BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         JOYCE FULLER,
 
         
 
              Claimant,
 
                                                  File No. 825099
 
         vs.
 
                                              A R B I T R A T I 0 N
 
         BISHOP DRUMM CARE CENTER,
 
                                                  D E C I S I O N
 
              Employer
 
                                                     F I L E D
 
         and
 
                                                    APR 21 1989
 
         AETNA CASUALTY & SURETY CO.,
 
                                           IOWA INDUSTRIAL COMMISSIONER
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
                              STATEMENT OF THE CASE
 
         
 
              This is a proceeding in arbitration brought by Joyce Fuller, 
 
         claimant, against Bishop Drumm Care Center, employer (hereinafter 
 
         referred to as Drumm), and Aetna Casualty & Surety Co., insurance 
 
         carrier, defendants, for workers' compensation benefits as a 
 
         result of an alleged injury on April 17, 1986.  On August 22, 
 
         1988, a hearing was held on claimant's petition and the matter 
 
         was considered fully submitted at the close of this hearing.
 
         
 
              The parties have submitted a prehearing report of contested 
 
         issues and stipulations which was approved and accepted as a part 
 
         of the record of this case at the time of hearing.  Oral 
 
         testimony was received during the hearing from claimant and 
 
         Beatrice,Hood. The exhibits received into the evidence at the 
 
         hearing are listed in the prehearing report except for exhibit G 
 
         which was excluded from the evidence.
 
         
 
              According to the prehearing report, the parties have 
 
         stipulated to the following matters:
 
         
 
              1.  On April 17, 1986, claimant received an injury which 
 
         arose out of and in the course of employment with Drumm.
 
         
 
              2.  Claimant is seeking.temporary total disability or 
 
         healing period benefits only from June 16, 1986 to the present 
 
         time. Defendants agree that she was not working during this time.
 
         
 
              3.  If the injury is found to have caused permanent 
 
         disability, the type of disability is a scheduled member 
 
         disability to the lower extremity.
 
         
 
              4.  Claimant's rate of weekly compensation in the event of 
 
         an award of weekly benefits shall be $154.09.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
                                      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; and,
 
         
 
              II.  The extent of claimant's entitlement to weekly benefits 
 
         for disability.
 
         
 
                              STATEMENT OF THE FACTS
 
         
 
              The following.is a brief statement highlighting the more 
 
         pertinent evidence presented.  Whether or not specifically 
 
         referred to in this statement, all of the evidence received at 
 
         the hearing was independently reviewed and considered in arriving 
 
         at this decision.  Any conclusions in the following statement 
 
         should be viewed as preliminary findings of fact.
 
         
 
              Claimant is 54 years of age.  Claimant testified that she 
 
         worked for Drumm as a licensed practical nurse from June 1985 
 
         until her termination "for cause" in June 1986.  The reason for 
 
         the termination was not discussed at hearing except that claimant 
 
         admits that it was not related to the work injury.
 
         
 
              The circumstances surrounding the work injury are not in 
 
         dispute.  Claimant fell and twisted her left ankle while serving 
 
         food to residents of the care facility.  Claimant returned to 
 
         work and lost no time from work until her termination.  However, 
 
         she states that she continued to experienced swelling and pain 
 
         and difficulties walking and standing in the weeks following the 
 
         injury.  Claimant's superior at Drumm, Beatrice Hood, testified 
 
         that she observed no problems with claimant with walking and 
 
         standing prior to her termination and that claimant was not 
 
         observed wearing any elastic bandage as claimed by claimant.  
 
         Hood also stated that the LPNs must walk and stand for very long 
 
         periods of time in the performance of their work.  Claimant had 
 
         said that she wore an elastic bandage only occasionally at work 
 
         after pain would develop.
 
         
 
              Claimant testified that she was in good health prior to the 
 
         work injury.  She had no prior chronic problems with her feet.  
 
         In a conversation with an insurance claims representative 
 
         following the accident, she stated that she had slipped on ice in 
 
         March 1986 but fully recovered without continuing problems.  She 
 
         fell a few years earlier while working at Woodward State Hospital 
 
         but she could not remember which foot was involved.  She denied 
 
         receiving any prior worker's compensation benefits.  Defendants' 
 
         brief asserts that claimant admitted in answers to 
 
         interrogatories to a subsequent ankle injury in May 1986.  
 
         Claimant denied such an injury at hearing and the answers to 
 
         interrogatories were not offered into the evidence.
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
              Claimant testified that she did not seek immediate medical 
 
         treatment following the injury as she was a LPN and thought she 
 
         could treat a simple sprained ankle.  However, she stated when 
 
         the pain and swelling continued for almost two months, she sought 
 
         treatment from the Mercy Medical Clinic and gave a history of an 
 
         ankle injury in mid April.  Claimant testified that she noticed 
 
         the pain and swelling more when she was off work while walking in 
 
         search of a job.  Claimant denies any intervening injury.
 
         
 
              Claimant was primarily treated at the Mercy Clinic by John 
 
         C. Tapp, D.O., a family practice physician.  Claimant's ankle 
 
         swelling was noted by Dr. Tapp who diagnosed chronic ankle 
 
         strain. When claimant's symptoms persisted, Dr. Tapp referred 
 
         claimant to an orthopedic surgeon, Martin Dubansky, M.D.  On July 
 
         23, 1986, claimant requested a note from the clinic regarding her 
 
         ability to work for the purposes of receiving welfare benefits.  
 
         An associate of Dr. Tapp, Don Green, M.D., prepared a note which 
 
         stated, according to his notes, that claimant is "unable to work 
 
         according to the amount of pain she was having."  It is also 
 
         noted by Dr. Green that claimant became angry when he suggested 
 
         that she get the note from Dr. Dubansky who had seen her on July 
 
         14.  Dr. Green noted that he checked with Dubansky's office and 
 
         there had been no reference in Dr. Dubansky's notes that she 
 
         should be off work.  He apparently had talked to someone in 
 
         Dubansky's office and not to Dr. Dubansky himself.  However, 
 
         according to Green's notes, there is no question that he prepared 
 
         a release from work note which claimant apparently gave to the 
 
         local welfare office to receive food stamps.
 
         
 
              According to Dr. Dubansky, he first examined claimant in 
 
         July 1986 and noted "a little tightness in the dorsiflexion of 
 
         the foot...."  He recommended use of an elastic bandage with an 
 
         outer heel wedge and prescribed Naprosyn.  Claimant's symptoms of 
 
         swelling and pain persisted and in September 1986, Dr. Dubansky 
 
         took a stress film test which indicated some calcification of the 
 
         ligaments on the medial and lateral side of the ankle.  However, 
 
         he was unsure if this was the result of the work injury or even 
 
         whether the calcification was causing claimant's problems.  In 
 
         December 1986, Dr. Dubansky stated to claimant that he was unable 
 
         to determine the cause of her problems and could not offer 
 
         further treatment.  In a letter to claimant's attorney, Dr. 
 
         Dubansky causally relates his care and treatment to the work 
 
         injury of April 1986 by claimant's history of an injury at that 
 
         time, but he felt that he could not give an impairment rating 
 
         because he was unable to determine the cause of her problems.  In 
 
         another letter to defense counsel, Dr. Dubansky stated as 
 
         follows:  "If she was able to work and then a couple days or so 
 
         after she terminated her work to suddenly get worse would be a 
 
         most unusual circumstance in my particular understanding of the 
 
         problem."  Dr. Tapp stated in his letter to claimant's counsel 
 
         that by history, he assumed that claimant's painful ankle was 
 
         related to the April injury, but he stated to defense counsel 
 
         that it would be unusual for a sprained ankle to get 
 
         progressively worse after the accident without some precipitating 
 
         event.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              On cross-examination, claimant admitted that during the time 
 
         she claimed to be unable to work she performed some yard work, 
 
         lawn mowing, shoveling of snow, cleaning of hallways, sweeping 
 
         and vacuuming and mopping floors for her landlord.  She also 
 
         attended the state fair.  Claimant was last treated approximately 
 
         one and a half years before the hearing.
 
         
 
              Claimant's appearance and demeanor at hearing indicated she 
 
         was testifying in a candid and truthful manner.
 
         
 
                           APPLICABLE LAW AND ANALYSIS
 
         
 
               I.  The claimant has the burden of proving by a 
 
         preponderance of the evidence that the work injury is a cause of 
 
         the claimed disability.  A disability may be either temporary or 
 
         permanent.  In the case of a claim for temporary disability, the 
 
         claimant must establish that the work injury was a cause of 
 
         absence from work and lost earnings during a period of recovery 
 
         from the injury. Generally, a claim of permanent disability 
 
         invokes an initial determination of whether the work injury was a 
 
         cause of permanent physical impairment or permanent limitation in 
 
         work activity. However, in some instances, such as a job transfer 
 
         caused by a work injury, permanent disability benefits can be 
 
         awarded without a showing of a causal connection to a physical 
 
         change of condition. Blacksmith v. All-American, Inc., 290 N.W.2d 
 
         348, 354 (Iowa 1980); McSpadden v. Big Ben Coal Co., 288 N.W.2d 
 
         181 (Iowa 1980).
 
         
 
              The question of causal connection  is  essentially  within 
 
         the domain of expert medical opinion.  Bradshaw v. Iowa Methodist 
 
         Hospital, 251 Iowa 375, 101 N.W.2d 167 (1960).  The opinion of 
 
         experts need not be couched in definite, positive or unequivocal 
 
         language and the expert opinion may be accepted or rejected, in 
 
         whole or in part, by the trier of fact.  Sondag v. Ferris 
 
         Hardware, 220 N.W.2d 903 (Iowa 1974).  The weight to be given to 
 
         such an opinion is for the finder of fact, and that may be 
 
         affected by the completeness of the premise given the expert and 
 
         other surrounding circumstances.  Bodish v. Fischer, Inc., 257 
 
         Iowa 516, 133 N.W.2d 867 (1965).
 
         
 
              Furthermore, if the available expert testimony is 
 
         insufficient 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 has shown by the greater 
 
         weight of evidence that she suffers from permanent impairment as 
 
         found by Thomas Bowers, L.P.T.  Claimant has limited range of 
 
         motion.  Dr. Dubansky refused to give a rating only because he 
 
         could not find the cause of the problem.  This does not 
 
         controvert a clear objective finding by Bowers of functional 
 
         impairment. Also, all documents indicate in the notes an 
 
         objective finding of swelling months after the incident.
 
         
 
              With reference to causal connection, claimant's credibility 
 
         is important.  As she is found credible, her denial of subsequent 
 
         injury and of increased worsening of symptoms substantiates her 
 
         case.  Claimant explains that she felt that she could handle a 
 
         simple sprained ankle and only sought medical treatment when she 
 
         realized the symptoms unusually persisted.  This appears to be a 
 
         plausible explanation for her delay in treatment.  Admittedly, 
 
         both Dr. Tapp and Dr. Dubansky felt that it was unusual for a 
 
         sprained ankle to persist, but generally workers' compensation 
 
         cases do involve the "unusual" as most people do not get hurt and 
 
         most fully recover from their work injuries.  The lack of 
 
         observations by Hood of problems while claimant was still working 
 
         at Drumm can be explained by claimant in that she was not wearing 
 
         the bandage all the time.  Although claimant may have performed a 
 
         few isolated activities for her landlord, this does not appear to 
 
         be the same type of activity required of an LPN according to the 
 
         testimony of Hood.  In the last analysis, both Dr. Tapp and Dr. 
 
         Dubansky causally connect the problems claimant was having in the 
 
         summer and fall of 1986 with her left ankle to the April injury 
 
         by relying upon the history of injury provided by claimant.  As 
 
         claimant is found credible, their causal connection opinions 
 
         prevail.
 
         
 
              II.  Claimant must establish by a preponderance of the 
 
         evidence the extent of weekly benefits for permanent disability 
 
         to which claimant is entitled.  Permanent partial disabilities 
 
         are classified as either scheduled or unscheduled.  A specific. 
 
         scheduled disability is evaluated by the functional method; the 
 
         industrial method is used to evaluate an unscheduled disability. 
 
         Martin v. Skelly Oil Co., 252 Iowa 128, 133, 106 N.W.2d 95, 98 
 
         (1960); Graves v. Eagle Iron Works, 331 N.W.2d 116 (Iowa 1983); 
 
         Simbro v. DeLong's Sportswear, 332 N.W.2d 886, 997 (Iowa 1983). 
 
         when the result of an injury is loss to a scheduled member, the 
 
         compensation payable is limited to that set forth in the 
 
         appropriate subdivision of Code section 85.34(2).  Barton v. 
 
         Nevada Poultry Co., 253 Iowa 285, 110 N.W.2d 660 (1961).  "Loss 
 
         of use" of a member is equivalent to 'loss' of the member.  Moses 
 
         v. National Union C.M. Co., 194 Iowa 819, 184 N.W. 746 (1922). 
 
         Pursuant to Code section 85.34(2)(u) the industrial commissioner 
 
         may equitably prorate compensation payable in those cases wherein 
 
         the loss is something less than that provided for in the 
 
         schedule. Blizek v. Eagle Signal Company, 164 N.W.2d 84 (Iowa 
 
         1969).
 
         
 
              From the evidence submitted, Bowers objectively measured 
 
         claimant's range of motion and found a nine percent permanent 
 
         partial impairment to the lower extremity.  According to his 
 
         report, this lack of range of motion clearly was related to 
 
         claimant's symptomatology of persistent swelling in the left 
 
         ankle.  Admittedly, Dr. Dubansky did not provide a rating because 
 
         he could not provide a scientific explanation for claimant's 
 
         problems.  The lack of an explanation by medical science for a 
 
         disability is not grounds to deny that a disability exists when 
 
         there was no problem before the injury and the same symptoms 
 
         persisted since the time of injury.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              Therefore, it is found as a matter of fact that the work 
 
         injury of April 17, 1986, is more likely than not a cause of a 
 
         nine percent loss of use of claimant's lower extremity.  Based 
 
         upon such a finding, claimant is entitled as a matter of law to 
 
         19.8 weeks of permanent partial disability benefits under Iowa 
 
         Code section 85.34(2)(o) which is nine percent of 220 weeks, the 
 
         maximum allowable for an injury to the leg in that subsection.
 
         
 
              As claimant has established entitlement to permanent partial 
 
         disability, claimant is entitled to weekly benefits for healing 
 
         period under Iowa Code section 85.34 from the date of injury 
 
         until she returns to work; until she is medically capable of 
 
         returning to substantially similar work to the work she was 
 
         performing at the time of the injury; or, until it is indicated 
 
         that significant improvement from the injury is not anticipated, 
 
         whichever occurs first.  This agency has held that a return to 
 
         work does not prevent subsequent healing period benefits.  Lawyer 
 
         & Higgs, Iowa Workers' Compensation -- Law & Practice, section 
 
         13-3; Willis v. Lehigh Portland Cement Company, I-2 Iowa 
 
         Industrial Commissioner Decisions 485 (1984); Clemens v. Iowa 
 
         Veterans Home, I-1 Iowa Industrial Commissioner Decisions 35 
 
         (1984); and, Riesselman v. Carrol Health Center, III Iowa 
 
         Industrial Commissioner Report 209 (Appeal Decision 1982).
 
         
 
               The circumstances of claimant's termination from Drumm are 
 
         not important to her eligibility for healing period benefits in 
 
         this case.  Claimant was under treatment from a qualified 
 
         physician from June 16, 1986 through December 29, 1986 at which 
 
         time Dr. Dubansky felt he could no longer treat claimant.  During 
 
         this time claimant was not working and it was anticipated by her 
 
         physicians that claimant would improve from treatment.  
 
         Admittedly, Dr. Dubansky did not specifically take claimant off 
 
         work but claimant was not working at the time and, apparently, he 
 
         did not feel the need to specifically set this out in his 
 
         reports.  Claimant was continually advised by her physicians to 
 
         avoid blows and activity to aggravate the injury.  As Hood 
 
         testified, claimant walked extensively at Drumm and this would 
 
         deter from healing.  Therefore, claimant will be awarded healing 
 
         period benefits during her period of medical treatment for the 
 
         work injury following her termination.
 
         
 
                                 FINDINGS OF FACT
 
         
 
              1.  Claimant was a credible witness.
 
              
 
              2.  On April 17, 1986, claimant suffered an injury to the 
 
         left ankle which arose out of and in the course of employment 
 
         with Drumm.  This injury was a persistent sprained ankle.
 
         
 
              3.  The work injury of April 17, 1986, was a cause of a 
 
         period of total disability from work from June 16, 1986 through 
 
         December 29, 1986 at which time claimant reached maximum healing. 
 
         During this period of time, claimant was not working and 
 
         receiving treatment from a qualified physician and it was 
 
         anticipated she would improve from such treatment.  However, she 
 
         did not fully recover.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              4.  The work injury of April 17, 1986, was a cause of a nine 
 
         percent permanent partial impairment to the leg.  Due to a 
 
         persistent swelling of tissue, claimant has a permanent loss of 
 
         active range of motion.  However, claimant had full use of her 
 
         ankle before the work injury and did not reinjure her ankle after 
 
         the injury.  Claimant's symptoms following the injury has 
 
         remained the same until the present time.
 
         
 
                                CONCLUSIONS OF LAW
 
         
 
              Claimant has established under law entitlement to the 
 
         benefits awarded below.
 
         
 
                                      ORDER
 
         
 
              1.  Defendants shall pay to claimant nineteen point eight 
 
         (19.8) weeks of permanent partial disability benefits at the rate 
 
         of one hundred fifty-four and 09/100 dollars ($154.09) per week 
 
         from December 30, 1986.
 
         
 
              2.  Defendants shall pay to claimant healing period benefits 
 
         from June 16, 1986 through December 29, 1986 at the rate of one 
 
         hundred fifty-four and 09/100 dollars ($154.09) per week.
 
         
 
              3.  Defendants shall pay accrued weekly benefits in a lump 
 
         sum and shall receive credit against this award for all benefits 
 
         previously paid.
 
         
 
              4.  Defendants shall pay interest on weekly benefits awarded 
 
         herein as set forth in Iowa Code section 85.30.
 
         
 
              5.  Defendants shall pay the costs of this action pursuant 
 
         to Division of Industrial Services Rule 343-4.33.
 
         
 
              6.  Defendants shall file activity reports on the payment of 
 
         this award as requested by this agency pursuant to Division of 
 
         Industrial Services Rule 343-3 1.
 
         
 
              Signed and filed this 21st day of April, 1989.
 
                                        
 
         
 
         
 
         
 
                                        LARRY P. WALSHIRE
 
                                       DEPUTY INDUSTRIAL COMMISSIONER
 
         
 
         Copies To:
 
         
 
         Mr. Robert W. Pratt
 
         Attorney at Law
 
         1913 Ingersoll Ave.
 
         Des Moines, Iowa  50309
 
         
 
         Mr. Glenn Goodwin
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         Attorney at Law
 
         4th Floor Equitable Bldg.
 
         Des Moines, Iowa  50309
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
 
         
 
 
 
 
 
 
 
 
 
 
 
                                        
 
                                              1803
 
                                              Filed April 21, 1989
 
                                              LARRY P. WALSHIRE
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         JOYCE FULLER,
 
         
 
              Claimant,
 
                                                 File No. 825099
 
         vs.
 
                                              A R B I T R A T I 0 N
 
         BISHOP DRUMM CARE CENTER,
 
                                                  D E C I S I 0 N
 
              Employer,
 
         
 
         and
 
         
 
         AETNA CASUALTY & SURETY CO.,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         
 
         51803 - Non-precedential
 
         
 
              Claimant awarded healing period and permanent disability 
 
         benefits for a scheduled loss of use to the left leg injury.
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
 
        
 
 
 
 
 
        
 
                      BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
        
 
        
 
        CARL A. ANDERSON,
 
        
 
            Claimant,                         File No. 825104
 
        
 
        vs.
 
                                               A R B I T R A T I O N
 
        HON INDUSTRIES/PRIME MOVER CO.,
 
                                                 D E C I S I O N
 
            Employer,
 
        
 
        and                                       F I L E D
 
        
 
        THE HARTFORD INSURANCE COMPANY;          FEB 14 1989
 
        
 
            Insurance Carrier,        IOWA INDUSTRIAL COMMISSIONER
 
            Defendants.
 
        
 
             
 
                                 STATEMENT OF THE CASE
 
             
 
             This is a proceeding in arbitration brought by Carl A. 
 
             Anderson, claimant, against Hon Industries/Prime Mover Co., 
 
             employer, and The Hartford Insurance Company, insurance carrier, 
 
             to recover benefits under the Iowa Workers' Compensation Act as a 
 
             result of an alleged injury of July 12, 1984. This matter came 
 
             on for hearing before the undersigned deputy industrial 
 
             commissioner July 12, 1988. The record was considered fully 
 
             submitted at the close of the hearing. The record in this case 
 
             consists of the testimony of claimant, Bob Wieskamp, Charles 
 
             Coulter, Dale Jones, Arthur Williams, Michael Black and Michael 
 
             Ryan; claimant's exhibits 1 through 18, inclusive; and 
 
             defendants' exhibits A through D, inclusive.
 
        
 
                                     ISSUES
 
             
 
             Pursuant to the prehearing report and order submitted and 
 
             approved July 12, 1988, the following issues are presented for 
 
             resolution:
 
             
 
             1. Whether claimant sustained an injury which arose out of 
 
             and in the course of his employment on July 12, 1988;
 
             
 
             2. Whether the alleged work injury is the cause of the 
 
             disability on which claimant now bases his claim;
 
             
 
             3. The extent of claimant's entitlement, if any, to weekly 
 
             disability benefits including temporary total disability/healing 
 
             period benefits and permanent partial disability benefits; and,
 
        
 
             4. Claimant's entitlement to medical benefits under Iowa 
 
             Code section 85.27.
 
        
 
            Also disputed is defendants' assertion of a notice issue 
 
        under Iowa Code section 85.23. This issue, however, was not 
 
        listed as an issue on the hearing assignment order and, 
 
        accordingly, the undersigned is without jurisdiction to consider 
 
        it. See Joseph Presswood v. Iowa Beef Processors, (Appeal 
 
        Decision filed November 14, 1986) holding an issue not noted on 
 
        the hearing assignment order is an issue that is waived.
 

 
        
 
 
 
 
 
        
 
                                 FACTS PRESENTED
 
        
 
             Claimant testified that on July 12, 1984, he reported for 
 
             work at his usual time and began working at 6:00 a.m. Claimant 
 
             reported he took his break at approximately 9:15 a.m. during 
 
             which time he ate an individual size cherry pie. Claimant stated 
 
             he felt fine and returned to his welding booth where at 
 
             approximately 10:00, he began to experience symptoms of 
 
             indigestion or a stomach ache. Claimant recalled he took some 
 
             "Tums" which "did not agree with" him, that he raised his welding 
 
             hood to wipe his brow, that he felt dizzy and went and stood in 
 
             front of the blower fan to get some air. Claimant testified he 
 
             then returned to work, began to again experience dizziness along 
 
             with pain and nausea and went into the center aisle where he 
 
             hollered he needed help. Claimant recalled he was lying on the 
 
             floor when the emergency medical technicians came and that he was 
 
             transferred by ambulance to Muscatine Hospital where he was 
 
             diagnosed as having suffered a heart attack.
 
        
 
            Claimant described the condition of the plant and 
 
        particularly his work area that day as hotter than outside which 
 
        he felt was "extremely hot" and that because of the arrangement 
 
        of the blowers no air could get into the welding department. 
 
        Claimant estimated the outside temperature to have been 
 
        approximately 92 degrees. Claimant stated that on July 12 he was 
 
        working on an OE-15, which was a rush job in that it had to be 
 
        welded (claimant's job), cleaned, painted and assembled by the 
 
        next Friday.
 
        
 
            Claimant testified he eventually returned to work in 
 
        February 1985 in the assembly area but began to experience back 
 
        problems, that he eventually left work again until approximately 
 
        August 1985 and that he has worked ever since. Claimant 
 
        described his current position of making electrical cables as a 
 
        composite of many other jobs which was specifically created for 
 
        him but which is less physically demanding than the welding job 
 
        he previously held. Claimant stated that his current position 
 
        pays approximately $.75 to $1.00 less per hour. Claimant 
 
        explained he can walk approximately 100 yards at a time, that he 
 
        can lift 30 pounds often, 75 pounds occasionally, that he cannot 
 
        work above his head, cannot bend or stoop and must alternate 
 
        sitting and standing. Claimant estimated his weight on July 12, 
 
        1984 to have been approximately 360 pounds and stated that he 
 
        weighs more than that currently.
 
        
 
             Bob Wieskamp, who identified himself as having been a 
 
             welder/welding lead man for approximately nine years while 
 
             employed with defendant employer, testified he is familiar with 
 
             the OE-15 lift and had trained claimant on how to weld it. Mr. 
 
             Wieskamp estimated that completed the OE-15 weighs from 150 to 
 
             200 pounds and that it is necessary to move it around by hand in 
 
             order to get into the various positions needed to weld. Mr. 
 
             Wieskamp testified he was familiar with the welding area which he 
 
             described as the hottest part of the plant with "no ventilation 
 
             in the [welding] booth."
 
        
 
            Mr. Wieskamp explained that claimant was operating a "mig" 
 
        welder which uses shielding gas for a continuous weld and that as 
 
        a consequence of using that type of gas a welder cannot have very 
 
        much air movement. Mr. Wieskamp recalled that it was "real hot" 
 
        inside the plant on July 12, 1984 because he originally felt that 
 
        claimant had been overcome by the heat. Mr. Wieskamp 
 
        acknowledged there is a hoist in the welding booth which is used 
 
        to lift heavy objects but that the hoist would only be practical 
 
        to be used for the initial and final lifting of the OE-15 and not 
 

 
        
 
 
 
 
 
        to move it around while it is being assembled.
 
        
 
            Charles Coulter, who identified himself as an 11 plus year 
 
        employee of defendant employer's welding department, testified he 
 
        was acting as welding foreman on July 12, 1984 and had assigned 
 
        claimant the job of welding the lift frame. Mr. Coulter asserted 
 
        this was not a rush job even if it had to be done by Friday since 
 
        it generally takes less than a day to weld an OE-15 frame and 
 
        July 12 was a Tuesday or Wednesday. Mr. Coulter recalled that 
 
        after he returned from his break on July 12 he saw claimant "just 
 
        standing there" and in response to claimant's comment that he was 
 
        not feeling well, instructed claimant to go sit down. Mr. 
 
        Coulter offered that 10 to 15 minutes later he went into the 
 
        booth and was not made aware in any way that claimant was in any 
 
        distress but that approximately five minutes later claimant was 
 
        on the floor needing help. Mr. Coulter recalled July 12 being an 
 
        "average" summer day between 82 and 85 degrees, not extremely or 
 
        exceedingly hot since extra breaks had not been given.
 
        
 
            Dale Jones, an employee of defendant employer, testified to 
 
        seeing claimant on the bench with his hand on his chest in pain 
 
        approximately five to ten minutes after break. Mr. Jones 
 
        recalled the temperature being in the mid 80's, not a lot above 
 
        normal and on cross-examination acknowledged it is usually hot in 
 
        the welding booth since welders wear extra clothes.
 
        
 
            Arthur Williams, who identified himself as defendant 
 
        employer's plant superintendent, testified that he saw claimant 
 
        during a "pass through" the morning of July 12 but had no 
 
        conversation with him. Mr. Williams recalled that the 
 
        temperature was normal for that time of year, in the 80 degree 
 
        range, and that it was not exceptionally warm particularly since 
 
        the early morning hours are the coolest in the plant. Mr. 
 
        Williams opined that the OE-15's are "not that difficult to 
 
        weld," that the job was not rush or critical and that welding an 
 
        OE-15 was no more stressful than doing cylinders, which had been 
 
        claimant's usual job. Mr. Williams explained that claimant's 
 
        current job is fairly light duty with no heavy exertion, that he 
 
        is not aware of any current restrictions imposed on claimant, 
 
        that claimant is a good steady worker who did a quality job on 
 
        weldments and that he is not aware of any reason why claimant 
 
        could not continue to do his job.
 
        
 
             Mike Black, who identified himself as defendant employer's 
 
             personnel manager, testified to his recollection of the 
 
             circumstances surrounding claimant's transfer to the hospital and 
 
             that the day was warm with no recollection of it being extremely 
 
             or excessively hot. Mr. Black explained that it is his 
 
             responsibility to monitor all workers' compensation claims and 
 
             that it was not until March 1986 that he became aware claimant 
 
             was asserting an injury arising out of and in the course of his 
 
             employment. Mr. Black stated that although he was not aware 
 
             claimant was under any medical restrictions, any restrictions 
 
             imposed would not jeopardize claimant's current employment.
 
        
 
            Michael Ryan, who identified himself as a welder employed by 
 
        defendant employer, testified claimant called out to him that he 
 
        was feeling ill and that once claimant explained he was feeling 
 
        chest pains he left to get help, assuming claimant was having a 
 
        heart attack. Mr. Ryan explained claimant developed the chest 
 
        pains while sitting down on the bench resting. Mr. Ryan 
 
        described the day as very warm but not sweltering and not 
 
        unbearably hot.
 
        
 
            Philip A. Habak, M.D., Cardiologist, who saw claimant on 
 
        referral from Marc Sink, M.D., of Muscatine Health Center, 
 

 
        
 
 
 
 
 
        succinctly summarized claimant's medical care in a letter dated 
 
        March 18, 1988 as:
 
        
 
             At 10:15 AM, the paramedics were called and he was taken to 
 
             the hospital. He was then found to be suffering from an 
 
             anteroseptal myocardial infarction. He suffered from 
 
             ventricular tachycardia and was cardioverted twice. During 
 
             his stay in the hospital, he developed post-infarction 
 
             pericarditis and subsequently had peripheral embolization to 
 
             the left lower extremity requiring endarterectomy. 
 
             Subsequently, the patient continued to complain of chest 
 
             discomfort and was transferred to Davenport for further 
 
             cardiac evaluation. Coronary anteriography was then 
 
             performed and revealed marked elevation in the left 
 
             ventricular and diastolic pressure. There was severe 
 
             coronary artery disease with 70% stenosis of the proximal 
 
             left anterior descending coronary artery. The circumflex 
 
             and right coronary artery systems were normal. There was a 
 
             recent antero-apical myocardial infarction with a left 
 
             ventricular aneurysm. Medical treatment was then pursued. 
 
             The patient, however, was hospitalized one month later with 
 
             an abscess in the left inguinal area at the site of the 
 
             embolectomy. The abscess was incised and the patient was 
 
             doing quite well until 4 days later he developed sudden 
 
             numbness involving both lower extremities. He was examined 
 
             and no pedal pulses were found on either side. Sensations 
 
             improved over the next several minutes. The patient was 
 
             then transferred to Davenport a second time. Ischemia of 
 
             the left lower extremity was noted. He was then taken to 
 
             the catheterization laboratory and after baseline 
 
             anteriography was performed through the right femoral 
 
             approach, streptokinase was administered starting at the 
 
             dose of 10,000 units per hour. The patient was returned to 
 
             the intensive care unit and the streptokinase infusion was 
 
             continued for 30 hours and had to be terminated eventually 
 
             on account of a febrile reaction. Following the infusion it 
 
             was noted that the patient developed good pulses on the 
 
             right side while on the left side pedal pulses were still 
 
             absent. Peripheral arteriograms were repeated on, September 
 
             11th, and demonstrated a thrombus in the distal left 
 
             external iliac artery and proximal left common femoral 
 
             artery. There was a thrombus in the distal common femoral 
 
             artery and proximal superficial femoral artery with near 
 
             total occlusion of the deep femoral system, occlusion of the 
 
             left popliteal artery with reconstitution of flow was also 
 
             present. The patient was subsequently anti-coagulated with 
 
             Heparin and was eventually maintained on Coumadin. On 
 
             account of difficulty drawing blood for a prothrombin time, 
 
             a port-a-cath was then inserted. He did well subsequently, 
 
             but developed an infection in the port-a-cath with 
 
             bacteremia and osteomyelitis. He was hospitalized in Iowa 
 
             City at that time and was maintained on antibiotics for 6 
 
             weeks. More recently, the patient has felt better and has 
 
             been able to work without significant chest pains or 
 
             shortness of breath. The patient notes that his left leg 
 
             does not hurt as long as he goes at his own pace and walks 
 
             slowly. The patient has learned to live within the limits 
 
             of his disability. He has no history of rheumatic fever or 
 
             scarlet fever and denies hypertension and diabetes.
 
        
 
        (Claimant's Exhibit 3)
 
        
 
             On November 30, 1987, Dr. Habak opined:
 
             
 
             I have since reviewed Mr. Anderson's records. It appears 
 
             that he suffered from a myocardial infarction or heart 
 

 
        
 
 
 
 
 
             attack while performing relatively strenuous activities at 
 
             work. Although underlying coronary artery disease must be 
 
             present to lead to the patient's heart condition. [sic] It 
 
             is apparent the heart attack was precipitated or accelerated 
 
             by the activity the patient was involved at that time. It 
 
             is also possible that this activity would have accelerated 
 
             the coronary event Mr. Anderson suffered from on July 12th, 
 
             1984.
 
             
 
                  Thus, in my opinion, Mr. Anderson's heart attack was 
 
                      precipitated by the exertion performed at work and this may 
 
                      have been aggravated by the fact that he continued to work 
 
                      after the onset of symptoms.
 
             
 
        (Cl. Ex. l)
 
        
 
             When questioned by defendants' counsel, Dr. Habak 
 
             acknowledged claimant never personally described to him 
 
             specifically what activity he was performing at work when his 
 
             problems developed and that the information he got concerning 
 
             claimant's work came from claimant's counsel. Dr. Habak 
 
             concluded his opinion by testifying:
 
        
 
             Q. Your opinion that you gave me then in your letter of 
 
             November 30th of '87, have you heard anything here that 
 
             would substantially change that opinion?
 
             
 
             A. Well, I think that letter was based on my assumption 
 
             that he was doing a moderately heavy exertion in a warm 
 
             environment.
 
             
 
             Q. Okay.
 
             
 
             A. And it sounds from what Mr. Shepler said that this may 
 
             not be entirely or at least it requires additional checking 
 
             into.
 
             
 
             Q. That would be a matter, I guess, that the judge would 
 
             have to determine.
 
             
 
             A. Yeah.
 
             
 
             Q. But if it's established that this was true, that he was 
 
             exerting himself moderately and it was a hot environment, 
 
             then the judge would be justified in accepting --
 
        
 
             A. Could I say as.to why I made this statement?
 
             
 
             Q. Sure.
 
             
 
             A. At least why my opinion was such. I may perhaps pass 
 
             this on and you can review what I have underlined in yellow. 
 
             That might explain my general feeling there.
 
             
 
             Q. I think that's fair enough and I think that what you're 
 
             saying is that the facts that we've discussed have to be 
 
             decided by the judge at the hearing?
 
             
 
             A. Obviously, yes.
 
             
 
        (Philip A. Habak Deposition; Cl. Ex. 2, pp. 51-52))
 
        
 
             Dr. Habak then provided counsel with an excerpt entitled 
 
             "Assessment of Causality" from an unknown source.
 
             
 
             On July 3, 1986, Marc Sink, M.D., Internal Medicine, who saw 
 

 
        
 
 
 
 
 
             claimant after his admission to Muscatine Hospital, opined:
 
        
 
                  The cause for Mr. Anderson's heart attack was 
 
                      atherosclerorotic heart disease. I do not feel this was a 
 
                      work-related phenomenon. Mr. Anderson had or has multiple 
 
                      risk factors for coronary disease including the following: 
 
                      l) smoking; 2) family history; 3) massive obesity.
 
             
 
        (Defendants' Exhibit A)
 
        
 
                            APPLICABLE LAW AND ANALYSIS
 
             
 
             An employee is entitled to compensation for any and all 
 
             personal injuries which arise out of and in the course of the 
 
             employment. Section 85.3(1).
 
             
 
             The claimant must prove by a preponderance of the evidence 
 
             that his injury arose out of and in the course of his employment. 
 
             Musselman v. Central Telephone Co., 261 Iowa 352, 154 N.W.2d 128 
 
             (1967).
 
             
 
             In the course of employment means that the claimant must 
 
             prove his injury occurred at a place where he reasonably may be 
 
             performing his duties. McClure v. Union, et al., Counties, 188 
 
             N.W.2d 283 (Iowa 1971).
 
        
 
             Arising out of suggests a causal relationship between the 
 
             employment and the injury. Crowe v. DeSoto Consolidated School 
 
             District, 246 Iowa 402, 68 N.W.2d 63 (1955).
 
        
 
             The supreme court of Iowa in Almquist v. Shenandoah 
 
             Nurseries, 218 Iowa 724, 254 N.W. 35 (1934) at 731-32, 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 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.
 
             
 
             
 

 
        
 
 
 
 
 
             As cited above in Crowe, there must be a causal relationship 
 
             between the employment and the alleged injury.
 
             
 
             The claimant has the burden of proving by a preponderance of 
 
             the evidence that the injury of July 12, 1984 is causally related 
 
             to the disability on which he now bases his claim. Bodish v. 
 
             Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867 (1965). Lindahl v. 
 
             L.O. Boggs, 236 Iowa 296, 18 N.W.2d 607 (1945). A possibility is 
 
             insufficient; a probability is necessary. Burt v. John Deere 
 
             Waterloo Tractor Works, 247 Iowa 691, 73 N.W.2d 732 (1955). The 
 
             question of causal connection is essentially within the domain of 
 
             expert testimony. Bradshaw v. Iowa Methodist Hospital, 251 Iowa 
 
             375, 101 N.W.2d 167 (1960).
 
        
 
             Expert medical evidence must be considered with all other 
 
             evidence introduced bearing on the causal connection. Burt, 247 
 
             Iowa 691, 73 N.W.2d 732. The opinion of experts need not be 
 
             couched in definite, positive or unequivocal language. Sondag v. 
 
             Ferris Hardware, 220 N.W.2d 903 (Iowa 1974). However, the expert 
 
             opinion may be accepted or rejected, in whole or in part, by the 
 
             trier of fact. Id. at 907. Further, the weight to be given to 
 
             such an opinion is for the finder of fact, and that may be 
 
             affected by the completeness of the premise given the expert and 
 
             other surrounding circumstances. Bodish, 257 Iowa 516, 133 
 
             N.W.2d 867. See also Musselman, 261 Iowa 352, 154 N.W.2d 128.
 
        
 
            While a claimant is not entitled to compensation for the 
 
        results of a preexisting injury or disease, the mere existence at 
 
        the time of a subsequent injury is not a defense. Rose v. John 
 
        Deere Ottumwa Works, 247 Iowa 900, 908, 76 N.W.2nd 756, (1956). 
 
        If the claimant had a preexisting condition or disability that is 
 
        aggravated, accelerated, worsened or lighted up so that it 
 
        results in disability, claimant is entitled to recover. Nicks v 
 
        Davenport Produce Co., 254 Iowa 130, 115 N.W.2d 812, (1962).
 
        
 
            When an aggravation occurs in the performance of an 
 
        employer's work and a causal connection is established, claimant 
 
        may recover to the extent of the impairment. Ziegler v. United 
 
        States Gypsum Co., 252 Iowa 613, 620, 106 N.W.2d 591,    (1960).
 
        
 
            The Iowa Supreme Court cites, apparently with approval, the 
 
        C.J.S. statement that the aggravation should be material if it is 
 
        to be compensable. Yeager v. Firestone Tire & Rubber Co., 253 
 
        Iowa 369, 112 N.W.2d 299 (1961); 100 C.J.S. Workmen's 
 
        Compensation section 555(17)a.
 
        
 
            As the question of causal connection is essentially within 
 
        the domain of expert testimony, review is first given to the 
 
        medical records and testimony submitted. Initially, it is 
 
        accepted that there can be no dispute that claimant had a 
 
        myocardial infarction on July 12, 1987, that the myocardial 
 
        infarction occurred while he was at work, and that cardiovascular 
 
        disease was the underlying cause and the cardiovascular disease 
 
        itself was not caused by the work. Therefore, the issue may more 
 
        properly be phrased as whether or not the work aggravated, 
 
        accelerated, worsened or lightened up claimant's underlying 
 
        cardiovascular disease so as to precipitate the myocardial 
 
        infarction which occurred on July 12, 1984.
 
        
 
            Dr. Sink, who was claimant's initial treating physician, 
 
        opined that the cause of claimant's heart attack was 
 
        atherosclerotic heart disease which was not a work-related 
 
        phenomenon. Although Dr. Sink's credentials are not subject to 
 
        question, he does not appear to have the cardiac training that 
 
        Dr. Habak has exhibited. Dr. Sink specifically opined that 
 
        claimant's heart attack was not a work-related phenomenon.
 

 
        
 
 
 
 
 
        
 
             Dr. Habak originally opined that claimant's underlying 
 
             coronary artery disease was accelerated and his heart attack was 
 
             precipitated by the activity claimant was involved in at work. 
 
             Yet, Dr. Habak got no work history from claimant as to the work 
 
             claimant was actually doing at the time of the onset of his 
 
             symptoms. Dr. Habak was operating on the understanding that 
 
             claimant suffered his heart attack "while performing relatively 
 
             strenuous activities at work." Yet, as Dr. Habak's deposition 
 
             progressed, it is clear to the undersigned that Dr. Habak had no 
 
             clear understanding of what claimant was doing at the time of the 
 
             onset of his symptoms. Dr. Habak's final opinion appears to be 
 
             that if the undersigned should conclude claimant was engaged in 
 
             "moderately heavy exertion in a warm environment" then the 
 
             myocardial infarction would be causally connected to the work. 
 
             While it is a well set principle in Iowa law that the expert's 
 
             opinion need not be couched in definite, positive or unequivocal 
 
             language, the undersigned finds Dr. Habak's opinion to be so 
 
             equivocal as to fail to constitute any dependable opinion on the 
 
             question of causal connection. As cited above in Burt, a 
 
             possibility of causal connection is insufficient, a probability 
 
             is necessary. Dr. Habak's opinion allows only for the 
 
             possibility that the heart attack was precipitated by the work 
 
             performed. This does not constitute an opinion within a 
 
             reasonable degree of medical certainty and does not lead the 
 
             undersigned to the conclusion that the myocardial infarction was 
 
             probably caused by the work. As such, the undersigned cannot 
 
             rely on the opinion. Dr. Habak does attempt to explain his 
 
             equivocation by referring to the excerpt entitled "Assessment of 
 
             Causality." However, without some reference to the source of 
 
             these three pages, without the complete article, without some 
 
             reference to exactly what Dr. Habak was pointing out, the 
 
             validity of the information found therein simply cannot be 
 
             evaluated. Therefore, it is concluded that claimant has failed 
 
             to meet his burden of establishing that a medical causation 
 
             exists between his myocardial infarction and his employment and 
 
             it cannot be concluded that the work on July 12, 1984 acted 
 
             extraneously to the natural processes of nature so as to impair 
 
             claimant's health as contemplated by Almquist, supra. The 
 
             evidence in this case would show that it just as likely claimant 
 
             would have suffered the myocardial infarction had he not been 
 
             working. As the court stated in Newman v. John Deere Ottumwa 
 
             Works, 372 N.W.2d 199 (Iowa 1985) with regard to a nervous 
 
             injury: "We find no cases which permit recovery when employment 
 
             merely provides a stage" for the injury. The undersigned here 
 
             would conclude that the employment merely provided a stage for 
 
             claimant's heart attack. Accordingly, claimant has failed to 
 
             establish he sustained an injury which arose out of and in the 
 
             course of his employment and he shall take nothing further from 
 
             these proceedings. The other issues raised, therefore, need not 
 
             be addressed.
 
        
 
                                 FINDINGS OF FACT
 
        
 
             Wherefore, based on all of the evidence presented, the 
 
             following findings of fact are made:
 
        
 
            1. While at work on July 12, 1984, claimant began 
 
        experiencing symptoms consistent with those of a heart attack.
 
        
 
            2. Claimant was hospitalized and found to be suffering an 
 
        anteroseptal myocardial infarction.
 
        
 
            3. Claimant was found to have severe coronary artery 
 
        disease with 70 percent stenosis of the proximal left anterior 
 
        descending coronary artery.
 

 
        
 
 
 
 
 
        
 
            4. Marc Sink, M.D., Internal Medicine, opined that 
 
        claimant's heart attack was not a work-related phenomenon but was 
 
        caused by arterial sclerotic heart disease.
 
        
 
            5. Philip A. Habak, M.D., Cardiologist, rendered varying 
 
        opinions on the issues of causal connection.
 
        
 
            6. Dr. Habak's opinion was so equivocal so as to fail to 
 
        constitute a dependable opinion on the question of causal 
 
        connection.
 
        
 
            7. Claimant has failed to show that his myocardial 
 
        infarction constituted an injury arising out of and in the course 
 
        of his employment.
 
        
 
                                 CONCLUSION OF LAW
 
        
 
             Therefore, based on the principles of law previously stated, 
 
             the following conclusion of law is made:
 
        
 
            Claimant failed to establish he sustained an injury on July 
 
        12, 1984 which arose out of and in the course of his employment 
 
        or that the illness with which he has been diagnosed is causally 
 
        related to his employment.
 
        
 
                                      ORDER
 
        
 
             THEREFORE, it is ordered:
 
        
 
            Claimant shall take nothing as a result of these 
 
        proceedings.
 
        
 
            Costs are assessed against defendants pursuant to Division 
 
        of Industrial Services Rule 343-4.33.
 
        
 
             Signed and filed this 14th day of February, 1989.
 
             
 
             
 
             
 
             
 
             
 
                                       DEBORAH A. DUBIK
 
                                       DEPUTY INDUSTRIAL COMMISSIONER
 
        
 
        Copies to:
 
        
 
        Mr. David W. Newell
 
        Attorney at Law
 
        323 East Second Street
 
        P.O. Box 175
 
        Muscatine, IA 52761
 
        
 
        Mr. Larry L. Shepler
 
        Attorney at Law
 
        Ste 102, Executive Sq.
 
        400 Main St.
 
        Davenport, IA 52801-1550
 
        
 
        
 
 
        
 
 
 
 
 
        
 
        
 
                                       1108.10; 1402.20; 2202
 
                                       Filed February 14, 1989
 
                                       Deborah A. Dubik
 
        
 
                    BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
        
 
        
 
        CARL A. ANDERSON,
 
        
 
            Claimant,                        File No. 825104
 
        
 
        vs.
 
                                             A R B I T R A T I O N 
 
                                           INDUSTRIES/PRIME MOVER CO.,
 
        
 
            Employer,                        D E C I S I O N
 
        
 
        and
 
        
 
        THE HARTFORD INSURANCE COMPANY,
 
        
 
             Insurance Carrier,
 
             Defendants.
 
             
 
             
 
        1108.10; 1402.20; 2202
 
        
 
             Claimant's heart attack not found to be an injury arising 
 
             out of or in the course of his employment. Medical evidence was 
 
             insufficient to establish causation.
 
             
 
        
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                     
 
                    BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         LARRY GEMMING,
 
         
 
              Claimant,                               FILE NO. 825105
 
         
 
         vs.                                      A R B I T R A T I O N
 
         
 
         CONSOLIDATED PACKAGING CORP.,                D E C I S I O N
 
         
 
         and
 
         
 
         LIBERTY MUTUAL INSURANCE
 
         COMPANY,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
                                   INTRODUCTION
 
         
 
              This is a proceeding in arbitration brought by the claimant, 
 
         Larry Gemming, against his employer, Consolidated Packaging 
 
         Corp., and its insurance carrier, Liberty Mutual Insurance 
 
         Company, to recover benefits under the Iowa Workers' Compensation 
 
         Act as a result of an injury sustained May 8, 1986.  This matter 
 
         came on for hearing before the undersigned deputy industrial 
 
         commissioner in Burlington, Iowa, on March 18, 1987.  The record 
 
         was considered fully submitted at close of hearing.  A first 
 
         report of injury was filed June 18, 1986.
 
         
 
              The record in this proceeding consists of the  stipulations
 
         of the parties and of defendants' exhibits 1 through 3. Claimant 
 
         appeared through his counsel but not personally.  Defendants' 
 
         exhibit 1 is the deposition of Edward J. DeLashmutt, M.D., taken 
 
         December 1, 1986.  Defendants' exhibit 2 is a medical report of 
 
         Artemio C. Santiago, M.D., of June 26, 1986.  Defendants' exhibit 
 
         3 is.an employee absentee report for claimant.
 
         
 
                                      ISSUES
 
         
 
              At hearing, the parties stipulated that claimant received an 
 
         injury on May 8, 1986 which arose out of and in the course of his 
 
         employment.  They stipulated that claimant's injury was causally 
 
         related to temporary total disability to claimant from June 26, 
 
         1986 to August 11, 1986.  They further stipulated that claimant 
 
         has been paid all temporary total disability benefits due him at 
 
         the stipulated rate of $234.15. They further stipulated that 
 
         claimant has been paid all medical benefits due claimant
 
         and that claimant has no permanent partial impairment causally 
 
         related to his injury and that claimant is not entitled to any 
 
         award of industrial disability as a result of his injury.  The 
 
         parties asked that an order be entered relative to the above 
 

 
         
 
         
 
         
 
         GEMMING V. CONSOLIDATED PACKAGING CORP.
 
         Page   2
 
         
 
         
 
         stipulations.
 
         
 
                           REVIEW OF THE EVIDENCE
 
         
 
              Claimant sustained a left inguinal hernia, both direct and 
 
         indirect.  Each can be associated with lifting.  Dr. DeLashmutt 
 
         operated on claimant on June 27, 1986 and released him to return 
 
         to work on August 11, 1986.  Dr. DeLashmutt testified that 
 
         claimant should be able to return to his presurgery employment 
 
         provided that he bends with his knees as opposed to bending over 
 
         without relaxing the muscles.  He opined that claimant did not 
 
         have any permanent "disability" on account of his hernia repair.  
 
         Per the stipulation of the parties and per exhibit 3, claimant 
 
         has returned to work since August 11, 1986 and has continued to 
 
         work but for vacation time and time off for reasons other than 
 
         his hernia repair.
 
         
 
                           APPLICABLE LAW AND ANALYSIS
 
         
 
              The evidence presented is consistent with the stipulations 
 
         reached by the parties as regards the legal issues.  Therefore, 
 
         an analysis is not warranted.
 
         
 
                                 FINDINGS OF FACT
 
         
 
              THEREFORE, IT IS FOUND:
 
         
 
              Claimant sustained a left inguinal hernia on or about May 
 
         18, 1986.
 
         
 
              Claimant received surgical repair of the hernia on June 27, 
 
         1986.
 
         
 
              Claimant was released for work on August 11, 1986.
 
         
 
              Claimant has continued to work for his employer from that 
 
         date but for vacation time or time missed for reasons other than 
 
         his inguinal hernia.
 
         
 
              Claimant sustained no permanent partial impairment as a
 
         result of the inguinal hernia.
 
         
 
                                CONCLUSIONS OF LAW
 
         
 
              THEREFORE, IT IS CONCLUDED:
 
         
 
              Claimant has not established that his injury of May 8, 1986 
 
         is causally related to any permanent partial disability on which
 
         
 
         he bases his claim.
 
         
 
              Claimant is not entitled to an award Of permanent partial 
 
         disability benefits.
 
         
 
                                      ORDER
 
         
 
              THEREFORE, IT IS ORDERED:
 
         
 
              That claimant take nothing further from this proceeding.
 
         
 

 
         
 
         
 
         
 
         GEMMING V. CONSOLIDATED PACKAGING CORP.
 
         Page   3
 
         
 
         
 
              Claimant pay the costs of this proceeding pursuant to 
 
         Division of Industrial Services Rule 343-4.33, formerly 
 
         Industrial Commissioner Rule 500-4.33.
 
         
 
              Signed and filed this 31st day of March, 1987.
 
         
 
         
 
         
 
         
 
         
 
                                       HELEN JEAN WALLESER
 
                                       DEPUTY INDUSTRIAL COMMISSIONER
 
          
 
          Copies to:
 
          
 
          Mr. James P. Hoffman
 
          Attorney at Law
 
          P.O. Box 1066
 
          Middle Road
 
          Keokuk, Iowa 52632
 
          
 
          Mr. Walter F. Johnson
 
          Attorney at Law
 
          P.O. Box 716
 
          111 W. Second St.
 
          Ottumwa, Iowa 52501
 
         
 
         
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                                      NO HEADNOTE NUMBER
 
                                                      Filed 3-31-87
 
                                                      Helen Jean Walleser
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         LARRY  GEMMING,
 
         
 
              Claimant,
 
         
 
         VS.                                          File No. 825105
 
         
 
         CONSOLIDATED PACKAGING CORP.,            A R B I T R A T I O N
 
         
 
              Employer,                               D E C I S I O N
 
         
 
         and
 
         
 
         LIBERTY MUTUAL INSURANCE,
 
         COMPANY,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         
 
         
 
              Claimant did not appear for hearing.  Counsel stipulated no 
 
         permanent partial disability due claimant.  Order entered so 
 
         stating.
 
 
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                    BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         FRANCES E. GRANT,
 
         
 
              Claimant,
 
         
 
         vs.
 
                                                  File No. 825107
 
         ROYAL NEIGHBORS OF AMERICA,
 
                                               A R B I T R A T I O N
 
              Employer,
 
                                                  D E C I S I O N
 
         and
 
         
 
         CHUBB GROUP,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         
 
                                   INTRODUCTION
 
         
 
              This is a proceeding in arbitration brought by the claimant, 
 
         Frances E. Grant, against her employer, Royal Neighbors of 
 
         America, and its insurance carrier, The Chubb Group of Insurance 
 
         Companies, to recover benefits under the Iowa Workers' 
 
         Compensation Act as the result of an injury sustained July 9, 
 
         1984.  This matter came on for hearing before the undersigned 
 
         deputy industrial commissioner at Davenport, Iowa on February 25, 
 
         1988.  A first report of injury was filed on November 30, 1987.  
 
         The record in this proceeding consists of the testimony of 
 
         claimant, of Don Leroy Grant and of Delores Guy, as well as of 
 
         joint exhibits 1 through 25.
 
         
 
                                      ISSUES
 
         
 
              Pursuant to the pre-hearing report, the parties stipulated 
 
         that claimant's rate of weekly compensation, in the event of an 
 
         award, is $146.48; that claimant has not returned to work since 
 
         her injury; that the provider of medical services would testify 
 
         that medical costs were fair and reasonable; that claimant did 
 
         receive an injury which arose out of and in the course of her 
 
         employment on the alleged injury date; and, that there is a 
 
         causal relationship between that injury and temporary total 
 
         disability, which temporary total disability has been paid in the 
 
         amount of 75.6 weeks.  The issues remaining for resolution are:
 
         
 
              1.  Whether there is a causal relationship between the 
 
         alleged injury and claimed permanent partial disability;
 
         
 
              2.  Whether claimant is entitled to benefits and the 
 
         nature and extent of such benefit entitlement, including any 
 
         entitlement to additional temporary total disability or any 
 

 
         
 
         
 
         
 
         GRANT V. ROYAL NEIGHBORS OF AMERICA
 
         PAGE   2
 
         
 
         
 
         entitlement to permanent partial disability and including the 
 
         related question of whether claimant is an odd-lot employee 
 
         under the Guyton doctrine; and,
 
         
 
              3.  Whether claimant is entitled to payment of certain 
 
         medical expenses under section 85.27 as expenses related to 
 
         reasonable and necessary medical care causally related to 
 
         claimant's injury and authorized by defendants.
 
         
 
         
 
                               REVIEW OF THE EVIDENCE
 
         
 
              Claimant was born on May 11, 1936 and is married with five 
 
         grown children.  Apparently, one child died in a house fire in 
 
         1982.  Claimant has completed eighth grade and has worked in a 
 
         machine job as a punch press operator.  She characterized such as 
 
         a sitting job in which she lifted weights of five pounds.  
 
         Claimant has also worked as a waitress, a dietary aide and a 
 
         cook.  She.was last employed at Royal Neighbors as the second 
 
         cook in which job she did cleanup, food preparation and prepared 
 
         the evening and any special meals for the 30 home residents and 
 
         the home staff.  Claimant stated that, at that job, she was 
 
         required to lift large pans and trays of meat and potatoes.  She 
 
         reported that she generally stood, although she might sit while 
 
         preparing vegetables.  Claimant agreed that there were elevators 
 
         between floors and that carts were available for transporting 
 
         items.
 
         
 
              Claimant was apparently off work in November, 1981 as a 
 
         result of back pain.  She also injured herself at home in 
 
         January, 1984 in a fall.  She subsequently saw Mickey J. Burt, 
 
         D.C., on April 6, 1984.  Claimant testified that, on July 9, 
 
         1984, she fell to her knees at work.  She indicated that 
 
         subsequent to that fall, she had back pain and headache which 
 
         worsened throughout the day.  She reported that she could hardly 
 
         walk the next day, that her whole body hurt and that she 
 
         subsequently did not work, but did see Dr. Burt.  Claimant 
 
         continues to treat with Dr. Burt.  She has also been examined by 
 
         Eugene Collins, M.D., a neurosurgeon, on two occasions at the 
 
         direction of the insurance carrier.  Claimant testified that Dr. 
 
         Burt has never released her to work.  She indicated that the 
 
         insurer no longer pays the costs of her chiropractic care with 
 
         Dr. Burt.
 
         
 
              Claimant characterized herself as continuing to have pain in 
 
         the legs, the low back, the thoracic back and the neck.  She 
 
         claims that she has a zigzag pattern of lights in her eyes which 
 
         developed after her fall at work, but agreed that no eye 
 
         specialist has ever related such to the work fall.  Claimant 
 
         agreed that she had seen Patrick Campbell, M.D., a psychiatrist, 
 
         for depression subsequent to the death of her son and her mother, 
 
         but reported that she had last seen Dr. Campbell in 1985.        
 
         Dr. Campbell had prescribed Xanax for claimant.  Claimant 
 
         voluntarily stopped taking that medication within four or five 
 
         weeks of hearing.
 
         
 

 
         
 
         
 
         
 
         GRANT V. ROYAL NEIGHBORS OF AMERICA
 
         PAGE   3
 
         
 
              
 
              Claimant reported that she now washes dishes, sweeps and 
 
         scrubs floors, makes beds and vacuums two times per week as well 
 
         as launders approximately once per week in her home.  She 
 
         reported that she does so even though she can stand for only two 
 
         or three minutes and then must sit for fifteen minutes to rest.  
 
         Claimant reported that she does arm and leg lifts every day and 
 
         rides her stationary bicycle each day, but reported that she 
 
         rides for only five minutes before resting.
 
         
 
              Claimant opined that she could not tolerate the lifting and 
 
         standing involved in her work at Royal Neighbors and could do 
 
         neither waitressing nor factory work.  Claimant agreed that she 
 
         has not contacted Royal Neighbors concerning a work return and 
 
         that she has not sought other work.  She attributed her lack of 
 
         such activity to the absence of a medical release and her limited 
 
         education.  She agreed that she has also not sought vocational 
 
         rehabilitation.  Claimant could not remember telling the 
 
         vocational rehabilitation specialist that she was planning to 
 
         quit her Royal Neighbors employment.  She reported that she had 
 
         not complained about sexual harassment taking place at work until 
 
         two days prior to her fall, but characterized that harassment as 
 
         being a very troubling incident.
 
         
 
              Claimant's husband, Don Leroy Grant, substantiated 
 
         claimant's testimony concerning her current life activities.
 
         
 
              Delores Guy, personnel director at Royal Neighbors, reported 
 
         that, under Royal Neighbors' management policies, an employee 
 
         must first use sick leave and then is placed on a 21-day unpaid 
 
         employee status.  The employee then must use any vacation leave 
 
         and then receives 105 days of unbenefited leave of absence.  
 
         Subsequent to the use of that 105 days, the individual is 
 
         automatically terminated.  She testified that claimant was 
 
         terminated under that policy.  She reported that claimant did 
 
         have sick leave and leave of absence remaining prior to her fall 
 
         and stated that, subsequent to the fall at work, all time off was 
 
         counted as sick leave.
 
         
 
              Eugene Collins, M.D., a neurosurgeon, testified by way of 
 
         his deposition taken January 28, 1988.  Dr. Collins indicated 
 
         that he first saw claimant on October 23, 1984 at which time she 
 
         had decreased range of motion in the neck and low back, but 
 
         lacked evidence of radiculopathy or myelopathy.  The doctor 
 
         reported that claimant's findings at that time were mostly 
 
         consistent with strain or flexion/extension injury of the lumbar 
 
         spine and possibly of the neck region.   He referred claimant to 
 
         R. J. Chesser, M.D., who performed EMG and nerve conduction 
 
         studies on November 7, 1984.  Dr. Collins indicated that Dr. 
 
         Chesser found a nominal EMG without evidence of radiculopathy or 
 
         peripheral denervating process in either lower extremity.  
 
         Claimant also had normal nerve conduction values with no findings 
 
         evidencing peripheral neuropathy.  Dr. Collins recommended that 
 
         claimant be referred to a phychiatrist for work hardening.
 
         
 
              Dr. Collins next saw claimant on March 30, 1985.  At that 
 
         time, claimant had increased range of motion of both the neck and 
 
         the lower back, but continued to have mild point tenderness over 
 
         the spinal region.  Claimant once again had a nonfocal objective 
 
         neurological exam.
 
         
 

 
         
 
         
 
         
 
         GRANT V. ROYAL NEIGHBORS OF AMERICA
 
         PAGE   4
 
         
 
              
 
              Dr. Collins opined that he felt there was a strong 
 
         possibility claimant could return to work in August, 1985 
 
         subsequent to Dr. Burt's evaluation.  He opined that claimant's 
 
         healing had plateaued at approximately May 30, 1985.  Dr. Collins 
 
         opined that, with injuries such as claimant's, the majority of 
 
         individuals will have improved within one year of injury.  Dr. 
 
         Collins stated that he found nothing on May 30, 1985 indicating 
 
         that claimant was totally, permanently disabled from performing 
 
         useful industrial work and that claimant could return to her 
 
         previous job without problems.  He did opine that claimant may 
 
         well have problems lifting greater than 50 pounds on a repetitive 
 
         basis, however.
 
         
 
              Dr. Collins opined that claimant's complaints in part were 
 
         caused by her fall at work.
 
         
 
              Mickey G. Burt, D.C., testified by way of his deposition 
 
         taken February 17, 1988.  He initially saw claimant on April 6, 
 
         1984 subsequent to her January, 1984 fall at home.  Her 
 
         complaints then were of backache, leg tingling, dizziness, 
 
         headaches and eye difficulties.  His impression was of 
 
         instability in the low back.  Conservative chiropractic care was 
 
         initiated.  Claimant was seen through July 5, 1984.  On July 5, 
 
         1984, claimant's predominant complaint was of pain and discomfort 
 
         in the thoracic back with burning sensation in the chest when she 
 
         ate.  Dr. Burt stated that, at that time, he did believe claimant 
 
         would have low back pain as her low back condition appeared to be 
 
         stabilizing.
 
         
 
              On July 10, 1984, Dr. Burt's associate, D. Bernard, D.C., 
 
         saw claimant.  At that time, claimant apparently complained of a 
 
         great deal of discomfort in the thoracic and cervical spine.  On 
 
         August 14, 1984, claimant was provided a low back support.  The 
 
         record is silent as to when claimant began to have low back 
 
         complaints.  Dr. Burt opined that such complaints as well as leg 
 
         complaints were directly from claimant's fall at work.
 
         
 
              Dr. Burt reported that he continued to treat claimant 
 
         through 1985 and that she continued to improve.  He reported 
 
         that, as of July, 1985, he felt claimant's condition was not 
 
         progressing at a satisfactory rate or had either stagnated or 
 
         stabilized.  A complete neurological exam and x-rays were 
 
         undertaken.  Dr. Burt testified that he found radiculitis 
 
         involving the sciatic nerve and other pertinent nerves relating 
 
         to the low back with irritation or ongoing inflammatory 
 
         condition.  He reported that the irritation and inflammatory 
 
         condition also involved the hip joints and sacroiliac joints.  He 
 
         reported that, subsequent to that exam, that is, as of July 24, 
 
         1986, he felt claimant would not significantly improve.
 
         
 
              Dr. Burt reported that he continues to treat claimant in 
 
         order to keep her low back stable and to avoid increased 
 
         neurological disruption or deterioration.
 
         
 
              Dr. Burt testified that, as of the time of his deposition, 
 
         claimant's low back was not as painful as it was in July, 1986, 
 
         but that claimant continued to have intermittent radiating pain 
 
         in the low back and legs.  Dr. Burt characterized claimant's 
 
         condition as spondylolisthesis of the fifth lumbar, Grade I.  He 
 
         characterized such as producing 20% permanent partial impairment 
 

 
         
 
         
 
         
 
         GRANT V. ROYAL NEIGHBORS OF AMERICA
 
         PAGE   5
 
         
 
         to the body as a whole under the AMA guides.  The doctor opined 
 
         that such was directly attributable to claimant's fall at work 
 
         and stated that he arrived at that conclusion after evaluating 
 
         x-rays taken prior to the fall.  Dr. Burt defined 
 
         spondylolisthesis as an anterior displacement of the vertebral 
 
         body and separation of the anterior motor unit and the posterior 
 
         motor unit resulting in a fracture at the pars interarticulais.  
 
         He indicated that he first noted the condition on April 6, 1984.  
 
         He opined that it was directly attributable to the work fall and 
 
         stated that he had arrived at that conclusion after evaluating 
 
         x-rays taken prior to the fall.  The doctor stated that, after 
 
         the fall of July 9, 1984, there was anterior displacement of the 
 
         fifth lumbar vertebra and a widening of the gap between the 
 
         fracture line.  He reported that the fracture line was:
 
         
 
              ... a hairline measuring possibly one millimeter, and 
 
              it separated to approximately four to five millimeters 
 
              after that fall, indicating to us that there was a 
 
              tearing of the disc, allowing the vertebra to move at 
 
              an anterior motion.
 
         
 
         The doctor reported there was also a tearing of the anterior 
 
         longitudinal ligaments as well as separation of the two motor 
 
         units causing rearrangement or distortion of the intervertebral 
 
         foramen.  The doctor stated that that situation "can create all 
 
         kinds of complications on the neurology of that area."  The 
 
         doctor indicated that it was never possible to stabilize the 
 
         fifth lumbar and end the anterior displacement.  He further 
 
         stated that it was never possible to shorten the gap between the 
 
         anterior and posterior motor units which [the doctor] felt was 
 
         directly caused by the fall at work.
 
         
 
              Dr. Burt opined that the healing phase necessary for 
 
         recovery of ligamentous structure is generally approximately six 
 
         months.  He felt that claimant's psychological problems added 
 
         additional stresses and made her case more complex and difficult 
 
         and thereby were a contributing factor in her [slow] healing 
 
         process.
 
              
 
              The doctor stated that claimant had fallen on her patio at 
 
         home on December 4, 1986 and subsequently had increased symptoms 
 
         of a burning sensation.  The doctor stated that this was a 
 
         definite exacerbation or aggravation of her condition, but 
 
         subsequently stated that it did not increase or worsen the 
 
         preexisting condition as claimant had neither leg pain nor low 
 
         back pain in March, 1987.
 
         
 
              Dr. Burt indicated that he knew claimant was a cook at a 
 
         care facility.  He characterized such as involving cooking for 
 
         several hundred people and opined it would be difficult for 
 
         claimant to do the lifting, carrying or standing involved.
 
         
 
              Claimant's left leg is apparently shorter than her right.  
 
         On April 9, 1984, Dr. Burt prescribed an insert for the left 
 
         leg.
 
         
 
              On April 26, 1985, Brent C. Nielsen, O.D., reported that he 
 
         had examined claimant's vision on March 15, 1985.  He stated 
 
         that, refractively, claimant was hyperopic and presbyopic.  
 
         Muscle balance tests revealed high exorphoria (convergence 
 
         insufficiency) at distance and near.  He reported that her vision 
 

 
         
 
         
 
         
 
         GRANT V. ROYAL NEIGHBORS OF AMERICA
 
         PAGE   6
 
         
 
         
 
         reserves to deal with such were very low creating poor fusion.
 
         
 
              William B. Hoffmann, M.D., Diplomat--American Board of 
 
         Ophthalmology, examined claimant on March 21, 1985.  On March 22, 
 
         1985, he noted an impression of hyperopia and presbyopia, but no 
 
         other ocular pathology.  He recommended a CT scan, given 
 
         claimant's persistent headaches.  A brain CT scan with contrast 
 
         of April 1, 1985 was reported as normal and showing no evidence 
 
         of focal abnormality, shift of the midline structure or 
 
         enlargement of the ventricles.
 
         
 
              On September 30, 1985, the Chubb Group of Insurance 
 
         Companies notified claimant that her temporary total disability 
 
         benefits would be terminated effective October 30, 1985, given 
 
         Dr. Collins' report that she had no objective findings of injury 
 
         neurologically and that she had reached maximum healing.
 
         
 
              On March 14, 1986, the Chubb Group of insurance Companies 
 
         advised Dr. Burt that claimant's benefits were terminated on 
 
         October 30, 1985 and that he would be paid costs of care to that 
 
         date.  The doctor had apparently submitted a bill totaling 
 
         $530.72 of which $434.72 was paid by the insurer.
 
         
 
              Douglas L. Nelson, M.S., CRC, CIRS, of North Central 
 
         Rehabilitation Service, reported that claimant had worked as a 
 
         second cook who assisted in lunch and prepared dinner for nursing 
 
         home residents.  He characterized the physical demands of that 
 
         work as light to medium, demanding up to 50 pounds of maximum 
 
         lifting with frequent lifting or carrying of objects weighing up 
 
         to 25 pounds.  Standing and walking were characterized as 
 
         required in excess of 75% of the time.  Dexterous use of the arms 
 
         and hands for reaching, holding and grasping were important job 
 
         factors.  Mr. Nelson later characterized claimant as a 
 
         vocationally skilled individual in the field of food service 
 
         work, specialized as a cook.  He characterized her as very 
 
         concerned with her physical status and concerned that she would 
 
         not be able to tolerate the standing and walking required in her 
 
         former jobs.  Complicating the orthopaedic concerns was 
 
         claimant's rather extensive psychiatric history.  Additionally, 
 
         the employer indicated that claimant had had extended absences 
 
         from work due to other health reasons.  Mr. Nelson's initial 
 
         impression was that claimant would be more suited to an 
 
         employment setting which minimized interpersonal contact, 
 
         particularly with authority figures.  She appeared to be best 
 
         suited for a position where she had distinct and refined 
 
         responsibilities with minimal changes in responsibilities.
 
         
 
              Mr. Nelson later indicated that claimant verbally expressed 
 
         a desire to return to vocational productivity, but that her 
 
         treating physician had not encouraged her to do so.  Claimant 
 
         apparently indicated she would not go back to work for Royal 
 
         Neighbors, even if offered a job.  She apparently indicated that 
 
         she was going to quit anyway, prior to her injury because of 
 
         significant employee-employer difficulties.  Claimant was 
 
         reported to have questioned whether the employer would have to 
 
         pay her compensation for the rest of her life if she were unable 
 
         to return to a position as a cook.
 
         
 
              Mr. Nelson subsequently reported that claimant continued to 
 
         complain of numerous symptoms  which her doctor of chiropractic 
 

 
         
 
         
 
         
 
         GRANT V. ROYAL NEIGHBORS OF AMERICA
 
         PAGE   7
 
         
 
         
 
         did not document or substantiate, including inability to read, 
 
         constant headaches, loss of balance, lack of strength in her legs 
 
         and inability to bear weight on her left heel.
 
         
 
              On April 10, 1985, Mr. Nelson reported that claimant 
 
         objectively regarded herself as incapable of performing any 
 
         productive activity and stated that minimal progress had been 
 
         made with regard to vocational counseling.  He characterized 
 
         claimant as remaining extremely bitter towards all parties 
 
         involved, except for Dr. Burt.  He later reported that claimant 
 
         was performing no exercises beyond walking one-half to one block 
 
         per day and that no attention was being given to control of her 
 
         weight or to weight loss which might be contributing factors to 
 
         her low back discomfort.
 
         
 
              The balance of the evidence was reviewed and considered in 
 
         the disposition of this matter.
 
         
 
         
 
                           APPLICABLE LAW AND ANALYSIS
 
         
 
              Our first concern is whether a causal relationship exists 
 
         between the alleged injury and claimed permanent partial 
 
         disability.
 
         
 
              The claimant has the burden of proving by a preponderance of 
 
         the evidence that the injury of July 9, 1984 is causally related 
 
         to the disability on which she now bases her claim.  Bodish v. 
 
         Fischer, Inc., 257 Iowa 516, 1,33 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 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, 760-761 
 
         (1956). If the claimant had a preexisting condition or disability 
 
         that is aggravated, accelerated, worsened or lighted up so that 
 
         it results in disability, claimant is entitled to recover.  Nicks 
 
         v. Davenport Produce Co., 254 Iowa 130, 115 N.W.2d 812, 815 
 
         (1962).
 
         
 
              We note initially that claimant had preexisting problems in 
 

 
         
 
         
 
         
 
         GRANT V. ROYAL NEIGHBORS OF AMERICA
 
         PAGE   8
 
         
 
         her spinal region.  She had been off work on account of back pain 
 
         in 1981 and had fallen at home in January, 1984.  She had seen 
 
         Dr. Burt for that condition from April 4, 1984 through July 5, 
 
         1984.   His impression at that time was of instability of the low 
 
         back.  After July 5, 1984, claimant saw Dr. Burt on July 10, 
 
         1984.  That was the day following her work incident.  Her 
 
         complaints at that time were quite similar to her complaints of 
 
         July 5, 1984 as both involved complaints in the thoracic area.  
 
         Additionally, on July 10, 1984, claimant was apparently 
 
         indicating she was having discomfort in the cervical area.  Given 
 
         the similarity of claimant's complaints one day after the fall 
 
         with her complaints of four days prior to the fall, it is 
 
         reasonably questionable whether such complaints related to 
 
         claimant's work fall.  The first notice of low back complaints 
 
         following the work fall is notice that on August 14, 1984 
 
         claimant was provided a low back support.  The absence of earlier 
 
         notes of such complaints and the fact that such complaints are 
 
         only noted more than a month following the work incident raises 
 
         questions as to the relationship of the low back complaints to 
 
         the work fall.  We believe it reasonable to presume that the low 
 
         back support would not have been prescribed unless the complaints 
 
         had been ongoing for at least some period of time, however.  
 
         Additionally, Dr. Burt has opined that there is a relationship 
 
         between claimant's current complaints of low back pain and her 
 
         work incident.  He states that his opinion is based on reviewing 
 
         x-rays taken both before and subsequent to the work incident.  
 
         Even given Dr. Burt's testimony, we find it difficult, given 
 
         claimant's previous history, to wholly attribute claimant's low 
 
         back problems to her work fall, however.  Dr. Collins, a 
 
         neurosurgeon, examined claimant twice.  Upon examination, he 
 

 
         
 
         
 
         
 
         GRANT V. ROYAL NEIGHBORS OF AMERICA
 
         PAGE   9
 
         
 
         found objective signs of some limitation of range of motion, both 
 
         in the neck and in the lumbar area.  He opines that claimant's 
 
         complaints, in part, were caused by her work incident, even 
 
         though he also found claimant overall had a nonfocal objective 
 
         neurological examination.  The evidence, while mixed at best, 
 
         does support Dr. Collins' finding that at least a portion of 
 
         claimant's lumbar and cervical complaints relate to her work 
 
         incident.
 
         
 
              Claimant has not shown objective evidence that her numerous 
 
         other complaints relate to her work injury.  The examinations of 
 
         Dr. Hoffmann and Dr. Nielsen as well as the brain CT scan do not 
 
         show either a head or a visual condition objectively or any 
 
         relationship of any such condition to the work incident.  
 
         Claimant has complaints of fatigue, excessive weakness, loss of 
 
         balance, lack of leg strength and an inability to bear weight on 
 
         the left heel.  The record does not substantiate that such 
 
         complaints relate to the work incident.  Furthermore, given 
 
         claimant's absence of any objective neurological findings, many 
 
         of the complaints are simply not consistent with the nature of 
 
         her injury.  It appears more possible that such either relate to 
 
         claimant's discrepancy in lower leg length or relate to 
 
         claimant's psychological state which the record reveals was one 
 
         of considerable stress and anxiety.  In any event, claimant has 
 
         not shown objective evidence of a relationship of such complaints 
 
         to her work injury.  Claimant, at best, has shown some 
 
         relationship between her work fall and her current cervical and 
 
         low back complaints.
 
         
 
              We next consider the question of the nature and extent of 
 
         claimant's benefit entitlement, including any entitlement to 
 
         additional temporary total disability or any entitlement to 
 
         permanent partial disability and including the related question 
 
         of whether claimant is an odd-lot worker under the Guyton 
 
         doctrine.
 
         
 
              Section 85.34(l), Code of Iowa, provides that healing period 
 
         benefits are payable to an injured worker who has suffered 
 
         permanent partial disability until (1) he has returned to work; 
 
         (2) is medically capable of returning to substantially similar 
 
         employment; or, (3) has achieved maximum medical recovery.  The 
 
         industrial commissioner has recognized that healing period 
 
         benefits can be interrupted or intermittent.  Willis v. Lehigh 
 
         Portland Cement Company, Vol. 2-1, State of Iowa Industrial 
 
         Commissioner Decisions, 485 (1984).
 
         
 
              Continuing to receive medical care which is maintenance in 
 
         nature does not extend the healing period beyond the point where 
 
         claimant actually stopped improving.  Armstrong Tire & Rubber Co. 
 
         v. Kubli, Iowa App. 312 N.W.2d 60 (Iowa 1981); Derochie v.City of 
 
         Sioux City, II Industrial Commissioner Report, 112 (1982).
 
         
 
              The employer terminated claimant's temporary total 
 
         disability benefits on October 30, 1985.  Dr. Collins has opined 
 
         that claimant's healing had plateaued at approximately May 30, 
 
         1985.  He also opined that the majority of individuals will have 
 
         improved within one year of an injury such as claimant's.  Dr. 
 
         Burt stated that claimant continued to improve throughout 1985, 
 
         but that her condition had stabilized on July 24, 1986.  He also 
 
         reported that claimant's psychological state could have 
 

 
         
 
         
 
         
 
         GRANT V. ROYAL NEIGHBORS OF AMERICA
 
         PAGE  10
 
         
 
         
 
         contributed to her slow progress, given that the healing phase 
 
         necessary for recovery of ligamenous structure is generally 
 
         approximately six months.  Dr. Burt continues to treat claimant 
 
         in order to keep her low back stable and to avoid increased 
 
         neurological disruption or deterioration.  While Dr. Burt opined 
 
         that claimant did not reach maximum healing until July, 1986, 
 
         there is no objective evidence in the record of significant 
 
         change in claimant's objective findings in that time frame or of 
 
         significant change or even of change in claimant's life 
 
         activities during that period which would suggest that her level 
 
         of well-being had increased from May 30, 1985 through July 24, 
 
         1986.  Given the absence of any such evidence, we rely on the 
 
         testimony of Dr. Collins that an appropriate healing phase for an 
 
         injury such as claimantOs would be approximately one year.  For 
 
         that reason, we believe that claimant had received her full 
 
         entitlement to temporary total or healing period benefits when 
 
         such benefits were terminated on October 30, 1985.
 
         
 
              We now reach the permanency question and the Guyton doctrine 
 
         question.
 
         
 
              Functional disability is an element to be considered in 
 
         determining industrial disability which is the reduction of 
 
         earning capacity, but consideration must also be given to the 
 
         injured employee's age, education, qualifications, experience and 
 
         inability to engage in employment for which he is fitted.  Olson 
 
         v. Goodyear Service Stores, 255 Iowa 1112, 125 N.W.2d 251 (1963).  
 
         Barton v. Nevada Poultry, 253 Iowa 285, 110 N.W..2d 660 (1961).
 
         
 
              A finding of impairment to the body as a whole found by a 
 
         medical evaluator does not equate to industrial disability.  This 
 
         is so as impairment and disability are not synonymous.  Degree of 
 
         industrial disability can in fact be much different than the 
 
         degree of impairment because in the first instance reference is 
 
         to loss of earning capacity and in the later to anatomical or 
 
         functional abnormality or loss.  Although loss of function is to 
 
         be considered and disability can rarely be found without it, it 
 
         is not so that a degree of industrial disability is 
 
         proportionally related to a degree of impairment of bodily 
 
         function.
 
         
 
              Factors to be considered in determining industrial 
 
         disability include the employee's medical condition prior to the 
 
         injury, immediately after the injury, and presently; the situs of 
 
         the injury, its severity and the length of healing period; the 
 
         work experience of the employee prior to the injury, after the 
 
         injury and potential for rehabilitation; the employee's 
 
         qualifications intellectually, emotionally and physically; 
 
         earnings prior and subsequent to the injury; age; education; 
 
         motivation; functional impairment as a result of the injury; and 
 
         inability because of the injury to engage in employment for which 
 
         the employee is fitted.  Loss of earnings 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 
 

 
         
 
         
 
         
 
         GRANT V. ROYAL NEIGHBORS OF AMERICA
 
         PAGE  11
 
         
 
         total value, education a value of fifteen percent of total, 
 
         motivation - five percent; work experience - thirty percent, etc.  
 
         Neither does a rating of functional impairment directly correlate 
 
         to a degree of industrial disability to the body as a whole.  In 
 
         other words, there are no formulae which can be applied and then 
 
         added up to determine the degree of industrial disability.  It 
 
         therefore becomes necessary for the deputy or commissioner to 
 
         draw upon prior experience, general and specialized knowledge to 
 
         make the finding with regard to degree of industrial disability.  
 
         See Peterson v. Truck Haven Cafe, Inc., (Appeal Decision, 
 
         February 28, 1985); Christensen v. Hagen, Inc., (Appeal Decision, 
 
         March 26, 1985).
 
         
 
              In Guyton v. Irving Jensen Co., 373 N.W.2d 101 (Iowa 1985), 
 
         the Iowa court formally adopted the "odd-lot doctrine."  Under 
 
         that doctrine a worker becomes an odd-lot employee when an injury 
 
         makes the worker incapable of obtaining employment in any well 
 
         known branch of the labor market.  An odd-lot worker is thus 
 
         totally disabled if the only services the worker can perform are 
 
         "so limited in quality, dependability, or quantity that a 
 
         reasonably stable market for them does not exist.
 
         
 
              The burden of persuasion on the issue of industrial 
 
         disability always remains with the worker.  However, when a 
 
         worker makes a prima facie case of total disability by producing 
 
         substantial evidence that the worker is not employable in the 
 
         competitive labor market, the burden to produce evidence of 
 
         suitable employment shifts to the employer.  It the employer 
 
         fails to produce such evidence and the trier of fact finds the 
 
         worker does fall in the odd-lot category, the worker is entitled 
 
         to a finding of total disability.  Id. Even under the odd-lot 
 
         doctrine, the trier of fact is free to determine weight and 
 
         credibility of evidence in determining whether the worker's 
 
         burden of persuasion has been carried, and only in an exceptional 
 
         case would evidence be sufficiently strong to compel a finding of 
 
         total disability as a matter of law.  Id.  In Guyton, the court 
 
         also stated the following regarding determination of a worker's 
 
         industrial loss.
 
         
 
                 The question is more than the one posed by the 
 
              commissioner concerning what the evidence shows Guyton 
 
              "can or cannot do." The question is the extent to which 
 
              the injury reduced Guyton's earning capacity.  This 
 
              inquiry cannot be answered merely by exploring the 
 
              limitations on his ability to perform physical activity 
 
              associated with employment.  It requires consideration 
 
              of all the factors that bear on his actual 
 
              employability.  See New Orleans (Gulfwide) Stevadores 
 
              v. Turner, 661 F.2d 1031, 1042 (5th Cir.1981) (are 
 
              there jobs in the community that the worker can do for 
 
              which he could realistically compete?)  Id.
 
         
 
                 For workmenOs (sic) compensation purposes total 
 
              disability does not mean a state of absolute 
 
              helplessness, but means disablement of an employee to 
 
              earn wages in the same kind of work, or work of a 
 
              similar nature, that he was trained for, or accustomed 
 
              to perform, or any other kind of work which a person of 
 
              his [sic] mentality and attainments could do.  Franzen 
 
              v. Blakley, 155 Neb. 621, 51 N.W.3d 833 (1952).  Total 
 

 
         
 
         
 
         
 
         GRANT V. ROYAL NEIGHBORS OF AMERICA
 
         PAGE  12
 
         
 
              and permanent disability contemplates the inability of 
 
              the workman (sic) to perform any work for which he 
 
              (sic) has the experience or capacity to perform.  Shaw 
 
              v. Gooch Feed Mill Corp., 210 Neb. 17, 312 N.W.2d 682 
 
              (1981).
 
         
 
              Initially, claimant has not shown that she is an odd-lot 
 
         worker under the Guyton doctrine.  While claimant has not 
 
         returned to work, this record does not support the finding that 
 
         claimant's lack of any work return relates to her work injury.  
 
         The record is replete with instances of claimantOs lack of good 
 
         feelings about her employer.  While claimant may well have had 
 
         good reason to bear ill will toward the employer and while the 
 
         evidence shows that claimant was ultimately terminated under the 
 
         employer's automatic termination policy, claimant's failure to 
 
         contact the employer about reemployment and her statements to 
 
         Vocational Consultant Nelson suggest that claimant did not intend 
 
         to return to employment with this employer.  Claimant, lacking 
 
         such intent, can not fairly state that her inability to return to 
 
         work for the employer wholly relates to the employer's conduct.  
 
         Additionally, claimant has not sought other work.  Claimant 
 
         attributes her failure to do so to her lack of a medical release 
 
         from Dr. Burt and her lack of sufficient formal education.  The 
 
         insurer notified claimant on September 30, 1985 that Dr. Collins 
 
         felt she had reached maximum healing.  The record does not show 
 
         that claimant made any attempts to discuss such with Dr. Burt, 
 
         her treating physician, or otherwise entertain the possibility 
 
         that she could resume some kind of meaningful employment.  
 
         Likewise, Vocational Consultant Nelson's report indicates that 
 
         claimant does have transferable job skills despite her limited 
 
         education.  Claimant apparently has made no attempt to utilize 
 
         such skills to find additional employment.  While Dr. Burt 
 
         believes claimant could not return to work as a cook in the care 
 
         facility, Dr. Collins believes that she could, albeit she might 
 
         have some difficulties dealing with weights of greater than 50 
 
         pounds.  The record indicates that Dr. Burt did not have a fair 
 
         understanding of claimantOs duties as he greatly exaggerated the 
 
         number of meals claimant would be required to prepare.  Such 
 
         suggests that his understanding of the weights she would be 
 
         lifting would also be suspect.  In any event, claimant's prior 
 
         skills could well be utilized in other work such as cook's helper 
 
         or dietary aide and she might well be able to return to factory 
 
         small parts assembly work.  Claimant has attempted none of these.  
 
         Given the above, it cannot be stated that claimant has 
 
         demonstrated that her work injury has made her incapable of 
 
         obtaining employment in any well-known branch of the labor 
 
         market.  Claimant has not shown that her injury has placed her in 
 
         a position where the only services she can perform are so limited 
 
         in quality, dependability, or quantity that a reasonably stable 
 
         market for them does not exist.
 
         
 
              Likewise, claimant has not shown permanent total disability 
 
         under more traditional standards.  She has not shown disablement 
 
         to earn wages in the same kind or similar work for which she is 
 
         trained or accustomed to perform, nor has she shown that she is 
 
         unable to obtain other work for which she has the mentality and 
 
         attainments.
 
         
 
              Claimant's degree of permanency, if any, must be assessed 
 
         under traditional factors.  We note initially that claimant had a 
 

 
         
 
         
 
         
 
         GRANT V. ROYAL NEIGHBORS OF AMERICA
 
         PAGE  13
 
         
 
         history of spinal problems prior to the injury.  Such were 
 
         present after the injury and continue to the present.  As noted, 
 
         medical opinion is that some of these relate to the work injury. 
 
          Despite claimantOs absence of a work return following her work 
 
         incident, however, it cannot be said that there was an extreme 
 
         change in her condition subsequent to the injury.  The record 
 
         indicates that claimant had had numerous work absences from 
 
         medical conditions prior to the injury; her complaints subsequent 
 
         to the injury were substantially similar to complaints prior to 
 
         the injury; her psychological state prior to and subsequent to 
 
         the injury were such as to affect appropriate healing and 
 
         apparently work return as well.  For that reason, while 
 
         claimant's state of well-being changed subsequent to the injury 
 
         and on account of the injury, that change, and that portion of 
 
         claimant's present state of ill-being, properly attributable to 
 
         her injury is modest at best.  Claimant's work experience both 
 
         prior to and after her injury is substantially the same.  As 
 
         noted above, claimant does have transferable skills and the 
 
         objective evidence suggests that, were claimant so motivated, she 
 
         could seek and find employment using such skills.  Claimant's 
 
         potential for rehabilitation appears limited by her psychological 
 
         problems and her absence of insight into her condition as well as 
 
         by her limited formal education.  However, such is balanced by 
 
         the fact that claimant has current job skills which she could 
 
         well be utilizing.  Claimant is a middle-aged worker.  As she has 
 
         not returned to work, we have no evidence of what earnings would 
 
         be subsequent to her injury.  Claimant was employed in 
 
         minimum-skill positions prior to injury and likely would return 
 
         to such positions, however.  Therefore, the record does not 
 
         support a finding that claimant's potential for earnings has been 
 
         significantly reduced by her work injury.  On the other hand, 
 
         claimant's 50-pound weight restriction will limit her from some 
 
         jobs she might have obtained prior to her injury.  As noted, 
 
         claimant appears to have continuing psychological problems which 
 
         impede her functioning in the world.  Those problems apparently 
 
         affect her motivation to work.  While we sympathize with 
 
         claimant's position, her absence of motivation for psychological 
 
         reasons unrelated to her work incident must be considered in 
 
         assessing claimant's loss of earning capacity.  Likewise, while 
 
         claimant's employer terminated her, pursuant to an automatic 
 
         termination policy, the employerOs unwillingness to accommodate 
 
         the work-related nature of claimant's long-term absence is also a 
 
         factor to be considered in assessing industrial disability.  
 
         Additionally, no physician has imposed permanent partial 
 
         impairment ratings for claimant.  As noted above, the similarity 
 
         of claimant's complaints before and subsequent to her work 
 
         incident would suggest that the impairment attributable to the 
 
         work incident is modest.  Likewise, Dr. Collins has indicated 
 
         claimant could return to her former employment.  As claimant's 
 
         only objective restriction is the 50-pound lifting restriction 
 
         and as claimant has not shown other significant infringement on 
 
         her earning capacity subsequent to her work injury, we find that 
 
         the record supports a finding of a loss on earning capacity of 
 
         10% on account of the work injury.
 
         
 
              We next consider the question of payment of medical costs.
 
         
 
              Section 85-27 provides that the employer must provide 
 
         reasonable and necessary medical care for an injury for which the 
 
         employer is liable.  In turn, the employer is allowed to choose 
 

 
         
 
         
 
         
 
         GRANT V. ROYAL NEIGHBORS OF AMERICA
 
         PAGE  14
 
         
 
         the care provided.  The employee may seek alternate care in an 
 
         emergency situation, however.  Apparently, the costs at issue are 
 
         unpaid costs of Dr. Burt rendered after September 30, 1985.  On 
 
         March 14, 1986, the insurer advised Dr. Burt that he would not be 
 
         paid costs of care to claimant after the date her benefits were 
 
         terminated, that is, October 30, 1985.  The insurer then paid Dr. 
 
         Burt $434.72 representing partial payment of a total bill of 
 
         $530.72.  Nothing on this record suggests that Dr. Burt could 
 
         have been made aware that treatment he had rendered was not 
 
         authorized by the employer prior to the date of the March 14, 
 
         1986 letter.  Likewise, nothing suggests that claimant was 
 
         advised that care from Dr. Burt would not be allowed prior to 
 
         March 14, 1986.  Payment of those costs for care of Dr. Burt 
 
         rendered prior to that notice is therefore appropriate.  Payment 
 
         of the additional $96.00 of the submitted bill is ordered.  It is 
 
         unclear on this record whether Dr. Burt is claiming payment or 
 
         whether claimant is claiming a right to reimbursement of costs 
 
         with Dr. Burt subsequent to March 14, 1986.  We note, however, 
 
         that Dr. Burt was advised on March 14, 1986 that his care of 
 
         claimant was no longer authorized.  This record has not shown 
 
         that such care was reasonable and necessary care related to 
 
         claimant's compensable condition and sought in an emergency 
 
         situation.  Therefore, claimant is not entitled to any 
 
         reimbursement of costs with Dr. Burt after March 14, 1986.
 
         
 
         
 
                                 FINDINGS OF FACT
 
         
 
              WHEREFORE, IT IS FOUND:
 
         
 

 
         
 
         
 
         
 
         GRANT V. ROYAL NEIGHBORS OF AMERICA
 
         PAGE  15
 
         
 
              
 
              Claimant was off work on account of back pain in 1981.
 
         
 
              Claimant fell at home in January, 1984.
 
         
 
              Claimant saw Dr. Burt, a chiropractic physician, on April 6, 
 
         1984 and through July 5, 1984 subsequent to that home fall.
 
         
 
              Dr. Burt's impression on April 6, 1984 was of instability of 
 
         the low back.
 
         
 
              On July 5, 1984, claimant had complaints in the thoracic 
 
         spine.
 
         
 
              Claimant fell at work on July 9, 1984.
 
         
 
              Claimant saw Dr. Burt on July 10, 1984 with complaints in 
 
         the thoracic and cervical area.
 
         
 
              Claimant did not return to work subsequent to the July 9, 
 
         1984 fall.
 
         
 
              On August 14, 1984, a low back support was provided 
 
         claimant.
 
         
 
              Dr. Burt continues to treat claimant.
 
         
 
              Dr. Collins, a neurosurgeon, examined claimant twice.
 
         
 
              Dr. Collins found limited range of motion in the low back 
 
         and the cervical area.
 
         
 
              Dr. Collins overall found that claimant had a nonfocal 
 
         objective neurological exam.
 
         
 
              Claimant's low back and cervical complaints, in part, relate 
 
         to her work incident.
 
         
 
              Claimant has no visual or eye condition objectively related 
 
         to her work injury as evidenced by examinations of Dr. Hoffmann 
 
         and Dr. Nielsen and as evidenced by brain CT scan.
 
         
 
              Claimant has had psychological problems, both prior to and 
 
         subsequent to her work injury.
 
         
 
              Claimant has complaints of fatigue, excessive weakness, loss 
 
         of balance, lack of leg strength and inability to bear weight on 
 
         the left heel.
 
         
 
              Such complaints are not consistent with the nature of 
 
         claimant's injury, given the absence of neurologically objective 
 
         findings.
 
         
 
              Claimant has a length discrepancy in the lower extremities.
 
         
 
              Claimant's employer terminates' claimant under a standard 
 
         policy requiring automatic termination after substantial employee 
 
         absence.
 
         
 
              That claimant was off on a work-related injury was not 
 
         considered in assessing the appropriateness of automatic 
 

 
         
 
         
 
         
 
         GRANT V. ROYAL NEIGHBORS OF AMERICA
 
         PAGE  16
 
         
 
         
 
         termination under the policy.
 
         
 
              Claimant has not contacted the employer regarding return to 
 
         employment.
 
         
 
              Claimant has not sought vocational rehabilitation.  Claimant 
 
         has not sought other employment.
 
         
 
              Claimant had difficulties with the employer prior to her 
 
         work injury and was considering voluntary termination of her 
 
         employment prior to the work injury.
 
         
 
              Claimant is a middle-aged worker.
 
         
 
              Claimant has completed the eighth grade.
 
         
 
              Claimant has prior work experience as a punch press 
 
         operator, a waitress, a dietary aide and a cook.
 
         
 
              Claimant worked at Royal Neighbors as a second cook 
 
         preparing meals for approximately 30 residents and staff.
 
         
 
              Claimant's job required sitting, standing and lifting of 
 
         pans and trays of meat and potatoes.
 
         
 
              Claimant had access to an elevator for between floor 
 
         activities and carts were available for conveying items.
 
         
 
              Claimant currently would have difficulty with lifting 50 
 
         pounds or more.
 
         
 
              Claimant has had a modest change in her cervical and low 
 
         back conditions on account of her work incident.
 
         
 
              No doctor has assigned claimant a permanent partial 
 
         impairment rating.
 
         
 
              Claimant is not well-motivated to return to work or to seek 
 
         vocational rehabilitation.
 
         
 
              Claimant has transferable work skills in the food 
 
         preparation area.
 
         
 
              Claimant has sustained a loss of earnings of 10%.
 
         
 
              Claimant is not an odd-lot worker.
 
         
 
              The normal recovery period for an injury such as claimant's 
 
         is six months to one year.
 
         
 
              Claimant had reached maximum medical healing as of May 30, 
 
         1985.
 
         
 
              Dr. Burt was advised that his care was no longer authorized 
 
         on March 14, 1986.
 
         
 
              Care of Dr. Burt after March 14, 1986 was unauthorized care 
 
         and is not shown to have been reasonable and necessary care 
 
         sought in an emergency.
 
         
 

 
         
 
         
 
         
 
         GRANT V. ROYAL NEIGHBORS OF AMERICA
 
         PAGE  17
 
         
 
         
 
         
 
                                CONCLUSIONS OF LAW
 
         
 
              THEREFORE, IT IS CONCLUDED:
 
         
 
              Claimant has established a causal relationship between her 
 
         July 9, 1984 work injury and claimed permanent partial 
 
         disability.
 
         
 
              Claimant has not established that she is entitled to 
 
         additional temporary total disability benefits on account of her 
 
         July 9, 1984 work injury.
 
         
 
              Claimant has established that she is entitled to permanent 
 
         partial disability on account of the July 9, 1984 work injury in 
 
         the amount of 10%.
 
         
 
              Claimant has not established that she is an odd-lot worker 
 
         under the Guyton doctrine.
 
         
 
              Claimant is entitled to payment of medical expenses with Dr. 
 
         Burt in the amount of $530.72.  The insurer is entitled to credit 
 
         in the amount of $434.72 for previous payment of such costs.
 
         
 
                                      ORDER
 
         
 
              THEREFORE, IT IS ORDERED:
 
         
 
              Defendants pay claimant permanent partial disability 
 
         benefits for fifty (50) weeks at the rate of one hundred 
 
         forty-six and 48/100 dollars ($146.48) commencing the first day 
 
         after the last date of payment for temporary total disability.
 
         
 
              Defendants pay accrued amounts in a lump sum.
 
         
 
              Defendants pay interest pursuant to Iowa Code section 85.30 
 
         as amended.
 
         
 
              Defendants pay costs at care with Dr. Burt in the amount of 
 
         five hundred thirty and 72/100 dollars ($530.72) with credit to 
 
         defendants for payment already made in the amount of four hundred 
 
         thirty-four and 72/100 dollars ($434.72).
 
         
 
              Defendants pay costs of this action pursuant to Division of 
 
         Industrial Services Rule 343-4.33.
 
         
 
              Defendants file a Final Payment Report when this award is 
 
         paid pursuant to Division of Industrial Services Rule 343-3.1.
 
         
 
              Signed and filed this 28th day of September, 1988.
 
         
 
         
 
         
 
         
 
         
 
         
 
                                       HELENJEAN WALLESER
 
                                       DEPUTY INDUSTRIAL COMMISSIONER
 
         
 

 
         
 
         
 
         
 
         GRANT V. ROYAL NEIGHBORS OF AMERICA
 
         PAGE  18
 
         
 
         Copies To:
 
         
 
         Mr. Elliott R. McDonald, Jr.
 
         Attorney at Law
 
         3432 Jersey Ridge Road
 
         P.O. Box 2746
 
         Davenport, Iowa 52809
 
         
 
         Mr. Thomas J. Shields
 
         Attorney at Law
 
         600 Davenport Bank Building
 
         Davenport, Iowa 52801
 
         
 
 
            
 
 
 
 
 
 
 
 
 
                                           1108.50, 1802, 1803, 1804
 
                                           2206, 2505, 4100
 
                                           Filed September 28, 1988
 
                                           HELENJEAN WALLESER
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         FRANCES E. GRANT,
 
         
 
              Claimant,
 
         
 
         vs.
 
                                                  File No. 825107
 
         ROYAL NEIGHBORS OF AMERICA,
 
                                              A R B I T R A T I O N
 
              Employer,
 
                                                  D E C I S I 0 N
 
         and
 
         
 
         CHUBB GROUP,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         
 
         1108.50, 1802, 1803, 1804, 2206, 2505, 4100
 
         
 
              Middle-aged female claimant with modest increase in 
 
         functional limitations following work injury and job skills she 
 
         could continue to utilize although within 50-pound lifting 
 
         restriction awarded 10% permanent partial disability.
 
         
 
              Claimant who had not sought other work following work injury 
 
         and automatic termination following exhaustion of extended 
 
         long-term leave of absence not an odd-lot worker.
 
         
 
              Chiropractic physician's medical costs to be paid until 
 
         point where insurer informed physician his services were no 
 
         longer authorized.
 
         
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
                                                
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                   BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         MARGARET A. OLSEN,
 
         
 
              Claimant,
 
                                                    FILE NO. 825115
 
         VS.
 
                                                A R B I T R A T I 0 N
 
         FRUEHAUF CORP.,
 
                                                   D E C I S I 0 N
 
              Employer,
 
         
 
         and
 
         
 
         CNA INSURANCE,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
                              STATEMENT OF THE CASE
 
         
 
              This is a proceeding in arbitration brought by Margaret A. 
 
         Olsen, claimant, against Fruehauf Corporation, employer 
 
         (hereinafter referred to as Fruehauf), and CNA Insurance, 
 
         insurance carrier, for workers' compensation benefits as a result 
 
         of an injury on June 19, 1986.  On March 2, 1988, a hearing was 
 
         held on claimant's petition and the matter was considered fully 
 
         submitted at the close of the 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 June 19, 1966, claimant received an injury which 
 
         arose out of and in the course of employment at Fruehauf.
 
         
 
              2.  Claimant's rate of weekly compensation in the event of 
 
         an award of weekly benefits from this proceeding shall be $243.23 
 
         per week.
 
         
 
              3.  Claimant is entitled to healing period benefits from 
 
         June 20, 1986 through December 9, 1987 and claimant has been paid 
 
         these benefits.
 
         
 
              4.  If permanent disability benefits are awarded, they 
 
         shall begin as of December 10, 1987.
 
         
 
              5.  All requested medical benefits have been or will be 
 
         paid by defendants.
 

 
         
 
         
 
         
 
         OLSEN V. FRUEHAUF CORP.
 
         Page   2
 
         
 
         
 
                                   ISSUES
 
         
 
              The only issues submitted by the parties for determination 
 
         in this proceeding is the extent of claimant's entitlement to 
 
         weekly benefits for permanent disability.
 
         
 
                             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 prior to the injury she worked for 
 
         Fruehauf for 13 years as an assembler.  Fruehauf manufactures 
 
         semi-trailers.  Claimant continues to work at Fruehauf at the 
 
         present time but since her return to work after the work injury 
 
         she has been placed in a light duty janitor job.  Due to 
 
         physician imposed work restrictions, claimant cannot return to 
 
         assembly work.  Claimant testified that she earned $9.97 per week 
 
         ($20,000.00 annually) at the time of the work injury in this 
 
         case.  Claimant states that her current job normally pays $.18 
 
         per hour less than the assembly wages but that she continues to 
 
         receive assembly wages at the present time.  However, claimant 
 
         testified that management at Fruehauf has told her that her 
 
         current job and wages are only a temporary arrangement.
 
         
 
              The facts surrounding the work injury are not in dispute.  
 
         Claimant testified that on the date of the injury her upper body 
 
         was accidently crushed between two semi-trailers that were being 
 
         constructed at Fruehauf.  Claimant was immediately transported to 
 
         the hospital where she was admitted with a diagnoses of fractured 
 
         ribs, fractured left and right scapular and laceration of the 
 
         right ear.  Hospital records indicate that claimant suffered 
 
         severe pain from the injury.  Claimant was discharged from the 
 
         hospital care on June 29, 1986.
 
         
 
              Claimant was initially treated by Duane Nelson, M.D., an 
 
         orthopedic surgeon.  This treatment involved pain medication, 
 
         fitting claimant with a figure 8 clavical strap and gradual 
 
         increase in activity including physical therapy. however, despite 
 
         this treatment claimant's recovery was slow and she continued to 
 
         complain of bilateral shoulder and arm pain.  Claimant remained 
 
         off work for almost two years.
 
         
 
              After Dr. Nelson moved from the area, claimant's care was 
 
         transferred to another orthopedic surgeon in December, 1986, 
 
         Koert R. Smith, M.D.  At that time claimant was still complaining 
 
         of lingering pain in the left shoulder.  Claimant was also 
 
         diagnosed as having carpal tunnel and cubical tunnel syndrome 
 
         problems in the right extremity causing numbness and aching of 
 
         the right extremity.  Claimant returned to work on December 10, 
 
         1987 with restrictions imposed by Dr. Smith consisting of no 
 
         vigorous lifting or over the head lifting or other extensive 
 

 
         
 
         
 
         
 
         OLSEN V. FRUEHAUF CORP.
 
         Page   3
 
         
 
         activity involving the left shoulder.
 
         
 
              In his deposition Dr. Smith opined that claimant has 
 
         permanent defects from the injury consisting of a five percent 
 
         permanent partial impairment to the left extremity.  Dr. Smith 
 
         did not believe that the carpal tunnel or cubical tunnel problems 
 
         were much of a problem at this time.  Despite his rating to the 
 
         arm, Dr. Smith explained that the source of claimant's problems 
 
         is a limited range of motion of the left shoulder due to residual 
 
         pain from the fracture of the left scapula and injury to the 
 
         surrounding ribs and muscle.  Dr. Smith adds that this is more 
 
         than an injury to the joint.  The doctor explained that the 
 
         injury goes to the upper body or back as the scapular forms a 
 
         portion of the socket of a ball-socket shoulder joint.  Dr. Smith 
 
         stated that he does not anticipate significant improvement in 
 
         claimant's condition in the future.  Finally, Dr. Smith said that 
 
         claimant could probably lift 25 to 30 pounds on an intermittent 
 
         basis during the course of an average work day so long as she did 
 
         not have to lift above her waist.
 
         
 
              Claimant testified that she has not made an effort to look 
 
         for employment elsewhere because she does not feel anyone else 
 
         would hire her.  She stated at hearing that she is 50 years of 
 
         age and has a high school education.  She did not describe her 
 
         work history other than her work at Fruehauf over the last 13 
 
         years.
 
         
 
              Little has been shown in the record with reference to 
 
         claimant's rehabilitation potential as she has not been evaluated 
 
         by a rehabilitation specialist.
 
         
 
              Claimant's appearance and demeanor at the hearing indicated 
 
         that she 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 161 (Iowa 1980).
 
         
 
              The question of causal connection is essentially within the 
 
         domain of expert  medical opinion.  Bradshaw v. Iowa Methodist 
 
         Hospital, 251 Iowa 375, 101 N.W.2d 167 (1960).  The opinion 
 
         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 
 

 
         
 
         
 
         
 
         OLSEN V. FRUEHAUF CORP.
 
         Page   4
 
         
 
         affected by the completeness of the premise given the expert and 
 
         other surrounding circumstances.  Bodish v. Fischer, Inc., 257 
 
         Iowa 516, 133 N.W.2d 867 (1965).
 
         
 
              Furthermore, if the available expert testimony is 
 
         insufficient alone to support a finding of causal connection, 
 
         such testimony may be coupled with nonexpert testimony to show 
 
         causation and be sufficient to sustain an award.  Giere v. Aase 
 
         Haugen Homes, Inc., 259 Iowa 1065, 146 N.W.2d 911, 915 (1966).  
 
         Such evidence does not, however, compel an award as a matter of 
 
         law.  Anderson v. Oscar Mayer & Co., 217 N.W.2d 531, 536 (Iowa 
 
         1974).  To establish compensability, the injury need only be a 
 
         significant factor, not be the only factor causing the claimed 
 
         disability.  Blacksmith, 290 N.W.2d 348, 354.  In the case of a 
 
         preexisting condition, an employee is not entitled to recover for 
 
         the results of a preexisting injury or disease but can recover 
 
         for an aggravation thereof which resulted in the disability found 
 
         to exist.  Olson v. Goodyear Service Stores, 255 Iowa 1112, 125 
 
         N.W.2d 251 (1963).
 
         
 
              In the case sub judice, claimant contains that her injury 
 
         extends beyond the arm.  Although Dr. Smith only gives a rating 
 
         to the arm, the question of whether the injury is to the body as 
 
         a whole or to the arm is not a medical but a legal question.  
 
         Admittedly, there is a conceptual problem in determining whether 
 
         a disability should be measured functionally or industrially when 
 
         a major body joint is involved.  A shoulder injury can be a loss 
 
         of an arm or a loss to the body as a whole and the determination 
 
         depends upon the extent of injury. however, it is the anatomical 
 
         situs of the injury, not the situs of the disability caused by 
 
         the injury which determines whether or not to apply the schedules 
 
         in Iowa Code section 85.34(2)(a-t).  Lauhoff Grain Co. v. 
 
         McIntosh, 395, N.W.2d 834 (Iowa 1986); Dailey v. Pooley Lumber 
 
         Co., Iowa 758, 10 N.W.2d 569 (1943); Blacksmith, 290 N.W.2d 248 
 
         (Iowa 1980).  Finally, it is well established in Iowa that a 
 
         shoulder injury is an injury to the body as a whole and not to a 
 
         scheduled member injury simply because of the function of those 
 
         joints' impact on a scheduled member.  Lauhoff, 395 N.W.2d 834 
 
         (Iowa 1986); Alm v. Morris Barick Cattle Co., 240 Iowa 1174, 38 
 
         N.W.2d 161 (1949); Nazarenus v. Oscar Mayer & Company, II Iowa 
 
         Industrial Commissioner Report 281 (1962); Godwin v. Hicklin G.M. 
 
         Power, II Iowa Industrial Commissioner Report 170 (1981).
 
         
 
              In the case at bar, the testimony of Dr. Smith is clear that 
 
         the situs of the injury is into the body although the effect is 
 
         only upon the arm.  Therefore, claimant has sustained a body as a 
 
         whole permanent injury.  The exact percentage of the body as a 
 
         whole impairment is unknown as Dr. Smith incorrectly rated the 
 
         disability to the arm rather than to the body.  However, given 
 
         his permanent restrictions on claimant's activity, the extent of 
 
         impairment certainly is not insignificant from an industrial 
 
         disability standpoint as will be discussed below.
 
         
 
              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 
 

 
         
 
         
 
         
 
         OLSEN V. FRUEHAUF CORP.
 
         Page   5
 
         
 
         disabilities, the degree of disability under this provision is 
 
         not measured solely by the extent of a functional impairment or 
 
         loss of use of a body member.  A disability to the body as a 
 
         whole or an "industrial disability" is a loss of earning capacity 
 
         resulting from the work injury.  Diederich v. Tri-City Railway 
 
         Co., 219 Iowa 587, 593, 258 N.W. 899 (1935).  A physical 
 
         impairment or restriction on work activity may or may not result 
 
         in such a loss of earning capacity.  The extent to which a work 
 
         injury and a resulting medical condition has resulted in an 
 
         industrial disability is determined from examination of several 
 
         factors.  These factors include the employeeOs 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 
 
         8, 1985).
 
         
 
              Claimant's medical condition before the work injury was 
 
         excellent and she had no functional impairments or ascertainable 
 
         disabilities despite her age.  Claimant was able to fully perform 
 
         physical tasks involving repetitive lifting, bending, twisting, 
 
         stooping and lifting above waist level and above her head.  As a 
 
         result of the painful injuries she can no longer do any of these 
 
         tasks and must remain on a light duty status for the rest of her 
 
         working life.  Claimant's only employment history to the 
 
         knowledge of this administrative law judge is the type of work 
 
         she can no longer perform.  Certainly,,claimant has suffered a 
 
         very serious industrial disability or loss of earning capacity.
 
         
 
              Also, claimant is currently earning a substantial income.  
 
         Claimant testified, however, that her current job is only 
 
         temporary.  This testimony is uncontroverted.  Therefore, 
 
         claimant's current employment is suitable but it is not stable.  
 
         Finally, an actual loss of earnings is only one factor not the 
 
         only factor in determining her industrial disability.  The 
 
         industrial disability is a loss of earning "capacity" not solely 
 
         a loss of earnings.  See Michael v. Harrison County, 
 
         Thirty-Fourth Biennial Report of the Iowa Industrial Commissioner 
 
         218, 220 (1979).
 
         
 
              The availability of suitable employment outside of Fruehauf 
 
         is an important consideration in awarding industrial disability 
 
         benefits in this case.  However, claimant made no attempt to look 
 
         for suitable employment elsewhere.  Also, she has not made use of 
 
         the burden shifting aspects on this issue under the so-called 
 
         "odd-lot doctrine."  See Klein v. Furnas Electric Co., 384 N.W.2d 
 
         370, 375 (Iowa 1986); Guyton v. Irving Jensen Co., 373 N.W.2d 
 
         101, 105 (Iowa 1985).  Therefore, claimant has not shown that 
 
         suitable, sedentary light duty employment is not available to her 
 
         outside of Fruehauf although it made indeed pay much less than 
 
         her current factory work.
 
         
 

 
         
 
         
 
         
 
         OLSEN V. FRUEHAUF CORP.
 
         Page   6
 
         
 
              Claimant is 50 years of age and in the middle of her working 
 
         career.  Her loss of future earnings from employment due to her 
 
         disability is much more severe than would be the case for an 
 
         older or younger individual.  See Becke v. Turner-Busch, Inc., 
 
         Thirty-Fourth Biennial Report of the Iowa Industrial Commissioner 
 
         34 (1979); Walton v. B & H Tank Corp., II Iowa Industrial 
 
         Commissioner 428 (1981).
 
         
 
              Claimant has shown motivation to remain employed despite her 
 
         chronic pain and difficulties.
 
         
 
              Although claimant has a high school education and exhibited 
 
         average intelligence at the hearing, little was shown to indicate 
 
         her potential for vocational rehabilitation.
 
         
 
              After examination of all the factors, it is found as a 
 
         matter of fact that claimant has suffered a 30 percent loss of 
 
         her earning capacity from her work injury.  Based upon such a 
 
         finding, claimant is entitled as a matter of law to 150 weeks of 
 
         permanent partial disability benefits under Iowa Code section 
 
         85.34(2)(u) which is 30 percent of 500 weeks, the maximum number 
 
         of allowable weeks for an injury to the body as a whole in that 
 
         subsection.
 
         
 
                                 FINDINGS OF FACT
 
         
 
              1.  Claimant was a credible witness.
 
         
 
              2.  On June 19, 1986, claimant suffered an injury to both of 
 
         her shoulders, ribs and ear which arose out of and in the course 
 
         of employment with Fruehauf.
 
         
 
              3.   The work injury of June 19, 1986 was a cause of 
 
         approxi- mately a two year period of temporary total disability 
 
         from work.
 
         
 
              4.  The work injury of June 19, 1986 was a cause of a 
 
         significant permanent partial impairment to the body as a whole 
 
         and of permanent restrictions upon claimant's physical activity 
 
         consisting of no frequent lifting over 25 to 30 pounds or any 
 
         lifting overhead or above waist level.  The work injury is to the 
 
         left scapular which forms the socket of a ball and socket 
 
         shoulder joint.  This joint has permanent residual effect from 
 
         the fracture which prevents full range of motion of the shoulder 
 
         and loss of use to the arm and the shoulder.
 
         
 
              5.  The work injury of June 19, 1986 and the resulting 
 
         permanent partial impairment and permanent work restrictions is a 
 
         cause of a 30 percent loss of earning capacity.  Claimant is 
 
         unable to return to her assembly job that she held at the time of 
 
         the work injury or to any other work which she has held in the 
 
         past at Fruehauf.  Claimant has a current job as a janitor 
 
         earning substantially the same income as before is suitable but 
 
         only a temporary arrangement.  Claimant is 50 years of age and 
 
         has a high school education.  Suitable light duty work may be 
 
         available to claimant outside of Fruehauf but at substantial less 
 
         money than her factory work at Fruehauf.
 
         
 
                                CONCLUSIONS OF LAW
 
         
 

 
         
 
         
 
         
 
         OLSEN V. FRUEHAUF CORP.
 
         Page   7
 
         
 
              Claimant has established by a preponderance of the evidence 
 
         entitlement to permanent partial disability benefits as awarded 
 
         below.
 
         
 
                                      ORDER
 
         
 
              1.  Defendants shall pay to claimant one hundred fifty (150) 
 
         weeks of permanent partial disability benefits at the rate of two 
 
         hundred forty-three and 23/100 dollars ($243.23) per week from 
 
         December 10, 1967.
 
         
 
              2.  Defendants shall pay accrued weekly benefits in a lump 
 
         sum and shall receive a credit against this award for all 
 
         permanent disability benefits previously paid.
 
         
 
              3.  Defendants shall pay interest on benefits awarded herein 
 
         as set forth in Iowa Code section 85.30.
 
         
 
              4.  Defendants shall pay the costs of this action pursuant 
 
         to Division of Industrial Services Rule 343-4.33 including the 
 
         deposition costs of Dr. Smith in the amount of three hundred 
 
         ninety-seven and 80/100 dollars ($397.80).
 
         
 
              5.  Defendants shall tile activity reports on the payment of 
 
         this award as requested by this agency pursuant to Division of 
 
         Industrial Services Rule 343-3.1.
 
         
 
         
 
              Signed and filed this 12th day of May, 1988.
 

 
         
 
         
 
         
 
         OLSEN V. FRUEHAUF CORP.
 
         Page   8
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
                                           LARRY P. WALSHIRE
 
                                           DEPUTY INDUSTRIAL COMMISSIONER
 
         
 
         Copies To:
 
         
 
         Mr. James P. Hoffman
 
         Attorney at Law
 
         Middle Road
 
         Keokuk, Iowa 52632-1066
 
         
 
         Mr. Elliott R. McDonald, Jr.
 
         Attorney at Law
 
         P. 0. Box 2239
 
         Davenport, Iowa 52809
 
         
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                                     1803
 
                                                     Filed May 12, 1988
 
                                                     LARRY P. WALSHIRE
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         MARGARET A. OLSEN,
 
         
 
              Claimant,
 
                                                 FILE NO.  825115
 
         VS.
 
                                              A R B I T R A T I 0 N
 
         FRUEHAUF CORP.,
 
                                                 D E C I S I 0 N
 
              Employer,
 
         
 
         and
 
         
 
         CNA INSURANCE,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         
 
         1803
 
         
 
              Claimant awarded 30 percent industrial disability for a 
 
         shoulder injury.  The fact that she was working and earning 
 
         substantially the same money as before was taken into 
 
         consideration but it was also found that the job was only 
 
         temporary in nature.