BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         KENNETH CHRISTENSEN,
 
         
 
              Claimant,                             File Nos. 816946
 
                                                             703098
 
         vs.
 
                                                 A R B I T R A T I O N
 
         FARMLAND FOODS,
 
                                                           A N D
 
              Employer,
 
                                                       R E V I E W -
 
         and
 
         AETNA CASUALTY & SURETY                     R E O P E N I N G
 
         COMPANY,
 
                                                      D E C I S I O N
 
              Insurance Carrier,
 
              Defendants.                                F I L E D 
 
              
 
                                                        AUG 16 1989
 
              
 
                                               IOWA INDUSTRIAL 
 
              COMMISSIONER
 
              
 
              
 
                              STATEMENT OF THE CASE
 
         
 
              This is a proceeding in review-opening and arbitration 
 
         brought by Kenneth Christensen, claimant, against Farmland Foods, 
 
         employer, and Aetna Casualty & Surety Company, insurance carrier, 
 
         to recover additional benefits under the Iowa Workers' 
 
         Compensation Act as a result of an injury which arose out of and 
 
         in the course of his employment on May 18, 1982, and to seek 
 
         benefits as a result of an alleged injury of February 22, 1986. 
 
         This matter came on for hearing before the undersigned deputy 
 
         industrial commissioner November 16, 1988, and was considered 
 
         fully submitted at the close of the hearing.  The record in this 
 
         case consists of the testimony of claimant and joint exhibits 1 
 
         through 57, inclusive.
 
         
 
                                      ISSUES
 
         
 
              Pursuant to the prehearing report and order submitted and 
 
         approved November 16, 1988, the issues presented for resolution 
 
         in file No. 703098 are:
 
         
 
              1.  Whether claimant has had a change of condition which 
 
         would entitle him to additional compensation benefits; and
 
              
 
              2.  The extent of claimant's entitlement, if any, to 
 
         additional permanent partial disability benefits.
 
         
 
              The issues presented for resolution in file No. 816946 are:
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              1.  Whether claimant sustained an injury which arose out of 
 
         and in the course of his employment;
 
         
 
              2.  Whether claimant's alleged injury is the cause of the 
 
         disability on which he now bases his claim;
 
         
 
              3.  Claimant's entitlement to weekly disability benefits, 
 
         including temporary total disability/healing period and permanent 
 
         partial disability benefits;
 
              
 
              4.  Claimant's entitlement to medical benefits pursuant to 
 
         Iowa Code section 85.27; and
 
              
 
              5.  Whether claimant's claim is barred pursuant to Iowa Code 
 
         section 85.26.
 
         
 
                                 FACTS PRESENTED
 
         
 
              Claimant sustained an injury which arose out of and in the 
 
         course of his employment on May 18, 1982, when he received an 
 
         electric shock and fell approximately five feet landing on his 
 
         head and shoulders.  An agreement for settlement was approved by 
 
         the industrial commissioner's office on July 10, 1984 which 
 
         stipulated and found that claimant had sustained a 15 percent 
 
         industrial disability to the body as a whole giving consideration 
 
         to "factors of functional disability, age, motivation, education, 
 
         ability to find suitable employment, past and present wages, work 
 
         experience, qualifications, ability after the injury to engage in 
 
         employment for which claimant is fitted, and medical condition 
 
         and that all of these items are considered in determining it." 
 
         Attached to the agreement for settlement was a report from D. J. 
 
         Soll, M.D., dated August 13, 1983, which stated:
 
         
 
                 Kenneth Christensen has recovered about as much as he 
 
              will.  He has been seen by several specialists and he still 
 
              does have problems but is able to work.  He has been on 
 
              medication including Tylenol and Aspirin plus he is taking 
 
              some Triavil.  He still has pain when he turns his head from 
 
              side to side and when he does flex his neck, he, I feel, 
 
              does have a permanent partial disability of about 25%, 
 
              because of this injury.
 
         
 
              Also attached to the agreement for settlement was a report 
 
         from Marvin S. Rosenfeld, D.O., who conducted an orthopedic 
 
         evaluation on December 20, 1983 and concluded:
 
         
 
              Impression:  Soft tissue trauma to the cervical spine with 
 
              equivocal [sic] radiculitis.
 
              
 
                 It was my recommendation he continue with present 
 
              medications.  I feel he has reached maximum medical 
 
              improvement except for some expected gains in motion and 
 
              mild decrease in symptoms, however I feel these symptoms 
 
              will continue into the indefinite future.
 

 
              
 
 
 
 
 
 
 
 
 
 
 
              
 
              Dr. Rosenfeld rated claimant as having a 7 percent 
 
         impairment to the body as a whole and opined that claimant could 
 
         continue his present occupation at Farmland Foods with episodes 
 
         of reoccurrence of pain requiring some time off and physical 
 
         therapy in the future to be expected.
 
         
 
              Claimant testified he returned to work in March 1983, and 
 
         that after working light duty for two or three weeks he began 
 
         working at his regular jobs which he described as pulling guts, 
 
         skinning hogs, running a high puller, and tongueing and cheeking 
 
         hogs.  Claimant recalled that at the time he returned to work, as 
 
         well as when he entered into the agreement for settlement, he was 
 
         experiencing pain all the time in his neck and shoulders and 
 
         severe pain when he did repetitious work.  Claimant testified 
 
         that since returning to work he has not missed work on account of 
 
         his shoulder, outside of medical appointments, and that the pain 
 
         in his shoulder continually "seems to get a little worse."
 
         
 
              Claimant offered that in 1986 the pain he had been 
 
         experiencing transferred "kind of" to the left side and that his 
 
         left shoulder began bothering him "as bad or worse" as the right 
 
         side had been.  Claimant testified that prior to 1986 repetitious 
 
         work had not affected the left side but subsequent to 1986 it 
 
         did. Claimant could not recall a specific time in 1986 that this 
 
         began to happen but was satisfied with approximately February 
 
         1986.
 
              
 
              Claimant described his present complaints as severe pain in 
 
         the left shoulder and neck, that if he uses his right arm wrong 
 
         it becomes immobile (whereas in 1984 his muscles "did not quit"), 
 
         that he cannot now work above shoulder height which was not true 
 
         in 1984 and that he now cannot do constant;repetitious work.
 
         
 
              On cross-examination, claimant revealed he has had some 
 
         training as a computer programmer, doing electrical work, in 
 
         basic mechanical skills, as well as some supervisory experience, 
 
         and that approximately one year ago he changed jobs with 
 
         defendant employer which resulted in a salary increase.  Claimant 
 
         acknowledged he was paid benefits for an injury in April 1987 
 
         involving a problem with his left arm which he described as a 
 
         "muscle pulled loose from the elbow," that in January 1987 he 
 
         alleged a problem with his right arm and in September of 1988 a 
 
         problem with his right shoulder.  Claimant testified he thought 
 
         claims for the neck and shoulder were the same claims as made in 
 
         his last law suit against defendants.  Claimant denied any 
 
         recollection of a doctor telling him in 1982 he should not return 
 
         to work with defendant employer.  Claimant admitted he had been 
 
         advised by physicians that, as a result of his condition, he 
 
         could expect flare-ups from time to time.
 
         
 
              Medical records since July 1984 (the time of the agreement 
 
         for settlement) reveal that Dr. Rosenfeld's prediction that 
 
         claimant's symptoms would continue into the indefinite future and 
 
         that claimant could expect episodes of reoccurrence of pain was 
 
         true.  Claimant continued seeing a variety of physicians for 
 
         cervical strain and underwent in September of 1985 therapeutic 
 
         paravertebral blocks which claimant reported improved his pain 
 
         considerably.  On April 10, 1986, claimant saw Dr. Soll with 
 
         reference to a "strain" of the left shoulder and forearm. 
 
         Claimant, at this time, was released to return to work without 
 
         restriction but, on April 21, 1986, when claimant saw Dr. Soll 
 
         for a "strain of left forearm musculature," claimant was released 
 
         to return to work with the instructions to avoid lifting more 
 
         than 20 pounds and no pushing or pulling with the left arm.  In 
 
         June of 1986 claimant was released to return to work without 
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         restriction. Claimant was seen by Dr. Soll July 8, 1986 for 
 
         arthritic pain in the neck and released to return to work without 
 
         restriction.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              On May 18, 1987, claimant was seen for examination and 
 
         evaluation by Horst G. Blume, M.D., Ph.D., because of:
 
         
 
              ...neck-shoulder-arm pain on both sides, as well as 
 
              occipital headaches accompanied by pressure sensation, 
 
              dizziness nad [sic] occasional nausea.  The patient also was 
 
              complaining of periodic pain into the left hand, especially 
 
              on the back of the hand and in the second, third and fourth 
 
              fingers of the left hand.  The patient further reports low 
 
              back pain which he described as being in the L5 region, as 
 
              well as thoracic pain which he described as constant.
 
              
 
         (Joint Exhibit 47, pp. 1)
 
         
 
              Dr. Blume concluded:
 
              
 
                After doing a complete physical and neurological 
 
              examination and reviewing many reports, it is my opinion 
 
              that the patient has sustained an injury to the cervical 
 
              spine with suspect of injury to the cervical disc with lower 
 
              cervical nerve root irritation most likely at C6 primarily, 
 
              left more than right.  The patient may also have had an 
 
              injury to the C2/C3 level of the cervical spine....
 
              
 
                 There is no doubt that the patient has a permanent 
 
              partial disability to the body as a whole as a result of the 
 
              work related injury sustained on May 18, 1982, but is 
 
              difficult for me to make a statement without having the 
 
              opportunity to see the myelographic films, however, Dr. Soll 
 
              gave the patient a disability rating of 25% which in my 
 
              opinion would be an accurate rating, even without having 
 
              seen the films, and I would agree with him on this rating.
 
              
 
         (Jt. Ex. 47, p. 2)
 
         
 
              In response to an interrogatory asking:  "State whether or 
 
         not you have any difficulties in performing said job and, if so, 
 
         state the nature of those difficulties and why you have them," 
 
         claimant, on February 13, 1984, answered:
 
         
 
                The tongue cutting job has given me the least amount of 
 
              trouble of any of the jobs I have done.  The other jobs, 
 
              especially the cutting of shackle marks, cause my neck and 
 
              shoulder to tighten up and cause me severe pain.  I still 
 
              have some tightening and mild pain while doing this job.  I 
 
              also get headaches quite frequently during the day and late 
 
              at night or early morning.  Any time I have to use my arms 
 
              so that the upper bicep portion of my arm is extended away 
 
              from my side or I have to use a forceful motion with my arm 
 
              it creates severe pain after an hour or so of continuous 
 
              work.
 
              
 
         (Jt. Ex. 56, p. 2)
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
              Claimant, on July 7, 1986, described his present complaints 
 
         as:
 
         
 
                Pain in shoulders, neck and upper back (spine) area.  
 
              Lack full movement of head turning from one side to the 
 
              other.
 
              
 
                 Have pain and lack full movement of head from tilting 
 
              sideways movement.
 
              
 
                 Occasional numbness in fingers.
 
              
 
                 Headaches.
 
              
 
         (Jt. Ex. 54, p. 3)
 
         
 
                           APPLICABLE LAW AND ANALYSIS
 
         
 
              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).
 
         
 
              The claimant must prove by a preponderance of the evidence 
 
         that his injury arose out of and in the course of his employment. 
 
         Musselman v. Central Telephone Co., 261 Iowa 352, 154 N.W.2d 128 
 
         (1967).
 
         
 
              In the course of employment means that the claimant must 
 
         prove his injury occurred at a place where he reasonably may be 
 
         performing his duties.  McClure v. Union, et al., Counties, 188 
 
         N.W.2d 283 (Iowa 1971).
 
         
 
              Arising out of suggests a causal relationship between the 
 
         employment and the injury.  Crowe v. DeSoto Consolidated School 
 
         District, 246 Iowa 402, 68 N.W.2d 63 (1955).
 
         
 
              The first issue to be addressed is whether claimant has met 
 
         his burden of proving he sustained an injury "on or about 
 
         February 22, 1986" which arose out of and in the course of his 
 
         employment as a result of "repetitious motion of job."
 
              
 
              Medical records do not reveal that claimant either sought or 
 
         received any medical care for pain in his left shoulder, arm and 
 
         hand in February 1986.  Claimant was treated in April 1986 for a 
 
         left shoulder and forearm strain and acknowledged that he was 
 
         treated for epicondylitis in April 1987 and received compensation 
 
         benefits therefor.  (This claim forms the basis of another 
 
         industrial commissioner file.)  Medical records do reveal that 
 
         claimant's complaints with reference to his left extremity date 
 
         back to 1979.  Dr. Blume relates all of claimant's complaints to 
 
         the 1982 injury and no mention is made of any injury occurring in 
 
         1986.  The Iowa Supreme Court in the case of McKeever Custom 
 
         Cabinets v. Smith, 379 N.W.2d 368 (Iowa 1985) addressed the issue 
 
         of cumulative trauma and held that where an injury is cumulative, 
 
         the date the injury occurs when the claimant, because of pain or 
 
         physical activity, can no longer work.  Id. at 374.  Claimant has 
 
         failed to show that in February of 1986 or on or about February 
 
         22, 1986, he was unable because of pain or physical inability to 
 
         continue working.  Claimant candidly acknowledged that with the 
 
         exception of medical appointments, he has not missed any work on 
 
         account of any injury.  It is concluded that claimant has failed 
 
         to show he sustained an injury on or about February 22, 1986 
 
         which arose out of and in the course of his employment; 
 
         therefore, the other issues presented for resolution need not be 
 
         addressed and claimant shall take nothing as a result of these 
 
         proceedings.
 

 
         
 
 
 
 
 
 
 
 
 
 
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              Claimant next asserts an entitlement to additional benefits 
 
         as a result of the injury of April 18, 1982.
 
         
 
              The case law relating to review-reopening proceedings is 
 
         rather extensive.
 
         
 
              The opinion of the Iowa Supreme Court in Stice v. 
 
         Consolidated Ind. Coal Co., 228 Iowa 1031, 1035, 291 N.W. 452 
 
         (1940) stated "that the modification of...[an] award would depend 
 
         upon a change in the condition of the employee since the award 
 
         was made."  The court cited the law applicable at that time which 
 
         was "if on such review the commissioner finds the condition of 
 
         the employee warrants such action, he may end, diminish, or 
 
         increase the compensation so awarded" and stated at 1038:
 
              
 
              That the decision on review depends upon the condition of 
 
              the employee, which is found to exist subsequent to the date 
 
              of the award being reviewed.  We can find no basis for 
 
              interpreting this language as meaning that the commissioner 
 
              is to re-determine the condition of the employee which was 
 
              adjudicated by the former award.
 
                   
 
              The court in Bousfield v. Sisters of Mercy, 249 Iowa 64, 86 
 
         N.W.2d 109 (1957) cited prior decisions and added a new facet to 
 
         the review-reopening law by stating at page 69:
 
              
 
              
 
              But it is also true that unless there is more than a 
 
              scintilla of evidence of the increase, a mere difference of 
 
              opinion of experts or competent observers as to the 
 
              percentage of disability arising from the original injury 
 
              would not be sufficient to justify a different determination 
 
              by another commissioner on a petition for review-reopening. 
 
              Such is not the case before us, for here there was 
 
              substantial evidence of a worsening of her condition not 
 
              contemplated at the time of the first award.
 
                   
 
              In a somewhat analogous vein, the Iowa Court of Appeals held 
 
         in Meyers v. Holiday Inn of Cedar Falls, Iowa, 272 N.W.2d 24, 25 
 
         (Iowa App. 1978) that a review-reopening petition may allow a 
 
         change in compensation when a claimant has failed to improve to 
 
         the extent initially anticipated.
 
              
 
              A major pronouncement came in the case of Gosek v. Garmer 
 
         and Stiles Co., 158 N.W.2d 731 (Iowa 1968).  The opinion there, 
 
         at 732, stated that "[o]n a review-reopening hearing claimant has 
 
         the burden of showing by a preponderance of the evidence his 
 
         right to compensation in addition to that accorded by a prior 
 
         agreement or adjudication."  The opinion went on to discuss the 
 
         common understanding that "if a claimant sustained compensable 
 
         injuries of which he was fully aware at time of prior settlement 
 
         or award, but for some unexplainable reason failed to assert it, 
 
         he cannot, for the first time on subsequent review proceedings, 
 
         claim additional benefits."  The opinion continued at 733 "[b]ut 
 
         according to the apparent majority view, if a claimant does not 
 
         know of other employment connected injuries or disability at time 
 
         of any prior agreement or adjudication, he is not ordinarily 
 
         barred from later asserting it as a basis for additional 
 
         benefits."  The court went on to hold at 735 that "cause for 
 
         allowance of additional compensation exists on proper showing 
 
         that facts relative to an employment connected injury existed but 
 
         were unknown and could not have been discovered by the exercise 
 
         of reasonable diligence, sometimes referred to as a substantive 
 
         omission due to mistake, at time of any prior settlement or 
 
         award."
 

 
         
 
 
 
 
 
 
 
 
 
 
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              Each of these cases rests upon some disparity between 
 
         claimant's actual or anticipated physical condition at the time 
 
         of the previous assessment and the physical condition which 
 
         exists at the time of the review-reopening proceeding.  Thus, the 
 
         question initially becomes has claimant established a change in 
 
         his physical condition since the time of the agreement for 
 
         settlement.
 
         
 
              At the time claimant entered into the agreement for 
 
         settlement, claimant had functional impairment ratings ranging 
 
         from 7 percent from Dr. Rosenfeld to 25 percent from Dr. Soll. 
 
         Subsequently, Dr. Blume agreed with Dr. Soll and rated claimant 
 
         as having a 25 percent "disability."  Dr. Blume did not see 
 
         claimant prior to May of 1987 and did not know what claimant's 
 
         condition was at the time he entered into the agreement for 
 
         settlement. Further, because Dr. Blume agrees with Dr. Soll, who 
 
         rendered his opinion in August 1983, it would not be unreasonable 
 
         to surmise that claimant's functional impairment has not 
 
         necessarily changed. However, even if that conclusion was not 
 
         reached, under the court's reasoning in Bousfield v. Sisters of 
 
         Mercy, 249 Iowa 64, 86 N.W.2d 109 (1957), the fact that two 
 
         experts have now agreed on the 25 percent rating is not 
 
         determinative of the issues.  The only evidence of any change in 
 
         claimant's physical condition is his testimony that he now has 
 
         pain in his left shoulder and has difficulty working overhead.  
 
         However, the question arises as to whether claimant's problems 
 
         actually stem from this injury or the injury in April 1987 which 
 
         specifically involves the left extremity.  Claimant presented no 
 
         evidence outside of his own testimony on the April 1987 injury 
 
         and consequently this question remains open.  Claimant has also 
 
         alleged problems in January 1987 with his right arm and in 
 
         September 1988 with his right shoulder. Claimant has failed to 
 
         establish just how much of this is causally connected to the 
 
         injury of May 18, 1982.
 
         
 
              The required change of condition to satisfy the requirements 
 
         of review-reopening need not rest solely upon a change of 
 
         physical condition if economic hardships causally related to a 
 
         compensable injury but not contemplated within the initial award 
 
         or agreement are demonstrated.  An increase in industrial 
 
         disability may occur without a change in physical condition.  A 
 
         change in earning capacity subsequent to the original award which 
 
         is proximately caused by the original injury also constitutes a 
 
         change in condition.  Blacksmith v. All-American, Inc., 290 
 
         N.W.2d 348 (1980); McSpadden v. Big Ben Coal Co., 288 N.W.2d 181 
 
         (Iowa 1980). The question thus secondarily becomes whether or not 
 
         claimant's industrial disability has changed.
 
         
 
              Clearly, claimant's age has changed since the time he 
 
         entered into the agreement for settlement.  However, age cannot 
 
         have been something which was not contemplated by the parties at 
 
         the time the settlement was agreed to.  Claimant appears to 
 
         remain motivated to continue working as evidenced by his 
 
         employment record.  Claimant has received increases in salary and 
 
         has been able to maintain his employment without interruption.  
 
         Although the undersigned may have initially determined claimant's 
 
         industrial disability to be different from that agreed to, it is 
 
         inappropriate pursuant to Stice v. Consolidated Ind. Coal Co., 
 
         228 Iowa 1031, 291 N.W. 452 (1940), to redetermine, at this 
 
         state, the condition of claimant at the time he entered into the 
 
         agreement for settlement.  The undersigned cannot conclude that 
 
         claimant has established either a change in his physical 
 
         condition or his industrial disability and, accordingly, claimant 
 
         shall take nothing further as a result of these proceedings.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
                                 FINDINGS OF FACT
 
         
 
              Wherefore, based on of the evidence presented, the following 
 
         findings of fact are made:
 
         
 
              1.  Claimant sustained an injury which arose out of and in 
 
         the course of his employment on May 18, 1982, when he received an 
 
         electric shock and fell approximately five feet landing on his 
 
         head and shoulders.
 
              
 
              2.  Claimant entered into an agreement for settlement which 
 
         was approved by the industrial commissioner's office on July 10, 
 
         1984, which stipulated and found that claimant sustained an 
 
         industrial disability of 15 percent to the body as a whole.
 
              
 
              3.  Since he entered into the agreement for settlement, 
 
         neither claimant's physical condition nor his industrial 
 
         disability has changed so as to allow him an entitlement to 
 
         additional weekly benefits.
 
              
 
              4.  Claimant alleged he sustained an injury on or about 
 
         February 22, 1986 as a result of repetitious motion on the job.
 
              
 
              5.  Medical records do not reveal that claimant either 
 
         sought or received any medical treatment for pain in the left 
 
         shoulder, arm and/or hand at or about the time he alleged he 
 
         sustained an injury.
 
         
 
              6.  Claimant continued working for defendant employer and 
 
         did not cease work due to any pain or inability to continue 
 
         working.
 
         
 
              7.  Claimant failed to show he sustained an injury arising 
 
         out of and in the course of his employment on or about February 
 
         22, 1986.
 
         
 
                                CONCLUSIONS OF LAW
 
         
 
              Therefore, based on the principles of law previously stated, 
 
         the following conclusions of law are made:
 
         
 
              1.  Claimant failed to show any change of condition which 
 
         would entitle him to further benefits as a result of the injury 
 
         of May 18, 1982, since he entered into the agreement for 
 
         settlement which was approved in July 1984.
 
              
 
              2.  Claimant failed to meet his burden of proof that he 
 
         sustained an injury on or about February 22, 1986 which arose out 
 
         of and in the course of his employment.
 
              
 
                                      ORDER
 
         
 
              THEREFORE, it is ordered:
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
              Claimant shall take nothing as a result of these 
 
         proceedings.
 
              
 
              Costs are assessed against defendants pursuant to Division 
 
         of Industrial Services Rule 343-4.36.
 
              
 
              Signed and filed this 16th day of August, 1989.
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
                                         DEBORAH A. DUBIK
 
                                         DEPUTY INDUSTRIAL COMMISSIONER
 
         
 
         Copies to:
 
         
 
         Mr. Harry H. Smith
 
         Attorney at Law
 
         P.O. Box 1194
 
         Sioux City, IA  51102
 
         
 
         Ms. Judith Ann Higgs
 
         Attorney at Law
 
         200 Home Federal Bldg.
 
         P.O. Box 3086
 
         Sioux City, IA  51102
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         
 
                                        5-2905; 5-1100
 
                                        1402.30
 
                                        Filed August 16, 1989
 
                                        Deborah A. Dubik
 
                                        
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         KENNETH CHRISTENSEN,
 
         
 
              Claimant,                          File Nos. 816946
 
                                                           703098
 
         vs.
 
                                              A R B I T R A T I O N
 
         FARMLAND FOODS,
 
                                                      A N D
 
              Employer,
 
                                                   R E V I E W -
 
         and
 
                                                 R E O P E N I N G
 
         AETNA CASUALTY & SURETY
 
         COMPANY,                                 D E C I S I O N
 
         
 
              Insurance Carrier,
 
              Defendants.
 
              
 
              
 
         5-2905
 
         
 
              Claimant failed to show a change of condition in a 
 
         review-reopening proceeding subsequent to an agreement for 
 
         settlement which was approved in July 1984
 
         
 
         5-1100; 1402.30
 
         
 
              Claimant failed to establish he sustained an injury arising 
 
         out of and in the course of his employment in February of 1986 
 
         when claimant sought no medical care, did not miss any work, and 
 
         other claims for benefits with different injury dates involved 
 
         the same body part.  No award of benefits was made.
 
              
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
 
         
 
 
 
 
 
 
 
 
 
 
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         DENNIS OHNEMUS,
 
         
 
              Claimant,                                File No. 816947
 
         
 
         
 
         VS.                                             A P P E A L
 
         
 
         JOHN DEERE DAVENPORT WORKS,                   D E C I S I 0 N 
 
         
 
              Employer,
 
              Self-Insured,
 
              Defendant.
 
         
 
         
 
                              STATEMENT OF THE CASE
 
         
 
              Defendant appeals from an arbitration decision awarding 
 
         temporary total disability benefits and medical expenses as a 
 
         result of an alleged mental injury on April 11, 1986.
 
         
 
              The record on appeal consists of the transcript of the 
 
         arbitration hearing; claimant's exhibits 1 through 11; and 
 
         defendant's exhibits A through K.  Both parties filed briefs on 
 
         appeal.
 
         
 
                                      ISSUES
 
         
 
              The issues on appeal are whether the deputy erred in 
 
         allowing hearsay testimony and whether claimant suffered a mental 
 
         injury which arose out of and in the course of his employment.
 
         
 
                              REVIEW OF THE EVIDENCE
 
         
 
              The arbitration decision filed October 18, 1988 adequately 
 
         and accurately reflects the pertinent evidence and it will not be 
 
         reiterated herein.  Additional evidence necessary for the 
 
         analysis and findings of fact will be discussed as appropriate.
 
         
 
                                  APPLICABLE LAW
 
         
 
              The citations of law in the arbitration decision are 
 
         appropriate to the issues and evidence.
 
         
 
                                     ANALYSIS
 
         
 
              The first issue raised by the defendant can be dealt with 
 
         summarily.  Defendant alleges that the deputy erred in allowing
 
         
 
         
 
         
 
         OHNEMUS v. JOHN DEERE DAVENPORT WORKS
 
         Page 2
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         one of claimant's witnesses to offer hearsay testimony.  The Iowa 
 
         Supreme Court, in interpreting Iowa Code section 17A.14, has held 
 
         "that administrative agencies are not bound by technical rules of 
 
         evidence, and that generally hearsay evidence is admissible at 
 
         administrative hearings."  McConnell v. Iowa Dept. of Job 
 
         Service, 327 N.W.2d 234, 237 (Iowa 1982). The deputy did not err 
 
         in allowing a witness for claimant to offer hearsay testimony.  
 
         However, hearsay evidence is not given great weight.
 
         
 
              The second issue on appeal is whether claimant suffered an 
 
         injury that arose out of and in the course of his employment.  
 
         Claimant is seeking temporary total disability benefits for a 
 
         psychological injury.  Claimant clearly had a preexisting 
 
         psychological condition.  Therefore, the question to be answered 
 
         in this case is whether as a result of a work incident claimant 
 
         suffered an aggravation of a preexisting psychological condition 
 
         that resulted in a temporary disability.
 
         
 
              The alleged injury date is April 18, 1986.  That date is the 
 
         date on which claimant was accused of improper work performance 
 
         which lead to his firing on April 23, 1986.  There is virtually 
 
         no evidence that whatever may have happened on April 18, 1986 was 
 
         the cause of claimant's symptoms.  The parties, as well as this 
 
         discussion, focus on events that occurred on April 11, 1986.  The 
 
         events on that day were as follows.
 
         
 
              Claimant's supervisor for four years, Jon Ball, was looking 
 
         for claimant in order to discuss claimant's work performance.  
 
         Claimant was responsible for set up, a task that was necessary 
 
         for other workers to do their jobs.  Claimant testified that he 
 
         was feeling nervous because two coworkers wanted set ups and that 
 
         he felt pressured when two set ups were needed at one time.  Ball 
 
         approached claimant to talk to him because his work performance 
 
         was allegedly not satisfactory.  Claimant had returned to work 
 
         April 8, 1986 after six days absence because of a non-work injury 
 
         and apparently his work performance was expected to improve and 
 
         it did not.  A confrontation between claimant and Ball followed 
 
         in which claimant told Ball that Ball could put the work 
 
         performance standards "up his ass" and Ball asked claimant three 
 
         times if claimant was "losing it."  Claimant unsuccessfully asked 
 
         to see a union steward and eventually went to the company nurse.  
 
         A week later an incident involving an improper set up occurred 
 
         which resulted in claimant being fired.
 
         
 
              Claimant testified that the April 11, 1986 incident was one 
 
         of many and that he felt Ball harassed him.  He also testified 
 
         that this harassment took place over six to eight months.  
 
         Claimant admitted on cross-examination that he felt he had been 
 
         harassed or picked on by two other supervisors he had with 
 
         defendant.  Claimant and one of those supervisors was involved in 
 
         a situation where claimant felt pressure to do set ups when more
 
         
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         OHNEMUS v. JOHN DEERE DAVENPORT WORKS
 
         Page 3
 
         
 
         
 
         than one was needed at a particular time.  That situation was 
 
         very similar to the incident on April 11, 1986 except for the 
 
         confrontation between claimant and his supervisor.
 
         
 
              Following claimant's firing he consulted his counsel in this 
 
         matter and that counsel referred him to Thomas P. Dhanens, Ph.D., 
 
         a clinical psychologist.  Dr. Dhanens evaluated claimant and 
 
         treated him through December 1986.  Claimant was evaluated by 
 
         Carl S. Davis, Ph.D., clinical psychologist, at defendant's 
 
         request.
 
         
 
              In order to prevail claimant must prove that he suffered a 
 
         non-traumatically caused mental injury that arose out of and in 
 
         the course of his employment.  This matter deals with wha  is 
 
         referred to as a mental-mental injury and does not deal with a 
 
         mental condition caused by physical trauma or a physical 
 
         condition caused by mental stimulus.  The supreme court in 
 
         Schreckengast v. Hammer Mills, Inc., 369 N.W.2d 809 (Iowa 1985), 
 
         recognized that issues of causation can involve either causation 
 
         in fact or legal causation.  As stated in footnote 3 at 369 
 
         N.W.2d 810:
 
         
 
                 We have recognized that in both civil and  criminal 
 
              actions causation in fact involves whether a particular 
 
              event in fact caused certain consequences to occur.  Legal 
 
              causation presents a question of whether the policy of the 
 
              law will extend responsibility to those consequences which 
 
              have in fact been produced by  that event. State v. Marti, 
 
              290 N.W.2d 570, 584-85 (Iowa 1980).  Causation in fact 
 
              presents an issue of fact while legal causation presents an 
 
              issue of law.  Id.
 
         
 
              That language was the basis of the language in Desgranges v. 
 
         Dept of Human Services, (Appeal Decision, August 19, 1988) which 
 
         discussed that there must be both medical and legal causation for 
 
         a nontraumatic mental injury to arise out of and in the course of 
 
         employment.  While Desgranges used the term medical causation the 
 
         concept involved was factual causation.  Therefore, in this 
 
         matter it is necessary for two issues to be resolved before 
 
         finding an injury arising out of and in the course of employment  
 
         - factual and legal causation.  Proving the factual existence of 
 
         an injury may be accomplished by either expert testimony or 
 
         nonexpert testimony.
 
         
 
              Two psychologists gave opinions as to factual causation.  
 
         Dr. Dhanens treated claimant but his opinion was dependent upon 
 
         the harassment perceived by claimant.  The evidence in this case 
 
         indicates that claimant's perception of harassment is subjective.  
 
         Given claimant's preexisting psychological condition, the 
 
         description of claimant's poor coping ability given by Dr. 
 
         Dhanens and of his difficulties in interpersonal relationships
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         
 
         
 
         OHNEMUS v. JOHN DEERE DAVENPORT WORKS
 
         Page 4
 
         
 
         
 
         given by Dr. Davis, and claimant's own testimony regarding his 
 
         perceptions (more thoroughly set out below), claimant's 
 
         perception of harassment is, to say the least, suspect.  While 
 
         Ball may have been an insensitive supervisor, there is no 
 
         objective evidence of harassment.  Therefore, Dr. Dhanens' 
 
         opinion can be given little weight as it is based upon claimant's 
 
         unreliable perception.  It was Dr. Davis, opinion, which was not 
 
         based upon claimant's perception, that claimant's work did not 
 
         exacerbate his preexisting condition. Because claimant's 
 
         perception is unreliable, his testimony can be given little 
 
         weight in determining the factual existence of this mental 
 
         injury.  Claimant has not proved that his work was the factual 
 
         cause of a mental injury that was a material aggravation of his 
 
         preexisting mental condition.
 
         
 
              It should be noted that the discussion here is not whether 
 
         there is a causal connection between an injury and an alleged 
 
         disability.  The proof of the causal connection between an injury 
 
         and an alleged disability is dependent upon medical opinion.  
 
         That medical opinion cannot only be the opinion of a 
 
         psychologist.  See Saunders v. Cherry Burrell Corp., II Iowa 
 
         Industrial Commissioner Report 333 (Appeal Decision 1982) and 
 
         Palmer v. Norwalk Community School District, II Iowa Industrial 
 
         Commissioner Report 302 (Appeal Decision 1981).  A psychologist 
 
         is not a physician.  See Iowa Code section 135.1(5).  If the 
 
         issue of whether there was a causal connection between claimant's 
 
         alleged injury and his alleged disability were to be decided in 
 
         this case, claimant's claim would be denied because there is no 
 
         opinion of causal connection given by a physician.
 
         
 
              Not only must claimant prove that his work was the factual 
 
         cause of his mental injury, claimant must also prove that the 
 
         legal cause of his injury was his work.  In order to prove this 
 
         legal causation claimant must prove that his temporary mental 
 
         condition "resulted from a situation of greater dimensions than 
 
         the day to day mental stresses and tensions which all employees 
 
         must experience."  Swiss Colony v. Department of ICAR, 240  
 
         N.W.2d 128, 130 (Wisc. 1976).  Claimant alleges that he had been 
 
         harassed for six to eight months. However, in the three months 
 
         preceding April 11, 1986 claimant missed a significant amount of 
 
         work.  Claimant missed 30 days of work between January 1,  1986 
 
         and April 11, 1986 and had worked only six days from March  11, 
 
         1986 to April 11, 1986.  The later time period claimant was 
 
         recovering from a non-work injury.  Claimant's absenteeism 
 
         mitigates against great mental stress.  He simply was not at work 
 
         enough to have suffered an extended period of mental stress.
 
         
 
              Both Dr. Dhanens and Dr. Davis indicate that claimant has a 
 
         long standing personality disorder that makes it unlikely he is 
 
         able to distinguish between actual harassment and perceived 
 
         harassment.  It is impossible to tell at any time if claimant's
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         
 
         
 
         OHNEMUS v. JOHN DEERE DAVENPORT WORKS
 
         Page 5
 
         
 
         
 
         condition was due to the work environment or the normal progress 
 
         of claimant's mental condition.
 
         
 
              The occurrences on April 11, 1986 do not constitute mental 
 
         stress out of the ordinary stresses and tensions which employee 
 
         must experience.  Claimant was responsible for the task of set 
 
         up.  That task had to be performed in a timely and correct manner 
 
         in order for work in the plant to be performed in an efficient 
 
         and safe manner.  Claimant's supervisor was attempting to see 
 
         that claimant performed his job correctly.  After the 
 
         confrontation between claimant and his supervisor had begun, the 
 
         supervisor did not handle the situation well and was, to say the 
 
         least, insensitive.  But all employees are from time to time 
 
         required to cope with a supervisor who is insensitive and unable 
 
         to handle confrontation.
 
         
 
              Two things are particularly revealing here.  One is that 
 
         claimant had almost an identical problem with another supervisor 
 
         on a prior occasion in a very similar circumstance.  There is no 
 
         indication that the former supervisor was as insensitive as 
 
         supervisor Ball was.  But the confrontation resulted in both 
 
         situations because claimant was unable to handle a normal 
 
         requirement of his job.  It is assumed that same job was 
 
         performed by other workers who worked different shifts and who 
 
         performed claimant's job during his absences.  The second 
 
         revealing thing is claimant's own testimony about his feelings of 
 
         harassment by persons who supervised him.  Claimant testified on 
 
         cross-examination:
 
         
 
              Q.  Were you on probation at the Des Moines plant of
 
              John Deere before you came to Davenport?
 
         
 
              A.  On probation?
 
         
 
              Q.  Yes.
 
         
 
              A.  Not that I know of.
 
         
 
              Q.  Is that what you told Dr. Dhanens?
 
         
 
              A.  I don't think I was, but it's a possibility that
 
              that was wrote down.  I had a problem with one of the
 
              foremen there.  I had two foremen at the time that I
 
              worked at John Deere, and one of the foremen and I, we
 
              got along just perfect.  I did the exact same work as I
 
              did the other one, but the other one just didn't like
 
              me, and I had a hard time getting along with him.
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
              Q.  Did he harass you, too?
 
         
 
         
 
         
 
         OHNEMUS v. JOHN DEERE DAVENPORT WORKS
 
         Page 8
 
         
 
         
 
         Copies to:
 
         
 
         Mr. Peter M. Soble
 
         Attorney at Law
 
         505 Plaza Office Bldg.
 
         Rock Island, IL  51201
 
         
 
         Mr. Thomas N. Kamp
 
         Attorney at Law
 
         600 Davenport Bank Bldg.
 
         Davenport, Iowa 52801
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
 
         
 
 
 
 
 
 
 
 
 
 
 
                                         1108.20 - 2204
 
                                         Filed February 26, 1990
 
                                         David E. Linquist
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         
 
         DENNIS OHNEMUS,
 
         
 
                 Claimant,                                 File No. 816947
 
         
 
         VS.                                               A P P E A L
 
         
 
         JOHN DEERE DAVENPORT WORKS,                  D E C I S I 0 N
 
         
 
                 Employer,
 
                 Self-Insured,
 
                 Defendants.
 
         
 
         
 
         1108.20
 
         
 
              Nonexpert testimony could be used to establish whether a 
 
         mental injury arose out of and in the course of employment.  A 
 
         psychologist is not a physician and is not qualified to give 
 
         opinion as to whether there was a causal connection between an 
 
         event and an alleged disability.
 
         
 
         2204
 
         
 
              Claimant had a preexisting psychological condition that made 
 
         it difficult for him to deal with authority figures and made 
 
         claimant's perception of events suspect.  The standard for 
 
         proving a mental-mental injury from nontraumatic events was 
 
         discussed.  Wisconsin rule followed the principle that claimant 
 
         must prove both factual and legal causation before it can be 
 
         found that an injury arose out of and in the course of employment 
 
         was discussed.  It was held that claimant had not prove factual 
 
         nor legal causation, thus no mental injury arose out of or in the 
 
         course of his employment.
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         EDWARD L. BRIGGS,
 
         
 
              Claimant,
 
                                                      File No. 817016
 
         vs.
 
                                                   A R B I T R A T I O N
 
         DELAVAN, INC.,
 
                                                      D E C I S I O N
 
              Employer,
 
         
 
         and                                             F I L E D
 
         
 
         AETNA CASUALTY & SURETY COMPANY,               FEB 01 1988
 
         
 
              Insurance Carrier,               IOWA INDUSTRIAL COMMISSIONER
 
              Defendants.
 
         
 
         
 
                          STATEMENT OF THE CASE
 
         
 
              This is a proceeding in arbitration brought by Edward L. 
 
         Briggs, claimant, against Delavan Corporation, employer, and 
 
         Aetna Casualty & Surety Co., insurance carrier, to recover 
 
         benefits under the Iowa Workers' Compensation Act for an alleged 
 
         injury occurring on or about December 6, 1985.  This matter was 
 
         to come on for hearing January 29, 1988 at the Industrial 
 
         Commissioner's office in Des Moines, Iowa.
 
         
 
              The undersigned was present.  Neither claimant nor 
 
         defendants appeared.
 
         
 
              Claimant failed to present any evidence in support of the 
 
         allegations found in his original notice and petition.  Neither 
 
         an agreement for settlement nor a request for continuance are on 
 
         file.
 
         
 
              Claimant has the burden of proving by a preponderance of the 
 
         evidence that he sustained an injury which arose out of and in 
 
         the course of his employment.  McDowell v. Town of Clarksville, 
 
         241 N.W.2d 904 (Iowa 1976).
 
         
 
              WHEREFORE, it is found:
 
         
 
              1.  Neither claimant nor defendants appeared at the 
 
         scheduled time and place of hearing.
 
         
 
              2.  The undersigned deputy industrial commissioner was 
 
         present and prepared to proceed to hearing.
 
         
 
              3.  Neither an agreement for settlement nor a request for 
 
         continuance is on file with the industrial commissioner.
 
                                                
 
                                                         
 
         
 
              4.  Claimant failed to present any evidence to support 
 
         allegations of a compensable work injury.
 
         
 
              THEREFORE, it is ordered:
 
         
 
              Claimant has failed to meet his burden of proof that he 
 
         sustained an injury which arose out of and in the course of his 
 
         employment.
 
         
 
              Claimant take nothing from this proceeding.
 
         
 
              Costs are taxed to the claimant.  Division of Industrial 
 
         Services Rule 343-4.33.
 
         
 
              Signed and filed this 1st day of February, 1988.
 
         
 
         
 
         
 
         
 
         
 
         
 
                                            DEBORAH A. DUBIK
 
                                            DEPUTY INDUSTRIAL COMMISSIONER
 
         
 
         Copies to:
 
         
 
         Mr. Harry Dahl
 
         Attorney at Law
 
         974 73rd St, Suite 16
 
         Des Moines, Iowa  50312
 
         
 
         Ms. Lorraine May
 
         Attorney at Law
 
         4th Floor Equitable Bldg.
 
         Des Moines, Iowa  50309
 
 
 
         
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                                 1400; 1402
 
                                                 Filed 2-1-88
 
                                                 Deborah A. Dubik
 
         
 
                  BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         EDWARD L. BRIGGS,
 
         
 
              Claimant,
 
                                                   File No. 817016
 
         vs.
 
         
 
         DELAVAN, INC.,                         A R B I T R A T I 0 N
 
         
 
              Employer,                            D E C I S I 0 N
 
         
 
         and
 
         
 
         AETNA CASUALTY & SURETY COMPANY,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         1400; 1402
 
         
 
              Neither claimant nor counsel appeared at the hearing.  No 
 
         evidence in support of allegations of a compensable work injury 
 
         was presented and claimant therefore failed to meet his burden of 
 
         proof.
 
 
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                            5-1803; 5-1803.1
 
                                            Filed September 28, 1989
 
                                            MICHELLE A. McGOVERN
 
         
 
                  BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         RICHARD A. PAYER,
 
         
 
              Claimant,                               File No. 817170
 
                                                      832186 & 857754
 
         vs.
 
                                                   A R B I T R A T I O N
 
         ARMOUR FOOD CO.,
 
                                                      D E C I S I O N
 
              Employer,
 
         
 
         and                                             F I L E D
 
         
 
         THE HARTFORD INSURANCE CO.,                    SEP 28 1989
 
         
 
              Insurance Carrier,               IOWA INDUSTRIAL 
 
                                               COMMISSIONER
 
              Defendants.
 
         
 
         
 
                                   INTRODUCTION
 
         
 
              These are proceedings in arbitration brought by Richard A. 
 
         Payer, claimant, against Armour Food Company, employer, and The 
 
         Hartford Insurance Company, insurance carrier, defendants.  The 
 
         cases were consolidated and heard by the undersigned on August 
 
         29, 1989, in Mason City, Iowa.
 
         
 
              The record consists of the testimony of claimant.  The 
 
         record also consists of the testimonies of Fred Barlow and Laura 
 
         Payer. The record additionally consists of claimant's exhibits 
 
         1-21, 23, 24 and defendants' exhibit D.
 
         
 
                                        ISSUES
 
         
 
              As a result of the prehearing report and order submitted on 
 
         August 29, 1989, the issues presented by the parties are:
 
         
 
              1.  Whether claimant is entitled to permanent partial or 
 
         total disability benefits; and,
 
         
 
              2.  Whether 86.13 notice was properly given to claimant.
 
         
 
                                     STIPULATIONS
 
         
 
              The parties stipulated to the following:
 
         
 
              1.  The existence of an employer-employee relationship 
 
         between claimant and employer at the time of the alleged injury;
 
                                                
 
                                                         
 
         
 
              2.  That claimant sustained progressive and cumulative 
 
         injuries on November 5, 1985, August 28, 1986, and July 13, 1987, 
 
         which arose out of and in the course of employment with 
 
         employer;
 
         
 
              3.  That the alleged injuries are causes of temporary 
 
         disability during periods of recovery; that the work injuries are 
 
         a cause of permanent disability;
 
         
 
              4.  That entitlement to temporary total disability or 
 
         healing period benefits is inapplicable;
 
         
 
              5.  In the event of an award of weekly benefits, the rate of 
 
         weekly compensation is stipulated to be:
 
         
 
                    817170        $203.09
 
                    832186        $207.27
 
                    857754        $207.97
 
         
 
              6.  That all requested medical benefits have been or will be 
 
         paid by defendants;
 
         
 
              7.  That defendants paid claimant as follows:
 
         
 
                    817170         120 weeks         $24,370.80
 
                                 7.857 weeks           1,595.68
 
                                13.571 weeks           2,757.34
 
                                          Total      $28,723.82
 
         
 
                    832186       3.714 weeks         $   769.80
 
         
 
                    857754      79.429 weeks         $16,518.64
 
         
 
                                    FACTS PRESENTED
 
         
 
              Claimant is 28-years-old.  He is married and three children 
 
         reside in his home.  Claimant has his GED but no additional 
 
         education.  He began his employment with Armour on December 19, 
 
         1983, where he was hired as a stuffer in the fresh sausage 
 
         department.
 
         
 
              Currently, claimant works part-time selling light bulbs.  He 
 
         has earned a total of $900.00 in gross wages since he began this 
 
         position.  Claimant also works full time as a salesman at 
 
         Slumberland in Mason City, Iowa.  He has held this position since 
 
         April 24, 1989.  Claimant is paid on a salary plus commission 
 
         basis.  He averages $4.75 per hour but he works approximately 49 
 
         hours per week.
 
         
 
              Claimant testified during the hearing that prior to the fall 
 
         of 1985, he was in good condition except he was overweight. 
 
         However, during that fall claimant stated, he felt cracking and 
 
         popping in his right shoulder.  He also testified he felt a loss 
 
         of strength in the shoulder.
 
                                                
 
                                                         
 
         
 
              Claimant was initially examined by A. J. Wolbrink, M.D., an 
 
         orthopedic surgeon who was the company physician.  On March 11, 
 
         1986, Dr. Wolbrink performed surgery on claimant's right 
 
         shoulder. The physician diagnosed claimant as having:  
 
         "Arthroscopy of the right shoulder with shave of tags of glenoid 
 
         labrum and then open excision of the distal clavicle, right 
 
         shoulder."
 
         
 
              Claimant was released to return to work on May 20, 1986. 
 
         However, Dr. Wolbrink placed restrictions upon claimant's return. 
 
         Claimant was restricted from reaching overhead or from engaging 
 
         in repetitive lifting.
 
         
 
              In July of 1986, claimant testified he began experiencing 
 
         problems with his left shoulder.  Claimant attributed the 
 
         problems to the fact that he switched the hose he was using at 
 
         work from the right hand to the left hand.  Dr. Wolbrink began 
 
         treating claimant for a left shoulder condition as well as for a 
 
         right shoulder condition.  In August of 1987, Dr. Wolbrink 
 
         diagnosed claimant as having:  "Degenerative arthritis AC joint 
 
         and fraying of rotator cuff left shoulder."
 
         
 
              Dr. Wolbrink performed an arthroscopic shaving of the 
 
         rotator cuff and open excision of the distal clavicle, left 
 
         shoulder.
 
         
 
              Claimant also testified he began experiencing numbness in 
 
         both his left and right hands.  Claimant testified he could not 
 
         grip the hose with his hand.  Claimant also testified the inside 
 
         of his hand swelled.
 
         
 
              On February 12, 1988, K. B. Washburn, M.D., a partner of Dr. 
 
         Wolbrink, performed a stellate ganglion block on claimant's right 
 
         extremity.  Dr. Washburn noted in his progress notes for that 
 
         day:
 
         
 
              IMPRESSION:  I am beginning to doubt my diagnosis of 
 
              shoulder-hand syndrome, since he has neither responded to 
 
              the corticosteroids or the sympathetic blocks.  I believe 
 
              there is a great deal of psychogenic overlay here.  However, 
 
              before we begin to treat him from a more psychological 
 
              standpoint, I believe that he should be seen once again by 
 
              Dr. Wolbrink for repeat surgical evaluation.  I will recheck 
 
              him in 1 month. Incidentally, I took some time, actually to 
 
              read out of a book called "Soft Tissue, Rheumatic Pain", 
 
              about the problem of reflex sympathetic dystrophy.  He 
 
              agrees that the symptoms in the book are very similar to his 
 
              symptoms.  I especially read to him to make him understand 
 
              that I have given all of the treatments available for this 
 
              particular situation and I have nothing further personally 
 
              to offer him.  I have told him that I do not use narcotic 
 
              pain medication.  There is no reason to switch 
 
              anti-inflammatory medications and, therefore, I have nothing 
 
              further to offer him to relieve his pain at this particular 
 
                                                
 
                                                         
 
                   time.
 
         
 
              In August of that year, Dr. Wolbrink opined the following 
 
         relative to claimant's right hand:
 
         
 
              DISPOSITION:  I think this is a tendinitis that has 
 
              developed in his right hand also a bit.  May have very 
 
              slight early carpal tunnel syndrome.  Think he will be okay 
 
              to write and it was a combination of using the screwdriver 
 
              the day before as well that aggravated things, so no 
 
              specific change in programs at present, but will let him 
 
              proceed as he is.  He is taking the NAPROSYN and the ORUDIS 
 
              and talked about using some warm-ups on his hands.  Keep 
 
              appt. otherwise as scheduled.
 
         
 
              In May of 1988, Dr. Wolbrink opined claimant sustained a 
 
         functional impairment as follows:
 
         
 
              In my opinion, Mr. Payer has a permanent impairment of eight 
 
              percent of the left upper extremity due to loss of motion in 
 
              the shoulder and five percent due to surgical excision of 
 
              the distal clavicle.  This combines for a permanent 
 
              impairment of thirteen percent of the left upper extremity.  
 
              This is equivalent to eight percent of the whole person.
 
         
 
 
 
                                   
 
                                                         
 
              This percentage can be combined with the nine percent of the 
 
              whole person for the right shoulder to be total impairment 
 
              of sixteen percent of the whole person due to the problems 
 
              with his shoulders.
 
         
 
              As per our phone conversation, we are not one year from the 
 
              time of surgery and so there may be slight improvement in 
 
              function of his left shoulder, but I do not anticipate a 
 
              significant change in permanent impairment.
 
         
 
              Also per our phone conversation, the problem with Mr. 
 
              Payer's left arm is only about three months since surgery.  
 
              We have seen improvement with various therapeutic modalities 
 
              in recent weeks.  Therefore, I anticipate that there will 
 
              continue to be improvement in this status for at least 
 
              another three months.  Therefore, I am not able to give a 
 
              permanent impairment rating to his left upper extremity for 
 
              this recent tendinitis problem until at least three months 
 
              from now.
 
         
 
              One year later, Dr. Wolbrink modified his findings.  He 
 
         opined:
 
         
 
              At the present time, it is my opinion that Mr. Payer also 
 
              has an additional permanent impairment of 3 percent of the 
 
              upper extremity due to residual weakness from his problem in 
 
              that hand.
 
         
 
              Claimant was also examined on one occasion by John R. 
 
         Walker, M.D.  The examination took place on February 18, 1987.  
 
         While Dr. Walker did not assess a functional impairment rating, 
 
         he did determine the following:
 
         
 
              We have taken AP & lateral, right, left, oblique views, 
 
              forward flexion, dynamic extension views of the cervical 
 
              spine and we note; a definite loss of the normal cervical 
 
              curve on the neutral, upright, lateral.  There is no 
 
              evidence [sic] of bone or joint disease.  The disc space and 
 
              intra-neural foramina are well-preserved.  Various views of 
 
              the right shoulder with internal and external rotation and 
 
              some abduction show, of course, well, the nicely resected 
 
              distal end of the clavicle again, measuring approximately a 
 
              good 1 cm.  I see no particular calcification in the capsule 
 
              at this time.  AP & lateral and abducted and internally and 
 
              externally rotated views of the left shoulder reveal a 
 
              rather large exostosis, difficult to really measure but 
 
              appearing to be 2.5 cm. by 2 cm..  This involves the 
 
              surgical neck of the humerus medially.  There appears to be 
 
              some subluxation of the acromioclavicular joint.  The 
 
              clavicle appears to be superior and not well articulated 
 
              with the acromium process. On the left shoulder we also note 
 
              some tiny excrescences and calcifications in the 
 
              acromioclavicular joint on the left itself.
 
         
 
              Peter D. Wirtz, M.D., also examined claimant.  In his report 
 
                                                
 
                                                         
 
         of February 23, 1989, Dr. Wirtz wrote:
 
         
 
              Diagnosis:
 
              1.  Status postop bilateral distal clavicle excision.
 
              2.  Shoulder stiffness bilateral.
 
         
 
                  ...
 
         
 
              The patient's right shoulder has lost 10 degrees of forward 
 
              flexion which is a 3% impairment of the upper extremity, the 
 
              abduction has lost 10 degrees which is a 3% impairment of 
 
              the upper extremity, and internal rotation has lost 10 
 
              degrees which is a 2% impairment of the upper extremity 
 
              culminating in the right upper extremity having a disability 
 
              of 8%.  The left shoulder loss of motion in forward flexion 
 
              is 20 degrees which is a 6% impairment of the upper 
 
              extremity, the abduction loss of 10 degrees is a 3% 
 
              impairment of the upper extremity, and the internal rotation 
 
              loss of 10 degrees is a 2% impairment of the upper extremity 
 
              culminating in an 11% impairment of the left upper 
 
              extremity.  There is no other condition in the upper 
 
              extremities such as neurological or loss of motion to relate 
 
              to any further impairment.
 
         
 
              This patient's shoulder conditions to include the entire 
 
              upper extremity bilaterally will not require further medical 
 
              management on a specific basis.
 
         
 
              This patient is capable of employment within his physiologic 
 
              strength and dexterity and with the minimal loss of motion 
 
              in both shoulders, would be limited to a minor degree in 
 
              over-shoulder-heighth [sic] activities.  He is capable of 
 
              over-shoulder-heighth [sic] activities within his 
 
              physiologic strength and dexterity which would be frequent 
 
              in nature but not repetitive over an extended period of 
 
              time.
 
         
 
              Claimant testified during his hearing that in May of 1988, a 
 
         functional capacity test was performed.  Claimant was restricted 
 
         from lifting or carrying more than 20 pounds.  Claimant was also 
 
         precluded from frequently reaching above shoulder level. 
 
         Furthermore, claimant was restricted from working in the damp and 
 
         cold.
 
         
 
              After the functional capacity test was conducted, claimant 
 
         was to return to work.  However, he received a telephone call 
 
         from Mr. Darrell Johnson, an employee of defendant.  Mr. Johnson 
 
         informed claimant there was no job available to him within the 
 
         entire plant.
 
         
 
                                    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).
 
                                                
 
                                                         
 
         
 
              An employer takes an employee subject to any active or 
 
         dormant health impairments, and a work connected injury which 
 
         more than slightly aggravates the condition is considered to be a 
 
         personal injury.  Ziegler v. United States Gypsum Co., 252 Iowa 
 
         613, 620, 106 N.W.2d 591 (1960), and cases cited.
 
         
 
              The right of a worker to receive compensation for injuries 
 
         sustained which arose out of and in the course of employment is 
 
         statutory.  The statute conferring this right can also fix the 
 
         amount of compensation to be paid for different specific 
 
         injuries, and the employee is not entitled to compensation except 
 
         as provided by the statute.  Soukup v. Shores Co., 222 Iowa 272, 
 
         268 N.W. 598 (1936).
 
         
 
              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, 125 N.W.2d 251 (1963). 
 
         Barton v. Nevada Poultry, 253 Iowa 285, 110 N.W.2d 660 (1961).
 
         
 
         
 
              A finding of impairment to the body as a whole found by a 
 
         medical evaluator does not equate to industrial disability.  This 
 
         is so as impairment and disability are not synonymous.  Degree of 
 
         industrial disability can in fact be much different than the 
 
         degree of impairment because in the first instance reference is 
 
         to loss of earning capacity and in the latter to anatomical or 
 
         functional abnormality or loss.  Although loss of function is to 
 
         be considered and disability can rarely be found without it, it 
 
         is not so that a degree of industrial disability is 
 
         proportionally related to a degree of impairment of bodily 
 
         function.
 
         
 
              Factors to be considered in determining industrial 
 
         disability include the employee's medical condition prior to the 
 
         injury, immediately after the injury, and presently; the situs of 
 
         the injury, its severity and the length of healing period; the 
 
         work experience of the employee prior to the injury, after the 
 
         injury and potential for rehabilitation; the employee's 
 
         qualifications intellectually, emotionally and physically; 
 
         earnings prior and subsequent to the injury; age; education; 
 
         motivation; functional impairment as a result of the injury; and 
 
         inability because of the injury to engage in employment for which 
 
         the employee is fitted. Loss of earnings caused by a job transfer 
 
         for reasons related to the injury is also relevant.  These are 
 
         matters which the finder of fact considers collectively in 
 
         arriving at the determination of the degree of industrial 
 
         disability.
 
         
 
              There are no weighting guidelines that indicate how each of 
 
         the factors are to be considered.  There are no guidelines which 
 
         give, for example, age a weighted value of ten percent of the 
 
                                                
 
                                                         
 
         total value, education a value of fifteen percent of total, 
 
         motivation - five percent; work experience - thirty percent, etc. 
 
         Neither does a rating of functional impairment directly correlate 
 
         to a degree of industrial disability to the body as a whole.  In 
 
         other words, there are no formulae which can be applied and then 
 
         added up to determine the degree of industrial disability.  It 
 
         therefore becomes necessary for the deputy or commissioner to 
 
         draw upon prior experience, general and specialized knowledge to 
 
         make the finding with regard to degree of industrial disability. 
 
          See Peterson v. Truck Haven Cafe, Inc., (Appeal Decision, 
 
         February 28, 1985); Christensen v. Hagen, Inc., (Appeal Decision, 
 
         March 26, 1985).
 
         
 
              For example, a defendant employer's refusal to give any sort 
 
         of work to a claimant after he suffers his affliction may justify 
 
         an award of disability.  McSpadden v. Big Ben Coal Co., 288 
 
         N.W.2d 181 (Iowa 1980).
 
         
 
              Similarly, a claimant's inability to find other suitable 
 
         work after making bona fide efforts to find such work may 
 
         indicate that relief would be granted.  McSpadden, 288 N.W.2d 181 
 
         (Iowa 1980).
 
         
 
              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).
 
         
 
                                       ANALYSIS
 
         
 
                                   
 
                                                         
 
              The first issue to address is the nature and extent of 
 
         claimant's right shoulder injury.  This injury involves file 
 
         number 817170.  The injuries, while progressive and cumulative, 
 
         are all separate and distinct.
 
         
 
              Dr. Wolbrink assess a nine percent functional impairment to 
 
         the body as a whole because of the initial injury to the right 
 
         shoulder.
 
         
 
              Dr. Wirtz concluded the right shoulder had an eight percent 
 
         functional impairment to the right upper extremity.  This 
 
         translated to a five percent impairment rating to the body as a 
 
         whole.
 
         
 
              It has been stipulated that the claimant suffered a 
 
         permanent partial disability.  The physicians listed above 
 
         disagree whether claimant's impairment is limited to the upper 
 
         extremity or whether it extends to the body as a whole.  It is 
 
         found claimant sustained an injury to his shoulder which 
 
         constitutes an injury to the body as a whole.  Nazarenus v. Oscar 
 
         Mayer & Co., II Iowa Industrial Commissioner Report 281 (Appeal 
 
         Decision 1982).  See also Snyder v. Firestone Tire & Rubber 
 
         Company, (834049 Filed October 26, 1987).
 
         
 
              The mere fact that a rating pertains to a scheduled member 
 
         does not mean the disability is restricted to a scheduled member. 
 
         Snyder, supra, citing Pullen v. Brown & Lambrecht Earthmoving, 
 
         Incorporated, II Iowa Industrial Commissioner Report 308 (Appeal 
 
         Decision 1982).
 
         
 
              Dr. Wolbrink, who was the treating physician and who 
 
         operated on the shoulder, rated the claimant as stated above.  
 
         Much weight is accorded to his opinion.  However, functional 
 
         impairment is but one factor used to determine industrial 
 
         disability.  Prior to the time of claimant's right shoulder 
 
         injury, he was relatively free of injuries.  After the right 
 
         shoulder injury, claimant was restricted from engaging in 
 
         repetitive activities, although he was able to return to his 
 
         employment at his former rate of pay.
 
         
 
              Claimant had always engaged in manual labor prior to his 
 
         right shoulder injury.  He was unable to perform at the same 
 
         level.  It is the determination of the undersigned that claimant 
 
         sustained a permanent partial disability of 15 percent for 
 
         industrial purposes because of claimant's right shoulder injury.
 
         
 
              The next issue to address is the nature and extent of 
 
         claimant's injury to his left shoulder.  Again, functional 
 
         impairment ratings had been prepared by both Dr. Wolbrink and Dr. 
 
         Wirtz.  Once claimant had surgery on his left shoulder, he was 
 
         precluded from working in the damp and in the cold, and from 
 
         lifting and carrying more than 20 pounds.  It was at this time 
 
         when claimant was informed by defendant there was no job 
 
         available to him within the entire plant.  Claimant had always 
 
         worked in a position where manual labor was required.  Claimant 
 
                                                
 
                                                         
 
         is 28-years-old with a GED.  He has no education beyond the high 
 
         school level. Neither does claimant have any transferable job 
 
         skills.
 
         
 
              Currently, claimant is employed in sales.  He holds down two 
 
         jobs, although one position is only part-time.  Claimant's 
 
         earning capacity in sales is somewhat tenuous since he has been 
 
         on a salary plus commission basis.  The guaranteed salary is 
 
         $1,000.00 for the next two months.  It will then be lowered to 
 
         $635.00 per month.  The most claimant has earned from his full 
 
         time sales position is $1,123.00.  This has been a one time 
 
         occurrence.  The total gross wages which claimant has earned from 
 
         his part-time sales position is $900.00.  Again, claimant's 
 
         earnings are tenuous from this source.  Clearly, claimant's 
 
         income has decreased.  His capacity to earn has been hampered as 
 
         a result of his injury.
 
         
 
              Based upon the foregoing and based upon:  1)  the personal 
 
         observation of claimant; 2)  agency expertise, (Iowa 
 
         Administrative Procedures Act 17A.14(s); and, 3)  claimant's 
 
         testimony, the undersigned finds the claimant has a 35 percent 
 
         industrial disability.  Because the first injury is the cause of 
 
         15 percent of the industrial disability, the injury to the left 
 
         shoulder is responsible for 20 percent of the industrial 
 
         disability.
 
         
 
              The third issue to discuss is the injury to the right hand. 
 
         Claimant is right handed.  He testified the hand cramps.  He also 
 
         testified the hand swells on occasion and that his condition 
 
         worsens when he writes.  Dr. Wolbrink assessed an additional 
 
         three percent functional impairment rating to the right upper 
 
         extremity because of the hand problems.  This equals a three 
 
         percent impairment rating to the hand.  Dr. Wolbrink indicated 
 
         the impairment rating was given because of residual weakness of 
 
         the hand.  An injury to the hand is a scheduled member injury.  
 
         No other medical practitioner provided a functional impairment 
 
         rating.
 
         
 
              Therefore, in light of the above, it is found that 
 
         claimant's third injury, file number 857754, results in a three 
 
         percent loss of a hand as scheduled under section 85.34(1) of the 
 
         Iowa Code. This totals 5.7 weeks of weekly benefits.
 
         
 
              The final issue to address is whether claimant is entitled 
 
         to penalty benefits under section 86.13 of the Iowa Code.  
 
         Section 86.13 provides in relevant portion:
 
         
 
                   ...
 
         
 
              If an employer or insurance carrier fails to file the notice 
 
              required by this section, the failure stops the running of 
 
              the time periods in section 85.26 as of the date of the 
 
              first payment.  If commenced, the payments shall be 
 
              terminated only when the employee has returned to work, or 
 
              upon thirty days' notice stating the reason for the 
 
                                                
 
                                                         
 
                   termination and advising the employee of the right to file a 
 
              claim with the industrial commissioner.
 
         
 
                   ...
 
         
 
              If a delay in commencement or termination of benefits occurs 
 
              without reasonable or probable cause or excuse, the 
 
              industrial commissioner shall award benefits in addition to 
 
              those benefits payable under this chapter, or chapter 85, 
 
              85A, or 85B, up to fifty percent of the amount of benefits 
 
              that were unreasonably delayed or denied.
 
         
 
              On February 23, 1989, defendant insurance carrier sent the 
 
         following letter to claimant:
 
         
 
              This letter is to advise that as result of the shoulder 
 
              injury of November 5, 1985 we have been paying you permanent 
 
              partial disability payments.  We are at this time 
 
              terminating those payments as of March 21, 1989 and at that 
 
              time we will have paid you 120 weeks of permanent partial 
 
              disability payments.
 
         
 
              Yours very truly,
 
         
 
              Ed Mohler
 
              Senior Claim Supervisor
 
         
 
              Then on March 23, 1989, defendant tendered a letter to 
 
         claimant relative to file number 857754.  The letter stated in 
 
         relevant portion:
 
         
 
              As a result of your work injury of 07-13-87, we have been 
 
              paying compensation benefits to you.
 
         
 
              Because of the reason or reasons checked below, your 
 
              compensation will be terminated on 04-20-89.
 
         
 
              _X__ Lack of sufficient medical information to support
 
                   continued disability.
 
         
 
                   ...
 
         
 
              You may submit evidence or documents disputing the 
 
              termination of your benefits to us for reconsideration of 
 
              our position or you may petition for a Review Reopening of 
 
              your case through the Iowa Industrial Commissioner's Office, 
 
              507 10th, Des Moines, Iowa 50309.
 
         
 
              Sincerely,
 
         
 
              Edwin L. Mohler
 
              Senior Claim Supervisor
 
         
 
              The premier case on this issue is Auxier v. Woodward State 
 
         Hospital-School, 266 N.W.2d 139, 142 (Iowa 1978).  In that case, 
 
                                                
 
                                                         
 
         the Supreme Court held:
 
         
 
              ... [O]n the basis of fundamental fairness, due process 
 
              demands that, prior to termination of workers [sic] 
 
              compensation benefits, except where the claimant has 
 
              demonstrated recovery by returning to work, he or she is 
 
              entitled to a notice which, as a minimum, requires the 
 
              following:
 
         
 
                  [1]  the contemplated termination,
 
         
 
                  [2]  that the termination of benefits was to occur at a 
 
              specified time not less than 30 days after notice,
 
         
 
                  [3]  the reason or reasons for the termination,
 
         
 
                  [4]  that the recipient had the opportunity to submit 
 
              any evidence or documents disputing or contradicting the 
 
              reasons given for termination, and, if such evidence or 
 
              documents are submitted, to be advised whether termination 
 
              is still contemplated,
 
         
 
                  [5]  that the recipient had the right to petition for 
 
              review-reopening under 86.34.
 
         
 
              There is no question defendant insurance carrier did not 
 
         tender a 30 day notice in either its letter of February 23, 1989, 
 
         (26 day notice), or its letter of March 23, 1989, (28 day 
 
         notice). Likewise, with respect to file number 817170, defendant 
 
         did not notify claimant that he had an opportunity to submit any 
 
         evidence disputing or contradicting the reasons for termination. 
 
         Additionally, claimant was not notified he had the right to 
 
         petition to the industrial commissioner for a determination.  The 
 
 
 
                                   
 
                                                         
 
         purpose of the notice is to provide claimant with an opportunity 
 
         to obtain additional benefits or else to get his life in order. 
 
         See Sparks v. Herberger Construction Co., (File No. 712561 
 
         October 21, 1983).
 
         
 
              Since defective notice was tendered to claimant in both file 
 
         number 817170 and in file number 857754, claimant is entitled to 
 
         additional benefits under section 86.13 for each of the two 
 
         cases.
 
         
 
              For file number 817170, claimant is entitled to two weeks of 
 
         additional benefits, ("up to fifty percent of the amount of 
 
         benefits that were unreasonably delayed or denied.").  With 
 
         respect to file number 857754, claimant is entitled to one week 
 
         of additional benefits.  Here, the notice under Auxier, was less 
 
         than 30 days, but claimant was advised of his rights to 
 
         contradict or challenge the termination.
 
         
 
                        FINDINGS OF FACT AND CONCLUSIONS OF LAW
 
         
 
              FINDING 1.  Claimant sustained a right shoulder injury 
 
         arising out of and in the course of his employment on November 5, 
 
         1985, which resulted in a functional impairment of eight to nine 
 
         percent.
 
         
 
              FINDING 2.  Claimant sustained a left shoulder injury 
 
         arising out of and in the course of his employment on August 28, 
 
         1986, which resulted in a functional impairment of eight to 11 
 
         percent.
 
         
 
              FINDING 3.  Claimant sustained a right hand injury arising 
 
         out of and in the course of his employment on July 13, 1987, 
 
         which resulted in a functional impairment of three percent of the 
 
         hand.
 
         
 
              FINDING 4.  Prior to November 5, 1985, claimant was in good 
 
         health.
 
         
 
              FINDING 5.  Claimant had surgeries on his right and left 
 
         shoulders.
 
         
 
              FINDING 6.  Claimant is 28-years-old and he has a GED.
 
         
 
              FINDING 7.  Claimant was released to return to work with 
 
         restrictions after his left shoulder surgery.
 
         
 
              FINDING 8.  In May of 1988, claimant was advised by 
 
         defendant employer there were no positions available in the 
 
         plant.
 
         
 
              FINDING 9.  Claimant is currently employed in sales.
 
         
 
              CONCLUSION A.  Claimant has met his burden of proving he has 
 
         a 15 percent permanent partial disability as a result of his 
 
         injury on November 5, 1985.
 
                                                
 
                                                         
 
         
 
              CONCLUSION B.  Claimant has met his burden of proving he has 
 
         a 20 percent permanent partial disability as a result of his 
 
         injury on August 28, 1986.
 
         
 
              CONCLUSION C.  Claimant has met his burden of proving he has 
 
         a three percent scheduled member disability to the hand as a 
 
         result of the injury on July 13, 1987.
 
         
 
              FINDING 10.  With respect to file number 817170, defendants 
 
         did not tender proper notice regarding termination of benefits.
 
         
 
              FINDING 11.  With respect to file number 857754, defendants 
 
         did not tender proper notice regarding termination of benefits.
 
         
 
              CONCLUSION D.  With respect to file number 817170, claimant 
 
         has met his burden of proving he is entitled to additional 
 
         benefits under section 86.13.
 
         
 
              CONCLUSION E.  With respect to file number 857754, claimant 
 
         has met his burden of proving he is entitled to additional 
 
         benefits under section 86.13.
 
         
 
                                         ORDER
 
         
 
              THEREFORE, with respect to file number 817170, defendants 
 
         are to pay unto claimant seventy-five (75) weeks of permanent 
 
         partial disability benefits at the stipulated rate of two hundred 
 
         three and 09/100 dollars ($203.09) per week as a result of the 
 
         injury on November 5, 1985.
 
         
 
              Defendants, with respect to file number 832186, are to pay 
 
         unto claimant one hundred (100) weeks of permanent partial 
 
         disability benefits at the stipulated rate of two hundred seven 
 
         and 27/100 dollars ($207.27) per week as a result of the injury 
 
         on August 28, 1986.
 
         
 
              Defendants, with respect to file number 857754, are to pay 
 
         unto claimant five point seven (5.7) weeks of permanent partial 
 
         disability benefits at the stipulated rate of two hundred seven 
 
         and 97/100 dollars ($207.97) per week as a result of the injury 
 
         on July 13, 1987.
 
         
 
              Defendants, with respect to file number 817170, are to also 
 
         pay additional benefits unto claimant for two (2) weeks of 
 
         section 86.13 benefits at the stipulated rate of two hundred 
 
         three and 09/100 dollars ($203.09) per week.
 
         
 
              Payments that have accrued shall be paid in a lump sum 
 
         together with statutory interest thereon pursuant to Iowa Code 
 
         section 85.30.
 
         
 
              Defendants are to be given credit for all benefits 
 
         previously paid to this claimant for any of the three 
 
         consolidated files.
 
                                                
 
                                                         
 
         
 
              Costs of this action, including costs set in claimant's 
 
         exhibit 21 are assessed against the defendants pursuant to 
 
         Division of Industrial Services Rule 343-4.33.
 
         
 
              Defendants shall file a claim activity report upon payment 
 
         of this award.
 
         
 
         
 
              Signed and filed this 28th day of September, 1989.
 
         
 
         
 
         
 
         
 
         
 
         
 
                                            MICHELLE A. McGOVERN
 
                                            DEPUTY INDUSTRIAL 
 
                                            COMMISSIONER
 
         
 
         Copies To:
 
         
 
         Mr. Robert S. Kinsey, III
 
         Attorney at Law
 
         214 N. Adams
 
         P. O. Box 679
 
         Mason City, Iowa  50401
 
         
 
         Mr. Marvin E. Duckworth
 
         Attorney at Law
 
         Terrace Center, STE 111
 
         2700 Grand Ave.
 
         Des Moines, Iowa  50312
 
         
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
                                                
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                            5-1803; 5-1803.1
 
                                            Filed September 28, 1989
 
                                            MICHELLE A. McGOVERN
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         RICHARD A. PAYER,
 
         
 
              Claimant,
 
                                                     File Nos. 817170,
 
         vs.                                         832186 & 857754
 
         
 
         ARMOUR FOOD CO.,                         A R B I T R A T I 0 N
 
         
 
              Employer,                              D E C I S I 0 N
 
         
 
         and
 
         
 
         THE HARTFORD INSURANCE CO.,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         5-1803
 
         
 
              Claimant was awarded 35 percent industrial disability 
 
         because of two injuries to his right and left shoulders.
 
         
 
         5-1803.1
 
         
 
              Claimant awarded three percent scheduled member disability 
 
         to the hand because of a work injury.
 
         
 
         
 
         
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
                                                
 
 
            
 
 
 
 
 
 
 
 
 
 
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
		                      :
 
            TIMOTHY D. STOEVER,	      :
 
		                      :
 
                 Claimant, 	      :
 
		                      :
 
		            vs.       :
 
                		      :      File No. 817316
 
            LEE HOLT MOTORS,          :
 
		                      :        A P P E A L
 
                 Employer, 	      :
 
		                      :      D E C I S I O N
 
		            and       :
 
                		      :
 
            UNIVERSAL UNDERWRITING GROUP, :
 
                      		      :
 
                 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 May 24, 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 October, 1991.
 
            
 
            
 
            
 
            
 
                      ________________________________
 
                               BYRON K. ORTON
 
                           INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr. Dick H. Montgomery
 
            Attorney at Law
 
            P.O. Box 7038
 
            Spencer, Iowa 51301
 
            
 
            Ms. Judith Ann Higgs
 
            Attorney at Law
 
            P.O. Box 3086
 
            Sioux City, Iowa 51102
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
            9998
 
            Filed October 21, 1991
 
            Byron K. Orton
 
            EAN
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
		                      :
 
            TIMOTHY D. STOEVER,	      :
 
		                      :
 
                 Claimant,	      :
 
		                      :
 
		            vs.       :
 
		                      :      File No. 817316
 
            LEE HOLT MOTORS,          :
 
		                      :        A P P E A L
 
                 Employer, 	      :
 
		                      :      D E C I S I O N
 
      		   	   and        :
 
                      		      :
 
            UNIVERSAL UNDERWRITING GROUP, :
 
                      		      :
 
                 Insurance Carrier,   :
 
                 Defendants.          :
 
            ___________________________________________________________
 
            
 
            9998
 
            
 
                 Summary affirmance of deputy's decision filed May 24, 
 
            1991.
 
            
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            TIMOTHY D. STOEVER,           :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :      File No. 817316
 
            LEE HOLT MOTORS,              :
 
                                          :    A R B I T R A T I O N
 
                 Employer,                :
 
                                          :      D E C I S I O N
 
            and                           :
 
                                          :
 
            UNIVERSAL UNDERWRITING GROUP, :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
                 
 
            
 
                 This is a proceeding in arbitration brought by Timothy 
 
            D. Stoever (claimant) commenced with the filing of a 
 
            petition on March 15, 1990 against Lee Holt Motors (Lee 
 
            Holt), employer and Universal Underwriters Group (Universal) 
 
            (collectively defendants), Lee Holt's insurer for worker's 
 
            compensation benefits, as a result of an alleged injury to 
 
            claimant's knee occurring on February 18, 1986.  On January 
 
            16, 1991, the matter came on for hearing in Storm Lake, 
 
            Iowa.  The parties appeared as follows:  the claimant in 
 
            person and by his counsel, Dick Montgomery of Spencer, Iowa 
 
            and defendants by their counsel, Judith Ann Higgs of Sioux 
 
            City, Iowa.  
 
            
 
                 The record in this proceeding consisted of the 
 
            following:
 
            
 
                 1.  The live testimony of the claimant, Kim Stoever and 
 
            John Holt  
 
            
 
                 2.  Joint exhibits 1-3.
 
            
 
                 At the close of all evidence, the case was deemed fully 
 
            submitted.
 
            
 
                                   stipulations
 
            
 
                 The parties stipulated to the following matters at the 
 
            time of the hearing:
 
            
 
                 An employer-employee relationship existed between 
 
            claimant and employer at the time of the alleged injury.
 
            
 
                 The claimant sustained an injury on February 18, 1986, 
 
            which arose out of and in the course of employment.
 
            
 
                 The time off work is stipulated to be from December 26, 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            1989 until April 3, 1990.  Claimant worked half time from 
 
            April 3, 1990 to April 17, 1990.
 
            
 
                 The type of permanent disability, if the injury is 
 
            found to be a cause of permanent disability, is a scheduled 
 
            member disability to the right lower extremity.
 
            
 
                 The commencement date for permanent partial disability, 
 
            is April 3, 1990.
 
            
 
                 The rate of compensation, in the event of an award, is 
 
            $236.42 per week. Claimant is married and has one child.  He 
 
            is entitled to two exemptions.(1)
 
            
 
                 The fees charged for medical services are fair and 
 
            reasonable and the expenses were incurred for reasonable and 
 
            necessary medical treatment.
 
            
 
                 The causal connection of the expenses to treatment for 
 
            a medical condition upon which claimant is now basing his 
 
            claim is admitted but that the causal connection of this 
 
            condition to a work injury remains an issue to be decided in 
 
            these proceedings.
 
            
 
                 The amount of costs to be taxed have been stipulated.
 
            
 
            Issues
 
 
 
                 The issues for resolution are as follows:
 
            
 
                 1.  Whether a causal relationship exists between 
 
            claimant's claimed injuries and the claimed disability and 
 
            the nature and extent of any entitlement to benefits, if 
 
            any.
 
            
 
                 2.  Whether claimant is entitled to medical benefits, 
 
            including a determination of causal connection to the work 
 
            injury and the causal connection of this condition to a work 
 
            injury.
 
 
 
                                 FINDINGS OF FACT
 
            
 
                 After considering all of the evidence and the arguments 
 
            of counsel, the undersigned makes the following findings of 
 
            fact and conclusions of law.
 
            
 
                 1.  At the time of the hearing, claimant was 31 years 
 
            old.  He is a mechanic employed by Lee Holt.  Lee Holt is in 
 
            the business of selling and servicing automobiles in 
 
            Spencer.  Claimant is a high school graduate and 
 
            successfully completed a course of training at the Dunwoody 
 
            Institute of Auto Mechanics located in Minneapolis.  
 
            Claimant completed this course of study in 1979.  
 
            Afterwards, claimant returned to the Spencer area and worked 
 
            as an auto mechanic.  
 
            
 
                 2.  In 1982, claimant began to work for Lee Holt as an 
 
            auto mechanic.  Claimant's job required him to work on 
 
            automobiles brought to the dealership for service.  In order 
 
            to accomplish this task, claimant was required to lift, 
 
            bend, squat, kneel and crawl in and around automobiles.  
 
            
 
            (1).  Even though parties stipulated to three exemptions, the 
 
            evidence shows that at the time of the injury claimant was 
 
            entitled to two exemptions since his son had not been born 
 
            yet.  His son was born in 1989.  The rate agreed to by the 
 
            parties is a rate for a married person with two exemptions.  
 
            See Iowa Industrial Commissioner, Workers' Compensation 
 
            Benefit Schedule, at 37 (July 1, 1985) 
 
            
 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
                 3.  Prior to February 18, 1986, claimant had no 
 
            problems with his right knee.  On February 18, 1986, 
 
            claimant was going out to the dumpster at work and slipped 
 
            on some ice.  His right knee twisted, he felt a pop, and he 
 
            was unable to straighten his knee.  Thereafter, claimant saw 
 
            William Follows, M.D.,an orthopedic surgeon in Spencer.  
 
            
 
                 4.  Dr. Follows examined claimant's knee and noted 
 
            severe effusion.  Claimant had an arthroscope to rule out 
 
            internal derangement of the right knee, loose bodies and a 
 
            fresh fracture. (Exhibit 1, page 34).  During the course of 
 
            the arthroscope, Dr. Follows first drained fluid from 
 
            claimant's knee.  Then, Dr. Follows tried to remove a loose 
 
            fragment from claimant's knee but it was lost as it was 
 
            brought through the soft tissues.  This was an old fragment.  
 
            There were also a couple of small cracks found in the 
 
            patella just through the articular cartilage and required 
 
            minimal debridement.  Dr. Follows also found extensive 
 
            osteocartilaginous damage(2) to the lateral portion of the 
 
            lateral femoral condyle, extending around the lateral side 
 
            of the condyle.  He found that is was not affecting the 
 
            weight bearing surface very much however.  He also removed a 
 
            large cartlaginous fragment. (Ex. 1, p. 33). 
 
            
 
                 5.  Claimant was seen by Dr. Follows until April of 
 
            1986 when he was released from his care.  Dr. Follows wrote 
 
            to Universal on April 29, 1986 and advised that as a result 
 
            of the first procedure, claimant had no functional 
 
            disability.  He went on to note that claimant had a defect 
 
            on the lateral femoral condyle and this could develop 
 
            symptoms related to that (Ex. 1, p. 151).  Toward the end of 
 
            1987, claimant indicated to his family physician, Jeff 
 
            Peterson, D.O., that he was having continuing problems with 
 
            right knee.  He was subsequently referred to Alan Pechacek, 
 
            M.D., for evaluation and treatment.
 
            
 
                 6.  Dr. Pechacek saw claimant on January 20, 1987.  In 
 
            the history given, claimant told Dr. Pechacek that after the 
 
            first arthroscope, his knee did not seem to improve.  It was 
 
            weak and felt as though it would buckle going up and down 
 
            stairs or occasionally on standing his right knee would 
 
            hyperextend as though it was going to buckle.  He had no 
 
            recurrent swelling, locking or catching.  He was not aware 
 
            of any rubbing, crackling, snapping or popping in the right 
 
            knee.  After the examination, Dr. Pechacek found that 
 
            claimant had a fragment in the soft tissue of anteromedial 
 
            joint line.  He also had patello-femoral maltracking with 
 
            possibly some articular cartilage damage on the lateral side 
 
            of the femur.  Dr. Pechacek recommended arthroscopic surgery 
 
            to remove the fragment and re-evaluate claimant's knee 
 
            because he felt that claimant may have suffered some 
 
            intra-articular damage as a result of his injury.  However, 
 
            he felt most of the symptoms were attributable to the 
 
            retained fragment in claimant's knee.
 
            
 
                 7.  On January 30, 1987, claimant underwent a second 
 
            arthroscopic surgery on his right knee.  This time Dr. 
 
            Pechacek was able to remove the subcutaneous fragment.  
 
            After that procedure was completed, he examined the joint.  
 
            He found that the patellar surface was quite good.  There 
 
            (2).  Dr. Wirtz defined this damage as wearing out or 
 
            degenerative arthritic condition.  This condition was 
 
            located on the thigh bone and to the lateral side of the 
 
            thigh bone in the patellar area.  (Ex. 3, pp. 9, ll. 14-20).  
 
            Dr. Wilkerson indicated that this condition is a classic 
 
            indicator for patellar dislocation.
 
            
 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            was a small area of chondromalacia in the central raphe.  
 
            The medial margin of the patella was satisfactory.  The 
 
            remainder of the patella was normal.  Dr. Pechacek found the 
 
            area of damage Dr. Follows had seen and noted that there was 
 
            some very superficial cratering, otherwise the tissues were 
 
            smooth and the articular margin appeared satisfactory.  The 
 
            remainder of the femur was normal.  The medial compartment 
 
            was examined and the articular surface of the femur and 
 
            tibia were normal.  The meniscus was anatomically intact.  
 
            Inspection of the lateral compartment showed the articular 
 
            surfaces to be normal.  There was some scar tissue at the 
 
            anterior central attachment of the meniscus.  Dr. Pechacek 
 
            thought that this may have been torn loose and healed back.  
 
            On extension other scar tissue was released down the lateral 
 
            wall of the suprapatellar pouch.
 
            
 
                 8.  On June 1, 1987, Dr. Pechacek communicated with 
 
            Universal and advised that he was assigning a five percent 
 
            functional impairment rating to claimant's knee.  His 
 
            impairment was based primarily on claimant's range of motion 
 
            in the joint.  There were no other specific intra-articular 
 
            disorders for which any additional impairment could be 
 
            given.  Claimant was released from Dr. Pechacek's care to 
 
            return as needed.
 
            
 
                 9.  Sometime after claimant was released by Dr. 
 
            Pechacek, in 1987, he had a complete physical with his 
 
            family physician, Dr. Peterson.  His only complaint at that 
 
            time was tenderness in his back and over the kidney area.  
 
            He did not complain that his knee was giving out or that he 
 
            was having falling episodes because his knee was giving way.  
 
            The only other medical record between 1987 and December of 
 
            1989 is an entry regarding claimant's allergies in August of 
 
            1989. (Ex. 1, P. 45).  There is no other medical record 
 
            describing claimant's complaints regarding his knee until 
 
            December of 1989.
 
            
 
                 10. On December 26, 1989, claimant was walking in his 
 
            garage and his knee hyperextended and he collapsed to the 
 
            floor.  Claimant's knee popped when his knee hyperextended.  
 
            He did not trip or slip.  Claimant had swelling and pain 
 
            immediately after the incident.  In the history given to Dr. 
 
            Peterson at the Spencer Municipal Hospital, claimant 
 
            indicated that he had had discomfort with the joint for the 
 
            last three to four years.  He reported discomfort over the 
 
            medial joint space and spontaneous hyperextension of the 
 
            right knee at least two to three times per month.  
 
            Claimant's knee was painful but there was no swelling with 
 
            these episodes.  The last time claimant had experienced such 
 
            swelling, effusion, and discomfort was three to four years 
 
            ago.  Claimant had not seen a doctor for the discomfort or 
 
            the spontaneous hyperextensions because his son was sick in 
 
            1989, he did not like doctors and had simply decided to live 
 
            with the condition.  Claimant's knee was x-rayed and there 
 
            was no evidence of fracture or dislocation.
 
            
 
                 11. Claimant was next seen by Rick Wilkerson, D.O., an 
 
            orthopaedic surgeon on December 27, 1989.  Claimant gave a 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            history of his knee injury (Ex. 1, p. 51).  This time he 
 
            indicated his knee had been giving way about twice to three 
 
            times per month.  After an episode sometimes claimant's knee 
 
            would swell.  After the initial examination and before 
 
            surgery, Dr. Wilkerson concluded that claimant had loose 
 
            bodies in his knee resulting from recurrent dislocation of 
 
            the patella caused by the injury in 1986 (Ex. 1, pp. 52, 53, 
 
            165).  Surgery was the recommended treatment modality.  At 
 
            the time of claimant's surgery, Dr. Peterson did a complete 
 
            physical examination of claimant and found that claimant was 
 
            suffering from recurrent patellar subluxation of the right 
 
            knee with ligamentous and tendinous injury.  On January 2, 
 
            1990, Dr. Wilkerson did a diagnostic arthroscopy for the 
 
            removal of loose bodies from the lateral femoral condyle and 
 
            patella, an open lateral release and VMO plasty, with an 
 
            oblique tibial tuberosity osteotomy.  When the arthroscopy 
 
            was performed, Dr. Wilkerson found a significant fracture 
 
            off the lateral edge of the lateral femoral condyle 
 
            containing articular cartilage.  The rest of the procedure 
 
            was performed and claimant's right knee repair was 
 
            completed.
 
            
 
                 12. Thereafter, claimant was seen by Dr. Wilkerson for 
 
            follow-up on the knee repair.  Even after a satisfactory 
 
            recovery period, claimant's knee still had limited range of 
 
            motion.  On March 28, 1990, claimant had a fourth 
 
            arthroscopy to release scar tissue in order to increase 
 
            flexion in the claimant's right knee (Ex. 1, pp. 64-65).  
 
            During the history taken before the fourth arthroscopy, 
 
            claimant indicated that he had one child, one year old, in 
 
            good health (Ex. 1, p. 144).  Claimant continued to see Dr. 
 
            Wilkerson until May 30, 1990.  At that point he was released 
 
            and advised to return on an as needed basis.
 
            
 
                 13. Dr. Pechacek had contact again with Universal on 
 
            February 26, 1990 in response to its inquiry regarding 
 
            claimant's knee.  (Ex. 1, p. 29)  Universal sent Dr. 
 
            Pechacek the operative report prepared by Dr. Wilkerson (Ex. 
 
            1 pp. 27-28).  Dr. Pechacek felt claimant had certain 
 
            anatomic findings in his right knee that would possibly lead 
 
            to problems such as chronic recurrent lateral patellar 
 
            instability with either subluxation or possibly 
 
            dislocations.  The history given in 1987 did not lead Dr. 
 
            Pechacek to the conclusion that claimant had suffered a 
 
            patellar dislocation.  He suffered an intra-articular 
 
            fracture involving the patella.  Claimant did not have any 
 
            other history compatible with previous patellar 
 
            dislocations.  Dr. Pechacek indicated that the episodes of 
 
            recurrent patellar dislocation occurred after he last saw 
 
            claimant in May of 1989.  Dr. Pechacek also concluded that 
 
            with the description of the hemarthrosis as well as the 
 
            fragments being found in the joint, these findings were 
 
            fresh or acute.  Dr. Pechacek concluded that claimant had 
 
            sustained a recent or an acute patellar dislocation 
 
            resulting in the hemarthrosis and intra-articular fractures.
 
            
 
                 14. On October, 2, 1990, Dr. Wilkerson was asked to 
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            evaluate a report obtained by defendants from Peter Wirtz, 
 
            M.D.  Dr. Wilkerson felt that claimant did not have a 
 
            congenital subluxation of his knee since he had no prior 
 
            problems with his right knee until the incident in 1986.  
 
            Dr. Wilkerson concluded that the injury in 1986 caused a 
 
            patellar dislocation with subsequent osteochondral fracture.  
 
            Then he went on to state: 
 
            
 
                 He (claimant) did quite well until 1989 when he 
 
                 had a second injury at work causing another 
 
                 patellar dislocation and resulting in the above 
 
                 described operation.  THis [sic] is obviously a WC 
 
                 case and I have explained this to Mr. Montgomery.  
 
                 He will plan on contacting us to set up a 
 
                 deposition in the future.
 
            
 
                 15. On August 22, 1990 Dr. Wirtz, an orthopedic surgeon 
 
            gave his assessment of claimant's knee condition.  Dr. Wirtz 
 
            reviewed the following information:
 
            
 
                 a.  Dr. Follows' report of February 18, 1986.
 
            
 
                 b.  Dr. Follows' report of the arthroscopy performed on 
 
            February 19,1986.
 
            
 
                 c.  Dr. Pechacek's report dated January 20, 1987 
 
            including a history of the injury and summary of the 
 
            procedure proposed by Dr. Pechacek
 
            
 
                 d.  Dr. Pechacek's operation report dated January 30, 
 
            1987.
 
            
 
                 e.  Dr. Wilkerson's report of December 27, 1989 and Dr. 
 
            Peterson's report of arthrocentesis of traumatic bloody 
 
            fluid from right knee.
 
            
 
                 f.  Dr. Wilkerson's surgical report of January 2, 1990 
 
            indicating the arthroscopic examination revealing 
 
            hemarthrosis and employing VMO plasty, lateral release and 
 
            tibial tubercle osteotomy.
 
            
 
                 g.  Dr. Wilkerson's report of the manipulation and 
 
            release of adhesions dated March 28, 1990.
 
            
 
                 Based on this information and a review of the x-rays 
 
            taken of claimant's knee, Dr. Wirtz concluded that claimant 
 
            had a congenital subluxation of his patella that may or may 
 
            not have had dislocations.  The subluxation is evidenced by 
 
            the finding of Dr. Follows during the initial arthroscopy of 
 
            degeneration in the lateral femoral condyle and the patellar 
 
            area.  Dr. Wirtz also concluded that with each episode of 
 
            subluxation or dislocation being temporary in nature, the 
 
            ultimate result would be arthritis in the joint.  The 
 
            arthritic condition is the natural progression of the 
 
            subluxation.  Finally, Dr. Wirtz found that claimant's 
 
            injury of 1986 is at such a distance from the surgery in 
 
            1990 that the injury did not cause the falling incident in 
 
            1989.  Rather, claimant's 1989 injury was caused by the 
 
            natural degeneration of the articular surface on claimant's 
 
            right knee.  Dr. Wirtz did not personally examine claimant.  
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
            Dr. Wirtz did agree however, that the arthritis was 
 
            aggravated by the injury on February 18, 1986.
 
            
 
                 16. On December 18, 1990, Dr. Wilkerson performed an 
 
            examination to assess claimant's functional impairment.  Dr. 
 
            Wilkerson assigned a functional impairment rating of 19 
 
            percent to claimant's knee with four percent attributable to 
 
            a 10 degree loss of flexion and 15 percent for patellar 
 
            femoral arthritis.  Dr. Wilkerson relied on the AMA Guides 
 
            to the Evaluation of Permanent Impairment, edition unknown, 
 
            for his rating.  Dr. Wilkerson indicated that the 15 percent 
 
            is a very subjective rating.  He could not apportion the 
 
            arthritis between the injury in 1986 and the injury in 1989.
 
            
 
                 17. Claimant is seeking payment of the following 
 
            medical bills:
 
            
 
                 Diagnostic Radiologic Imaging           $    86.00
 
            Medical Arts X-Ray                                66.00
 
            Spencer Family Practice                          423.25
 
            NW Ia. Anesthesia Associates                472.00
 
            Spencer Municipal Hospital                5,645.48
 
            Spencer Therapy and Rehab                 1,860.00
 
            Dr. Wilkerson                                  5,318.00
 
            Moore Medical Service                          1,300.00
 
            Miscellaneous Medical Expenses              159.75
 
            
 
                 TOTAL:                        $15,330.48
 
            
 
                                conclusions of law
 
            
 
                 1.  Whether a causal relationship exists between 
 
            claimant's claimed injuries and the claimed disability and 
 
            the nature and extent of any entitlement to benefits, if 
 
            any.
 
            
 
                 Claimant has urged that the injury of February 18, 1986 
 
            was the cause of claimant's subsequent fall and surgical 
 
            treatment in 1989 on the theory that it is a compensable 
 
            consequence flowing directly and naturally from the injury 
 
            claimant suffered when he slipped and twisted his knee.  
 
            Defendants contend that the injury of 1989, the 
 
            precipitating factor for further surgery and other medical 
 
            services is not only to remote from the original injury to 
 
            be causally connected but the 1986 injury is not the cause 
 
            of claimant's injury of 1989.  Rather a natural condition 
 
            and degeneration of the joint was the cause of the 1989 
 
            injury.
 
            
 
                 The claimant has the burden of proving by a 
 
            preponderance of the evidence that the injury of February 
 
            18, 1986, is causally related to the disability on which he 
 
            now bases his claim.  Bodish v. Fischer, Inc., 133 N.W.2d 
 
            867, 868 (Iowa 1965);  Lindahl v. L. O. Boggs, 18 N.W.2d 
 
            607,613-14 (Iowa 1945).  A possibility is insufficient; a 
 
            probability is necessary.  Burt v. John Deere Waterloo 
 
            Tractor Works, 73 N.W.2d 732, 738 (Iowa 1955).  The question 
 
            of causal connection is essentially within the domain of 
 
            expert testimony.  Bradshaw v. Iowa Methodist Hospital, 101 
 
            N.W.2d 167,171 (Iowa 1960).  
 

 
            
 
            Page   8
 
            
 
            
 
            
 
            
 
            
 
                 Expert medical evidence must be considered with all 
 
            other evidence introduced bearing on the causal connection.  
 
            Burt, 73 N.W.2d at 738.  The opinion of the experts need 
 
            not be couched in definite, positive or unequivocal 
 
            language.  Sondag v. Ferris Hardware, 220 N.W.2d 903, 907 
 
            (Iowa 1974).  Moreover, the expert opinion may be accepted 
 
            or rejected, in whole or in part, by the trier of fact.  
 
            Sondag, 220 N.W.2d at 907.  Finally, 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 material circumstances.  Bodish, 133 N.W.2d 
 
            at 870; Musselman v, Central Telephone Co., 154 N.W.2d 128, 
 
            133 (Iowa 1967).  The Supreme Court has also observed that 
 
            greater deference is ordinarily accorded expert testimony 
 
            where the opinion necessarily rests on medical expertise.  
 
            Sondag, 220 N.W.2d at 907.
 
            
 
                 Where there are competing medical opinions, the fact 
 
            finder is not necessarily compelled to give more weight to 
 
            the treating physician's testimony and less weight to the 
 
            testimony of an evaluating physician who examines claimant 
 
            only in anticipation of litigation.  Rockwell Graphics 
 
            Systems, Inc. v. Prince, 366 N.W.2d 187, 192 (Iowa 1985).  
 
            Factors such as education, compensation, experience, the 
 
            date of the examination and certification may go to the 
 
            value of an individual physician's testimony as a question 
 
            of fact, not law.  A physician's experience may accord his 
 
            or her testimony greater weight.  Reiland v. Palco, Inc., 
 
            32nd Biennial Report of the Iowa Industrial Commissioner 56 
 
            (1975).
 
            
 
                 Finally, where a work injury has been established, the 
 
            employer is liable for all consequences that naturally and 
 
            proximately flow from the original accident.  Oldham v. 
 
            Scofield & Welch, 222 Iowa 764, 266 N.W. 480 (1936).  That 
 
            is to say, naturally occurring sequelae of an original 
 
            injury are compensable.  This is true if the injury 
 
            aggravated a dormant preexisting condition.  To be a 
 
            preexisting condition, an actual health impairment must 
 
            exist, even if it is dormant.  Blacksmith v. All-American, 
 
            Inc., 290 N.W.2d 348, 354 (Iowa 1980).    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, 76 N.W.2d 756, 760-61 (Iowa 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., 115 N.W.2d 812, 815 (Iowa 
 
            1962).
 
            
 
                 The facts in this case support a conclusion that the 
 
            injury suffered by claimant on December 26, 1989 was not a 
 
            direct and natural consequence of the injury suffered on 
 
            February 18, 1986.  The greater weight of the evidence shows 
 
            that Dr. Pechacek and Dr. Wirtz concluded that the claimant 
 
            had certain anatomic anomalies that would lead to problems 
 
            such as chronic recurrent lateral patellar instability with 
 
            either subluxation or possibly dislocations and arthritis.  
 

 
            
 
            Page   9
 
            
 
            
 
            
 
            
 
            Dr. Wilkerson is the only doctor who concluded that claimant 
 
            had recurrent dislocations due to the work injury rather 
 
            than claimant's bone and muscle structure and a natural 
 
            degeneration of the knee joint.  In weighing the evidence of 
 
            the last treating physician and a prior treating physician 
 
            and an evaluating physician, the undersigned considered the 
 
            experience, education, compensation, and the dates of the 
 
            examination by each physician.  
 
            
 
                 Dr. Wilkerson concluded at the end of his first 
 
            examination of claimant on December 27, 1989 that claimant 
 
            had suffered recurrent dislocations since the first injury 
 
            suffered on February 18, 1986.  Moreover, Dr. Wilkerson was 
 
            under the impression that claimant's 1989 injury had 
 
            occurred at work.  (Ex. 1, P. 165).  This impression was 
 
            never clarified during Dr. Wilkerson's deposition.  Dr. 
 
            Wilkerson made his diagnosis of recurrent patellar 
 
            dislocation without the benefit of an arthroscopic 
 
            examination.  Dr. Wilkerson later confirmed this diagnosis 
 
            when he operated.  While Dr. Wirtz had the additional 
 
            benefit of Dr. Wilkerson's post operative report to consider 
 
            when he gave his opinion, both doctors were looking at 
 
            essentially the same information when they made their 
 
            initial diagnosis.  That is both doctors were looking at the 
 
            history of the injury as described by Dr. Follows and Dr. 
 
            Pechacek and x-ray films of claimant's knee.  These doctors 
 
            reached opposite conclusions regarding the cause of 
 
            claimant's knee problems.  The only other doctor who looked 
 
            at claimant's knee arthroscopically and gave an opinion in 
 
            this case is Dr. Pechacek.  Dr. Pechacek examined claimant's 
 
            knee in 1987, noted the area of osteocartilaginous damage, 
 
            noted the history of the old bone fragment, noted cratering 
 
            on the patella and other anatomical anomalies that Dr. Wirtz 
 
            found.  Dr. Pechacek concluded in February of 1990 that 
 
            there was no patellar dislocation at the time of claimant's 
 
            1986 injury.  His opinion thus tips the scale against the 
 
            claimant.
 
            
 
                 Additionally, there is insufficient evidence in the 
 
            record that shows that claimant had a continuing problem 
 
            with his knee.  Claimant testified that he had a dislocation 
 
            2 to 3 times per month from the time of his release from Dr. 
 
            Pechacek until the time of his 1989 injury.  Yet, claimant 
 
            did not seek medical attention for this condition for nearly 
 
            three years to correct the problem.  This, in light of the 
 
            fact that he had a new son he was afraid to hold because his 
 
            knee might give way and he would fall with the baby in his 
 
            arms.  Finally, one of the reasons claimant did not seek 
 
            medical attention for his knee between 1987 and 1989 was 
 
            because his son was having health problems.  However 
 
            claimant's son was not born until 1989 and claimant gave a 
 
            history in March of 1990 that his son was in good health.
 
            
 
                 Given these factors in addition to the conclusions by 
 
            Dr. Wirtz and Dr. Pechacek regarding anatomical anomalies, 
 
            the claimant has failed to sustain his burden of proof 
 
            regarding the causal nexus between the injury in 1986 and 
 
            the injury in 1989 and will take nothing from this 
 
            proceeding.
 
            
 

 
            
 
            Page  10
 
            
 
            
 
            
 
            
 
                 2.  Whether claimant is entitled to medical benefits, 
 
            including a determination of causal connection to the work 
 
            injury and the causal connection of this condition to a work 
 
            injury.
 
 
 
                 The claimant has the burden of demonstrating that the 
 
            medical services obtained were related to the injury in 
 
            order to have the expenses reimbursed or paid.  Auxier v. 
 
            Woodward State Hospital, 266 N.W.2d 139, 144 (Iowa 1978).  
 
            In this instance, there is insufficient evidence in the 
 
            record to support a finding of causal nexus between 
 
            claimant's injury in 1989 and the work injury in 1986.  
 
            Consequently, claimant will not be awarded medical benefits 
 
            for the medical services he used for the 1989 injury.
 
            
 
                                      Order
 
            
 
                 THEREFORE, it is ordered:
 
            
 
                 1.  Timothy Stoever, claimant shall take nothing 
 
            further from these proceedings.
 
            
 
                 2.  The costs of this action shall be assessed to Lee 
 
            Holt Motors and Universal Underwriters Group pursuant to 
 
            rule 343 IAC 4.33.
 
            
 
                 Signed and filed this ____ day of May, 1991.
 
            
 
            
 
            
 
            
 
                                          
 
            ________________________________
 
                                          ELIZABETH A. NELSON
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr Dick H Montgomery
 
            Attorney at Law
 
            316 11th Street SW Plaza
 
            PO Box 7038
 
            Spencer Iowa 51301
 
            
 
            Ms Judith Ann Higgs
 
            Attorney at Law
 
            701 Pierce St Ste 200
 
            PO Box 3086
 
            Sioux City Iowa 51102
 
            
 
            
 
                 
 
            
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                      5-1402.30 - 5-2600
 
                      File May 24, 1991
 
                      ELIZABETH A. NELSON
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
                      :
 
            TIMOTHY D. STOEVER, :
 
                      :
 
                 Claimant, :
 
                      :
 
            vs.       :
 
                      :      File No. 817316
 
            LEE HOLT MOTORS,    :
 
                      :    A R B I T R A T I O N
 
                 Employer, :
 
                      :      D E C I S I O N
 
            and       :
 
                      :
 
            UNIVERSAL UNDERWRITING GROUP, :
 
                      :
 
                 Insurance Carrier,  :
 
                 Defendants.    :
 
            ___________________________________________________________
 
            
 
            5-1402.30
 
            Claimant, suffered a knee injury in 1986 at work.  Claimant 
 
            had two arthroscopic surgeries in 1986 and 1987 to repair 
 
            the damage to his knee.  He was assigned a 5 percent 
 
            impairment rating in 1987 and released from medical care.  
 
            Claimant did not seek medical attention for his knee until 
 
            December 1989 when his knee hyperextended and he fell.  
 
            There was insufficient evidence in the record to establish a 
 
            causal connection between the knee injury in 1986 and the 
 
            knee injury in 1989.  Claimant took nothing from the 
 
            proceeding.
 
            
 
            5-2600
 
            The evidence of a prior treating physician and an evaluating 
 
            physician was given more weight that the evidence given by 
 
            the last treating physician.  The prior treating physician 
 
            and the evaluating physician independently agreed that the 
 
            claimant had certain anatomical anomalies that would lead to 
 
            recurrent patellar dislocations.  These doctors also agreed 
 
            that claimant did not suffer a patellar dislocation at the 
 
            time of his 1986 injury.  The last treating physician 
 
            indicated that claimant had suffered a patellar dislocation 
 
            at the time of the first injury.  Additionally, the last 
 
            treating physician was under the impression that the second 
 
            injury occurred at work and this impression was never 
 
            clarified during this doctor's deposition.
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                    
 
         
 
                        BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         TIMOTHY J. KELLEY,
 
         
 
              Claimant,                            File No. 817722
 
         
 
         vs.                                    A R B I T R A T I O N
 
         
 
         SUKUP MANUFACTURING COMPANY,              D E C I S I O N
 
         
 
              Employer,
 
                                                      F I L E D
 
         and
 
                                                     OCT 20 1989
 
         U.S.F. & G.,
 
                                                 INDUSTRIAL SERVICES
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
                               INTRODUCTION
 
         
 
              This is a proceeding in arbitration brought by Timothy J. 
 
         Kelley against his former employer, Sukup Manufacturing Company, 
 
         and its insurance carrier, U S F & G.  The case was heard and 
 
         fully submitted at Waterloo, Iowa on February 14, 1989.  The 
 
         record in.this proceeding consists of testimony from Steven 
 
         Lambert, Nils Robert Varney, Hilda J. Hanney, Robert N. Varney, 
 
         John Swanson, James Meehan, and Patty Kelley.  The record also 
 
         contains claimant's exhibits 1 through 69, 72, 74, 75, and 
 
         80-through 93.  Exhibit 94 is in the record as an offer of proof 
 
         only.  The record also contains defendants' exhibits A through I, 
 
         K through N, and R.
 
         
 
                                   ISSUES
 
         
 
              The issues presented by the parties for determination are 
 
         whether claimant sustained an injury on or about March 2, 1986 
 
         which arose out of and in the course of employment with Sukup 
 
         Manufacturing Company and if so, a determination of claimant's 
 
         entitlement to compensation for healing period, permanent 
 
         disability and medical expense entitlement under Iowa Code 
 
         section 85.27.  In the event of an award, the employer seeks 
 
         credit for sick pay or disability income payments.
 
         
 
                             SUMMARY OF EVIDENCE
 
         
 
              The following is a summary of evidence presented in this 
 
         case.  Of all the evidence received at the hearing, only that 
 
         considered most pertinent to this decision is discussed. 
 
         Conclusions about what the evidence showed are inevitable with 
 
         any summarization.  The conclusions in the following summary 
 
                                                
 
                                                         
 
         should be considered to be preliminary findings of fact.
 
         
 
              The record in this case is extensive and no attempt is made 
 
         in this decision to refer to each article of evidence or even to 
 
         each source of the evidence that was received.  The failure to 
 
         make reference to any particular bit of evidence in this decision 
 
         is not an indication that the evidence was not considered when 
 
         deciding the case.
 
         
 
              On March 2, 1986, just before midnight, Timothy J. Kelley 
 
         was driving a Sukup Manufacturing truck eastbound on Interstate 
 
         80 near Iowa City.  At several places in the medical records, the 
 
         history is given that he had experienced a severe headache while 
 
         driving that night.  As Kelley approached the Iowa River bridge, 
 
         the truck moved into the median of the interstate, struck the 
 
         guardrail and then returned to the traveled portion of the 
 
         roadway.  The truck continued eastbound, crossing the bridge and 
 
         both eastbound lanes of traffic and came to a stop on the south 
 
         shoulder of the road approximately 100 feet beyond the east edge 
 
         of the river bridge.  Investigating officer Steven Lambert stated 
 
         that he found the claimant in the truck, behind the wheel, 
 
         attempting to drive the tractor out of the ditch and that the 
 
         trailer was turned sharply and extended onto the traveled portion 
 
         of the roadway as shown in exhibit 81.  Lambert identified 
 
         exhibit D as a photo of the area which does not show the damage.  
 
         Lambert stated that the median was fairly wet and muddy and that 
 
         there were tracks in the median which showed a gradual path of 
 
         tire tracks leaving the interstate and running to the guardrail 
 
         where a portion of it was ripped and twisted from the posts.  
 
         Lambert stated that the truck had obviously been in an accident, 
 
         but that the damage was very light and appeared to be on the 
 
         driver's side. He felt that the truck could probably have been 
 
         driven.  He did not notice the guardrail posts to be displaced.  
 
         Lambert stated that when interviewing claimant, claimant reported 
 
         having had a headache earlier in the day, but made no other pain 
 
         complaints and that there were no visible signs of injury.
 
         
 
              John Swanson, shipping foreman for Sukup Manufacturing, 
 
         stated that following claimant's accident, he retrieved the 
 
         truck. Swanson stated that exhibit C are photographs which were 
 
         taken in late 1988 and that the light, grill and bumper shown on 
 
         the truck are the same ones that were on it at the time of the 
 
         accident. Swanson stated that when he picked up the truck, there 
 
         was damage at the outside corner of the bumper and a crease about 
 
         one foot in from the driver's side corner which had not been 
 
         there prior to the accident.  Swanson identified a dent in the 
 
         side of the fuel tank as having not been there prior to the 
 
         accident.  Swanson stated that in the accident the chrome lug nut 
 
         covers were stripped off the lug nuts and that the outside rear 
 
         tires on the driver's side of the tractor were damaged and needed 
 
         to be replaced.  Swanson stated that the only repairs made before 
 
         taking the truck back to the business office were to replace the 
 
         tires and rims on the tractor and to repair damage done on the 
 
         rear of the trailer.  Swanson stated that the front bumper on the 
 
         tractor is made of light-weight aluminum and that the wheels on 
 
                                                
 
                                                         
 
         the tractor were also aluminum and were permanently replaced.  
 
         Exhibit E shows the repair costs for those repairs made at 
 
         Coralville, Iowa to have been $291.33.  Following those repairs, 
 
         Swanson drove the truck back to the company offices at Sheffield, 
 
         Iowa.  Swanson stated that the truck had been carrying a light 
 
         load, that the load had not shifted and that the load sustained 
 
         only minor damage.  Exhibit 85 shows the weight of the loaded 
 
         tractor-trailer unit to have been 39,383 pounds at the time of 
 
         the accident.
 
         
 
              Exhibits 82, 83 and 90 demonstrate the repairs made to the 
 
         guardrail and bridge following the accident.  It demonstrates 
 
         that one 13 1/2 foot section of guardrail, six posts and a bridge 
 
         endrail were replaced.
 
         
 
              Robert N. Varney, a physics professor, testified concerning 
 
         the forces and impact which would have been involved when the 
 
         truck struck the guardrail.  Varney assumed that the truck was 
 
         traveling 65 miles per hour, hit the rail at a 30 degree angle 
 
         and that the rail moved only one foot.  Professor Varney stated 
 
         that he computed the force of the impact which claimant, as the 
 
         driver of the truck, would have experienced to be 35 times the 
 
         force of gravity.  Professor Varney stated that Navy pilots black 
 
         out at a force of 4 times the force of gravity and that crash 
 
         tests have been done where individuals have been able to survive 
 
         up to 9 times the force of gravity.  Professor Varney agreed that 
 
         the truck was moving quickly after it struck the rail and might 
 
         not have lost much velocity or decelerated much in striking the 
 
         rail. Professor Varney also stated that his G-force computations 
 
         assumed the vehicle came to a complete stop at the guardrail, yet 
 
         his computations also showed the vehicle to have retained 87 
 
         percent of its velocity after striking the guardrail, which 
 
         indicates that it would have lost only approximately 10 miles per 
 
         hour in velocity.  He stated that if the angle of impact was less 
 
         than 30 degrees, the amount of deceleration would also be 
 
         reduced.  Varney testified that he has not previously performed 
 
         consulting work with motor vehicle accident reconstruction, 
 
         although he did testify in a one-car collision case dealing with 
 
         determining who was driving the vehicle.
 
         
 
              James Meehan, a licensed professional engineer, testified 
 
         regarding reconstruction of the accident.  Meehan testified that 
 
         he has been involved in over 100 litigated cases in the last 10 
 
         years and currently has 12 reconstruction cases in his office. 
 
         Meehan examined photographs of the truck, the investigating 
 
         officer's report, considered statements from the claimant and 
 
         several other matters when evaluating the case.  Meehan assumed 
 
         that the initial velocity of the truck had been 55 miles per 
 
         hour. Meehan testified that from his evaluation of the known 
 
         factors, the deceleration that occurred when the truck struck the 
 
         guardrail was in the range of normal braking and that the forces 
 
         were not sufficient to cause a head injury under recognized 
 
         studies and standards.
 
         
 
              Following the accident, claimant was observed to be acting 
 
                                                
 
                                                         
 
         abnormally and was taken to Mercy Hospital at Iowa City, Iowa 
 
         where he was admitted.  The primary treating physician was 
 
         neurologist R. F. Neiman, M.D.  A CT scan indicated hemorrhage in 
 
         the basal ganglia region of claimant's brain.  When a repeat CT 
 
         scan showed a 40 percent increase in the size of the hemorrhage 
 
         and claimant began developing bradycardia, he was transferred to 
 
         the University of Iowa Hospitals and Clinics under the care of 
 
         John Van Gilder; M.D., head of the neurosurgery department 
 
         (exhibit 7).
 
         
 
              The claimant in this case has been extensively tested and 
 
         evaluated by a number of physicians, psychiatrists and 
 
         psychologists (exhibits 17, 31, 32, 33, 36, and 62).  The 
 
         evaluators have generally concluded that claimant is disabled due 
 
         to brain injury.  The diagnoses include mixed organic brain 
 
         syndrome with features of organic affective syndrome and organic 
 
         personality syndrome (exhibit 31).
 
         
 
              Dr. Van Gilder stated that claimant had a hemorrhage in the 
 
         right frontal lobe of his brain which had produced sufficient 
 
         pressure to cause midline shift of brain tissue.  Claimant 
 
         underwent a right frontal craniotomy and evacuation of an 
 
         intracerebral hematoma (exhibit 39; exhibit F, pages 17-24).
 
         
 
              Dr. Van Gilder explained that claimant suffered brain damage 
 
 
 
                             
 
                                                         
 
         from two sources, that blood from the hematoma destroyed brain 
 
         tissue and that the pressure caused by the hematoma also 
 
         destroyed brain tissue.  He explained that the reactive changes 
 
         or bruising found by the pathology department indicate damage 
 
         from the blood clot itself and are not an indication of the cause 
 
         of the hematoma (exhibit F, pages 25-30).
 
         
 
              Dr. Van Gilder expressed the opinion that the hematoma 
 
         resulted from a small arterial venous anomaly which destroyed 
 
         itself at the time of hemorrhage and resulted in the blood clot. 
 
         He opined that it occurred prior to the time that the truck 
 
         accident occurred.  Dr. Van Gilder stated that all of the brain 
 
         damage and symptoms which claimant has exhibited are consistent 
 
         with the damage done by the bleed, clot and surgery and that they 
 
         are not due to external trauma.  He stated that the damage was 
 
         spontaneous (exhibit F, pages 34-38, 41, 42, 50, 51, 73-75 and 
 
         90-95).
 
         
 
              Psychologist Douglas A. Stevens, Ph.D., evaluated claimant. 
 
         Stevens agreed that claimant has organic personality disorder 
 
         that is consistent with the basal ganglia bleed and surgery.  He 
 
         stated that the symptoms and deficits which claimant exhibited 
 
         are consistent with the cerebral vascular accident and are not an 
 
         indication of external trauma.  He stated that the deficits are 
 
         more consistent with damage from a stroke than from trauma 
 
         (exhibit K, pages 18, 19, 20, 34, 35 and 49).  Stevens agreed 
 
         that anosmia is a symptom of orbital frontal damage, but that it 
 
         can exist without the presence of other symptoms where there has 
 
         been external trauma.  Stevens explained that claimant's anosmia 
 
         did not necessarily occur at the time of the truck accident 
 
         (exhibit K, pages 130 and 131).
 
         
 
              Nils Robert Varney, a clinical neuropsychologist, explained 
 
         that claimant has three problems, the basal ganglia stroke, 
 
         orbital frontal damage, and seizure disorder.  Varney stated that 
 
         the orbital frontal damage is almost always a result of 
 
         mechanical trauma such as whiplash or hitting the windshield of a 
 
         vehicle. Varney stated that the existence of anosmia establishes 
 
         that claimant's brain damage is not limited to that which was 
 
         caused by the basal ganglia bleed.
 
         
 
              Varney testified that the basal ganglia bleed did not cause 
 
         claimant to be permanently and totally disabled, but that the 
 
         permanent total disability resulted from the frontal lobe 
 
         syndrome which occurred due to trauma sustained in the truck 
 
         accident. Varney agreed that the damage from the hematoma could 
 
         have caused anosmia, however (exhibit I, pages 111-113).  
 
         Claimant's deposition indicates that he was not aware he had 
 
         anosmia until it was discovered by Dr. Varney (exhibit B, pages 
 
         41-44).
 
         
 
                          APPLICABLE LAW AND ANALYSIS
 
         
 
              Claimant has the burden of proving by a preponderance of the 
 
         evidence that he received an injury on or about March 2, 1986 
 
                                                
 
                                                         
 
         which arose out of and in the course of his employment.  McDowell 
 
         v. Town of Clarksville, 241 N.W.2d 904 (Iowa 1976); Musselman v. 
 
         Central Telephone Co., 261 Iowa 352, 154 N.W.2d 128 (1967).
 
         
 
              The "arising out of" requirement is satisfied by showing a 
 
         causal relationship between the employment and the injury.  
 
         Sheerin v. Holin Co., 380 N.W.2d 415 (Iowa 1986); Crowe v. DeSoto 
 
         Consol. Sch. Dist., 246 Iowa 402, 68 N.W.2d 63 (1955).
 
         
 
              The claimant has the burden of proving by a preponderance of 
 
         the evidence that the injury on or about March 2, 1986 is 
 
         causally related to the disability on which he now bases his 
 
         claim.  Bodish v. Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867 
 
         (1965).  Lindahl v. L.O. Boggs, 236 Iowa 296, 18 N.W.2d 607 
 
         (1945).  A possibility is insufficient; a probability is 
 
         necessary.  Burt v. John Deere Waterloo Tractor Works, 247 Iowa 
 
         691, 73 N.W.2d 732 (1955).  The question of causal connection is 
 
         essentially within the domain of expert testimony.  Bradshaw v. 
 
         Iowa Methodist Hospital, 251 Iowa 375, 101 N.W.2d 167 (1960).
 
         
 
              However, expert medical evidence must be considered with all 
 
         other evidence introduced bearing on the causal connection.  
 
         Burt, 247 Iowa 691, 73 N.W.2d 732.  The opinion of experts need 
 
         not be couched in definite positive or unequivocal language.  
 
         Sondag v. Ferris Hardware, 220 N.W.2d 903 (Iowa 1974).  However, 
 
         the expert opinion may be accepted or rejected, in whole or in 
 
         part, by the trier of fact.  Id. at 907.  Further, the weight to 
 
         be given to such an opinion is for the finder of fact, and that 
 
         may be affected by the completeness of the premise given the 
 
         expert and other surrounding circumstances.  Bodish, 257 Iowa 
 
         516, 133 N.W.2d 867.  See also Musselman v. Central Telephone 
 
         Co., 261 Iowa 352, 154 N.W.2d 128 (1967).
 
         
 
              The greater weight of the evidence is that the intracranial 
 
         bleed or stroke was a spontaneous event due to a congenital 
 
         defect in a small blood vessel in claimant's brain.  The 
 
         excitement and increase in blood pressure associated with an 
 
         event such as the accident could cause the rupture of a 
 
         previously weakened blood vessel, although in this case the 
 
         evidence of a headache prior to the time of the accident is 
 
         relied upon by Dr. Van Gilder and others in determining that the 
 
         intracranial bleed had occurred prior to the time of the accident 
 
         (exhibit F, pages 13, 32-33, 99; exhibit I, page 115; exhibit 6; 
 
         exhibit 7; exhibit 20; exhibit 60).  The record contains no 
 
         opinion evidence to the contrary.
 
         
 
              Since the intracranial bleed or stroke was a spontaneous 
 
         event, any damage which resulted from it did not arise out of 
 
         claimant's employment and the employer is not responsible for it. 
 
         The injury arose out of a risk personal to the claimant.  It is 
 
         sometimes called an idiopathic condition.
 
         
 
              In order for any compensation to be awarded for the results 
 
         of an idiopathic condition, it is necessary that the employment 
 
         place the employee in a condition which aggravates the effects of 
 
                                                
 
                                                         
 
         the idiopathic injury.  O'Rourke v. Northstar Chemicals, Inc., 
 
         281 N.W.2d 192, 194 (Minn. 1979); 1 Larson Workmen's Compensation 
 
         Law, sections 12.00 et seq.
 
         
 
              In this case, claimant's employment placed him behind the 
 
         wheel of a tractor-trailer truck.  That vehicle left the traveled 
 
         portion of the roadway and was involved in a collision.  If the 
 
         claimant sustained additional injury in that collision, then the 
 
         employer is liable.
 
         
 
              The primary issue in this case is whether or not the damage 
 
         which currently afflicts Timothy J. Kelley is a result of the 
 
         consequences of the stroke or whether trauma from the accident 
 
         has played some material part in bringing about his current state 
 
         of disability.  Claimant has been awarded Social Security 
 
         disability compensation and there appears to be little bona fide 
 
         dispute regarding the claim that he is totally disabled.
 
         
 
              The extent of injury which results from trauma is often 
 
         related to the severity of the trauma.  In this case there is a 
 
         major discrepancy between the assessment of the forces which 
 
         would have impacted upon claimant when the truck struck the 
 
         guardrail. Of the two experts who testified, namely Robert N. 
 
         Varney and James Meehan, Meehan certainly has greater experience 
 
         in the field of vehicular accident reconstruction.  Meehan's 
 
         assessment of the case is also much more consistent with the 
 
         extent of the damage which the truck sustained in the accident.  
 
         It is noted that most of the damage is found on the driver's side 
 
         of the truck.  Very little damage is apparent on the front of the 
 
         truck.  The location of the damage indicates that the truck 
 
         scraped against the guardrail rather than impacting upon it 
 
         directly with the front of the truck.  The limited damage to the 
 
         front of the truck is strong evidence that there was no abrupt 
 
         deceleration.  The further fact that the truck returned to the 
 
         traveled surface of the road and crossed the bridge before coming 
 
         to a stop is further evidence that little deceleration occurred 
 
         from striking the guardrail. When all the evidence in the case is 
 
         considered, it is determined that little deceleration occurred 
 
         when the truck scraped against the guardrail and that claimant's 
 
         head and body were not subjected to forces substantially greater 
 
         than those experienced during normal braking.  The assessment of 
 
         the case as described by James Meehan is accepted as being 
 
         correct.  If the truck had struck with the forces described by 
 
         Robert N. Varney, the undersigned would have expected a 
 
         tremendous amount of damage to the truck, more damage than was 
 
         noted on the front of the truck, and much more extensive damage 
 
         to the guardrail.
 
         
 
              Of all the physicians, psychiatrists and psychologists who 
 
         have been involved in this case, the undersigned notes that Dr. 
 
         Van Gilder is an experienced neurosurgeon and is the head of the 
 
         neurosurgery department at the University of Iowa Hospitals and 
 
         Clinics.  The undersigned considers those credentials to be 
 
         superior to the credentials of any of the other physicians or 
 
         psychologists who have presented evidence in this case.  It is 
 
                                                
 
                                                         
 
         important to note that the existence of anosmia in the claimant 
 
         cannot be shown to have had its origin at the time of the truck 
 
         accident.  Since the claimant was not aware of the anosmia until 
 
         it was found by neuropsychologist Varney, it is as likely that it 
 
         existed prior to the time of the truck accident as it is that it 
 
         had its origin with the truck accident.  The record of this case 
 
         clearly shows that claimant had experienced head traumas prior to 
 
         the time of the truck accident.  The assessment of claimant's 
 
         condition and the causes for that condition as explained by Dr. 
 
         Van Gilder is accepted as correct.  It is therefore determined 
 
         that Timothy J. Kelley has failed to prove, by a preponderance of 
 
         the evidence, that he sustained any injury of any type whatsoever 
 
         as a result of the truck accident in which he was involved on or 
 
         about March 2, 1986.  Even if the burden of proof in this case 
 
         were considered in such a manner as to place the burden upon the 
 
         employer to prove that the accident did not cause any injury to 
 
         claimant, the undersigned considers the evidence sufficient to 
 
         conclude that the employer has in fact carried that burden of 
 
         proving that no significant injury resulted from the truck 
 
         accident.
 
         
 
              Since claimant has failed to prove, by a preponderance of 
 
         the evidence, that he sustained injury which arose out of 
 
         employment and that the injury caused permanent disability, the 
 
         burden of proof for apportioning disability does not shift to the 
 
         employer. Varied Enterprises, Inc. v. Sumner, 353 N.W.2d 407 
 
         (Iowa 1984). Even if the burden of proof in this case were to be 
 
         held to have shifted to the employer as a result of the limited 
 
         trauma that occurred when the truck left the roadway and scraped 
 
         the guardrail, the evidence is sufficiently strong that the 
 
         undersigned would still find that no injury or disability 
 
         resulted from the truck accident and that all of claimant's 
 
         disability is a direct result of the stroke.
 
 
 
                          
 
         
 
                            FINDINGS OF FACT
 
         
 
              1.  Timothy J. Kelley experienced a severe headache while 
 
         driving a truck for his employer, Sukup Manufacturing Company, on 
 
         or about March 2, 1986.
 
         
 
              2.  The headache was a symptom of an intracranial bleed in 
 
         the basal ganglia region of his brain.
 
         
 
              3.  While driving, with the ongoing bleed apparently being 
 
         considered to merely be a headache by the claimant, the truck 
 
         moved into the median of Interstate 80 and scraped against a 
 
         guardrail located at the Iowa River bridge near the Coralville 
 
         interchange.
 
         
 
              4.  The reconstruction of the accident as explained by James 
 
         Meehan is correct and Kelley was not subjected to any forces of 
 
         deceleration in the accident which were substantially greater 
 
         than the forces experienced during normal braking.
 
         
 
              5.  The assessment of this case as made by Dr. Van Gilder is 
 
         accepted as correct with regard to the cause of the symptoms 
 
         which claimant has exhibited.  It is determined that all of 
 
         claimant's residual symptoms are consistent with the type of 
 
         damage which resulted from the hematoma and corrective surgery.
 
         
 
              6.  The anosmia which has been found in claimant's right 
 
         nostril has not been shown to have had its origin with the truck 
 
         accident and could possibly have either preexisted or have 
 
         resulted from the damage caused by the hematoma.
 
         
 
              7. Claimant has failed to introduce evidence which shows it 
 
         to be probable that the results of the intracranial bleed were 
 
         affected by the fact that claimant was driving or by the accident 
 
         itself.  In fact, medical treatment may have been further delayed 
 
         if the accident had not occurred and brought claimant to the 
 
         attention of local law enforcement officials.
 
         
 
              8.  The intracranial bleed in the basaL ganglia region of 
 
         claimant's brain is not shown by the evidence to have been 
 
         caused, aggravated, accelerated or altered in any manner by the 
 
         activities which claimant performed for the employer on or about 
 
         March 2, 1986.
 
         
 
                              CONCLUSIONS OF LAW
 
         
 
              1.  This agency has jurisdiction of the subject matter of 
 
         this proceeding and its parties.
 
         
 
              2.  Timothy J. Kelley has failed to prove, by a 
 
         preponderance of the evidence, that he sustained any injury that 
 
         arose out of and in the course of his employment on or about 
 
         March 2, 1986.
 
         
 
                                                
 
                                                         
 
              3.  Claimant's employer, Sukup Manufacturing Company, and 
 
         its insurance carrier have no liability under the provisions of 
 
         the Iowa workers' compensation laws.
 
         
 
                                    ORDER
 
         
 
              IT IS THEREFORE ORDERED that claimant take nothing from this 
 
         proceeding.
 
         
 
              IT IS FURTHER ORDERED that the costs of this action are 
 
         assessed against claimant pursuant to Division of Industrial 
 
         Services Rule 343-4.33.
 
         
 
              Signed and filed this 20th day of October, 1989.
 
         
 
         
 
         
 
                                            MICHAEL G. TRIER
 
                                            DEPUTY INDUSTRIAL 
 
                                            COMMISSIONER
 
         
 
         Copies To:
 
         
 
         Mr. W. H. Gilliam
 
         Attorney at Law
 
         722 Water Street Court
 
         2nd Floor
 
         Waterloo, Iowa  50703
 
         
 
         Mr. David R. Mason
 
         Mr. Mark W. Fransdal
 
         Attorneys at Law
 
         315 Clay Street
 
         P.O. Box 627
 
         Cedar Falls, Iowa  50613
 
         
 
         
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
                                                
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                            1108.50, 1402.30, 1806
 
                                            Filed October 20, 1989
 
                                            MICHAEL G. TRIER
 
         
 
                    BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         TIMOTHY J. KELLEY,
 
         
 
              Claimant,
 
         
 
         vs.                                        File No. 817722
 
         
 
         SUKUP MANUFACTURING COMPANY,            A R B I T R A T I 0 N
 
         
 
              Employer,                             D E C I S I 0 N
 
         
 
         and
 
         
 
         U.S.F. & G.,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         1108.50, 1402.30, 1806
 
         
 
              Claimant, who suffered a stroke while driving the employer's 
 
         truck, failed to prove that he sustained any injury as a result 
 
         of a collision in which the truck was subsequently involved.  It 
 
         was held that where the claimant fails to prove injury arising 
 
         out of and in the course of employment and that some disability 
 
         resulted from that injury, the burden of proof does not shift to 
 
         the employer under the rule applied when disability is to be 
 
         apportioned.
 
         
 
         
 
         
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
                                                
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                   BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         JUDY TASLER,
 
         
 
              Claimant,
 
         
 
         vs.
 
         
 
                                                  File No.  817750
 
         ARC/POLK COUNTY,
 
                                               A R B I T R A T I O N
 
              Employer,
 
                                                  D E C I S I O N
 
         and
 
         
 
         EMPLOYERS MUTUAL INSURANCE COMPANY,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
                                   INTRODUCTION
 
         
 
              This is a proceeding in arbitration brought by Judy Tasler 
 
         against ARC/Polk County, her former employer, and Employers 
 
         Mutual Insurance Company, the insurance carrier for the 
 
         employer.
 
         
 
              The case was heard and fully submitted at Des Moines, Iowa 
 
         on December 29, 1987.  The record in this proceeding consists of 
 
         testimony from Judy Tasler, testimony from Sandy Thornberg and 
 
         joint exhibits 1 through 14.
 
         
 
                                      ISSUES
 
         
 
              The only issue presented for determination was the nature 
 
         and extent of permanent disability which resulted from the 
 
         claimant's injury that occurred on October 24, 1985.  It was 
 
         stipulated on the record that the claimant had sustained an 
 
         injury on October 24, 1985 which arose out of and in the course 
 
         of employment; that all compensation due for healing period had 
 
         been paid; and, that the healing period had ended on March 18, 
 
         1987.  It was further stipulated that compensation for permanent 
 
         disability would become payable on March 19, 1987 and that all 
 
         such compensation payable to the date of hearing had been paid.  
 
         It was indicated that the employer was voluntarily paying 
 
         compensation for a 15% permanent partial disability of the body 
 
         as a whole.
 
         
 
                         REVIEW OF THE EVIDENCE
 
         
 
              The following is a summary of evidence presented in this 
 
         case.  Only the evidence most pertinent to this decision is 
 
         discussed, but all of the evidence received at the hearing was 
 
         considered in arriving at this decision.  Conclusions about what 
 
         the evidence showed are inevitable with any summarization.  The 
 
         conclusions in the following summary should be considered to be 
 
         preliminary findings of fact.
 
         
 
              Judy Tasler is a 49-year-old lady who currently resides with 
 

 
         
 
         
 
         
 
         TASLER V. ARC/POLK COUNTY
 
         PAGE   2
 
         
 
         
 
         Sandy Thornberg and Sandy's husband.
 
         
 
              Claimant is a 1957 graduate of Roosevelt High School in Des 
 
         Moines, Iowa and has attended the Des Moines Area Community 
 
         College for one to one and one-half years.  She has studied 
 
         psychology and attended seminars and retreats through her 
 
         employment with ARC.
 
         
 
              Claimant has performed clerical work for insurance companies 
 
         in the past, including keypunch operation.  In approximately 
 
         1974, she was employed by the Polk County Health Department where 
 
         she worked as an interviewer and investigator in the field of 
 
         communicable disease control.  Claimant testified that, in the 
 
         position, she typically would spend two hours a day in a car and 
 
         the balance at a desk.  In 1973, she was hospitalized at 
 
         Broadlawns Hospital on two occasions where she was treated for a 
 
         personality disorder that was diagnosed as passive-aggressive 
 
         personality--passive dependent type (exhibit 1, pages 13 and 
 
         25).
 
         
 
              On November 20, 1974, claimant was rear-ended in an 
 
         automobile accident.  She was treated by Arnis B. Grundberg, M.D. 
 
         (exhibits 2 and 3).  Claimant testified that she had no back 
 
         problems prior to that accident, but that, since the accident, 
 
         she has had problems and discomfort with her low back, but they 
 
         did not prevent her from working or from having a complete life 
 
         prior to the 1985 injury (exhibit 13, pages 28 and 29).
 
         
 
              Claimant recalled injuring her back while moving furniture 
 
         when she lived in Las Vegas during 1975 or 1976.  She testified 
 
         that, when she moved back to Des Moines in 1976, she was off work 
 
         for a considerable period of time due to her back problems 
 
         (exhibit 13, pages 29-32).
 
         
 
              Sandy Thornberg testified that she has known claimant for 
 
         more than 30 years and is aware of claimant's 1974 car accident 
 
         and the recent injury at ARC.  Thornberg stated that, following 
 
         the car accident in 1974, claimant had problems with her back 
 
         and, for a while, often lay on the floor, but she eventually 
 
         recovered completely from it.  Thornberg stated that, prior the 
 
         ARC injury, claimant was not restricted in any manner and did 
 
         normal things such as dancing.  Thornberg stated that, since the 
 
         ARC injury, claimant has become completely immobile and that, for 
 
         the first year following the injury, claimant was hardly able to 
 
         get out of bed.  Thornberg stated that she went to claimants home 
 
         to help her and performed activities such as cleaning.  Thornberg 
 
         testified that, at the present time, claimant cannot bend in 
 
         order to reach down, but that she can reach upward.  Thornberg 
 
         stated that claimant commonly stands, leaning against a wall and 
 
         often lies on the floor.  Thornberg stated that claimant can sit 
 
         for only fifteen or twenty minutes and that, at times closer to 
 
         the actual date of injury, claimant was unable to sit at all.  
 
         Thornberg could recall no difference in claimant's behavior when 
 
         she came back to Des Moines in 1976 than she had exhibited 
 
         immediately prior to moving to Las Vegas.  Thornberg was not 
 
         aware that claimant had any permanent problems as a result of the 
 
         1974 automobile accident.
 
         
 
              Claimant testified that, following the injury, she continued 
 
         to work until March, 1986, but that she eventually discontinued 
 
         work because her condition had worsened.  In her deposition, 
 
         claimant testified that she slowly improved after the injury and 
 
         that she was better at the time she was deposed than she was in 
 

 
         
 
         
 
         
 
         TASLER V. ARC/POLK COUNTY
 
         PAGE   3
 
         
 
         
 
         October of 1985 or in March of 1986 (exhibit 13, pages 48 and 
 
         49).  Upon further questioning, however, claimant stated that she 
 
         was worse at the time of being deposed than she had been in 
 
         October, 1985 and that the exercises which she had been 
 
         performing had damaged her (exhibit 13, page 62).
 
         
 
              Exhibit 10 is claimant's personnel file with ARC.  The 
 
         records indicate that claimant was hired on March 22, 1978 (page 
 
         172).  The application asked the following question:  "Do you 
 
         have any physical limitations you think we should know about?"  
 
         Claimant responded "No." (page 171).  Claimant testified that she 
 
         told of her 1974 accident when she was hired at ARC, but that she 
 
         had no restrictions at that time (exhibit 13, page 34).  When 
 
         testifying at hearing, claimant stated that, when she applied at 
 
         ARC, she wrote on the application concerning the back injury, but 
 
         upon examining exhibit 10, she was unable to locate any such 
 
         writing and indicated that it was on a different form.
 
         
 
              Claimant testified that she was employed at ARC as a work 
 
         supervisor and that her job was to make the clients as 
 
         independent as possible.  The clients are adults who are mentally 
 
         retarded and often have other physical infirmities.  Claimant 
 
         stated that ARC is a workshop, rather than a residential 
 
         facility.  Claimant stated that she taught money skills and 
 
         social skills.  She also dealt with businesses who would contract 
 
         to have the clients perform services.  Claimant stated that she 
 
         sometimes drove a pickup truck to deliver the contract work and 
 
         sometimes handled boxes of paper.  Claimant stated that the 
 
         female supervisors normally did not handle boxes.
 
         
 
              Claimant testified that a typical work day involved 
 
         approximately three hours of paperwork and approximately five 
 
         hours of work with the clients.  She stated that the paperwork 
 
         was performed sitting at a desk while work with clients was 
 
         generally performed while standing or walking.  Claimant 
 
         testified that, prior to the 1985 injury, she had no difficulty 
 
         performing the work and had no time when she or the clients 
 
         needed to lie down and rest.
 
         
 
              Claimant stated that part of the job involved being close to 
 
         the clients as they respond to touching and hugging.  She stated 
 
         that the hardest part of the work was that it left her 
 
         emotionally drained because she had to work with parents of some 
 
         of the clients and that some of the clients died at a young age.
 
         
 
              Claimant testified that, on October 24, 1985, she had a 
 
         group of clients on a walk at East Fifth and Grand Avenues when 
 
         one of the clients suffered a grand mal seizure.  Claimant stated 
 
         that she took the client's glasses and grabbed the client from 
 
         behind in order to prevent her from falling.  In the process of 
 
         doing so, she felt pain in her right buttock.  Claimant testified 
 
         that she continued to work the rest of the day and that, over the 
 
         next several days, she had pain in her right buttock and pains in 
 
         her right thigh and muscle spasm.  She stated that she continued 
 
         to work and that when she got home, her daughter would take care 
 
         of her.  Claimant stated that the more she was up, the more the 
 
         pain increased.
 
         
 
              Claimant testified that, when the pain did not go away, she 
 
         sought treatment from William Jagiello, D.O., her personal 
 
         physician and that she was treated with exercise, pain pills and 
 
         muscle relaxers.  Claimant stated that she continued to work 
 
         after seeing Dr. Jagiello and that she lay in her car at 
 

 
         
 
         
 
         
 
         TASLER V. ARC/POLK COUNTY
 
         PAGE   4
 
         
 
         
 
         lunchtime and quit going up the stairs to the staff lounge.  She 
 
         stated that her injury ultimately forced her clients to become 
 
         extremely independent.  Claimant stated that the treatment from 
 
         Dr. Jagiello was not effective and that, in March, he took her 
 
         off work because she was unable to endure the pain.  Claimant 
 
         stated that, by that time, her pain level had worsened.
 
         
 
              Claimant testified that she was examined by Robert F. 
 
         Breedlove, M.D., who took her off work and told her that she had 
 
         arthritis in her pelvis.
 
         
 
              Claimant was eventually sent to the Mercy Pain Center under 
 
         the direction of James Blessman, M.D.  At the pain center, 
 
         claimant attended four weeks of therapy, exercise and other 
 
         treatment.  She stated that a lift that was placed in her left 
 
         shoe by a therapist has helped.  Claimant used a TENS unit for a 
 
         time, but the pain clinic treatment seeks to have the patient 
 
         avoid relying upon pills or braces.
 
         
 
              The records from the Mercy Pain Center indicate that 
 
         claimant improved dramatically while she was in the program 
 
         (exhibit 8, pages 86, 87, 100, 102, 103 and 115).
 
         
 
              Claimant testified that, after leaving the pain center, she 
 
         continued to have follow-up care from Dr. Blessman and that it 
 
         was planned that she would return to work in August, commencing 
 
         with two hours per day (exhibit 7, page 82).
 
         
 
              Claimant testified that, at ARC, it is not uncommon for 
 
         clients to have seizures.  She stated that she had dealt with 
 
         clients having seizures thirty to fifty times, but was not 
 
         injured on any of the occasions except for October 24, 1985.  
 
         Claimant testified that, during the return to work, one of the 
 
         clients became violent and that two men had to hold the client 
 
         down for two hours.  Claimant testified that she felt unable to 
 
         do her job as she would be unable to restrain clients and was 
 
         afraid of being injured.  Claimant eventually resigned in 
 
         October, 1986 (exhibit 10, page 190).  Claimant testified that 
 
         the most she was able to work during the time when she tried to 
 
         resume employment was three hours per day and that her pain had 
 
         increased during the time she had attempted the return to work.
 
         
 
              Claimant testified that she discussed employment 
 
         possibilities with Shelby Swain, a rehabilitation counselor, and 
 
         with Dr. Blessman and that a plan was developed for her to engage 
 
         in home-bound work such as child care.
 
         
 
              Claimant related that she ran newspaper ads and also sought 
 
         other types of at-home work, but was unsuccessful until an ad was 
 
         located for performing respite care through Lutheran Social 
 
         Services.  Claimant stated that the work involved caring for 
 
         retarded children who were not aggressive or violent and who were 
 
         between the ages of five and.ten years.  Claimant testified that 
 
         she could take up to three children per day and would be paid $10 
 
         or $20 per day per child, but that work was not available every 
 
         day.  Claimant stated that, in the six months she performed 
 
         respite care, her income varied from $140 to $290 per month.  She 
 
         stated that she had no choice with regard to how much work she 
 
         would be able to have since it was arranged by a social worker.  
 
         Claimant testified that she was unable to keep up the payments in 
 
         her home and was compelled to sell it.  She stated that, since 
 
         selling the home, she has no place in which to perform the 
 
         respite care, but that she would like to be able to move into her 
 

 
         
 
         
 
         
 
         TASLER V. ARC/POLK COUNTY
 
         PAGE   5
 
         
 
         
 
         own apartment where she could resume the activity.
 
         
 
              Claimant testified that she occasionally receives $150 in 
 
         back child support.  She related that sue currently has a Social 
 
         Security Disability claim pending, but that it has previously 
 
         been turned down on two occasions.
 
         
 
              In a report dated March 19, 1987, Dr. Breedlove has 
 
         indicated that claimant has degeneration of her facet joints 
 
         which are a result of the prior automobile accident.  Dr. 
 
         Breedlove stated that she has a five percent permanent impairment 
 
         due to a decreased range of motion (exhibit 5, pages 64 and 65).
 
         
 
              Dr. Blessman has agreed that a five percent permanent 
 
         impairment rating is not unreasonable.  He felt that claimant 
 
         should follow restrictions of no mole than 35 pounds of lifting 
 
         and that she avoid repetitive bending and stooping.  Dr. Blessman 
 
         felt that claimant's back had been aggravated by the episode that 
 
         occurred at ARC (exhibit 7, page 74).
 
         
 
              Dr. Jagiello indicated that claimant had pain which had been 
 
         present intermittently since her automobile accident.  He 
 
         diagnosed her current condition as acute lumbar strain secondary 
 
         to the work-related injury and that she also had a history of 
 
         chronic back pain.  Dr. Jagiello indicated that claimant will be 
 
         unable to return to her former employment where lifting and 
 
         patient care were involved (exhibit 4, page 50).
 
         
 
              Claimant testified that, if she sits, her pain level 
 
         elevates.  She stated that standing with the heel of her right 
 
         foot placed on the toe of her left foot is the most comfortable 
 
         position for her other than lying on her side with a pillow under 
 
         her waist and another pillow between her legs.  Claimant stated 
 
         that she commonly lies on the floor or in bed.  Claimant stated 
 
         that she can sit or drive up to 15 minutes, but that, if she 
 
         tries to do it longer, the pain accelerates and it then takes 
 
         days for it to go away.  She stated that, in order to travel 
 
         farther, she needs to lie down on the seat.  Claimant stated that 
 
         she takes Extra Strength Tylenol for pain relief as Drs. Blessman 
 
         and Jagiello do not want her on prescription medications.  She 
 
         stated that she does not perform exercises because they elevate 
 
         the pain.  She stated that she does not use a back support 
 
         because the doctors have recommended against it as it would allow 
 
         her muscles to weaken.  Claimant stated that she can walk 
 
         approximately one-half of a block before her pain elevates.  She 
 
         stated that she has no social life, no parties, no dancing, no 
 
         movies and no work.  She stated that she does not do anything 
 
         where she has to sit.  She stated that she can dress herself, but 
 
         that it takes quite a while and that shoes and socks are a 
 
         particular problem.  Claimant related that she can do dishes, but 
 
         that any bending over such as to use the oven or to vacuum 
 
         hurts.
 
         
 
              Claimant testified that she performs grocery shopping using 
 
         a cart, but that she is unable to pick things up from the bottom 
 
         shelf.  She stated that she is unable to hold her grandchildren. 
 
          Claimant stated that her pain interferes with her ability to 
 
         concentrate and that she did not feel mentally sharp at the time 
 
         of hearing due to the pain.
 
         
 
                           APPLICABLE LAW AND ANALYSIS
 
         
 
              In view of the stipulations made by the parties in the 
 

 
         
 
         
 
         
 
         TASLER V. ARC/POLK COUNTY
 
         PAGE   6
 
         
 
         
 
         pre-hearing report and at time of hearing, the only issue for 
 
         determination in this case is the degree of claimants permanent 
 
         disability.  Claimant urges that she is totally disabled and 
 
         relies upon the odd-lot doctrine.
 
         
 
              Since the injury is to claimant's back, it is not a 
 
         scheduled member and the disability is to be evaluated 
 
         industrially.
 
         
 
              As a claimant has an impairment to the body as a whole, an 
 
         industrial disability has been sustained.  Industrial disability 
 
         was defined in Diederich v. Tri-City Railway Co., 219 Iowa 587, 
 
         593, 258 N.W. 899, 902 (1935) as follows:  "It is therefore plain 
 
         that the legislature intended the term 'disability' to mean 
 
         'industrial disability' or loss of earning capacity and not a 
 
         mere 'functional disability' to be computed in the terms of 
 
         percentages of the total physical and mental ability of a normal 
 
         man."
 
         
 
              Functional disability is an element to be considered in 
 
         determining industrial disability which is the reduction of 
 
         earning capacity, but consideration must also be given to the 
 
         injured employee's age, education, qualifications, experience and 
 
         inability to engage in employment for which he is fitted.  Olson 
 
         v. Goodyear Service Stores, 255 Iowa 1112, 1121 125 N.W.2d 251, 
 
         257 (1963).
 
         
 
              Industrial disability or loss of earning capacity is a 
 

 
         
 
         
 
         
 
         TASLER V. ARC/POLK COUNTY
 
         PAGE   7
 
         
 
         
 
         concept that is quite similar to impairment of earning capacity, 
 
         an element of damage in a tort case.  Impairment of physical 
 
         capacity creates an inference of lessened earning capacity.  The 
 
         basic element to be determined, however, is the reduction in 
 
         value of the general earning capacity of the person, rather than 
 
         the loss of wages or earnings in a specific occupation.  
 
         Post-injury earnings create a presumption of earning capacity.  
 
         The earnings are not synonymous with earning capacity and the 
 
         presumption may be rebutted by evidence showing the earnings to 
 
         be an unreliable indicator.  Carradus v. Lange, 203 N.W.2d 565 
 
         (Iowa 1973); Holmquist v. Volkswagon of America, Inc., 261 N.W.2d 
 
         516 (Iowa App. 1977) A.L.R.3d 143; Michael v. Harrison County, 
 
         34th Biennial Report, 218 (1979): 2 Larson Workmen's Compensation 
 
         Law, sections 57.21 and 57.31.
 
         
 
              Permanent disability means a disability that is lasting for 
 
         an indefinite an undeterminable period.  It does not require 
 
         absolute perpetuity.  Wallace v. Brotherhood, 230 Iowa 1127, 1130 
 
         (1941).  The test of whether a person is permanently and totally 
 
         disabled in the workers' compensation setting has long been 
 
         established and may be summarized as follows:  When the 
 
         combination of the factors considered in determining industrial 
 
         disability precludes the worker from obtaining regular employment 
 
         which enables the person to be self-supporting, the disability is 
 
         total disability.  Guyton v. Irving Jensen Co.,373 N.W.2d 101, 
 
         103 (Iowa 1985); McSpadden v. Big Ben Coal Co., 282 N.W.2d 181, 
 
         192 (Iowa 1980): Diederich v. Tri-City R. Co., 219 Iowa 587, 594, 
 
         258 N.W. 899, 902 (1935).  In order to rely upon the odd-lot 
 
         doctrine, the claimant must demonstrate that reasonable efforts 
 
         have been made to secure employment as part of the prima facie 
 
         showing of total disability which causes the burden of proving 
 
         employability to shift to the employer.  Emshoff v. Petroleum 
 
         Transportation Services, file number 753723, Appeal Decision 
 
         March 31, 1987.
 
         
 
              There are few individuals in our society whose earning 
 
         capacity is zero.  There are numerous examples of individuals 
 
         with severe physical impairments who are able to produce some 
 
         level of earnings.  The test for permanent total disability is 
 
         whether or not the person has the ability to earn a living for 
 
         himself or herself.  From the standpoint of workers' 
 
         compensation, a person who does not have the ability to be 
 
         self-supporting is totally disabled.  At the time of injury, 
 
         claimant was earning an annual salary of $16,579.94 (exhibit 10, 
 
         page 189).  The most she has earned since that injury is $290 
 
         during one month when she was performing respite child care.  Two 
 
         hundred ninety dollars per month is not a sufficient level of 
 
         income to enable an individual to be self-supporting.
 
         
 
              There is ample evidence in the record to establish that 
 
         claimant did have some preexisting disability in her back as a 
 
         result of the 1974 automobile accident.  Dr. Breedlove attributes 
 
         his five percent impairment rating to degeneration which has 
 
         resulted from that accident.
 
         
 
              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).
 

 
         
 
         
 
         
 
         TASLER V. ARC/POLK COUNTY
 
         PAGE   8
 
         
 
         
 
         
 
              When an aggravation occurs in the performance of an 
 
         employer's work and a causal connection is established, claimant 
 
         may recover to the extent of the impairment.  Ziegler v. United 
 
         States Gypsum Co., 252 Iowa 613, 620, 106 N.W.2d 591 (1960).
 
         
 
              The Iowa Supreme Court cites, apparently with approval, the 
 
         C.J.S. statement that the aggravation should be material if it is 
 
         to be compensable.  Yeager v. Firestone Tire & Rubber Co., 253 
 
         Iowa 369, 112 N.W.2d 299 (1961); 100 C.J.S. Workmen's 
 
         Compensation section 555(17)a.
 
         
 
              An employer takes an employee subject to any active or 
 
         dormant health impairments, and a work connected injury which 
 
         more than slightly aggravates the condition is considered to be a 
 
         personal injury.  Ziegler v. United States Gypsum Co., 252 Iowa 
 
         613, 620, 106 N.W.2d 591 (1960), and cases cited.
 
         
 
              The employer is responsible for the full disability that 
 
         results when a preexisting condition is aggravated unless the 
 
         employer sustains the burden of proving the extent of disability 
 
         that preexisted the compensable aggravation.  Becker v. D & E 
 
         Distributing Co., 247 N.W.2d 727, 731 (Iowa 1976).
 
         
 
              When an injury produces total disability, there is no basis 
 
         for apportionment since the totally disabled are, by definition, 
 
         unable to be self-supporting and it would be contrary to the 
 
         beneficial intent and purpose of the workers, compensation laws 
 
         to require a waiting period or some other means of deducting out 
 
         the preexisting level of disability.  There is no practical way 
 
         to take such a deduction without interrupting or reducing 
 
         benefits at a time when the benefits are needed for sustenance.
 
         
 
              The perplexing part of this case is that the medically 
 
         determinable findings as indicated by the various physicians who 
 
         have examined or treated the claimant do not provide a reasonable 
 
         explanation for the level of pain of which the claimant 
 
         complained at the time of hearing.  The highest impairment rating 
 
         is a five percent rating from Dr. Breedlove.  The physical 
 
         restrictions that have been recommended by Drs. Jagiello and 
 
         Blessman are much less restrictive than those which the claimant 
 
         imposes upon herself.  Claimant has indicated that sitting is one 
 
         of her greatest problems, yet it is not mentioned as a problem in 
 
         her medical restrictions.  Claimant's testimony regarding whether 
 
         her condition has worsened or improved since the injury occurred 
 
         in 1985 and since March of 1986 has vacillated.  The record 
 
         clearly shows a great deal of improvement while she was in the 
 
         pain center program, but a relapse subsequent thereto.  The 
 
         record of claimant's 1973 hospitalization at Broadlawns contains 
 
         references to a personality disorder and allegations that she may 
 
         sometimes act sick in order to gain attention, but the recent 
 
         psychological evaluations, as the one imposed by Dr. Hines at 
 
         Broadlawns, found no psychological overlay or psychological 
 
         component to the claimant's current condition (exhibit 8, pages 
 
         86 and 87).  Claimant's testimony that she has continued to 
 
         worsen is inconsistent with the normal physiological process of 
 
         healing.
 
         
 
              On the other hand, it is quite understandable and prudent 
 
         that the claimant avoid types of employment which would subject 
 
         her to a risk of injury to her back.  It was not inappropriate 
 
         for her to cease employment at ARC.  Claimant has had the 
 
         services of a very skilled rehabilitation consultant, yet the 
 

 
         
 
         
 
         
 
         TASLER V. ARC/POLK COUNTY
 
         PAGE   9
 
         
 
         
 
         best possible employment that was able to be arranged was respite 
 
         care of retarded children which did not provide a level of income 
 
         which would enable her to be self-supporting.
 
         
 
              A great deal of the result of this case depends upon the 
 
         credibility and reliability of the claimant's testimony regarding 
 
         her physical complaints.  If they were given full and complete 
 
         credibility, the claimant would be entitled to an award of total 
 
         disability.  There are too many inconsistencies, however, to 
 
         permit an award based upon the claimants uncorroborated 
 
         complaints.  Her level of discomfort is not supported by the 
 
         medical evidence in the record.  The course of her recovery, or 
 
         lack thereof, is not what is normally expected or seen.  There is 
 
         no explanation in the record for her purported worsening, rather 
 
         than improving.
 
         
 
              It is found that claimant does suffer from chronic pain.  In 
 
         accordance with the evidence from Dr. Jagiello and Dr. Blessman, 
 
         it is found that the injury of October 24, 1985 did aggravate a 
 
         preexisting condition in claimant's low back.  Claimant is now 49 
 
         years of age.  She is effectively required to enter into a new 
 
         occupational field.  Entry level wages in most occupations are 
 
         well below her level of earnings with ARC.  The vocational 
 
         consultant was not particularly successful in finding gainful 
 
         employment for her, although this can perhaps be attributed to 
 
         the restrictions which the claimant imposed upon herself.  In any 
 
         event, however, it is determined that the claimant does have a 
 
         quite substantial degree of permanent. disability as a result of 
 
         the injury that occurred on October 24, 1985.  When all the 
 
         pertinent factors of industrial disability are considered, it is 
 
         determined that claimant has a 50% permanent partial disability 
 
         as a result of the injury that she sustained on October 24, 
 
         1985.
 
         
 
                                 FINDINGS OF FACT
 
         
 
              1.  Judy Tasler injured her low back when assisting a client 
 
         of ARC who had a seizure on October 24, 1985.
 
         
 
              2.  The injury was an aggravation of a preexisting condition 
 
         that had resulted from a 1974 automobile accident.
 
         
 
              3.  Claimant's testimony is generally accepted as being 
 
         correct except that the degree of her symptoms is determined to 
 
         be exaggerated.
 
         
 
              4.  Claimant is, as a result of the October 24, 1985 injury, 
 
         restricted in her ability to bend, stoop, lift, sit, stand and 
 
         walk.
 
         
 
              5.  Claimant should not resume employment in an occupation 
 
         which subjects her to further injury to her back.
 
         
 
              6.  Claimant, at the age of 49, will be required to enter 
 
         into a new occupational field in order to obtain gainful 
 
         employment.
 
         
 
              7.  Claimant has sustained a 50% loss of her earning 
 
         capacity as a result of the October 24, 1985 injury.
 
         
 
                                CONCLUSIONS OF LAW
 
         
 
              1.  This agency has jurisdiction of the subject matter of 
 

 
         
 
         
 
         
 
         TASLER V. ARC/POLK COUNTY
 
         PAGE  10
 
         
 
         
 
         this proceeding and its parties.
 
         
 
              2.  The injury claimant sustained on October 24, 1985 is a 
 
         proximate cause of the permanent disability with which she is 
 
         currently afflicted.
 
         
 
              3.  Claimant has a 50% permanent partial disability in 
 
         industrial terms which entitles her to receive 250 weeks of 
 
         compensation payable at the stipulated rate of $192.55 per week 
 
         commencing March 19, 1987 under the provisions of Iowa Code 
 
         section 85.34(2)(u).
 
         
 
              4.  Claimant has made a prima facie showing of total 
 
         disability when the evidence is considered in the light most 
 
         favorable to the claimant.
 
         
 
              5.  Upon considering all the evidence in the record, and 
 
         giving it the weight to which it is entitled, the claimant has 
 
         failed to carry the burden of proving that she is permanently and 
 
         totally disabled.
 
         
 
              6.  Through the inconsistencies and weight given to the 
 
         evidence, the employer's burden of persuasion with regard to the 
 
         claimant being employable has been met.
 
         
 
                                      ORDER
 
         
 
               IT IS THEREFORE ORDERED that defendants pay claimant two 
 
         hundred fifty (250) weeks of compensation for permanent partial 
 
         disability at the stipulated rate of one hundred ninety-two and 
 
         55/100 dollars ($192.55) per week payable commencing March 19, 
 
         1987.
 
         
 
              IT IS FURTHER ORDERED that defendants receive credit for all 
 
         payments previously paid and pay any accrued but unpaid amounts 
 
         in a lump sum together with interest pursuant to Iowa Code 
 
         section 85.30.
 
         
 
              IT IS FURTHER ORDERED that the costs of this proceeding are 
 
         assessed against defendants pursuant to Division of Industrial 
 
         Services Rule 343-4.33.
 
         
 
              IT IS FURTHER ORDERED that defendants file Claim Activity 
 
         Reports as requested by this agency pursuant to Division of 
 
         Industrial Services Rule 343-3.1
 
         
 
              Signed and filed this 17th day of October, 1988.
 
         
 
         
 
         
 
         
 
         
 
         
 
                                           MICHAEL G. TRIER
 
                                           DEPUTY INDUSTRIAL COMMISSIONER
 
         
 
         
 
         Copies To:
 
         
 
         Mr. Channing L. Dutton
 
         Attorney at Law
 
         West Towers Office Complex
 
         1200 35th Street, Suite 500
 

 
         
 
         
 
         
 
         TASLER V. ARC/POLK COUNTY
 
         PAGE  11
 
         
 
         
 
         West Des Moines, Iowa 50265
 
         
 
         Mr. Larry D. Spaulding
 
         Attorney at Law
 
         1100 Des Moines Building
 
         Des Moines, Iowa 50309-2464
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                                 1402.40, 1803, 1804
 
                                                 1806, 2206, 4100
 
                                                 Filed October 17, 1988
 
                                                 MICHAEL G. TRIER
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         JUDY TASLER,
 
         
 
              Claimant,
 
         
 
         vs.
 
                                                   File No. 817750
 
         ARC/POLK COUNTY,
 
                                                A R B I T R A T I O N
 
              Employer,
 
                                                   D E C I S I O N
 
         and
 
         
 
         EMPLOYERS MUTUAL INSURANCE COMPANY,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         
 
         1402.40, 1803, 1804, 1806, 2206, 4100
 
         
 
              Claimant had a preexisting back problem as a result of an 
 
         automobile accident.  The fact of her compensable injury was 
 
         admitted and the only issue in the case was the degree of 
 
         permanent disability.  The claimant's self-imposed complaints and 
 
         restrictions were much more restrictive than the restrictions 
 
         that had been imposed by her physicians. her post-injury earnings 
 
         were not capable of supporting her.  She had not found any 
 
         regular employment even though the services of a vocational 
 
         consultant had been provided.  The claimant quite appropriately 
 
         left the employ of her employer where she was exposed to a risk 
 
         of further injury to her back.  In view of the likelihood that 
 
         the future held little better than minimum wage jobs for her, she 
 
         was awarded 50% permanent partial disability.  Her odd-lot claim 
 
         was rejected in view of the disparity between her complaints and 
 
         the level of disability found by the medical practitioners.
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                   BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         JUDY TASLER,
 
         
 
              Claimant,                         File No. 817750
 
         
 
         vs.
 
                                                D E C I S I O N
 
         
 
         ARC/POLK COUNTY,
 
         
 
              Employer,
 
         
 
         and
 
         
 
         EMPLOYERS MUTUAL INSURANCE CO.
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         
 
                                STATEMENT OF THE CASE
 
         
 
              This is a proceeding brought by Judy Tasler, claimant, against 
 
         ARC/Polk County, employer, and Employers Mutual Insurance Co., 
 
         insurance carrier, seeking the enforcement of Iowa Code section 
 
         85.39.  This matter comes on before the undersigned deputy 
 
         industrial commissioner based on a "Report To the Industrial 
 
         Commissioner" filed December 20, 1988.
 
         
 
                                   FINDING OF FACT
 
         
 
              The parties report defendant will "allow" claimant to have the 
 
         independent medical examination requested.
 
         
 
                                  CONCLUSION OF LAW
 
         
 
              Claimant sustained an injury which arose out of and in the 
 
         course of her employment on October 24, 1985 for which defendants 
 
         are liable.  Pursuant to Iowa Code section 85.39, claimant is 
 
         entitled to be reimbursed by the employer the reasonable fee and 
 
         reasonably necessary transportation expenses incurred for the 
 
         examination.
 
         
 
                                        ORDER
 
         
 
              THEREFORE, IT IS ORDERED:
 
         
 
              Defendants shall reimburse claimant the reasonable fee and 
 
         reasonably necessary transportation expenses pursuant to Iowa Code 
 
         section 85.39.
 
         
 
         
 
              Signed and filed this 22nd day of December, 1988.
 
         
 
         
 
         
 
         
 

 
         
 
         
 
                                            DEBORAH A. DUBIK
 
                                            DEPUTY INDUSTRIAL COMMISSIONER
 
         
 
         
 
         Copies to:
 
         
 
         Mr. Channing Dutton
 
         Attorney at Law
 
         West Towers Office Complex
 
         1200 35th St, Ste 500
 
         West Des Moines, IA 50265
 
         
 
         Mr. Larry D. Spaulding
 
         Attorney at Law
 
         1100 Des Moines Building
 
         Des Moines, IA 50307
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                               2502
 
                                               Filed December 22, 1988
 
                                               Deborah A. Dubik
 
         
 
                       BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         JUDY TASLER,
 
         
 
              Claimant,                         File No. 817750
 
         
 
         vs.
 
                                                D E C I S I O N
 
         
 
         ARC/POLK COUNTY,
 
         
 
              Employer,
 
         
 
         and
 
         
 
         EMPLOYERS MUTUAL INSURANCE CO.
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         
 
         2502
 
         
 
              Claimant sustained an injury arising out of and in the course 
 
         of her employment for which defendants are liable.  Claimant 
 
         entitled to independent medical examination.
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                    BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         MICHAEL A. ROCKHOLD,
 
          
 
              Claimant,                              File Nos. 817760
 
                                                               823219
 
         vs.                                                   827962
 
         
 
         FISHER CONTROLS INTERNATIONAL            A R B I T R A T I O N
 
         
 
              Employer,                              D E C I S I O N
 
         
 
         and
 
                                                        F I L E D
 
         CIGNA
 
                                                       MAR 30 1989
 
              Insurance Carrier,
 
              Defendants.                          INDUSTRIAL SERVICES
 
         
 
         
 
                                  INTRODUCTION
 
         
 
              This is a proceeding in arbitration brought by Michael A. 
 
         Rockhold, claimant, against Fisher Controls International, 
 
         employer, and Cigna, insurance carrier, defendants, for benefits 
 
         as the result of three alleged injuries which occurred on, (1) 
 
         February 27, 1986, (file no. 817760), (2) May 15, 1986, (file no. 
 
         823219) and (3) July 16, 1986, (file no. 827962).  A hearing was 
 
         held in Des Moines, Iowa, on December 20, 1988, and the case was 
 
         fully submitted at the close of the hearing.  The record consists 
 
         of the testimony of Michael A. Rockhold, claimant, Glenn 
 
         Hillygus, payroll supervisor, Frank Kolbe, union representative, 
 
         Kenneth Karns, foreman, Ron Allen, loss prevention director, 
 
         joint exhibits 1 through 28 and defendants' exhibit 1.  The 
 
         deputy ordered a transcript of the hearing.  Both attorneys 
 
         submitted excellent briefs.
 
         
 
                                STIPULATIONS
 
         
 
              The parties stipulated to the following matters:
 
         
 
              That an employer-employee relationship existed between 
 
         claimant and employer at the time of all three alleged injuries.
 
         
 
              That claimant had been paid one week of temporary disability 
 
         benefits for the alleged injury of February 27, 1986; 6/7 weeks 
 
         of temporary disability benefits for the injury of May 15, 1986, 
 
         and approximately five and 4/7 weeks of temporary disability 
 
         benefits for the injury of July 16, 1986; and that causal 
 
         connection or entitlement to temporary disability benefits are no 
 
         longer disputed issues to be addressed by the decision in this 
 
         case.
 
         
 
              That the type of permanent disability, if the injuries are 
 
                                                
 
                                                         
 
         found to be the cause of permanent disability, is industrial 
 
         disability to the body as a whole.
 
         
 
              That the rate of compensation, in the event of an award of 
 
         benefits, for the alleged injury of February 27, 1986, is $381.86 
 
         per week; for the alleged injury of May 15, 1986, it is $381.86 
 
         per week and for the alleged injury of July 16, 1986, it is 
 
         $359.89 per week and that the loss in this case, if any, occurred 
 
         after the third injury.
 
         
 
              That claimant's entitlement to medical benefits is no longer 
 
         in dispute.
 
         
 
              That defendants make no claim for credit for employee 
 
         nonoccupational group health plan benefits or for workers' 
 
         compensation permanent partial disability benefits paid prior to 
 
         hearing.
 
         
 
              That there are no bifurcated claims.
 
         
 
                                      ISSUES
 
         
 
              The parties submitted the following issues for determination 
 
         at the time of the hearing.
 
         
 
              Whether claimant sustained an injury on February 27, 1986, 
 
         May 15, 1986, and July 16, 1986, which arose out of and in the 
 
         course of employment with employer.
 
         
 
              Whether any of these injuries were the cause of permanent 
 
         disability.
 
         
 
              Whether claimant is entitled to permanent disability 
 
         benefits for any of these injuries.
 
         
 
                          SUMMARY OF THE EVIDENCE
 
         
 
              Of all of the evidence presented, the following is a summary 
 
         of the evidence most pertinent to this decision.
 
         
 
              Claimant was 38 years old at the time of his alleged 
 
         injuries and 41 years old at the time of the hearing.  He is 
 
         married and has three children, ages 14, 12 & 9.  Claimant has 
 
         worked for employer for approximately 14 1/2 years.  Prior to 
 
         this employment, he managed retail shoe stores.  Prior to that he 
 
         was a field radio operator in the United States Marine Corps.  He 
 
         served in Viet Nam for 13 months.  He graduated from high school, 
 
         but has not been involved in any higher education after high 
 
         school.
 
         
 
              Claimant started to work for employer in 1974 as an 
 
         assembler.  He started to work on the large multiple drill in 
 
         approximately 1978 (transcript pages 86 & 87).  The large 
 
         multiple drill is generally considered to be heavy work.  The job 
 
         description states that the parts range from three to 414 pounds, 
 
                                                
 
                                                         
 
         but the normal range is approximately 40 to 100 pounds.  An air 
 
         hoist is available for heavy weights (exhibit 21; tr. p. 106).
 
         
 
              Claimant testified that he first injured his back on 
 
         February 27, 1986, while operating the large multiple drill.  He 
 
         felt a sharp pain in his right lower back when he tried to take a 
 
         part out of the jig.  He reported the injury to his foreman and 
 
         was sent to see the nurse.  C.G. Wuest, M.D., the in-house plant 
 
         physician, examined claimant and allowed him to go see a 
 
         chiropractor of his own choice.  Claimant was off one week, 
 
         returned to work, light duty, for a couple of weeks and then 
 
         returned to work on the large multiple drill (tr. pp. 30-35, 
 
         88-91; ex. 19, p. 9).
 
         
 
              Claimant injured his back again on May 15, 1986, while 
 
         operating the large multiple drill, lifting a 60 pound jig with 
 
         his arms extended in front of him.  All of a sudden he felt a 
 
         sharp pain again.  He went immediately to the nurse's office.  He 
 
         saw Dr. Wuest who again gave him permission to see a chiropractor 
 
         of his own choice.  Claimant was off five days to one week, 
 
         returned to light duty for approximately two weeks and then 
 
         resumed his regular duties on the large multiple drill again (tr. 
 
         pp. 35-37, 91 & 92; ex. 19, p. 8).
 
         
 
              Claimant injured his back a third time on July 16, 1986, 
 
         while machining holes in six inch bonnets with the large multiple 
 
         drill.  He was bent over positioning a bonnet which weighed 
 
         approximately 72 to 74 pounds, pulling it, when he felt a very 
 
         sharp pain in his back in the exact same place in his right lower 
 
         back.  He saw the nurse, Dr. Wuest and a chiropractor of his own 
 
         choice again.  Dr. Wuest then sent claimant to see Carl O. 
 
         Lester, M.D., an orthopedic surgeon (tr. pp. 37-42, 92-94; ex. 
 
         19, p. 6).
 
         
 
              Dr. Lester took x-rays and a CT scan which showed protrusion 
 
         of a disc in his lower back (tr. pp. 42 & 43).  Claimant was off 
 
         work for approximately five days.  He then returned to work, 
 
         light duty in the tool crib, from approximately July of 1986 to 
 
         January of 1987.  He never did return to his job on the large 
 
         multiple drill.
 
         
 
              Claimant was then assigned to a job working on small 
 
         machines.  He was working on this job at the time of the hearing. 
 
         He was not able to return to the large multiple drill because Dr. 
 
         Lester restricted him from prolonged standing, prolonged sitting, 
 
         twisting, bending and lifting more than 20 pounds.  Dr. Lester 
 
         prescribed that he was to perform a job where he could take some 
 
         walks and move around (tr. pp. 43-47).  In this new job 
 
         assignment he operates miscellaneous small machines that mill, 
 
         drill, taper and debur.  This job does not require heavy lifting 
 
         (tr. pp. 98-102).  Claimant testified that he plans to work in 
 
         this department indefinitely (tr. p. 109).
 
         
 
              Claimant was allowed to continue working on the first shift 
 
         (days), even though normally he would have been assigned to the 
 
                                                
 
                                                         
 
         second shift (evenings), because a psychiatrist verified that 
 
         working on second shift would cause claimant to have severe 
 
         depression (tr. pp. 47-49).  Claimant testified that he had been 
 
         grandfathered in to a grade nine position on the large multiple 
 
         drill prior to his injuries in 1986.  The new position which 
 
         employer has provided to claimant in order to give him employment 
 
         within Dr. Lester's restrictions, is a grade three position.  
 
         When claimant was on light duty from July of 1986 to January of 
 
         1987, he received his normal grade nine pay (tr. pp. 50-56).  The 
 
         employer's records indicate that claimant was permanently 
 
         reassigned on January 27, 1987 (tr. p. 55).
 
         
 
              On January 1, 1987, grade nine pay became $6.89 per hour.  
 
         It became $6.99 per hour on August 17, 1987.  Grade three pay was 
 
         $6.18 per hour on January 1, 1987.  Grade three pay was $6.28 per 
 
         hour on August 17, 1987.  In August of 1988, grade nine pay was 
 
         $7.09 per hour and grade three pay was $6.38 per hour (tr. pp. 
 
         56-60).
 
         
 
              When employer converted from incentive pay to a gain sharing 
 
         plan claimant received an additional $2.80 per hour in red circle 
 
         pay.  When claimant transferred from the large multiple drill 
 
         classification, grade nine, to the miscellaneous small machines, 
 
         grade three, on January 27, 1987, he lost the red circle pay (tr. 
 
         pp. 60-63, 129 & 130).
 
 
 
                          
 
                                                         
 
         
 
              Claimant calculated that he also lost bonus income.  Grade 
 
         nine bonus on February 22, 1987, was $.36 per hour and grade 
 
         three bonus was $.32 per hour.  On March 1, 1987, grade nine 
 
         bonus was $.60 per hour and grade three bonus was $.54 per hour.  
 
         These figures and several other bonus figures from February 22, 
 
         1987 to August 8, 1988, are illustrated on joint exhibit 28.  
 
         According to claimant's calculations, he lost varying amounts of 
 
         bonus ranging between $.01 per hour and $.19 per hour at 
 
         different times during this period (jt. ex. 28; tr. pp. 63-70).
 
         
 
              Claimant summarized that he lost earnings three ways, (1) 
 
         regular hourly wage, (2) red circle pay and (3) bonus income (tr. 
 
         pp. 70-72, 102 & 104).  Glenn Hillygus, employer's payroll 
 
         supervisor, corroborated claimant's testimony and verified that 
 
         claimant's testimony concerning his pay before and after these 
 
         injuries was essentially correct (tr. pp. 117-132).  In his 
 
         deposition, Hillygus testified that claimant's total pay on 
 
         February 27, 1986, in grade nine, was $6.89 per hour, regular 
 
         hourly wage, $5.28 cost of living supplement and $2.80 per hour 
 
         red circle pay.  The same pay rates applied to the alleged injury 
 
         of May 15, 1986, and July 16, 1986.  His deposition explained red 
 
         circle pay and gave claimant's pay rates for grades nine and 
 
         three and their respective increases.  His deposition generally 
 
         paralleled his hearing testimony and corroborated and verified 
 
         claimant's testimony (ex. 23).
 
         
 
              Frank Kolbe, a 20 year company employee and 14 year union 
 
         representative, corroborated claimant's testimony on regular pay, 
 
         red circle pay and bonus (tr. pp. 134-149).  He further explained 
 
         the history and rationale for red circle pay, gain sharing pay as 
 
         well as bonus (tr. pp. 132-140).  He testified that red circle 
 
         pay would be negotiated again in August of 1989.  He did not 
 
         expect a buy out of red circle pay by the company from those 
 
         employees who were still eligible for it (tr. pp. 140 & 141).  
 
         Claimant conceded that he had suffered two previous back 
 
         injuries.  One occurred on August 27, 1982, and the other 
 
         occurred on October 4, 1984.  He received one special case 
 
         settlement for both of these injuries. Both injuries occurred 
 
         while working on the large multiple drill (tr. pp. 72-74 & 83).  
 
         Claimant received $7,436.25 in this settlement (tr. pp. 116 & 
 
         117).
 
         
 
              Claimant testified that since his injuries in 1986, he 
 
         currently has pain from his back that goes down his left leg to 
 
         his left foot all of the time.  He testified that he did not have 
 
         this pain before these three injuries.  Claimant testified that 
 
         he also saw Todd Hines, Ph.D. and Alfredo Socarras, M.D.  He 
 
         testified that he is still under Dr. Lester's care.  He no longer 
 
         sees the chiropractors or the psychiatrists (tr. pp. 74-78 & 
 
         84).
 
         
 
              Dr. Socarras found no evidence of peripheral nerve or 
 
         radicular involvement.  He diagnosed chronic lumbosacral strain. 
 
         From the neurological standpoint he found no functional 
 
                                                
 
                                                         
 
         impairment (ex. 1).
 
         
 
              Defendants' counsel elicited that claimant had seen his 
 
         personal physician on August 29, 1977, when he experienced severe 
 
         low back pain to dress his daughter (ex. 2, p. 2).  C.D. 
 
         Bendixen, M.D., reported pulled midback muscles on October 27, 
 
         1982 (ex. 2, p. 1).  Claimant admitted that he saw his personal 
 
         physician again on May 23, 1983, for back pain that prevented him 
 
         from prolonged standing and sitting (ex. 2, p. 1).  He also 
 
         granted that he saw Dr. Bendixen for back pain as early as 
 
         December 10, 1974 (ex. 2, p. 2; tr. pp. 77-81).
 
         
 
              Claimant further agreed that he weighed approximately 186 
 
         pounds at the time of the hearing, but that he weighed 
 
         approximately 200 pounds at the time of these back injuries in 
 
         1986 (tr. p. 81).  Claimant could not recall what time of day he 
 
         incurred the injury on February 27, 1986 (tr. p. 88), or the time 
 
         of day he incurred the injury on May 15, 1986 (tr. p. 92).
 
         
 
              Kenneth Karns, testified that he is a 36 year employee of 
 
         employer.  He has been claimant's foreman since his transfer on 
 
         January 26, 1987.  He testified that claimant was a dependable 
 
         performer, a steady worker, a self-starter and he communicated 
 
         well.  He does a fine job except for his limitations of needing 
 
         to move around, not lifting more then 20 pounds and the fact that 
 
         he is not able to operate one of the machines called a snow 
 
         drill. The snow drill was equipped with a micro switch instead of 
 
         a foot pedal actuator in an attempt to accommodate this machine 
 
         for claimant to operate, but he still could not operate it.  
 
         Claimant works all of the machines except for the snow drill.  
 
         Claimant has been offered overtime on Saturday, but he has turned 
 
         it down which is his right to do.  Allowing claimant to move 
 
         around, walk and stand slows him down, but he gets the job done 
 
         (tr. pp. 150-158).
 
         
 
              Ronald Allen, loss prevention director for employer, 
 
         testified that there were three other jobs which came up with 
 
         employer on which claimant could have submitted a bid, but 
 
         claimant did not do so.  Allen said that red circle pay will be a 
 
         matter of negotiation when the current contract ends on August 
 
         20, 1989.  He added that fewer people qualify for it as time goes 
 
         by due to retirements and transfers from the job the employee was 
 
         performing at the time the red circle pay was negotiated.  Allen 
 
         said that he made a work study and determined that if claimant 
 
         had worked one day of overtime on Saturday, his gross wages in 
 
         grade three would have exceeded his former wages in grade nine 
 
         (tr. pp. 159-165).  Allen related that the employer had purchased 
 
         portable power tools to accommodate claimant's condition on the 
 
         large multiple drill.  He has been given latitude of movement in 
 
         his present job.  They revised the actuator on the snow drill 
 
         from a pedal to a button for him.  Allen testified that 
 
         claimant's job was secure and that he would be working in it 
 
         indefinitely (tr. pp. 165-171).
 
         
 
              It was brought out that one of the jobs that claimant could 
 
                                                
 
                                                         
 
         have bid on was grade seven, but it was on the second shift. 
 
         Another one of the jobs was grade seven, but it too was on the 
 
         second shift.  The third job was grade 11, but it also was on the 
 
         second shift.
 
         
 
              Defendants' exhibit 1, showed claimant had two weeks in 
 
         which he made more in grade three than he would have made in 
 
         grade nine, but the witness was forced to admit that if he had 
 
         worked in grade nine the same number of hours he would have made 
 
         even more (tr. pp. 171-176).
 
         
 
              Allen's deposition testimony parallels his testimony at the 
 
         hearing and corroborates claimant's testimony on his wage figures 
 
         (ex. 25).
 
         
 
              Claimant testified in rebuttal that he watched the bid board 
 
         everyday and that no jobs have come up that he has the seniority 
 
         to obtain within the restrictions placed on him by Dr. Lester and 
 
         the psychiatrist, David L. Bethel, D.O.
 
         
 
              There is a large quantity of evidence relating to the 
 
         emotional and mental problems that claimant has been treated for 
 
         over a number of years (exs. 3, 4, 6, 9, 15-18).  On November 13, 
 
         1979, Dr. Bendixen said that claimant needed at least every other 
 
         weekend off work for his mental well being (ex. 8).  Dr. Bethel 
 
         stated on November 4, 1986, that claimant would decompensate if 
 
         compelled to change job shifts.  He predicted it would cause 
 
         hospitalization and absenteeism (ex. 9, p. 2).
 
         
 
              On September 11, 1986, Dr. Lester said that a CT scan showed 
 
         a bulging disc, but not a herniated disc.  He said that it could 
 
         be treated without surgery (ex. 13, p. 6).  Later, Dr. Lester 
 
         admitted claimant to the hospital and a myelogram and CT scan, on 
 
         March 10, 1986, showed only a very small bulging at L4, L5 with 
 
         no actual herniation or rupture of the disc.  Nerve roots were 
 
         clean bilaterally.  Surgery was not indicated.  Motrin and 
 
         physical therapy were prescribed (ex. 12, pp. 4, 12 & 13).  
 
         Claimant's diagnosis was chronic lumbosacral strain and was 
 
         negative neurologically (ex. 12, p. 6).
 
         
 
              On October 2, 1986, Dr. Lester said to employer's plant 
 
         physician that claimant should be retrained and refitted with 
 
         another type of job other than the large multiple drill that 
 
         appears to be aggravating his back problem (ex. 14, p. 6).
 
         
 
              On October 14, 1986, Dr. Lester said that.a job change is in 
 
         order.  The new job should follow the following restrictions, (1) 
 
         no lifting of almost any weight, but particularly no lifting in 
 
         excess of 10 to 20 pounds at arms length in front of him, (2) 
 
         lifting and twisting at the same time and (3) avoid standing or 
 
         sitting in one place for prolonged period of time.  If claimant 
 
         can sit occasionally and move occasionally it will be helpful 
 
         (ex. 14, p. 5).
 
         
 
              On April 13, 1987, Dr. Lester told claimant's attorney that 
 
                                                
 
                                                         
 
         claimant had 0 percent of permanent partial disability, however, 
 
         the restrictions placed on him were permanent (ex. 14, p. 3).  On 
 
         May 13, 1987, Dr. Lester explained to claimant that in spite of 
 
         his discomfort, claimant did not have a permanent partial 
 
         disability because he did not meet certain definite criteria (ex. 
 
         14, p. 2).
 
         
 
              The company medical records confirmed that these three 
 
         injuries occurred as claimant testified.  They further indicate 
 
         that claimant has received a great deal of treatment by the 
 
         company at work for these injuries and other complaints (ex. 
 
         19).
 
         
 
              Dr. Lester testified by deposition on November 21, 1988, 
 
         that he is a licensed orthopedic surgeon.  Claimant has been his 
 
         patient since 1975.  He saw claimant for the back complaints from 
 
         these three injuries on August 25, 1986.  A CT scan on September 
 
         10, 1986, revealed a small central protrusion at L4, L5 as well 
 
         as mild bulging at L5, S1 (ex. 27, p. 11).  He said claimant gave 
 
         a history of hurting his back three times at work and was off 
 
         each time for approximately one week.  He testified that he 
 
         recommended that claimant be fitted for another job to prevent a 
 
         full blown ruptured disc (ex. 27, p. 8).  The doctor said that no 
 
         one knows the etiology of a bulging disc, but it is common among 
 
         working people.
 
         
 
              Dr. Lester testified that based on the history that claimant 
 
         gave and the findings he made, that the cause of claimant's 
 
         bulging disc was one of the episodes of injury that he had when 
 
         he hurt himself at work (ex. 27, p. 13).  The doctor related that 
 
         he ordered a follow-up myelogram and CT scan on March 10, 1987, 
 
         which again showed minimal central disc herniation at L4, L5 
 
         without evidence of nerve root compression (ex. 27, pp. 14 & 15).  
 
 
 
                          
 
                                                         
 
         He reconfirmed that claimant had 0 percentage of permanent 
 
         partial disability.  The restrictions he imposed on claimant are 
 
         permanent (ex. 27, p. 16).
 
         
 
              Dr. Lester testified that he placed these restrictions on 
 
         claimant because of the symptoms he was having for over a year.  
 
         As to whether the restrictions were imposed due to the job injury 
 
         or the underlying condition, Dr. Lester testified that claimant 
 
         had something wrong to begin with, but the job injury aggravated 
 
         it (ex. 27, p. 17).
 
         
 
              The doctor agreed that claimant's subjective complaints 
 
         outweighed his objective findings (ex. 27, p. 17).  Claimant 
 
         does, however, have complaints of pain and actual pain (ex. 27, 
 
         pp. 15 & 23).  Claimant also has persistent stiffness in his 
 
         back, but it does not restrict his normal range of motion (ex. 
 
         27, pp. 19 & 23).  The following colloquy transpired between 
 
         claimant's counsel and Dr. Lester:
 
         
 
                   Q.  Doctor, if I understand you correctly, you've 
 
              indicated that the disk bulging that you found in September 
 
              of '86 and March of '87, in your opinion, arose out of these 
 
              injuries--you may have the dates--but the dates were 
 
              February 27, '86; 5-15 of '86; and 7-16 of '86; is that a 
 
              correct statement?
 
         
 
                   A.  Yes.  That's a correct statement.
 
         
 
         (ex. 27, p. 20)
 
         
 
              Dr. Lester said that the bulge is probably not causing 
 
         claimant's complaints or symptoms (ex. 27, p. 23).  However, he 
 
         repeated that the restrictions that he imposed were to prevent a 
 
         ruptured disc (ex. 27, pp. 21 & 22).  He explained that when he 
 
         said that claimant had 0 percent of permanent partial disability, 
 
         he meant that claimant had no measurable impairment according to 
 
         the Guides to Evaluation of Permanent Impairment, second edition, 
 
         published by the American Medical Association (ex. 27, p. 22).
 
         
 
                           APPLICABLE LAW AND ANALYSIS
 
         
 
              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 injuries on February 27, 1986, May 15, 
 
         1986, and July 17, 1986, which arose out of and in the course of 
 
         his employment.  McDowell v. Town of Clarksville, 241 N.W.2d 904 
 
         (Iowa 1976); Musselman v. Central Telephone Co., 261 Iowa 352, 
 
         154 N.W.2d 128 (1967).
 
         
 
              The injury must both arise out of and be in the course of 
 
         the employment.  Crowe v. DeSoto Consol. Sch. Dist., 246 Iowa 
 
         402, 68 N.W.2d 63 (1955) and cases cited at pp. 405-406 of the 
 
                                                
 
                                                         
 
         Iowa Report.  See also Sister Mary Benedict v. St. Mary's Corp., 
 
         255 Iowa 847, 124 N.W.2d 548 (1963) and Hansen v. State of Iowa, 
 
         249 Iowa 1147, 91 N.W.2d 555 (1958).
 
         
 
              The claimant has the burden of proving by a preponderance of 
 
         the evidence that the injuries of February 27, 1986, May 15, 
 
         1986, and July 16, 1986, are causally related to the disability 
 
         on which he now bases his claim.  Bodish v. Fischer, Inc., 257 
 
         Iowa 516, 133 N.W.2d 867 (1965).  Lindahl v..L.O. Boggs, 236 Iowa 
 
         296, 18 N.W.2d 607 (1945).  A possibility is insufficient; a 
 
         probability is necessary.  Burt v. John Deere Waterloo Tractor 
 
         Works, 247 Iowa 691, 73 N.W.2d 732 (1955).  The question of 
 
         causal connection is essentially within the domain of expert 
 
         testimony.  Bradshaw v. Iowa Methodist Hospital, 251 Iowa 375, 
 
         101 N.W.2d 167 (1960).
 
         
 
              However, expert medical evidence must be considered with all 
 
         other evidence introduced bearing on the causal connection.  
 
         Burt, 247 Iowa 691, 73 N.W.2d 732.  The opinion of experts need 
 
         not be couched in definite, positive or unequivocal language.  
 
         Sondag v. Ferris Hardware, 220 N.W.2d 903 (Iowa 1974).  However, 
 
         the expert opinion may be accepted or rejected, in whole or in 
 
         part, by the trier of fact.  Id. at 907.  Further, the weight to 
 
         be given to such an opinion is for the finder of fact, and that 
 
         may be affected by the completeness of the premise given the 
 
         expert and other surrounding circumstances.  Bodish, 257 Iowa 
 
         516, 133 N.W.2d 867.  See also Musselman, 261 Iowa 352, 154 
 
         N.W.2d 128.
 
         
 
              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, 760-761 
 
         (1956).  If the claimant had a preexisting condition or 
 
         disability that is aggravated, accelerated, worsened or lighted 
 
         up so that it results in disability, claimant is entitled to 
 
         recover.  Nicks v Davenport Produce Co., 254 Iowa 130, 115 N.W.2d 
 
         812, 815 (1962).
 
         
 
              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, 595 
 
         (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.
 
         
 
              As a claimant has an impairment to the body as a whole, an 
 
         industrial disability has been sustained.  Industrial disability 
 
         was defined in Diederich v. Tri-City Railway Co., 219 Iowa 587, 
 
         593, 258 N.W. 899, 902 (1935) as follows:  "It is therefore plain 
 
                                                
 
                                                         
 
         that the legislature intended the term 'disability' to mean 
 
         'industrial disability' or loss of earning capacity and not a 
 
         mere 'functional disability' to be computed in the terms of 
 
         percentages of the total physical and mental ability of a normal 
 
         man."
 
         
 
              Functional impairment is an element to be considered in 
 
         determining industrial disability which is the reduction of 
 
         earning capacity, but consideration must also be given to the 
 
         injured employee's age, education, qualifications, experience and 
 
         inability to engage in employment for which he is fitted.  Olson 
 
         v. Goodyear Service Stores, 255 Iowa 1112, 1121 125 N.W.2d 251, 
 
         257 (1963).
 
         
 
              Claimant did sustain the burden of proof by a preponderance 
 
         of the evidence that he sustained injuries on February 27, 1986, 
 
         May 15, 1986, and July 16, 1986, which arose out of and in the 
 
         course of employment with employer.  On each of these 
 
         occurrences, claimant described the event or incident which 
 
         injured his back, he reported the injury to employer, was treated 
 
         by the plant nurse and Dr. Wuest, the in-house plant physician.  
 
         Dr. Wuest eventually referred claimant to Dr. Lester.  Neither 
 
         Dr. Wuest nor Dr. Lester ever suggested any other cause for 
 
         claimant's three back injuries other than the job duties he was 
 
         performing at the time he experienced the back pain and reported 
 
         these injuries.  Dr. Lester unequivocally testified that the disc 
 
         bulging was caused by one of the episodes of injury that claimant 
 
         had when he hurt his back at work (ex. 27, pp. 13 & 20).  
 
         Therefore, it is determined that claimant sustained three 
 
         injuries on the foregoing dates which arose out of and in the 
 
         course of his employment with employer.
 
         
 
              The three injuries are the cause of claimant's disability. 
 
         Dr. Lester, is not only the treating physician in this case, but 
 
         also he has been claimant's personal physician since 1975.  Dr. 
 
         Lester testified that bulging discs are common among working 
 
         people.  Even though Dr. Lester testified that claimant had 0 
 
         percent of permanent functional impairment, based upon the 
 
         standards used in the AMA Guides, he nevertheless placed severe 
 
         restrictions on claimant's work activities because of the symptoms 
 
         he was having for over a year.  Dr. Lester granted that even 
 
         though claimant had a preexisting or underlying condition to begin 
 
         with, nevertheless, the job injury aggravated it (ex. 27, p. 17). 
 
         He said the bulge was caused by one of the injuries (ex. 27, pp. 
 
         13 & 20).  Dr. Lester said he imposed the restrictions to prevent 
 
         a full blown ruptured disc from happening due to claimant's work 
 
         (ex. 27, pp. 21 & 22). If claimant had not had these three 
 
         injuries in 1986, and if claimant had not seen Dr. Lester for 
 
         treatment of these injuries, then these restrictions would never 
 
         have been imposed.  Even though the bulge was not the cause of 
 
         claimant's current complaints and symptoms (ex. 27, p. 23), 
 
         nevertheless, the work injury was the cause of the bulge and was 
 
         the reason that Dr. Lester imposed the permanent restrictions.  
 
         Dr. Lester made it clear that the restrictions which he imposed 
 
         are permanent (ex. 27, p. 16; ex. 14, p. 3).  Therefore, it is 
 
                                                
 
                                                         
 
         determined that these injuries were the cause of permanent 
 
         disability.
 
         
 
              Claimant is 41 years old, has 14 1/2 years of employment 
 
         with employer and his job seems to be reasonably secure.  
 
         Claimant testified that he planned to keep this job indefinitely.  
 
         Two employer representatives testified that they plan to keep 
 
         claimant in this job indefinitely.  Employer has accommodated 
 
         claimant in several ways.  First, employer made some efforts to 
 
         enable claimant to continue to operate the large multiple drill.  
 
         When that did not work, employer provided claimant with a job on 
 
         light machines which he could do.  Employer has further 
 
         accommodated claimant by not requiring him to operate the snow 
 
         drill, which is one of the machines in his department that is too 
 
         difficult for him to operate.  Employer has further accommodated 
 
         claimant by allowing him to work standing, sitting or moving 
 
         around at his own personal discretion, even though it takes him 
 
         longer to do his work under these circumstances.  Claimant was 
 
         granted further accommodation in that he was exempted from 
 
         company procedures that required him to work on the second shift 
 
         when he left the large multiple drill and went to a new 
 
         department.  Employer accommodated claimant's long term and 
 
         severe emotional problems for which he has been hospitalized and 
 
         received extensive psychiatric treatment for many years.  There 
 
         was no evidence that claimant's employment caused or aggravated 
 
         his emotional problems. Two employer representatives testified 
 
         that claimant's job was secure and that he could work in it 
 
         indefinitely.  Claimant is further protected by what appears to 
 
         be a strong and active union representation.
 
         
 
              At the same time, claimant is foreclosed from performing 
 
         .his best paying job, the large multiple drill job, which is a 
 
         grade nine hourly wage with red circle pay and he now receives 
 
 
 
                           
 
         less bonus.  The large multiple drill was generally classified as 
 
         heavy work.  Dr. Lester said that claimant should no longer 
 
         perform this particular heavy work as early as October 2, 1986. 
 
         on October 14, 1986, Dr. Lester said that claimant should be 
 
         retrained or refitted for a job other than the large multiple 
 
         drill job that appears to be aggravating his back problem (ex. 
 
         14, p. 6).  The doctor imposed the severe permanent restrictions 
 
         on October 14, 1986.  He said claimant is to avoid almost any 
 
         weight, but particularly in excess of 10 to 20 pounds at arms 
 
         length in front of him.  Twisting and lifting at the same time 
 
         are to be avoided. Claimant cannot sit or stand for prolonged 
 
         periods of time (ex. 14, p. 5).  On April 13, 1987, the doctor 
 
         said it would be foolish to put claimant back on a heavy lifting 
 
         job where recurrence of the pain or reinjury is likely (ex. 13, 
 
         p. 3).  In conclusion, heavy work, work on the large multiple 
 
         drill, which entitled claimant to grade nine pay, red circle pay 
 
         and higher bonuses, has been foreclosed to him.  Michael v. 
 
         Harrison County, Thirty-fourth Biennial Report of the Industrial 
 
         Commissioner 218, 219 (1979); Rohrberg v. Griffen Pipe Products 
 
         Co., I Iowa Industrial Commissioner Reports 282 (1981).
 
         
 
              Claimant has suffered the loss of regular pay from grade 
 
         nine to grade three in the approximate amount of $.60 per hour to 
 
         $.71 per hour.  At the present time, he has lost $2.80 per hour 
 
         in red circle pay.  He has lost somewhere between $.01 per hour 
 
         and $.19 per hour in bonus pay.  This is a significant loss of 
 
         earning capacity.  The evidence established that it is permanent. 
 
         Claimant's counsel estimated in argument that claimant has 
 
         sustained an approximate 25 percent loss of earnings permanently. 
 
         Red circle pay is to be renegotiated in August of 1989.  The 
 
         evidence tended to show that red circle pay will either be 
 
         renewed or some other form of consideration such as possibly a 
 
         buy out might be arranged with the declining number of employees 
 
         who are still eligible for red circle pay.
 
         
 
              At the same time, it must be considered that claimant has 0 
 
         percentage of impairment based upon the American Medical 
 
         Association's Guides to the Evaluation of Permanent Impairment. 
 
         Also, the bulge has not herniated.  No surgery was required and 
 
         none is anticipated.  Claimant lost.minimal time from work due to 
 
         each of these respective injuries.  Conservative treatment has 
 
         been successful for each of these injuries.  Employer has been 
 
         very accommodating, both with respect to the back injuries and 
 
         their resulting restrictions, which are work related, as well as 
 
         with claimant's extensive mental health condition which is not 
 
         job related.  Claimant's job appears to be secure, but, his 
 
         actual earnings and his earning capacity have both been 
 
         significantly reduced as a result of these injuries.  Therefore, 
 
         based upon the foregoing considerations and all of the factors 
 
         used to determine industrial disability, it is determined that 
 
         claimant has sustained a 15 percent industrial disability to the 
 
         body as a whole.
 
         
 
              The effective date of claimant's transfer, from the large 
 
         multiple drill to miscellaneous small machines, was January 26, 
 
                                                
 
                                                         
 
         1987.  His last day of grade nine pay, red circle pay and related 
 
         bonuses was January 26, 1987.  The first day of grade three pay, 
 
         loss of red circle pay and reduced bonuses began on January 27, 
 
         1987.
 
         
 
                              FINDINGS OF FACT
 
         
 
              Therefore, based upon the evidence presented, the following 
 
         findings of fact are made.
 
         
 
              That claimant sustained injuries on February 27, 1986, May 
 
         15, 1986, and July 16, 1986, which arose out of and in the course 
 
         of his employment, when he strained his back while working on the 
 
         large multiple drill.
 
         
 
              That Dr. Lester testified that these injuries were the cause 
 
         of and the reason for him to impose permanent restrictions which 
 
         foreclose claimant permanently from doing the heavy work on the 
 
         large multiple drill.
 
         
 
              That as a result of these restrictions, claimant's regular 
 
         pay was reduced from grade nine to grade three, he suffered the 
 
         total loss of red circle pay and has received reduced bonus pay 
 
         due to the restrictions caused by these injuries.
 
         
 
              That claimant has sustained a 15 percent industrial 
 
         disability of the body as a whole.
 
         
 
                            CONCLUSIONS OF LAW
 
         
 
              WHEREFORE, based upon the evidence presented and foregoing 
 
         principles of law, the following conclusions of law are made.
 
         
 
              That claimant sustained three injuries arising out of and in 
 
         the course of his employment on February 27, 1986, May 15, 1986, 
 
         and July 16, 1986.
 
         
 
              That these three injuries were the cause of permanent 
 
         disability.
 
         
 
              That claimant is entitled to 75 weeks of permanent partial 
 
         disability benefits.
 
         
 
              That the commencement date for permanent partial disability 
 
         benefits is January 27, 1987, the first day of claimant's reduced 
 
         pay.
 
         
 
                                   ORDER
 
         
 
              THEREFORE, IT IS ORDERED:
 
         
 
              That defendants pay to claimant seventy-five (75) weeks of 
 
         permanent partial disability benefits at the rate of three 
 
         hundred fifty-nine and 89/100 dollars ($359.89) per week in the 
 
         total amount of twenty-six thousand nine hundred ninety-one and 
 
                                                
 
                                                         
 
         75/100 dollars ($26,991.75) commencing on January 27, 1987.
 
         
 
              That this amount is to be paid in a lump sum.
 
         
 
              That interest will accrue pursuant to Iowa Code section 
 
         85.30.
 
         
 
              That defendants are charged with the costs of this 
 
         proceeding pursuant to Division of Industrial Services Rule 
 
         343-4.33.
 
         
 
              That defendants file claim activity reports pursuant to 
 
         Division of Industrial Services Rule 343-3.1.
 
         
 
              Signed and filed this 30th day of March, 1989.
 
         
 
         
 
         
 
         
 
         
 
         
 
                                            WALTER R. McMANUS, JR.
 
                                            DEPUTY INDUSTRIAL 
 
                                            COMMISSIONER
 
         
 
         Copies to:
 
         
 
         Mr. Theodore Hoglan
 
         Attorney at Law
 
         34 S 1st Ave.
 
         Marshalltown, IA  50158
 
         
 
         Mr. E.J. Giovannetti
 
         Attorney at Law
 
         Terrace Center, STE 111
 
         2700 Grand Ave.
 
         Des Moines, IA  50312
 
         
 
         
 
         
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
                                                
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                       1106, 1108.50, 1401, 1402.20, 
 
                                       1402.30, 1402.40, 1402.40, 1803
 
                                       Filed March 30, 1989
 
                                       WALTER R. McMANUS, JR.
 
         
 
                  BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         MICHAEL A. ROCKHOLD,
 
         
 
              Claimant,
 
                                                     File Nos. 817760
 
         vs.                                                   823219
 
                                                               827962
 
         FISHER CONTROLS INTERNATIONAL
 
                                                  A R B I T R A T I 0 N
 
              Employer,
 
                                                     D E C I S I 0 N
 
         and
 
         
 
         CIGNA,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         1106, 1108.50, 1401, 1402.20, 1402.30, 1402.40
 
         
 
              Claimant proved injury arising out of and in the course of 
 
         employment from three back strains at work.
 
         
 
         1402.40, 1803
 
         
 
              Treating physician found no impairment for a bulging disc 
 
         based on criteria used in AMA Guides.  Nevertheless, claimant was 
 
         awarded 15 percent permanent partial disability because permanent 
 
         restrictions necessitated a permanent job change with same 
 
         employer which substantially reduced claimant's income.  Employer 
 
         made several employment accommodations which mitigated claimant's 
 
         loss.