BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         DEBRA J. ESPEY,
 
         
 
              Claimant,
 
                                                      File No. 817763
 
         vs.
 
                                                   A R B I T R A T I O N
 
         LUCKY STORES,
 
                                                      D E C I S I O N
 
              Employer,
 
         
 
         and                                             F I L E D
 
         
 
         NATIONAL UNION FIRE INSURANCE,                 MAR 30 1990
 
         
 
              Insurance Carrier,               IOWA INDUSTRIAL 
 
         COMMISSIONER
 
              Defendants.
 
                                        
 
                                        
 
                                   INTRODUCTION
 
         
 
              This is a proceeding in arbitration brought by claimant, 
 
         Debra Espey, against Lucky Stores, employer, and National Union 
 
         Fire Insurance, insurance carrier, defendants, to recover 
 
         benefits as a result of an alleged injury sustained on February 
 
         8, 1986. This matter came on for hearing before the deputy 
 
         industrial commissioner in Davenport, Iowa, on March 22, 1990.  
 
         The record consists of the testimony of the claimant, Nancy 
 
         Jones; and Joint Exhibits 1 through 7.
 
         
 
                                      ISSUES
 
         
 
              The issues the parties set out in the prehearing report for 
 
         resolution are:
 
         
 
              1.  Whether claimant's permanent disability is causally 
 
         connected to her injury of February 8, 1986; and
 
         
 
              2.  The nature and extent of claimant's disability.
 
         
 
         
 
                              REVIEW OF THE EVIDENCE
 
         
 
              Claimant testified she is a high school graduate and began 
 
         working for defendant employer at age 16 in the year 1976 or 
 
         1977. Claimant said she has worked at no other employment.
 
         
 
              Claimant stated she has had various back strains and muscle 
 
         injuries when she participated in basketball and track in high 
 
         school.  She indicated that after a massage, she was sent home 
 
         and eventually all was okay.
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
              Claimant testified that at the time of her fall at defendant 
 
         employer's on February 8, 1986, she was approximately eight 
 
         months pregnant, felt good and had no back problems.  Claimant 
 
         related she fell hard on her butt after slipping in a puddle of 
 
         water while walking at the inside front of defendant employer's 
 
         store on February 8, 1986.  Claimant stated her ankle was twisted 
 
         and pain developed on the side of her leg.  Claimant said her hip 
 
         and back became sore shortly thereafter.  Claimant said she 
 
         continued to work that day but the longer she worked the sorer 
 
         she got. Claimant described the medical treatment she sought.  
 
         Claimant's second child was born around April 1986.
 
         
 
              Claimant went back to work for defendant employer on May 20, 
 
         1986.  Claimant stated she was not pain-free, but told the doctor 
 
         she felt better since giving birth and he told her to go back to 
 
         work if she is able.  Claimant adamantly disagrees with the 
 
         doctor's May 20, 1986 records if it indicated claimant is 
 
         symptom-free.
 
         
 
              Claimant acknowledged she basically worked steady from May 
 
         20, 1986 until her third child was born on December 4, 1987. 
 
         Claimant admitted she saw no doctor during this period for her 
 
         medical condition resulting from her February 8, 1986 fall 
 
         because the doctor told her her condition was something she had 
 
         to live with and it may get better with time.  Claimant related 
 
         she had back, hip and ankle aches and couldn't sleep well at 
 
         night during this period because of the pain.
 
         
 
              Claimant said she was in her basement doing laundry in March 
 
         1988 when she reached to pick up a sock and her back caught and 
 
         she could not get up.  Claimant said this type incident occurred 
 
         before but not as intensive.  Claimant said she then sought other 
 
         medical help and was referred to Eugene E. Herzberger, M.D., an 
 
         orthopedic specialist.  Claimant said Dr. Herzberger performed 
 
         tests like the CT scan and bone scan, which had not previously 
 
         been performed by any other doctor.  Claimant also related the 
 
         doctor checked her kidney function to see if that had any cause 
 
         relating to her back condition.
 
         
 
              Claimant indicated the doctor told her nothing was able to 
 
         be done surgically.  Claimant said she was not satisfied and 
 
         eventually went to Iowa City.  During this time, claimant said 
 
         she had lost 30 pounds.  Claimant related her visits to Iowa City 
 
         were cut short by defendant employer's letter to her that they 
 
         were not authorized and would not be paid.  Claimant said 
 
         defendants recommended Richard A. Roski, M.D., who first saw 
 
         claimant in August 1988.  Claimant acknowledged Dr. Roski said in 
 
         December 1988 she should try to work again.  Claimant said she 
 
         did go back to work on January 16, 1989 and has worked 30 hours 
 
         per week since that time to the present.  Claimant denied she 
 
         told Dr. Roski she fell in defendant employer's parking lot.  She 
 
         also emphasized that the Iowa City medical records notation of a 
 
         fall in the parking lot is a misunderstanding and was not 
 
         correct.  Claimant said she currently works six hours per day, 
 
         five days per week, at $9.50 per hour.  She stated her job 
 
         requires standing and running the cash register with one fifteen 
 
         minute break, reaching to grab merchandise to run through the 
 
         scanner, and bending to place the merchandise in the customer's 
 
         sack.  Claimant testified her work hours and income now are the 
 
         same as they.were at the time of her injury and that she is at 
 
         the maximum hourly wage for her type of work with defendant 
 
         employer.  She acknowledged she would be making the same income 
 
         she is making today even if she had not been injured.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              Claimant mentioned she inquired of her employer several 
 
         times before her 1986 injury as to whether she could work 40 
 
         hours per week.  Claimant explained the pay is the same per hour 
 
         but one gets two fifteen minute breaks instead of one and there 
 
         is a one hour break for lunch.
 
         
 
              Claimant acknowledged she hasn't attempted or requested to 
 
         work 40 hours per week since her injury because she has had a 
 
         hard time working 30 hours.  Claimant said she hurts so bad after 
 
         two hours of work that she wishes she could go home.  She said 
 
         another person lower in seniority to her was given a 40 hour work 
 
         week over her in March 1988.  Claimant agreed that no doctor told 
 
         her or restricted her from working more than 30 hours per week. 
 
         Claimant agreed that she has enough seniority to work 40 hours if 
 
         she wishes.  Claimant said she saw Dr. Robb in October of 1989 at 
 
         her attorney's suggestion to evaluate claimant.  Claimant 
 
         acknowledged no doctor has recommended surgery.  Claimant said 
 
         she returned to work on or around January 16, 1989, after the 
 
         March 1988 incident in her basement while doing the laundry,.
 
         
 
              Claimant's attention was called to Joint Exhibit 6, page 3, 
 
         in which Dr. Herzberger's records reflect claimant hurt her back 
 
         lifting a sack of laundry.  Claimant adamantly denied saying that 
 
         and indicated she went to pick up a sock.  She explained she 
 
         called her attorney and told the doctor of the error on her next 
 
         visit.
 
         
 
              Claimant said she has no future appointments with the 
 
         doctors as there is nothing further they can do.
 
         
 
              Nancy Jones testified she has worked for defendant employer 
 
         for eighteen years as of September 1990.  She said she knows a 
 
         person with less seniority than claimant was given a 40 hour job 
 
         in March 1988.  She stated she and claimant were both upset.  She 
 
         emphasized both she and claimant wanted to work a 40 hour week.
 
         
 
              University of Iowa Hospitals and Clinics records reflect on 
 
         August 31, 1988 that claimant MR was reviewed and revealed a 
 
         "small bulge of L5-S1, however, the foramina are opened 
 
         bilaterally.  There is no evidence of nerve root impingement.  
 
         This bulge may or may not be an incidental findings.  (Jt. Ex. 1, 
 
         p. 4) Mercy Hospital Radiology Department records on,November 25, 
 
         1988 reflect that a lumbar radiculopathy was done on that date.  
 
         The findings showed: "There is no evidence of nerve root cutoff or 
 
         extradural defect to suggest herniated disc."  (Jt. Ex. 3, p. 6)  
 
         Claimant then was given a CT scan.  "CT scan following myelography 
 
         appears normal.  No evidence of herniated disc can be seen."  (Jt. 
 
         Ex. 3, p. 6)
 
         
 
              Richard A. Roski, M.D., a neurologist, has referred to 
 
         claimant's long-standing problems with her low back dating back 
 
         to 1986.  Dr. Roski wrote on April 21, 1989:
 
         
 
                   I saw Debra Espey back for follow up on 4-20-89.  Ms. 
 
              Espey has been followed by me for some time with complaint 
 
              of low back and right hip pain.  We have undergone extensive 
 
              evaluation and so far failed to find any correctable lesion 
 
              in her low back or hip that would relieve her symptoms.  We 
 
              had a long discussion about certain aspects of her job.  I 
 
              think it is difficult to pinpoint a specific activity that 
 
              clearly exacerbates her symptoms.  I think the stress of her 
 
              job is reasonably well handled by her at this point.  I 
 
              therefore find it difficult to come up with specific job 
 
              changes that I think will have a dramatic effect on her 
 
              pain. I think the best long term course for Debra is for her 
 

 
              
 
 
 
 
 
 
 
 
 
 
 
              to continue with her activities and continue to deal with 
 
              the symptoms as best as possible.  I think most of her 
 
              difficulty at this time is related to external stresses and 
 
              not so much the back and hip pain itself.  She has asked me 
 
              to submit to you an impairment rating for her problem.  
 
              According to the AMA Guidelines for Evaluation of Permanent 
 
              Impairment, I would rate her as 5% of the whole person for 
 
              her low back injury.  If I can be of further help in this 
 
              matter, please feel free to let me know.
 

 
              
 
 
 
 
 
 
 
 
 
 
 
         
 
         (Jt. Ex. 4, p. 2)
 
         
 
              On November 13, 1989, his office notes reflect:
 
         
 
                   The patient's recent flare up is almost completely 
 
              resolved.  There is no other change on neurologic exam.  I 
 
              plan to have her continue the Voltaren,and Flexeril and then 
 
              start tapering off of both.  If symptoms do not remain under 
 
              reasonable control over the next few weeks, she can contact 
 
              me for re-evaluation.
 
         
 
         (Jt. Ex. 4, p. 1)
 
         
 
              G. L. York, M.D., of Medical Associates, saw claimant 
 
         beginning with the date of her fall at defendant employer on 
 
         February 8, 1986.  She treated with the doctor for a considerable 
 
         length of time and he kept her off work from February 9, 1986 
 
         until she returned to work on May 20, 1986 (Jt. Ex. 5, p. 10).
 
         
 
              On March 15, 1988, Dr. York wrote a note which was received 
 
         by defendant employer indicating claimant was "under my care 
 
         unable to work for probably 1 wk."  (Jt. Ex. 5, p. 14)
 
         
 
              Eugene E. Herzberger, M.D., a neurologist, wrote on March 
 
         31, 1988, that claimant was to "remain off of work until seen 
 
         again on April 4, 1988."  (Jt. Ex. 6, p. 1)  On March 31, 1988, 
 
         Dr. Herzberger wrote:
 
         
 
                   The bone scan shows that the compression of L1 is an 
 
              old one and not a recent one.  The patient tells me that she 
 
              fell in 1986 and as she was pregnant, no x-rays were taken.  
 
              It is quite possible that the fracture occurred at that 
 
              time.  It is also quite possible that enough scar tissue was 
 
              developed in conjunction with the compression fracture so 
 
              that the patient is more prone to develop lumbosacral 
 
              strains because of that.  In any case, the back pain that 
 
              she has at this time is due most probably to a lumbosacral 
 
              strain.  I suggested medication, Tylenol #3, as well as 
 
              Valium 5 mg. three times daily and bedrest.  The patient 
 
              will see me again in a few days time.  In the meantime she 
 
              will have also an intravenous urogram.
 
         
 
         (Jt. Ex. 6, p. 2)
 
         
 
              On November 11, 1988, Dr. York's office notes reflect:  
 
         "Under my care for her back.  Still unable to return to work for 
 
         at least 2 wks."  (Jt. Ex. 5, p. 13)
 
         
 
              On October 5, 1989, W. J. Robb, M.D., wrote:
 
         
 
                   DIAGNOSES:  1).  Strain with some tearing, scar 
 
              adductor muscles right hip.  2).  Musculoligamentous strain 
 
              lumbosacral spine, with secondary contracture paravertebral 
 
              muscles and ham string muscles of both legs.  3). 
 
              Intermittent irritation first sacral root, right.
 

 
              
 
 
 
 
 
 
 
 
 
 
 
         
 
                   DISCUSSION:  I think Debra incurred a substantial 
 
              strain of the adductor muscles and capsule of the right hip 
 
              when she fell and performed the "splits" at the Eagle's 
 
              Store.
 
         
 
                   This was attended by healing, but with scar tissue and 
 
              it is essentially the scar tissue when it comes under stress 
 
              with certain motions of the hip that produces the pain in 
 
              the right groin.  I anticipate that some of this soreness 
 
              will remain, although it may improve over its present 
 
              performance. I would estimate she will have a 5% permanent 
 
              impairment of function of the right hip as a result of the 
 
              injury to the capsule and muscular structures and her 
 
              sensitivity to any extensive motion.  The recent 
 
              trochanteric bursitis I would not attribute to the accident 
 
              of 1986.
 
         
 
                   Over the past 2 1/2 years she has not carried out any 
 
              exercise program to maintain good muscle tone and to 
 
              retain good mobility of her back.  As a result, she has 
 
              developed a contracture of the muscles of the lumbar spine 
 
              and also to a certain extent of the ham string muscles 
 
              that travel from the pelvis, along the back of the leg, to 
 
              behind the knee.  This accounts for her increased loss of 
 
              bending forward and in comparison to the observations 
 
              noted by Dr. Newton when he examined her on 8/10/88.  We 
 
              have not been able, by the appropriate x-ray studies, to 
 
              demonstrate any protrusion of the intervertebral disc or 
 
              encroachment on the nerve root, but the MRI did show some 
 
              degenerative changes at L5-S1. This could account for some 
 
              degree of low back pain and also the referred pain to the 
 
              right hip and sciatic notch.
 
         
 
                   I think a program of exercises such as swimming done on 
 
              a gradual basis over a period of months will result in 
 
              restoration of much of her mobility and may even appreciably 
 
              lessen her pain.  I think it is imperative that she begin 
 
              with some type of exercise program, otherwise the 
 
              contracture now evident is apt to remain and accompanied by 
 
              considerable functional impairment.  I would term her 
 
              temporary partial impairment of function of the back as 15%, 
 
              however I don't consider this permanent.  A final value 
 
              would be somewhere between 7% and 10% of the body as a 
 
              whole.
 
         
 
         (Jt. Ex. 7, p. 5)
 
         
 
                           APPLICABLE LAW AND ANALYSIS
 
         
 
              The claimant has the burden of proving by a preponderance of 
 
         the evidence that the injury of February 8, 1986 is causally 
 
         related to the disability on which she now bases her claim.  
 
         Bodish v. Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867 (1965).  
 
         Lindahl v. L. O. Boggs, 236 Iowa 296, 18 N.W.2d 607 (1945).  A 
 
         possibility is insufficient; a probability is necessary.  Burt v. 
 
         John Deere Waterloo Tractor Works, 247 Iowa 691, 73 N.W.2d 732 
 
         (1955).  The question of causal connection is essentially within 
 
         the domain of expert testimony.  Bradshaw v. Iowa Methodist 
 
         Hospital, 251 Iowa 375, 101 N.W.2d 167 (1960).
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              However, expert medical evidence must be considered with all 
 
         other evidence introduced bearing on the causal connection.  
 
         Burt, 247 Iowa 691, 73 N.W.2d 732.  The opinion of experts need 
 
         not be couched in definite, positive or unequivocal language.  
 
         Sondag v. Ferris Hardware, 220 N.W.2d 903 (Iowa 1974).  However, 
 
         the expert opinion may be accepted or rejected, in whole or in 
 
         part, by the trier of fact.  Id. at 907.  Further, the weight to 
 
         be given to such an opinion is for the finder of fact, and that 
 
         may be affected by the completeness of the premise given the 
 
         expert and other surrounding circumstances.  Bodish, 257 Iowa 
 
         516, 133 N.W.2d 867.  See also Musselman v. Central Telephone 
 
         Co., 261 Iowa 352, 154 N.W.2d 128 (1967).
 
         
 
              If claimant has an impairment to the body as a whole, an 
 
         industrial disability has been sustained.  Industrial disability 
 
         was defined in Diederich v. Tri-City Railway Co., 219 Iowa 587, 
 
         593, 258 N.W.2d 899, 902 (1935) as follows:  "It is therefore 
 
         plain that the legislature intended the term 'disability' to mean 
 
         'industrial disability' or loss of earning capacity and not a 
 
         mere 'functional disability' to be computed in the terms of 
 
         percentages of the total physical and mental ability of a normal 
 
         man."
 
         
 
              The opinion of the supreme court in Olson v. Goodyear 
 
         Service Stores, 255 Iowa 1112, 1121, 125 N.W.2d 251 (1963), cited 
 
         with approval a decision of the industrial commissioner for the 
 
         following proposition:
 
         
 
                   Disability * * * as defined by the Compensation Act 
 
              means industrial disability, although functional disability 
 
              is an element to be considered....In determining industrial 
 
              disability, consideration may be given to the injured 
 
              employee's age, education, qualifications, experience and 
 
              his inability, because of the injury, to engage in 
 
              employment for which he is fitted.
 
         
 
              The opinion of the supreme court in Olson v. Goodyear 
 
         Service Stores, 255 Iowa 1112, 1121, 125 N.W.2d 251 (1963), cited 
 
         with approval a decision of the industrial commissioner for the 
 
         following proposition:
 
         
 
                   Disability * * * as defined by the Compensation Act 
 
              means industrial disability, although functional disability 
 
              is an element to be considered....In determining industrial 
 
              disability, consideration may be given to the injured 
 
              employee's age, education, qualifications, experience and 
 
              his inability, because of the injury, to engage in 
 
              employment for which he is fitted.
 
         
 
              Iowa Code section 85.34(1) provides that if an employee has 
 
         suffered a personal injury causing permanent partial disability, 
 
         the employer shall pay compensation for a healing period from the 
 
         day of the injury until (1) the employee returns to work; or (2) 
 
         it is medically indicated that significant improvement from the 
 
         injury is not anticipated; or (3) until the employee is medically 
 
         capable of returning to substantially similar employment.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              A healing period may be interrupted by a return to work. 
 
         Riesselman v. Carroll Health Center, III Iowa Industrial 
 
         Commissioner Report 09 (Appeal Decision 1982).
 
         
 
              Claimant is a 30-year-old high school graduate.  She started 
 
         working for defendant employer at age 16, while still in high 
 
         school, and continued to work for them to the present.  Claimant 
 
         has not worked anywhere else.  Claimant participated in 
 
         basketball and track during high school and suffered various back 
 
         strains associated with basketball and muscle strains associated 
 
         with track.   Claimant said she always recovered after massages.
 
         
 
              On February 8, 1986, claimant fell hard on her butt after 
 
         doing the splits as a result of her slipping on a wet floor at 
 
         defendant employer.  As a result of this fall, claimant developed 
 
         pain in her ankle, hip and back.  Claimant was approximately 
 
         eight months pregnant at this time.  Claimant continued to work 
 
         but said the longer she worked the sorer she got.
 
         
 
              The parties stipulated that claimant has a healing period 
 
         beginning February 9, 1986 up to and not including May 20, 1986 
 
         at which time she returned to work.  There is no issue as to the 
 
         causal connection except that defendants contend there is no 
 
         causal connection to any permanent disability beyond the 10 
 
         percent they have already paid, nor is there a causal connection 
 
         between claimant's injury and an alleged second healing period 
 
         beginning March 15, 1988 through January 15, 1989.  The medical 
 
         evidence is convincing that claimant has suffered a back injury 
 
         as a result of this fall.  She has had several tests which 
 
         indicated no herniated disc.  She continues to complain to the 
 
         present.  Dr. Herzberger, in 1988, indicated claimant's bone scan 
 
         showed an old compression of L1.  He indicated it is quite 
 
         possible that the fracture occurred at that time.  He further 
 
         stated that it is also quite possible that enough scar tissue has 
 
         developed in conjunction with the compression fracture so that 
 
         the patient is more prone to develop lumbosacral strains because 
 
         of that (Jt. Ex. 6, p. 2).  Since claimant had no back problems 
 
         before his February 1986 fall, the evidence is convincing that 
 
         the old injury referred to is, in fact, the February 1986 injury.
 
         
 
              Dr. Robb referred to claimant's scar tissue as contributing 
 
         to her problem.  Dr. Roski said he failed to find any correctable 
 
         lesions in her low back.  This seems to indicate she may have 
 
         lesions but none that were surgically correctable.  No doctor 
 
         suggested surgery as an answer.  Dr. Roski opined a 5 percent 
 
         permanent impairment to claimant's body as a whole per the AMA 
 
         Guides for her low back injury.  Dr. Robb opined a 15 percent 
 
         temporary partial impairment of the function of claimant's back 
 
         but indicated a final value would be 7 to 10 percent of 
 
         claimant's body as a whole.  Dr. Robb's evaluation was in October 
 
         1989 (Jt. Ex. 7, p. 5).  Dr. Robb seems to indicate claimant has 
 
         not carried out an exercise program to maintain good muscle tone 
 
         to retain good mobility in her back.  Dr. Robb indicated a 
 
         program of swimming done on a graduated basis will result in 
 
         restoration of much of the mobility and may even lessen 
 
         claimant's pain.  Of course, this is speculative.  The 
 
         undersigned observed claimant often during her testimony and at 
 
         times when she was off the witness stand and on occasions when 
 
         she did not likely know she was being observed.  Claimant 
 
         appeared to be in considerable pain and discomfort.  The 
 
         undersigned believes her pain is real and considerable.  It is 
 
         understandable that a person in extreme pain does not have the 
 
         incentive to fight pain to do recreational activities, 
 
         particularly with no guarantee of relief.  It doesn't appear the 
 
         scar tissue will disappear and the doctor seems to indicate this 
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         is a causation of pain.  Claimant appears very active now, 
 
         working 30 hours per week, caring for three children, and 
 
         obviously needing to work to help support the family along with 
 
         her husband.  Claimant emphasized she wanted to work 40 hours per 
 
         week before her injury but can hardly stand to work her current 
 
         30 hours.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              Defendants contend claimant injured her back picking up a 
 
         sack of laundry in March 1988.  Claimant testified she was having 
 
         problems with her back catching.  Claimant said she was doing 
 
         laundry work on March 15, 1988 when she bent down to pick up a 
 
         sock and her back caught and she was unable to get back up.  Dr. 
 
         Herzberger mentioned in a March 24, 1988 letter (Jt. Ex. 6, p. 3) 
 
         that claimant said she was lifting a sack of laundry when she 
 
         experienced pain and could not straighten out.  Claimant denied 
 
         she was lifting a sack but said she was picking up a sock.  The 
 
         undersigned finds this is of no real significance as claimant had 
 
         been having trouble from her original February 1986 injury and 
 
         this March event was the result of her February 1986 low back 
 
         injury.  The Medical Associate records on March 15, 1988 (Jt. Ex. 
 
         5, p. 8) reflect this same instance and reflects "this is a 
 
         recurrence of her old injury."  When claimant was testifying, the 
 
         undersigned had to ask a question for clarification.  In other 
 
         words, did claimant say sack or sock.  This was before the 
 
         undersigned knew of the ultimate contentions of defendants, which 
 
         was later brought out in the cross-examination.  The undersigned 
 
         believes claimant's version of this March 15, 1988 incident.
 
         
 
              Claimant was off work again beginning March 15, 1988 through 
 
         January 15, 1989.  The undersigned finds claimant incurred the 
 
         above second healing period as a result of her February 8, 1986 
 
         injury.
 
         
 
              The final question for resolution is the extent of 
 
         claimant's permanent partial disability.  The doctors' opinions 
 
         as to the extent of impairment have been discussed, in part, 
 
         above.  The undersigned cannot speculate as Dr. Robb, an 
 
         orthopedic surgeon, did in speculating on October 5, 1989 that 
 
         claimant's present 15 percent impairment of her back could be 
 
         reduced to 7 to 10 percent with a program of exercise.  The 
 
         undersigned must accept claimant's current impairment.  Dr. 
 
         Roski, a neurosurgeon, in April 1989, opined a 5 percent 
 
         impairment to claimant's body as a whole.  The undersigned 
 
         believes the most recent opinion of Dr. Robb is the most accurate 
 
         considering all the evidence in this case.  The undersigned finds 
 
         claimant has a 15 percent impairment to her body as whole which 
 
         was caused by her February 8, 1986 work-related injury.
 
         
 
              Claimant has no real marketable skills other than the skills 
 
         of a check-out clerk in a department store.  Claimant has worked 
 
         fourteen years in the department store atmosphere since age 16.  
 
         She has seniority as long as she stays with defendant employer.  
 
         It is obvious it is to her benefit financially and medically to 
 
         continue working for defendant employer as long as she can.  
 
         Claimant is at the top of her income level.  It appears with her 
 
         skills or lack of skills, she can rise no higher in position or 
 
         income with defendant employer unless there are inflationary 
 
         increases that may come in time.  Defendant employer is to be 
 
         congratulated for retaining claimant as a worker.  It is in their 
 
         best self-interest to continue to employ claimant as this has a 
 
         substantial effect on the extent of claimant's industrial 
 
         disability.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              Claimant is motivated.  She must work to help support her 
 
         children.  The nature of her job is not conducive to helping her 
 
         get relief from pain.  Claimant is on her feet at work 6 hours a 
 
         day, five days a week with only a 15 minute break each day. 
 
         Claimant's job requires her to reach and pick up items to run 
 
         through a scanner and sack.  With the seniority claimant has and 
 
         the income she is at, claimant is a captive employee of this type 
 
         of industry or merchandising.
 
         
 
              Claimant's age is in her favor.  Claimant had no material 
 
         medical problems prior to her fall on February 8, 1986.  As 
 
         previously discussed, her March 1988 incident was also the result 
 
         of her condition resulting from her February 8, 1986 fall.
 
         
 
              Claimant is making as much money now as she was at the time 
 
         of her fall.  She desired to work 40 hours per week prior to her 
 
         February 1986 fall but defendant employer did not provide this 
 
         opportunity.  Although there may be a possibility claimant could 
 
         work 40 per week now, or sometime in the future, claimant 
 
         contends she is not able to increase her hours due to her injury.  
 
         Claimant contends that after two hours of work she finds her job 
 
         becomes unbearable due to pain.  It appears a 40 hour week 
 
         opening came up in March 1988 and claimant was passed over.  This 
 
         belief was supported by Nancy Jones.  The undersigned believes 
 
         this occurrence to be true.  Obviously, in March 1988, when this 
 
         opportunity apparently arose, claimant was not given the 
 
         opportunity.  Claimant was again in the healing period at that 
 
         time.  Loss or no loss of income is one criteria in determining 
 
         claimant's industrial disability.  Taking into consideration all 
 
         the evidence and criteria to determine claimant's industrial 
 
         disability, including the criteria specifically discussed above 
 
         and the other criteria not specifically discussed, the 
 
         undersigned finds claimant's industrial disability is 25 percent.
 
         
 
                                 FINDINGS OF FACT
 
         
 
              1.  Claimant received a low back injury as a result of her 
 
         slipping on a wet floor at her place of employment on February 8, 
 
         1986.
 
         
 
              2.  Claimant received a 15 percent permanent partial 
 
         impairment to the body as a whole as a result of her work-related 
 
         low back injury on February 8, 1986.
 
         
 
              3.  Claimant incurred a healing period beginning February 9, 
 
         1986 up to May 20, 1986, and a second healing period beginning 
 
         March 15, 1988 up to and including January 15, 1989, as a result 
 
         of her work-related injury on February 8, 1986.
 
         
 
              4.  Claimant has a loss of earning capacity as a result of 
 
         her February 8, 1986 work-related injury.
 
         
 
                                CONCLUSIONS OF LAW
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
              Claimant's low back injury arose out of and in the course of 
 
         claimant's employment on February 8, 1986.
 
         
 
              Claimant's 15 percent permanent partial impairment to her 
 
         body as a whole is causally connected to her work-related injury 
 
         on February 8, 1986.
 
         
 
              Claimant incurred a healing period beginning February 9, 
 
         1986 up to May 20, 1986, and a second healing period beginning 
 
         March 15, 1988 up to and including January 15, 1989, as a result 
 
         of her work-related injury on February 8, 1986 at a weekly rate 
 
         of one hundred seventy and 47/100 dollars ($170.47).
 
         
 
              Claimant has a 25 percent industrial disability.
 
         
 
                                      ORDER
 
         
 
              THEREFORE, it is ordered:
 
         
 
              That defendants shall pay unto claimant healing period 
 
         benefits at the weekly rate of one hundred seventy and 47/100 
 
         dollars ($170.47) for the periods beginning February 9, 1986 up 
 
         to May 20, 1986, encompassing fourteen point four two nine 
 
         (14.429) weeks, and the second period beginning March 15, 1988 up 
 
         to and including January 15, 1989, encompassing forty-three point 
 
         eight five seven (43.857) weeks, for a total healing period 
 
         amounting to fifty-eight point two eight six (58.286) weeks.
 
         
 
              That defendants shall pay unto claimant one hundred 
 
         twenty-five (125) weeks of permanent partial disability benefits 
 
         at the rate of one hundred seventy and 47/100 dollars ($170.47) 
 
         per week beginning January 16, 1989.
 
         
 
              That defendants shall pay the accrued weekly benefits in a 
 
         lump sum and shall receive credit against the award for weekly 
 
         benefits previously paid.  Defendants have previously paid 
 
         eighteen thousand forty-eight and 19/100 dollars ($18,048.19) 
 
         toward healing period benefits and permanent partial disability 
 
         benefits.
 
         
 
              That defendants shall pay interest on the benefits awarded 
 
         herein as set for in Iowa Code section 85.30.
 
         
 
              That defendants shall pay the costs of this action, pursuant 
 
         to Division of Industrial Services Rule 343-4.33.
 
         
 
              That defendants shall file an activity report upon payment 
 
         of this award as required by this agency, pursuant to Division of
 
         Industrial Services Rule 343-3.1.
 
         
 
              Signed and filed this 30th day of March, 1990.
 
         
 
         
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         
 
                                            BERNARD J. O'MALLEY
 
                                            DEPUTY INDUSTRIAL COMMISSIONER
 
         
 
         Copies to:
 
         
 
         Mr Michael W. Liebbe
 
         Attorney at Law
 
         116 E 6th St
 
         P 0 Box 339
 
         Davenport, IA  52805
 
         
 
         Mr Thomas N. Kamp
 
         Attorney at Law
 
         600 Davenport Bank Bldg
 
         Davenport, IA  52801
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
 
                                            
 
 
 
 
 
 
 
 
 
 
 
                                            5-1803; 5-1802
 
                                            Filed March 30, 1990
 
                                            Bernard J. O'Malley
 
                                        
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         DEBRA J. ESPEY,
 
         
 
              Claimant,
 
                                                     File  No. 817763
 
         vs.
 
         
 
         LUCKY STORES,                            A R B I T R A T I 0 N
 
         
 
              Employer,                              D E C I S I 0 N
 
         
 
         and
 
         
 
         NATIONAL UNION FIRE INSURANCE,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         5-1803
 
         
 
              Claimant awarded 25% industrial disability
 
         
 
         5-1802
 
         
 
              Disability and a second healing period.
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            MARY VAN SYOC,                :
 
                                          :
 
                 Claimant,                :
 
                                          :    File Nos. 818013/860684
 
            vs.                           :              905128/905129
 
                                          :                 905130
 
            FURNAS ELECTRIC COMPANY,      :
 
                                          :    A R B I T R A T I O N
 
                 Employer,                :
 
                                          :      D E C I S I O N
 
            and                           :
 
                                          :
 
            LIBERTY MUTUAL INSURANCE      :
 
            COMPANY and NORTHBROOK        :
 
            INSURANCE COMPANY,            :
 
                                          :
 
                 Insurance Carriers,      :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
                 On March 3, 1989, Mary Van Syoc (claimant) filed five 
 
            separate petitions for arbitration as a result of the 
 
            following injuries:
 
            
 
                 File No.   Injury              Date           Carrier
 
            
 
                 818013   Back                  11-9-84       
 
                 Northbrook
 
            905128   Hands Arms Shoulders  3-13-86       
 
            Northbrook
 
            860684   Back, Shoulders       7-8-87        
 
            Northbrook
 
            905130   Back, Shoulders       2-23-88       
 
            Liberty 
 
            905129   Back                  5-10-88       
 
            Liberty
 
            
 
                 Furnas Electric (Furnas) was identified as employer and 
 
            Northbrook Insurance Company (Northbrook) and Liberty Mutual 
 
            (Liberty) were identified as the workers compensation 
 
            insurers for Furnas (collectively defendants).  On October 
 
            1, 1991 these matters came on for hearing in Des Moines, 
 
            Iowa.  The parties appeared as follows:  the claimant in 
 
            person and by her counsel Steven Jayne of Des Moines, Iowa 
 
            and Furnas and Northbrook by their counsel, Jeff Margolin of 
 
            Des Moines, Iowa and Furnas and Liberty by their counsel, 
 
            Jon Hoffmann of Des Moines, Iowa.  
 
            
 
                 The record in this proceeding consisted of the 
 
            following:
 
            
 
                 1.  The live testimony of the claimant,and Kathy 
 
                 Adcock.  
 
            
 
                 2.  Joint exhibits 1-23.
 
            
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
                 3.  Claimant's exhibits 1-17.
 
            
 
                 4.  Northbrook Exhibit A.
 
            
 
                                   stipulations
 
            
 
                 The parties stipulated to the following matters for all 
 
            of the files in issue:
 
            
 
                 a.  An employer-employee relationship existed 
 
                 between claimant and employer at the time of the 
 
                 alleged injuries.
 
            
 
                 b.  The rate of compensation, in the event of an 
 
                 award for each file is as follows:
 
            
 
            File         Gross Weekly Wage        Rate
 
            
 
            818013          $229.00              $144.06
 
            860684          $332.07              $203.42
 
            905130          $291.20              $179.84
 
            905129          $291.20              $179.84
 
            905128          $275.65              $169.38
 
            
 
            For all of these injuries, claimant was single and 
 
            entitled to one exemption.
 
            
 
                 c.  The parties have stipulated that if the 
 
                 providers of medical services testified, the 
 
                 providers would testify that the fees charged were 
 
                 reasonable and defendants are not offering 
 
                 contrary evidence.
 
            
 
                 d.  Northbrook is claiming a credit for the 
 
                 following amounts:
 
            
 
                 File No.        Rate               Total
 
            
 
            818013         $144.06            $3601.50
 
            860684         $203.42            $1627.36
 
            
 
            
 
                 e.  The parties agree on the amount of costs in 
 
                 these files.
 
            
 
                 The parties have stipulated to the following additional 
 
            facts in connection with each individual file:
 
            
 
                 818013, 905128, 860684
 
            The parties agree that if the providers of services 
 
            testified, they would state that the treatment was 
 
            reasonable and necessary treatment of the alleged work 
 
            injuries and the defendants are not offering contrary 
 
            evidence.
 
            
 
     
 
            
 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            905129, 905130
 
            
 
                 If the injuries are found to be the cause of permanent 
 
            disability, the parties agree that the injuries are injuries 
 
            to the body as a whole.
 
            
 
            Issues
 
 
 
                 The issues for resolution in all files are as follows:
 
            
 
                 1.  Whether claimant sustained injuries on the various 
 
            dates alleged which arose out of and in the course of her 
 
            employment with Furnas.
 
            
 
                 2.  Whether a causal relationship exists between 
 
            dmant's claimed injuries and the claimed disability and 
 
            the nature and extent of any entitlement to benefits, if 
 
            any.
 
            
 
                 3.  Whether claimant is entitled to medical benefits.
 
 
 
                 4.  Which carrier bears the liability for each injury.
 
            
 
                 Defendants, Northbrook and Furnas have raised an 
 
            affirmative defense of untimely claim under Iowa Code 
 
            section 85.26 for file numbers 818013 and 905128.  
 
            
 
                                 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 59 years 
 
            old.  At the time of the first injury on November 9, 1984, 
 
            claimant was 52.  At the time of the second injury on March 
 
            13, 1986, claimant was 53.  At the time of the third injury 
 
            on July 8, 1987, claimant was 54.  Claimant was 55 at the 
 
            time of the last two injuries.  Claimant left high school in 
 
            the middle of the eleventh grade.  She obtained a GED in 
 
            1967.  Claimant has also taken other course work which 
 
            includes bookkeeping, typing, sewing, telecommunications 
 
            operator procedures and emergency medical training.
 
            2.  Claimant's work history includes the operation of a 
 
            general merchandise store in Milo, Iowa between 1965 and 
 
            1970, farming with her husband between 1970 and 1978, 
 
            telecommunications operator for the Decatur County Sheriff 
 
            Department, and part time work in a locker.  Claimant has 
 
            also operated a sewing machine in a factory setting.  In 
 
            September of 1980 claimant began to work for Furnas as an 
 
            assembly fabricator.  Claimant was laid off from this 
 
            position in 1981 for economic reasons.  She was rehired in 
 
            1983.  When claimant was recalled she was promoted to the 
 
            position of inspector.  Claimant's job duties included 
 
            testing switches with various tools requiring her to twist 
 
            her arms, and hands frequently and repetitively.  
 
            Additionally, claimant's job duties required her to walk 
 
            from her work station to the line to pick up and deliver 
 
            audit lots.  The parts that claimant carried weighed about a 
 
            pound or less.  When claimant moved boxes, generally she 
 
            moved about ten pounds or less.  Claimant was also allowed 
 
            to sit and stand as she needed to perform her work.  
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            Claimant believed she was in good health when she started to 
 
            work for Furnas.  She said that she was having no problems 
 
            with her back or knees at the time she started.  This 
 
            testimony is inconsistent with the medical records from Dr. 
 
            Toriello however.
 
            
 
                 3.  Claimant has suffered prior injuries.  In 1953, she 
 
            was struck by a car and fractured her right wrist, cracked 
 
            her pelvis and twisted her back.  In 1974, a bale of hay 
 
            fell on claimant's head and neck which resulted in head and 
 
            neck strain.  Claimant was treated in the emergency room and 
 
            by her family physician.  The diagnosis at that time was 
 
            acute synovitis of the joints of the neck and myositis.  
 
            Claimant was admitted for cervical traction but there were 
 
            no long term residuals from that injury.  Claimant's medical 
 
            history includes various surgeries, and childbirths.
 
            
 
                 4.  Claimant suffers from other significant health 
 
            problems.  Claimant had treatment from Dante Toriello, D.O. 
 
            beginning in 1979 for obesity and arthritis that had been 
 
            plaguing her for 27 years.  In the period between 1979 and 
 
            November of 1984, claimant was variously diagnosed as having 
 
            spinal dysfunction, arthritis in her feet, hands, back and 
 
            neck, degenerative joint disease in the dorsal spine, 
 
            chronic sinusitis, osteoarthritis throughout claimant's 
 
            entire body, numbness in her right hand, and degenerative 
 
            joint disease in the major and minor joints.  Claimant also 
 
            had accompanying pain complaints in her elbows, chest, the 
 
            dorsal spine, the thoracic spine at T10, shoulders 
 
            bilaterally, lower extremities bilaterally, the cervical 
 
            spine, knees, hips bilaterally, and low back.  A 
 
            radiological evaluation of claimant's spine in 1980 and 1981 
 
            showed that claimant had degenerative changes of the 
 
            thoracic spine, calcific density in the region of the upper 
 
            left lobe which represented either a granuloma or a body 
 
            island within the clavicle.  As a result of these conditions 
 
            claimant missed work in 1981.  During the time period, 
 
            claimant was treated on a fairly regular basis with 
 
            acupuncture and medication.  Claimant was able to work 
 
            during the time period except as noted above.
 
            
 
                 5.  On May 30, 1984, claimant reported to Dr. Toriello 
 
            that she had stumbled while carrying a box of heavy switches 
 
            and sustained a back injury.  This injury is not the subject 
 
            of any of the files in this dispute.  Dr. Toriello treated 
 
            claimant's pain complaints with medication and acupuncture.  
 
            Claimant, during the summer of 1984, complained of joint 
 
            pain and pain all over her body.  After treatment, Dr. 
 
            Toriello concluded that claimant had somatic dysfunction of 
 
            the cervical, dorsal, and lumbar spine, cephalgia and 
 
            osteoarthritis in her whole body.  Dr. Toriello concluded 
 
            that there was no permanent disability resulting from the 
 
            May 1984 injury.  Claimant continued acupuncture treatments 
 
            through the end of August and into September.  By October, 
 
            Dr. Toriello felt that claimant was much improved.  Claimant 
 
            was working during this time period and had received a wage 
 
            increase in October.
 
            
 
                 6.  On November 9, 1984, claimant suffered the first of 
 
            the injuries in issue here.  Claimant stepped in a hole near 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            the back door of the plant and fell and had severe pain in 
 
            her knee and pain in her back.  The injury was reported to 
 
            Furnas and an accident report was completed.  On November 
 
            16, Dr. Toriello reported that claimant was released from 
 
            care for the May 1984 injury.  He indicated that claimant 
 
            had been doing well until the re-injury on November 9, 1984.  
 
            He found that the injury in November had caused an 
 
            exacerbation of claimant's cervical, dorsal and lumbar spine 
 
            with somatic dysfunction and myofascial pain.  He also noted 
 
            that claimant had degenerative joint disease of the major 
 
            and minor joints.  Claimant then began a new course of 
 
            acupuncture treatment with Dr. Toriello.  Claimant was off 
 
            work for the rest of the night after her injury but her 
 
            attendance record shows that she lost no time from this 
 
            injury.  At that time, claimant was making $6.69 plus a $.22 
 
            shift differential.
 
            
 
                 7.  Claimant continued to treat with Dr. Toriello 
 
            during 1985 even though she had returned to work.  She was 
 
            complaining of pain in her low back with radiation down her 
 
            legs.  She also indicated that her left knee hurt.  Dr. 
 
            Toriello continued his treatment with medication and 
 
            acupuncture.  His diagnosis remained the same; an 
 
            exacerbation of the cervical, dorsal and lumbar spine, 
 
            somatic dysfunction with myofascial pain and degenerative 
 
            joint disease in the major and minor joints.  Claimant had 
 
            continuous treatment from Dr. Toriello into April of 1985.  
 
            He noted that claimant was still complaining of fairly 
 
            constant pain and recommended an orthopedic or neurological 
 
            evaluation.  By August, Dr. Toriello concluded that claimant 
 
            had improved by 75%.  Claimant did not return to see Dr. 
 
            Toriello until April 14, 1986.
 
            8.  In August of 1985, claimant was examined by Thomas A. 
 
            Carlstrom, M.D.  Dr. Carlstrom did a complete workup on 
 
            claimant and found that she had spurring at the C5-6 
 
            interspace.  He noted that there was some calcifications of 
 
            the anterior longitudinal ligament in the low thoracic 
 
            spine.  He found calcification of the aorta and that 
 
            claimant had an abnormal fifth lumbar vertebra.  Dr. 
 
            Carlstrom concluded that claimant had diffuse 
 
            musculoskeletal pain syndrome which partially probably 
 
            relates to the fall in November of 1984.  He also found that 
 
            claimant had degenerative arthritis which he felt was most 
 
            likely responsible for most of claimant's extremity 
 
            complaints.  Dr. Carlstorm recommended a course of physical 
 
            therapy treatment for claimant which was effective in 
 
            reducing claimant's pain and improving her mobility.  At the 
 
            conclusion of the treatment Dr. Carlstrom assigned half of 
 
            claimant's disability to the injury and the other half to 
 
            degenerative arthritis.  Dr. Carlstrom found that claimant 
 
            had a mildly diminished range of motion in her back with 
 
            mild muscle spasms and a normal neurological exam.  At that 
 
            time, Dr. Carlstrom gave claimant a permanent partial 
 
            impairment rating of between three and four percent to the 
 
            body as a whole for the injury of November 4, 1984.
 
            9.  On March 13, 1986, claimant suffered her second injury.  
 
            The accident report filed by claimant indicated that she was 
 
            putting a switch on a fixture to test it and she had trouble 
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            with her left arm, fingertips and shoulder.  Claimant was 
 
            seen by Dr. Toriello on April 14, 1986, complaining of 
 
            bilateral numbness and tingling in her arms, hands and 
 
            shoulders.  Dr. Toriello noted that by history, claimant had 
 
            indicated that the onset of this condition had been gradual 
 
            for the past year.  At the conclusion of this examination, 
 
            Dr. Toriello's impression was that claimant was still 
 
            suffering from an exacerbation of the cervical, dorsal and 
 
            lumbar spine, somatic dysfunction with myofascial pain and 
 
            degenerative joint disease in the major and minor joints.  
 
            Claimant again resumed acupuncture treatment.  After the 
 
            treatment, claimant felt better.  In July, claimant saw Dr. 
 
            Toriello again with increasing complaints of bilateral arm, 
 
            hand and wrist pain.  Dr. Toriello noted that claimant had 
 
            had these symptoms on and off since March 13, 1986.  
 
            Claimant could not remember any specific event which brought 
 
            on an acute episode of pain in the left and right wrist.  
 
            Dr. Toriello repeated his diagnosis of July 14, 1987 and 
 
            continued the acupuncture treatment.  On July 16, claimant 
 
            had a statement taken by Carol Oltjen from Overland Park, 
 
            Kansas where claimant's hand injury and her job duties were 
 
            discussed at length.  Claimant herself made a connection to 
 
            her job and the injury of March 13, 1986.
 
            10.  Through the summer claimant had other pain complaints 
 
            in her ankles, feet, legs and low back.  On October 27, Dr. 
 
            Toriello did a review of claimant's condition.  He noted 
 
            that she had improvement in her pain, spasms, edema and the 
 
            restricted range of motion to the upper extremities.  The 
 
            October visit revealed that she was feeling the best she had 
 
            felt for a long time.  On November 12, 1986, Dr. Toriello 
 
            concluded that claimant primary problems were degenerative 
 
            joint disease of the bilateral upper and lower extremities, 
 
            exacerbation of the somatic dysfunction of the cervical, 
 
            dorsal and lumbar spine and cervical, dorsal and lumbar 
 
            myofascial pain syndrome.  
 
            11.  Claimant did not return to see Dr. Toriello until 
 
            February of 1987.  At that time, claimant was suffering from 
 
            hypertension and glucose intolerance.  Dr. Toriello reported 
 
            on February 26, that claimant was suffering from exogenous 
 
            obesity, essential hypertension and degenerative joint 
 
            disease.  In this report, there was nothing new regarding 
 
            claimant's neck, back, knees, shoulders, hands or wrists.  
 
            For the first half of 1987, claimant did not have treatment 
 
            for her back, neck or knees from Dr. Toriello.  Claimant 
 
            worked through the period and transferred to the day shift 
 
            in March.  She received a wage increase of $7.06.
 
            12.  On July 8, 1987, claimant was taking switches from the 
 
            packing area for her inspection audit.  As she was pulling 
 
            boxes of switches that were sitting on a skate packing 
 
            table, she felt pain between her shoulders.  This is the 
 
            third injury suffered by claimant.  She went to the Clarke 
 
            County Hospital where she reported pain in her low back but 
 
            more significant pain in her neck.  Claimant had spasms in 
 
            her neck and she was diagnosed as having an upper back 
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
            strain.  Claimant was taken off work as a result of this 
 
            injury by Dr. Fotiadis.  Dr. Fotiadis then referred claimant 
 
            for physical therapy at the Clarke County Hospital.  
 
            13.  Claimant's physical therapy treatment began on July 9, 
 
            1987 and continued to July 21, 1987.  When claimant returned 
 
            to work on July 23, 1987 she was not complaining of any 
 
            marked discomfort after the return.  Dr. Fotiadis examined 
 
            claimant and found that she had full range of motion in her 
 
            upper back with tenderness upon full extension of the 
 
            shoulder.  He concluded that she was suffering from back 
 
            pain without radiation and had a medical history of 
 
            degenerative joint disease.  Dr. Fotiadis indicated that 
 
            claimant could do no heavy lifting or stretching but could 
 
            return to work.  Claimant was off work again for this injury 
 
            on July 28 and 29.  She returned to work on August 1, 1987.
 
            
 
                 13.  On August 24, 1987, claimant saw Dr. Toriello for 
 
            obesity and hypertension.  Claimant complained about her 
 
            back pain but indicated that she was doing well and was 
 
            having no problems with her medication.  Claimant was seen 
 
            again by Dr. Fotiadis on September 16, 1987 regarding 
 
            continuing neck and shoulder spasms.  On examination, Dr. 
 
            Fotiadis noted that her  muscle spasms had been minimized 
 
            and her neurological exam was normal.  Claimant was released 
 
            from Dr. Fotiadis' care on that date.  At the end of 
 
            September, claimant transferred to the third shift and was 
 
            paid $7.06 per hour with a $.31 per hour shift differential.  
 
            On October 23, 1987, Dr. Fotiadis concluded in a report on 
 
            October 23, 1987, that lifting boxes at work on July 8, 
 
            1987, probably was the producing cause of claimant's injury.
 
            14  On October 27, 1987, claimant was seen by Dr. Borini 
 
            regarding the complaints of pain in her arms and wrists and 
 
            traveling up to her shoulders.  Claimant gave a description 
 
            of her job which included repetitive duties.  Claimant told 
 
            Dr. Borini that her hands had become worse in March of 1986.  
 
            After his examination, Dr. Borini concluded that claimant 
 
            musculoskeltal pain was not related to carpal tunnel 
 
            syndrome.  He noted that claimant had longstanding 
 
            myofascial pain.  He thought that claimant had not suffered 
 
            a permanent functional impairment in her hands at the time 
 
            of this examination.  
 
            15.  During the balance of 1987, claimant saw Dr. Fuller, 
 
            Dr. Toriello and Dr. Fotiadis.  Dr. Fuller gave treatment to 
 
            claimant to relax spasms.  Dr. Toriello gave claimant 
 
            treatment for blood pressure and body tumors on her arms and 
 
            hips.  Finally, Dr. Fotiadis gave treatment for her back and 
 
            neck discomfort.  Dr. Fotiadis ordered spine films on 
 
            December 8, 1987 and these films showed degenerative spurs 
 
            on the thoracic spine.  Dr. Fotiadis concluded that claimant 
 
            had evidence of degenerative joint disease in the upper 
 
            spine and exacerbation of back pain.  He referred her to Dr. 
 
            Toriello for acupuncture treatment as an attempt at chronic 
 
            pain management.  Claimant began treatment with Dr. Toriello 
 
            for her back pain on December 14, 1987.  The treatment 
 
            regime he recommended was medication and acupuncture.  The 
 

 
            
 
            Page   8
 
            
 
            
 
            
 
            
 
            treatment continued through the end December and then 
 
            through the end of January, 1988.  Dr. Toriello attributed 
 
            claimant's current complaints to the injury in July of 1987.  
 
            He found that she had post traumatic somatic dysfunction in 
 
            the cervical and dorsal spine and he recommended 
 
            continuation of the acupuncture treatment.  Claimant 
 
            continued her treatment with Dr. Toriello during February 
 
            even though claimant returned to work on February 1, 1988.  
 
            16.  On February 23, 1988, Dr. Toriello saw claimant before 
 
            she went to work.  He noted she was feeling better overall 
 
            and that her neck was less painful.  His assessment was that 
 
            claimant was still suffering from a post traumatic somatic 
 
            dysfunction in the cervical and dorsal spine for the injury 
 
            suffered on July 8, 1987.  He gave her an acupuncture 
 
            treatment.  On February 25, Dr. Toriello's notes reflect 
 
            that on February 23, claimant had lifted a heavy bundle at 
 
            work and this had hurt her back again.  Claimant was off 
 
            work from February 24, 25 and 26.  Claimant was released to 
 
            return on February 29, with a restriction of no heavy 
 
            lifting.  Dr. Toriello's impression was that claimant was 
 
            suffering from spasm and triggerpoint in the left trapezius 
 
            muscle to the dorsal spine and with tenderness from L2 to L5 
 
            attributable to the July 8, 1987 injury.
 
            17.  On May 10, 1988, claimant reported suffering chest 
 
            pains while she was at work.  She was diagnosed after having 
 
            a series of cardiac test at Des Moines General that she had 
 
            anterior chest wall syndrome.  It was also noted that 
 
            claimant had danced over the weekend.  X-rays were taken at 
 
            the time of her admission to Des Moines General for cardiac 
 
            assessment.  The films revealed that claimant had 
 
            spondylotic changes with anterior bridging osteophytes in 
 
            her spine.
 
            18.  Claimant was off work from May 16 through May 23.  Dr. 
 
            Toriello agreed with the diagnosis that claimant was 
 
            suffering from anterior chest wall syndrome.  Dr. Toriello 
 
            found that she had an acute exacerbation of her previous 
 
            injury of July 8, 1987.  Claimant was off work from May 16 
 
            through May 24, 1988 as a result of this incident.  Claimant 
 
            was also off work on June 2 through the June 5 as a result 
 
            of this injury.  She was released to return to work on June 
 
            6, 1988.  Dr. Toriello attributed claimant's time off to a 
 
            recurrence of the injury suffered on July 8, 1988 
 
            19.  On June 15, 1988, Dr. Toriello removed claimant from 
 
            work in order the maximize the benefit from the acupuncture 
 
            treatment.  Claimant was off work on June 16 and then stayed 
 
            off work through June 20.  Claimant was again off on June 
 
            29, 30, July 1, with a return on July 5, 1988.  All of this 
 
            time off, Dr. Toriello attributed to the July 8, 1987 
 
            injury.  Dr. Toriello explained his conclusions in a letter 
 
            to Robin Henderson on July 25, 1988.  He reported that the 
 
            etiological basis for claimant's recurring complaints to 
 
            date was the injury of July 8, 1987.  He notes that she was 
 
            injured on February 23, 1988, but this did not cause any new 
 
            or different complaints.  Dr. Toriello felt that claimant's 
 

 
            
 
            Page   9
 
            
 
            
 
            
 
            
 
            care would have continued without the event of February 23, 
 
            1988.  Dr. Toriello reached the same conclusion regarding 
 
            the event of May 10, 1988.
 
            20.  On September 19, 1988, Liberty Mutual denied claimant's 
 
            claim.  Liberty Mutual believed that claimant's problems 
 
            were related to her original injury in 1987.  Liberty Mutual 
 
            was not on the risk at that time.  Liberty's coverage period 
 
            began November 1, 1987.  Northbrook's coverage period ended 
 
            on October 31, 1987.  Claimant continued to treat with Dr. 
 
            Toriello through October and into November of 1988.  On 
 
            November 12, 1988, Dr. Toriello noted that claimant was 
 
            again having pain in her hands, arms, shoulder and neck 
 
            while she was working at her job.  His impression remained 
 
            the same and the treatment regimen also remained the same. 
 
            On November 21, 1988, Dr. Borini prescribed bilateral wrist 
 
            splints for claimant to relieve pain in her wrists.  
 
            21.  In 1989, claimant began to see Dr. Toriello on a 
 
            monthly basis.  By March, claimant was reporting she felt 
 
            terrible.  She hurt from her neck to her knees and was 
 
            having difficulty sleeping.  Claimant was given a release to 
 
            return to work on March 7, 1989, with a restriction of 
 
            avoiding excessive walking.  Dr. Toriello did not attribute 
 
            this condition to claimant's prior work injuries.  In June, 
 
            claimant was seen by Dr. Fotiadis who recited a history of 
 
            rheumatoid arthritis and suggested a lupus type disorder.  
 
            He noted that claimant was still having trouble with her 
 
            joints and had tenderness and stiffness throughout the major 
 
            and minor joints.  Claimant reported having pain in her hips 
 
            and her knees.  Dr. Fortiadis concluded that claimant was 
 
            suffering rheumatoid arthritis that was mildly symptomatic.  
 
            22.  Since the acupuncture treatments were not being 
 
            successful, claimant was referred to Dr. Kenny who saw 
 
            claimant on June 20, 1989 and July 13, 1989.  He recited a 
 
            history of joint swelling and tenderness with a severe bout 
 
            in 1987.  He noted that claimant has a 47 year history of 
 
            intermittent swelling, inflammatory joint disease for seven 
 
            years with involvement of her hands, elbows, shoulder, neck, 
 
            hips, ankles and feet.  After his examination, his 
 
            impression was that claimant was suffering from inflammatory 
 
            arthropathy, seronegative rheumatoid arthritis, 
 
            hypertension, high cholesterol, high triglycerides, and 
 
            osteoarthritis of the hands and thoracic spine. 
 
            23.  At the end of June, Dr. Toriello directed a letter to 
 
            Furnas Electric which gave a date of June 10, 1989 as the 
 
            beginning date of claimant's chief complaint of pain 
 
            involving bilateral lower extremities and the cervical, 
 
            dorsal and lumbar spine.  He noted that claimant was 
 
            suffering from exacerbation of pain in her knees.  Claimant 
 
            was given a restriction of no excessive walking for this 
 
            condition.  This condition was not linked to any of the 
 
            injuries at issue here, however.
 
            24.  Claimant continued to treat with Dr. Toriello through 
 
            August and September.  Claimant began to complain regularly 
 
            about her left knee on September 26.  She noted that her 
 

 
            
 
            Page  10
 
            
 
            
 
            
 
            
 
            knee was popping and giving way.  Dr. Fortiadis examined her 
 
            knee and found that there was left knee pain resulting from 
 
            an arthritic process.  He felt that claimant was suffering 
 
            from degenerative joint disease in the knee.  
 
            25.  In October of 1989, claimant again hurt her upper back 
 
            at work while she was using a torque wrench.  Since this 
 
            incident claimant has been in constant pain.  However, this 
 
            injury has not been identified as part of the complex of 
 
            injuries that claimant is complaining about in the files in 
 
            issue here.  Claimant was taken off work for a short period 
 
            of time due to pain in her upper back.  She was seen by Dr. 
 
            Honeywell and Dr. Fortiadis.  Dr. Fortiadis concluded that 
 
            claimant had a back strain with a recent exacerbation at 
 
            work.  Dr. Honeywell concluded that she had acute somatic 
 
            musculoskeletal dysfunction of the spine and a torn dorsal 
 
            ligament.  Claimant returned to work on October 16, 1989.  
 
            26.  On November 22, 1989, Dr. Honeywell gave claimant a 
 
            restriction of lifting no more than 15 pounds above her 
 
            head.  Claimant was returned to work with a gradual increase 
 
            in her work hours during December.  On December 22, 1989, 
 
            Dr. Honeywell took claimant off work indefinitely due to the 
 
            ongoing problem in her spine. 
 
            27.  Beginning in January 1990, claimant was reporting pain 
 
            in her left knee.  Dr. Honeywell concluded that claimant's 
 
            left knee problem was now causing a total disability.  X-ray 
 
            films showed that claimant was suffering from osteoarthritic 
 
            degenerative changes in the left knee.  This condition 
 
            eventually resulted in a total left knee replacement at Mayo 
 
            Clinic.  However, no physicians have causally connected this 
 
            injury to claimant's work.  When claimant was evaluated at 
 
            Mayo Clinic, the initial impression was muscular back pain, 
 
            degenerative disease in the knee, with claimant's obesity 
 
            considered a huge factor in the degenerative knee disease 
 
            and probably a factor in the muscular back pain and 
 
            hypertension.
 
            28.  On February 1, 1990, Dr. Johnson did an evaluation of 
 
            claimant's low back pain, left knee pain and right arm pain.  
 
            He recited claimant's history of injuries including the 1984 
 
            injury where claimant reported that she fell and hurt 
 
            everywhere.  At the conclusion of his examination, Dr. 
 
            Johnson concluded that claimant was suffering from 
 
            myofascial pain and degenerative joint disease of the left 
 
            knee.  Dr. Johnson did not assign any functional impairment 
 
            ratings to claimant's conditions and he did not attribute 
 
            any of claimant's current problems to any work injuries.
 
            29.  In the meantime, claimant's counsel sent a letter to 
 
            Dr. Carlstrom regarding the summary of a conference that Mr. 
 
            Jayne had with Dr. Carlstrom.  Dr. Carlstrom concluded that 
 
            based on his last examination in August of 1985, claimant 
 
            had a five percent permanent partial impairment to the body 
 
            as a whole as a result of the incident on November 9, 1984.  
 
            Dr. Carlstrom prepared his own letter on May 10, 1990 and 
 
            concluded the 1984 incident should be considered the cause 
 
            of her current discomfort.  He felt that claimant had 
 

 
            
 
            Page  11
 
            
 
            
 
            
 
            
 
            sustained a five percent partial impairment.
 
            30.  Claimant returned to Mayo Clinic on September 25, 1990 
 
            with complaints of chronic neck and back pain.  She 
 
            indicated that she had improved and that she was ready for a 
 
            work capacity evaluation.  Her work capacity evaluation was 
 
            performed on September 27, 1990.  The work capacity 
 
            evaluation indicated that claimant had low endurance, 
 
            decreased tolerance for weight handling, decreased postural 
 
            tolerance for sitting and standing and decreased body 
 
            mechanics for heights below 24 inches.  Claimant could work 
 
            for four hours per day alternating sitting and standing 
 
            activities and gradually increase her work time.  She could 
 
            tolerate occasional weight handling of between five and ten 
 
            pounds and she was unable to work below 24 inches from the 
 
            floor due to back and knee problems.  Claimant's work level 
 
            was sedentary and she was unable to twist, squat, and climb 
 
            stairs.  None of these restrictions were causally connected 
 
            to injuries that claimant suffered at work by any of the 
 
            physicians at Mayo Clinic.
 
            31.  In 1991, claimant was evaluated by Dr. McGuire.  Dr. 
 
            McGuire concluded that claimant had obvious degenerative 
 
            changes that have existed for ten years.  Dr. McGuire found 
 
            that claimant's pain history had an unclear etiology.  From 
 
            his review from the medical records, Dr. McGuire could find 
 
            no physician that had specifically identified the source of 
 
            claimant's ongoing pain.  He felt that claimant was out of 
 
            condition and placed minimal restrictions on her and would 
 
            assign minimal disability ratings since pain was the primary 
 
            complaint.  
 
            32.  On July 15, 1992, claimant was given a release to 
 
            return to work by Dr. Honeywell.  In the meantime, claimant 
 
            had arranged to have her right knee replaced due to 
 
            osteoarthritic changes and was currently off work due to 
 
            that surgery at the time of the hearing in October.
 
            33.  Claimant has identified various medical bills that 
 
            remain outstanding as a result of the injuries she has 
 
            suffered.  These amounts are reflected in claimant's exhibit 
 
            17.
 
            34.  Currently, claimant is better than she was in 1987 and 
 
            no doctor has recommended surgery for her back.  Claimant 
 
            has not had any problems with her chest pains since May of 
 
            1988.  The symptoms in her upper extremities have also 
 
            improved.  Claimant is still able to dance and she dances at 
 
            least once a week for at least 2-3 hours.  Claimant likes to 
 
            travel and can travel by car and has done so.  Claimant 
 
            plans to work until retirement age and she has not looked 
 
            for other work.  The hardest work claimant does now is 
 
            checking the torque on some screws to bringing them up to a 
 
            50 inch pound minimum.  Claimant uses a torque gun to do 
 
            this work.  Claimant is able to do most of her jobs 
 
            currently and she has no plans to take on any different duty 
 
            or a different job in the plant.  Claimant was considered a 
 
            good employee and Furnas has accommodated claimant regarding 
 
            her restrictions and her continuing employment with Furnas.  
 

 
            
 
            Page  12
 
            
 
            
 
            
 
            
 
            Claimant is still a Furnas employee.  
 
            34.  Claimant bid for several other jobs during the time 
 
            between November 1984 and March 10, 1989.  She was not 
 
            awarded any of these other positions.  The reasons that 
 
            claimant was not given any of these positions are not 
 
            related to her disability resulting from the work injuries.
 
            
 
                                CONCLUSIONS OF LAW
 
            
 
            , 1 Iowa Industrial Comm'r Dc. No. 3, 529, 534-535 (1985).      In this instanc, claimant has sustaind vry littl industrial loss attributabl to ths injuris.  Aftr both incidnts, and th rcurrncs, claimant was abl to rturn to th sam job ithr at th sam rat of pay or with an incras.  Th vidnc is not complling on th point that claimant's disabilitis prvntd hr from sking othr work in th plant.  Furnas accommodatd claimant's rstriction of no havy lifting.  Morovr, Furnas has continud to accommodat claimant's ongoing halth problms to prmit claimant's continud mploymnt.  Claimant has not lookd for othr work outsid Furnas and intnds to rturn to Furnas aftr sh rcovrs from hr scond kn surgry.       Morovr, claimant's most significant rstrictions hav occurrd aftr th injuris in issu hr.  Th mdical vidnc suggsts that claimant's othr halth problms wr not attributabl to hr work injuris.  Dr. Kinny found that claimant's ovrriding condition was attributabl to inflammatory arthropathy, srongativ rhumatoid arthritis, hyprtnsion, high cholstrol, high triglycrids, and ostoarthritis of th hands and thoracic spin.  Th xacrbation suffrd on Octobr 2, 1989 and th subsqunt kn surgry rsultd in significant rstrictions from Mayo Clinic and Dr. Honywll and a rating of som sort from Dr. Fotiadis.  Non of claimant's trating physicians linkd ths conditions to th work injuris in issu hr howvr.  This viw was confirmd by Dr. McGuir who flt that claimant had minimal disability as a rsult of th work rlatd injuris.     Basd upon th forgoing factors, all of th factors usd to dtrmin industrial disability, and mploying agncy xprtis, it is dtrmind that claimant sustaind a fiv prcnt industrial disability for th injury suffrd on Novmbr 9, 1984 and claimant suffrd a fiv prcnt industrial disability for th injury suffrd on July 8. 1987 and th rcurrncs of th injury in Fbruary 23, 1988.     B.  Haling Priod     Haling priod bnfits may b charactrizd as that priod during which thr is a rasonabl xpctation of improvmnt of a disabling condition and nds whn maximum mdical improvmnt is rachd. Armstrong Tir and Rubbr Co. v. Kubli, 312 N.W.2d 60, 65 (Iowa Ct. App. 1981).  In discussing th concpt of haling priod as contmplatd by Iowa Cod Sction 85.34(1) (1991) th Kubli Court obsrvd that rcupration rfrs to that condition in which haling is complt and th xtnt of th disability can b dtrmind. Kubli, 312 N.W.2d at 65.  Th haling priod gnrally trminats at th tim th attnding physician dtrmins that th mploy has rcovrd as far as possibl from th ffcts of th injury. Kubli, 312 N.W.2d at 65.  Whn a prmannt rating is givn, it indicats that th physician dos not xpct th claimant to improv and this conclusion mts th critria of Iowa Cod sction 85.34(1) and Thomas v. William Knudson & Sons, Inc., 349 N.W.2d 124, 126 (Iowa App. 1984).  A haling priod will also nd whn claimant rturns to work.  S, Iowa Cod Sction 85.34(1)(1991).  A haling priod can b intrmittnt. Risslman v. Carroll Halth Cntr, III Iowa Industrial Commissionr Rports 209 (App. 1982); Mir v. Cran Siding & Roofing Co., IV Iowa Industrial Commissionr Rports 242 (App. 1984).For th injury of Novmbr 9, 1984, claimant missd no work according to hr attndanc rcord.  Consquntly sh is not ntitld to any haling priod bnfits.  Claimant is ntitld to haling priod bnfits for th injury suffrd on July 8, 1987.  Claimant had a priod of haling aftr this injury, thn sh rturnd to work.  Thraftr, with th rcurrncs, claimant had rcupration priods and work priods.  Ths priods rprsnt intrmittnt haling priods sinc th injury causd claimant to suffr a prmannt disability.  Th dats and tim for th haling priod bnfits ar as follows:July 9-1987 to July 23, 1987               2 wksJuly 28-29, 1987                           2 daysDc. 28, 1987-Jan. 31, 1988                4.8571 wksFb. 4, 1988                               1 dayFb. 24-28, 1988                           4 daysMay 16-24, 1988                            1.1428 wksJun 1-Jun 6, 1988                        6 daysJun 15-16, 1988                           2 daysJun 29-July 4, 1988                       5 daysTOTAL:           10.8570 wksD.  Commncmnt dat of prmannt bnfits.     For th injury suffrd on Novmbr 9, 1984, th commncmnt dat of prmanncy bnfits is Novmbr 9, 1984.  Claimant lost no tim from work for this injury so prmanncy bnfits bgin on Novmbr 9, 1984.  For th injury suffrd on July 8, 1987 th convrsion dat is th nd of claimant's first haling priod and a rturn to work on August 1, 1987.  S, Iowa Cod Sction 85.34(1)(1991).       3.  Whthr claimant is ntitld to mdical bnfits, including a dtrmination of causal connction to th work injury and th causal connction of this condition to a work injury.     Claimant contnds that sh is ntitld to mdical bnfits for th injuris suffrd btwn Novmbr 4, 1984 to May 10, 1988.  Dfndants contnd that th mdical car was not rlatd to th work injury in fils 818013, 905128 and 860684 and that th statut of limitations has run rgarding any claims in fil numbr 905128.  Dfndants also argud in fils 905129 and 905130 that th xpnss incurrd for mdical tratmnt wr not rasonabl and ncssary to trat th work rlatd condition.  Dfndants also urg in fils 818013, 905128, and 860684 that claimant's mdical car was not authorizd.     Th claimant has th burdn of dmonstrating that th mdical srvics obtaind wr rlatd to th injury in ordr to hav th xpnss rimbursd or paid.  Auxir v. Woodward Stat Hospital, 266 N.W.2d 139, 144 (Iowa 1978).  Morovr, th claimant has th burdn of showing that th mdical srvics obtaind wr rasonabl and ncssary to trat th work rlatd injury.  Car is rasonabl if it includd car that is ncssary to diagnos th condition, vn though th diagnosis ultimatly shows th complaint to b non work rlatd.  Pot v. Mickow Corporation, Fil No. 694639, Slip op. (Iowa Ind. Comm'r Rv-Ropn Jun 17, 1986).  If th claimant offrs tstimony that a disputd mdical bill is rlatd to th tratmnt of a work injury and th tstimony is unrfutd, th mdical bill will b allowd.  Dowll v. Waglr, Fil No. 880145, Slip Op. (Iowa Ind. Comm'r App. Novmbr 26, 1991).     Rgarding th statut of limitation qustion in fil numbr 905128, as it applis to mdical bnfits, Iowa Cod 85.26 provids that an action must b commncd within two yars of th injury dat to obtain bnfits undr Chaptr 85 and Chaptr 86.  Iowa Cod Sction 85.26 gos on to provid howvr, that if th mployr fails to fil a dnial of liability within 6 months of th injury dat, thr is no statut of limitations for a claim for mdical bnfits.  Consquntly, vn though claimant cannot rcovr wkly bnfits for hr injury of March 13, 1986, claimant can rcovr mdical bnfits if sh is abl to show that th injury aros out of and in th cours of hr mploymnt with Furnas and Furnas faild to fil a dnial of liability with th Commissionr within 6 months of th injury.  Th points of law rgarding causation ar st out in an arlir part of this dcision and ar qually applicabl hr.     In this instanc, it is clar from th mdical rcords of Dr. Torillo, and Dr. Boarini that thy flt that claimant's carpal tunnl syndrom was probably rlatd to hr work.  Claimant did rptitiv work in hr job as an inspctor.  A rviw of th fil and th vidnc offrd by th dfndants shows that no dnial of liability was fild for this claim until th answr was fild in 1989, wll aftr th tim Furnas was rquird to dny liability for th work injury.  Consquntly, Furnas is rsponsibl for th bills rlatd to this injury.  Ths bills includ th bill for Psychiatry Associats and Hains Prosthtics, Inc.     Th bill for th East Ds Moins Clinic covrs a priod of narly thr yars from Dcmbr 14, 1987 to Sptmbr 30, 1989.    Th tratmnt from Dcmbr 14, 1987 through August 20, 1988 wr rlatd to th July 8, 1987 injury and th rcurrncs of th injury on Fbruary 23, 1988 and May 10, 1988.  Dr. Torillo clarly links this tratmnt in his nots and lttrs during this tim priod and in th priodic billings h prpard for dfndants.  Th cost of ths tratmnts will b allowd.     Th xpnss with Ds Moins Gnral and Havy Mdicin wr for tsts rlating to claimant's chst pains in May of 1988.  This is an instanc whr th tsts wr don to pinpoint th sourc of claimant's complaints and to dtrmin if th injury was work rlatd, dfndants ar liabl for th cost of th tsts.  Pot v. Mickow Corporation, Fil No. 694639, Slip op. (Iowa Ind. Comm'r Rv-Ropn Jun 17, 1986).  Aftr th tsts wr compltd, it was dtrmind that th chst pains wr rlatd to claimant's injury on July 8, 1987 and th dfndants ar liabl for ths bills.     Aftr August 20, 1988 claimant had tratmnt with Dr. Torillo through April 1, 1989.  Dr. Torillo did not indicat what th tratmnt was for or that it was rlatd to any of claimant's prior injuris.  Consquntly, claimant has faild to carry hr burdn rgarding ths chargs with th East Ds Moins Clinic.     On Jun 10, 1989, claimant again sought tratmnt for bilatral lowr xtrmitis pain and pain in th crvical dorsal and lumbar spin from th East Ds Moins Clinic.  Dr. Torillo did not rlat ths conditions to a work rlatd injury.  Claimant did not providd any tstimony that th tratmnts aftr Jun 10, 1989 wr rlatd to hr work injury.  Consquntly sh has faild to sustain hr burdn of proof for th rmaining tratmnt rcivd from Jun 10, 1989 to Sptmbr 30, 1989 and ths xpnss will not b allowd.     Dfndants hav also raisd an issu of authorizd tratmnt in fils 818013, 905128, and 860684.  An mployr has no right to dirct car whn th mployr dnis liability for th claim.  Picktt v. Davnport Luthran Hom, Fil No. 760739, Slip Op. Iowa Ind. Comm'r App. Octobr 30, 1987) (Dfndants may not dny liability and dirct th cours of claimant's mdical tratmnt); Kindhart v. Fort Ds Moins Hotl, I Stat of Iowa Industrial Commissionr Dcision 611 (Appal Dcision 1985)(Whr th mployr dnis liability for a work-rlatd injury, th mployr loss th right to slct th car which th injurd workr rcivs).       In this instanc, dfndants did not admit liability for any of th injuris in issu and put th qustion in issu for dcision at th tim of th haring.  Dfndants cannot scap liability for mdical xpnss now by urging that claimant was not authorizd to sk tratmnt.       4.  Which carrir bars th liability for ach injury.     In allocating th burdn of loss for ach of th carrirs, th mdical vidnc and th dats of thir covrag will control vnts of initial injury, aggravation or rcurrnc of th arlir injury.  S, 4 A. Larson, Workmn's Compnsation Law, Sction 95.11 (1990).       In this instanc, thr of th injuris occurrd during th priod of Northbrook's covrag.  Th chang in covrag occurrd on Octobr 1, 1987.  By virtu of its covrag priod, Northbrook has th risk for th first thr injury dats.  Librty contnds that Northbrook has th risk on th last two injuris as wll.  Th mdical vidnc supports this contntion.     Librty dnid covrag on th last two injuris basd on information containd in Dr. Torillo's mdical rcords.  Dr. Torillo indicatd in a lttr to Robin Hndrson on July 25, 1987 that th original insult of th accidnt of July 8, 1987 was th tiological basis for claimant's rcurring complaints.  Dr. Torillo wnt on to not that whil claimant r-injurd hr back following havy physical activity on Fbruary 23, 1988, this incidnt had not causd any nw and or diffrnt complaints.  Claimant had an xacrbation to hr xisting complaints of pain, spasm and painful rang of motion involving th crvical and dorsal spin and hr shouldrs and arms.  Dr. Torillo also concludd that claimant's car would hav continud without th vnt of Fbruary 23, 1988.  Thr is no contrary mdical vidnc to suggst that th injury was an aggravation of a prxisting condition.  Consquntly, claimant suffrd a rcurrnc of th injury of July 8, 1987 and th loss associatd with th incidnt of Fbruary 23, 1988 will b assssd to Northbrook.     Dr. Torillo rachd th sam conclusion with th injury of May 10, 1988.  His mdical rcords rflct that on Jun 13, 1988, basd on history givn by claimant and th subjctiv and objctiv information h obtaind in th physical xamination that this chst pain was an acut xacrbation of hr prvious injury of July 8, 1987.  Th billing statmnt snt on Jun 14, 1988 indicatd that all of th tratmnt that claimant had rsultd from th injury of July 8, 1987.  Dr. Torillo considrd this incidnt as a rcurrnc of th injury of July 8, 1987.  Northbrook has not pointd to any othr vidnc in th rcord whr a physician concludd that claimant had suffrd a nw injury on May 10, 1988.  Claimant had an acut xacrbation of th July 8, 1987 injury.  As a rsult, Northbrook is liabl for th compnsation and mdical bnfits associatd with this injury.  ordrTHEREFORE, IT IS ORDERED:1.  Furnas and Northbrook shall pay to claimant th amounts of haling priod bnfits at th rat of two hundrd and thr and 42/100 dollars ($203.42) pr wk for th tim priods as thy appar blow:July 9, 1987 to July 23, 1987              2 wksJuly 28-29, 1987                           2 daysDc. 28, 1987-Jan. 31, 1988                4.8571 wksFb. 4, 1988                               1 dayFb. 24-28, 1988                           4 daysMay 16-24, 1988                            1.1428 wksJun 1-Jun 6, 1988                        6 daysJun 15-16, 1988                           2 daysJun 29-July 4, 1988                       5 daysTOTAL:      10.8570 wksAs ths bnfits hav accrud, thy shall b paid in a lump sum togthr with statutory intrst thron pursuant to Iowa Cod sction 85.30 (1991).2.  Furnas and Northbrook shall pay to claimant prmannt partial disability bnfits in th amount of fiv prcnt (5%) for th injury to claimant's back and lg occurring on Novmbr 4, 1984 at th rat of on hundrd forty-four and 6/100  dollars ($144.06) pr wk with paymnt commncing on Novmbr 4, 1984.  Additionally, Furnas and Northbrook shall pay to claimant prmannt partial disability bnfits in th amount of fiv prcnt (5%) for th injury to claimant's back occurring on July 8, 1987 togthr with subsqunt rcurrncs on Fbruary 23, 1988 and May 10, 1988, at th rat of two hundrd and thr and 42/100 dollars ($203.42) pr wk.  As ths bnfits hav accrud, thy shall b paid in a lump sum togthr with statutory intrst thron pursuant to Iowa Cod sction 85.30 (1991).3.  Furnas and Northbrook shall hav a crdit in th amount of fiv thousand two hundrd twnty-ight and 86/100 dollars ($5,228.86) against any amounts owd.  4.  Claimant is ntitld to th paymnt of all th mdical bills idntifid in Exhibit 17, xcpt for th tratmnts rndrd by th East Ds Moins Clinic aftr August 20, 1988.5.  Librty Mutual and Furnas shall hav no liability for any of th injuris includd in this dcision.6.  Th costs of this action shall b assssd to Furnas and Northbrook pursuant to rul 343 IAC 4.33.7.  Furnas and Northbrook shall fil claim activity rports as rquird by rul 343 IAC 3.1.Signd and fild this ____ day of Dcmbr, 1992.________________________________ELIZABETH A. NELSONDEPUTY INDUSTRIAL COMMISSIONERCopis To:Mr Stvn C JaynAttorny at Law5835 Grand AvnuSuit 201Ds Moins Iowa 50312Mr Hlmut A MullrAttorny at LawRR 5Oscola Iowa 50213Mr E J KllyMr Jff MargolinAttornys at LawTrrac Cntr St 1112700 Grand AvnuDs Moins Iowa 50312Mr Richard G BookAttorny at Law500 Librty BuildingDs Moins Iowa 50309
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
                                          5-1106;5-1402.30;5-1402.60
 
                                          5-1802;5-1803;2402;2505
 
                                          Filed December 23, 1992
 
                                          ELIZABETH A. NELSON
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            MARY VAN SYOC,                :
 
                                          :
 
                 Claimant,                :
 
                                          :     File Nos. 818013/860684
 
            vs.                           :               905128/905129
 
                                          :                  905130
 
            FURNAS ELECTRIC COMPANY,      :
 
                                          :      A R B I T R A T I O N
 
                 Employer,                :
 
                                          :         D E C I S I O N
 
            and                           :
 
                                          :
 
            LIBERTY MUTUAL INSURANCE      :
 
            COMPANY and NORTHBROOK        :
 
            INSURANCE COMPANY,            :
 
                                          :
 
                 Insurance Carriers,      :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
            5-1106, 5-1402.30
 
            Claimant proved by a preponderance of the evidence that she 
 
            suffered five injuries while at work.  Three injuries 
 
            represented a primary injury and then two recurrences of the 
 
            injury.  
 
            
 
            5-1402.60
 
            Claimant proved that all of the medical treatment that she 
 
            received except for treatment after August 20, 1989 was 
 
            related to her work injuries.  
 
            
 
            5-1802
 
            Claimant was awarded intermittent healing period benefits 
 
            for the time periods that she was off work.  
 
            
 
            5-1803
 
            Claimant, a 59 year inspector for Furnas, with a 47 year 
 
            history of swelling in the joints, obesity, hypertension, 
 
            degenerative joint disease in the major and minor joints was 
 
            awarded five percent industrial disability for an injury on 
 
            November 4, 1984 and five percent industrial disability for 
 
            an injury on July 8, 1987 and recurrences on February 23, 
 
            1988 and May 10, 1988.  Claimant had a .5 to 1 percent 
 
            functional impairment and no restrictions from the first 
 
            injury.  She returned to the same job with the same pay or 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            an increase.  Claimant had no functional impairment as a 
 
            result of this injury and the recurrences.  Claimant did 
 
            have a restriction of no heavy lifting after the injury on 
 
            July 8, 1987.  She returned to work after each incident to 
 
            the same job for the same or increased wage and her employer 
 
            accommodated her restriction.  Claimant has a high school 
 
            education and a varied employment history.  
 
            
 
            2402
 
            Defendants raised a statute of limitations defense regarding 
 
            a cumulative trauma injury on March 13, 1986.  Claimant did 
 
            not file her petition until March 3, 1989.  Defendants made 
 
            no payments of benefits on this injury.  Claimant filed an 
 
            injury report on March 13, 1986, and the condition was 
 
            diagnosed as carpal tunnel syndrome on October 27, 1988.  
 
            Claimant clearly knew the condition was work related as 
 
            early as March 13, 1986 and she herself was making the 
 
            linkage after she sought treatment for the condition in July 
 
            of 1986.  Relying on Oscar Mayer Foods Corp. v. Tasler, 483 
 
            N.W.2d 824, (Iowa 1992) and the medical records from Dr. 
 
            Toriello, claimant's condition manifested itself on April 
 
            14, 1986, when she first sought treatment for the condition.  
 
            Claimant failed to file a timely petition and she is not 
 
            entitled to weekly benefits for this injury.  
 
            
 
            2505
 
            Claimant is entitled to medical benefits for the injury on 
 
            March 13, 1986 since Furnas failed to file a denial of 
 
            liability within 6 months of the date of the injury.  The 
 
            denial was filed with the answer to the petition in 1989.
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                      BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         DARRELL L. LEAMING,
 
         
 
              Claimant,
 
                                                     FILE NO. 818155
 
         VS.
 
                                                 A R B I T R A T I 0 N
 
         TOM BORNHOLTZ d/b/a SIOUX
 
         SALES COMPANY,                             D E C I S I 0 N
 
         
 
              Employer,
 
         
 
         and
 
         
 
         CITIZENS SECURITY MUTUAL
 
         INSURANCE,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         
 
                              STATEMENT OF THE CASE
 
         
 
              This is a proceeding in arbitration brought by Darrell L. 
 
         Leaming, claimant, against Tom Bornholtz d/b/a Sioux Sales 
 
         Company, employer (hereinafter referred to as Sioux Sales), and 
 
         Citizens Security Mutual Insurance, insurance carrier, for 
 
         workers' compensation benefits as a result of an alleged injury 
 
         on February 27, 1986.  On January 20, 1988, a hearing was held on 
 
         claimant's petition and the matter was considered fully submitted 
 
         at the close of this hearing.
 
         
 
              The parties have submitted a prehearing report of contested 
 
         issues and stipulations which was approved and accepted as a part 
 
         of the record of this case at the time of hearing.  Oral 
 
         testimony was received during the hearing from claimant and the 
 
         following witnesses:  Judith Leaming and Harry Bornholtz.  The 
 
         exhibits received into the evidence at the hearing are listed in 
 
         the prehearing report except as otherwise stated below.  
 
         According to the prehearing report, the parties have stipulated 
 
         to the following matters:
 
         
 
              1.  On February 4, 1986, claimant received an injury which 
 
         arose out of and in the course of his employment with Sioux 
 
         Sales. (February 27, 1988 was first date of disability).
 
         
 
              2.  Claimant's rate of weekly compensation in the event of 
 
         an award of weekly benefits from this proceeding shall be 
 

 
         
 
         
 
         
 
         LEAMING V. TOM BORNHOLTZ d/b/a SIOUX SALES COMPANY
 
         Page   2
 
         
 
         
 
         $264.58.
 
              3.  Claimant is only seeking temporary total disability or 
 
         healing period benefits from March 1, 1986 through August 12, 
 
         1986; August 22, 1986 through March 1, 1987; and, March 3, 1987 
 
         through May 11, 1987.  Defendants agree that claimant was not 
 
         working during these periods of time.
 
         
 
              4.  If the injury is found to have caused permanent 
 
         disability, the type of disability is an industrial disability 
 
         to the body as a whole.
 
         
 
              5.  The medical bills submitted by claimant at hearing 
 
         were fair and reasonable and causally connected to the medical 
 
         condition upon which the claim herein is based but that the 
 
         issue of their causal connection to any work injury remains an 
 
         issue to be decided herein.
 
         
 
              Taken under advisement at hearing were objections to 
 
         exhibits 7A and defense exhibit A.  Defendants object to the 
 
         opinion letter of Richard Adams, M.D., exhibit 7A, on the 
 
         grounds of lack of foundation, competency, relevancy and, under 
 
         Chapter 17A, Code of Iowa, as not being the type of evidence a 
 
         reasonably prudent person would rely upon in the conduct of 
 
         his/her important affairs.  This objection is overruled.  The 
 
         heresay nature of the evidence was overcome by claimant's 
 
         compliance with agency rules regarding service of such evidence 
 
         upon defendants before the hearing.  Defendants had ample 
 
         opportunity to cross-exam Dr. Adams prior to hearing.  With 
 
         reference to competency and foundation, it must be noted that 
 
         the evidence of Dr. Adams' background and qualifications to 
 
         render a pathology report was lacking but that it is also noted 
 
         that Dr. Adams is a pathologist at the Iowa Methodist Medical 
 
         Center in Des Moines, Iowa.  Dr. Carlstrom, whose 
 

 
         
 
         
 
         
 
         LEAMING V. TOM BORNHOLTZ d/b/a SIOUX SALES COMPANY
 
         Page   3
 
         
 
         
 
         qualifications as a neurosurgeon were not questioned by 
 
         defendants, is a staff doctor at the Iowa Methodist Medical 
 
         Center in Des Moines, Iowa.  In Dr. Carlstrom's deposition 
 
         testimony he found no problem with Dr. Adams' qualifications in 
 
         giving weight to his opinions.  Furthermore, written reports 
 
         from staff pathologists certainly are the type of evidence that 
 
         physicians rely upon in the course of their treatment of 
 
         patients at the Iowa Methodist Medical Center and certainly the 
 
         type of evidence permissible under Iowa Code section 17A.14. 
 
         Therefore, exhibit 7A is received into the evidence.
 
         
 
              Claimant objects to defense exhibit A on the same grounds 
 
         raised by defendants in their objections to exhibit 7A.  
 
         However, this objection is sustained and exhibit A will be 
 
         excluded from the evidence.  The exhibit appears to be nothing 
 
         other than a summarization or paraphrasing of some of the 
 
         medical evidence in this case.  As it is not complete as to all 
 
         of the medical evidence, it frankly is not reliable and should 
 
         be excluded for the reasons stated by claimant in his 
 
         objections.  Therefore, exhibit A is excluded from the 
 
         evidence.  However, despite being excluded from the formal 
 
         evidence, the content of the exhibit was reviewed and 
 
         considered in the same manner as would be "argument" in the 
 
         same fashion as defendants' post-hearing brief and 
 
         summarization of evidence was considered in arriving at this 
 
         decision.
 
         
 
                                  ISSUES
 
         
 
              The parties submitted the following issues for determination 
 
         in this proceeding:
 
         
 
              I.  Whether there is a causal relationship between the work 
 
         injury and the claimed disability;
 
         
 
             II.  The extent of weekly disability benefits to which 
 
         claimant is entitled; and,
 
         
 
            III.  The extent of claimant's entitlement to medical benefits 
 
         under Iowa Code section 85.27.
 
         
 

 
         
 
         
 
         
 
         LEAMING V. TOM BORNHOLTZ d/b/a SIOUX SALES COMPANY
 
         Page   4
 
         
 
         
 
                             SUMMARY OF THE EVIDENCE
 
         
 
              The following is a summary of evidence presented in this 
 
         case.  For the sake of brevity, only the evidence most pertinent 
 
         to this decision is discussed.  Whether or not specifically 
 
         referred to in this summary, all of the evidence received at the 
 
         hearing was considered in arriving at this decision.  As will be 
 
         the case in any attempted summarization, conclusions about what 
 
         the evidence offered may show are inevitable.  Such conclusions, 
 
         if any, in the following summary should be considered as 
 
         preliminary findings of fact.
 
         
 
              Claimant testified that he has worked for Sioux Sales since 
 
         1984 as a traveling salesman of law enforcement equipment and 
 
         goods.  Claimant continues in this work activity at the present 
 
         time.  Claimant resides in Des Moines and each week he drives his 
 
         automobile to all areas of the state and adjacent areas of 
 
         bordering states in the course of his sales work.  Claimant 
 
         testified that he is successful in this work and to date he earns 
 
         approximately the same amount of money he earned at the time of 
 
         the work injury in this case.  Claimant's supervisor, the owner 
 
         of Sioux Sales, testified that claimant has been a good salesman 
 
         for his company and remains to be so at the present time.
 
         
 
              The facts surrounding the work injury are not in real 
 
         dispute.  Claimant testified that on February 4, 1986, he was on 
 
         the road in the course of his sales activity.  Claimant testified 
 
         that on the evening of February 4, 1986, while walking from his 
 
         motel room to the motel office to cash a check prior to going out 
 
         for evening supper, he slipped and fell on ice on the motel 
 
         sidewalk striking the upper left side of his forehead, cutting 
 
         his scalp just above the left eyebrow.  Claimant said that he did 
 
         not lose consciousness and sought assistance from motel employees 
 
         who suggested that he seek medical attention.  Claimant said that 
 
         he then took a cab to the local hospital and received four 
 
         stitches or sutures to close the wound in his head.  Claimant 
 
         said that after this treatment he returned to the motel without 
 
         further incident.  However, claimant stated that he did not work 
 
         the following day due to head pain from the incident.  In his 
 
         deposition testimony of 1986, claimant stated that he could not 
 
         recall any further problems at the time his family doctor removed 
 
         the sutures a week later.  However, in his deposition of 
 
         December, 1987, claimant stated that he did have headaches after 
 
         the incident and took aspirin for the pain.  At hearing claimant 
 
         testified that he continued to have head pain after the fall but 
 
         he continued to work.  Claimant underwent a physical examination 
 
         for insurance purposes a couple of weeks after February 4, 1986, 
 
         conducted by his family physician and no problems were noted.  
 
         Claimant testified that he had no subsequent falls to his 
 
         knowledge after the February 4, 1986 incident and no significant 
 
         falls or head problems before that time.
 
         
 
              Approximately 20 days later while on another road trip in 
 
         the Glenwood, Iowa area, claimant testified that he awoke on a 
 
         Wednesday morning feeling flu-like symptoms.  He said that he 
 
         returned to bed the rest of the day.   The next day he stated 
 
         that he continued to feel ill and personnel at the motel 
 
         suggested that he seek medical attention.  Claimant said that he 
 
         refused to do so at that time because he did not think the 
 

 
         
 
         
 
         
 
         LEAMING V. TOM BORNHOLTZ d/b/a SIOUX SALES COMPANY
 
         Page   5
 
         
 
         
 
         problem was serious and he telephoned his wife that evening.  
 
         Claimant testified that he could not remember the events of 
 
         Friday.  Claimant's wife testified that she received a call from 
 
         Sioux Sales on Friday that claimant had not been heard from and 
 
         that the motel employees were concerned about claimant.  
 
         ClaimantOs wife then traveled to the motel in Glenwood and found 
 
         claimant in his room talking incoherently.  She transported 
 
         claimant home and that night she found claimant in the living 
 
         room of their house picking up dimes off the floor complaining 
 
         that a cat had knocked them off a table.  Claimant's wife 
 
         explained that they had no cat in the house.  Claimant was then 
 
         transported by his wife to Charter Memorial Hospital and he was 
 
         admitted for neurological symptoms consisting of gait difficulty, 
 
         balance and equilibrium disturbances, cognitive defects and 
 
         generalized weakness.  Claimant was then immediately transferred 
 
         to Mercy Hospital on March 2, 1986.  Upon a diagnosis of 
 
         bilateral endoparenchymnal hemorrhage with subjural hemotoma in 
 
         the left front of his brain extending across to the right front 
 
         of his brain, emergency surgery called a bifrontal craniotomy was 
 
         performed by Stuart R. Winston, M.D., a board certified 
 
         neurosurgeon.  In his report, Dr. Winston stated that he removed 
 
         excess blood and damaged brain tissue in the front left and right 
 
         sides of claimant's brain.  On March 18, 1986, claimant was able 
 
         to walk but still experienced gait and memory problems.  At that 
 
         time, claimant was transferred to Younkers Rehabilitation Center 
 
         at Iowa Methodist Medical Center and placed under the care of 
 
         William D. degravelles, M.D., and his rehabilitation staff.  
 
         Between March 18, 1986 and April 11, 1986, claimant underwent 
 
         occupational, speech, psychological and physical therapy.  
 
         Claimant said that he could only remember the last day at Mercy 
 
         Hospital in March, 1986.  After his release from Iowa Methodist 
 
         Medical Center, claimant was treated solely by Steven R. Adelman, 
 
         D.O., a neurologist.  In May, 1986, claimant was expecting to be 
 
         released to return to work but while talking to a restaurant 
 
         owner on May 17, 1986, he lost consciousness and fell to the 
 
         floor and was immediately transported back to Mercy Hospital.  
 
         Claimant was initially treated at the hospital by Dr. Bakody for 
 
         what he felt was a toxic level of Dilantin in claimant's blood 
 
         stream.  Claimant had been taking Dilantin, an anti-seizure drug, 
 
         since his brain surgery.  However, Dr. Winston and Dr. Adelman 
 
         felt that claimant had a "break through" brain seizure as a 
 
         result of his brain hemorrhage and corrective surgery.  Claimant 
 
         then could not return to work due to a state rule of the 
 
         Department of Transportation that persons cannot be permitted to 
 
         drive an automobile within six months of a brain seizure.
 
         
 
              In August of 1986, claimant again experienced difficulties. 
 
          On August 22, 1986, after claimant had returned to work only 10 
 
         days he again lost consciousness while making some phone calls at 
 
         a Casey's store in Mt. Pleasant, Iowa.  Claimant was transported 
 
         to the hospital but only stayed a few hours and he drove home by 
 
         himself.  Dr. Adelman at that time felt that claimant had another 
 
         brain seizure and again to claimant's dismay, he prohibited 
 
         driving for another six months.  Claimant then remained 
 
         unemployed during the six months except for a brief period of 
 
         time he worked as a supply room clerk in a business operated by a 
 
         friend.  Claimant at one time requested Sioux Sales to allow 
 
         either his wife or his daughter to drive him to his sales routes 
 
         but this arrangement was refused by Sioux Sales for insurance 
 

 
         
 
         
 
         
 
         LEAMING V. TOM BORNHOLTZ d/b/a SIOUX SALES COMPANY
 
         Page   6
 
         
 
         
 
         reasons.  Finally, on May 12, 1987, claimant returned to full 
 
         duty at Sioux Sales and currently remains so employed.
 
         
 
              Claimant testified that he struck his head and back when he 
 
         fell to the floor in his two post-operative seizures.  On March 
 
         9, 1987, claimant was hospitalized for chronic low back strain 
 
         when he experienced severe low back pain after arising from bed 
 
         one morning while on a road trip to Waterloo, Iowa.  Claimant 
 
         denied any heavy activity which could have precipitated this back 
 
         pain and attributed the pain to the falls as the result of the 
 
         May and August, 1986 seizures.  The only physician to render an 
 
         opinion as to the precise nature and cause of claimant's back 
 
         problems was Michael A. Disbro, M.D.  According to Dr. Disbro, 
 
         claimant suffers from a compression fracture of the Ll-L2 levels 
 
         of his spine.  Dr. Disbro also believes that it is unlikely that 
 
         these fractures occurred immediately prior to the March, 1987, 
 
         hospitalization.  However, x-rays taken of claimant's spine after 
 
         his last seizure fall in August, 1986, were normal and due to 
 
         these normal x-rays Dr. Disbro opines that the compression 
 
         fractures in claimant's spine occurred sometime between August 
 
         23, 1986 and claimant's hospitalization in March, 1987.  Claimant 
 
         did not report any seizure falls during this period of time to 
 
         his physicians or at hearing.  Claimant denies any back problems 
 
         prior to the Waterloo incident.
 
         
 
              The fighting issue in this case was the alleged causal 
 
         connection between claimant's fall on February 4, 1986 and 
 
         claimant's brain hemorrhage and corrective surgery.  The 
 
         neurosurgeon who performed the corrective brain surgery,, Dr. 
 
         Winston, has opined that he does not believe that the fall was 
 
         related to the events leading up to the surgery.  However, upon 
 
         closer scrutiny in his deposition testimony, Dr. Winston's views 
 
         were very unclear.  He stated that he believes that the condition 
 
         was caused by trauma from some recent falls but the only history 
 
         given to him by claimant prior to the surgery was the February 4, 
 
         1986 fall.  Dr. Winston states as follows in his deposition:
 
         
 
                 A.  It was my opinion, based upon the surgical 
 
              findings, that the fall of 2/4/86 had nothing to do 
 
              with my surgical findings of the day I operated on the 
 
              patient, had nothing whatever to do with any of that 
 
              other information, had strictly to do with what I was 
 
              looking at.
 
         
 
              When asked if it were his opinion that there was no causal 
 
         connection between the fall and the brain hemorrhage, Dr. Winston 
 
         states as follows:
 
         
 
                 A.  Well, I think that's stretching it a point.  
 
              Because we're talking about several things here, so I'm 
 
              not sure I can answer your question.  It was given -- I 
 
              was given the impression and made the speculation in my 
 
              letter of May 12th, 1986 to Doctor Hostetter and sent a 
 
              copy to Doctor Shreck that if there was in some 
 
              hematologic mechanism, which I am not an expert in, 
 
              some kind of traumatic incident that occurred three or 
 
              four weeks before, and that this set off an 
 
              abnormality, that then there might have been some 
 
              credence to having what occurred then three to four 
 

 
         
 
         
 
         
 
         LEAMING V. TOM BORNHOLTZ d/b/a SIOUX SALES COMPANY
 
         Page   7
 
         
 
         
 
              weeks later to Mr. Leaming -- that that, in fact, might 
 
              have been the case.
 
         
 
                        The letter that I reviewed at the request of 
 
              counsel seemed to indicate that this indeed was the 
 
              case, and therefore my letter agreeing with that 
 
              opinion is based on my agreement with someone who has 
 
              expertise in the area of hematology, which I do not 
 
              have.
 
         
 
              Robert R. Schreck, M.D., a hemologist, to which Dr. Winston 
 
         refers to in the above passages, had examined claimant when he 
 
         first arrived at Mercy prior to the brain surgery.  Blood tests 
 
         at that time indicated to Dr. Schreck that claimant had a 
 
         borderline level of factor IX in his blood, a clotting agent.  
 
         Claimant also had a prior diagnosis of Christmas disease, a form 
 
         of mild hemophilia from a factor IX deficiency.  Dr. Schreck 
 
         opined initially that the February 4, 1986 fall combined with 
 
         claimant's blood disorder precipitated the hemorrhage and 
 
         surgery.  Dr. Winston defers to Dr. Schreck as to the effect of 
 
         claimant's blood disorder on the hemorrhage later in the month of 
 
         February.  However, what was confusing to Dr. Winston was that 
 
         Dr. Schreck has most recently opined that claimant does not have 
 
         such a blood disorder.  However, despite his change of opinion as 
 
         to the condition of claimant's blood, Dr. Schreck still maintains 
 
         that there is a causal relationship between the fall early in 
 
         February and the events later in February leading up to the brain 
 
         surgery.  He explains in his deposition that there is simply no 
 
         other possible cause given his medical school training but that 
 
         he definitely would defer to neurosurgeons on the matter.
 
         
 
              Claimant's treating neurologist, Dr. Adelman, D.O., clearly 
 
         opines that the February 4, 1986 fall caused the hemorrhaging in 
 
         claimant's brain which necessitated the emergency surgery in 
 
         March, 1986.  He also opines that claimant's loss of 
 
         consciousness in May and August of 1986 were "break through" 
 
         seizures caused by the original fall and the necessary corrective 
 
         surgery.
 
         
 
              Thomas A. Carlstrom, M.D., another board certified 
 
         neurosurgeon, also issued a causal connection opinion in this 
 
         case.  Dr. Carlstrom testified that he did not examine claimant 
 
         but he did not feel it necessary to do so to render an opinion in 
 
         this case.  Dr. Carlstrom felt that Dr. Winston's reported 
 
         surgical findings contained in his records are consistent with a 
 
         fall several weeks prior to the surgery and that it was his 
 
         opinion that the February 4, 1986 fall was a cause of the 
 
         hemorrhaging and brain surgery later in the month.
 
         
 
              Finally, in December, 1987, Richard Adams, M.D., a 
 
         pathologist at the Iowa Methodist Medical Center, issued a report 
 
         of his examination of tissue samples taken from claimant's brain 
 
         during the March, 1986, surgery.  According to Dr. Adams, he 
 
         found not only evidence of fresh hemorrhage but also "reactive 
 
         gliosis" which was a finding compatible with a trauma injury 
 
         several weeks prior to the acute hemorrhaging episode.
 
         
 
              Claimant testified that although he continued to perform 
 
         very well in his current sales work at Sioux Sales, he states 
 

 
         
 
         
 
         
 
         LEAMING V. TOM BORNHOLTZ d/b/a SIOUX SALES COMPANY
 
         Page   8
 
         
 
         
 
         that he is slower mentally then before and must spend more time 
 
         on each sales call.  Claimant's wife testified that claimant has 
 
         lost emotional response and that "he does not care about things 
 
         as much as he did before." The only physician to opine as to any 
 
         permanent defects from the brain injury was Dr. degravelles who 
 
         opined from psychological testing that claimant has a 20 to 25 
 
         percent permanent partial impairment to the body as a whole under 
 
         AMA Guidelines as a result of his deficits in affect, behavior, 
 
         thinking and his potential for restoration.  Dr. Adelman states 
 
         that claimant will likely be on anti-seizure medication all of 
 
         his life and that it is likely that he will have another seizure 
 
         in the future.  Dr. Adelman explains that if he does have another 
 
         seizure, he will again be prohibited from driving for a six month 
 
         period.
 
         
 
              Claimant continues to complain of back problems and of an 
 
         inability to lift over 25 pounds.  However, he admits that heavy 
 
         lifting is not a major part of his sales work.
 
         
 
              Claimant testified that his past employment primarily 
 
         consisted of sales work over the last 25 years.  Before that, 
 
         claimant was engaged in many jobs primarily of a physical nature 
 
         such as construction but that he worked for a short period of 
 
         time as a bartender.
 
         
 
              Claimant stated at hearing that he is 50 years of age.  
 
         Claimant did not graduate from high school but received his GED 
 
         in the navy.
 

 
         
 
         
 
         
 
         LEAMING V. TOM BORNHOLTZ d/b/a SIOUX SALES COMPANY
 
         Page   9
 
         
 
         
 
         
 
              The owner of Sioux Sales testified that he is satisfied with 
 
         claimant's current performance as a salesman and that he has not 
 
         noticed any change in claimant's ability to do his work since his 
 
         work injury.
 
         
 
              Claimant's appearance and demeanor at the hearing indicated 
 
         that he was testifying truthfully.
 
         
 
                           APPLICABLE LAW AND ANALYSIS
 
         
 
              I.  The claimant has the burden of proving by a 
 
         preponderance of the evidence that the work injury is a cause of 
 
         the claimed disability.  A disability may be either temporary or 
 
         permanent.  In the case of a claim for temporary disability, the 
 
         claimant must establish that the work injury was a cause of 
 
         absence from work and lost earnings during a period of recovery 
 
         from the injury.  Generally, a claim of permanent disability 
 
         invokes an initial determination of whether the work injury was a 
 
         cause of permanent physical impairment or permanent limitation in 
 
         work activity.  However, in some instances, such as a job 
 
         transfer caused by a work injury, permanent disability benefits 
 
         can be awarded without a showing of a causal connection to a 
 
         physical change of condition.  Blacksmith v. All-American, Inc., 
 
         290 N.W.2d 348, 354 (Iowa 1980); McSpadden v. Big Ben Coal Co., 
 
         288 N.W.2d 181 (Iowa 1980).
 
         
 
              The question of causal connection is essentially within the 
 
         domain of expert medical opinion.  Bradshaw v. Iowa Methodist 
 
         Hospital, 251 Iowa 375, 101 N.W.2d 167 (1960).  The opinion of 
 
         experts need not be couched in definite, positive or unequivocal 
 
         language and the expert opinion may be accepted or rejected, in 
 
         whole or in part, by the trier of fact.  Sondag v. Ferris 
 
         Hardware, 220 N.W.2d 903 (Iowa 1974).  The weight to be given to 
 
         such an opinion is for the finder of fact, and that may be 
 
         affected by the completeness of the premise given the expert and 
 
         other surrounding circumstances.  Bodish v. Fischer, Inc., 257 
 
         Iowa 516, 133 N.W.2d 867 (1965).
 
         
 
              Furthermore, if the available expert testimony is 
 
         insufficient alone to support a finding of causal connection, 
 
         such testimony may be coupled with nonexpert testimony to show 
 
         causation and be sufficient to sustain an award.  Giere v. Aase 
 
         Haugen Homes, Inc., 259 Iowa 1065, 146 N.W.2d 911, 915 (1966).  
 
         Such evidence does not, however, compel an award as a matter of 
 
         law.  Anderson v. Oscar Mayer & Co., 217 N.W.2d 531, 536 (Iowa 
 
         1974).  To establish compensability, the injury need only be a 
 
         significant factor, not be the only factor causing the claimed 
 
         disability.  Blacksmith, 290 N.W.2d 348, 354.  In the case of a 
 
         preexisting condition, an employee is not entitled to recover for 
 
         the results of a preexisting injury or disease but can recover 
 
         for an aggravation thereof which resulted in the disability found 
 
         to exist.  Olson v. Goodyear Service Stores, 255 Iowa 1112, 125 
 
         N.W.2d 251 (1963).
 
         
 
              In the case sub judice, with reference to claimant's brain 
 
         hemorrhage difficulties, the evidence clearly establishes that he 
 
         has suffered a permanent impairment to the body as a whole from 
 
         the hemorrhage and brain surgery in the latter part of February 
 

 
         
 
         
 
         
 
         LEAMING V. TOM BORNHOLTZ d/b/a SIOUX SALES COMPANY
 
         Page  10
 
         
 
         
 
         and the first part of March, 1986.  The views of Dr. deGravelles 
 
         were uncontroverted.  Defendants take issue with the doctor's use 
 
         of the AMA Guides but this deputy commissioner is not about to 
 
         question the doctor's use of the Guides without a contrary 
 
         medical opinion.
 
         
 
              Also with reference to claimant's brain hemorrhage, the 
 
         greater weight of evidence shows the requisite causal connection 
 
         between the fall of February 4, 1986 and the permanent partial 
 
         impairment found by Dr. degravelles.  The opinions of Dr. Winston 
 
         were certainly important as he was indeed the surgeon.  However, 
 
         his opinions were not consistent with the facts.  He believes 
 
         that claimant's problems were due to the fall but no other 
 
         history of a fall was given other than the fall on February 4, 
 
         1986.  Claimant appeared to be credible when he indicated he had 
 
         no other falls.  Also, the doctor was very unclear in his 
 
         deposition when he tried to explain his views.  Likewise, Dr. 
 
         Schreck's views were somewhat suspect due to his change in 
 
         opinion as to the claimant's blood disorders.  However, the views 
 
         of Dr. Carlstrom and Dr. Adams were very convincing and 
 
         consistent with claimant's credible testimony.  Of critical 
 
         importance was the pathology report from Dr. Adams which was 
 
         entirely consistent with a fall several weeks prior to the 
 
         hemorrhage.  Dr. Winston's views were apparently made without the 
 
         benefit of this pathology report.
 
         
 
              With reference to claimant's back problems, the requisite 
 
         causal connection could not be found.  The only medical opinion 
 
         offered to support the causal connection theory was that of Dr. 
 
         Disbro and he opined that the compression factors occurred during 
 
         a period of time in which there were no seizure falls.  It is 
 
         within the specialized experience of this deputy commissioner in 
 
         deciding hundreds of workers' compensation cases-over the last 
 
         several years, that compression fractures need not be caused by 
 
         trauma and can be the result of simply belated muscle spasms from 
 
         a prior work injury.  However, without supportive medical opinion 
 
         in this case basing a causal connection finding simply on such 
 
         speculation by this deputy commissioner would be wholly 
 
         improper.
 
         
 
              II.  Claimant must establish by a preponderance of the 
 
         evidence the extent of weekly benefits for permanent disability 
 
         to which claimant is entitled.  As the claimant has shown that 
 
         the work injury was a cause of a permanent physical impairment or 
 
         limitation upon activity involving the body as a whole, the 
 
         degree of permanent disability must be measured pursuant to Iowa 
 
         Code section 85.34(2)(u).  However, unlike scheduled member 
 
         disabilities, the degree of disability under this provision is 
 
         not measured solely by the extent of a functional impairment or 
 
         loss of use of a body member.  A disability to the body as a 
 
         whole or an "industrial disability' is a loss of earning capacity 
 
         resulting from the work injury.  Diederich v. Tri-City Railway 
 
         Co., 219 Iowa 587, 593, 258 N.W. 899 (1935).  A physical 
 
         impairment or restriction on work activity may or may not result 
 
         in such a loss of earning capacity.  The extent to which a work 
 
         injury and a resulting medical condition has resulted in an 
 
         industrial disability is determined from examination of several 
 
         factors.  These factors include the employee's medical condition 
 
         prior to the injury, immediately after the injury and presently; 
 

 
         
 
         
 
         
 
         LEAMING V. TOM BORNHOLTZ d/b/a SIOUX SALES COMPANY
 
         Page  11
 
         
 
         
 
         the situs of the injury, its severity and the length of healing 
 
         period; the work experience of the employee prior to the injury, 
 
         after the injury and potential for rehabilitation; the employee's 
 
         qualifications intellectually, emotionally and physically; 
 
         earnings prior and subsequent to the injury; age; education; 
 
         motivation; functional impairment as a result of the injury; and 
 
         inability because of the injury to engage in employment for which 
 
         the employee is fitted.  Loss of earnings caused by a job 
 
         transfer for reasons related to the injury is also relevant.  
 
         Olson, 255 Iowa 1112, 1121, 125 N.W.2d 251, 257 (1963).  See 
 
         Peterson v. Truck Haven Cafe, Inc., (Appeal Decision, February 
 
         28, 1985).
 
         
 
             Claimant's medical condition before the work injury was 
 
         excellent and he had no functional impairments  or  ascertainable 
 
         disabilities.  Claimant was fully able to intellectually handle 
 
         his job.  Claimant's pace is now slowed and he does not function 
 
         as well as before.  Also, his wife is believed and this deputy 
 
         commissioner accepts her view that claimant is now somewhat 
 
         emotionally impaired.  However, as pointed out by the defendants 
 
         pain and suffering and the loss of emotional response is not 
 
         compensable under workers' compensation law if it does not result 
 
         in a loss of earning capacity. only those injuries which affect 
 
         directly a person's ability to be employed can be compensated.  
 
         Claimant, in this case, has shown considerably resiliency and is 
 
         functioning quite well as a result of his serious injuries.  
 
         Claimant is not restricted at the present time from driving or 
 
         other physical tasks.
 
         
 
              Apart from his lost earnings during his healing period which 
 
         will be compensated by healing period benefits, claimant has not 
 
         suffered a significant permanent loss in actual earnings as a 
 
         result of his disability.  However, a showing that claimant had 
 
         no loss of actual earnings does not preclude a finding of 
 
         industrial disability.  See Michael v. Harrison County, 
 
         Thirty-Fourth Biennial Report of the Iowa Industrial Commissioner 
 
         218, 220 (1979).
 
         
 
              Given the above, however, claimant is still in a precarious 
 
         situation.  He remains significantly functionally impaired.  Dr. 
 
         Adelman has opined that it is likely that claimant will 
 
         experience another seizure in the future.  The probability that 
 
         claimant will suffer such seizures in the future severely effects 
 
         his employability.  Claimant remains functionally impaired to a 
 
         considered amount according to his rehabilitation physicians.  
 
         Therefore, despite his currently suitable and stable employment, 
 
         claimant remains significantly industrially disabled.  After 
 
         examination of all the factors of industrial disability, it is 
 
         found as a matter of fact that claimant has suffered a 20 percent 
 
         loss of his earning capacity from his work injury.  Based upon 
 
         such a finding, claimant is entitled as a matter of law to 100 
 
         weeks of permanent partial disability benefits under Iowa Code 
 
         section 85.34(2)(u) which is 20 percent of 500 weeks, the maximum 
 
         allowable number of weeks for an injury to the body as a whole in 
 
         that subsection.
 
         
 
              As claimant has established entitlement to permanent partial 
 
         disability benefits, claimant is entitled to weekly benefits for 
 
         healing period under Iowa Code section 85.34 from the date of 
 

 
         
 
         
 
         
 
         LEAMING V. TOM BORNHOLTZ d/b/a SIOUX SALES COMPANY
 
         Page  12
 
         
 
         
 
         injury until he returns to work, until he is medically capable of 
 
         returning to substantially similar work to the work he was 
 
         performing at the time of injury, or until it is indicated that 
 
         significant improvement from the injury is not anticipated, 
 
         whichever occurs first.
 
         
 
              Although claimant did return to work briefly before his last 
 
         seizure in August, 1986, it was apparent that he had not reached 
 
         maximum healing because of this seizure.  Claimant could not 
 
         reach maximum healing and return to his work at Sioux Sales until 
 
         he had been seizure free for at least six months.  This did not 
 
         occur until his return to work on May 17, 1986.  Consequently, 
 
         permanent partial disability benefits will begin at that time.  
 
         Claimant will be entitled to healing period benefits prior to 
 
         that time.
 
         
 
              III.  Pursuant to Iowa Code section 85.27, claimant is 
 
         entitled to an order directing the defendants to pay reasonable 
 
         medical expenses for treatment of the work injury.  Claimant is 
 
         entitled to an order of reimbursement only for those expenses 
 
         which he has previously paid.  Krohn v. State,      N.W.2d   
 
         (Iowa 1988) Supreme Court decision filed March 16, 1988.
 
         
 
              As the back condition was not found work related, the 
 
         following charges were excluded from the list attached to the 
 
         prehearing report.
 
         
 
              Mercy Hospital          3-9-87          $3,754.09
 
              Dr. Adelman         3/9/87 - 3/18/87       635.00
 
              Tylenol III Drugs       3-7-87               7.87
 
                       Total                          $4,396.96
 
         
 
              Defendants will be directed to pay the balance of the bills 
 
         listed in the prehearing report either directly to the physicians 
 
         or medical providers if the bill is unpaid or to claimant or his 
 
         group insurance carrier if the bill has been paid.
 
         
 
              The suit costs requested in the prehearing report by 
 
         claimant will be awarded to claimant except that it is the policy 
 
         of this agency that report fees should not exceed an amount that 
 
         a physician would be paid if he were to testify orally in a 
 
         deposition or at hearing.  Therefore, there is a maximum limit of 
 
         $150.00 per report.
 
         
 
                                 FINDINGS OF FACT
 
         
 
              1.  Claimant was a credible witness.
 
         
 
              2. Claimant was in the employ of Sioux Sales at all times 
 
         material herein.
 
         
 
              3.  On February 4, 1986, claimant suffered an injury to the 
 
         head which arose out of and in the course of his employment with 
 
         Sioux Sales.  While on a road sales trip, claimant slipped and 
 
         fell injuring his head and other parts of his body requiring 
 
         medical attention in the form of stitches to close a head wound. 
 
          The injury set up a mechanism which eventually led to extensive 
 
         brain hemorrhaging on the left and right frontal areas of 
 
         claimant's head leading to seizures, loss of balance, gait and 
 

 
         
 
         
 
         
 
         LEAMING V. TOM BORNHOLTZ d/b/a SIOUX SALES COMPANY
 
         Page  13
 
         
 
         
 
         loss of mental functions.  This condition required emergency 
 
         brain surgery to remove excess blood and damaged brain tissue.
 
              3.  The work injury of February 4, 1986, was a cause of a 
 
         period of disability from work beginning on March 1, 1986 through 
 
         August 12, 1986; from August 22, 1986 through May 11, 1987, at 
 
         which time claimant returned to work and reached maximum healing. 
 
          Although claimant was hospitalized and unable to work due also 
 
         to nonwork related back problems in March, 1987, his brain injury 
 
         remained to be a significant factor in causing his inability to 
 
         return to work during all of these periods of time.
 
         
 
              4.  The work injury of February 4, 1986, was a cause of a 20 
 
         to 25 percent permanent partial impairment to the body as a whole 
 
         as a result of claimant's brain deficits in affect, behavior, 
 
         thinking and potential for restoration.  It is likely that 
 
         claimant will suffer brain seizures in the future.
 
         
 
              5. The work injury of February 4, 1986 and resulting 
 
         permanent partial impairment is a cause of a 20 percent loss of 
 
         earning capacity.  Claimant is not able to mentally perform the 
 
         job as before.  Claimant has not suffered a loss of earnings as 
 
         he is making the same as before in suitable and stable 
 
         employment.  However, his sales work has been adversely affected 
 
         by his inability to perform as fast as before and the risk of 
 
         future seizures is significant must be taken into account to 
 
         measure his loss of earning capacity.  Claimant's loss of 
 
         emotional response has no immediate impact on his loss of earning 
 
         capacity.  Claimant does have potential for rehabilitation in 
 

 
         
 
         
 
         
 
         LEAMING V. TOM BORNHOLTZ d/b/a SIOUX SALES COMPANY
 
         Page  14
 
         
 
         
 
         other sales and sedentary work which would not require driving.
 
         
 
             6.  The medical expenses listed in the prehearing report 
 
         requested by claimant were incurred by claimant for reasonable 
 
         and necessary treatment of his brain condition as a result of the 
 
         work injury on February 4, 1986, except for the expenses relating 
 
         to his back condition which total $4,396.36.
 
         
 
                                CONCLUSIONS OF LAW
 
         
 
              Claimant has established by a preponderance of the evidence 
 
         entitlement to permanent partial disability benefits, healing 
 
         period benefits and medical benefits as awarded below.
 
         
 
                                      ORDER
 
         
 
              1.  Defendants shall pay to claimant one hundred (100) weeks 
 
         of permanent partial disability benefits at the rate of two 
 
         hundred sixty-four and 58/100 dollars ($264.58) per week from May 
 
         12, 1987.
 
         
 
              2.  Defendants shall pay to claimant healing period benefits 
 
         from March 1, 1986 through August 12, 1986, August 22, 1986 
 
         through March 1, 1987 and March 3, 1987 through May 11, 1987 at 
 
         the rate of two hundred sixty-four and 58/100 dollars ($264.58) 
 
         per week.
 
         
 
              3.  Defendants shall pay the medical expenses listed in the 
 
         prehearing report except for those identified in the Analysis 
 
         section of this decision ($4,396.96) as relating to claimant Is 
 
         back problems.  This payment shall be made either to claimant or 
 
         his group insurance carrier if the bill has been paid or to the 
 
         medical service provider directly if the bill is unpaid.
 
         
 
              4.  Defendants shall pay accrued weekly benefits in a lump 
 
         sum and shall receive a credit against this award for all 
 
         benefits previously paid.
 
         
 
              5.  Defendants shall receive credit for previous payment of 
 
         benefits under a nonoccupational group insurance plan, if 
 
         applicable and appropriate under Iowa Code section 85.38(2).
 
         
 
              6.  Defendants shall pay interest on weekly benefits awarded 
 
         herein as set forth in Iowa Code section 85.30.
 
         
 
              7.  Defendants shall pay the costs of this action pursuant 
 
         to Division of Industrial Commissioner Rules 343-4.33 and 
 
         specifically the costs delineated requested by claimant in the 
 
         prehearing report except that the defendants shall only pay the 
 
         sum of one hundred fifty and no/100 dollars ($150.00) for the 
 
         charges of Dr. Schreck to prepare his report.
 
         
 
              8.  Defendants shall file activity reports on the payment of 
 
         this award as requested by this agency pursuant to Division of 
 
         Industrial Services Rule 343-3.1.
 
         
 
             Signed and filed this 20th day of April, 1988.
 
         
 
         
 

 
         
 
         
 
         
 
         LEAMING V. TOM BORNHOLTZ d/b/a SIOUX SALES COMPANY
 
         Page  15
 
         
 
         
 
         
 
         
 
                                          LARRY P. WALSHIRE
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
         Copies To:
 
         
 
         Mr. William R. King
 
         Mr. William W. Schwarz
 
         Attorneys at Law
 
         2300 Financial Center
 
         Des Moines, Iowa 50309
 
         
 
         Mr. Harry Dahl
 
         Attorney at Law
 
         974.73rd Street
 
         Suite 16
 
         Des Moines, Iowa  50312
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                                1803
 
                                                Filed April 20, 1988
 
                                                LARRY P. WALSHIRE
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         DARRELL L. LEAMING,
 
         
 
              Claimant,
 
                                                     FILE NO. 818155
 
         VS.
 
                                                  A R B I T R A T I 0 N
 
         TOM BORNHOLTZ d/b/a SIOUX
 
         SALES COMPANY,                              D E C I S I 0 N
 
         
 
              Employer,
 
         
 
         and
 
         
 
         CITIZENS SECURITY MUTUAL
 
         INSURANCE,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         
 
         
 
         1803
 
         
 
              It was found that claimant suffers from a 20 percent 
 
         industrial disability as a result of permanent effects from a 
 
         brain injury caused by a slip and fall while claimant was on a 
 
         road sales trip.  Claimant is back to work but is significantly 
 
         mentally impaired and has a risk of future brain seizure.
 
 
 
         
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                    BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         JAMES K. SMITH,
 
         
 
               Claimant,
 
         
 
         VS.                                   File Nos. 818171/844441
 
         
 
         SUPER VALU,                                 A P P E A L
 
         
 
               Employer,                          D E C I S I 0 N
 
         
 
         and
 
         
 
         LIBERTY MUTUAL,
 
         
 
               Insurance Carrier,
 
               Defendants.
 
         
 
         
 
                              STATEMENT OF THE CASE
 
         
 
              Defendants appeal from an arbitration decision awarding 
 
         permanent partial disability benefits as the result of alleged 
 
         injuries on July 17, 1985, and March 4, 1986.
 
         
 
              The record on appeal consists of the transcript of the 
 
         arbitration hearing; joint exhibits 1, 2 and 3; and claimant's 
 
         exhibits 1 and 2. Both parties filed briefs on appeal.
 
         
 
                                      ISSUE
 
         
 
              Defendants state the following issue on appeal:  "Does the 
 
         evidence presented in this matter support the deputy industrial 
 
         commissioner's decision that as a result of the 15 percent 
 
         functional impairment that claimant has sustained an industrial 
 
         disability of 40 percent to the body as a whole."
 
         
 
                              REVIEW OF THE EVIDENCE
 
         
 
              The arbitration decision adequately and accurately reflects 
 
         the pertinent evidence and it will not be set forth herein.
 
         
 
                                  APPLICABLE LAW
 
         
 
              The citations of law in the arbitration decision are 
 
         appropriate to the issues and the evidence.
 
         
 
         
 
         
 
 
 
 
 
 
 
                                                
 
                                                         
 
         SMITH V. SUPER VALU
 
         Page 2
 
         
 
         
 
                                     ANALYSIS
 
         
 
              The analysis of the evidence in conjunction with the law is 
 
         adopted.
 
         
 
                                 FINDINGS OF FACT
 
         
 
              1. Claimant sustained injuries arising out of and in the 
 
         course of his employment.
 
         
 
              2. As a result of the March 4, 1986 injury, claimant had 
 
         back surgery on September 9, 1986.
 
         
 
              3. Claimant is a 30 year old college educated man who has 
 
         limited experience in his field of education.
 
         
 
              4. As a result of his injury, claimant has only been able to 
 
         secure a commissioned sales position which paid him $3,500.00 
 
         over a period of nearly six months.
 
         
 
                                CONCLUSIONS OF LAW
 
         
 
              As a result of the March 4, 1986 injury, claimant was still 
 
         in the healing period from May 5, 1986 through September 9, 1986, 
 
         and from February 11, 1987 through April 1, 1987.
 
         
 
              As a result of the March 4, 1986 injury, claimant has a 
 
         functional impairment of 15 percent of the body as a whole.
 
         
 
              Claimant has met his burden of proving he has an industrial 
 
         disability of 40 percent.
 
         
 
              WHEREFORE, the decision of the deputy is affirmed.
 
         
 
                                      ORDER
 
         
 
              THEREFORE, it is ordered:
 
         
 
              That defendants are to pay unto claimant twenty-five and 
 
         three-sevenths (25 3/7) weeks of healing period benefits at a 
 
         rate of three hundred thirty and 57/100 dollars ($330.57) per 
 
         week.
 
         
 
              That defendants are to pay unto claimant two hundred (200) 
 
         weeks of permanent partial disability benefits at a rate of three 
 
         hundred thirty and 57/100 dollars ($330.57) per week.
 
         
 
              That defendants shall receive credit for benefits previously 
 
         SMITH V. SUPER VALU
 
         Page 3
 
         
 
                                                
 
                                                         
 
         
 
         paid.
 
         
 
              That payments that have accrued shall be paid in a lump sum 
 
         together with statutory interest thereon pursuant to Iowa Code 
 
         section 85.30.
 
         
 
              That the costs of this action are assessed against the 
 
         defendants pursuant to Division of Industrial Services Rule 
 
         343-4.33.
 
         
 
              That defendants file claim activity reports on the payment 
 
         of this award as requested by this agency pursuant to Division of 
 
         Industrial services Rule 343-3.1.
 
         
 
         
 
              Signed and filed this 28th day of April, 1989.
 
         
 
         
 
         
 
         
 
         
 
         
 
                                                  DAVID E. LINQUIST
 
                                                  INDUSTRIAL COMMISSIONER
 
         
 
         Copies To:
 
         
 
         Mr. Dennis L. Hanssen
 
         Attorney at Law
 
         2700 Grand Ave., Suite III
 
         Des Moines, Iowa 50312
 
         
 
         Mr. Joseph S. Cortese, II
 
         Attorney at Law
 
         500 Liberty Building
 
         Des Moines, Iowa 50309
 
         
 
         
 
         
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
                                                
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                                   51800
 
                                                   Filed April 28, 1989
 
                                                   DAVID E. LINQUIST
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         JAMES K. SMITH,
 
         
 
               Claimant,
 
         
 
         VS.                                  File Nos. 818171/844441
 
         
 
         SUPER VALU,                               A P P E A L
 
         
 
               Employer,                        D E C I S I 0 N
 
         
 
         and
 
         
 
         LIBERTY MUTUAL,
 
         
 
               Insurance Carrier,
 
               Defendants.
 
         
 
         
 
         
 
         51800
 
         
 
              Deputy's determination that claimant was 40 percent 
 
         industrially disabled was affirmed on appeal.
 
         
 
         
 
         
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
                                                
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                    BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         JAMES K. SMITH,
 
         
 
              Claimant,
 
                                             File Nos. 844441 & 818171
 
         vs.
 
                                              A R B I T R A T I O N
 
         SUPER VALU,
 
                                                 D E C I S I O N
 
              Employer,
 
         
 
         and
 
         
 
         LIBERTY MUTUAL,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         
 
                                   INTRODUCTION
 
         
 
              This is a proceeding brought by James K. Smith, claimant, 
 
         against Super Valu, employer, and Liberty Mutual Insurance 
 
         Company, insurance carrier, defendants.  These cases come upon 
 
         petitions for arbitration for benefits as a result of alleged 
 
         injuries occurring on July 17, 1985 and March 4, 1986.  The cases 
 
         were heard by former Deputy Industrial Commissioner Garry D. 
 
         Woodward.  The cases were fully submitted at the completion of 
 
         the hearing.
 
         
 
              On July 13, 1988, the cases were transferred to the 
 
         undersigned by David E. Linquist, Industrial Commissioner.
 
         
 
              The record consists of the testimony of James K. Smith and 
 
         Shelby Swain.  The record also consists of joint exhibits 1, 2 
 
         and 3, as well as claimant's exhibits 1 and 2.
 
         
 
              The parties stipulated that the claimant sustained injuries 
 
         on February 11, 1985 and March 4, 1986 which arose out of and in 
 
         the course of his employment with defendant employer.  The 
 
         parties also stipulated that the 1985 injury was a temporary 
 
         injury in nature, that no permanent disability resulted from the 
 
         1985 injury and that all healing period benefits owed as a result 
 
         of the 1985 injury had been paid.  Further, the parties 
 
         stipulated that all permanent partial disability entitlements, if 
 
         any, were the result of the 1986 injury.
 
                                        
 
                                      ISSUES
 
         
 
              The issues presented by the parties are as follows:
 
         
 
              1.  Whether the claimant is entitled to additional healing 
 
         period benefits from May 5, 1966 through September 9, 1986 and 
 
         from February 11, 1987 through April 1, 1987; and,
 
         
 
              2.  Whether the claimant is entitled to additional permanent 
 
         partial disability benefits beyond the 15 percent functional 
 
         disability rating.
 
         
 
                                
 
         
 

 
         SMITH V. SUPER VALU
 
         PAGE   3
 
                                 
 
                                 
 
                                 
 
                                 FACTS PRESENTED
 
              
 
              Claimant was nearly 30 years old on the date of the hearing. 
 
          Claimant testified he had received a bachelor of arts degree in 
 
         secondary education with teacher certifications in physical 
 
         education and driver's education.  Claimant reported he had 
 
         attempted to locate a teaching position.  He was unsuccessful in 
 
         securing the same.  Consequently, claimant commenced his 
 
         employment with defendant.  Claimant accepted a position with 
 
         defendant as a grocery order clerk at its warehouse in Des 
 
         Moines.  Claimant was required to lift nearly 5,000 pounds per 
 
         hour as part of his job duties.
 
         
 
              Claimant sustained back injuries on several occasions during 
 
         the duration of his employment.  Claimant was treated by William 
 
         R. Boulden, M.D.  Back surgery was performed in September of 
 
         1986.  Following surgery, claimant received physical therapy 
 
         treatments from Thomas W. Bower, L.P.T.  Later, claimant was sent 
 
         to the Sports Medicine Clinic at the Iowa Methodist Medical 
 
         Center for work hardening and strengthening of his lower back.  
 
         He was released from this program on April 1, 1987.
 
         
 
              Once claimant had secured his position with Super Valu, he 
 
         did not actively seek employment in the field of education until 
 
         after his injury.  Claimant was refused employment by Super Valu 
 
         after the injury, and after he had been released to return to 
 
         work.  Employer claimed since claimant was prohibited from 
 
         bending, twisting or lifting, there was no available position in 
 
         the warehouse.  Employer also maintained there was no other 
 
         position open to claimant.
 
         
 
              In October of 1986, Mr. Shelby Swain was retained by the 
 
         insurance carrier to perform job development for claimant.  Mr. 
 
         Swain counseled claimant concerning long-term employment goals, 
 
         applications for graduate school, proper resume preparation and 
 
         the pursuit of employment opportunities in marketing, sales, 
 
         insurance or education.  Mr. Swain assisted claimant until May 4, 
 
         1987.  Despite Mr. Swain's inability to secure a position for 
 
         claimant, Mr. Swain was advised by the insurance carrier to 
 
         discontinue all services.
 
         
 
              Claimant, without the assistance of Mr. Swain, finally 
 
         secured a position with Iowa Realty in December of 1987.  At the 
 
         time of the hearing, claimant had earned $3,500 in commissioned 
 
         sales but he had no benefits in his employment package.
 
         
 
                                  APPLICABLE LAW
 
         
 
              An employee is entitled to compensation for any and all 
 
         personal injuries which arise out of and in the course of the 
 
         employment.  Section 85.3(l).
 
         
 
              Claimant has the burden of proving by a preponderance of the 
 
         evidence that he received injuries on July 17, 1985 and March 4, 
 
         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).
 
         
 
              If claimant has an impairment to the body as a whole, an 
 
         industrial disability has been sustained.  Industrial disability 
 
         was defined in Diederich v. Tri-City Railway Co., 219 Iowa 587, 
 
         593, 258 N.W. 899, 902 (1935) as follows:  "It is therefore plain 
 
         that the legislature intended the term 'disability' to mean 
 
         'industrial disability' or loss of earning capacity and not a 
 
         mere 'functional disability' to be computed in the terms of 
 
         percentages of the total physical and mental ability of a normal 
 
         man."
 
         
 
              The opinion of the supreme court in Olson v. Goodyear 
 

 
         
 
         
 
         
 
         SMITH V. SUPER VALU
 
         PAGE   3
 
         
 
         
 
         Service Stores, 255 Iowa 1112, 1121, 125 N.W.2d 251, 257 (1963) 
 
         cited with approval a decision of the industrial commissioner for 
 
         the following proposition:
 
         
 
              Disability * * * as defined by the Compensation Act 
 
              means industrial disability, although functional 
 
              disability is an element to be considered . . .     In 
 
              determining industrial disability, consideration may be 
 
              given to the injured employee's age, education, 
 
              qualifications, experience and his inability, because 
 
              of the injury, to engage in employment for which he is 
 
              fitted. * * * *
 
         
 
              Functional 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, 
 
         255 Iowa 1112, 1121, 125 N.W.2d 251, 257.
 
         
 
              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 reference is 
 
         to loss of earning capacity and in the later to anatomical or 
 
         functional abnormality or loss.  Although loss of function is to 
 
         be considered and disability can rarely be found without it, it 
 
         is not so that a degree of industrial disability is 
 
         proportionally related to a degree of impairment of bodily 
 
         function.
 
         
 
              Factors to be considered in determining industrial 
 
         disability include the employees 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).
 
         
 

 
         
 
         
 
         
 
         SMITH V. SUPER VALU
 
         PAGE   4
 
         
 
         
 
              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 which work may 
 
         indicate that relief would be granted.  McSpadden, 388 N.W.2d 
 
         181.
 
         
 
                                     ANALYSIS
 
         
 
              Claimant has met his burden in proving that he is entitled 
 
         to additional healing period benefits from May 5, 1986 through 
 
         September 9, 1986, the date of back surgery, and from February 
 
         11, 1987 to April 1, 1987, the date maximum recovery occurred.  
 
         Medical records establish that the claimant was receiving 
 
         treatment through these periods in hopes of achieving maximum 
 
         recovery.
 
         
 
              The record indicates the healing period continued beyond the 
 
         May 5, 1986 date.  Dr. Boulden, in his letter of December 29, 
 
         1987 writes:
 
         
 
              Therefore, in reality, the healing period did continue 
 
              past the May of 1986 date, since this patient did have 
 
              surgery.
 
         
 
              Therefore, in conclusion of this matter, as of May of 
 
              1986, his healing period had ended as far as 
 
              conservative management, but more improvement was to be 
 
              gained with further surgery that was carried out, and 
 
              this extended his healing period.
 
         
 
              The record also indicates that claimant was involved in a 
 
         healing period from February 11, 1967 through April 1, 1987.  In 
 
         Dr. Boulden's letter of January 8, 1987 he advises John Tapp, 
 
         D.O.,:
 
         
 
              Therefore, I feel now that it is imperative that we get 
 
              him into the final rehabilitation, and at the Sports 
 
              Medicine Clinic, via your association with them.
 
         
 
              Mr. Thomas W. Bower, L.P.T., in his letter of February 5, 
 
         1987 writes:
 
         
 
              We would feel that this patient could return to any 
 
              type of vocation that would fit within these 
 
              restrictions that we have given.  He has also been 
 
              re-evaluated by Dr. Boulden.  I have advised Dr. 
 
              Boulden that I feel we have reached our plateau point 
 
              and hopefully a permanency rating will be coming 
 
              shortly.
 
         
 
              Per Dr. Boulden's instructions, claimant did seek additional 
 
         rehabilitation at the Sports Medicine Centre at Iowa Methodist 
 
         Hospital.  Claimant received therapy from February 25, 1987 
 
         through April 1, 1987.
 
         
 
              The work hardening program at Iowa Methodist was authorized 
 
         by Raymond Webster, M.D.  Claimant testified the therapy at Iowa 
 
         Methodist was three times a week from eight o'clock in the 
 
         morning to noon.
 

 
         
 
         
 
         
 
         SMITH V. SUPER VALU
 
         PAGE   5
 
         
 
         
 
         
 
              On April 1, 1987 Dr. Webster writes in his progress notes:
 
         
 
              This is a follow up for this former Super Valu 
 
              warehouse employee who underwent back surgery in 
 
              September and has been followed for work hardening and 
 
              strengthening of his lower back.  He has done very very 
 
              well in the program and he is [sic] reached the maximum 
 
              of benefit that we can do for him.  As such we are 
 
              releasing him from the work hardening program and 
 
              allowing him to persue [sic] further job opportunites 
 
              [sic] at this point in time.
 
         
 
              With respect to the issue of permanent partial disability, 
 
         Dr. Boulden determined "claimant had sustained a 15 percent 
 
         impairment of the back as a whole rating."  Claimant was released 
 
         to return to work, but a position at Super Valu was not open to 
 
         him.  As a result, claimant was without full time employment 
 
         through December of 1987.  His wages were drastically reduced.  
 
         Claimant was unsuccessful in securing a full time teaching 
 
         position.
 
         
 
              Mr. Swain, upon direct examination from the employer's 
 
         attorney testified that the claimant "had a lot of job 
 
         opportunities available to him because of his college education." 
 
         Mr. Swain opined the fact claimant had a college degree was much 
 
         more important than the areas in which claimant majored.  Mr. 
 
         Swain did not believe a physical education major would limit the 
 
         claimant in obtaining employment in sales, marketing or 
 
         promotion.  Nevertheless, Mr. Swain was unable to secure a 
 
         position for claimant. however, very little weight is given to 
 
         Mr. Swain's testimony as he was unable to secure a position for 
 
         claimant or even find job interviews for claimant.
 
         
 
              The employer refused employment to claimant and defendants 
 
         ceased vocational counseling prior to claimant obtaining full 
 
         time employment.  Claimant has limited work experience outside of 
 
         warehousing and is restricted as far as his lifting, bending and 
 
         twisting activities are concerned.  It would be difficult 
 
         teaching physical education.
 
         
 
              Claimant has acquired a commissioned sales job in the area 
 
         of real estate and has no guaranteed salary.  Such a position 
 
         does not require a college degree.  Claimant has had reduced 
 
         earnings.  After nearly six months of employment, claimant has 
 
         only earned $3,500 in 1988.
 
         
 
              In the case at hand, claimant has met his burden in proving 
 
         that lie has an industrial disability greater than the 15 percent 
 
         functional impairment of the body as a whole.  Claimant has an 
 
         industrial disability of 40 percent.  Claimant  has established 
 
         there is a loss of earning capacity.  Claimant has shown there 
 
         has been a loss of earnings since the date of his 1986 injury.  
 
         Even though claimant is well educated, he has had a a difficult 
 
         time securing employment in an area in which he has been 
 
         trained.
 
         
 
                     FINDINGS OF FACT AND CONCLUSIONS OF LAW
 
         
 
              WHEREFORE, based on the evidence presented and the 
 
         principles of law previously stated, the following findings of 
 
         fact and conclusions of law are made:
 
         
 

 
         
 
         
 
         
 
         SMITH V. SUPER VALU
 
         PAGE   6
 
         
 
         
 
              FINDING 1.  Claimant sustained injuries arising out of and 
 
         in the course of his employment.
 
         
 
              FINDING 2.  As a result of the March 4, 1986 injury, 
 
         claimant had back surgery on September 9, 1986.
 
         
 
              CONCLUSION A.  As a result of the March 4, 1986 injury, 
 
         claimant was still in the healing period from May 5, 1986 through 
 
         September 9, 1986 and from February 11, 1987 through April 1, 
 
         1987.
 
         
 
              CONCLUSION B.  As a result of the March 4, 1986 injury, 
 
         claimant has a functional impairment of 15 percent of the body as 
 
         a whole.
 
         
 
              FINDING 3.  Claimant is a 30 year old college educated man 
 
         who has limited experience in his field of education.
 
         
 
              FINDING 4.  As a result of his injury, claimant has only 
 
         been able to secure a commissioned sales position which paid him 
 
         $3,500.00 over a period of nearly six months.
 
         
 
              CONCLUSION C.  Claimant has met his burden of proving he has 
 
         a 40 percent permanent partial disability.
 
         
 
                                      ORDER
 
         
 
              THEREFORE, defendants are to pay unto claimant twenty-five 
 
         and one-fifth (25 1/5) weeks of healing period benefits at a rate 
 
         of three hundred thirty and 57/100 dollars ($330.57) per week.
 
         
 
              Defendants are to pay unto claimant two hundred (200) weeks 
 
         of permanent partial disability benefits at a rate of three 
 
         hundred thirty and 57/100 dollars ($330.57) per week.
 
         
 
              Defendants shall receive credit for benefits previously 
 
         paid.
 
         
 
              Payments that have accrued shall be paid in a lump sum 
 
         together with statutory interest thereon pursuant to Iowa Code 
 
         section 85.30.
 
         
 
              A final report shall be filed upon payment of this award. 
 
         costs of this action are assessed against the defendants pursuant 
 
         to Division of Industrial Services Rule 343-4-33.
 
         
 
              Defendants shall file a final report upon payment of this 
 
         award.
 
         
 
         
 
              Signed and filed this 12th day of September, 1988.
 
         
 
         
 
         
 
         
 
         
 
                                          MICHELLE A. McGOVERN
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
         
 
         Copies To:
 
         
 
         Mr. Dennis L. Hanssen
 
         Attorney at Law
 

 
         
 
         
 
         
 
         SMITH V. SUPER VALU
 
         PAGE   7
 
         
 
         
 
         Suite 111
 
         2700 Grand Ave.
 
         Des Moines, Iowa 50312
 
         
 
         Mr. Joseph S. Cortese, II
 
         Attorney at Law
 
         1000 Des Moines Bldg.
 
         Des Moines, Iowa 50309
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                              1803
 
                                              Filed September 12, 1988
 
                                              MICHELLE A. McGOVERN
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         JAMES K. SMITH,
 
         
 
              Claimant,
 
                                              File Nos. 844441 & 818171
 
         vs.
 
                                               A R B I T R A T I O N
 
         SUPER VALU,
 
                                                   D E C I S I O N
 
              Employer,
 
         
 
         and
 
         
 
         LIBERTY MUTUAL,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         
 
         1803
 
         
 
              Claimant awarded 40 percent permanent partial disability 
 
         subsequent to injury resulting in functional impairment of the 
 
         back as well as an industrial disability.