BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         ANN K. SHOULTZ,
 
         
 
              Claimant,
 
          
 
         vs.                                   File Nos. 823431 & 878976
 
         
 
         LUTHERAN HOME,                          A R B I T R A T I O N
 
         
 
              Employer,                            D E C I S I O N
 
         
 
         and
 
         
 
         HOME INSURANCE COMPANY,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
                                   INTRODUCTION
 
         
 
              This is a proceeding brought by Ann K. Shoultz, claimant, 
 
         against Lutheran Home, employer, and Home Insurance Company, 
 
         insurance carrier, defendants.  These cases come upon petitions 
 
         for arbitration for benefits as a result of alleged injuries 
 
         occurring on May 18, 1985 and July 7, 1986.  The cases were heard 
 
         by the undersigned in Davenport, Iowa and they were considered 
 
         fully submitted at the completion of the hearing.
 
         
 
              The record consists of the testimony of Ann K. Shoultz, Fern 
 
         Katherine Werning, Administrator of Lutheran Home, and Melodie 
 
         Ann Schutt.  The record also consists of joint exhibits 1-38A, 
 
         claimant's exhibits 39 and 40, and defendants' exhibits 41-45.  
 
         All exhibits are admitted as a part of the record.
 
         
 
                                      ISSUES
 
         
 
              The issues presented by the parties are as follows:
 
         
 
              1)  Whether claimant received an injury which arose out of 
 
         and in the course of her employment;
 
         
 
              2)  Whether there is a causal connection between the alleged 
 
         injuries and the disability;
 
         
 
              3)  Whether claimant is entitled to temporary 
 
         disability/healing period benefits or permanent partial 
 
         disability benefits; and,
 
         
 
              4)  Whether claimant is entitled to reasonable and necessary 
 
         medical benefits.
 
         
 
                                 FACTS PRESENTED
 
         
 
              Claimant was employed as a nurse's aide for defendant at the 
 
         time of the injuries on May 18, 1985 and on July 7, 1986.  In 
 
         both instances, claimant was struck by patients of defendant's.  
 
         In the first situation, claimant was hit on the right side of her 
 

 
         
 
         
 
         
 
         SHOULTZ V. LUTHERAN HOME
 
         PAGE   2
 
         
 
         
 
         face, near her jaw.  In the second situation, claimant was struck 
 
         on the left side of her jaw.
 
         
 
              At the time of the injuries, claimant was working on a 
 
         part-time basis.  She reported that from 1980 through 1985, she 
 
         was working between 16 to 24 hours per week.  Claimant terminated 
 
         her employment in December of 1987.  She was earning $6.58 per 
 
         hour.
 
         
 
              Approximately four months after the date of the first 
 
         injury, claimant sought the treatment of her family dentist, 
 
         James T. Gimbel, D.D.S.  Claimant voiced problems with her right 
 
         jaw popping and clicking, and difficulties with closing her jaw.  
 
         Dr. Gimbel referred claimant to Laurence R. Huber, D.D.S., a 
 
         specialist in Prosthodontics in May of 1986.
 
         
 
              Dr. Huber then recommended claimant to Deborah L. Zeitler, 
 
         D.D.S., an assistant professor in the Department of Hospital 
 
         Dentistry, Division of Oral & Maxillofacial Surgery, University 
 
         of Iowa Hospitals and Clinics.  According to Dr. Huber:
 
         
 
              At the time that I saw Ms. Shoultz, it appeared to me 
 
              that she had bilaterally anterior displaced disc with 
 
              an occasional closed lock condition.  I felt that the 
 
              chances of surgery being indicated were great and that 
 
              she best be seen in Iowa City.
 
         
 
              Claimant was seen by Dr. Zeitler in May of 1986.  On June 
 
         11, 1986, claimant underwent arthrography of both 
 
         temporomandibular joints.  The arthrography, according to Dr. 
 
         Zeitler, showed that:
 
         
 
              ... The diagnosis confirmed radiographically is 
 
              anterior displacement of the meniscus without reduction 
 
              of both temporomandibular joints.  This is an 
 
              anatomical disorder which can not be treated without 
 
              surgery.  The surgical procedure required to treat this 
 
              problem is a bilateral temporomandibular joint 
 
              arthropiasty which will involve either repositioning 
 
              the meniscus on each side of her temporomandibular 
 
              joint or removing it and replacing it with an 
 
              implant....
 
         
 
              The surgery was performed on August 7, 1986.  Medical 
 
         expenses were not paid by defendants.  Immediately after the 
 
         surgery, Dr. Zeitler found:
 
         
 
              I just completed Ms. Ann Shoultz's jaw surgery to 
 
              reposition the cartilage within her jaw joints 
 
              bilaterally.  The findings at the time of surgery were 
 
              anterior displacement of the meniscus on both sides of 
 
              her temporomandibular joint without significant 
 
              adhesions or bony abnormalities.  The cartilage was 
 
              easily moved into it's [sic] proper position and 
 
              maintained there with sutures.
 
         
 
              There were no findings that would specifically support 
 
              your contention that her jaw problems were related to a 
 
              blow she received in May 1985.  There were also no 
 
              specific findings that would refute that contention.  
 
              This is not unusual in the type of problem that Ms. 
 
              Shoultz has.  The reaction of the jaw joint to an 
 
              injury is nonspecific and can result in the same 
 

 
         
 
         
 
         
 
         SHOULTZ V. LUTHERAN HOME
 
         PAGE   3
 
         
 
         
 
              appearance whether she had a blow from a patient at her 
 
              nursing home or any other kind of injury.
 
         
 
              In a letter dated March 20, 1987, Dr. Zeitler discusses 
 
         permanent impairment.  She states to claimant's attorney:
 
         
 
              The next problem that I would like to address is that 
 
              of permanent impairment.  Ms. Shoultz can be considered 
 
              to have permanent impairment of her jaw function with 
 
              the expection [sic] for occasional exacerbation of pain 
 
              and limitation of range of motion.  Her function at 
 
              this point in time is approximately 70% of normal.  
 
              This estimate is based on maximum opening and lateral 
 
              and protrusive movements of the jaw.  She also is 
 
              experiencing permanent impairment as regards to her 
 
              dietary restrictions.  Her chewing ability is limited 
 
              to that of a soft diet and may permanently be so.  
 
              Certainly such foods as tough meat and moderate to 
 
              large amounts of raw vegetables can not [sic] be 
 
              expected to be a part of her diet on a regular basis 
 
              for the rest of her life.
 
         
 
              In December of 1987, Dr. Zeitler again evaluated claimant.  
 
         She reports in her letter to claimant's attorney:
 
         
 
              I have studied the guide to "The Evaluation of 
 
              Permanent Impairment" second edition published by the 
 
              American Medical Association.  I think there are 
 
              several areas in this guide which are significant in 
 
              Ann Shoultz's case.  The first significant point is 
 
              restriction of diet.  When the diet is limited to 
 
              semisolid or soft foods the percent of impairment of 
 
              the whole person is 5-10%.  This is true for Mrs. 
 
              Shoultz.  The second significant point involves 
 
              limitation of range of motion.  Ann Shoultz's range of 
 
              motion of approximately 50% of what would be normal for 
 
              the mandible.  Unfortunately, range of motion of the 
 
              mandible, as far as I can find, is not specifically 
 
              rated in this guide book.  However, range of motion of 
 
              many other joints is discussed and there are various 
 
              degrees of impairment due to loss of mobility of all 
 
              the other joints.  I feel that if the range of motion 
 
              of the mandible is impaired approximately 50% we should 
 
              consider this at least a 5% impairment of the whole 
 
              body.  Thirdly, Ann Shoultz has chronic pain.  Again 
 
              temporomandibular joint is not specifically addressed 
 
              in this manual, however, pain due to cranial nerves and 
 
              spinal nerves is addressed and in Ann Shoultz's case I 
 
              believe that her chronic pain should result in a 
 
              functional impairment of the body at whole of at least 
 
              5%.  In combining these values you would have to 
 
              consider then that the impairment of the body at [sic] 
 
              whole in Ann Shoultz is between 15 and 20%.
 
         
 
              In August of 1988, Dr. Zeitler again reaffirms her 
 
         impairment rating.  She writes:
 
         
 
              I have reviewed my estimation of full body impairment 
 
              in this case and have thoroughly re-evaluated this.  I 
 
              believe that my estimation of whole body impairment 
 
              which was earlier stated to be between 15-20% is still 
 
              accurate.  This estimation was based on the guide to 
 
              "The Evaluation of Permanent Impairment" second edition 
 

 
         
 
         
 
         
 
         SHOULTZ V. LUTHERAN HOME
 
         PAGE   4
 
         
 
         
 
              published by the American Medical Association.  It is 
 
              difficult to use this guide to judge impairment in 
 
              cases of temporomandibular joint disease because it 
 
              does not address this type of problem specifically.  
 
              However, I have done the best that I can do in relating 
 
              the guidelines within this document to cases of 
 
              temporomandibular joint disease.  The guideline does 
 
              include a factor for impairment due to limitation of 
 
              diet and certainly Ms. Shoultz has significant dietary 
 
              restrictions.  Chronic pain is also addressed in the 
 
              manual in relationship to pain due to cranial and 
 
              spinal nerves.  The temporomandibular joint has the 
 
              same type of chronic pain that occurs in other types of 
 
              functional impairments.  In combining these estimates I 
 
              believe that a 15-20% range for permanent functional 
 
              impairment is accurate in Mrs. Shoultz's case.
 
         
 
              Defendants requested a second opinion by another dentist.  
 
         Claimant was examined and evaluated by Charles E. Newcomer, 
 
         D.D.S. He provided the subsequent information to defendants' 
 
         attorney in a letter dated July 22, 1987.  He writes:
 
         
 
         By Ann's description she had jaw and neck pain following the 
 
         accident.  This included severe jaw pain with movement and 
 
         chewing and severe, prolonged headaches.  The neck pain may have 
 
         been the result of the accident or may be a secondary involvement 
 
         from the spasm and bracing and posturing of the jaw muscles.  
 
         Neck pain, and jaw pain are very commonly associated clinically.
 
         
 
              Clinical Findings:
 
              1.  Limited jaw opening.  Relaxed opening was 13mm.  
 
              Forced opening was 19mm with pain.  Normal opening 
 
              should be 45mm to 55mm.  There was also limited and 
 
              gaurded [sic] movement with right and left movements.  
 
              
 
              2. Very severe pain upon palpation of the joint capsule 
 
              lateral to the joint right and left.  This is probably 
 
              caused by dysfunction internal to the joint creating 
 
              inflammation to the highly innervated capsule.
 
              3.  Very mild pain of a few of the jaw muscle upon 
 
              palpation.  The masseters, and the lateral pterygoids 
 
              were the involved muscles.  Probably not signifiant 
 
              [sic].
 
              4.  Mild pain of some of the neck muscle to palpation.  
 
              The sternoclidomastoid [sic] and the splenius.capitus 
 
              [sic].  Probably not significant.
 
              5.  No problems with the teeth and functional occlusion 
 
              were evident from an initial examination.  No 
 
              prematurities were evident with all the functional 
 
              movements.
 
              6.  Headaches are not being experienced for which Ann 
 
              was very grateful.
 
              7.  No dissatisfaction was expressed by Ann regarding 
 
              her TMJ condition.  She felt she was much better 
 
              following the surgery and that she could live with the 
 
              situation as things are at present.
 
              8.  She has recurrent problems with the neck muscles.  
 
              When she was under the care of a physical therapist she 
 
              was much improved and he taught her many things to 
 
              control the neck pain.  Because of the cost she does 
 
              not feel she can continue with the physical therapist.
 
         
 
              In a follow-up letter dated April 14, 1988, Dr. Newcomer 
 

 
         
 
         
 
         
 
         SHOULTZ V. LUTHERAN HOME
 
         PAGE   5
 
         
 
         
 
         writes:
 
         
 
              Ms. Kelly has asked me to review the disability rating 
 
              given Ms. Shoultz by Dr. Zeitler.  I have read the 
 
              Forward and the Preface to the "Guides to the 
 
              Evaluation of Permanent Impairment" published by the 
 
              American medical Association.  I understand the need 
 
              for such a quantifing [sic] guide, but it does not 
 
              address tempromandibular [sic] joint impairment at all 
 
              well.  I agree with Dr. Zeitler that Ms. Shoultz has a 
 
              limited range of motion of the joint.  I question that 
 
              this represents 5 - 10% whole body impairment.  If she 
 
              were an opera singer or a violin player this lack of 
 
              range or joint tenderness might interfer [sic] with her 
 
              work.  I do not clearly understand what the function of 
 
              lifting has to do with the tempromandibular [sic] 
 
              joint.  There is a certain amount of "bracing" or 
 
              bringing the teeth tightly together when strenuous 
 
              muscle work is done.  This should not be harmful to the 
 
              joint, however.  As to what the rating should be, I 
 
              have no idea.
 
         
 
              The same is true of limitation of diet.  How this 
 
              limitation of diet is related to whole body impairment 
 
              is not addressed that I could find.
 
         
 
              I also question impairment as related to chronic pain.  
 
              The distinction between medical impairment (i.e. pain) 
 
              and disability should not be confused.  It is my 
 
              understanding chronic pain should not have a whole-body 
 
              rating unless the interference with work is direct.
 
                  ...
 
         
 
              Most tempromandibular [sic] joint patients who have 
 
              been treated with splints, or with surgery, or a 
 
              combination show improvements.  Many studies of people 
 
              who are out of treatment five years or so show that 
 
              approximately 90% show improvement to a point where 
 
              they can comfortably live with the problem.  This means 
 
              10% stay the same or are worse.  The majority have 
 
              episodes when some of the symptoms return.
 
         
 
              Claimant returned to work on or about January 1, 1987, per 
 
         the written instructions of Donald M. Primky, D.D.S.  However, 
 
         claimant testified that when she would bend over or when patients 
 
         would grab her around the neck, her face would swell and she 
 
         would experience pain.  Because of these complications, claimant 
 
         was referred to David Scott, P.T., by her doctors at the 
 
         University of Iowa.  Claimant reported she received physical 
 
         therapy on an intermittent basis until December of 1987.
 
         
 
              A restricted release for work was issued by Dr. Zeitler.  
 
         According to her letter of May 14, 1987:
 
         
 
              Due to Ann Shoultz's jaw problem, I have recommended 
 
              that she not be employed in a position in which a 
 
              patient might accidentally hit her jaw or in a position 
 
              where she is required to lift heavy articles.  
 
              Specifically transferring patients, lifting heavy loads 
 
              of laundry or lifting heavy pots of food.  This most 
 
              likely would include any items that weigh greater than 
 
              25 pounds.
 
         
 

 
         
 
         
 
         
 
         SHOULTZ V. LUTHERAN HOME
 
         PAGE   6
 
         
 
         
 
              As of July 6, 1987, Dr. Zeitler lifted some of the 
 
         restrictions placed upon claimant.  Dr. Zeitler writes:
 
         
 
              I am writing this letter to indicate that Ann Shoultz 
 
              [sic] condition has improved to the point where she may 
 
              lift 50-75 pounds if necessary for her work.  I believe 
 
              that she can return to work at this time if an 
 
              appropriate position is available.  However, we do 
 
              believe that lifting and transferring patients was a 
 
              major problem with jaw dysfunction and still needs to 
 
              be avoided.
 
         
 
              Claimant's work restrictions were again modified by Dr. 
 
         Zeitler on August 17, 1987.  Dr. Zeitler explains:
 
         
 
              On recent re-evaluation of Ann Shoultz it appears that 
 
              her temporomandibular joint problem has improved 
 
              sufficiently, and that her work restrictions may be 
 
              modified.  At this time I think it is safe for Ann 
 
              Shoultz to work in either a dietary or laundry capacity 
 
              with the ability to lift up to 75 pounds of weight 
 
              during her work assignment.  I believe that she should 
 
              avoid direct contact with patients who are known to be 
 
              uncontrolled or potentially violent.  This would 
 
              probable [sic] limit her from working in a direct 
 
              patient care assignment.
 
         
 
              From May of 1987 until August of 1987, claimant remained at 
 

 
         
 
         
 
         
 
         SHOULTZ V. LUTHERAN HOME
 
         PAGE   7
 
         
 
         
 
         home.  She testified she was unable to perform the lifting 
 
         required by her position.  Claimant was transferred to the 
 
         kitchen as a dietary aide that August.  Her job duties included 
 
         cleaning and setting tables, serving trays of food, lifting bus 
 
         pans and sweeping.  Claimant held that position until she 
 
         terminated on December 7, 1987.  Claimant reported she was having 
 
         problems with her jaws at that time.
 
         
 
              Melodie Ann Schutt, dietary director, testified for 
 
         defendants.  Ms. Schutt supervised claimant while claimant was 
 
         employed in the kitchen.  Ms. Schutt testified claimant was an 
 
         excellent employee who tried hard and caught onto new tasks 
 
         quickly.  According to Ms. Schutt, claimant's job 
 
         responsibilities involved wiping counters, cleaning shelves while 
 
         standing on stools, cleaning dining tables and chairs, sweeping, 
 
         lifting 8 to 20 pound dish pans and occasionally putting away 
 
         groceries, including 50 pound sacks of potatoes.  Ms. Schutt 
 
         reported she never asked claimant to resign but Ms. Schutt was 
 
         aware claimant had voiced difficulties with her neck and 
 
         shoulders.
 
         
 
              Fern Katherine Werning, home administrator, testified for 
 
         defendants.  Ms. Werning testified she asked claimant to resign 
 
         at one point because she feared residents would reinjure 
 
         claimant.  Ms. Werning did permit claimant to transfer to the 
 
         dietary department.  Ms. Werning reported claimant worked out 
 
         well in the dietary department and claimant was not terminated by 
 
         defendant.
 
         
 
              After claimant terminated her employment, she remained 
 
         unemployed until June of 1988 when she was employed at Sears for 
 
         one month.  Claimant worked for minimum wage as a sales clerk.  
 
         According to claimant, it was not financially advantageous for 
 
         her to pay a babysitter while she worked 10 to 15 hours per 
 
         week.
 
         
 
              Since her monthlong employment at Sears, claimant has looked 
 
         for employment as a teacher's aide and for full time employment 
 
         at various department stores.  Claimant has also reported she 
 
         wanted to attend classes in the fall of 1988 but her husband had 
 
         had emergency surgery and she was financially unable to take word 
 
         processing classes.
 
         
 
              Currently, claimant is unemployed.  At the hearing she 
 
         testified she is still having problems.  According to claimant, 
 
         if she talks too much, her jaw hurts.  If she bends and stoops, 
 
         she has trouble with her face.
 
         
 
                                  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 she received injuries on May 18, 1985 and July 7, 
 
         1986 which arose out of and in the course of her employment.  
 
         McDowell v. Town of Clarksville, 241 N.W.2d 904 (Iowa 1976); 
 
         Musselman v. Central Telephone Co., 261 Iowa 352, 154 N.W.2d 128 
 
         (1967).
 
         
 
              The claimant has the burden of proving by a preponderance of 
 
         the evidence that the injuries of May 18, 1985 and July 7, 1986 
 

 
         
 
         
 
         
 
         SHOULTZ V. LUTHERAN HOME
 
         PAGE   8
 
         
 
         
 
         are 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).
 
         
 
              The opinions of experts need not be couched in definite, 
 
         positive or unequivocal language.  Sondag v. Ferris Hardware, 220 
 
         N.W.2d 903 (Iowa 1974).  An opinion of an expert based upon an 
 
         incomplete history is not binding upon the commissioner, but must 
 
         be weighed together with the other disclosed facts and 
 
         circumstances.  Bodish, 257 Iowa 516, 133 N.W.2d 861 (1965).  The 
 
         expert medical evidence must be considered with all other 
 
         evidence introduced bearing on the causal connection between the 
 
         injury and the disability.  Burt, 247 Iowa 691, 73 N.W.2d 732 
 
         (1955).  In regard to medical testimony, the commissioner is 
 
         required to state the reasons on which testimony is accepted or 
 
         rejected.  Sondag, 220 N.W.2d 903 (1974).
 
         
 
              However, expert medical evidence must be considered with all 
 
         other evidence introduced bearing on the causal connection.  
 
         Burt, 247 Iowa 691, 73 N.W.2d 732.  The opinion of experts need 
 
         not be couched in definite, positive or unequivocal language.  
 
         Sondag, 220 N.W.2d 903 (Iowa 1974).  However, the expert opinion 
 
         may be accepted or rejected, in whole or in part, by the trier of 
 
         fact.  Id. at 907.  Further, the weight to be given to such an 
 
         opinion is for the finder of fact, and that may be affected by 
 
         the completeness of the premise given the expert and other 
 
         surrounding circumstances.  Bodish, 257 Iowa 516, 133 N.W.2d 867.  
 
         See also Musselman, 261 Iowa 352, 154 N.W.2d 128 (1967).
 
         
 
              When an aggravation occurs in the performance of an 
 
         employer's work and a causal connection is established, claimant 
 
         may recover to the extent of the impairment.  Ziegler v. United 
 
         States Gypsum Co., 252 Iowa 613, 620, 106 N.W.2d 591,      
 
         (1960).
 
         
 
              Our supreme court has stated many times that a claimant may 
 
         recover for a work connected aggravation of a preexisting 
 
         condition.  Almquist v. Shenandoah Nurseries, 218 Iowa 724, 254 
 
         N.W. 35 (1934).  See also Auxier v. Woodward State Hospital Sch., 
 
         266 N.W.2d 139 (Iowa 197 ), Gosek v. Garmer and Stiles Co., 158 
 
         N.W.2d 731 (Iowa 1968); Barz v. Oler, 257 Iowa 508, 133 N.W.2d 
 
         704 (1965); Olson v. Goodyear Service Stores, 255 Iowa 1112, 125 
 
         N.W.2d 251 (1963); Yeager v. Firestone Tire & Rubber Co., 253 
 
         Iowa 369, 112 N.W.2d 299 (1961); Ziegler, 252 Iowa 615, 106 
 
         N.W.2d 591 (1960).
 
         
 
              The right of a worker to receive compensation for injuries 
 
         sustained which arose out of and in the course of employment is 
 
         statutory.  The statute conferring this right can also fix the 
 
         amount of compensation to be paid for different specific 
 
         injuries, and the employee is not entitled to compensation except 
 
         as provided by the statute.  Soukup v. Shores Co., 222 Iowa 272, 
 
         268 N.W. 598 (1936).
 
         
 
              An injury is the producing cause; the disability, however, 
 
         is the result, and it is the result which is compensated.  Barton 
 
         v. Nevada Poultry Co., 253 Iowa 285, 110 N.W.2d 660 (1961); 
 
         Dailey v. Pooley Lumber Co., 233 Iowa 758, 16 N.W.2d 569 
 

 
         
 
         
 
         
 
         SHOULTZ V. LUTHERAN HOME
 
         PAGE   9
 
         
 
         
 
         (1943).
 
         
 
              If a claimant contends he has industrial disability he has 
 
         the burden of proving his injury results in an ailment extending 
 
         beyond the scheduled loss.  Kellogg v. Shute and Lewis Coal Co., 
 
         256 Iowa 1257, 130 N.W.2d 667 (1964).
 
         
 
              As a claimant has an impairment to the body as a whole, an 
 
         industrial disability has been sustained.  Industrial disability 
 
         was defined in Diederich v. Tri-City Railway Co., 219 Iowa 587, 
 
         593, 258 N.W. 899, 902 (1935) as follows:  "It is therefore plain 
 
         that the legislature intended the term 'disability' to mean 
 
         'industrial disability' or loss of earning capacity and not a 
 
         mere 'functional disability' to be computed in the terms of 
 
         percentages of the total physical and mental ability of a normal 
 
         man."
 
         
 
              The opinion of the supreme court in Olson, 255 Iowa 1112, 
 
         125 N.W.2d 251 (1963) at 1121,     . 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. * * * *
 
         
 
         
 
              Section 86.13 of the Iowa Code provides in relevant 
 
              portion:
 
         
 
                 If a delay in commencement or termination of 
 
              benefits occurs without reasonable or probable cause or 
 
              excuse, the industrial commissioner shall award 
 
              benefits in addition to those benefits payable under 
 
              this chapter, or chapter 85, 85A, or 85B, up to fifty 
 
              percent of the amount of benefits that were 
 
              unreasonably delayed or denied.
 
         
 
              Under section 86.13 benefits are not awarded for medical 
 
         expenses.  The section 86.13 benefits are only applicable to 
 
         weekly compensation benefits.  Zahn v. Iowa State Men's 
 
         Reformatory, IV Iowa Industrial Commissioner Report 409 (1983).
 
         
 
              If it is alleged that an employer wrongfully withholds 
 
         weekly compensation benefits from a claimant, the claimant must 
 
         establish the benefits were withheld unreasonably in order for 
 
         the claimant to receive additional benefits under section 86.13.  
 
         Curtis v. Swift Independent Packing, IV Iowa Industrial 
 
         Commissioner Report 88 at 93 (1983).  In a previous decision 
 
         before the Division of Industrial Services, a hearing deputy 
 
         ruled that it was reasonable for an employer to withhold benefits 
 
         when the employer was not alerted to occurrences which would 
 
         notify a reasonable person that benefits would be due or when 
 
         there was no work time lost.  McCormack v. Sunsprout, I-1 Iowa 
 
         Industrial Commissioner Decisions 142 at 144 (1984).
 
         
 
              In a separate decision before the Division of Industrial 
 
         Services, the same deputy industrial commissions: awarded 
 

 
         
 
         
 
         
 
         SHOULTZ V. LUTHERAN HOME
 
         PAGE  10
 
         
 
         
 
         benefits under section 86.13. Here there was an unreasonable 
 
         delay since there were no contradictions in the claimant's claim.  
 
         Willis v. Ruan Transport Corporation, IV Iowa Industrial 
 
         Commissioner Report 395 at 396 (1984).  In the Willis case at 396 
 
         the deputy wrote:
 
         
 
              ... Reports and letters from the doctor are consistent 
 
              with claimant's statements regarding his injury.
 
         
 
              There were no ambiguities and inconsistencies in 
 
              claimant's claim.  Withholding benefits was arbitrary 
 
              and unreasonable.  The five percent award based on Iowa 
 
              Code section 86.13 will be attached to healing period 
 
              only.  Although the evidence presented clearly relates 
 
              claimant's permanent impairment to his injury, 
 
              defendants will be given the benefit of the doubt as to 
 
              whether or not a failure to pay permanent disability 
 
              also was unreasonable.  Claimant had prior back 
 
              troubles and conceivably some portion of his impairment 
 
              might have been related to those difficulties or to a 
 
              preexisting arthritis rather than to his injury.
 
         
 
                                  ANALYSIS
 
         
 
              Claimant has met her burden of proving a causal connection 
 
         between the injuries she received on May 18, 1985, and on July 7, 
 
         1986, and the disability on which she now bases her claim.  
 
         Claimant was struck on both sides of her jaw.  She testified she 
 
         experienced subsequent popping, clicking and pain.  Dental 
 
         records prior to the date of the first injury do not reflect 
 
         preexisting jaw problems.  Neither Dr. Zeitler nor Dr. Newcomer 
 
         can refute the injury was work related.  Defendants have been 
 
         unable to establish another cause of the injuries.
 
         
 
              While defendants allege a preexisting condition and, there 
 
         is some evidence to indicate that generally speaking women in 
 
         their thirties may encounter temporomandibular joint (TMJ) 
 
         problems, the record is devoid of any evidence that claimant was 
 
         predisposed to such a condition.  However, even if the record 
 
         does establish claimant had a preexisting condition, she is not 
 
         precluded from a work connected aggravation.  Claimant has 
 
         demonstrated the requisite causal connection.
 
         
 
              Of next concern is whether claimant's treatment, including 
 
         surgery, was authorized and necessary.  It is undisputed 
 
         claimant's dentists were not selected by defendants.  It is also 
 
         undisputed various medical expenses have not been paid by 
 
         defendants.  However, unauthorized treatment which improves an 
 
         employee's condition and which ultimately may mitigate the 
 
         employers liability may subsequently be found reasonable and 
 
         necessary for treatment of an injury.  Butcher v. Valley Sheet 
 
         Metal, IV Iowa Industrial Commissioner Report 49 (Appeal Decision 
 
         1983); Rittgers v. United Parcel Service, III Iowa Industrial 
 
         Commissioner Report 210 (Appeal  Decision  1982); Hutchinson v. 
 
         American Freight Systems, Inc., I-1 Iowa Industrial Commissioner 
 
         Decisions 94 (Appeal Decision 1984).
 
         
 
              Dr. Huber believed surgery was necessary.  He referred 
 
         claimant to Dr. Zeitler.  Dr. Zeitler determined claimant's 
 
         condition could not be treated without surgery.  Even Dr. 
 
         Newcomer reports: "...If the splint treatment is not successful 
 
         in relieving pain and dysfunction, then surgery is often 
 
         recommended .... I do not know if any splint treatment was done 
 

 
         
 
         
 
         
 
         SHOULTZ V. LUTHERAN HOME
 
         PAGE  11
 
         
 
         
 
         either before or after the surgery."
 
         
 
              The surgery improved claimant's condition.  The surgery was 
 
         an acceptable method of treatment.  It was reasonable and 
 
         necessary.  The medical treatment was causally connected to the 
 
         injuries sustained by claimant at work.  Claimant is therefore 
 
         entitled to the payment of these medical expenses.
 
         
 
              Claimant has met her burden of proving she is entitled to 
 
         permanent partial disability benefits.  Dr. Zeitler was the 
 
         treating dentist and an oral surgeon.  She saw claimant on a 
 
         number of occasions.  While acknowledging the difficulty of using 
 
         the AMA Guides to the Evaluation of Permanent Impairment, Dr. 
 
         Zeitler did detail the basis for her 15 percent to 20 percent 
 
         permanent impairment to the body as a whole.  Such an opinion is 
 
         totally consistent with Rule 343-2.4(85) of the Iowa 
 
         Administrative Code (1987).
 
         
 
              Dr. Newcomer, on the other hand, only saw claimant on one 
 
         occasion for purposes of examination and evaluation.  Dr. 
 
         Newcomer readily admits, "I know nothing of the details of the 
 
         surgery, i.e. what type of derangements were found within the 
 
         joint and what type of repair precedures [sic] were done."
 
         
 
              Dr. Newcomer admits:
 
         
 
              ... The exact nature of the damage to the TMJ's should 
 
              be part of Ann;s [sic] medical records at University of 
 
     
 
         
 
         
 
         
 
         
 
         SHOULTZ V. LUTHERAN HOME
 
         PAGE  12
 
         
 
         
 
              Iowa Hospitals.  This can best be determined by arthro 
 
              grams [sic] which is radio opaque dye injected into the 
 
              joint so that the internal structures of the joints can 
 
              be observed while functioning.  Arthrogram 
 
              interpretation is difficult and requires much training 
 
              and experience.  I have little experience in this 
 
              area."
 
         
 
              Dr. Newcomer agrees the AMA Guides do not easily address the 
 
         problem of temporomandibular joint impairment.  He also agrees 
 
         claimant has a limited range of motion.  He does refute the 
 
         impairment rating provided by Dr. Zeitler.  Dr. Newcomer does not 
 
         provide a separate rating.  He writes, "As to what the rating 
 
         should be, I have no idea."
 
         
 
              The trier of fact is unable to afford much weight to the 
 
         opinions of Dr. Newcomer.  He was unable to provide an 
 
         independent impairment rating.  He did not appear to have all of 
 
         claimant's medical records available with which to render his 
 
         opinion.  Consequently, claimant has established she has a 
 
         functional impairment of 20 percent.
 
         
 
              Claimant's injury and resulting treatment were found to be 
 
         causally connected to the two injuries which she sustained at 
 
         work.  Claimant sustained a permanent partial disability.  
 
         Consequently, claimant is therefore entitled to healing period 
 
         benefits.  The parties have stipulated the period to be from 
 
         August 6, 1986 to January 1, 1987 and from May 8, 1987 to July 6, 
 
         1987.
 
         
 
              Claimant alleges she has an industrial disability beyond the 
 
         functional impairment rating of 20 percent.  While it is true 
 
         claimant has suffered a wage loss since the date she voluntarily 
 
         terminated her employment with defendant, there is no evidence to 
 
         establish claimant terminated her position because she was under 
 
         medical restrictions which prohibited her from performing her 
 
         tasks.  Dr. Zeitler removed restrictions from claimant's work 
 
         duties.  The evidence establishes that claimant's superiors rated 
 
         her as a good employee who performed her assigned tasks.  
 
         Pursuant to claimant's requests, defendant cooperated with 
 
         claimant in transferring her to a position where claimant would 
 
         not have as much contact with residents of defendant's.  
 
         Defendant transferred claimant at the same rate of pay claimant 
 
         was earning as a nurse's aide.  It was claimant's voluntary 
 
         decision to terminate.  She was not terminated by defendant.
 
         
 
              The record establishes that since the date of her voluntary 
 
         termination, claimant has worked at Sears at minimum wage for one 
 
         month.  Claimant testified she also voluntarily terminated this 
 
         position not because she was unable to perform the designated 
 
         tasks, but because her babysitting charges made it economically 
 
         prohibitive to continue her employment.
 
         
 
              Claimant has not worked since that date.  Her testimony 
 
         indicates she has only sought employment as a teacher's aide, 
 
         made application at three department stores, applied at a weight 
 
         loss clinic and at a day care center.  There is no evidence to 
 
         indicate claimant was refused employment because of her physical 
 
         impairment or that claimant was unable to perform any of the 
 
         potential job duties.
 
         
 
              In the case at hand, claimant has not met her burden of 
 
         proving she has an industrial disability greater than the 20 
 

 
         
 
         
 
         
 
         SHOULTZ V. LUTHERAN HOME
 
         PAGE  13
 
         
 
         
 
         percent functional impairment rating of the body as a whole.  
 
         Claimant has established there is a loss of actual earnings since 
 
         December 7, 1987.  However, claimant has not established the loss 
 
         is attributable to her injuries or to medical restrictions.
 
         
 
              Claimant likewise has not established there is a loss of 
 
         earning capacity attributable to her injuries.
 
         
 
              With respect to the issue dealing with benefits under 
 
         section 86.13, claimant has not met her burden of proving that 
 
         defendants unreasonably withheld her weekly compensation benefits 
 
         or that without probable cause, the defendants withheld the 
 
         benefits.  On May 18, 1985, the claimant sustained an injury 
 
         arising out of and in the course of her employment.  Claimant's 
 
         jaw swelled and claimant left early on that evening.  On her next 
 
         regularly scheduled work date, claimant returned to work.  There 
 
         was no indication at the time of the injury that this injury 
 
         necessitated medical attention.  Claimant admitted she did not 
 
         even mention the popping and clicking noises to her own dentist 
 
         until September of 1985.  Her dentist did not recommend a 
 
         specialist to claimant until May of 1986.  This was over a year 
 
         later.  Additionally, the requisite surgery was not performed 
 
         until nearly 15 months after the first injury.
 
         
 
              Claimant did report her pending surgery to Ms. Werning prior 
 
         to the date of the actual surgery.  However, it would not be 
 
         unreasonable on the part of defendants to assume the surgery was 
 
         unconnected to an incident 15 months prior.  Consequently, it 
 
         would not be unreasonable for the defendants to deny benefits.  A 
 
         reasonable person could assume there would be no causal 
 
         connection between a seemingly minor incident in May of 1985 and 
 
         a surgery scheduled iii August of 1986.  Consequently, it would 
 
         not be unreasonable for defendants to deny benefits, especially 
 
         since claimant had not lost work time since the date of the 
 
         injury.
 
         
 
              After claimant had surgery on August 7, 1986, it still was 
 
         not unreasonable for defendants to deny benefits.  Dr. Zeitler, 
 
         claimant's surgeon wrote:
 
         
 
              There were no findings that would specifically support 
 
              your contention that her jaw problems were related to a 
 
              blow she received in May, 1985.  There were also no 
 
              specific findings that would refute that contention.
 
         
 
              As a consequence, a reasonable person could question the 
 
         causal connection and thus deny benefits under the Iowa Workers' 
 
         Compensation Act.
 
         
 
                     FINDINGS OF FACT AND CONCLUSIONS OF LAW
 
         
 
              WHEREFORE, based on the evidence presented and the 
 
         principles of law previously stated, the following findings of 
 
         fact and conclusions of law are made:
 
         
 
              FINDING 1.  Claimant sustained injuries arising out of and 
 
         in the course of her employment.
 
         
 
              FINDING 2.  As a result of her May 18, 1985 and July 7, 1986 
 
         injuries, claimant had TMJ surgery on August 7, 1986.
 
         
 
              CONCLUSION A.  Claimant has established there is a causal 
 
         connection between the injuries she received on May 18, 1985 and 
 

 
         
 
         
 
         
 
         SHOULTZ V. LUTHERAN HOME
 
         PAGE  14
 
         
 
         
 
         July 7, 1986 and the condition of her jaw.
 
         
 
              FINDING 3.  The medical treatment including the TMJ surgery 
 
         improved claimant's condition.
 
         
 
              CONCLUSION B.  The medical expenses incurred were reasonable 
 
         and necessary and causally connected to the injuries she 
 
         sustained.
 
         
 
              CONCLUSION C.  Defendants are liable for the following 
 
         medical expenses:
 
         
 
              University of Iowa Hospitals        $6,942.64
 
              Medication                             266.67
 
              Physical Therapy Center                851.40
 
              Mileage for Physical Therapy
 
              and Hospital                           636.72
 
                           Total                  $8,697.43
 
         
 
              FINDING 4.  Claimant was off work because of her surgery 
 
         from August 6, 1986 to January 1, 1987 and from May 8, 1987 to 
 
         July 6, 1987.
 
         
 
              CONCLUSION D.  Claimant is entitled to healing period 
 
         benefits from August 6, 1986 to January 1, 1987 and from May 8, 
 
         1987 to July 6, 1987 at the weekly rate of $85.59 per week.
 
         
 
              FINDING 5.  Claimant's injury on July 7, 1986 did not result 
 
         in any permanent partial disability.
 
         
 
              CONCLUSION E.  As a result of the May 18, 1985 injury, 
 
         claimant has a functional impairment of 20 percent of the body as 
 
         a whole.
 
         
 
              FINDING 6.  Claimant's injury on May 18, 1985 resulted in a 
 
         permanent partial disability.
 
         
 
              CONCLUSION F.  Claimant has met her burden of proving she 
 
         has a 20 percent permanent partial disability.
 
         
 
              FINDING 7.  Employer delayed the commencement of benefits 
 
         under Chapter 85 of the Code of Iowa (1987).
 
         
 
              FINDING 8.  The delay in the commencement of benefits was 
 
         not unreasonable.
 
         
 
              CONCLUSION G.  The claimant is not entitled to additional 
 
         benefits under section 86.13 of the Iowa Code (1987).
 
         
 
                                      ORDER
 
         
 
              THEREFORE, defendants are to pay unto claimant thirty (30) 
 
         weeks of healing period benefits at the rate of eighty-five and 
 
         59/100 dollars ($85.59) per week.
 
         
 
              Defendants are to pay unto claimant one hundred (100) weeks 
 
         of permanent partial disability benefits at the rate of 
 
         eighty-five and 59/100 dollars ($85.59) per week.
 
         
 
              Defendants are liable for the payment of the following 
 
         medical expenses:
 
         
 
              University of Iowa Hospitals         $6,774.72
 

 
         
 
         
 
         
 
         SHOULTZ V. LUTHERAN HOME
 
         PAGE  15
 
         
 
         
 
         
 
               Defendants are to pay unto claimant for reimbursable 
 
         medical expenses and mileage:
 
         
 
              University of Iowa               $   167.92
 
              Physical Therapy Center              851.40
 
              medical prescriptions                266.67
 
                   Subtotal                     $1,285.99
 
              Mileage                              636.72
 
                   Total                        $1,922.71
 
         
 
              Payments for accrued healing period and permanent partial 
 
         disability benefits shall be paid in a lump sum together with 
 
         statutory interest thereon pursuant to Iowa Code section 85.30.
 
         
 
              Costs of this action are assessed against defendants 
 
         pursuant to Division of Industrial Services Rule 343-4.33.
 
         
 
              A final report shall be filed upon payment of this award.
 
         
 
              Signed and dated this 10th day of November, 1988.
 
         
 
         
 
         
 
                                      MICHELLE A. McGOVERN
 
                                      DEPUTY INDUSTRIAL COMMISSIONER
 
         
 
         Copies To:
 
         
 
         Mr. Mark D. Cleve
 
         Attorney at Law
 
         P. O. Box 2746
 
         Davenport, Iowa  52809
 
         
 
         Ms. Dorothy L. Kelley
 
         Attorney at Law
 
         1000 Des Moines Bldg.
 
         Des Moines, Iowa 50309
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                              1803
 
                                              Filed November 10, 1988
 
                                              MICHELLE A. McGOVERN
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         ANN K. SHOULTZ,
 
         
 
              Claimant,
 
         
 
         vs.                                File Nos. 823431 & 878976
 
         
 
         LUTHERAN HOME,                       A R B I T R A T I O N
 
         
 
              Employer,                         D E C I S I O N
 
         
 
         and
 
         
 
         HOME INSURANCE COMPANY,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         
 
         1803
 
         
 
              Claimant awarded 20 percent permanent partial disability 
 
         subsequent to injury resulting in functional impairment of the 
 
         body as a whole.
 
         
 
 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         RUSSELL HEATH,
 
          
 
              Claimant,                  File  No.  823443
 
          
 
          VS.                            A R B I T R A T I 0 N
 
          
 
          ARMOUR-DIAL, INC.,             D E C I S I 0 N
 
          
 
                Employer,
 
                Self-Insured,
 
                Defendant.
 
          
 
          
 
                              STATEMENT OF THE CASE
 
         
 
              This is a proceeding in arbitration brought by claimant 
 
         Russell Heath against defendant self-insured employer 
 
         Armour-Dial, Inc., to recover benefits under the Iowa Workers' 
 
         Compensation Act as the result of an injury allegedly sustained 
 
         on April 9, 1986.  This matter came on for hearing before the 
 
         undersigned deputy industrial commissioner in Burlington, Iowa on 
 
         April 28, 1989.  The matter was considered fully submitted at the 
 
         close of hearing, although both parties subsequently submitted 
 
         briefs.
 
         
 
              The record in this proceeding consists of claimant's 
 
         exhibits 1 through 18 (including four exhibits attached to the 
 
         deposition of Jerome G. Bashara, M.D., exhibit 17), defendant's 
 
         exhibits 1 through 13 and the testimony of the following 
 
         witnesses: claimant; Roger Marquardt; Mary Heath; and Richard 
 
         Leverington.
 
         
 
                                      ISSUES
 
         
 
              Pursuant to the prehearing report submitted by the parties 
 
         and approved at hearing, the following issues have been 
 
         stipulated: that an employment relationship existed between 
 
         claimant and defendant at the time of the alleged injury; that 
 
         claimant seeks compensation for temporary total disability or 
 
         healing period from April 17, 1986 through September 2, 1986; 
 
         that if permanent disability benefits are awarded, claimant has 
 
         sustained an industrial disability to the body as a whole and the 
 
         commencement date is September 3, 1986; that the appropriate rate 
 
         of weekly compensation is $232.44; that defendant is entitled to 
 
         credit under Iowa Code section 85.38(2) in the sum of $,6,182.40; 
 
         that
 
         
 
         
 
         
 
         HEATH v. ARMOUR-DIAL, INC.
 
         Page 2
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         
 
         defendant has paid zero weeks of compensation on a voluntary 
 
         basis prior to hearing.
 
         
 
              Issues presented for determination include: whether claimant 
 
         sustained an injury arising out of and in the course of his 
 
         employment on April 9, 1986; whether the alleged injury caused 
 
         temporary or permanent disability; the extent of claimant's 
 
         entitlement to compensation for temporary and permanent 
 
         disability; taxation of costs.
 
         
 
              Defendant also asserted entitlement to apportionment of 
 
         claimant's current disability to his preexisting condition if 
 
         permanent partial or total benefits are awarded.  In addition, 
 
         defendant stipulated that if it be found that claimant sustained 
 
         an injury arising out of and in the course of his employment as 
 
         alleged, it agrees to pay claimant's medical expenses under Iowa 
 
         Code section 85.27 and to reimburse claimant for those expenses 
 
         he personally paid and which were not covered by his group 
 
         medical insurance policy.
 
         
 
                              REVIEW OF THE EVIDENCE
 
         
 
              Claimant testified that he was 51 years of age at the time 
 
         of hearing, having been born on March 9, 1938.  His educational 
 
         background is limited to the eighth grade, although he 
 
         participated in an adult education course in the state of 
 
         Wisconsin for approximately three months.  He did not complete 
 
         the course.
 
         
 
              Claimant indicated that he found reading, writing and 
 
         spelling difficult when he attended school.  Even now he is 
 
         unable to read a newspaper, although he can read headlines.  
 
         Claimant's wife reads mail or other documents aloud to him.  
 
         Claimant is unable to write so that others can understand his 
 
         communication.  Claimant is able to do basic arithmetic and is 
 
         able to read a little at work, but is unable to follow 
 
         "formulating" recipes.
 
         
 
              Claimant's work history includes working on his father's 
 
         farm and employment for some 30 years with defendant and 
 
         associated or predecessor companies.  He is now retired on a "30 
 
         and out" early retirement program.  Claimant has held numerous 
 
         jobs with this employer and associated or predecessor companies 
 
         in the meat packing business.  These jobs have included hog kill, 
 
         slicing and cutting, cooking, construction and inspection.  At 
 
         the time of his injury, claimant was employed as a silent cutter 
 
         and had been for approximately one year.  This position entailed 
 
         heavy lifting, especially of 50-pound bags of potatoes.  Each 
 
         batch of hash required about 15 such bags and some 20 batches 
 
         were prepared during each shift.  Claimant
 
         
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         HEATH v. ARMOUR-DIAL, INC.
 
         Page 3
 
         
 
         
 
         frequently had to stoop for these bags and also carried 45-pound 
 
         bags of curing spices.  He also was required to clean the floor 
 
         with a power hose.
 
         
 
              Claimant's alleged injury is to the lumbar spine.  He 
 
         testified to a previous episode in 1982 when his back "snapped" 
 
         upon picking up an empty box, causing immediate and severe pain.  
 
         Claimant was treated with traction for approximately ten days by 
 
         his long-time family physician, David Castleberg, M.D.  
 
         Thereafter, he felt fully recuperated from this injury and 
 
         returned to work.  Claimant testified that he had no medically 
 
         imposed restrictions and had no further problems with his back 
 
         until the subject injury in 1986.  As detailed below, claimant 
 
         testified to a number of problems he now suffers, but specified 
 
         that none of those problems preexisted the subject work injury.
 
         
 
              As to the work injury, claimant indicated that he was 
 
         employed making hash on April 9, 1986.  He carried a 45-pound box 
 
         of "cure" in his hands in a stooped posture under a 4-foot high 
 
         conveyor.  At that time, claimant indicated he felt "discomfort," 
 
         although apparently not severe pain.  However, some 1-2 hours 
 
         later, pain developed and continued to worsen, after which 
 
         claimant obtained keys to the medical department from night 
 
         supervisor Richard Leverington to get aspirin.  Claimant conceded 
 
         that he did not advise Leverington what had happened to cause his 
 
         discomfort because Leverington was busy.  Claimant advised Bill 
 
         Roberts, a supervisor on another line, that his back was hurting 
 
         and was advised to fill out an accident report.  Later, claimant 
 
         was advised by his own supervisor, George Bloom, that he should 
 
         fill out an accident report.  Bloom advised him that he had 
 
         "heard all about it."
 
         
 
              Claimant testified that he was in severe pain all night 
 
         after leaving work. on the following morning, he found it 
 
         difficult to arise from bed.  He called the company nurse to 
 
         advise that he would not be in because of back pains.  He also 
 
         indicated that he was unsure as to what caused his injury.  The 
 
         nurse (Martha) told him that it appeared the injury was not work 
 
         related and that he should find his own physician.
 
         
 
              Plant nurse Martha Lutenegger gave an unsworn statement on 
 
         April 25, 1986.  A transcript of that statement is in evidence.  
 
         She reported that claimant.called on April 10, 1986 about his 
 
         back pain and reported that nothing specific happened, but that 
 
         his back just started hurting while he was working.  It was 
 
         during the second call she had from claimant on April 17 that 
 
         claimant first alleged that he may have been injured while 
 
         carrying a box of cure underneath a machine.
 
         
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         HEATH v. ARMOUR-DIAL, INC.
 
         Page 4
 
         
 
         
 
              Claimant made his own appointment and visited Linda Schmidt 
 
         Jabbari, D.O., on the same day.  He was treated with pain 
 
         medication and muscle relaxants and advised to return to work.  
 
         He did so and was put on lighter work so that he was able to 
 
         finish the week.
 
         
 
              Claimant further testified that he went to a different line 
 
         of light work in the following week, but stiffened up on Tuesday 
 
         so that he was unable to get out of bed due to pain on the 
 
         following day.  He again called the company nurse and was told to 
 
         make his own arrangements for medical care.
 
         
 
              Claimant thereupon visited James Kannenberg, M.D., on April 
 
         17, 1986.  Dr. Kannenberg hospitalized claimant.
 
         
 
              Claimant was next referred to Koert R. Smith, M.D., who 
 
         eventually released him to work on September 2, 1986.  Dr. Smith 
 
         had earlier given claimant a light-duty release, but defendant 
 
         refused to accept him back to work without a full release 
 
         (defendant's policy is to require an unrestricted release to 
 
         return to work in cases of injury it deems nonwork-related).
 
         
 
              Dr. Kannenberg treated claimant with traction and physical 
 
         therapy, while Dr. Smith treated him with pain medication, muscle 
 
         relaxants and "self-help" physical therapy.
 
         
 
              When claimant returned to work (still suffering leg pain at 
 
         this time), he was given work as a can inspector.  This was, of 
 
         course, lighter work.  During one week in which no inspection job 
 
         was available, claimant elected to take vacation instead of 
 
         attempting to perform more strenuous work.
 
         
 
              Claimant continued this lighter duty work until an incident 
 
         on February 27, 1987, when he suffered acute exacerbation of his 
 
         lower back and extremity problems while doing exercises for home 
 
         physical therapy.  He visited David C. Wenger-Keller, M.D., since 
 
         Dr. Kannenberg was unavailable.  Dr. Wenger-Keller prescribed 
 
         medication and took claimant off work as of that date.  Mr. Heath 
 
         has not returned to work since then and eventually accepted early 
 
         retirement on July 1, 1987.  He has since moved back to Wisconsin 
 
         where he owns a home he had rented out while working in Iowa.
 
         
 
              Claimant testified that he chose to retire because he was 
 
         physically unable to tolerate returning to work, even the 
 
         light-duty inspection jobs.  He had earlier contemplated 
 
         retirement when he moved to Iowa from Wisconsin (May 1984),
 
         
 
         
 
         
 
         HEATH v. ARMOUR-DIAL, INC.
 
         Page 5
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         
 
         but did not do so because he wished to take advantage of a 
 
         company "30 years and out" retirement program.  Claimant's net 
 
         retirement income is only $483 per month.  He had planned to 
 
         supplement that stipend with work as a painter and handyman, but 
 
         now finds himself unable because of his back pain.
 
         
 
              Complicating his situation, claimant suffered a heart attack 
 
         on March 18, 1989 and was still under care at the time of 
 
         hearing.
 
         
 
              Claimant testified that as of hearing and for the year and 
 
         one-half prior thereto, his condition and limitations have 
 
         included intermittent severe back pains, an inability to walk 
 
         more than about one-half hour without pain, an inability to climb 
 
         extensive stairs without pain, an inability to stand for more 
 
         than 15-20 minutes (standing still) or one hour (if able to move 
 
         about), an inability to lift, an inability to do yard work beyond 
 
         approximately 20 minutes, inability to paint for profit; also a 
 
         need for daily self-physical therapy, weekly professional 
 
         physical therapy, and frequent visits to his current treating 
 
         physician, Dr. Castleberg.  Claimant is able to sit in a 
 
         stiff-backed chair, is able to bend, can do some housework, and 
 
         is able to drive some vehicles.
 
         
 
              On cross-examination, claimant stated that he now is certain 
 
         when he was injured, but was not at the time and agreed he had 
 
         advised defendant that he did not know the mechanism of injury.  
 
         Further, he stated that he did not immediately know what was 
 
         wrong or even if anything at all was wrong.  He was aware that 
 
         defendant has a strong policy of immediately reporting injury and 
 
         agreed that he should have advised Leverington of the injury when 
 
         he obtained keys to get aspirin.  Further, claimant conceded that 
 
         he did not advise Nurse Martha how he had hurt himself and that 
 
         by the end of that day he had spoken to four representatives of 
 
         defendant without specifying that his injury had occurred while 
 
         he was carrying curing spices in a stooped position under a 
 
         conveyor.
 
         
 
              Claimant also conceded that he has looked for no work 
 
         whatsoever since his retirement.
 
         
 
              Chart notes from Chippewa Valley Hospital indicate that 
 
         claimant required one hour to straighten up after his physical 
 
         therapy injury in February, 1987.  Claimant agreed that these 
 
         notes were inaccurate.
 
         
 
              Mary Heath testified that she is claimant's spouse.  She 
 
         indicated that claimant is unable to accomplish much because of 
 
         his injury, and believes that medications have
 
         
 
         
 
         
 
         HEATH v. ARMOUR-DIAL, INC.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         Page 6
 
         
 
         
 
         affected his personality.  She also agreed that claimant's 
 
         activities have been further restricted since his coronary 
 
         accident.
 
         
 
              Roger Marquardt testified to being a vocational 
 
         rehabilitation specialist since 1968.  He takes referrals both 
 
         from plaintiffs and defendants.  Mr. Marquardt indicated that he 
 
         evaluated claimant beginning in April, 1987.  He considers 
 
         claimant to be in the lower semi-skilled category. Most of 
 
         claimant's work prior to his injury was medium to heavy.  
 
         However, painting is relatively light work.  Noting claimant's 
 
         age (49 at the time he began evaluation), which he viewed as 
 
         approaching advanced age, and considering claimant's poor 
 
         education and illiteracy and that his work history did not equip 
 
         claimant with truly transferrable skills, Marquardt felt that 
 
         claimant was essentially unable to develop an entire new salable 
 
         skill and that his employment opportunities would be restricted 
 
         to using his previous skills or what he might develop in brief 
 
         on-the-job training.  He originally considered claimant's 
 
         motivation satisfactory, but agreed on cross-examination that 
 
         claimant's motivation is now questionable because of his failure 
 
         to seek work since February 1987.
 
         
 
              Based on physical restrictions Marquardt felt that claimant 
 
         was limited to light work, which entails about a 44 percent loss 
 
         of access to jobs for which he would otherwise be suited.  He 
 
         felt claimant might be able to accept employment as a watch 
 
         guard, counter clerk, delivery driver or light bench assembler.  
 
         The median wage of such employment in 1987 was $4.37 per hour.
 
         
 
              On cross-examination, Marquardt agreed that he did not 
 
         contact defendant to view the plant where claimant had worked.  
 
         He agreed that he did not use Dr. Smith's physical limitations 
 
         because claimant had reinjured himself in February 1987.  He 
 
         agreed that claimant should have undergone recommendations of the 
 
         Mayo Clinic in seeking low back relaxation therapy and a work 
 
         hardening program.
 
         
 
              Mr. Marquardt felt that claimant is less employable today 
 
         than he was at the time of his evaluation because he is older, 
 
         retired, and has been away from the competitive labor market for 
 
         a longer time.  He felt it would have been better for claimant to 
 
         have worked harder to get back to work at the time of the 
 
         evaluation.
 
         
 
              Marquardt agreed that it is to be preferred that injured 
 
         workers seek placement with their former employer, especially in 
 
         the case of older workers.  He noted that claimant had 
 
         "self-disqualified" himself from work as an
 
         
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         HEATH v. ARMOUR-DIAL, INC.
 
         Page 7
 
         
 
         
 
         inspector and that was his reason for ruling out a return to that 
 
         employment.
 
         
 
              Richard Leverington testified to being a supervisor at the 
 
         time of the subject work injury.  He stated that while making a 
 
         routine tour, claimant approached with a complaint of back pain.  
 
         Leverington asked whether claimant had had an accident, a slip or 
 
         fall.  Claimant responded that he had not and that his back had 
 
         just started to hurt.  Leverington further indicated that 
 
         although he spoke to claimant on the following day, claimant 
 
         still did not tell him his injury was work related.  In fact, at 
 
         least one week passed before he learned that claimant claimed his 
 
         injury was work related.
 
         
 
              Mr. Leverington also described defendant's policy as 
 
         requiring a full release to return to work following a 
 
         nonwork-related injury, but seeking to find work within 
 
         limitations for individuals who have suffered work injuries.
 
         
 
              Asked if there were jobs available with defendant that could 
 
         be performed with a 25-pound lifting restriction, Mr. Leverington 
 
         testified that there were at least 50 such jobs in approximately 
 
         20 classes.  On cross-examination, he modified that opinion to 
 
         indicate that from 100 up to 150 jobs might be available for 
 
         individuals with a 25-pound lifting restriction.
 
         
 
              Leverington testified that he considered claimant to be a 
 
         friend and an excellent employee, one who is dependable and 
 
         honest.
 
         
 
              Chart notes of April 10, 1986 were prepared by Linda Schmidt 
 
         Jabbari, D.O.  She noted that claimant came into the office 
 
         complaining of lower back pain, especially on the right side.  
 
         The pain had developed the previous night.  "Thinks he must have 
 
         strained something while at work."  Dr. Schmidt Jabbari's 
 
         assessment was of muscle spasm.  She gave a prescription for 
 
         medication and permitted claimant to return to work.
 
         
 
              Claimant next saw James Kannenberg, M.D., on April 17, 1986.  
 
         Dr. Kannenberg's chart notes reflect that claimant was carrying a 
 
         box of "cure" across the floor and had to duck under a conveyor.  
 
         "[H]e did not notice any immediate pain at that time, but as the 
 
         night wore on he began to notice low back pain bilaterally and 
 
         upper hip pain bilaterally /c some pain radiating down the right 
 
         posterior lateral leg to about the level of the knee."  Dr. 
 
         Kannenberg reported that claimant had been able to tolerate 
 
         lighter work for two days following his visit with Dr. Jabbari 
 
         (Dr. Kannenberg had been unavailable) and did not notice much
 
         
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         HEATH v. ARMOUR-DIAL, INC.
 
         Page 8
 
         
 
         
 
         pain on Monday after resting over the weekend.  However, claimant 
 
         reported switching jobs on Tuesday and the pain began again in 
 
         the lower back bilaterally, the upper hips and the right leg 
 
         posteriorly laterally down to the level of the knee.  Dr. 
 
         Kannenberg noted that claimant had been diagnosed as suffering a 
 
         herniated nucleus pulposis at an unknown level 8-10 years 
 
         earlier, but that he had attained total resolution of the 
 
         symptoms over approximately one month and had been totally 
 
         asymptomatic since that time.  "Has been able to do absolutely 
 
         anything he's wanted to do.  Patient had no neurological sequela 
 
         [sic] from that episode."  Dr. Kannenberg's admitting diagnosis 
 
         was to rule out herniated nucleus pulposis at L3, L4, L5.  
 
         Claimant was to be admitted for diagnosis and treatment of the 
 
         low back injury, including a CAT scan and traction.
 
         
 
              While admitted to Fort Madison Community Hospital, claimant 
 
         was seen in consultation by Donald Mackenzie, M.D. Dr. Mackenzie 
 
         saw claimant on April 21, 1986.  The history given Dr. Mackenzie 
 
         was that claimant was carrying a 30-pound bag and ducked to go 
 
         under a conveyor, thereafter feeling pain in the back within two 
 
         hours as well as radiating pain to both hips.  Dr. Mackenzie 
 
         wrote Dr. Kannenberg on April 21.  He noted that a CT scan 
 
         demonstrated the presence of a small L4-5 central disc 
 
         herniation, more pronounced on the right than the left, and no 
 
         obvious evidence of neural tissue impingement.  He believed that 
 
         claimant had probably a protruding disc and certainly had very 
 
         significant sciatic symptoms, but was concerned by the lack of 
 
         correlation on the CT scan.  He therefore recommended an EMG and 
 
         nerve conduction study.
 
         
 
              A lumbar CT scan was read by David H. Rice, M.D., on April 
 
         18, 1986.  He found a bulging annulus at the L4 and lumbosacral 
 
         interspaces and could not rule out a small fragment of herniated 
 
         disc just to the right of the midline at the lumbosacral 
 
         interspace.  L3 interspace was negative.  Dr. Rice read another 
 
         lumbar CT scan on June 10, 1986.  He found minimal bulging of the 
 
         annuli at the L4 and lumbosacral interspaces and the possible 
 
         midline disc herniation at the lumbosacral interspace was again 
 
         demonstrated.  There was no definite evidence of impingement on 
 
         neural elements by any of the above-mentioned changes; all of 
 
         these findings were unchanged from the earlier CT scan.
 
         
 
              Dr. Kannenberg discharged claimant on May 1, 1986 with a 
 
         diagnosis of herniated nucleus pulposis, L4,L5.  He noted that 
 
         Dr. Shivapour was consulted for an EMG test which revealed grade 
 
         I, L5 nerve root lesion on the right.  Based on this, an epidural 
 
         steroid injection on the right at L4-L5
 
         
 
         
 
         
 
         HEATH v. ARMOUR-DIAL, INC.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         Page 9
 
         
 
         
 
         and L5-Sl was performed on April 25, 1986.  Claimant showed slow 
 
         improvement of his symptomatology.
 
         
 
              Koert R. Smith, M.D., saw claimant on referral from Dr. 
 
         Kannenberg on June 20, 1986 and thereafter.  Claimant gave a 
 
         history of not recalling any definite injury to the back, but 
 
         that a couple hours before the onset of pain he was bending over 
 
         lifting about a 45-pound box of spice under a conveyor belt.  Dr. 
 
         Smith noted that about 2-3 weeks before, claimant had worsening 
 
         of symptoms with increasing pain in the lower back and some 
 
         radiating pain in both legs, more in the anterior thighs.  
 
         Claimant stated most of his pain was in the low back area 
 
         radiating out to the buttocks on both sides.  His assessment at 
 
         that time was of a history of old herniated nucleus pulposis L4-5 
 
         with recurrent acute strain, slowly resolving.
 
         
 
              Dr. Smith's chart notes of August 28, 1986 reflect that 
 
         physical examination showed a full range of motion in the lumbar 
 
         spine, no guarding.  Straight leg raising was negative (as it had 
 
         been since claimant's first appointment with Dr. Smith).  
 
         Claimant was given a slip to return to work on September 2, 1986.
 
         
 
              Dr. Smith had given an earlier return to work slip effective 
 
         July 7, 1986, which restricted claimant to lifting, pulling or 
 
         pushing at 20-30 pounds and restricted bending.  The return to 
 
         work slip effective September 2, 1986 was unlimited and allowed 
 
         claimant to return to regular employment in full capacity.
 
         
 
              Claimant was first seen by David C. Wenger-Keller, M.D., on 
 
         February 27, 1987.  Claimant came in because he had exacerbated 
 
         his pain during his usual back exercises in the morning.  Chart 
 
         notes of February 27 indicate that claimant was doing his usual 
 
         back exercises "More determinedly than usual." About one hour 
 
         later claimant began having trouble with pain.  Claimant gave the 
 
         same history of injuring himself walking under a conveyor while 
 
         holding a 40-pound box.  Claimant complained of pain in both 
 
         legs, but no more than usual.  Dr. Wenger-Keller reported that 
 
         when he very lightly (his emphasis) touched the area over the 
 
         mid-lumbar spine, claimant "almost leaps of [sic] the table, and 
 
         has tears."  Claimant demonstrated loss of lumbar lordosis and, 
 
         muscle spasm.  There was decreased range of motion of the hips 
 
         due to back pain.
 
         
 
              Dr. Wenger-Keller wrote on March 30, 1987 that claimant had 
 
         been seen on three occasions for acute exacerbation of his back 
 
         pain.  "His time off is estimated to be permanent."
 
         
 
         
 
         
 
         HEATH v. ARMOUR-DIAL, INC.
 
         Page 10
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              Claimant was also seen at the Mayo Clinic in Rochester, 
 
         Minnesota.  X-rays of the lumbar spine taken June 23, 1987 showed 
 
         mild hypertrophic changes.  A magnetic resonance imaging study of 
 
         August 18, 1987 was negative as to the lumbar spine with no 
 
         evidence of mass or disc protrusion.  An electromyographic study 
 
         taken June 23, 1987 was normal as to the right lower extremity 
 
         with no evidence of a radiculopathy.
 
         
 
              Philip G. McManis, of the Mayo Clinic, wrote Dr. Castleberg 
 
         on September 9, 1987 to report findings.  Mr. McManis (he 
 
         identifies himself as holding M.B. and B.S. degrees, but is 
 
         apparently not a physician) was of the view that claimant's pain 
 
         was mechanical in origin and out of proportion to the degree of 
 
         degenerative changes seen on lumbar spine films.  Mr. McManis 
 
         stated that a similar conclusion was reached in the Department of 
 
         Physical Medicine and Rehabilitation, but does not identify the 
 
         physician or other individual who reached that conclusion.
 
         
 
              Since retiring and returning to Wisconsin, claimant has been 
 
         treated by David L. Castleberg, M.D. Claimant's attorney wrote 
 
         Dr. Castleberg on April 19, 1988 to ask several questions.  Dr. 
 
         Castleberg wrote brief responses on the face of that letter as 
 
         follows:
 
         
 
              1. What is your diagnosis of Mr. Heath's condition?
 
              
 
                 a:  Mechanical low back pain, central disc.
 
              
 
              2. Is his condition causally related to or was it aggravated 
 
              by the work injury of April 9, 1986?
 
              
 
                 a:  Yes.
 
              
 
              3. Do you recommend further treatment?  If so, what do you 
 
              recommend?
 
              
 
                 a:  Yes.  Continue P T & possible [illegible word, 
 
              possibly "surgery"] if Neuro Surgeon would deem it.
 
              
 
              4. Do you believe he has permanent partial impairment.  If 
 
              so, how much? Is the permanent partial impairment causally 
 
              related to the April 9, 1986, incident?
 
              
 
                 a:  Yes. 2-5%.  It is totally related to the injury.
 
         
 
         
 
         
 
         HEATH v. ARMOUR-DIAL, INC.
 
         Page 11
 
         
 
         
 
              (It is possible that Dr. Castleberg gave claimant a 25 
 
         percent impairment rating as is claimed in claimant's brief.  
 
         Legibility is poor.)
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              Claimant was also seen for evaluation by Jerome G. Bashara, 
 
         M.D. Dr. Bashara, a board-certified orthopaedic surgeon, 
 
         testified by deposition taken February 17, 1989.
 
         
 
              Dr. Bashara saw claimant on July 29, 1986.  Claimant gave 
 
         history of crawling underneath a conveyor belt to go to the other 
 
         side of the room to pick up a 45-pound box of spices, that he 
 
         felt some pain in his lower back, and that two hours later the 
 
         back pain got worse and he developed pain into both hips.
 
         
 
              Dr. Bashara's diagnosis at that time was of a herniated 
 
         lumbar disc.at L4-5 and a bulging disc at L5-Sl.  He believed to 
 
         a reasonable degree of medical certainty that these problems were 
 
         due to an injury on April 9, 1986, with some preexisting factors 
 
         involved, being the 1982 injury.  Dr. Bashara believed that 
 
         claimant should be limited to light work activity with a 25-30 
 
         pound lifting restriction with no excessive bending, stooping or 
 
         twisting of the lower back.  He also recommended that claimant be 
 
         treated with physical therapy, an exercise program and a weight 
 
         loss diet.
 
         
 
              Dr. Bashara next saw claimant on August 16, 1988.  His 
 
         diagnosis was the same and the restrictions were the same.  
 
         Further, Dr. Bashara recommended that physical therapy include 
 
         traction, and that claimant wear a corset and be given a TENS 
 
         unit for control of pain.  Dr. Bashara also testified to a 
 
         reasonable degree of medical certainty that claimant had 
 
         sustained a 15 percent permanent partial physical impairment to 
 
         the body as a whole related to his back condition.  Of this, 10 
 
         percent was directly related to the injury of April 9, 1986 and 5 
 
         percent was related to preexisting conditions.
 
         
 
              Dr. Bashara was of the view that CT scans showed a herniated 
 
         disc at L4-5 and a bulging disc at L5-Sl.  Ho was aware that the 
 
         Mayo Clinic felt the MRI scan was essentially normal, but viewed 
 
         the MRI himself and came to a different conclusion: that injuries 
 
         at L4-5 and L5-S1 existed with bulging at both levels.  He also 
 
         felt there was a free fragment line outside of the disc at L4-5 
 
         and.pressing the nerves to the spine and lower legs.
 
         
 
              Dr. Bashara deposition exhibit 4 is a partial transcript of 
 
         claimant's deposition.  Claimant testified there as follows:
 
         
 
         
 
         
 
         HEATH v. ARMOUR-DIAL, INC.
 
         Page 12
 
         
 
         
 
         
 
              Q.  Why don't you tell me how you got hurt then, please.
 
              
 
              A.  I was --   was going under this four foot conveyor with 
 
              a box of spice or cure and transferred it to the other side 
 
              so I could use it and that's where initially I believe it 
 
              happened.
 

 
              
 
 
 
 
 
 
 
 
 
 
 
              
 
              Q.  I noticed you said that's where initially I believed it 
 
              happened.  Do you have some question as to whether that is 
 
              how you hurt your back?
 
              
 
              A.  No, I don't, no.
 
              
 
              Q. What kind of weight are we talking about in
 
              this box of spices?
 
              
 
              A.  About 45 pounds.
 
              
 
              Q.  And to get to the other side of the conveyor,
 
              what did you have to physically do?
 
              
 
              A. You had to bend over -- way over to pass under it.
 
              
 
              Q.  When you say it's a four foot conveyor, would that 
 
              indicate that the belt was four foot above the floor level 
 
              or the bottom part of the conveyor?
 
              
 
              A.  The bottom part of the conveyor.  That's the highest 
 
              point.
 
              
 
              Q.  What did you notice about yourself as you were going 
 
              under the conveyor?
 
              
 
              A.  Nothing immediately.
 
              
 
              Q.  When did you first notice something?
 
              
 
              A.  About an hour -- between an hour and two hours
 
              later.
 
              
 
              Q.  So I take it, at least at the time you went under the 
 
              conveyor there wasn't an instance where you felt a pop or a 
 
              snap or something happen in your back?
 
              
 
              A.  No.
 
              
 
              (Dr. Bashara deposition exhibit 4, page 19, line 7 through
 
              page 20, line 16)
 
         
 
         
 
         
 
         HEATH v. ARMOUR-DIAL, INC.
 
         Page 13
 
         
 
         
 
              During his deposition, Dr. Bashara was asked to review 
 
         claimant's earlier testimony concerning how the work injury 
 
         occurred, including the quotation above.  Dr. Bashara indicated 
 
         that the history was about the same as he understood it to be and 
 
         testified that "assuming those circumstances outlined in exhibit 
 
         4 would be true" that his answers to other questions would be the 
 
         same as they were based on the history Dr. Bashara personally 
 
         took from claimant.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              Dr. Bashara also indicated that the 1982 injury was a mild 
 
         disc injury which produced a mild disc bulge which healed.  He 
 
         specified that the 1986 reinjury was an injury to both discs.  
 
         His opinion that the disc injury of 1982 had healed was based on 
 
         the fact that claimant returned to normal work activities for a 
 
         period of four years.
 
         
 
                           APPLICABLE LAW AND ANALYSIS
 
         
 
              Claimant has the burden of proving by a preponderance of the 
 
         evidence that he received an injury on April 9, 1986 which arose 
 
         out of and in the course of his employment.  McDowell v. Town of 
 
         Clarksville, 241 N.W.2d 904 (Iowa 1976); Musselman v. Central 
 
         Telephone Co., 261 Iowa 352, 154 N.W.2d 128 (1967).
 
         
 
              The injury must both arise out of and be in the course of 
 
         the employment.  Crowe v. DeSoto Consol. Sch. Dist., 246 Iowa 
 
         402, 68 N.W.2d 63 (1955) and cases cited at pp. 405-406 of the 
 
         Iowa Report.   See also Sister Mary Benedict v. St. Mary's Corp., 
 
         255 Iowa 847, 124 N.W.2d 548 (1963) and Hansen v. State of Iowa, 
 
         249 Iowa 1147, 91 N.W.2d 555 (1958).
 
         
 
              The words "out of" refer to the cause or source of the 
 
         injury.  Crowe v. DeSoto Consol. Sch. Dist., 246 Iowa 402, 68 
 
         N.W.2d 63 (1955).
 
         
 
              "An injury occurs in the course of the employment when it is 
 
         within the period of employment at a place the employee may 
 
         reasonably be, and while he is doing his work or something 
 
         incidental to it."  Cedar Rapids Comm. Sch. Dist. v. 
 
         Cady, 278 N.W.2d 298 (Iowa 1979), McClure v. Union et al.  
 
         Counties, 188 N.W.2d 283 (Iowa 197.1); Musselman v. Central 
 
         Telephone Co., 261 Iowa 352, 154,N.W.2d 128 (1967).
 
         
 
              The supreme court of Iowa in Almquist v. Shenandoah 
 
         Nurseries, 218 Iowa 724, 731-32, 254 N.W. 35, 38 (1934) discussed 
 
         the definition of personal injury in workers, compensation cases 
 
         as follows:
 
         
 
              While a personal injury does not include an
 
              occupational disease under the Workmen's
 
         
 
         
 
         
 
         HEATH v. ARMOUR-DIAL, INC.
 
         Page 14
 
         
 
         
 
              Compensation Act, yet an injury to the health may be a 
 
              personal injury. [Citations omitted.] Likewise a personal 
 
              injury includes a disease resulting from an injury .... The 
 
              result of changes in the human body incident to the general 
 
              processes of nature do not amount to a personal injury.  
 
              This must follow, even though such natural change may come 
 
              about because the life has been devoted to labor and hard 
 
              work.  Such result of those natural changes does not 
 
              constitute a personal injury even though the same brings 
 
              about impairment of health or the total or partial 
 
              incapacity of the functions of the human body.
 

 
              
 
 
 
 
 
 
 
 
 
 
 
              
 
                 ....
 
              
 
              A personal injury, contemplated by the Workmen's 
 
              Compensation Law, obviously means an injury to the body, the 
 
              impairment of health, or a disease, not excluded by the act, 
 
              which comes about, not through the natural building up and 
 
              tearing down of the human body, but because of a traumatic 
 
              or other hurt or damage to the health or body of an 
 
              employee. [Citations omitted.]  The injury to the human body 
 
              here contemplated must be something, whether an accident or 
 
              not, that acts extraneously to the natural processes of 
 
              nature, and thereby impairs the health, overcomes, injures, 
 
              interrupts, or destroys some function of the body, or 
 
              otherwise damages or injures a part or all of the body.
 
         
 
              The claimant has the burden of proving by a preponderance of 
 
         the evidence that the injury of April 9, 1986 is causally related 
 
         to the disability on which he now bases his claim.  Bodish v. 
 
         Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867 (1965).  Lindahl v. 
 
         L. 0. 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
 
         
 
         
 
         
 
         HEATH v. ARMOUR-DIAL, INC.
 
         Page 15
 
         
 
         
 
         affected by the completeness of the premise given the expert and 
 
         other surrounding circumstances.  Bodish, 257 Iowa 516, 133 
 
         N.W.2d 867.  See also Musselman v. Central Telephone Co., 261 
 
         Iowa 352, 154 N.W.2d 128 (1967).
 
         
 
              While a claimant is not entitled to compensation for the 
 
         results of a preexisting injury or disease, the mere existence at 
 
         the time of a subsequent injury is not a defense.  Rose v. John 
 
         Deere Ottumwa Works, 247 Iowa 900, 908, 76 N.W.2d 756, 760-61 
 
         (1956).  If the claimant had a preexisting condition or 
 
         disability that is aggravated, accelerated, worsened or lighted 
 
         up so that it results in disability, claimant is entitled to 
 
         recover.  Nicks v. Davenport Produce Co., 254 Iowa 130, 115 
 
         N.W.2d 812, 815 (1962).
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              Our supreme court has stated many times that a claimant may 
 
         recover for a work connected aggravation of a preexisting 
 
         condition.  Almquist v. Shenandoah Nurseries, 218 Iowa 724, 254 
 
         N.W. 35 (1934).  See also Auxier v. Woodward State Hosp. 
 
         Sch., 266 N.W.2d 139 (Iowa 1978); Gosek v. Garmer and Stiles 
 
         Co., 158 N.W.2d 731 (Iowa 1968); Barz v. Oler, 257 Iowa 508, 133 
 
         N.W.2d 704 (1965); Olson v. Goodyear Service Stores, 255 Iowa 
 
         1112, 125 N.W.2d 251 (1963); Yeager v. Firestone Tire & Rubber Co
 
         ., 253 Iowa 369, 112 N.W.2d 299 (1961); Ziegler v. United States 
 
         Gypsum Co., 252 Iowa 613, 106 N.W.2d 591 (1960).
 
         
 
              The evidence is undisputed that claimant was at work 
 
         performing his job on April 9, 1986, when he developed symptoms.  
 
         He quickly reported the existence of those symptoms, but did not 
 
         report his belief that a work injury had occurred until a week 
 
         later.  Even then, he has been inconsistent as to whether he 
 
         first noticed symptoms or "discomfort" while carrying a 45-pound 
 
         box of spice under a 4-foot conveyor belt.  Claimant testified 
 
         that he failed to recognize at first that he had been injured, 
 
         but that he did feel "discomfort" when he went under the conveyor 
 
         belt.  However, it was one or two hours later that pain developed 
 
         and continued to worsen.
 
         
 
              Claimant's demeanor at hearing indicated that he was 
 
         testifying truthfully.  It is accepted that claimant felt 
 
         discomfort when he carried spice under the conveyor belt one or 
 
         two hours before more intense pain developed, but that claimant 
 
         did not recognize the injury.at the time or for up to one week 
 
         later.
 
         
 
              As noted above, causal connection is largely within the 
 
         sphere of expert medical testimony.  No physician has opined that 
 
         claimant did not injure himself at work or that the
 
         
 
         
 
         
 
         HEATH v. ARMOUR-DIAL, INC.
 
         Page 16
 
         
 
         
 
         events of April 9, 1986 are not causally related to his present 
 
         disability.
 
         
 
              Dr. Schmidt Jabbari noted on April 10 that claimant thought 
 
         he had strained something while at work on the previous day, but 
 
         expressed no opinion as to causation.
 
         
 
              Dr. Kannenberg reported on April 17, 1986 that claimant did 
 
         not notice any immediate pain while ducking under the conveyor 
 
         belt, but noticed low back pain bilaterally as the night wore on.  
 
         He also rendered no opinion as to the causation issue.
 
         
 
              Dr. Mackenzie saw claimant on April 21, 1986.  His history 
 
         was that claimant was carrying a 30-pound bag and ducked to go 
 
         under a conveyor, thereafter feeling pain within two hours.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              Dr. Smith saw claimant on June 20, 1986 and thereafter.  His 
 
         history was that claimant did not recall any definite injury to 
 
         the back, but that he had ducked under the conveyor belt a couple 
 
         hours before the onset of pain.  His assessment was of a history 
 
         of old herniated disc with recurrent acute strain.
 
         
 
              Dr. Wenger-Keller saw claimant after the exacerbation of his 
 
         condition while exercising on February 27, 1987.  His history was 
 
         that claimant injured himself walking under a conveyor.
 
         
 
              Dr. Castleberg, who also treated claimant at the time of his 
 
         1982 injury, stated that claimant's condition (mechanical low 
 
         back pain, central disc) was causally related to or aggravated by 
 
         the work injury of April 9 and that claimant's permanent partial 
 
         impairment was totally related to that injury.
 
         
 
              Dr. Bashara saw claimant on July 29, 1986 and August 16, 
 
         1988.  When he first saw claimant, he was given a history of 
 
         crawling under a conveyor belt, that claimant felt some pain in 
 
         the lower back, and that two hours later the back pain got worse.  
 
         He testified that two-thirds of claimant's permanent partial 
 
         impairment was directly related to the April 9, 1986 injury, and 
 
         one-third was related to the preexisting conditions.  However, Dr 
 
         I . Bashara was then given an opportunity to review claimant's 
 
         deposition testimony to the effect that he noticed nothing 
 
         immediately and first noticed pain between an hour and two hours 
 
         later.  Dr. Bashara further testified that assuming those 
 
         circumstances were true, his answers to other questions would be 
 
         the same as his answers based on the history of immediate pain 
 
         going under the conveyor.
 
         
 
         
 
         
 
         HEATH v. ARMOUR-DIAL, INC.
 
         Page 17
 
         
 
         
 
              Therefore, even if it were to be accepted that claimant felt 
 
         no pain while ducking under the conveyor, there is direct medical 
 
         opinion from a board-certified orthopaedic surgeon that the 
 
         symptomatology which developed later that night is related to 
 
         that lifting incident.
 
         
 
              It is therefore held that claimant has met his burden of 
 
         proof in establishing that he sustained an injury arising out of 
 
         and in the course of his employment with defendant on April 9, 
 
         1986.
 
         
 
              The parties have stipulated that claimant seeks healing 
 
         period benefits from April 17, 1986 through September 2, 1986.  
 
         He was on the latter date released without restriction by Dr. 
 
         Smith.  Pursuant to Iowa Code section 85.34(l), healing period 
 
         runs until the employee has returned to work, it is medically 
 
         indicated that significant improvement from the injury is not 
 
         anticipated, or until the employee is medically capable of 
 
         returning to substantially similar employment.   As claimant was 
 
         released to return to work on September 2, 1986, he shall be 
 
         awarded healing period benefits from April 17 (when he first 
 
         missed work) through September 2, 1986.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              As of September 3, 1986, claimant had no medically imposed 
 
         restrictions.
 
         
 
              Claimant returned to work, but was given lighter duty work 
 
         as an inspector.  Meanwhile, he continued at home physical 
 
         therapy and exercises per Dr. Smith's instructions.  It was while 
 
         performing those exercises that claimant exacerbated his 
 
         condition on February 27, 1987.  It has long been the case that 
 
         "when an accident occurs to an employee in the usual course of 
 
         his employment, the employer is liable for all consequences that 
 
         naturally and proximately flow from the accident."  Oldham v. 
 
         Scofield & Welch, 222 Iowa 764, 266 N.W. 480 (1936).  It has 
 
         often been held that the employer is liable for further 
 
         disability when a condition is aggravated or increased by 
 
         treatment, provided the worker is not negligent in selecting the 
 
         person who administers the treatment.  Lindeken v. Lowden, 229 
 
         Iowa 645, 295 N.W. 112 (1940); Patchin v. Kroblin Transp., IV 
 
         Iowa Industrial Commissioner Report 267 (,1983).  At the time of 
 
         the February 27, 1987 exacerbation, claimant was performing at 
 
         home physical therapy pursuant to medical advice.  There is no 
 
         suggestion in this record that claimant was negligent in seeking 
 
         treatment from Dr. Smith.  As much of claimant's current 
 
         condition is attributable to the aftereffects of that 
 
         exacerbation, it is held that claimant's current condition is 
 
         causally related to the original work injury.  It is further held 
 
         that the commencement date for the award herein of permanent 
 
         partial
 
         
 
         
 
         
 
         HEATH v. ARMOUR-DIAL, INC.
 
         Page 18
 
         
 
         
 
         disability is February 27, 1987, since claimant had not been 
 
         given permanent medical restrictions prior to the exacerbation of 
 
         his condition on that date.
 
         
 
              Functional impairment is an element to be considered in 
 
         determining industrial disability which is the reduction of 
 
         earning capacity, but consideration must also be given to the 
 
         injured employee's age, education, qualifications, experience and 
 
         inability to engage in employment for which he is fitted.  Olson 
 
         v. Goodyear Service Stores, 255 Iowa 1112, 125 N.W.2d 251 (1963).  
 
         Barton v. Nevada Poultry, 253 Iowa 285, 110 N.W.2d 660 (1961).
 
         
 
              A finding of impairment to the body as a whole found by a 
 
         medical evaluator does not equate to industrial disability.  This 
 
         is so as impairment and disability are not synonymous.  Degree of 
 
         industrial disability can in fact be much different than the 
 
         degree of impairment because in the first instance reference is 
 
         to loss of earning capacity and in the latter to anatomical or 
 
         functional abnormality or loss.  Although loss of function is to 
 
         be considered and disability can rarely be found without it, it 
 
         is not so that a degree of industrial disability is 
 
         proportionally related to a degree of impairment of bodily 
 
         function.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              Factors to be considered in determining industrial 
 
         disability include the employee's medical condition prior to the 
 
         injury, immediately after the injury, and presently; the situs of 
 
         the injury, its severity and the length of healing period; the 
 
         work experience of the employee prior to the injury, after the 
 
         injury and potential for rehabilitation; the employee's 
 
         qualifications intellectually, emotionally and physically; 
 
         earnings prior and subsequent to the injury; age; education; 
 
         motivation; functional impairment as a result of the injury; and 
 
         inability because of the injury to engage in employment for which 
 
         the employee is fitted.  Loss of earnings caused by a job 
 
         transfer for reasons related to the injury is also relevant.  
 
         These are matters which the finder of fact considers collectively 
 
         in arriving at the determination of the degree of industrial 
 
         disability.
 
         
 
              There are no weighting guidelines that indicate how each of 
 
         the factors are to be considered.  There are no guidelines which 
 
         give, for example, age a weighted value of ten percent of the 
 
         total value, education a value of fifteen percent of total, 
 
         motivation - five percent; work experience - thirty percent, etc.  
 
         Neither does a rating of functional impairment directly correlate 
 
         to a degree of industrial disability to the body as a whole.  In 
 
         other words, there are no formulae which can be applied and then 
 
         added up to determine the degree of industrial disability.  It 
 
         therefore becomes necessary for the deputy or commissioner to 
 
         draw
 
         
 
         
 
         
 
         HEATH v. ARMOUR-DIAL, INC.
 
         Page 19
 
         
 
         
 
         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).
 
         
 
              Claimant was 51 years old at the time of hearing, almost 49 
 
         years of age on February 27, 1987.  He has an eighth grade 
 
         education, but his state of literacy is such that he is unable to 
 
         read a newspaper or write and his wife must read his mail for 
 
         him.  His work history includes farm labor and various duties 
 
         with defendant and associated or predecessor companies, most of 
 
         which involved fairly heavy work.
 
         
 
              The only medically imposed limitations claimant now has were 
 
         imposed by Dr. Bashara.  He is limited to light work activity 
 
         with a 25-30 pound lifting restriction with no excessive bending, 
 
         stooping or twisting of the lower back.  Dr. Bashara has 
 
         recommended that claimant be treated with physical therapy 
 
         (including traction), that he wear a corset, that he undergo an 
 
         exercise program and a weight loss diet, and that he be given a 
 
         TENS unit for control of pain.  However, these latter 
 
         recommendations would not appear to give rise to additional 
 
         industrial disability beyond that which the physical restrictions 
 
         entail.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              Roger Marquardt noted that claimant was in the lower 
 
         semi-skilled category and that most of his prior work was medium 
 
         to heavy.  He felt that claimant had suffered about a 44 percent 
 
         loss of access to jobs for which he would otherwise be suited 
 
         because he was limited to light work, although it is unclear what 
 
         limitations Mr. Marquardt considered, particularly including 
 
         self-imposed limitations (his reason for ruling out a return to 
 
         work with defendant as an inspector was because claimant had 
 
         "self-disqualified" himself from that work).  This adversely 
 
         affects the weight Mr. Marquardt's opinion can be given.
 
         
 
              Marquardt did point out that claimant might be able to 
 
         accept employment as a watch guard, counter clerk, delivery 
 
         driver or light bench assembler.  The median wage of such 
 
         employment in 1987 was $4.37 per hour, or roughly half what 
 
         claimant earned with defendant, based on the stipulated 
 
         compensation rate.  Note that Marquardt felt that claimant was 
 
         essentially unable to develop an entire new salable skill and 
 
         that his employment opportunities would be restricted to using 
 
         his previous skills or what he might develop in brief on-the-job 
 
         training.
 
         
 
              On the other hand, Marquardt agreed it is preferable that 
 
         injured workers seek placement with their former
 
         
 
         
 
         
 
         HEATH v. ARMOUR-DIAL, INC.
 
         Page 20
 
         
 
         
 
         employer, particularly older workers.  Richard Leverington 
 
         testified that from 100-150 jobs might be available with 
 
         defendant for individuals with a 25-pound lifting restriction 
 
         (although he did not address how may jobs might be available to 
 
         an individual with additional bending, stooping or twisting 
 
         restrictions), but Marquardt did not visit the plant or contact 
 
         defendant to consider the possibility of continued employment.  
 
         While claimant was viewed as less employable at the time of 
 
         hearing than was the case at the time of his evaluation because 
 
         of being older, retired and away from the competitive labor 
 
         market for a longer time, he felt it would have been better for 
 
         claimant to have worked harder to get back to work at the time of 
 
         the evaluation and conceded on cross-examination that claimant's 
 
         motivation is questionable.  This writer certainly agrees.
 
         
 
              While claimant states he retired because of his inability to 
 
         continue work, there appears to be nothing in the restrictions 
 
         given him by Dr. Bashara that would necessarily foreclose work as 
 
         an inspector.  Claimant had considered retiring at the time he 
 
         moved to Iowa, and was able to take advantage of a "30 years and 
 
         out" retirement policy by using his accumulated sick leave and 
 
         vacation time.  Claimant conceded that he has not looked for work 
 
         since.  It is clear to this observer that his motivation is low, 
 
         a factor militating against increased industrial disability.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              There seems no doubt but that claimant has sustained 
 
         physical impairment.  Dr. Wenger-Keller believed in March, 1987 
 
         that claimant's time off "is estimated to be permanent."  Dr. 
 
         Castleberg felt that claimant had sustained a 2-5 percent or a 25 
 
         percent impairment, although the illegibility of his writing 
 
         makes it impossible for this observer to be certain which he 
 
         meant.  However, given that he believed claimant should continue 
 
         physical therapy and possibly undergo additional (surgery? 
 
         legibility of this word is also poor) treatment, it seems 
 
         entirely likely that he actually intended to assign a 25 percent 
 
         impairment rating, even though the writing appears more to be 2-5 
 
         percent.  Dr. Bashara believed that claimant had sustained a 15 
 
         percent permanent partial physical impairment, of which 
 
         two-thirds was directly related to the injury and one-third 
 
         related to claimant's preexisting condition.
 
         
 
              After considering the record in general and these factors in 
 
         particular, it is held that claimant has sustained an industrial 
 
         disability of 60 percent of the body as a whole.
 
         
 
         
 
         
 
         HEATH v. ARMOUR-DIAL, INC.
 
         Page 21
 
         
 
         
 
              Defendant takes the position that claimant's current 
 
         industrial disability should be apportioned between the 
 
         disability attributable to the subject work injury and that 
 
         attributable to his preexisting condition.  Defendant is entitled 
 
         to such an apportionment.  However, even though claimant did have 
 
         a preexisting condition as shown by his 1982 incident, and by Dr. 
 
         Bashara assigning one-third of his impairment to that preexisting 
 
         condition, it is nonetheless true that claimant had no 
 
         preexisting industrial disability.  Whatever physical impairment 
 
         he may have had did not result in the imposition of any medical 
 
         limitations whatsoever and did not in any way interfere with the 
 
         performance of his job for a period of four years following the 
 
         1982 incident.  Because none of claimant's industrial disability, 
 
         as distinguished from physical impairment, is attributable to his 
 
         preexisting condition, 100 percent of his current industrial 
 
         disability shall be apportioned to the subject work injury.
 
         
 
              This decision also presumes that defendant will honor its 
 
         stipulation made at time of hearing concerning claimant's medical 
 
         expenses as set forth in the "Issues" section of this decision.
 
         
 
                                 FINDINGS OF FACT
 
         
 
              THEREFORE, based on the evidence presented, the following 
 
         ultimate facts are found:
 
         
 
              1. As stipulated, claimant was employed by defendant 
 
         Armour-Dial on April 9, 1986.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              2. Claimant sustained a work injury while at work on April 
 
         9, 1986, when he stooped and ducked under a low conveyor belt 
 
         while carrying a 45-pound box"of spice.
 
         
 
              3. Claimant's injury was to his back, and more specifically 
 
         to his lumbar discs at L4-.5 and L5-Sl.
 
         
 
              4. Claimant had preexisting problems with his back at those 
 
         levels.  However, his preexisting condition was aggravated and 
 
         lighted up by the work injury.
 
         
 
              5. Claimant's preexisting condition did not result in any 
 
         medically imposed limitations and did not cause any loss of 
 
         earning capacity, although claimant did have preexisting 
 
         functional impairment to the back.
 
         
 
              6. By reason of the subject work injury, claimant was 
 
         disabled from work from April 17, 1986 through September 2, 1986 
 
         (19 weeks, 6 days).
 
         
 
         
 
         
 
         HEATH v. ARMOUR-DIAL, INC.
 
         Page 22
 
         
 
         
 
              7. After being released to employment without restriction 
 
         effective September 3, 1986, claimant exacerbated his condition 
 
         while performing home physical therapy at the instruction of his 
 
         physician on February 27, 1987.  He subsequently retired and has 
 
         not returned to work.
 
         
 
              8. Although claimant was a credible witness, he is 
 
         unmotivated to return to work.
 
         
 
              9. By reason of his exacerbated condition, claimant has been 
 
         limited to light work activity with a 25-30 pound lifting 
 
         restriction with no excessive bending, stooping or twisting of 
 
         the lower back.
 
         
 
              10. By reason of the subject work injury, claimant has 
 
         reduction in his earning capacity of 60 percent.
 
         
 
              11. As stipulated, claimant is entitled to weekly beneifts 
 
         in the sum of $232.44.
 
         
 
              12.As stipulated, defendant is entitled to credit under Iowa 
 
         Code section 85.38(2) in the sum of $6,182.40.
 
         
 
                                CONCLUSIONS OF LAW
 
         
 
              WHEREFORE, based on the principles of law previously cited, 
 
         the following conclusions of law are made:
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
              1. Claimant suffered an injury arising out of and in the 
 
         course of his employment on April 9, 1986.
 
         
 
              2. Claimant's work injury directly caused a healing period 
 
         from April 17, 1986 through September 2, 1986 (19 weeks, 6 days).
 
         
 
              3. Claimant's work injury has caused an industrial 
 
         disability of 60 percent of the body as a whole (300 weeks).
 
         
 
              4. Claimant's rate of compensation is $232.44.
 
         
 
              5.Defendant is entitled to credit under Iowa Code section 
 
         85.38(2) in the sum of $6,182.40.
 
         
 
                                      ORDER
 
         
 
              THEREFORE, IT IS ORDERED:
 
         
 
              Defendant is to pay unto claimant nineteen point eight five 
 
         seven (19.857) weeks of healing period benefits at the rate of 
 
         two hundred thirty-two and 44/100 dollars ($232.44) per week 
 
         commencing April 17, 1986 and totalling four thousand six hundred 
 
         fifteen and 56/100 dollars ($4,615.56).
 
         
 
         
 
         
 
         
 
         HEATH v. ARMOUR-DIAL, INC.
 
         Page 23
 
         
 
         
 
              Defendant is to pay unto claimant three hundred (300) weeks 
 
         of permanent partial disability benefits at the rate of two 
 
         hundred thirty-two and 44/100 dollars ($232.44) per week 
 
         commencing February 27, 1987 and totalling sixty-nine thousand 
 
         seven hundred thirty-two and 00/100 dollars ($69,732.00).
 
         
 
              Defendant is entitled to credit under Iowa Code section 
 
         85.38(2) in the sum of six thousand one hundred eighty-two and 
 
         40/100 dollars ($6,182.40).
 
         
 
              All benefits ordered herein which have accrued shall be paid 
 
         to claimant as a lump sum together with statutory interest 
 
         pursuant to Iowa Code section 85.30.
 
         
 
              Costs of this action shall be assessed to defendant pursuant 
 
         to.Division of Industrial Services Rule 343-4.33.
 
         
 
              Defendant shall file claim activity reports as requested by 
 
         this agency pursuant to Division of Industrial Services Rule 
 
         343-3.1.
 
         
 
              Signed and filed this 22nd day of March, 1990.
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         
 
         
 
         
 
         
 
                                         DAVID RASEY
 
                                         DEPUTY INDUSTRIAL COMMISSIONER
 
         
 
         Copies To:
 
         
 
         Mr. Arthur C. Hedberg, Jr.
 
         Attorney at Law
 
         840 Fifth Avenue
 
         Des Moines, Iowa 50309
 
         
 
         Mr. Larry L. Shepler
 
         Attorney at Law
 
         Suite 102, Executive Square
 
         400 Main Street
 
         Davenport, Iowa 52801
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
 
         
 
 
 
 
 
 
 
 
 
 
 
                                         1402.30, 1402.40, 1803
 
                                         1806, 2700
 
                                         Filed March 22, 1990
 
                                         DAVID RASEY
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         RUSSELL HEATH,
 
          
 
              Claimant,                  File No. 823443
 
          
 
          VS.                            A R B I T R A T I 0 N
 
          
 
          ARMOUR-DIAL, INC.,             D E C I S I 0 N
 
          
 
               Employer,
 
               Self-Insured,
 
               Defendant.
 
          
 
          
 
         1402.30, 1402.40, 1803, 2700
 
         
 
              Claimant was released without restrictions after back 
 
         surgery, but exacerbated his condition while doing home physical 
 
         therapy exercises at direction of physician.  Permanent 
 
         disability caused by that exacerbation was awarded.
 
         
 
         1806
 
         
 
              Back-injured claimant had preexisting impairment, but no 
 
         medical limitations and was able to continue his physically 
 
         demanding work for four years without problems.  One hundred 
 
         percent of his current industrial disability was apportioned to 
 
         subject work injury.
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            HARLAND ALLISON,              :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :         File No. 823519
 
            CEDARAPIDS, INC.,             :
 
                                          :      A R B I T R A T I O N
 
                 Employer,                :
 
                                          :         D E C I S I O N
 
            and                           :
 
                                          :
 
            LIBERTY MUTUAL INSURANCE CO., :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ____________________________________________________________
 
            
 
                              statement of the case
 
            
 
                 This is a proceeding in arbitration brought by Harland 
 
            Allison against Cedarapids, Inc., and its insurance carrier 
 
            Liberty Mutual Insurance Company.  The case was heard and 
 
            fully submitted at Cedar Rapids, Iowa on December 20, 1989.  
 
            The record in the proceeding consists of jointly offered 
 
            exhibits 1 through 17, claimant's exhibits 1 through 15 and 
 
            18, and defendants' exhibits A and B.  The record also 
 
            contains testimony from Harland Allison, Wanda Allison, 
 
            Walter E. Hanson, Edward Whittig and Regis H. Butz.
 
            
 
                                      issues
 
            
 
                 Harland Allison seeks compensation for industrial 
 
            disability based upon an injury that occurred on May 7, 
 
            1986.  He claims that he is permanently totally disabled and 
 
            seeks compensation for healing period as well as 
 
            compensation for permanent disability.  He relies upon the 
 
            odd-lot doctrine.  The issues to be determined include the 
 
            healing period compensation claim, the claim for permanent 
 
            total or permanent partial disability, and whether the 
 
            injury is a scheduled injury of his leg or an injury to the 
 
            body as a whole involving his back.  The rate of 
 
            compensation is in issue.  Claimant seeks additional 
 
            compensation under the fourth unnumbered paragraph of Code 
 
            section 86.13.  Claimant had been paid weekly compensation 
 
            in the total amount of $11,104.58 as shown in an attachment 
 
            to the prehearing report.
 
            
 
                                 findings of fact
 
            
 
                 Harland Allison is a mechanic and serviceman who has 
 
            been employed by Cedarapids, Inc., for approximately 30 
 
            years.  When working as a mechanic in the shop, he was paid 
 
            one rate of pay.  When traveling for the employer as a 
 
            service representative or service engineer, he was paid a 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            different rate of pay (claimant's exhibits 5 and 8).  After 
 
            closely analyzing those exhibits which contain claimant's 
 
            pay stubs and a copy of the service engineer contract, it is 
 
            found that at the time of injury, claimant was paid $11.73 
 
            per hour for his work as a mechanic in the shop and that the 
 
            rate he was paid for service work while traveling for the 
 
            employer was $15.525 cents per hour.  On the pay stubs, the 
 
            term "premium" refers to overtime.  All "premium" or 
 
            overtime pay was earned when claimant was performing service 
 
            work rather than shop work, except for the eight hours on 
 
            the April 13, 1986 pay stub.
 
            
 
                 The breakdown of claimant's hours worked and whether 
 
            they were at shop or service rate and whether they were 
 
            regular or overtime hours computed at the regular hourly 
 
            rate is shown in the following summary:
 
            
 
               Date          Hours            Status            Gross  
 
             02/16/86        40          Reg Shop            $  469.20
 
             02/23/86        40          Reg Shop               469.20
 
             03/02/86        40          Reg Shop               469.20
 
             03/09/86         8          Reg Shop                93.84
 
                             32          Reg Service            496.80
 
                             17.5        OT Service @ Reg       271.69
 
             03/16/86        32          Reg Service            496.80
 
                             32          OT Service @ Reg       496.80
 
             03/23/86        40          Reg Shop               469.20
 
             03/30/86        32          Reg Shop               375.36
 
             04/06/86        40          Reg Shop               469.20
 
             04/13/86        32          Reg Shop               375.36
 
                              8          OT Shop @ Reg           93.84
 
             04/20/86        39.25       Reg Shop               460.40
 
             04/27/86        40          Reg Shop               469.20
 
             05/04/86         8          Reg Shop                93.84
 
                             32          Reg Service            496.80
 
                             16          OT Service @ Reg       248.40
 
             05/11/86        40          Reg Service            621.00
 
                             42.5        OT Service @ Reg       659.81
 
             13-week Total                                   $8,095.94
 
            
 
                 The foregoing shows that during the 13 calendar weeks 
 
            used to compute claimant's rate of compensation, he earned 
 
            $8,095.94 when all hours are paid at the regular rate of pay 
 
            for the type of work being performed, namely $11.73 per hour 
 
            for shop work and $15.525 per hour for service work.  
 
            According to the stipulation contained in the prehearing 
 
            report, claimant was married with two exemptions at the time 
 
            of hearing.  The average gross weekly wage is $622.76 which 
 
            rounds to $623.00 per week.
 
            
 
                 Allison was injured on May 7, 1986 when he was 
 
            descending a ladder, slipped and fell with his left leg 
 
            catching on a rung of the ladder.  Claimant was suspended by 
 
            his left leg being caught on the ladder and then dropped to 
 
            the ground.  Following that incident, he had difficulty 
 
            walking.  The incident occurred on a job site in South 
 
            Dakota.  Claimant reported the incident at work and received 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            medical care for his left knee from Des Moines orthopaedic 
 
            surgeon Leland G. Hawkins, M.D.
 
            
 
                 Claimant was taken off work for the knee from the 
 
            period of time running from May 16, 1986 until he was 
 
            released to return to work on June 7, 1986 (joint exhibit 6, 
 
            page 37).  Claimant did return to work, but on July 11 
 
            returned because of pain between his toes on his left foot 
 
            (joint exhibit 7, page 46).  The pain was attributed to 
 
            claimant being unaccustomed to wearing his work boots.  
 
            Claimant was authorized to return to work on July 18, 1986 
 
            (joint exhibit 6, pages 39 and 42).
 
            
 
                 Thereafter, claimant continued to voice complaints and 
 
            seek treatment for his knee occasionally.
 
            
 
                 The record fails to show claimant ever mentioning any 
 
            problem regarding his back until he was seen by orthopaedic 
 
            surgeon Martin F. Roach, M.D., on or about January 20, 1987 
 
            (joint exhibit 9, page 48).  Subsequent to that date, the 
 
            history claimant gave generally included back pain having 
 
            its onset at the time of the May 7, 1986 incident.  He has 
 
            been diagnosed as having degenerative disc disease, vacuum 
 
            disc and stenosis.
 
            
 
                 William A. Roberts, M.D., implied that claimant's back 
 
            complaints were causally connected with the May 7, 1986 
 
            injury (joint exhibit 11, page 99).  Neurologist Winthrop S. 
 
            Risk, M.D., stated that claimant's back problem is causally 
 
            connected to the May 1986 fall (joint exhibit 12, pages 120 
 
            and 121).  Richard F. Neiman, M.D., implied that the back 
 
            problem was aggravated by the fall (joint exhibit 16, page 
 
            134).  Dr. Hawkins, claimant's original treating physician, 
 
            felt that there was not a causal connection between the back 
 
            problems and the May 1986 injury because claimant had not 
 
            expressed any symptoms of back problems until January of 
 
            1987 (joint exhibit 17).
 
            
 
                 The degeneration, foraminal narrowing, vacuum discs and 
 
            other conditions found in claimant's spine by the various 
 
            physicians are not necessarily the result of a fall of the 
 
            type which claimant described.  At the time of hearing, 
 
            claimant was 63 years of age.  Those conditions could easily 
 
            be the result of aging and a life devoted to strenuous work.  
 
            Those conditions are certainly something which could readily 
 
            be aggravated by a trauma.  As indicated, however, by Dr. 
 
            Hawkins, if such were the fact of the matter, the symptoms 
 
            would be expected to have manifested themselves shortly 
 
            following the fall.  According to claimant, he had back pain 
 
            ever since the fall and it worsened gradually thereafter.  
 
            Claimant's testimony regarding the onset of his symptoms is 
 
            not corroborated in any manner by any of the medical records 
 
            in this case, other than the histories he provided 
 
            subsequent to January 1, 1987.  Throughout all of 1986, 
 
            there is no mention of back pain at any point.  It is 
 
            therefore found that claimant has failed to prove by a 
 
            preponderance of the evidence that he had back pain prior to 
 
            January 1987.  Accordingly, the histories relied upon by 
 
            Drs. Roach, Neiman and Risk are inaccurate.  The history and 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            observations as related by Dr. Hawkins are found to be more 
 
            accurate than the histories which claimant subsequently 
 
            provided.  It is therefore found that the evidence in this 
 
            case fails to show it to be probable that any part of 
 
            claimant's current back problem is a result of the May 7, 
 
            1986 fall.
 
            
 
                 Claimant has voiced continuing complaints and symptoms 
 
            regarding his leg.  The record of this case does not contain 
 
            any rating of impairment for his left knee or leg.  Based 
 
            upon the continuation of symptoms in that leg which 
 
            commenced with the May 7, 1986 fall and the limited 
 
            abnormalities found in the leg, it is determined that 
 
            claimant has a five percent permanent impairment and 
 
            permanent partial disability of his left leg as a result of 
 
            the May 7, 1986 injury.
 
            
 
                 It is found that claimant's absence from work since 
 
            January 27, 1987 is related to his back condition which has 
 
            not been shown by a preponderance of the evidence to have 
 
            resulted from the May 7, 1986 fall, either directly or as an 
 
            aggravation of a preexisting condition.
 
            
 
                 Dr. Hawkins' assessment of this case as reported in his 
 
            June 1, 1989 report is accepted as being correct.
 
            
 
                    
 
            
 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            conclusions of law
 
            
 
                 Claimant's rate of compensation under Code section 
 
            85.36(6) is computed on a gross weekly wage of $623.00 and 
 
            his marital status being married with two exemptions.  The 
 
            rate is $362.34 per week.  The higher rate of pay which 
 
            claimant received when performing service work is not 
 
            premium pay.  It is simply pay for a different type of work 
 
            than the work which he performed when in the shop.
 
            
 
                 Claimant is entitled to recover healing period 
 
            compensation running from May 16, 1986 through July 6, 1986, 
 
            a span of seven and three-sevenths weeks.  He is also 
 
            entitled to recover healing period compensation from July 11 
 
            through July 17, 1986, a span of one week.
 
            
 
                 Claimant is entitled to recover permanent partial 
 
            disability benefits for a five percent permanent partial 
 
            disability of his left leg with the same being payable 
 
            commencing July 18, 1986.  Under Code section 85.34(2)(o), 
 
            the entitlement is 11 weeks.
 
            
 
                 Claimant has failed to prove any entitlement to a 
 
            penalty under the fourth unnumbered paragraph of Code 
 
            section 86.13.
 
            
 
                                      order
 
            
 
                 IT IS THEREFORE ORDERED that defendants pay claimant 
 
            eight and three-sevenths (8 3/7) weeks of compensation for 
 
            healing period at the rate of three hundred sixty-two and 
 
            34/100 dollars ($362.34) per week with seven and 
 
            three-sevenths (7 3/7) weeks thereof payable commencing May 
 
            16, 1986 and with the remaining one (1) week thereof payable 
 
            commencing July 11, 1986.
 
            
 
                 IT IS FURTHER ORDERED that defendants pay claimant 
 
            eleven (11) weeks of compensation for permanent partial 
 
            disability at the rate of three hundred sixty-two and 34/100 
 
            dollars ($362.34) per week payable commencing July 18, 1986.
 
            
 
                 IT IS FURTHER ORDERED that claimant's entitlement to 
 
            weekly compensation totals seven thousand thirty-nine and 
 
            90/100 dollars ($7,039.90).  According to the attachment to 
 
            the prehearing report, he has been previously paid in excess 
 
            of twenty-seven thousand dollars ($27,000.00).  Defendants 
 
            therefore owe nothing further in the way of weekly 
 
            compensation.
 
            
 
                 IT IS FURTHER ORDERED that the costs of this proceeding 
 
            are assessed against the claimant pursuant to Division of 
 
            Industrial Services Rule 343-4.33.
 
            
 
                 Signed and filed this ______ day of ____________, 1990.
 
            
 
                 
 
            
 
                 
 
                 
 
                                          ______________________________
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
                                          MICHAEL G. TRIER
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr. Robert R. Rush
 
            Mr. Matthew J. Nagle
 
            Attorneys at Law
 
            526 Second Avenue SE
 
            P.O. Box 2457
 
            Cedar Rapids, Iowa  52406-2457
 
            
 
            Mr. Ralph W. Gearhart
 
            Attorney at Law
 
            500 MNB Building
 
            P.O. Box 2107
 
            Cedar Rapids, Iowa  52406-2107
 
            
 
            
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                               5-1402.30, 3001
 
                                               Filed June 8, 1990
 
                                               MICHAEL G. TRIER
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            HARLAND ALLISON,              :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :         File No. 823519
 
            CEDARAPIDS, INC.,             :
 
                                          :      A R B I T R A T I O N
 
                 Employer,                :
 
                                          :         D E C I S I O N
 
            and                           :
 
                                          :
 
            LIBERTY MUTUAL INSURANCE CO., :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ____________________________________________________________
 
            
 
            3001
 
            Claimant was paid one hourly rate when he worked in the shop 
 
            and a different higher hourly rate when he performed service 
 
            work outside the shop for his employer.  When he worked 
 
            overtime, he was paid time and one-half based upon the type 
 
            of work he was performing at the time.  It was held that the 
 
            higher rate of pay when he performed service work outside 
 
            the shop was not a premium pay and was used when computing 
 
            the gross weekly wage.
 
            
 
            5-1402.30
 
            Claimant failed to prove that his back condition was 
 
            proximately caused by the leg injury which he had sustained 
 
            more than six months prior to the time that he first voiced 
 
            back complaints.
 
            
 
 
        
 
 
 
 
 
                       BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
        
 
        
 
        JAMES Q. COLE,
 
        
 
            Claimant,                   File No. 823600
 
        
 
        vs.
 
        
 
        CONTINENTIAL BAKING COMPANY,
 
        
 
            Employer,                   A P P E A L
 
        
 
        and                              R U L I N G
 
        
 
        AETNA CASUALTY & SURETY
 
        COMPANY,
 
        
 
            Insurance Carrier,
 
            Defendants.
 
        
 
        
 
        On November 15, 1988, claimant filed what was purported to be 
 
        notice of a cross-appeal and on December 7, 1988, claimant filed 
 
        a brief in support of cross-appeal. The transcript was filed on 
 
        May 8, 1989. On May 9, 1989, defendants filed a letter indicating 
 
        that the transcript had not been prepared but would be. On May 
 
        10, 1989, claimant filed a motion to dismiss appeal stating the 
 
        appeal should be dismissed for failure to file a transcript 
 
        within 30 days after notice of appeal. Claimant's motion 
 
        requested as an alternative that the record be closed to further 
 
        activity by defendants. On May 22, 1989, defendants filed a 
 
        motion for additional time to respond to pleading. Defendants 
 
        requested an extension to May 25, 1989. Because that time has 
 
        expired and defendants have filed nothing further that motion is 
 
        moot and will not be considered further. The motion for dismissal 
 
        is now considered.
 
        
 
        Division of Industrial Services Rule 343-2.1 provides: "For good 
 
        cause the industrial commissioner or the commissioner's designee 
 
        may modify the time to comply with any rule."
 
        
 
        Division of Industrial Services Rule 343-4.30 provides:
 
        
 
        When an appeal to or review on motion of the commissioner is 
 
        taken pursuant to 4.27(86,17A) or 4.29(86,17A), a transcript of 
 
        the proceedings before the industrial commissioner shall be filed 
 
        with the industrial commissioner within thirty days after the 
 
        notice of the appeal
 
        
 
        COLE V. CONTINENTIAL BAKING COMPANY
 
        Page 2
 
        
 
        
 
        is filed with the industrial commissioner. The appealing party 
 
        shall bear the initial cost of transcription on appeal and shall 
 
        pay the certified shorthand reporter or service for the 
 
        transcript. In the event there is a cross-appeal, the appellant 
 
        and cross-appellant shall share the cost of the transcript. In 
 
        the event the cost of the transcript has been initially borne by 
 
        a nonappealing party prior to appeal, the appealing party or 
 
        parties within thirty days after notice of appeal or cross-appeal 
 
        shall reimburse the cost of the transcript to the nonappealing 
 

 
        
 
 
 
 
 
        party and if not so reimbursed the appeal shall be dismissed.
 
        
 
        In this matter the transcript has already been filed and claimant 
 
        has filed his brief on crass-appeal. There is conflicting 
 
        evidence in the record when a transcript was ordered by 
 
        defendants. The claimant attempted to file a cross-appeal but 
 
        apparently did not initiate steps to prepare or share the costs 
 
        of the transcript. Good cause exists to extend the time for 
 
        filing the transcript until May 8, 1989, the date which the 
 
        transcript was filed.
 
        
 
        Division of Industrial Services Rule 343-4.36 provides:
 
        
 
        If any party to a contested case or an attorney representing such 
 
        party shall fail to comply with these rules or any order of a 
 
        deputy commissioner or the industrial commissioner, the deputy 
 
        commissioner or industrial commissioner may dismiss the action. 
 
        Such dismissal shall be without prejudice. The deputy 
 
        commissioner or industrial commissioner may enter an order 
 
        closing the record to further activity or evidence by any party 
 
        for failure to comply with these rules or an order of a deputy 
 
        commissioner or the industrial commissioner.
 
        
 
        Claimant requests in the alternative that the record be closed to 
 
        further activity by defendants. Failure to comply with rule 4.30, 
 
        supra, and failure to file the transcript in a timely manner has 
 
        the effect of delaying the time in which to file briefs. The 
 
        delay in this instance is a delay of approximately six months. 
 
        Claimant attempted to file a cross-appeal. Until this ruling 
 
        which will hold that the cross-appeal was untimely, both parties 
 
        could have reasonably assumed that the costs of the transcript 
 
        were to be shared as provided in rule 4.30. There is no 
 
        indication that claimant paid for half the costs of the 
 
        transcript nor any indication that claimant had taken steps to 
 
        see that the transcript was filed. Had this been a situation 
 
        where the delay in filing the transcript was clearly caused 
 
        solely by the defendants, sanctions might be appropriate. 
 
        However, this is a situation where both parties should have 
 
        shared the responsibility of preparation of the transcript. The 
 
        facts of this case do not warrant sanctions against the
 
        
 
        COLE V. CONTINENTIAL BAKING COMPANY
 
        Page 3
 
        
 
        
 
        defendants. The defendants should serve their appeal brief within 
 
        twenty (20) days of the date of this order. Subsequent briefs by 
 
        the parties shall be as provided in Division Industrial Services 
 
        Rule 343-4.28(1).
 
        
 
        Claimant filed an untimely notice of cross-appeal. That 
 
        cross-appeal will not be considered. However, claimant's brief, 
 
        as much as is relevant, will be considered.
 
        
 
        WHEREFORE, claimant's motion to dismiss defendants' appeal is 
 
        overruled in its entirety.
 
        
 
        Signed and filed this 2nd day of June, 1989.
 
        
 
        
 
                                          DAVID E. LINQUIST
 
                                       INDUSTRIAL COMMISSIONER
 
        
 
        
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                    BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         
 
         JAMES Q. COLE,
 
         
 
              Claimant,
 
                                                  File No. 823600
 
         vs.
 
                                              A R B I T R A T I O N
 
         CONTINENTAL BAKING COMPANY,
 
                                                  D E C I S I O N
 
              Employer,
 
         
 
         and
 
         
 
         AETNA CASUALTY & SURETY
 
         COMPANY,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         
 
         
 
                              STATEMENT OF THE CASE
 
         
 
              This is a proceeding in arbitration brought by James Q. 
 
         Cole, claimant, against Continental Baking Company, employer 
 
         (hereinafter referred to as Continental), and Aetna Casualty & 
 
         Surety Company, insurance carrier, defendants, for workers' 
 
         compensation benefits as a result of an alleged injury on April 
 
         15, 1986.  On May 6, 1988, a hearing was held on claimant's 
 
         petition and the matter was considered fully submitted at the 
 
         close of this hearing.
 
         
 
              The parties have submitted a prehearing report of contested 
 
         issues and stipulations which was approved and accepted as a part 
 
         of the record of this case at the time of hearing.  Oral 
 
         testimony was received during the hearing only from claimant.  
 
         The exhibits received into the evidence at the hearing are listed 
 
         in the prehearing report.  According to the prehearing report, 
 
         the parties have stipulated to the following matters:
 
         
 
              1.  On April 15, 1986, claimant received an injury which 
 
         arose out of and in the course of employment with Continental;
 
         
 
              2.  Claimant is seeking temporary total disability or 
 
         healing period benefits from April 17, 1986 through May 22, 1987 
 
         and from July 21, 1987 through December 15, 1987.  Claimant 
 
         agrees that he has been paid weekly benefits for the period 
 
         extending from April 15, 1986 through December 23, 1986;
 
         
 
              3.  If the injury is found to have caused permanent 
 
         disability, the type of disability is.an industrial disability to 
 
         the body as a whole;
 
         
 
              4.  With reference to claimant's rate of weekly 
 
         compensation, claimant was married and entitled to four 
 
         exemptions at the time of the injury; and,
 

 
         
 
              5.  The medical bills submitted by claimant at hearing were 
 
         fair and reasonable and causally connected to the medical 
 
         condition upon which the claimed hearing is based, but that the 
 
         issue of their causal connection to any work injury remains an 
 
         issue to be decided herein.
 
         
 
                                      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 claimant's entitlement to weekly benefits 
 
         for disability;
 
         
 
            III.  Claimant's rate of weekly compensation; and,
 
         
 
             IV. The extent of claimant's entitlement to medical 
 
         benefits.
 
         
 
         
 
                             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 worked for Continental from 1976 
 
         until May 22, 1987 at which time he was terminated by Continental 
 
         because there was no work available within his restrictions 
 
         imposed by claimant's physicians.  Claimant stated that he was a 
 
         maintenance engineer.  According to the rate agreement submitted 
 
         to this agency on July 2, 1986, claimant's average weekly 
 
         earnings over the 13 week, period prior.to the injury was 
 
         $461.15.  Claimant testified that he worked at least 40 hours per 
 
         week at Continental.
 
         
 
              Claimant testified at hearing that he was quite active 
 
         outside of his employment at Continental.  Claimant conducted two 
 
         small businesses on a part-time basis out of his home, namely:  J 
 
         & J Heating and Refrigeration and J & J Printing.  Claimant said 
 
         that he was quite active in these businesses before the work 
 
         injury in this case and earned from $200 to $800 per week from 
 
         these operations prior to the work injury.
 
         
 
              The facts surrounding the work injury are not in dispute.  
 
         Claimant testified that on April 15, 1986, while lifting a floor 
 
         safe weighing approximately 180 to 200 pounds with another 
 
         employee, the other employee let go placing full weight upon 
 
         claimant's back.  Claimant said that he felt a sharp pain in his 
 
         lower back.  The pain continued but claimant was able to finish 
 
         out the day.  The next day claimant was scheduled for a day off 
 
         and claimant said he remained in bed.  The following day claimant 
 
         returned to work but could not perform his work due to the low 
 
         back pain and claimant was referred for medical treatment to the 
 
         company physician, C. L. Peterson, D.O.  After a CT scan, Dr. 
 
         Peterson placed claimant on medication and claimant remained off 
 

 
         
 
         
 
         
 
         COLE V. CONTINENTAL BAKING COMPANY
 
         PAGE   3
 
         
 
         work.  However, despite this treatment, claimant failed to 
 
         improve and he was referred to an orthopedic surgeon, Marvin L. 
 
         Skoglund, M.D.  As Dr. Skoglund was out of town, his office 
 
         referred claimant to a neurosurgeon, Harry Honda, M.D.  Dr. Honda 
 
         hospitalized claimant for 10 days for physical therapy and tests 
 
         including a myelogram and CT scan.  Dr. Honda's diagnosis was 
 
         lumbosacral strain and.minimal bulging of the three discs in the 
 
         lower spine, L3-4, L4-5 and L5-Sl.  Claimant was advised upon 
 
         discharge from the hospital to lose 60 to 70 pounds by Dr. Honda 
 
         to improve his chances for recovery.  Care under Dr. Honda 
 
         continued until claimant was released to return to work in mid 
 
         December, 1986 upon a final diagnosis of herniated nucleus 
 
         pulposus.  At the time of his release to return to work, Dr. 
 
         Honda imposed work restrictions against lifting over 40 pounds 
 
         with no excessive bending or stretching.
 
         
 
              Claimant testified that he return to work on December 23, 
 
         1986 and was assigned to buffing, sanding and stripping floors 
 
         which, according to claimant, required a considerable amount of 
 
         twisting, bending and lifting.  Claimant said that he just got to 
 
         the point where he could not work and reported to Dr. Skoglund 
 
         who took claimant off work from April 17, 1987 to May 22, 1987.  
 
         Upon returning to work on May 22, 1987, claimant was told by 
 
         Continental that there was no work available within his 
 
         restrictions and claimant was terminated.  Claimant had a 
 
         recurrence of low back pain in July of 1987 and Dr. Skoglund 
 
         indicated that claimant was not able to return to work until mid 
 
         December, 1987.  Claimant also received chiropractic treatments 
 
         in 1987.  Claimant testified that Continental denied paying these 
 
         bills and said that Dr. Skoglund was aware of the chiropractic 
 
         treatments and claimant thought Dr. Skoglund was working with the 
 
         chiropractors.
 
         
 
              In February, 1987, claimant was evaluated but not treated by 
 
         Raymond W. Dasso, M.D., a board certified orthopedic surgeon.  
 
         After his examination of claimant and review of claimant's 
 
         history, Dr. Dasso diagnosed that claimant had a bulging of the 
 
         disc at the L3-4, L4-5, and L5-S1 levels of the lower spine and 
 
         that claimant suffered from severe back strain.  Dr.Dasso opines 
 
         that claimant has a 15 to 18 percent permanent partial impairment 
 
         to the body as a whole and has restricted claimant's activity to 
 
         no lifting over 25 pounds, no excessive bending, stooping or 
 
         twisting at work.  Also, in February, 1987, claimant was referred 
 
         by his attorney to Thomas P. Dhanens, Ph.D., a clinical 
 
         psychologist, for evaluation of psychological problems claimant 
 
         has having at the time.  Dr. Dhanens' diagnosis was that claimant 
 
         had a major depression caused by pain and circumstances created 
 
         by the work injury of April, 1986 and an inability to return to 
 
         work.  Dr. Dhanens felt that claimant was in need of treatment 
 
         including possible anti-depressant medication as he was a 
 
         possible danger to himself and others.  Dr. Dhanens treated 
 
         claimant with psychotherapy sessions in February, March and April 
 
         of 1987.  These sessions ended without explanation by claimant or 
 
         Dr. Dhanens in April, 1987 and Dr. Dhanens has not issued a final 
 
         report although he had indicated in March of 1987 that claimant 
 
         was improving.
 
         
 
              Claimant testified that he has not been employed full time 
 
         since his last day at Continental on February 17, 1987.  Claimant 
 
         expressed a desire to return to full time work.  Claimant said 
 

 
         
 
         
 
         
 
         COLE V. CONTINENTAL BAKING COMPANY
 
         PAGE   4
 
         
 
         that his involvement in the two part-time home businesses has 
 
         been severely curtailed since the work injury and his only 
 
         involvement now is in the form of a supervisory capacity although 
 
         he does make some house calls on small repair jobs.  Most of the 
 
         physical work according to claimant is now performed either by 
 
         his son or wife.  Claimant testified that he works two to three 
 
         hours a week in the printing shop and three to four hours a day 
 
         in the appliance repair business.  Claimant continues to be fire 
 
         chief and participates occasionally in training sessions.  At one 
 
         time claimant attempted to complete an obstacle course in the 
 
         course of fireman training but his participation ended with a 
 
         recurrence of back pain.
 
         
 
              Claimant admitted to having extensive chronic treatment of 
 
         his back prior to the April, 1986 injury but stated that these 
 
         instances of back pain were only pain between his shoulders, not 
 
         in the low back.  Chiropractic records indicate treatment for 
 
         "spinal" condition but none of these records indicate what part 
 
         of the spine was treated.
 
         
 
              In July, 1987, claimant was evaluated by two general 
 
         surgeons and occupational medicine physicians, Barry Lake 
 
         Fischer, M.D., and Hymans Lans, M.D.  From their oral histories 
 
         taken of claimant, both physicians rated claimant's permanent 
 
         partial impairment as constituting a 49 and 45 percent impairment 
 
         respectively.
 
         
 
              Claimant testified that his past employment primarily 
 
         consists of maintenance work.  Claimant is 42 years of age and 
 
         only has a ninth grade education.  Claimant exhibited average 
 
         intelligence at the hearing.
 
         
 
              Claimant stated that he has looked for suitable work since 
 
         December of 1987 primarily in appliance shops involving bench 
 
         work.  Claimant has signed up with Job Service in order to seek 
 
         employment.
 
         
 
              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 
 

 
         
 
         
 
         
 
         COLE V. CONTINENTAL BAKING COMPANY
 
         PAGE   5
 
         
 
         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 along 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. Asse 
 
         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, claimant contends that he has 
 
         suffered permanent-disability as a result of the work injury 
 
         herein due to the permanent impairment to the body as a whole. 
 
         First, the evidence is uncontroverted that claimant has a 
 
         significant permanent impairment to the body as a whole.  
 
         Although the views of Dr. Fischer and Dr. Lans are important, 
 
         they appear to be unusually high given the experience of this 
 
         agency.  Also, the views of Dr. Dasso, a board certified 
 
         orthopedic surgeon, must be given the greater weight due to the 
 
         specialized experience and training in the field of orthopedics.  
 
         Therefore, it will be found that claimant has a 15 to 18 percent 
 
         permanent partial impairment to the body as a whole.  It should 
 
         be noted that this is an industrial case and the exact percentage 
 
         of impairment is only one factor among many in determining the 
 
         percentage of disability for purposes of awarding weekly 
 
         benefits.
 
         
 
              Second, the evidence shows the requisite causal connection 
 
         between the back injury and the permanent impairment.  The prior 
 
         back problems appear to be in the upper back, not in the lower 
 
         back and claimant's testimony and evidence establishes a direct 
 
         link between his current physical problems and the lifting injury 
 
         at work in April, 1986.
 
         
 
              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 
 

 
         
 
         
 
         
 
         COLE V. CONTINENTAL BAKING COMPANY
 
         PAGE   6
 
         
 
         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; 
 
         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 ascertainable disabilities effecting his 
 
         ability to work.  Claimant was able to fully perform physical 
 
         tasks involving heavy lifting, repetitive lifting, bending, 
 
         twisting and stooping, and prolonged standing and sitting.
 
         
 
              As a result of his work injury, claimant's primary treating 
 
         physician, Dr. Honda, has imposed significant work restrictions 
 
         in that claimant was not able to return to the type of work he 
 
         was able to perform at the time of the injury.  The nature of 
 
         these restrictions are more important than any particular 
 
         percentage of functional impairment from an industrial disability 
 
         standpoint because it bears a direct relationship to the type of 
 
         work claimant can perform in his earning capacity.
 
         
 
              Claimant's physicians have restricted claimant's work 
 
         activities by prohibiting tasks such as heavy lifting, repetitive 
 
         lifting, bending, twisting and stooping, and prolonged sitting 
 
         and standing.  Claimant's medical condition prevents him from 
 
         returning to his former work or any other work which requires 
 
         claimant to perform strenuous heavy work.  Given claimant's age, 
 
         lack of formal education and work history, claimant is best 
 
         suited to employment in jobs requiring heavy work.
 
         
 
              Claimant remains unemployed despite an effort to seek 
 
         alternate employment.  According to the Iowa Supreme Court, such 
 
         a factual setting may invoke the so called "odd-lot" doctrine.  
 
         This doctrine allows claimant to establish a prima facie case for 
 
         unemployability and permanent total disability benefits from a 
 
         factual showing of a reasonable but unsuccessful effort to find 
 
         suitable work.  If defendants then fail to go forward with the 
 
         evidence on the issue of availability of suitable work to 
 
         claimant, claimant is entitled to an award of permanent 
 
         disability.  See Guyton v. Irving Jensen Co., 373 N.W.2d 101, 105 
 
         (Iowa 1985).  However, the industrial commissioner has directed 
 
         that this doctrine cannot be applied by a deputy unless the 
 
         doctrine is plead and identified as an issue at.the last 
 
         prehearing conference and listed as an issue in the.prehearing 
 

 
         
 
         
 
         
 
         COLE V. CONTINENTAL BAKING COMPANY
 
         PAGE   7
 
         
 
         assignment order.  Therefore, as such an issue was not raised by 
 
         claimant in this matter, the doctrine could not be applied in 
 
         this case.  Claimant's evidence has failed to show that some sort 
 
         of suitable light duty work is not available to him, albeit at 
 
         much lower pay in this agency's experience with sedentary and 
 
         unskilled labor work.
 
         
 
              Claimant is 42 years of age and should be at the prime of 
 
         his working life.  His loss of future earnings from employment 
 
         due to his disability is more severe than would be the case for a 
 
         younger or older individual.  See Becke v. Turner-Busch, Inc., 
 
         Thirty-Fourth Biennial Reports, Iowa Industrial Commissioner 34 
 
         (Appeal Decision 1979); See also Walton v. B & H Tank Corp., II 
 
         Iowa Industrial Commissioner Report 426 (Appeal Decision 1981).
 
         
 
              Although claimant's lack of education and work experience 
 
         would seem to indicate a very low potential for vocational 
 
         retraining, claimant is quite versatile and for a number of years 
 
         has occupied himself with many and varied occupational pursuits.  
 
         This shows a certain flexibility and willingness to learn new 
 
         ideas.  However, despite the many part-time activities, his 
 
         current earning capacity is quite limited.
 
         
 
              Finally, claimant's lack of motivation to lose weight to 
 
         improve his back condition is a negative factor and his 
 
         industrial disability award was lowered accordingly.
 
         
 
              After examination of all of the factors, it is found as a 
 
         matter of fact that claimant has suffered a 50 percent loss of 
 
         his earning capacity from his work injury.  Based upon such a 
 
         finding, claimant is entitled as a matter of law to 250 weeks of 
 
         permanent partial disability benefits under Iowa Code section 
 
         85.34(2)(u) which is 50 percent of the 500 weeks, the maximum 
 
         allowable for an injury to the body as a whole in that 
 
         subsection.  It will be found that claimant reached maximum 
 
         healing on December 23, 1986 and benefits will be awarded for 
 
         that date.
 
         
 
              Claimant is entitled to weekly benefits for healing period 
 
         under Iowa Code section 85.34 from the date of injury until 
 
         claimant returns to work; until claimant is medically capable of 
 
         returning to substantially similar work to the work he performed 
 
         at the time of injury; or, until it is indicated that significant 
 
         improvement from the injury is not anticipated, whichever occurs 
 
         first.  According to the evidence, claimant's primary treating 
 
         physician returned claimant to work on December 23, 1986 with 
 
         permanent restrictions on activity.  Claimant's condition since 
 
         that time has been fairly stable with intermittent episodes of 
 
         recurrent pain but the restrictions imposed by Dr. Honda are much 
 
         the same as his restrictions today.  Therefore, it is found that 
 
         claimant reached maximum healing on the day he returned to work 
 
         on December 23, 1986.
 
         
 
              III.  The prehearing report indicates a dispute as to 
 
         claimant's gross weekly earnings for purposes of determining rate 
 
         from the commissioner's rate schedule for this injury.  
 
         Claimant's prehearing brief attached to the prehearing report 
 
         states that he has proved a certain hourly rate.  Although the 
 
         undersigned's notes of the hearing may be inaccurate, claimant 
 
         failed to testify as to his earnings at the time of injury.  
 

 
         
 
         
 
         
 
         COLE V. CONTINENTAL BAKING COMPANY
 
         PAGE   8
 
         
 
         However, a rate of some sort must be used and for lack of better 
 
         information, the rate awarded shall be the same as that set forth 
 
         in the employer's rate agreement filed with this agency on July 
 
         7, 1986.  According to this document, claimant's gross weekly 
 
         earnings over the 13 weeks prior to the injury were $5,994.95 or 
 
         $461.15 per week which results in a $291.19 weekly rate of 
 
         compensation according to the commissioner's rate book.
 
         
 
              Claimant argues that this agency should take into account 
 
         all of his weekly earnings, including his outside self-employment 
 
         income from the two businesses he operated.  Such a calculation 
 
         of rate is not permitted under Iowa Code section 85.36.  Total 
 
         annual earnings are only taken into account upon a showing that 
 
         the claimant at the time of injury was earning less than the 
 
         usual weekly earnings of a regular full time adult laborer in the 
 
         line of industry in which the employee was injured in that 
 
         locality.  Such a showing has not been made.  See Iowa Code 
 
         section 85.36(10).
 
         
 
              IV.  Pursuant to  Iowa Code section 85.27, claimant is 
 
         entitled to payment of reasonable medical expenses incurred for 
 
         treatment of a work injury.  However, claimant is entitled to an 
 
         order of reimbursement only if claimant has paid those expenses.  
 
         Otherwise, claimant is entitled only to an order directing the 
 
         responsible defendants to make such payments. See Krohn v. State, 
 
         420 N.W.2d 463 (Iowa 1988).
 
         
 
              According to the prehearing report, claimant seeks payment 
 
         of the bills from Dr. Dasso, Dr. Dhanens and Dr. Freebern.  
 
         First, the evaluation performed by Dr. Dasso appears to be for 
 

 
         
 
         
 
         
 
         COLE V. CONTINENTAL BAKING COMPANY
 
         PAGE   9
 
         
 
         the purpose of litigation rather than treatment.  Therefore, the 
 
         examination of Dr. Dasso cannot be awarded under Iowa Code 
 
         section 85.27.  Claimant made no claim for an independent 
 
         evaluation under Iowa Code section 85.39 either before or during 
 
         the hearing in this case.  With reference to the bill from Dr. 
 
         Dhanens, it appears that such evaluation was for the purposes of 
 
         treatment and defendants stipulated that the expenses were 
 
         causally connected to the back condition upon which claimant 
 
         based his claim herein.  Therefore, in light of the above finding 
 
         that the back condition is causally connected to the April, 1986 
 
         injury, claimant has shown a causal connection of the Dhanens' 
 
         treatment to the injury.
 
         
 
              With reference to the treatment of claimant by Dr. Dhanens 
 
         and Dr. Freebern, defendants claim that such treatment was not 
 
         authorized and claimant is not entitled to reimbursement for the 
 
         expenses under Iowa Code section 85.27 which provides employers 
 
         with the right to choose the care.  However, section 85.27 
 
         applies only to injuries compensable under Chapters 85 and 85A of 
 
         the Code and obligates the employers to furnish reasonable 
 
         medical care.  This agency has held that it is inconsistent to 
 
         deny liability and the obligation to furnish care on the one hand 
 
         and at the same time claim a right to choose the care.  Kindhart 
 
         v. Fort Des Moines Hotel, I Industrial Commissioner Decisions No. 
 
         3, 611 (Appeal Decision 1985); Barnhart v. MAQ Inc., Iowa 
 
         Industrial Commissioner Report 16 (Appeal Decision 1981).
 
         
 
              Defendants in this case have throughout these proceedings 
 
         denied that claimant's condition arose out of and in the course 
 
         of his employment and denied that claimant had suffered permanent 
 
         impairment or disability.  For that reason and absent a future 
 
         change in defendants' legal position on the issue of liability, 
 
         defendants will not have the right to choose the medical care for 
 
         claimant's injuries until a decision of this agency establishing 
 
         the compensability of such injuries becomes final.  Therefore, 
 
         the expenses of the treatment of Dr. Dhanens and Freebern are 
 
         reimbursable.
 
         
 
              The bill from Dr. Dasso will be ordered pay by defendants 
 
         but not under Iowa Code section 85.27.  The bill will be awarded 
 
         as a part of the cost of this action.  However, this agency will 
 
         not award more than $150 for any one medical report.  It is felt 
 
         that a medical doctor should not receive more money for a written 
 
         report than the doctor could receive for testifying at a 
 
         deposition or the hearing.
 
         
 
                                 FINDINGS OF FACT
 
         
 
              1.  Claimant was a credible witness.
 
         
 
              2.  On April 15, 1986, claimant suffered an injury to the 
 
         low back which arose out of and in the course of employment with 
 
         Continental.  The injury caused a mild bulging of the disc at 
 
         various levels of claimant's lower spine and chronic low back 
 
         strain.
 
         
 
              3.  The work injury of April 15, 1986, was a cause of a 
 
         period of disability from work beginning on April 17, 1986 and 
 
         ending on December 22, 1986, after which claimant returned to 
 
         work.  Claimant also reached maximum healing on December 22, 
 

 
         
 
         
 
         
 
         COLE V. CONTINENTAL BAKING COMPANY
 
         PAGE  10
 
         
 
         1986.
 
         
 
              4.  The work injury of April 15, 1986, was a cause of a 
 
         15-18 percent permanent partial impairment to the body as a whole 
 
         and of permanent restrictions upon claimant's physical activity 
 
         consisting of no lifting over 25 pounds and no repetitive 
 
         lifting, bending, stooping, twisting or prolonged sitting or 
 
         standing.
 
         
 
              5.  The work injury of April 15, 1986, and the resulting 
 
         permanent partial impairment was a cause of a 50 percent loss of 
 
         earning capacity.  Claimant is 42 years of age and has only a 
 
         ninth grade education.  Claimant was a maintenance engineer at 
 
         the time of the injury and claimant's only work experience has 
 
         been in maintenance requiring heavy lifting and bending.  Given 
 
         his age, education and work history, claimant is best suited to 
 
         employment involving heavy work.  On the other hand claimant has 
 
         shown the energy and ability to learn and begin outside 
 
         self-employment businesses in the past and such fact would be a 
 
         positive factor in vocational rehabilitation.  Claimant, however, 
 
         has not made a substantial effort to seek full time replacement 
 
         employment and appears to lack motivation to lose weight to 
 
         litigate the effect of his disability.  Claimant, however, 
 
         remains severely disabled and still is unable to perform heavy 
 
         work, the type of work for which he is best suited.
 
         
 
              6.  Except for the bill for the evaluation of Dr. Dasso, the 
 
         medical expenses listed by claimant in the prehearing report were 
 
         incurred by claimant for reasonable and necessary treatment of 
 
         his back condition and defendants have denied liability for the 
 
         condition being treated.
 
         
 
                                CONCLUSIONS OF LAW
 
         
 
              Claimant has established under law entitlement to specific 
 
         disability and medical benefits awarded below.
 
         
 
                                      ORDER
 
         
 
              1.  Defendants shall pay to claimant two hundred fifty (250) 
 
         weeks of permanent partial disability benefits at the rate of two 
 
         hundred ninety-one and 19/100 dollars ($291.19) per week from 
 
         December 23, 1986.
 
         
 
              2.  Defendants shall pay to claimant healing period benefits 
 
         from April 17, 1986 through December 22, 1986, at the rate of two 
 
         hundred ninety-one and 19/100 dollars ($291.19) per week.
 
         
 
              3.  Defendants shall pay the medical expenses sought in the 
 
         prehearing report except for the bill from Dr. Dasso.  This 
 
         payment shall be made directly to the medical provider but only 
 
         to claimant upon proof that claimant has paid the expense.
 
         
 
              4.  Defendants shall pay accrued weekly benefits in a lump 
 
         sum and shall receive a credit against this award for benefits 
 
         previously paid.
 
         
 
              5.  Defendants shall pay,interest on weekly benefits awarded 
 
         herein as set forth in Iowa Code section 85.30.
 
         
 

 
         
 
         
 
         
 
         COLE V. CONTINENTAL BAKING COMPANY
 
         PAGE  11
 
         
 
              6.  Defendants shall pay the cost of this action pursuant to 
 
         Division of Industrial Services 343-4.33 including the sum of one 
 
         hundred fifty and no/100 dollars ($150.00) toward the cost of the 
 
         evaluation of Dr. Dasso.
 
         
 
              7.  Defendants shall file activity reports upon payment of 
 
         this award as requested by this agency pursuant to Division of 
 
         Industrial Services Rule 343-3.1.
 
         
 
              Signed and filed this 24th day of October, 1988.
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
                                          LARRY P. WALSHIRE
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
         
 
         Copies To:
 
         
 
         Mr. Peter M. Soble
 
         Attorney at Law
 
         505 Plaza Office Bldg.
 
         Rock Island, Illinois 61201
 
         
 
         Mr. Larry L. Shepler
 
         Attorney at Law
 
         Suite 102, Executive Sq.
 
         400 Main St.
 
         Davenport, Iowa 52801
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                                 1803
 
                                                 Filed October 24, 1988
 
                                                 LARRY P. WALSHIRE
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         JAMES Q. COLE,
 
         
 
              Claimant,
 
                                                 File No. 823600
 
         vs.
 
                                              A R B I T R A T I 0 N
 
         CONTINENTAL BAKING COMPANY,
 
                                                 D E C I S I 0 N
 
              Employer,
 
         
 
         and
 
         
 
         AETNA CASUALTY & SURETY
 
         COMPANY,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         1803
 
         
 
              Claimant awarded 50 percent industrial disability for an 
 
         inability to return to the type of work that he performed at the 
 
         time of the work injury.  Odd-lot was not plead and not applied.