF LAW
 
         
 
              The foregoing findings of fact were made under the following 
 
         principles of law:
 
         
 
              I.  The claimant has the burden of proving by a 
 
         preponderance of the evidence that the work injury is a cause of 
 
         the claimed disability.  A disability may be either temporary or 
 
         permanent.  In the case of a claim for temporary disability, the 
 
         claimant must establish that the work injury was a cause of 
 
         absence from work and lost earnings during a period of recovery 
 
         from the injury.  Generally, a claim of permanent disability 
 
         invokes an initial determination of whether the work injury was a 
 
         cause of permanent physical impairment or permanent limitation in 
 
         work activity.  However, in some instances, such as a job 
 
         transfer caused by a work injury, permanent disability benefits 
 
         can be awarded without a showing of a causal connection to a 
 
         physical change of condition.  Blacksmith v. All-American, Inc., 
 
         290 N.W.2d 348, 354 (Iowa 1980); McSpadden v. Big Ben Coal 
 
         Co.,288 N.W.2d 181 (Iowa 1980).
 
         
 
              The question Of causal connection is essentially within the 
 
         domain of expert medical opinion.  Bradshaw v. Iowa Methodist 
 
         Hospital, 251 Iowa 375, 101 N.W.2d 167 (1960).  The opinion of 
 
         experts need not be couched in definite, positive or unequivocal 
 
         language and the expert opinion may be accepted or rejected, in 
 
         whole or in part, by the trier of fact.  Sondag v. Ferris 
 
         Hardware, 220 N.W.2d 903 (Iowa 1974).  The weight to be given to 
 
         such an opinion is for the finder of fact, and that may be 
 
         affected by the completeness of the premise given the expert and 
 
         other surrounding circumstances.  Bodish v. Fischer, Inc., 257 
 
         Iowa 516, 133 N.W.2d 867 (1965).
 
         
 
              Furthermore, if the available expert testimony is 
 
         insufficient alone to support a finding of causal connection, 
 
         such testimony may be coupled with nonexpert testimony to show 
 
         causation and be sufficient to sustain an award.  Giere v. Aase 
 
         Haugen Homes, Inc., 259 Iowa 1065, 146 N.W.2d 911, 915 (1966).    
 
         Such evidence does not, however, compel an award as a matter of 
 
         law.  Anderson v. Oscar Mayer & Co., 217 N.W.2d 531, 536 (Iowa 
 
         1974).  To establish compensability, the injury need only be a 
 

 
         
 
         
 
         
 
         BARKDOLL V. AMERICAN FREIGHT SYSTEM, INC.
 
         Page   7
 
         
 
         
 
         significant factor, not be the only factor causing the claimed 
 
         disability.  Blacksmith, 290 N.W.2d 348, 354.  In the case of a 
 
         preexisting condition, an employee is not entitled to recover for 
 
         the results of a preexisting injury or disease but can recover 
 
         for an aggravation thereof which resulted in the disability found 
 
         to exist.  Olson v. Goodyear Service Stores, 255 Iowa 1112, 125 
 
         N.W.2d 251 (1963).
 
         
 
              In the case sub judice, although a finding was made causally 
 
         connecting the work injury to permanent functional impairment to 
 
         claimant's body as a whole, such a finding does not as a matter 
 
         of law automatically entitle claimant to benefits for a permanent 
 
         disability.  The extent to which this physical impairment results 
 
         in disability was examined under the law setforth below.
 
         
 
              Claimant must establish by a preponderance-of the evidence 
 
         the extent of weekly benefits for permanent disability to which 
 
         claimant is entitled.  As the claimant has shown that the work 
 
         injury was a cause of a permanent physical impairment or 
 
         limitation upon activity involving the body as a whole, the 
 
         degree of permanent disability must be measured pursuant to Iowa 
 
         Code section 85.34(2)(u).  However, unlike scheduled member 
 
         disabilities, the degree of disability under this provision is 
 
         not measured solely by the extent of a functional impairment or 
 
         loss of use of a body member.  A disability to the body as a 
 
         whole or an "industrial disability" is a loss of earning capacity 
 
         resulting from the work injury.  Diederich v. Tri-City Railway 
 
         Co., 219 Iowa 587, 593, 258 N.W. 899 (1935).  A physical 
 

 
         
 
         
 
         
 
         BARKDOLL V. AMERICAN FREIGHT SYSTEM, INC.
 
         Page   8
 
         
 
         
 
         impairment or restriction on work activity may or may not result 
 
         in such a loss of earning capacity.  The extent to which a work 
 
         injury and a resulting medical condition has resulted in an 
 
         industrial disability is determined from examination of several 
 
         factors.  These factors include the employee's medical condition 
 
         prior to the injury, immediately after the injury and presently; 
 
         the situs of the injury, its severity and the length of healing 
 
         period; the work experience of the employee prior to the injury, 
 
         after the injury and potential for rehabilitation; the employee's 
 
         qualifications intellectually, emotionally and physically; 
 
         earnings prior and subsequent to the injury; age; education; 
 
         motivation; functional impairment as a result of the injury; and 
 
         inability because of the injury to engage in employment for which 
 
         the employee is fitted.  Loss of earnings caused by a job 
 
         transfer for reasons related to the injury is also relevant.  
 
         Olson, 255 Iowa 1112, 1121, 125 N.W.2d 251, 257 (1963).  See 
 
         Peterson v. Truck Haven Cafe, Inc., (Appeal Decision, February 
 
         28, 1985).
 
         
 
              In this case, claimant argued that the work injury compelled 
 
         claimant to retire early and that his pension would have been 
 
         much higher had he been able to retire at the normal retirement 
 
         age.  Claimant contends that this fact should be taken into 
 
         consideration in any award of industrial disability benefits.  
 
         Defendant argues that the existence of a pension or the lack 
 
         thereof is irrelevant to the concept of industrial disability in 
 
         this state and that if anything the trend in other states is 
 
         either legislatively or by judicial decision is to lower 
 
         disability benefits to prevent multiple receipt of benefits under 
 
         various federal and state benefit programs.  The contentions of 
 
         defendant are much more convincing.  The allowant of a pension is 
 
         not one of the factors of industrial disability delineated by the 
 
         courts of this state and the industrial commissioner.  Also, if 
 
         there are compelling reasons for some sort of offsetting to occur 
 
         to prevent multiple receipt of disability benefits, this should 
 
         be done by the state legislature or the courts, certainly not by 
 
         an administrative agency without statutory authority to do so.
 
         
 
              Based upon the finding of a 40 percent loss of earning 
 
         capacity or industrial disability as a result of an injury to the 
 
         body as a whole, claimant is entitled as a matter of law to 200 
 
         weeks of permanent partial disability benefits under Iowa Code 
 
         section 85.34(2)(u) which is 40 percent of the 500 weeks 
 
         allowable for an injury to the body as a whole in that 
 
         subsection.
 
         
 
              III.  Employers are obligated to furnish all reasonable 
 
         medical services for treatment of a work injury under Iowa Code 
 
         section 85.27 and only reasonable fees are to be reimbursed for 
 
         such services and for any independent disability evaluation under 
 
         Iowa Code section 85.39.
 
         
 
              First, defendant admitted to a work injury in this case and 
 
         consequently had the right to choose the medical care under Iowa 
 
         Code section 85.27.  Kindhart v. Fort Des Moines Hotel, Appeal 
 
         Decision, Filed March 27, 1985.  As the services of Dr. Ahn were 
 
         not authorized and it was found that claimant's impatience with 
 
         Dr. Stark was unreasonable, claimant is not entitled under law to 
 
         reimbursement for the $40 expense he incurred with Dr. Ahn 
 

 
         
 
         
 
         
 
         BARKDOLL V. AMERICAN FREIGHT SYSTEM, INC.
 
         Page   9
 
         
 
         
 
         despite the fact that such services were probably  reasonable.
 
         
 
              Second, claimant's travel to and from Dr. Stark's office in 
 
         October, 1984, totalling 160 miles is a valid medical expense and 
 
         he should receive mileage reimbursement pursuant to Division of 
 
         Industrial Services Rule 343-8.1 at the rate of $.24 per mile or 
 
         a total of $38.40.
 
         
 
              Third, the only issue that remains to be decided after an 
 
         order from this agency approving an independent examiner under 
 
         Iowa Code section 85.39 is the reasonableness of the fee charged. 
 
          The finding that such a fee is reasonable under the party's 
 
         stipulation in the prehearing report entitles claimant to full 
 
         reimbursement of the fee charged in the amount of $631.00.
 
         
 
              Claimant seeks taxation of costs in this proceeding pursuant 
 
         to Division of Industrial Services Rule 343-4.33 and the parties 
 
         stipulated that claimant was paid the amounts listed in the 
 
         attachment to the prehearing report.  Therefore, claimant is 
 
         entitled to taxation of all amounts listed in the total amount of 
 
         $95.50.
 
         
 
                                      ORDER
 
         
 
              IT IS THEREFORE ORDERED as follows:
 
         
 
              1.  Defendant shall pay to claimant two hundred (200) weeks 
 
         of permanent partial disability benefits at the rate of two 
 
         hundred seventy-five and 37/100 dollars ($275.37) per week from 
 
         April 19, 1985.
 
         
 
              2.  Defendant shall pay to claimant healing period benefits 
 
         from August 30, 1984 through April 18, 1985 at the rate of two 
 
         hundred seventy-five and 37/100 dollars ($275.37) per week.
 
         
 
              3.  Defendant shall pay to claimant the following medical 
 
         expenses: medical mileage, thirty-eight and 40/100 dollars 
 
         ($38.40); and the fee for Dr. Walker's exam, six hundred 
 
         seventy-one and no/100 dollars ($671.00).
 
         
 
              4.  Defendant shall pay accrued weekly benefits in a lump 
 
         sum and shall receive credit against this award for all benefits 
 
         previously paid.
 
         
 
              5.  Defendant shall pay interest on benefits awarded herein 
 
         as setforth in Iowa Code section 85.30.
 
         
 
              6.  Defendant shall pay the cost of this action pursuant to 
 
         Division of Industrial Services Rule 343-4.33 and specifically 
 
         the sum of ninety-five and 50/100 dollars ($95.50) is taxed 
 
         against the defendant for costs setforth in the attachment to the 
 
         prehearing report filed in this proceeding.
 
         
 
              7.  Defendant shall file activity reports on the payment of 
 
         this award as requested by this agency pursuant to Division of 
 
         Industrial Services Rule 343-3.1.
 
         
 

 
         
 
         
 
         
 
         BARKDOLL V. AMERICAN FREIGHT SYSTEM, INC.
 
         Page  10
 
         
 
         
 
         
 
         
 
              Signed and filed this 13th day of May, 1987.
 
         
 
         
 
         
 
         
 
         
 
         
 
                                            LARRY P. WALSHIRE
 
                                            DEPUTY INDUSTRIAL COMMISSIONER
 
         
 
         Copies To:
 
         
 
         Mr. Thomas M. Wertz
 
         Attorney at Law
 
         4089 21st Avenue, SW
 
         Suite 114
 
         Cedar Rapids, Iowa 52404
 
         
 
         Mr. W. C. Hoffmann
 
         Attorney at Law
 
         1000 Des Moines Bldg.
 
         Des Moines, Iowa 50306
 
         
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                                 1803
 
                                                 Filed May 13, 1987
 
                                                 LARRY P. WALSHIRE
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         KARL BARKDOLL,
 
         
 
              Claimant,                       FILE NOS. 816913 & 778471
 
         
 
         VS.                                    A R B I T R A T I 0 N
 
         
 
         AMERICAN FREIGHT SYSTEM, INC.,            D E C I S I 0 N
 
         
 
              Employer,
 
              Self-Insured,
 
              Defendant.
 
         
 
         
 
         
 
         1803
 
         
 
              A significant permanent partial impairment is found to have 
 
         resulted from one of the work injuries claimed in the proceeding. 
 
          As a result, claimant was awarded benefits for 40 percent 
 
         industrial disability.  It was held that the existence of pension 
 
         benefits or the fact that the pension benefits are lower than 
 
         what should have been had he not had the work injury is 
 
         irrelevant to the concept of industrial disability in this state.  
 
         Should there be any offsetting of disability benefits to prevent 
 
         multiple receipt of disability benefits under various federal and 
 
         state programs, this offsetting should be done by the legislature 
 
         or the courts and not by an administrative agency.
 
 
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         STEVEN J. NIELSEN
 
         
 
              Claimant,                               File No. 816916
 
         
 
         vs.                                            A P P E A L
 
         
 
         PETERSON MOTOR COMPANY,                      D E C I S I O N
 
         
 
              Employer,
 
                                                         F I L E D
 
         and
 
                                                        DEC 18 1989
 
         IOWA AUTOMOBILE DEALERS
 
         ASSOCIATION,                               INDUSTRIAL SERVICES
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
                              STATEMENT OF THE CASE
 
         
 
              Claimant appeals from an arbitration decision denying 
 
         claimant any benefits.
 
         
 
              The record on appeal consists of the transcript of the 
 
         arbitration hearing; claimant's exhibits 1 through 12; and 
 
         defendants' exhibits A through N.  Both parties filed briefs on 
 
         appeal.
 
         
 
                                   ISSUES
 
         
 
              The dispositive issue on appeal is whether claimant suffered 
 
         an injury on May 2, 1984 that arose out of and in the course of 
 
         his employment.
 
         
 
                            REVIEW OF THE EVIDENCE
 
         
 
              The arbitration decision filed December 29, 1988 adequately 
 
         and accurately reflects the pertinent evidence and it will.not be 
 
         reiterated here.
 
         
 
                                   APPLICABLE LAW
 
         
 
              The citations of law in the arbitration decision are 
 
         appropriate to the issues and evidence.
 
         
 
                                     ANALYSIS
 
         
 
              The crucial factual issue to be determined in this case is 
 
         whether claimant ran an errand for his employer over his lunch 
 
         hour.  On October 18, 1984 (approximately 5 1/2 months after the 
 
         accident) claimant gave a deposition as part of a third party 
 
                                                
 
                                                         
 
         action.  Claimant also testified in this matter at a deposition 
 
         taken October 22, 1986 and at the arbitration hearing November 
 
         12, 1987.  Except for the question of what route claimant took 
 
         and whether he actually stopped at another car dealership to 
 
         examine a car, the three testimonies of claimant are very 
 
         similar.  All three times claimant consistently specified the 
 
         times involved, the locations and distances involved, and how the 
 
         accident occurred.  In his first deposition he described a route 
 
         of travel that did not include a stop for the alleged errand.  
 
         Other testimony given by claimant in that deposition was very 
 
         detailed and specific.  He recalled specifically stopping at a 
 
         stop sign, approaching an intersection with a stop light that was 
 
         yellow and stopping for the stop light, and traveling in certain 
 
         lanes of traffic.  The allegation in claimant's appeal brief that 
 
         claimant was confused in giving the deposition in October 1984 is 
 
         simply not believable.  The questions were straight forward and 
 
         claimant's answers were very specific and responsive to the 
 
         questions.
 
         
 
              There are other discrepancies in the evidence that claimant 
 
         in fact did examine a car at another car dealership.  The 
 
         description given by the claimant in October 1986 "just get 
 
         underneath the hood...and just peel the sheathe open" (Exhibit L, 
 
         Page 20, Lines 2-4) and the car was unlocked lead to the 
 
         conclusion that claimant looked under the hood (in the engine 
 
         compartment) of an unlocked car.  Claimant's testimony at the 
 
         hearing (Transcript, p. 19, line 11) gives the impression that he 
 
         crawled underneath the car.  The testimony of the other car 
 
         dealer was that the cars on the lot would be locked.
 
         
 
              Another aspect of the testimony that indicates that claimant 
 
         did not stop at the new car dealership is the time involved in 
 
         this case.  The times described by claimant (three-four minutes 
 
         to drive to the new car dealership and five minutes to examine 
 
         the vehicle) do not allow claimant enough time to run the errand 
 
         and to return to work in time to punch the time clock by one 
 
         o'clock. Likewise, the time necessary for the alleged errand 
 
         would not have allowed sufficient time for the errand, the 
 
         accident, and notification of claimant's wife by the time she 
 
         indicated (1:08 p.m.).  The more believable time frame would be 
 
         that time frame that claimant took the route he described in his 
 
         deposition in October 1984.
 
         
 
              When all the evidence in this case is considered, it is 
 
         clear that claimant has not proved that he ran an errand for the 
 
         employer and stopped at another car dealership over the lunch 
 
         hour.  To the contrary, the evidence shows that claimant did not 
 
         make the stop as he alleges.  It is worth noting that there is no 
 
         evidence to corroborate claimant's testimony that he did in fact 
 
         make the stop as he alleged.  Claimant was enroute to and from 
 
         his home over the lunch hour and was not engaged in his 
 
         employer's business at the time of the accident.  Claimant has 
 
         not proved that he suffered an injury that arose out of and in 
 
         the course of his employment.
 
         
 
                                                
 
                                                         
 
              1.  Claimant was injured on May 2, 1984 when his motorcycle 
 
         collided with a car while claimant was returning from his lunch 
 
         break to his employer's place of business.
 
         
 
              2.  Claimant was not a credible witness.
 
         
 
              3.  Claimant did not stop at another car dealership between 
 
         noon and 1:08 p.m. on May 2, 1984.
 
         
 
              4.  Claimant did not examine a car to check its electrical 
 
         wiring at another car dealership between noon and 1:08 p.m. on 
 
         May 2, 1984.
 
         
 
              5.  Claimant did not run an errand on May 2, 1984 for his 
 
         employer over claimant's lunch hour.
 
         
 
              6.  Claimant was not injured while engaged in his employer's 
 
         business on May 2, 1984.
 
         
 
                              CONCLUSION OF LAW
 
         
 
              Claimant has not proved that he suffered an injury on May 2, 
 
         1984 that arose out of and in the course of his employment.
 
         
 
              WHEREFORE, the decision of the deputy is affirmed.
 
         
 
                                      ORDER
 
         
 
              THEREFORE, it is ordered:
 
         
 
              That claimant take nothing from this proceeding.
 
         
 
              That claimant pay costs of this proceeding including costs 
 
         of transcribing the arbitration hearing pursuant to Division of 
 
         Industrial Services Rule 343-4.33.
 
         
 
              Signed and filed this 18th day of December, 1989.
 
         
 
         
 
         
 
         
 
         
 
         
 
                                               DAVID E. LINQUIST
 
                                            INDUSTRIAL COMMISSIONER
 
         
 
         Copies To:
 
         
 
         Mr. James A. Schall
 
         Attorney at Law
 
         505 Erie Street
 
         Box 1052
 
         Storm Lake, Iowa  50588
 
         
 
         Mr. Frank T. Harrison
 
                                                
 
                                                         
 
         Attorney at Law
 
         Terrace Center, Suite 111
 
         2700 Grand Avenue
 
         Des Moines, Iowa  50312
 
 
 
         
 
 
            
 
 
 
 
 
            
 
 
 
                                       1100, 1104, 1107
 
                                       Filed December 18, 1989
 
                                       DAVID E. LINQUIST
 
         
 
                    BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         STEVEN J. NIELSEN,
 
         
 
              Claimant,
 
         
 
         vs.
 
                                                    File No. 816916
 
         PETERSON MOTOR COMPANY,
 
                                                     A P P E A L
 
              Employer,
 
                                                    D E C I S I 0 N
 
         and
 
         
 
         IOWA AUTOMOBILE DEALERS
 
         ASSOCIATION,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         1100, 1104, 1107
 
         
 
              Claimant failed to show injury which arose out of and in the 
 
         course of employment on purely factual basis.  Analysis centers 
 
         on discrepancies in testimony given.  Claimant contended he had 
 
         undertaken a business errand while returning from personal "off 
 
         the clock" lunch hour.  Deputy affirmed on appeal.
 
         
 
         
 
         
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
                                                
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                   BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         
 
         STEVEN J. NIELSEN,
 
         
 
              Claimant,
 
         
 
         vs.
 
                                               File No. 816916
 
         PETERSON MOTOR COMPANY,
 
                                            A R B I T R A T I O N
 
              Employer,
 
                                               D E C I S I O N
 
         and
 
         
 
         IOWA AUTOMOBILE DEALERS ASSOCIATION,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
                                   INTRODUCTION
 
         
 
              This is a proceeding in arbitration brought by the claimant, 
 
         Steven J. Nielsen, against his employer, Peterson Motor Company, 
 
         and its insurance carrier, Iowa Automobile Dealers Association, 
 
         to recover benefits under the Iowa Workers' Compensation Act as a 
 
         result of an injury allegedly sustained May 2, 1984.  This matter 
 
         came on for hearing before the undersigned deputy industrial 
 
         commissioner at Storm Lake, Iowa on November 12, 1987.  A first 
 
         report of injury was filed on May 14, 1986.  Defendants have 
 
         denied liability and no payments have been made.  The record in 
 
         this proceeding consist; of the testimony of claimant, of 
 
         claimant's spouse, Connie Nielsen, of Larry Godfredson, of Debra 
 
         Foster, of Michael H. Binder, of Scott Schuelke and of Jo Weeces 
 
         as well as of claimants exhibits 1 through 12 and defendants' 
 
         exhibits A through N.
 
         
 
                                    ISSUES
 
         
 
              Pursuant to the pre-hearing report, the parties stipulated 
 
         that claimant's rate of weekly compensation, in the event of an 
 
         award, is $219.55; that claimant's medical costs were fair and 
 
         reasonable as set forth in the submitted stipulations; and, that 
 
         claimant has had permanent and temporary disability related to 
 
         his motor vehicle accident.
 
         
 
              The issues remaining for resolution are:
 
         
 
              1.  Whether claimant received an injury which arose out of 
 
         and in the course of his employment;
 
         
 
              2.  Whether there is a causal relationship between that 
 
         injury and claimant's disability;
 
         
 
              3.  Whether claimant is entitled to benefits and the nature 
 
         and extent of any benefit entitlement;
 
         
 

 
         
 
         
 
         
 
         NIELSEN V. PETERSON MOTOR COMPANY
 
         PAGE   2
 
         
 
         
 
              4.  Whether claimant is entitled to payment of certain 
 
         medical costs as causally related to his injury, as authorized by 
 
         defendants, and as reasonable and necessary medical treatment for 
 
         the injury; and,
 
         
 
              5.  Whether defendants are entitled to credit pursuant to 
 
         Iowa Code section 85.22 for payments made to claimant or on 
 
         claimant's behalf or to be relayed to claimant or on claimant's 
 
         behalf out of a third party settlement.
 
         
 
              Defendants sought to include the issue of whether claimant 
 
         gave proper notice of his injury under section 85.23.  As the 
 
         issue was not preserved at the time of pre-hearing conference and 
 
         as it was not noted on the hearing assignment order or on the 
 
         conference notes of the deputy conducting the pre-hearing at 
 
         which this matter was assigned for hearing, defendants have not 
 
         preserved that issue and it all not be considered.
 
         
 
                              REVIEW OF THE EVIDENCE
 
         
 
              Claimant was born November 15, 1949.  He reported that he 
 
         owes Lee Myler, D.C., $1,936.80 for treatment on his behalf.  
 
         Apparently his group health insurance paid part of that bill.
 
         
 
              Claimant testified that he began working for Peterson Motor 
 
         Company in December, 1983 with Larry Godfredson as his immediate 
 
         supervisor.  Claimant was an auto body repairer.  Claimant 
 
         reported that, on May 2, 1984, he was working on a Dodge 600 and 
 
         having problems with the wiring harness.  He testified that he 
 
         sought Larry Godfredson's permission to check out the wiring 
 
         color code on a Plymouth Caravelle at Schuelke's Chrysler 
 
         dealership.  Apparently the two models are similar.  Claimant 
 
         reported that Mr. Godfredson gave him permission to check the 
 
         other vehicle over his lunch hour.  Claimant testified it was not 
 
         unusual for auto repairers to check on other cars.  Claimant 
 
         reported that, when they did so on their personal time, they used 
 
         their personal vehicles, although, if they were running such 
 
         errands on clock time, they used shop vehicles.  Claimant 
 
         reported he intended to run the errand over his lunch hour which 
 
         was "off the clock" and to use his personal motorcycle.
 
         
 
              At hearing, claimant described his activities from 12:00 
 
         p.m. onward on May 2, 1984 thusly:  He left work at approximately 
 
         12:00 p.m. and went to his own home, approximately a mile from 
 
         the Peterson Body Shop, for lunch.  After lunch, he left his home 
 
         at approximately 12:50 p.m. and drove south approximately three 
 
         and one-half blocks across Flindt Drive to Seneca which he took 
 
         to 5th Street where Schuelke's dealership was located.  Claimant 
 
         described this as involving a travel time of approximately three 
 
         to four minutes.  Claimant stated that, at Schuelkes, he crawled 
 
         under a car in Schuelke's lot to check out the wiring.  He 
 
         reported that he saw no one on the lot.  It took approximately 
 
         five minutes to check the wiring.  Claimant left Schuelke's and 
 
         returned to Flindt Drive and from there onward toward Peterson's. 
 
          Claimant agreed that this was not the most direct route back to 
 
         Peterson's, but stated that he was not pressed for time and 
 
         enjoyed the ride which was from three to five minutes longer than 
 
         the direct route would have been.  Claimant agreed that he had 
 
         described the route differently in his deposition taken October, 
 
         1984.  He stated that, at that time, he believed the deposer 
 
         wanted to know the route he generally took from his home to work.  
 
         Claimant also stated that he had never gone up Main Street as was 
 
         reported in the adjustor's statement which he signed on June 14, 
 

 
         
 
         
 
         
 
         NIELSEN V. PETERSON MOTOR COMPANY
 
         PAGE   3
 
         
 
         
 
         1986.
 
         
 
              Claimant's motorcycle collided with a car at the 
 
         intersection of Milwaukee and Ontario as claimant was traveling 
 
         east on Milwaukee approximately one and one-half blocks from 
 
         Peterson's.  Claimant reported that his wife and Larry Godfredson 
 
         arrived at the scene.
 
         
 
              Claimant had sustained head lacerations, a broken clavicle 
 
         and a commuted fracture of the acetabulum.
 
         
 
              Claimant stated that he has not been employed since the 
 
         accident and that he has continuing problems with his hip, back 
 
         and knee.  He reported that he now has low back pain as a result 
 
         of the arthritis in his hip.  Claimant testified that his 
 
         activities are restricted as described by his physicians and that 
 
         furthermore he cannot walk for more than two to four blocks 
 
         without pain and cannot ride for more than an hour without a 
 
         break.  Sitting bothers claimant.
 
         
 
              Claimant has enrolled in Buena Vista College with a business 
 
         and finance major.  He has a projected May, 1988 graduation date. 
 
          Claimant is now on social security.  He reported that his wife 
 
         terminated her employment with Kentucky Fried Chicken as she felt 
 
         the need to be at home to manage matters.  Claimant reported that 
 
         he cannot accept a job outside of the immediate Storm Lake area 
 
         because he has to care for his mother who was hospitalized for a 
 
         life-long depressive disorder following his father's death in 
 
         December, 1986.  Claimant described his mother as not eating, not 
 
         answering the phone and not conducting other life activities.  He 
 
         reported that he must pay her bills, make her bank deposits, 
 
         manage her rental property and buy her groceries.  Claimant has a 
 
         43-year-old brother and a 23-year-old sister who live in the 
 
         Storm Lake area.  He reported that each has a full-time job.  The 
 
         brother reportedly travels on-the-job.  Claimant is not his 
 
         mother's guardian or conservator.  He stated his mother's 
 
         preference that one not be appointed.  Claimant's mother has 
 
         refused further psychiatric care other than that received in her 
 
         one-week hospitalization.
 
         
 
              Claimant described the "flagging system" in the Peterson 
 
         Auto Body Shop as a system whereby a worker accrued actual labor 
 
         hours on a vehicle which were then charged against the worker's 
 
         clock hours to determine the worker's commission.  He reported 
 
         that it was possible to have more labor hours on a vehicle even 
 
         if all flag hours were used.  Claimant did not know if all flag 
 
         hours had been used on the Dodge 600 as of May 2, 1984, but 
 
         reported that beyond the wiring, only cosmetic things needed to 
 
         be completed on the vehicle at that time.
 
         
 
              Claimant described the third party settlement arrived at 
 
         with the driver of the vehicle with which his motorcycle 
 
         collided.  He reported that the gross recovery was $293,000 with 
 
         periodic payments over 25 years.  Of that amount, claimant's 
 
         attorney was to receive one-third of the gross as attorney fee 
 
         plus expenses.  Claimant reported that it was his desire to pay 
 
         the attorney first.  Periodic payments also include amounts for 
 
         attorney's fees with claimant receiving net amounts of periodic 
 
         payments.
 
         
 
              Connie Nielsen, claimant's spouse, testified at hearing that 
 
         claimant did not mention he planned on stopping at Schuelke's at 
 
         lunch time on May 2, 1984.  She reported that claimant did run 
 

 
         
 
         
 
         
 
         NIELSEN V. PETERSON MOTOR COMPANY
 
         PAGE   4
 
         
 
         
 
         errands over his noon hour, however.  She testified that claimant 
 
         generally left at approximately 12:55 to return to work, but left 
 
         at 12:50 on May 2, 1984.  Mrs. Nielsen learned of claimant's 
 
         accident via a phone call at 1:08 p.m.
 
         
 
              In his deposition taken October 24, 1984, claimant testified 
 
         that his wage at Peterson Motors was $5.50 per hour plus 43.5% of 
 
         labor.  He described lunch hour as from 12:00 to 1:00 p.m.  
 
         Employees clocked in and out over lunch.  Claimant testified the 
 
         timing of lunch and apparently the time for lunch was "fairly 
 
         flexible", although it "cut into commission if (one) (were) not 
 
         working."  Claimant described himself as having driven home for 
 
         lunch on May 2, 1984 and having driven back to work at between 
 
         ten and seven minutes before 1:00 p.m.  He stated that, on his 
 
         trip back to work, he only stopped for signals and did "no 
 
         errands or things of that nature."  Claimant reported that all of 
 
         his medical were paid through the employer-funded group policy 
 
         and that he also received employer-funded group disability 
 
         insurance while off on account of the accident.  The deposer 
 
         asked claimant if there were anything he wished cleared up or 
 
         anything he did not understand.  Claimant replied that there were 
 
         no such matters.  Claimant then described his route back from 
 
         lunch as going straight down from Seneca to Flindt Drive with a 
 
         right turn in a westerly direction in the farthest lane where he 
 
         continued in a westerly direction on Milwaukee.  He stated the 
 
         accident occurred approximately one block beyond Casey's General 
 
         Store and two blocks before Peterson's at the intersection of 
 
         West Milwaukee and North Ontario.
 
         
 
              In his deposition taken October, 1986, claimant testified 
 
         that he remained at home at lunch time for approximately 45-50 
 
         minutes and then proceeded from his home to North Seneca.  He 
 
         then reported traveling south on North Seneca to Fifth Street.  
 
         He stated he went west on Fifth to Schuelke's and, after leaving 
 
         Schuelke's went east on Fifth to Seneca where he went in a 
 
         northerly, direction to Highway 7 on which Peterson's is located.  
 
         Claimant reported that he was at Schuelke's for approximately 
 
         five minutes, talked to no one and got "under the hood" of a car 
 
         to look at the color coding.  He characterized the car as 
 
         unlocked.
 
         
 
              Richard Peterson, owner-operator of Peterson Motor Company, 
 
         testified by way of his deposition taken June 25, 1987.  Peterson 
 
         indicated that the flags indicate that claimant was working on 
 
         the Dodge 600 on the morning of his accident.  He reported that, 
 
         under the flag system, it is very difficult to use flags to say 
 
         precisely what an individual is working on at a given time, but 
 
         that the management is very careful to flag a worker for time 
 
         spent on a particular job.  Peterson stated it would be very 
 
         uncommon for body shop technicians to use their own vehicles for 
 
         errand running.  He reported, however, that a technician might 
 
         pick up a needed part if no one else was available to do so and 
 
         the worker was "snowballed" until the part was available.  
 
         Peterson characterized "as uncommon" body shop technicians 
 
         checking other models or similar models at other dealerships if 
 
         they ran into a particular problem.  He agreed that claimant had 
 
         seen very few Dodge 600's [in May, 1984].  He stated he had never 
 
         been made aware that claimant had gone to Schuelke's on May 2, 
 
         1984 and that he did not know whether Larry Godfredson had 
 
         authorized claimant to check at Schuelke's on similar models.  
 
         Peterson indicated that the flag system reflects that technician 
 
         number 10 did clean-up on the Dodge 600 after May 2, 1984.  It 
 
         does not reflect that lights were changed or repaired after May 
 

 
         
 
         
 
         
 
         NIELSEN V. PETERSON MOTOR COMPANY
 
         PAGE   5
 
         
 
         
 
         2, 1984.  Peterson reported that his first knowledge of the 
 
         workers' compensation claim came on April 11, 1986 when he was 
 
         served with claimant's petition.  Peterson reported that he or 
 
         his office manager would be the appropriate individuals to be 
 
         notified of any workers' compensation claim.  He reported that 
 
         Godfredson had never notified him of any workers' compensation 
 
         claim on behalf of claimant and that, had Godfredson had any 
 
         inclination claimant had a workers' compensation claim, he would 
 
         have so notified as Godfredson was "very paranoid about things 
 
         like that."  Peterson reported that he talked to claimant's 
 
         spouse on numerous occasions following the accident when she came 
 
         to file claimant's disability claims and pick up claimant's 
 
         disability checks.
 
         
 
              Scott Schuelke testified that he owns the Chrysler Plymouth 
 
         Dodge dealership in Storm Lake.  He stated that keeps new cars in 
 
         the showroom and on an outside lot approximately 180 feet by 100 
 
         feet.  He reported that new cars are locked unless a model is 
 
         being shown.  He did not believe that one could see the wiring 
 
         harness on a Dodge 600 by looking under the car; one would need 
 
         to raise the hood to see the harness.
 
         
 
              Larry Godfredson testified that claimant had discussed his 
 
         problems with the wiring on the Dodge 600 on May 2, 1984 and that 
 
         Godfredson had authorized claimant to find a car on which to 
 
         check the wiring.  Godfredson reported that he had told Debra 
 
         Foster that claimant would be late getting back to work after 
 
         lunch.  Godfredson said that he at times used Deb Foster and 
 
         claimant to run errands or pick up items on their way back from 
 
         lunch.  Godfredson stated it would be proper to look under a car 
 
         to check the wiring harness as that end of the wiring harness 
 
         could not be seen from the top.  He agreed that he had settled a 
 
         law suit against Peterson Motor Company in which he had paid 
 
         funds to Peterson.  Claimant's attorney in this claim was 
 
         Godfredson's attorney in that action.
 
         
 
              Debra Foster testified that she was an assistant manager at 
 
         the Peterson Motor Company Body Shop from October, 1983 through 
 
         April, 1985 when the shop closed.  She reported that Godfredson 
 
         told her that claimant might be late coming back from lunch on 
 
         May 2, 1984 as claimant was looking at a car.  Foster 
 
         characterized the Dodge 600 as "overflagged" when work was 
 
         completed after claimant's accident.  She reported that the only 
 
         flagging which would have taken place following May 2, 1984 would 
 
         have involved mechanical work or clean-up.  She reported that 
 
         claimant had gone to Schuelkes a number of times before May 2, 
 
         1984 and that, while there, he would look at body repair manuals.  
 
         She stated that crawling under the car was about the only way to 
 
         look at the wiring and stated that claimant would take a longer 
 
         route back to work if he could following an errand.
 
         
 
              Jo Weeces testified that she has had three years experience 
 
         as a vocational rehabilitation counsel with the state of Iowa.  
 
         She understood that claimant could not return to auto body 
 
         technician work, but could do sedentary and semi-sedentary work 
 
         with semi-sedentary work being preferable as it would allow 
 
         claimant to change position.  She reported that, while claimant 
 
         began college work in February, 1985 with a business finance 
 
         major, she now would advise that claimant obtain a second major 
 
         or minor since his mother's health makes relocation no longer 
 
         feasible.  She reported that there would be little or no 
 
         employment opportunities for a business and finance major in the 
 
         Storm Lake area, but agreed that she had not done a labor survey 
 

 
         
 
         
 
         
 
         NIELSEN V. PETERSON MOTOR COMPANY
 
         PAGE   6
 
         
 
         
 
         or job placement activities nor attempted Job Training 
 
         Partnership Act placement for claimant.  Ms. Weeces stated that a 
 
         beginning banking job would pay approximately $10,000 per year 
 
         and reported that a high starting salary would be necessary for a 
 
         family of three if the family income from the job would be 
 
         sufficient to exceed amounts receivable from Social Security and 
 
         medical benefits.
 
         
 
              Michael H. Binder identified himself as an assistant 
 
         professor in business administration at Buena Vista College.  He 
 
         reported that he has worked at the college since September, 1975 
 
         and has a Master of Arts Degree in business administration as 
 
         well postgraduate training.  Claimant was characterized as a C 
 
         student by Mr. Binder and by Ms. Weeces.  Binder opined that 
 
         employment opportunities for finance majors were very poor.
 
         
 
              Binder had reviewed exhibit 11, an outline of claimant's 
 
         third party structured settlement, and then compiled exhibit 12 
 
         which he characterized as an economic analysis of the structured 
 
         settlement.  Binder reported that he had used a discount factor 
 
         of eight percent to ascertain the present value of the structured 
 
         settlement.  He characterized eight percent as a very 
 
         conservative discount factor and stated that a higher discount 
 
         factor would decrease the value of the structured settlement, 
 
         while a lower discount factor would increase the value of the 
 
         settlement.  Binder reported that, with an eight percent discount 
 
         factor, the present value of the structured settlement after 
 
         attorney's fees and expenses equals $55,355.81.  Binder stated 
 

 
         
 
         
 
         
 
         NIELSEN V. PETERSON MOTOR COMPANY
 
         PAGE   7
 
         
 
         
 
         that, to ascertain the present value of the overall structured 
 
         settlement, one would need to add:  (1) the value of legal fees 
 
         already paid, that is, $64,266.66, (2) legal fees to be paid at 
 
         their present value, that is, $17,290.65 and (3) the present 
 
         value of net payments to claimant, that is, $55,355.81.  When 
 
         those figures are added, the present value of the overall 
 
         structured settlement is $136,913.22.
 
         
 
              Binder stated that the College of Business and Finance 
 
         graduates approximately 25-30 finance majors per year and, of 
 
         that number, 15-25 find employment in banking and finance related 
 
         jobs.  Claimant reported that an individual with an undergraduate 
 
         degree in business and finance would generally earn from 
 
         $12,000-$17,000 per year.
 
         
 
              David G. Paulsrud, M.D., testified by way of his deposition 
 
         taken October 9, 1985.  Dr. Paulsrud is an orthopaedic surgeon 
 
         who treated claimant for a fractured collarbone and commuted 
 
         fragment fracture of the acetabulum.  He descried the acetabulum 
 
         as the bony cup making up one side of the hip joint with the ball 
 
         at the top of the thigh being the other side.  He reported that 
 
         "the cup" fits into the ball and the cup had burst in the injury.  
 
         Paulsrud last saw claimant on May 21, 1985 at which time claimant 
 
         could rotate his hip no more than a few degrees, but could bend 
 
         the hip to a right angle.  Dr. Paulsrud stated claimant then had 
 
         evidence of post-traumatic arthritis of the left hip and knee 
 
         with the arthritis most severe in the hip.  The doctor opined 
 
         that claimant had a 30% permanent partial impairment of the lower 
 
         extremity and that claimant would be restricted from prolonged 
 
         walking, standing and from repetitive stooping or bending or 
 
         heavy lifting.  He opined it was probable that claimant would 
 
         require hip joint replacement at some date, but that it was 
 
         hopeful that such could be put off as long as possible.  He 
 
         stated that limited activity would prolong the time before hip 
 
         joint replacement would be required and that such could be 
 
         required at any time from two to twenty years.  Paulsrud stated 
 
         that a younger person [such as claimant] might need subsequent 
 
         hip joint replacement surgeries as well as initial results tend 
 
         to be poor with a younger individual.  Paulsrud reported that he 
 
         has no recommended chiropractic treatment for claimant.  He 
 
         reported that weight loss would aid claimant's recovery and he 
 
         has recommended such, but claimant has not shown significant 
 
         weight loss.  Medical reports reflect that claimant weighs 
 
         approximately 270 pounds.
 
         
 
              Sidney A. Steck, D.C., testified at the hearing that he 
 
         graduated from the Palmer College of Chiropractic in 1964.  He 
 
         initially examined and subsequently re-examined and evaluated 
 
         claimant on November 9, 1987.  Steck initially opined that 
 
         claimant was 45%-55% permanently totally disabled [sic] as far as 
 
         the left hip and 40%-50% permanently totally disabled [sic] as 
 
         far as the lumbar spine.  He testified that he had used a guide, 
 
         albeit not the AMA guide, and had also used his own experience at 
 
         arriving at those ratings.  Steck stated that claimant had a 100% 
 
         permanent disability from performing auto mechanic work or auto 
 
         body technician work as claimant could do no prolonged standing, 
 
         walking, repetitive stooping, bending or heavy lifting.  Steck 
 
         opined that claimant's lumbar spine injury resulted directly from 
 
         the hip injury.  Steck opined that, on seeing claimant on 
 
         November 9, 1987, he then felt claimant was 100% disabled from 
 
         any occupation, including sedentary work as claimant would need 
 
         to move about every hour to hour and one-half.  Steck stated 
 
         that, on the November 9, 1987 examination, he found claimant's 
 

 
         
 
         
 
         
 
         NIELSEN V. PETERSON MOTOR COMPANY
 
         PAGE   8
 
         
 
         
 
         condition had deteriorated as claimant had arthritis causing 
 
         deterioration of the disc space between L5 and Sl with curvature 
 
         of the lumbar spine.  Steck reviewed x-rays at hearing and 
 
         described those as showing a condition of a vascular necrosis 
 
         with subsequent deterioration of the femur head and arthritis in 
 
         the hip joint.
 
         
 
              Medical reports in evidence are consistent with the doctors' 
 
         testimony.
 
         
 
                           APPLICABLE LAW AND ANALYSIS
 
         
 
              Our first concern is whether claimant received an injury 
 
         which arose out of and in the course of his employment.
 
         
 
              Claimant has the burden of proving by a preponderance of the 
 
         evidence that he received an injury on May 2, 1984 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).
 
         
 
              An employee is entitled to compensation for any and all 
 
         personal injuries which arise out of and in the course of the 
 
         employment.  Section 85.3(l).
 
         
 
              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 words "out of" refer to the cause or source of the 
 
         injury.  Crowe v. DeSoto Consol. Sch. Dist., 246 Iowa 402, 68 
 
         N.W.2d 63 (1955).
 
         
 
              The words "in the course of" refer to the time and place and 
 
         circumstances of the injury.  McClure v. Union et al. Counties, 
 
         188 N.W.2d 283 (Iowa 1971); Crowe v. DeSoto Consol. Sch. Dist., 
 
         246 Iowa 402, 68 N.W.2d 63 (1955).
 
         
 
              "An injury occurs in the course of the employment when it is 
 
         within the period of employment at a place the employee may 
 
         reasonably be, and while he is doing his work or something 
 
         incidental to it."  Cedar Rapids Comm. Sch. Dist. v. Cady, 278 
 
         N.W.2d 298 (Iowa 1979); McClure v. Union et al. Counties, 188 
 
         N.W.2d 283 (Iowa 1971); Musselman v. Central Telephone Co., 261 
 
         Iowa 352, 154 N.W.2d 128 (1967).
 
         
 
              Section 85.61(6) provides:
 
         
 
              The words "personal injury arising out of and in the 
 
              course of the employment" shall include injuries to 
 
              employees whose services are being performed on, in, or 
 
              about the premises which are occupied, used, or 
 
              controlled by the employer, and also injuries to those 
 
              who are engaged elsewhere in places where their 
 
              employer's business requires their presence and 
 
              subjects them to dangers incident to the business.
 
         
 
              In Otto v. Independent Sch. Dist., 237 Iowa 991, 994, 23 
 
         N.W.2d 915 (1946), the Court stated:
 
         
 

 
         
 
         
 
         
 
         NIELSEN V. PETERSON MOTOR COMPANY
 
         PAGE   9
 
         
 
         
 
              A case involving an injury from a "street accident" 
 
              suffered while en route to or from work therefore 
 
              requires a determination whether the employee was 
 
              engaged in his employer's business at the time and 
 
              whether there was causal relation between the injury 
 
              and such employment.  If the first condition he found 
 
              not to exist it becomes unnecessary to consider the 
 
              second.
 
         
 
              In Halstead v. Johnson's Texaco, 64 N.W.2d 757, 759 (Iowa 
 
         1978), the Court stated the following as regards employees having 
 
         regular places and times of work who sustain injuries over their 
 
         lunch period:
 
         
 
              When a worker has a place and hours of work, ordinarily 
 
              he is not considered to be acting within his employment 
 
              while he is on his way to his place of employment or is 
 
              returning to his home or going elsewhere after work.  
 
              This is the going and coming rule.  Bulman v. Sanitary 
 
              Farm Dairies, 247 Iowa 488, 73 N.W.2d 27.  The same 
 
              rule ordinarily applies when the employee has a place 
 
              and hours of work, his hours of work do not include his 
 
              meal period, and he leaves his place of employment to 
 
              go to and return from his meal elsewhere.  The author 
 
              states the principle thus in 1 Larson, Workmen's 
 
              Compensation, p. 4-62:
 
         
 
                   [W]hen the employee has a definite place  and time 
 
                   of work, and the time of work does not include the 
 
                   lunch hour, the trip away and back to the premises 
 
                   for the purpose of getting lunch is 
 
                   indistinguishable in principle from the trip at 
 
                   the beginning and end of the work day, and should 
 
                   be governed by the same rules and exceptions.
 
              ...
 
         
 
              The author continues at p. 4-76:
 
         
 
                   The going and coming rule has so far been treated 
 
                   as substantially identical whether the trip 
 
                   involves the lunch period or the beginning and end 
 
                   of the work day.  This can be justified because 
 
                   normally the duration of the lunch period when 
 
                   lunch is taken off the premises is so substantial 
 
                   and the employee's freedom of movement so complete 
 
                   that the obligations and controls of employment 
 
                   can justifiably be said to be in suspension during 
 
                   the interval.
 
         
 
              Under the principles enunciated in Halstead, claimant cannot 
 
         show an injury arising out of and in the course of his employment 
 
         if claimant were only going about his own business when injured 
 
         while returning to work after lunch on May 2, 1984.  Claimant 
 
         contends that his accident comes within the purview of the 
 
         worker's compensation law in that, after eating lunch at home, he 
 
         left to perform an employer-authorized errand on May 2, 1984 and 
 
         was returning from that errand when injured.  Under the 
 
         principles enunciated in the Otto case, a determination must be 
 
         made as to whether claimant was engaged in the employer's 
 
         business at the time of his street accident.  Claimant contends 
 
         that he was returning from a supervisor-authorized errand at 
 
         Schuelke's Chrysler dealership.  We find the evidence as a whole 
 
         does not support claimant 's contention   Initially, claimant has 
 

 
         
 
         
 
         
 
         NIELSEN V. PETERSON MOTOR COMPANY
 
         PAGE  10
 
         
 
         
 
         given discrepant testimony as to the route  he took on the day of 
 
         the injury.  Claimant described a different route in his 
 
         deposition in  the third party lawsuit.  That deposition was 
 
         taken in October, 1984.  One believes that claimant's 
 
         recollection of events on the day of the accident would have been 
 
         much more fresh at the deposition in October, 1984 than at the 
 
         hearing in November, 1987.  At that deposition, when asked 
 
         exactly what he had done on May 2, 1984, claimant denied that he 
 
         had run errands or made stops but for traffic signals on his 
 
         return trip.  He made no mention of any stop at Schuelkes.  We do 
 
         not accept claimant's testimony that he was confused at that time 
 
         as to whether the deposer wanted his regular route to work or his 
 
         route on May 2, 1984.  The deposer did ask claimant exactly what 
 
         he had done on May 2, 1984.  Such cannot be characterized as a 
 
         confusing question.  Likewise, it appears more reasonable that 
 
         claimant would have thought he was being asked about his route to 
 
         and from work on the date of his accident and not his general 
 
         route to and from work, given that the deposition concerned the 
 
         accident and not claimant's general work activities.
 
         
 
              Furthermore, claimant gave discrepant stories as to how he 
 
         checked vehicle wiring at Schuelkes.  In his initial deposition 
 
         in this workers' compensation claim taken in October, 1986, 
 
         claimant stated that the car he checked was unlocked and he had 
 
         to get under the hood to check the color coding.  At hearing, 
 
         claimant testified that the car was locked and he crawled under 
 
         the vehicle to check the coding.  At both times, claimant 
 
         testified that no one saw him at Schuelkes.  Mr. Schuelke 
 
         reported that new cars on the lot were locked unless a model was 
 
         being shown.  That appears to be the more prudent practice and we 
 
         accept that as credible testimony.  Mr. Schuelke also testified 
 
         that it would be necessary to raise the hood to see the wiring 
 
         harness on a Dodge 600 or a similar model.  While Ms. Foster, Mr. 
 
         Godfredson and claimant all testified that one could see the 
 
         wiring harness by looking under the car, we find Mr. Schuelke's 
 
         testimony more plausible.  It appears unlikely that a car would 
 
         be so designed as to expose the electrical system controlling its 
 
         lights to the elements as would happen were the harness visible 
 
         from the under the car.
 
         
 
              Other perplexities exist in this matter.  Claimant did not 
 
         file his claim until almost two years after his accident.  His 
 
         employer, Mr. Peterson, testified that he was not made aware of 
 
         any work relationship to claimant's accident until receiving the 
 
         original notice hid petition in this matter.  Claimant was 
 
         represented by counsel early on subsequent to his injury.  
 
         Counsel in this workers' compensation matter also represented 
 
         claimant at the time of the deposition in the third party action 
 
         taken in October, 1984.  One assumes that claimant told his 
 
         counsel the relevant events of May 2, 1984.  Claimant collected 
 
         health care benefits and long-term disability benefits under 
 
         employer-sponsored plans after his May 2, 1984 accident.  Our 
 
         experience is that long-term disability benefits generally are 
 
         less on a weekly basis than would be weekly workers' compensation 
 
         benefits.  We find it most confusing that claimant did not 
 
         initiate a claim for workers.compensation benefits at a time 
 
         when, had he received a work-related injury, he would have been 
 
         entitled to temporary total disability or healing period 
 
         benefits.  Likewise, while Mr. Godfredson and Ms. Foster 
 
         testified that claimant had authorization to look at a car at 
 
         Schuelke's over his lunch period on May 2, 1984, the disclosure 
 
         to claimant's counsel of that fact and the disclosure of that 
 
         fact in her testimony at hearing is apparently their first 
 

 
         
 
         
 
         
 
         NIELSEN V. PETERSON MOTOR COMPANY
 
         PAGE  11
 
         
 
         
 
         mention of such fact.  Our experience has been that, when 
 
         significant trauma occurs to a family member or a friend, persons 
 
         in relationship to that individual tend to discuss the facts 
 
         surrounding the trauma.  We find the absence of any discussion of 
 
         the work-related errand early on after May 2, 1984 outside the 
 
         normal pattern of human behavior.  For that reason, we find the 
 
         testimony given at a hearing some three years and five months 
 
         later entitled to lesser weight.  Similarly, the evidence is 
 
         confusing as to whether the wiring on the Dodge 600 had to be 
 
         finished after May 2, 1984.  There is no record of the wiring 
 
         being completed subsequent to that date.  The records only relate 
 
         to mechanical and cleanup work on the car subsequent to that 
 
         date.  Even if one accepts the testimony, again conflicting, that 
 
         not all work on a car was "flagged", one is confused in that Mr. 
 
         Godfredson and Ms. Foster did not testify as to any independent 
 
         recollection of the wiring needing completing after claimant's 
 
         accident.  We again believe that in the normal course, such would 
 
         have been a significant enough disruption of the normal business 
 
         of the body shop caused by claimant's accident that either or 
 
         both of those individuals would have had an independent 
 
         recollection of such.  For all of the above reasons, we find that 
 
         claimant has not shown an injury which arose out of and in the 
 
         course of his employment on May 2, 1984.  As claimant has not 
 
         prevailed on this threshold issue, we need not discuss the other 
 
         issues presented by his claim.
 
         
 
                                 
 
         
 

 
         
 
         
 
         
 
         NIELSEN V. PETERSON MOTOR COMPANY
 
         PAGE  12
 
                                
 
                                
 
                                FINDINGS OF FACT
 
         
 
              WHEREFORE, it is found:
 
         
 
              Claimant was injured on May 2, 1984 when claimant's 
 
         motorcycle collided with a car while claimant was returning from 
 
         his lunch break to his employer's place of business.
 
         
 
              Claimant gave discrepant descriptions of his route back to 
 
         work in his deposition of October, 1984, in his deposition of 
 
         October, 1986, and in his testimony at hearing.
 
         
 
              Claimant gave discrepant testimony at hearing and at his 
 
         deposition in October, 1986 as to how he checked the wiring 
 
         harness on the car at Schuelke's dealership.
 
         
 
              In October, 1986, claimant testified that the car was 
 
         unlocked and he checked the wiring harness under the hood.
 
         
 
              At hearing, claimant testified that the car was locked ad he 
 
         crawled under the car to check the wiring harness.
 
         
 
              New cars on the Schuelke dealership lot are kept locked 
 
         unless they are being shown.
 
         
 
              A wiring harness in view under a car would be exposed to the 
 
         elements.
 
         
 
              A motor vehicle design in which the wiring controlling the 
 
         car's electrical system and its lighting would be exposed to the 
 
         elements is implausible.
 
         
 
              Claimant was represented by counsel from an early point 
 
         after his May 2, 1984 accident onward.
 
         
 
              Claimant collected health insurance benefits from the 
 
         employer's plan and collected long-term disability benefits from 
 
         the employer's plan in the time after his May 2, 1984 accident.
 
         
 
              Claimant did not assert any claim for workers' compensation 
 
         benefits or assert any job relationship relative to his accident 
 
         until he filed his original notice and petition in this matter in 
 
         April, 1986.
 
         
 
              Auto body shop work records do not reflect that the wiring 
 
         harness work had to be finished on the Dodge 600 subsequent to 
 
         May 2, 1984.
 
         
 
              No independent testimony was presented stating that the 
 
         wiring work had to be completed subsequent to May 2, 1984.
 
         
 
              The auto body shop records do reflect that mechanical work 
 
         and cleanup had to be completed on the Dodge 600 subsequent to 
 
         May 2, 1984.
 
         
 
              Mr. Godfredson and Ms. Foster did not discuss the matter of 
 
         claimant's alleged work errand prior to discussions relative to 
 
         this claim.
 
         
 
              Claimant was not engaged in an errand for the employer in 
 
         which he was checking the wiring harness of the Dodge 600 over 
 
         his lunch hour on May 2, 1984.
 
         
 
                                
 
         
 

 
         
 
         
 
         
 
         NIELSEN V. PETERSON MOTOR COMPANY
 
         PAGE  13
 
                                 
 
                                 
 
                                 CONCLUSION OF LAW
 
         
 
              THEREFORE, it is concluded:
 
         
 
              Claimant has not established an injury arising out of and in 
 
         the course of his employment on May 2, 1984.
 
         
 
                                      ORDER
 
         
 
              THEREFORE, IT IS ORDERED:
 
         
 
              Claimant take nothing from this proceeding.
 
         
 
              Claimant pay costs of this proceeding pursuant to Division 
 
         of Industrial Services Rule 343-4.33.
 
         
 
              Signed and filed this 29th day of December, 1988.
 
         
 
         
 
         
 
         
 
         
 
         
 
                                         HELENJEAN WALLESER
 
                                         DEPUTY INDUSTRIAL COMMISSIONER
 
         
 
         Copies To:
 
         
 
         Mr. James A. Schall
 
         Attorney at Law
 
         505 Erie Street
 
         Box 1052
 
         Storm Lake, Iowa  50588
 
         
 
         Mr. Frank T. Harrison
 
         Attorney at Law
 
         Suite 111, Terrace Center
 
         2700 Grand Avenue
 
         Des Moines, Iowa 50312
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                                1100, 1104, 1107
 
                                                Filed December 29, 1988
 
                                                HELENJEAN WALLESER
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         STEVEN J. NIELSEN,
 
         
 
              Claimant,
 
         
 
         vs.
 
                                                   File No. 816916
 
         PETERSON MOTOR COMPANY,
 
                                                A R B I T R A T I O N
 
              Employer,
 
                                                   D E C I S I O N
 
         and
 
         
 
         IOWA AUTOMOBILE DEALERS ASSOCIATION,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         
 
         1100, 1104, 1107
 
         
 
              Claimant failed to show injury which arose out of and in the 
 
         course of employment on purely factual basis.  Analysis centers 
 
         on discrepancies in testimony given.  Claimant contended he had 
 
         undertaken a business errand while returning from personal "off 
 
         the clock" lunch hour.
 
         
 
 
        
 
 
 
 
 
        
 
        
 
                    BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
        
 
        
 
        EDWARD BUTLER,
 
        
 
            Claimant,
 
        
 
        vs.                                  File No. 816925
 
        
 
        ROWLEY INTERSTATE TRANSPORTA-      A R B I T R A T I O N
 
        TION, CO., INC.,
 
                                             D E C I S I O N
 
            Employer,
 
        
 
        and                                     F I L E D
 
        
 
        LUMBERMENS MUTUAL CASUALTY              APR 27 1989
 
        COMPANY,
 
                                       IOWA INDUSTRIAL COMMISSIONER
 
            Insurance Carrier,
 
            Defendants.
 
        
 
        
 
        
 
                                   INTRODUCTION
 
        
 
             This is an arbitration proceeding brought by Edward Butler, 
 
             claimant, against Rowley Interstate Transportation Company, Inc., 
 
             employer, and Lumbermens Mutual Casualty, insurance carrier, 
 
             defendants. The case was heard by the undersigned in Dubuque, 
 
             Iowa on September 29, 1988.
 
        
 
            The record consists of the testimony of claimant. The 
 
        record also consists of the testimony of Mary Sue Butler. The 
 
        record also consists of exhibits 1-44.
 
        
 
                                      ISSUES
 
        
 
             As a result of the prehearing report and order submitted on 
 
             September 29, 1988, the issues presented by the parties are:
 
        
 
            l) Whether claimant received an injury which arose out of 
 
        and in the course of employment;
 
        
 
            2) Whether there is a causal relationship between the 
 
        alleged injury and the disability;
 
        
 
            3) Whether claimant is entitled to temporary 
 
        disability/healing period benefits or permanent partial or total 
 
        disability benefits;
 
             
 
             4) Whether claimant is entitled to medical benefits under 
 
             section 85.27; and,
 
        
 
            5) Whether claimant tendered adequate notice under section 
 
        85.23.
 
        
 
                                 FACTS PRESENTED
 
        
 
             In August of 1985, claimant was employed by defendant as an 
 
             over-the-road truck driver. He was hired to drive long haul 
 

 
        
 
 
 
 
 
             routes. On October 11, 1985, claimant was in Boston, 
 
             Massachusetts picking up a load of frozen fish for delivery in 
 
             the midwest. Claimant testified he hit a bump while driving his 
 
             truck, and his load began to shift. As a result, claimant 
 
             reported he attempted to straighten the load by pushing against 
 
             the loaded pallets with his back. Claimant testified a box 
 
             underneath the top pallet began to slip and, while attempting to 
 
             push it, claimant reported he heard a snapping sound and he felt 
 
             pain in his lower back. According to claimant's testimony, he 
 
             sat, rested, and then continued loading his truck. After the 
 
             truck was loaded, claimant drove to a relative's home in Lowell, 
 
             Massachusetts where claimant went to bed until nine or ten 
 
             o'clock in the morning on the following day.
 
        
 
            Claimant stated his pain was so intense, he could hardly 
 
        walk. As a consequence, claimant sought treatment at the Lowell 
 
        General Hospital. Claimant indicated he was seen by a physician 
 
        who prescribed Motrin and Fiorinal with codeine for pain, as well 
 
        as a neck collar. Claimant revealed he was informed he had a 
 
        muscle spasm and that he was to refrain from driving the truck 
 
        back to the midwest.
 
        
 
            Claimant also testified after his hospital visit, he 
 
        telephoned a dispatcher by the name of Joe at defendant's place 
 
        of business. Claimant maintained he informed dispatch of the 
 
        work injury and that he was not to drive the truck.
 
        
 
            Claimant indicated he climbed back into the truck late 
 
        Sunday, drove for several hours, and then pulled the truck off 
 
        the road where he fell asleep. Claimant stated he arrived one 
 
        day late with the delivery.
 
        
 
            Claimant reported he worked continuously through February 6, 
 
        1986. He stated his pain worsened. He sought medical attention 
 
        for his back on January 6, 1986. Claimant indicated he was in 
 
        constant pain from the date of the incident in October but he was 
 
        unable to afford medical attention. However, a snow shoveling 
 
        incident which took.place at home precipitated a visit to Craig 
 
        Schultz, M.D.
 
        
 
             The record for that date indicates, in part:
 
             
 
             The patient comes in because of right low back pain that 
 
             started about one month ago. No specific injury. The pain 
 
             does radiate down the back of his leg and then hurts in the 
 
             front of his leg about his ankle. He does have an 
 
             occasional episode of numbness and tingling. No bowel or 
 
             bladder problems. The patient does work as a truck driver. 
 
             The pain is aggravated by certain movements.
 
             
 
             Claimant testified he was scheduled to return to the doctor 
 
             on January 20, 1986, but that claimant was on the road. He was 
 
             unable to keep his scheduled appointment on February 6, 1986. He 
 
             then stated he called Charles S. Rothberg, M.D., and set an 
 
             appointment for February 10, 1986.
 
        
 
            Dr. Rothberg's notes for that date indicate in relevant 
 
        portion:
 
        
 
             Mr. Butler is a 43-year old white, right-handed, male who is 
 
             a truckdriver [sic]. He is involved in driving a truck, as 
 
             well as unloading and loading up to 100 pounds. The patient 
 
             injured his back several years ago when his truck was on 
 
             fire, but he recovered from this. He reinjured his back in 
 
             approximately August of 1985 at work with complaints of a 
 
             pain in the low right back. This improved, and he reinjured 
 

 
        
 
 
 
 
 
             his back again approximately six weeks ago and since then 
 
             has been having difficulty. He has noticed that he has a 
 
             list to the left side and complains of pain in the right low 
 
             back region, as well as some tingling of the anterior thigh 
 
             and lateral calf at times. He has been having this off and 
 
             on when he was driving for an extended period of time. When 
 
             he is not sitting and when he is resting, this tingling 
 
             tends to disappear. He has no difficulty with bowel, 
 
             bladder, or sexual function. He has no leg pain at this 
 
             time, although he did have some approximately one week ago 
 
             when he saw Dr. Schultz in the Acute Care Center. At that 
 
             time, Dr. Schultz examined the patient and found no evidence 
 
             of neurological deficit. The patient has slightly improved 
 
             over the past few days, although he has been working. He 
 
             has been unable to take off time because of the necessity to 
 
             make a living. He has come in today because he continues to 
 
             have difficulty even though he is slightly improved.
 
        
 
             After a series of tests, surgery was performed on claimant 
 
             by Dr. Rothberg on February 22, 1986. The hospital notes at The 
 
             Finley Hospital for that date indicate the following procedure 
 
             was performed:
 
        
 
             Right sided partial hemilaminectomy of L3, upper aspect of 
 
             L4, removal of subligamentous extruded disc fragment, L3-L4 
 
             right sided disectomy, foraminotomy and decompression of the 
 
             right L4 nerve root.
 
             
 
             Claimant was discharged from the hospital on February 26, 
 
             1986. As of July 23, 1986, Dr. Rothberg determined, in a letter, 
 
             claimant could return to light duty work on Monday, September 15, 
 
             1986.
 
        
 
            Claimant testified he presented Dr. Rothberg's letter of 
 
        July 23, 1986 to Mr. Gary Baumhover, manager of the company. Mr. 
 
        Baumhover indicated, according to claimant, that during the first 
 
        week of September he would create a light duty position for 
 
        claimant. Several days later, claimant reported he visited again 
 
        with Mr. Baumhover concerning the same topic. Claimant reported 
 
        he was offered a desk job where he would be required to answer 
 
        the telephone and to complete paperwork for an eight hour period. 
 
        At that time, claimant indicated he was only able to sit for 
 
        periods of 20 minutes. As a result, claimant stated he would 
 
        have to check with his physician before claimant could state 
 
        whether he could accept the light duty position.
 
        
 
            Claimant maintained his physician prohibited him from 
 
        accepting a position where he would be required to sit for eight 
 
        hours. However, claimant reported his physician did draft the 
 
        following letter dated September 11, 1986: "Mr. Edward Butler is 
 
        currently under my care and is released to return to light duty 
 
        work. He can sit at a desk for a 40 hour week but must be 
 
        allowed to get up and move around when ever [sic] necessary."
 
        
 
            Claimant, at the hearing, reported on September 11, he 
 
        showed the letter to Mr. Baumhover who allegedly replied, "I'm 
 
        not running my business on the whims of doctors. I've taken care 
 
        of the matter. You're fired."
 
        
 
            After the above date, claimant stated he remained off work. 
 
        He did not secure a position until February of 1987 when he was 
 
        hired as a car salesman.
 
        
 
            Mary Sue Butler testified at the hearing she was claimant's 
 
        wife. She indicated she was familiar with claimant's health. 
 
        Mrs. Butler reported there were two prior separate intervals 
 

 
        
 
 
 
 
 
        where claimant had had back problems. On these occasions 
 
        claimant sought the services of a chiropractor located in one of 
 
        the eastern states. Mrs. Butler stated claimant had no back 
 
        problems immediately prior to October 11, 1985, but that after 
 
        that date, claimant was in constant pain.
 
        
 
             Mrs. Butler also described the snow shoveling incident on 
 
             January 6, 1986. She reported she observed claimant during this 
 
             incident and that he only stuck a shovel into the ground. 
 
             Claimant did not even attempt to lift a shovel of snow. Mrs. 
 
             Butler reported her husband sought medical attention immediately 
 
             after the incident on the sixth of January.
 
        
 
            Dr. Rothberg testified by way of deposition. He opined 
 
        claimant had an acute herniation of the disk between L-3, L-4. 
 
        Dr. Rothberg believed the herniation was caused by a traumatic 
 
        incident.
 
        
 
            Dr. Rothberg determined the following in his letter of May 
 
        27, 1987, to claimant's attorney:
 
        
 
             In further elucidation of my letter to Mr. Craig Levien 
 
             dated the 29th of April, 1987, it is impossible to state 
 
             with a definite degree of medical certainty which of Mr. 
 
             Butler's back injuries were responsible for his extruded 
 
             disc problem. My response was simply to your question of 
 
             whether I could state with certainty which incident is 
 
             responsible.
 
             
 
             However, it is my opinion that Mr. Butler's injury of 
 
             October 1985 was the incident that was responsible for his 
 
             extruded disc. The reason for this is that he became 
 
             symptomatic following this injury. This opinion, of course, 
 
             less than a certainty but in my opinion it is more likely 
 
             than not that his extruded disc arose from the October 1985 
 
             incident.
 
             
 
             Mr. Butler's history includes that of being injured in 
 
             October 1985 when he was pushing against a loaded pallet 
 
             with his back in order to straighten the load. He 
 
             immediately had pain. He continued to have difficulties. 
 
             After he was shoveling snow he had more difficulties. Mr. 
 
             Butler continued to have problems up until the time of his 
 
             surgery. Regarding the patient's progress, it is quite 
 
             typical for that of a protruded and/or extruded disc, in 
 
             that, they may improve over a time but reinjury and 
 
             progressive problems are quite common. I believe that this 
 
             type of progress is true for Mr. Butler.
 
        
 
             Please find enclosed a copy of my office note from March 10, 
 
             1986. This copy shows my hand-written correction of a 
 
             transcription error. The transcriber reported August of 
 
             1985, whereas the correct month was October, as indicated in 
 
             the left margin.
 
             
 
             In summary, I am unable to state with a definite degree of 
 
             certainty which one of Mr. Butler's injuries was the cause 
 
             of his disc problems noted at surgery. However, it is my 
 
             opinion that the incident that occurred at work in October 
 
             1985 was the most likely cause; for this is when the patient 
 
             became symptomatic.
 
             
 
             Defendants' attorney posed the subsequent follow-up question 
 
             to Dr. Rothberg during the deposition: "...can you state with a 
 
             reasonable degree of medical certainty in Mr. Butler's case 
 
             whether his herniated disk was caused by the October 11th, 1985 
 

 
        
 
 
 
 
 
             incident?" (Exhibit 40, page 7, lines 13 to 16).
 
        
 
            Dr. Rothberg replied as follows:
 
        
 
             A. With definite medical certainty I cannot state exactly 
 
                  which injury was the cause of this problem.
 
             
 
             Q. All right, and I think in the letter you sent to me 
 
                  dated April 29th, 1987 you made the statement, "I am 
 
                  unable to state with any degree of medical certainty 
 
                  whether the herniated disk was caused by the October 
 
                  11th, 1985 incident."
 
             
 
             A. By that I mean definitely what injury caused his major 
 
                  problem, that's what I meant by that statement.
 
             
 
             Q. Do you still agree with that letter?
 
             
 
             A. I would prefer to say that I'm unable to state with 
 
                  definite medical certainty which one of the incidents 
 
                  were the problem, but I do have my opinions.
 
             
 
             Q. Okay. Why are you using the term today "definite 
 
                  medical certainty" wherein as your letter of April 29th, 
 
                  1987 you state, "I'm unable to state with any degree of 
 
                  medical certainty which one of his previous back 
 
                  injuries were responsible for this"?
 
             
 
             A. Disregarding the letter to you, that was just the 
 
                  terminology I had used, but subsequent to that what I 
 
                  was trying to say was not interpreted as such. When 
 
                  someone is asking me can I state with any certainty 
 
                  whether something caused something, if I say I can't 
 
                  state with any degree of certainty that really means I 
 
                  cannot give a definite answer.
 
             
 
             Q. All right.
 
             
 
             A. What I'm trying to say, I should have possibly been more 
 
                  definitive in my language.
 
             
 
             Q. After my April 29th letter that you sent to me, then you 
 
                  sent a letter to Mr. Coyle dated May 27th, 1987 in which 
 
                  you expressed an opinion regarding which incident caused 
 
                  his disk. Can you tell me now what your opinion is as 
 
                  to whether Mr. Butler's disk was caused by the October 
 
                  11th, 1985 incident?
 
             
 
             A. I would have to say that is my opinion, but it is not 
 
                  with a definite degree of certainty and the reason that 
 
                  is my opinion is because that's when the symptoms 
 
                  started and basically remained.
 
             
 
             Q. Would it be fair to say then that it is your opinion 
 
                  that that October 11th, 1985 incident was the possible 
 
                  causation of the disk, but you cannot state that to a 
 
                  reasonable degree of medical certainty?
 
             
 
             A. Yes.
 
             
 
        (Ex. 40, p. 7, 1. 17 to p. 9, 1. 9)
 
        
 
             Later in the deposition, Dr. Rothberg continued:
 
             
 
             Q. And, Doctor, in your opinion is there any reasonable 
 
                  relationship between the incident that I've described to 
 

 
        
 
 
 
 
 
                  you, pushing the pallets or pushing the boxes of meat in 
 
                  the pallets, any relationship to the herniated disk that 
 
                  you operated on?
 
             
 
               ....
 
             
 
             A. According to Mr. Butler's description of the incident, 
 
                  yes.
 
             
 
             Q. And is it possible the incident as described by Mr. 
 
                  Butler as I've just given it to you this morning caused 
 
                  that.herniated disk?
 
             
 
                  MR. LEVIEN: Same objection as previously urged. This 
 
                          has been asked and answered and is not legal cause.
 
                  
 
             A. It's possible.
 
             
 
             Q. And, Doctor, is the history given by Mr. Butler as I 
 
                  related it consistent with acute -- or could it be 
 
                  considered to be a cause of the herniated disk you 
 
                  operated on?
 
             
 
                  MR. LEVIEN: Same objection. It's vague as to the 
 
                          legal standard the doctor is testifying to as certainty 
 
                          and the question has been asked and answered. Go ahead.
 
                  
 
             A. Yes.
 
             
 
             Q. I understand you cannot say with certainty absolutely 
 
                  whether the incident caused the herniated disk, correct?
 
             
 
             A. Correct.
 
             
 
             Q. Can you say with certainty that the incident did not 
 
             cause the herniated disk?
 
             
 
             A. No.
 
             
 
        (Ex. 40, p. 42, 11. 15-19, 24-25, P. 43, 11. 1-22)
 
        
 
             Dr. Rothberg, in his letter of January 23, 1987, determined 
 
             claimant had a five percent functional impairment of the body as 
 
             a whole. Dr. Rothberg also placed a 25 pound weight restriction 
 
             on claimant.
 
        
 
                                 APPLICABLE LAW
 
        
 
             An employee is entitled to compensation for any and all 
 
             personal injuries which arise out of and in the course of the 
 
             employment. Section 85.3(1).
 
        
 
            Claimant has the burden of proving by a preponderance of the 
 
        evidence that he received an injury on October 11, 1985, which 
 
        arose out of and in the course of his employment. McDowell v. 
 
        Town of Clarksville, 241 N.W.2d 904 (Iowa 1976); Musselman v. 
 
        Central Telephone Co., 261 Iowa 352, 154 N.W.2d 128 (1967).
 
        
 
             The 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 words "out of" refer to the cause or source of the 
 

 
        
 
 
 
 
 
        injury. Crowe, 246 Iowa 402, 68 N.W.2d 63 (1955).
 
        
 
            The words "in the course of" refer to the time and place and 
 
        circumstances of the injury. McClure v. Union et al. Counties, 
 
        188 N.W.2d 283 (Iowa 1971); Crowe, 246 Iowa 402, 68 N.W.2d 63 
 
        (1955).
 
        
 
            "An injury occurs in the course of the employment when it is 
 
        within the period of employment at a place the employee may 
 
        reasonably be, and while he is doing his work or something 
 
        incidental to it." Cedar Rapids Comm. Sch. Dist. v. Cady, 278 
 
        N.W.2d 298 (Iowa 1979); McClure, 188 N.W.2d 283 (Iowa 1971); 
 
        Musselman, 261 Iowa 352, 154 N.W.2d 128 (1967).
 
        
 
            The claimant has the burden of proving by a preponderance of 
 
        the evidence that the injury of October 11, 1985, is causally 
 
        related to the disability on which he now bases his claim. 
 
        Bodish v. Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867 (1965). 
 
        Lindahl v. L.O. Boggs, 236 Iowa 296, 18 N.W.2d 607 (1945). A 
 
        possibility is insufficient; a probability is necessary. Burt v. 
 
        John Deere Waterloo Tractor Works, 247 Iowa 691, 73 N.W.2d 732 
 
        (1955). The question of causal connection is essentially within 
 
        the domain of expert testimony. Bradshaw v. Iowa Methodist 
 
        Hospital, 251 Iowa 375, 101 N.W.2d 167 (1960).
 
        
 
            The opinions of experts need not be couched in definite, 
 
        positive or unequivocal language. Sondag v. Ferris Hardware, 220 
 
        N.W.2d 903 (Iowa 1974). An opinion of an expert based upon an 
 
        incomplete history is not binding upon the commissioner, but must 
 
        be weighed together with the other disclosed facts and 
 
        circumstances. Bodish, 257 Iowa 516, 133 N.W.2d 867 (1965). The 
 
        expert medical evidence must be considered with all other 
 
        evidence introduced bearing on the causal connection between the 
 
        injury and the disability. Burt, 247 Iowa 691, 73 N.W.2d 732 
 
        (1955). In regard to medical testimony, the commissioner is 
 
        required to state the reasons on which testimony is accepted or 
 
        rejected. Sondag, 220 N.W.2d 903 (1974).
 
        
 
            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.
 
        
 
            Our supreme court has stated many times that a claimant may 
 
        recover for a work connected aggravation of a preexisting 
 
        condition. Almquist v. Shenandoah Nurseries, 218 Iowa 724, 254 
 
        N.W. 35 (1934). See also Auxier v. Woodward State Hospital Sch., 
 
        266 N.W.2d 139 (Iowa 1978); Gosek v. Garmer and Stiles Co., 158 
 
        N.W.2d 731 (Iowa 1968); Barz v. Oler, 257 Iowa 508, 133 N.W.2d 
 
        704 (1965); Olson v. Goodyear Service Stores, 255 Iowa 1112, 125 
 
        N.W.2d 251 (1963); Yeager, 253 Iowa 369; 112 N.W.2d 299 (1961); 
 

 
        
 
 
 
 
 
        Ziegler, 252 Iowa 613, 106 N.W.2d 591 (1960).
 
        
 
            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, 252 Iowa 613, 620, 106 N.W.2d 591 
 
        (1960), and 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, 
 
        255 Iowa 1112, 125 N.W.2d 251 (1963); Yeager, 253 Iowa 369, 112 
 
        N.W.2d 299 (1961); Ziegler, 252 Iowa 613, 106 N.W.2d 591 (1960). 
 
        See also Barz, 257 Iowa 508, 133 N.W.2d 704 (1965); Almquist, 218 
 
        Iowa 724, 254 N.W. 35 (1934).
 
        
 
                                      ANALYSIS
 
        
 
             Claimant has established he sustained an injury which arose 
 
             out of and in the course of his employment. There is claimant's 
 
             uncontroverted testimony that he felt pain in his back while he 
 
             was attempting to realign a loaded pallet. This event occurred 
 
             while claimant was performing services on behalf of his employer. 
 
             The incident happened while claimant was on his prescribed 
 
             trucking route. The injury arose out of and in the course of 
 
             employment.
 
        
 
             The next issue to address is whether the incident on October 
 
             11, 1985, is causally related to claimant's alleged disability. 
 
             It is crucial to review the expert evidence relative to a 
 
             determination. Claimant's treating physician, Dr. Rothberg, is a 
 
             board certified neurosurgeon. He took his patient's history and 
 
             incorporated the history into his notes. He performed claimant's 
 
             surgery. He remained the treating physician subsequent to the 
 
             performance of the surgery.
 
        
 
            There are inconsistencies relative to claimant's prior back 
 
        injuries. Dr. Rothberg's notes for February 10, 1986, indicate 
 
        the physician changed an injury date of August of 1985 to an 
 
        injury date of October of 1985. In his deposition, Dr. Rothberg 
 
        indicated this was done sometime prior to the writing of his 
 
        letter to Michael Coyle, dated May 27, 1987. However, Dr. 
 
        Rothberg testified he could not recall whether the change was 
 
        made pursuant to a conversation with claimant or whether the 
 
        change was made pursuant to a conversation with claimant's 
 
        attorney.
 
        
 
            Then there is the letter of April 29, 1987, from Dr. 
 
        Rothberg to defendants' attorney. Causation is not established 
 
        by the treating physician. Rothberg definitively writes: "...I 
 
        am unable to state with any degree of medical certainty which one 
 
        of Mr. Butler's previous back injuries were responsible for his 
 
        extruded disc...."
 
        
 
            Later, in his deposition, Dr. Rothberg attempts to modify 
 
        the aforementioned written opinion. There is no apparent reason 
 
        given why Dr. Rothberg seeks to modify his earlier opinion. Dr. 
 
        Rothberg opines the October 11, 1985 injury caused claimant's 
 
        disk problem, but Dr. Rothberg could not state that with a 
 
        definite degree of certainty. Dr. Rothberg explained that his 
 
        opinion was based upon the symptoms which were verbalized to him 
 
        by the claimant. However, Dr. Rothberg did not personally view 
 
        those symptoms until the tenth of February, 1986. This was 
 
        nearly four months after the incident occurred in Massachusetts. 
 
        Dr. Rothberg was unable to verify the exact date on which the 
 
        symptoms occurred. He would not state whether the symptoms 
 

 
        
 
 
 
 
 
        appeared before or after the snow shoveling incident on January 
 
        6, 1986. While claimant testified the symptoms were present 
 
        immediately after the October~injury, claimant did not seek 
 
        medical attention for nearly three months. He cited financial 
 
        considerations as the reason. However, it was not until the sixth 
 
        of January that claimant saw Dr. Schultz. It is curious to note, 
 
        this date happened to be the very date on which the snow 
 
        shoveling event occurred.
 
        
 
             Even later in his deposition, Dr. Rothberg modified his 
 
             opinion as to the cause of claimant's alleged disability. Dr. 
 
             Rothberg then opined it was possible the October 11, 1985 
 
             incident caused claimant's condition. A mere possibility the 
 
             claimed condition was caused by the October injury is an 
 
             insufficient standard for proving causation. Burt, supra.
 
        
 
            In light of the foregoing, it is the determination of the 
 
        undersigned that claimant has failed to meet his burden of proof 
 
        in establishing that the injury on October 11, 1985, was causally 
 
        connected to claimant's claimed disability. There is no expert 
 
        testimony tying claimant's injury to his claimed disability 
 
        beyond a mere possibility. Since claimant has not met his 
 
        requisite burden, it is unnecessary to address the other issues 
 
        presented.
 
        
 
                                 FINDINGS OF FACT
 
        
 
             WHEREFORE, based on the evidence presented and the 
 
             principles of law previously cited, the following findings of 
 
             fact and conclusions of law are made.
 
        
 
            FINDING 1. Claimant established that he injured his back 
 
        while pushing a pallet on October 11, 1985.
 
        
 
            FINDING 2. Claimant established that he incurred medical 
 
        expenses as a result of the injury on October 11, 1985 in the 
 
        amount of $94.00.
 
        
 
            FINDING 3. Claimant established that he injured his back 
 
        while at home on January 6, 1986.
 
        
 
            FINDING 4. Only one physician opined there is a possibility 
 
        (but not to a reasonable degree of medical certainty) that 
 
        claimant's back problems are related to his injury on October 11, 
 
        1985.
 
        
 
                                 CONCLUSIONS OF LAW
 
        
 
             WHEREFORE, based on the principles of law previously cited, 
 
             the following conclusion is made:
 
        
 
            1. Claimant has failed to meet his burden of proof in 
 
        establishing that his injury on October 11, 1985 caused either 
 
        temporary or permanent disability.
 
        
 
            2. Claimant incurred $94.00 in medical expenses at Lowell 
 
        General Hospital.
 
        
 
                                      ORDER
 
                  
 
                  THEREFORE, IT IS ORDERED:
 
             
 
             Defendants are liable for the payment of the following 
 
             medical expense:
 
        
 
                        Lowell General Hospital  $94.00
 

 
        
 
 
 
 
 
        
 
             Defendants shall receive credit for benefits previously paid 
 
        
 
            A claim activity report should be filed with this office.
 
        
 
             The costs of this action shall be assessed against 
 
             defendants pursuant to Division of Industrial Services Rule 
 
             343-4.33.
 
             
 
             
 
             Signed and filed this 27th day of April, 1989.
 
             
 
             
 
             
 
        
 
        
 
                                     MICHELLE A. McGOVERN
 
                                     DEPUTY INDUSTRIAL COMMISSIONER
 
        
 
        Copies To:
 
        
 
        Mr. Michael J. Coyle
 
        Attorney at Law
 
        200 Security Bldg.
 
        Dubuque, Iowa 52001
 
        
 
        Mr. Roger A. Lathrop
 
        Attorney at Law
 
        600 Union Arcade Bldg:
 
        Davenport, Iowa 52801