BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         JENNIFER MCGRUDER,
 
         
 
              Claimant,
 
         
 
         VS.
 
                                                   File No.  825195
 
         MANAS BALAGNA
 
         d/b/a AUNT BEA'S,                      A R B I T R A T I 0 N
 
         
 
              Employer,                            D E C I S I 0 N
 
         
 
         and
 
         
 
         ROCKWOOD SERVICE CORPORATION,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
                                   INTRODUCTION
 
         
 
              This is a proceeding in arbitration brought by the claimant, 
 
         Jennifer McGruder, against her employer, Manas Balagna, d/b/a 
 
         Aunt Bea's, and its insurance carrier, Rockwood Service 
 
         Corporation, to recover benefits under the Iowa Workers' 
 
         Compensation Act as a result of an injury sustained September 13, 
 
         1985.  This matter came on for hearing before the undersigned 
 
         deputy industrial commissioner at Council Bluffs, Iowa, on 
 
         November 30, 1987.  A first report of injury was filed July 16, 
 
         1986.  At hearing, the parties stipulated that claimant was paid 
 
         25 weeks of benefits at a rate of $103.77 and 15 weeks of 
 
         benefits at a rate of $30.67.
 
         
 
              The record in this case consists of the testimony of 
 
         claimant as well as of joint exhibits 1 through 36 and A through 
 
         0. Subsequent to hearing, claimant's counsel attempted to submit 
 
         a Supplemental Witness and Exhibit List.  As the record was 
 
         considered fully submitted at close of hearing as evidenced by 
 
         the post-hearing order, the proposed supplemental exhibits are 
 
         not received.
 
         
 
                                      ISSUES
 
         
 
              Pursuant to the pre-hearing report, the parties stipulated 
 
         that claimant did receive an injury arising out of and in the 
 
         course of her employment on September 13, 1985 and that there is 
 
         a causal relationship between such injury and a period of 
 
         temporary total or healing period disability.  The issues 
 
         remaining for resolution are:  (1) Whether there is a causal 
 
         relationship between the injury and claimed permanent partial 
 
         disability; (2) Whether claimant is entitled to benefits and the 
 
         nature and extent of any benefit entitlement, including the 
 
         sub-issues of whether claimant is entitled to additional 
 
         temporary total disability or healing period disability or 
 
         running award and the issue of whether claimant is entitled to 
 
         permanent partial disability benefits; (3) Claimant's rate of 
 
         weekly compensation in the event of an award; and, (4) Whether 
 

 
         claimant is entitled to benefits under section 85.27.   As 
 
         regards the last issue, the parties stipulated that the provider 
 
         of medical services would testify that fees were reasonable and 
 
         defendants are not offering contrary evidence; they also 
 
         stipulated that the provider would testify that treatment was 
 
         reasonable and necessary treatment and defendants are not 
 
         offering contrary evidence.  They further stipulated that 
 
         expenses were causally connected to the work injury and that 
 
         defendants authorized the expenses.
 
         
 
                             REVIEW OF THE EVIDENCE
 
         
 
              Claimant is single, 30 years old, a high school graduate who 
 
         took general business courses and the mother of two minor 
 
         children.  Claimant had worked in a variety of jobs involving 
 
         secretarial, bookkeeping and receptionist duties prior to her 
 
         work at Aunt Bea's.  Claimant had worked for the National Park 
 
         Service and had earned $20,000 in that position sometime prior to 
 
         her work at Aunt Bea's.  Claimant reported that she had resigned 
 
         that position after she was rear-ended in an automobile accident 
 
         in March, 1981.  She apparently then worked doing bookkeeping and 
 
         receptionist work in a friend's business.  She had previously 
 
         left a civil service position at approximately the same salary 
 
         and government service grade when that position was relocated and 
 
         she chose not to transfer.  Claimant also apparently had had a 
 
         motorcycle accident with several fractures of her right leg in 
 
         1979.  Claimant had returned to college following her alleged 
 
         injury.  She reported she had experienced discomfort while 
 
         sitting and subsequently had not always attended.  She reported 
 
         her grades as generally good, however.
 
         
 
              Claimant testified that she began work at Aunt Bea's 
 
         Restaurant in May, 1985 on a full-time basis working from 10 a.m. 
 
         to 6 p.m., six days per week.  Her duties apparently included 
 
         vacuuming, cleaning tables, stocking tables, waitressing and 
 
         bartending.  Claimant reported her starting wage as $4.50 per 
 
         hour with an increase to $5 per hour in her second month at Aunt 
 
         Bea's.  Claimant reported that she was paid in cash with no 
 
         withholdings made.  She indicated that she had never filed an 
 
         income tax return for her work at Aunt Bea's as the exact amount 
 
         of her earnings could not be determined.  Claimant reported that 
 
         she received at least $200 in tips each week.  Claimant stated 
 
         that she was the only waitress employed in the afternoon.  
 
         Claimant agreed that she had done bookkeeping services for the 
 
         restaurant and had kept track of hours of other workers.  She 
 
         reported this consisted largely of multiplying the hours by the 
 
         employee's pay rate and giving the calculation to the owner who 
 
         then paid the employee.  Claimant denied that she had ever worked 
 
         part-time hours listed and reported that part-time work for her 
 
         would have been impossible because she was the only employee in 
 
         the establishment during the day.  Claimant reported that she 
 
         gave the cook approximately one-third of her tips and 
 
         characterized the cook as also a full-time worker who worked from 
 
         30-40 hours per week and received pay at the rate of $5 per hour.  
 
         Claimant had "no idea" if her employer had paid her $1,065 while 
 
         she worked for the restaurant.
 
         
 
              Claimant reported that, on September 13, 1985, she slipped 
 
         and her feet went out from under her while working.  She reported 
 
         that she continued to work throughout the day, but by day's end 
 
         felt sick, albeit without pain.  She indicated that, by the 
 
         following morning, her back was hunched over and she felt 
 
         terrible.  The next day was a Sunday.  Claimant reported she 
 

 
         
 
         
 
         
 
         McGRUDER V. MANAS BALAGNA d/b/a AUNT BEAOS
 
         Page   3
 
         
 
         
 
         could not get out of bed that day, but that a neighbor assisted 
 
         her in seeking treatment at Jennie Edmundson Hospital.  Claimant 
 
         reported that she saw Bernard L. Kratochvil, M.D., who took her 
 
         off work.  Claimant subsequently was hospitalized in October, 
 
         1985 for myelographic studies.  She also subsequently received 
 
         chiropractic treatments from Deanne J. Rogge, D.C., whom claimant 
 
         reported referred her to Daniel L. McKinney, M.D.  Claimant also 
 
         had prescribed physical therapy treatments, consisting largely of 
 
         massage and self-help education.  Claimant reported continuing 
 
         pain in her low back, her buttocks and her right leg and reported 
 
         that physical therapy had not alleviated her pain or problems.  
 
         She reported that she continues to see Drs. Kratochvil and Rogge 
 
         and well as Jay W. Burr, her physical therapist.
 
         
 
              Claimant reports that she can at most walk three or four 
 
         blocks and that her low back feels hot.  She indicated she has 
 
         difficulty sitting for extended periods, but that she spends a 
 
         lot of time on her couch.  She reported that she alternately 
 
         spends her day walking, sitting or standing.  Claimant reported 
 
         that she had seen Michael J. Morrison, M.D., on two occasions 
 
         consisting of 7 to 10 minute examinations each.  She reported 
 
         that his only advice was to give her a book containing exercises 
 
         which she was unable to do because she had had a broken leg.
 
         
 
              Claimant opined that she could not return to work as a 
 
         secretary as she could not sit as required.
 
         
 
                Claimant denied that she had cancelled 15 appointments 
 
         with Mr. Burr from December, 1986 to March, 1987.  She reported 
 
         she could not remember Mr. Burr stating she could return to 
 
         light-duty waitressing.  She reported that she had seen L. Weber, 
 
         M.D., a neurosurgeon upon referral of Dr. Kratochvil.  She 
 
         reported that she has seen Lilly M. Stroller, M.D., a 
 
         psychiatrist, on one occasion, but not otherwise.
 
         
 
              Claimant testified that her physicians have told her that if 
 
         she did have surgery, she would likely need it on two or three 
 
         occasions.  She reported that Dr. Kratochvil would not let her 
 
         drive car for a long time.  She indicated she uses a heating pad 
 
         constantly, but reported she takes medications only approximately 
 
         once every three months.  Claimant agreed that she can read and 
 
         write the English language and has very good typing skills.
 
         
 
               Sheri Grosvenor testified that she was hired as a cook at 
 
         Aunt Bea's in June, 1985 and was paid $5.00 per hour for her 
 
         services with compensation either by check or by cash.  
 
         Withholding was not deducted from the witness' check.  Ms. 
 
         Grosvenor reported that, when she was able to observe claimant 
 
         working, claimant did her work and did it well.  She reported 
 
         that, prior to September 13, 1985, she had not observed claimant 
 
         walking with a limp or having physical impairments or complaining 
 
         of back, knee or hip pain.
 
         
 
              Jay Burr testified by way of his deposition taken March 17, 
 
         1987.  Mr. Burr is a Nebraska-licensed physical therapist.  Burr 
 
         reported that he initially saw claimant on April 4, 1986 and that 
 
         subsequently Dr. McKinney referred her for services.  He 
 
         described claimant as giving a history of having slipped on a 
 
         concrete floor in the late afternoon of September 13, 1985, 
 

 
         
 
         
 
         
 
         McGRUDER V. MANAS BALAGNA d/b/a AUNT BEAOS
 
         Page   4
 
         
 
         
 
         landing on her buttocks.  He reported her symptoms as fairly 
 
         diffuse consisting of low back, thoracic and cervical pain as 
 
         well as mild headache and cold and profusely sweating hands and 
 
         feet.  Claimant had restriction in active lumbar range of motion 
 
         and was not able to bend forward or backwards normally.  The 
 
         cervical spine was limited to approximately minus 10 degrees with 
 
         rotation right and rotation left, but flexion-extension was 
 
         essentially within normal limits.  Claimant had had a partial 
 
         fusion of her right knee on account of a fracture of the right 
 
         leg, hence, active and passive range of motion of the right knee 
 
         was abnormal.  The right leg was approximately one inch shorter 
 
         than the left.  Claimant was tender to palpation in the lumbar, 
 
         thoracic and cervical spine, but apparently without real muscle 
 
         spasm.  Burr reported that "[s]he was moving spontaneously and -- 
 
         there appeared to be some minor mechanical involvement, which we 
 
         have not been able to determine the etiology of the sacrum on 
 
         ilium or the iliosacral complex.O
 
         
 
              Burr reported that claimant had a chronic strain of the 
 
         lumbar spine extending into the sacrum.  He reported that chronic 
 
         strain generally involves consistent pain extending for greater 
 
         than six months.  He reported that a chronic problem generally 
 
         results in change in soft tissue, shortening of musculature with 
 
         the muscle losing its normal suppleness and with the effects of 
 
         the strain extending elsewhere within the musculoskeletal system, 
 
         that is, over time involving not only the muscle, but also the 
 
         joint capsule, the ligamentous structure and the facial 
 
         mechanisms.
 
         
 
              Burr reported that claimant had been seen on a fairly 
 
         regular basis, that is, two or three times per week, from April 
 
         (1986) until approximately two months prior to the deposition.  
 
         Claimant was started on a posture and exercise program and 
 
         encouraged to increase her overall activity level.  Hot packs, 
 
         high voltage galvanic stimulation, ultrasound, therapeutic 
 
         exercise, joint mobilization techniques and cranial-sacral 
 
         technique were also used.  Burr reported that claimant's ability 
 
         to perform outside physical activity was limited to a degree 
 
         because of the functional problems she had with her right knee 
 
         and partial fusion of that knee.  Treatment alleviated claimant's 
 
         complaints of profuse sweating and cold feelings in both arms and 
 
         legs or hands and feet.  Burr reported that therapy provided 
 
         "better balance" with claimant's sacroiliac mechanism and that 
 
         her lumbosacral and thoracic complaints decreased, although those 
 
         were chronic in nature and had required ongoing treatment.  Burr 
 
         did not believe claimant was a malingerer.  He felt that her 
 
         condition would result in some permanency.  He opined that 
 
         claimant's condition would probably preclude her from work 
 
         involving a lot of lifting or where she would be either standing 
 
         or sitting only.  She would do better where she could maintain 
 
         mobility and change her posture on a regular basis and she could 
 
         probably, at that point, return to some very light waitressing.
 
         
 
              Burr concurred that claimant's permanent partial impairment 
 
         to the body as a whole is somewhere between five and ten percent. 
 
          Burr opined that claimant had reached her maximum improvement in 
 
         approximately December, [1986].
 
         
 
              Burr reported that claimant's leg length discrepancy 
 

 
         
 
         
 
         
 
         McGRUDER V. MANAS BALAGNA d/b/a AUNT BEAOS
 
         Page   5
 
         
 
         
 
         "reflects into the hip and into the sacrum, because of the short 
 
         leg length, then the pelvic base or the hips are not even, which 
 
         would make the right hip low.  That compensates then into the 
 
         lumbar spine."  He felt that all of the foregoing creates a minor 
 
         mechanical problem within the sacroiliac mechanism, consistent 
 
         with "all of this.O  He reported that claimant does wear a shoe 
 
         lift, which then "puts things more in balance," however.
 
         
 
              Bernard Kratochvil, M.D. initially saw claimant and reported 
 
         that examination of the back revealed tenderness to pressure in 
 
         the lower lumbar area, especially over the right buttock.  
 
         Straight leg raising did not seem to increase pain into the right 
 
         lower extremity.  Reflexes in the lower extremity were good as 
 
         was strength and there was no sensory disturbance.  The 
 
         impression was of contusion of the lower back with contusion of 
 
         the right sciatic nerve.  Claimant was hospitalized on October 
 
         11, 1985 with considerable pain in the right lower extremity.  
 
         The trochanteric area was injected with steroids, but without a 
 
         great deal of improvement.  Physical therapy caused gradual 
 
         improvement and claimant was discharged October 18, 1985.
 
         
 
              Dr. Kratochvil reported, on December 3, 1985, that claimant 
 
         had been readmitted to the hospital.  An EMG study did not show 
 
         any particular nerve root abnormality, but on account of 
 
         persistent pain, a lumbar myelogram was performed.  Claimant was 
 
         reported as having a disc herniation at the last lumbar level and 
 
         the sacrum characterized as the L6-Sl level.  Behrouz Rassekh, 
 
         M.D., saw claimant in consultation and felt that conservative 
 
         care should be pursued as he did not feel the Sl radiculopathy 
 
         correlated with clinical findings.
 
         
 
              On February 4, 1986, Dr. Kratochvil reported that claimant 
 
         had been unable to work since September 13, 1985, was continuing 
 
         to be treated conservatively and would be unable to return to 
 
         work for an indefinite time.
 
         
 
              On April 16, 1986, Dr. Kratochvil reported that claimant had 
 
         taken medication to alleviate her symptoms which had resulted in 
 
         constipation which was indirectly related to the work-related 
 
         incident.
 
         
 
              On August 11, 1986, Dr. Kratochvil indicated that he had 
 
         seen claimant as of that date and that she still had symptoms 
 
         relating to her back and right lower extremity and that further 
 
         conservative care as well as continuation with Back School was 
 
         appropriate.  He estimated that claimant had a ten percent 
 
         permanent partial impairment of her back as a result of her 
 
         injuries.  The doctor reiterated his permanency opinion on 
 
         October 14, 1986.
 
         
 
               On October 14, 1987, Dr. Kratochvil reported that, when 
 
         last examined on August 13, 1987, claimant had continuing 
 
         complaints with her back and had not reached maximum medical 
 
         improvement.
 
         
 
              Deanna J. Rogge, D.C., saw claimant for examination on 
 
         January 6, 1986.  She reported that claimant had reportedly 
 
         incurred a fall at work on September 13, 1985, but that 
 
         claimant's history to the accident was not significant as it 
 

 
         
 
         
 
         
 
         McGRUDER V. MANAS BALAGNA d/b/a AUNT BEAOS
 
         Page   6
 
         
 
         
 
         related to her present injury.  During consultation, claimant 
 
         complained of low back pain with radiation into both buttocks, 
 
         right posterior leg pain and numbness to the toes, right shoulder 
 
         and neck pain, and thoracic pain rotating into the anterior 
 
         chest.  Claimant's gait was irregular with stiff and slow 
 
         movements. on palpation of claimant's head, neck, shoulder 
 
         girdle, thorax, lumbo-pelvic region, and extremities, marked 
 
         muscle spasms were displayed of the bilateral gluteal, lumbar and 
 
         thoracic paraspinal and trapezious muscles.  Tenderness was 
 
         elicited in the gluteal muscles bilaterally and paraspinal 
 
         muscles from L5-Ll.  Orthopaedic examination revealed a positive 
 
         Kemps bilaterally, Lewin, Braggard bilaterally, Laseques 
 
         bilaterally, Ely and Nachlas bilaterally, Foramina Compression to 
 
         the right and Valsalva maneuver.  Neurological examination 
 
         revealed reduced patellar reflex bilaterally.  Range of motion 
 
         tests, as measured visually, demonstrated pain in all ranges of 
 
         motion of the cervical and lumbar vertebrae.  X-ray studies of 
 
         the cervical area revealed a slight reversal cervical curve.  
 
         Thoracic x-rays revealed an elevated right shoulder and mild 
 
         scolosis curve and moderate degenerative changes.  Lumbar x-rays 
 
         revealed a decreased disc space at L5-Sl and moderated spurring 
 
         of the anterior aspects of the lumbar vertebrae bodies.  Slightly 
 
         elevated left hip concave curve to the left of the lumbar spine 
 
         was also noted.  Claimant's injuries were interpreted as acute 
 
         traumatic subluxation strain and sprain of the lumbar spine with 
 
         resultant intervertebral disc syndrome with attendant extension 
 
         neuralgia parasthesia.  Chiropractic manipulation as well as heat 
 
         and ultrasound were administered.  A lumbosacral support belt was 
 
         also used.  Claimant was instructed to avoid sitting, lifting, 
 
         and bending.  Prognosis was rated as guarded and it was reported 
 
         that post traumatic pathology was probable since the principal 
 
         injury was one of ligamentous and muscular sprain and strain to 
 
         the joints.
 
         
 
              On March 5, 1986, Dr. Rogge reported that claimant had had a 
 
         return of normal sensation in both legs and in her left arm and 
 
         an increase in her patellar reflex for both right and left legs.  
 
         She reported that claimant was still experiencing a great deal of 
 
         pain, but stated that it was of less intensity and that 
 
         claimant's ranges of motion had increased.
 
         
 
              On May 7, 1986, Dr. Rogge reported that claimant would not 
 
         be able to be employed for several years.  She recommended that 
 
         claimant refrain from sitting, lifting, bending or twisting.
 
         
 
              Lilly M. Stoller, M.D., reported on January 23, 1986 that 
 
         she had seen claimant for a one-time evaluation of her pain upon 
 
         referral from Dr. Weber.  She characterized claimant as a quite 
 
         hysteroid young woman who sees herself as having a great deal of 
 
         insight in a psychological sense when mainly there is a emotional 
 
         reaction to the situation and a looking for an easy solution.  
 
         Dr. Stoller reported that claimant truly does not believe she has 
 
         psychophysiologic or conversion symptoms "and I see it as likely 
 
         that may well be present."  The doctor reported that claimant had 
 
         a traumatic car accident in September, 1979 leaving her with her 
 
         leg broken in four places.  The doctor stated:
 
         
 
              My best guess psychodynamically is that this current 
 
              accident is re-triggering the unresolved feelings from 
 

 
         
 
         
 
         
 
         McGRUDER V. MANAS BALAGNA d/b/a AUNT BEAOS
 
         Page   7
 
         
 
         
 
              the previous accident of September 1979 which was of 
 
              course very severe.
 
         
 
              The doctor further stated:
 
         
 
              ...I think this woman has difficulty resolving her 
 
              feelings but is pretty unaware of this difficulty and 
 
              would be difficult to do therapy with at the present 
 
              time.  I think if she could ever own what those 
 
              problems are perhaps she could be helped more.
 
         
 
              Daniel L. McKinney, M.D., reported that he had examined 
 
         claimant on March 14, 1986 and found no reflex change, weakness 
 
         or sensory loss and noted no muscle spasm in her back.  He 
 
         believed that claimant had suffered a chronic lumbar strain and 
 
         recommended further chiropractic treatment or possibly a swimming 
 
         or light exercise program as in her best interest.,
 
         
 
              On June 11, 1986, Dr. McKinney reported that he had not seen 
 
         claimant since the initial examination of March 14, 1986 and 
 
         that, at that time, he did not have any neurosurgical treatment 
 
         to render her.  He opined that, in view of the chronicity of her 
 
         symptoms, he would anticipate a permanent partial "disability" of 
 
         approximately five percent of the body as a whole.
 
         
 
              Michael J. Morrison, M.D., examined claimant on May 6, 1986. 
 
          He reported that claimant walked with a limp because of her 
 
         right leg shortening, but that forward flexion of her cervical 
 

 
         
 
         
 
         
 
         McGRUDER V. MANAS BALAGNA d/b/a AUNT BEAOS
 
         Page   8
 
         
 
         
 
         and lumbar spine was full with no gross muscle weaknesses in 
 
         either her upper or lower extremities, biceps, triceps.  Knee 
 
         jerks and ankle jerks bilaterally were 1+/4+ and straight leg 
 
         raising was negative bilaterally.  The doctor reported that 
 
         claimant's symptoms were all related to soft tissue strain and 
 
         could easily be managed with abdominal flank muscle strengthening 
 
         exercises supplemented with bicycle riding or swimming.  He 
 
         reported that when claimant was asked whether previous physicians 
 
         would allow her to exercise, she stated emphatically that none 
 
         would allow her to do so.  He indicated that, upon review of her 
 
         records, it was well outlined that Dr. Kratochvil had tried to 
 
         reinforce this to her.  Dr. Morrison opined that, after three of 
 
         four weeks of performing appropriate exercises as well as 
 
         bicycling or swimming, claimant could return to her prior job 
 
         without restriction.  He further stated that the injury should 
 
         not result in permanent [impairment] and that, if after three of 
 
         four weeks of exercising, claimant was unable to return to work, 
 
         psychological testing should be obtained to rule out any possible 
 
         functional overlay.
 
         
 
              On May 1, 1987, Dr. Morrison reported that he had seen 
 
         claimant on April 29, 1987.  He reported that claimant's 
 
         examination continued to reveal no objective evidence of any 
 
         muscle weakness or atrophy, reflex changes or straight leg 
 
         raising findings.  He reported that he explained to claimant that 
 
         she had reached maximum medical recovery, that no further medical 
 
         treatment was indicated and that no permanency was anticipated 
 
         from her injury.  Dr. Morrison is associated with Orthopedic 
 
         Clinic, P.C.
 
              
 
              Dennis R. Green, D.C., reported that thermography of 
 
         December 15, 1986 showed findings consistent with right C5 nerve 
 
         root irritation and left C6-7-8 nerve root irritation correlating 
 
         with claimant's symptomatology and clinical findings.  Dr. Green 
 
         reported that thermography of December 5, 1986 showed findings 
 
         consistent with right L5-Sl nerve root irritation and correlated 
 
         with the patient's symptomatology in clinical findings.  He 
 
         reported that the abnormal vascular heat emission patterns in the 
 
         right posterior thigh and right posterior calves were consistent 
 
         with the L5-Sl nerve root irritation, but may be considered 
 
         equivocal due to extensive injury to the right thigh in a prior 
 
         injury in 1979 as evidenced by the cicatricial area in the right 
 
         thigh.  Dr. Green diagnosed claimant's conditions as chronic 
 
         sprain of the lumbosacral spine with right sciatic neuropathy and 
 
         chronic sprain of the cervical spine with brachial neuropathy.
 
         
 
              Medical costs in evidence are as follows:
 
         
 
              Dennis Green, D.C.                       $  829.99
 
              Broadway Chiropractic Clinic              1,565.00
 
              Medical Anesthesia Associates               475.00
 
              The Physicians Clinic                     2,125.00
 
              Bernard Kratochvil, M.D.                    210.00
 
              Mercy Hospital                              281.25
 
              Daniel McKinney, M.D.                        50.00
 
              Jennie Edmundson Hospital                 1,803.25
 
              Cogley Medical Associates                   202.00
 
              Lilly M. Stoller, M.D.                       60.00
 
              Emergency Care Division                      97.00
 
              Walgreens                                   357.13
 

 
         
 
         
 
         
 
         McGRUDER V. MANAS BALAGNA d/b/a AUNT BEAOS
 
         Page   9
 
         
 
         
 
              Bluffs Neurosurgical Associates             285.00
 
              Omaha Neurological Clinic                    90.00
 
              Neurosurgical Assoc. of Council Bf.          75.00
 
         
 
                           APPLICABLE LAW AND ANALYSIS
 
         
 
              We shall first consider the rate issue.
 
         
 
              Defendants contend that claimant was a part-time employee.  
 
         Claimant contends she was hired as a full-time employee at a rate 
 
         of $5.00 per hour for a maximum of 40 hours per week.  Claimant 
 
         further contends that she worked as  the only waitress in the 
 
         establishment and earned a minimum of $200 per week in tips.  
 
         Claimant is single with two children.  Claimant testified that 
 
         she was initially paid $4.50 per hour, but at a later point, 
 
         earned $5.00 per hour.  No records as to claimant's wages or tips 
 
         were submitted into evidence.  Defendants did not offer any 
 
         testimony contradicting claimant's testimony, but for questioning 
 
         claimant as to whether she had earned  $1,065 while working for 
 
         Aunt Bea's.  Claimant testified that she worked full-time from 
 
         10:00 a.m. until 6:00 p.m., six days per week.  While we do not 
 
         find claimant an altogether credible witness, we find that 
 
         employer's total failure to participate in the arbitration, 
 
         either by providing direct testimony or by providing documentary 
 
         evidence of the employer's position compelling.  Claimant's 
 
         testimony is accepted.  Claimant was apparently earning $5.00 per 
 
         hour and working 48 hours per week when injured.  Such would 
 
         represent a gross wage of $240.00. Claimant's testimony that she 
 
         earned $200 per week in tips is not unreasonable, given the 
 
         nature of the business in which claimant worked and the extended 
 
         hours during which she worked.  Claimant testified that 
 
         approximately one-third of her tips were given to the cook who 
 
         was also on duty in the afternoon.  Hence, claimant's estimated 
 
         tip earnings are reduced by one-third to $133.00. Claimant's 
 
         gross weekly wage then is $373.00. The basis for compensation is 
 
         governed by section 85.36(6).  (It is not altogether clear 
 
         whether claimant had worked 13 calendar weeks prior to her 
 
         injury.  The result would remain the same, even if the basis of 
 
         compensation was section 85.36(7), however.)  Claimant is single 
 
         and entitled to two exemptions.  The applicable rate of weekly 
 
         compensation is $229.06.
 
         
 
              The parties have stipulated that claimant's injury was 
 
         causally related to temporary total or healing period disability, 
 
         but claimant contends she is entitled to a running award as she 
 
         has not yet reached maximum medical improvement and defendants 
 
         contend that claimant's condition had stabilized as of October 
 
         14, 1986.
 
         
 
              As claimant's condition is found to have produced permanent 
 
         disability as discussed below, our current concern is with 
 
         healing period and not temporary total disability.
 
         
 
              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 
 

 
         
 
         
 
         
 
         McGRUDER V. MANAS BALAGNA d/b/a AUNT BEAOS
 
         Page  10
 
         
 
         
 
         benefits can be interrupted or intermittent.  Willis v. Lehigh 
 
         Portland Cement Company, Vol. 2-1, State of Iowa Industrial 
 
         Commissioner Decisions, 485 (1984).
 
         
 
              Healing period ends upon the return to work or at the point 
 
         of maximum medical recovery.  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), District Court 
 
         Appeal, remanded for settlement.  On May 7, 1986, Dr. Rogge 
 
         reported that claimant would be unable to be employed for several 
 
         years.  On May 6, 1986, Dr. Morrison reported that claimant would 
 
         be able to return to a prior job without restriction after three 
 
         or four weeks of performing appropriate exercises as well as 
 
         bicycling and swimming.  On June 11, 1986, Dr. McKinney opined 
 
         that claimant had a five percent body as a whole permanent 
 
         partial "disability.O  On August 11, 1986, Dr. Kratochvil 
 
         indicated that claimant a ten percent permanent partial 
 
         impairment of her back and reported that she still had symptoms 
 
         relating to her back and right lower extremity.  He advised 
 
         further conservative care as well as continuation with Back 
 
         School.  In his March 17, 1987 deposition, physical therapist Jay 
 
         Burr opined that claimant had reached maximum medical healing as 
 
         of approximately December, 1986 and reported that she had miss 
 
         approximately 15 physical therapy sessions originally scheduled 
 
         from January through March 17, 1987.  On October 14, 1987, Dr. 
 
         Kratochvil reported that claimant had continued to have 
 
         complaints relative to her back when last examined on August 13, 
 
         1987 and that claimant had not reached maximum medical 
 
         improvement.
 
         
 
              The fighting issue here is the nature of claimant's care 
 
         following assignation of permanency ratings in June and August, 
 
         1986.  Claimant's symptoms and requirements for care following 
 
         such dates were not noticeably different from her symptoms and 
 
         requirements for care on or prior to such dates.  While both Dr. 
 
         Kratochvil and Dr. Rogge, and to a lesser extent Mr. Burr, 
 
         indicate that claimant will need continuing care for her 
 
         symptoms, they do not indicate the treatment will improve her 
 
         underlying condition.  Indeed, the record does not disclose that 
 
         Dr. Kratochvil had seen claimant from his August 11, 1986 
 
         examination through his August 13, 1987 examination.  Such an 
 
         extended time without treatment by one's primary medical 
 
         physician would suggest a stabilized medical condition.  
 
         Likewise, treatment by Dr. Rogge also appears to have been 
 
         primarily geared to reduction of symptomatology within the last 
 
         year.  Mr. Burr had seen claimant on a fairly regular basis from 
 
         April, 1986 until approximately December, 1986.  He had 
 
         characterized her condition as chronic, however, and had 
 
         indicated she would need ongoing treatment.  All of the above 
 
         suggests that, at least as of the date Dr. Kratochvil assigned 
 
         claimant a permanency rating, that is, August 11, 1986, 
 
         claimant's condition had stabilized to the point where she could 
 
         be legally characterized as having reached maximum medical 
 
         improvement.  We accept that as the date upon which healing 
 
         period benefits terminated.  We reject the opinions of Dr. 
 
         Kratochvil and Dr. Rogge regarding their views that claimant had 
 

 
         
 
         
 
         
 
         McGRUDER V. MANAS BALAGNA d/b/a AUNT BEAOS
 
         Page  11
 
         
 
         
 
         not yet reached maximum medical improvement and claimant's 
 
         non-employability.  Each, when taken in the context of the 
 
         practitioner's overall involvement with and discussion of 
 
         claimant's condition, suggests that the practitioner was equating 
 
         a continuing need for medical treatment with an absence of 
 
         maximum medical improvement.
 
         
 
              We consider the question of whether a causal relationship 
 
         exists between claimant's injury and claimed permanent partial 
 
         disability.
 
         
 
              The claimant has the burden of proving by a preponderance of 
 
         the evidence that the injury of September 13, 1985 is causally 
 
         related to the disability on which she now bases her claim.  
 
         Bodish v. Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867 (1965). 
 
         Lindahl v. L. 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).
 
         
 
              Dr. Kratochvil has indicated that claimant has a ten percent 
 
         permanent partial impairment of her back as a result of her 
 
         injuries.  Dr. Morrison has reported that claimant has no 
 
         permanency and has stated that she could return to her prior job 
 
         without restriction after appropriate treatment.  He 
 
         characterized claimant as resisting offered treatment options of 
 
         exercise and programmed exercises.  Dr. Stoller, a psychiatrist, 
 
         felt that psychophysiological conversion symptoms may well likely 
 
         have been present in claimant's condition.  She further surmised 
 
         that claimant's work injury was retriggering unresolved feelings 
 
         from her previous accident of 1979 in which claimant had broken 
 
         her leg in four places.  The doctor thought claimant had 
 
         difficulty resolving her feelings, but was pretty unaware of this 
 
         difficulty which would, in turn, create difficulties in 
 
         conducting therapy with claimant as of the time of her 
 
         examination.  Mr. Burr had reported that claimant's leg length 
 
         discrepancy "reflects into the hip and into the sacrum, because 
 
         of the short leg length, then the pelvic base or the hips are not 
 
         even, which would make the right hip low.  That compensates then 
 
         into the lumbar spine.O  He believed that created a minor 
 
         mechanical problem within the sacroiliac mechanism which he 
 
         stated was consistent with Oall of this."  Burr had reported that 
 
         claimant had a chronic strain of the lumbar spine extending into 
 
         the sacrum.  Other physicians and practitioners did not render 
 

 
         
 
         
 
         
 
         McGRUDER V. MANAS BALAGNA d/b/a AUNT BEAOS
 
         Page  12
 
         
 
         
 
         opinions relevant to the causal relationship issue.
 
         
 
              Dr. KratochvilOs opinion as claimant's primary treating 
 
         medical practitioner is entitled to substantial weight.  Dr. 
 
         Kratochvil only relates claimant's permanent partial impairment 
 
         to her back to her injuries.  (We note that the term "injuries" 
 
         as used in the doctor's opinion is somewhat ambiguous as it is 
 
         not altogether clear that Dr. Kratochvil is speaking only of 
 
         claimant's work injury and not of her previous automobile and 
 
         motorcycle accidents.  The doctor's medical reports overall 
 
         reference only to the work injury, however.  On that basis, we 
 
         surmise that the doctor's opinion is as to causal connection to 
 
         the work injury.)  Claimant's back condition, as such is 
 
         evidenced by the ten percent permanent partial impairment rating 
 
         of Dr. Kratochvil and the five percent permanent partial rating 
 
         of Dr. McKinney, is found to be causally related to her work 
 
         injury.  Claimant's multiple other symptoms and complaints are 
 
         not found to be so related.  Claimant's complaints are, in the 
 
         experience of this deputy, atypical of those seen from the injury 
 
         as described.  Their multiplicity supports Dr. Stoller's 
 
         conclusion that claimant is a hysteriod personality, sustaining a 
 
         conversion reaction.  They further suggest that claimant's 
 
         physical problems, in part, may relate to her leg fracture 
 
         previously, and not to her work injury.
 
         
 
              We reach the question of entitlement to section 85.27 
 
         benefits.
 
         
 

 
         
 
         
 
         
 
         McGRUDER V. MANAS BALAGNA d/b/a AUNT BEAOS
 
         Page  13
 
         
 
         
 
              We are perplexed as to the nature of this issue.  Under the 
 
         section, claimant is entitled to payment of all medical costs 
 
         related to a compensable injury and authorized by the employer.  
 
         Pursuant to the pre-hearing report, the parties stipulated as to 
 
         both the issue of causal connection to the work injury and the 
 
         issue of authorization indicating that medical services were both 
 
         authorized and causally connected to the work injury.  Given 
 
         those stipulations and the lack of any evidence in this record 
 
         directly contrary to those stipulations, defendants are ordered 
 
         to pay medical costs in evidence.
 
         
 
              We reach the question of permanent partial disability 
 
         entitlement.
 
         
 
              An injury is the producing cause; the disability, however, 
 
         is the result, and it is the result which is compensated.  Barton 
 
         v. Nevada Poultry Co. , 253 Iowa 285, 110 N.W. 2d 660 (1961); 
 
         Dailey v. Pooley Lumber Co., 233 Iowa 758, 10 N.W.2d 569 
 
         (1943).
 
         
 
              If claimant has an impairment to the body as a whole, an 
 
         industrial disability has been sustained.  Industrial disability 
 
         was defined in Diederich v. Tri-City Railway Co., 219 Iowa 587, 
 
         593, 258 N.W. 899, 902 (1935) as follows:  "It is therefore plain 
 
         that the legislature intended the term 'disability' to mean 
 
         'industrial disability' or loss of earning capacity and not a 
 
         mere 'functional disability' to be computed in the terms of 
 
         percentages of the total physical and mental ability of a normal 
 
         man."
 
         
 
              Functional impairment is an element to be considered in 
 
         determining industrial disability which is the reduction of 
 
         earning capacity, but consideration must also be given to the 
 
         injured employee's age, education, qualifications, experience and 
 
         inability to engage in employment for which he is fitted.  Olson 
 
         v. Goodyear Service Stores, 255 Iowa 1112, 1121, 125 N.W.2d 251, 
 
         257 (1963).
 
         
 
              In Parr v. Nash Finch Co., (Appeal decision, October 31, 
 
         1980) the Industrial Commissioner, after analyzing the decisions 
 
         of McSpadden v. Big Ben Coal Co., 288 N.W.2d 181 (Iowa 1980) and 
 
         Blacksmith v. All-American, Inc., 290 N.W.2d 348 (Iowa 1980), 
 
         stated:
 
         
 
              Although the court stated that they were looking for 
 
              the reduction in earning capacity it is undeniable that 
 
              it was the "loss of earnings" caused by the job 
 
              transfer for reasons related to the injury that the 
 
              court was indicating justified a finding of "industrial 
 
              disability."  Therefore, if a worker is placed in a 
 
              position by his employer after an injury to the body as 
 
              a whole and because of the injury which results in an 
 
              actual reduction in earning, it would appear this would 
 
              justify an award of industrial disability.  This would 
 
              appear to be so even if the worker's "capacity" to earn 
 
              has not been diminished.
 
         
 
              For example, a defendant employer's refusal to give any sort 
 
         of work to a claimant after he suffers his affliction may justify 
 

 
         
 
         
 
         
 
         McGRUDER V. MANAS BALAGNA d/b/a AUNT BEAOS
 
         Page  14
 
         
 
         
 
         an award of disability.  McSpadden v. Big Ben Coal Co., 288 
 
         N.W.2d 181 (Iowa 1980).
 
         
 
              Similarly, a claimant's inability to find other suitable 
 
         work after making bona fide efforts to find such work may 
 
         indicate that relief would be granted.  McSpadden v. Big Ben Coal 
 
         Co., supra.
 
         
 
              Claimant has, at most, a ten percent permanent partial 
 
         impairment rating.  Mr. Burr has opined that she could possibly 
 
         attempt a return to some light-duty waitressing.  Claimant is a 
 
         bright individual with a variety of previous skills.  She has 
 
         shown a capacity for additional education and appears to be a 
 
         good candidate for vocational rehabilitation, should she so 
 
         choose.  She is a younger worker and that also would be a factor 
 
         in her favor, should she choose further schooling or retraining.  
 
         Without such, even though claimant appears to be restricted as to 
 
         her ability to either stand or sit over a prolonged period, it 
 
         does appear that there may well be employments in which claimant 
 
         would have the physical mobility which she requires, but which 
 
         would utilize her previous talents.  Claimant has not sought 
 
         other employment.  That fact, as well as claimant's choice to 
 
         discontinue the schooling that she had attempted following her 
 
         injury, raise doubts as to claimant's motivation to improve her 
 
         present condition.  They also make it difficult to assess the 
 
         reliability of claimant's own testimony regarding what she can 
 
         and cannot do at this time.  While defendants are required to 
 
         compensate claimant for her loss of earning capacity, defendants 
 
         are not to be penalized for claimant's own lack of motivation and 
 
         initiative.  When all factors set forth above are considered, 
 
         claimant is found to have sustained a permanent partial 
 
         disability of 20% of the body as a whole.
 
         
 
                                 FINDINGS OF FACT
 
         
 
              WHEREFORE, IT IS FOUND:
 
         
 
              Claimant is 30 years old, single, with two minor children.
 
         
 
              Claimant is a high school graduate with prior work 
 
         experience as a secretary, bookkeeper, receptionist and 
 
         waitress.
 
         
 
              Claimant worked as a waitress and bartender for Aunt Bea's 
 
         Restaurant.  She also had minor bookkeeping duties at the 
 
         restaurant.
 
         
 
              Claimant worked from 10:00 a.m. until 6:00 p.m. six days per 
 
         week at the restaurant.
 
         
 
              Claimant's salary, when first employed, was $4.50 per hour 
 
         and her salary, when injured, was $5.00 per hour.
 
         
 
              Claimant earned approximately $200 per week in tips and gave 
 
         approximately one-third of that amount to the restaurant cook.
 
         
 
              Claimant's gross wage was $373.00 per week.
 
         
 
              Claimant received an injury arising out of and in the course 
 

 
         
 
         
 
         
 
         McGRUDER V. MANAS BALAGNA d/b/a AUNT BEAOS
 
         Page  15
 
         
 
         
 
         of her employment on September 13, 1985 when she slipped and her 
 
         feet went out from under her while working.
 
         
 
              Claimant was treated conservatively following that injury.
 
         
 
              Treatment claimant has received over at least the last year 
 
         has been designed to reduce her symptomatology and not to 
 
         alleviate her overall condition.
 
         
 
              Dr. Kratochvil, claimant's primary treating physician, 
 
         assigned claimant a permanent partial impairment rating on August 
 
         11, 1986.
 
         
 
              Claimant reached maximum medical improvement on August 11, 
 
         1986.
 
         
 
              Claimant has multiple symptoms not generally characteristic 
 
         of a low back injury.
 
         
 
              Dr. Kratochvil has opined that claimant's permanent partial 
 
         impairment rating to her back is on account of her injuries.
 
         
 
              Claimant had had two prior vehicle accidents.
 
         
 
              Claimant had broken her leg in four places in a motorcycle 
 
         accident in 1979.
 
         
 
              Claimant is likely a hysteriod individual with 
 
         psychophysiological conversion symptoms.
 
         
 
              Claimant has a leg length discrepancy which creates a minor 
 
         mechanical problem within the sacroiliac mechanism consistent 
 
         with her current problems.
 
         
 
              Claimant's many other symptoms do not relate to her 
 
         September 13, 1985 injury, but claimant's back condition 
 
         generally relates to such injury.
 
         
 
              Claimant has a permanent partial impairment of from five to 
 
         ten percent of the body as a whole.
 
         
 
              Claimant is a younger worker.
 
         
 
              Claimant would require a position where she could alternate 
 
         between sitting and standing.
 
         
 
              Claimant has done well in previous college coursework.
 
         
 
              Claimant is bright and show's a capacity for increased 
 
         education and for vocational rehabilitation.
 
         
 
              Claimant has not sought other work.
 
         
 
              Claimant is not well-motivated.
 
         
 
                                CONCLUSIONS OF LAW
 
         
 
              THEREFORE, IT IS CONCLUDED:
 
         
 

 
         
 
         
 
         
 
         McGRUDER V. MANAS BALAGNA d/b/a AUNT BEAOS
 
         Page  16
 
         
 
         
 
              Claimant's rate of weekly compensation is $229.06.
 
         
 
              Claimant has established that her injury of September 13, 
 
         1985 is a cause of the disability to her back upon which she now 
 
         bases her claim.
 
         
 
              Claimant has not established that her injury of September 
 
         13, 1985 is a cause of other disabilities upon which she now 
 
         bases her claim.
 
         
 
              Claimant is entitled to healing period benefits from her 
 
         injury date through August 11, 1986.
 
         
 
              Claimant is entitled to permanent partial disability from 
 
         her injury of September 13, 1985 in the amount of 20%.
 
         
 
              Claimant is entitled to payment of all medical costs in 
 
         evidence.
 
         
 
                                      ORDER
 
         
 
              THEREFORE, IT IS ORDERED:
 
         
 
              Defendants pay claimant permanent partial disability 
 
         benefits for one hundred (100) weeks at the rate of two hundred 
 
         twenty-nine and 06/100 dollars ($229.06) with those payments to 
 
         commence on August 12, 1986.
 
         
 
              Defendants pay claimant healing period benefits from 
 
         claimant's injury date through August 11, 1986 at the rate of two 
 
         hundred twenty-nine and 06/100 dollars ($229.06). Defendants 
 
         compensate claimant for the proportionate difference between the 
 
         rate of payment and the correct rate of weekly compensation for 
 
         those weeks during which benefits were paid at the rate of one 
 
         hundred three and 77/100 dollars ($103.77) and the rate of thirty 
 
         and 67/100 dollars ($30.67).
 
         
 
              Defendants pay accrued amounts in a lump sum.
 
         
 
              Defendants pay claimant all medical costs in evidence as 
 
         such costs are outlined in the above review of the evidence.
 
         
 
              Defendants pay interest pursuant to Iowa Code section 85.30 
 
         as amended.
 
         
 
              Defendants pay costs pursuant to Division of Industrial 
 
         Services Rule 343-4.33.
 
         
 
              Defendants file Claim Activity Reports as required by this 
 
         agency pursuant to Division of Industrial Services Rule 343-3.1.
 
         
 
              Signed and filed this 22nd day of February, 1988.
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 

 
         
 
         
 
         
 
         McGRUDER V. MANAS BALAGNA d/b/a AUNT BEAOS
 
         Page  17
 
         
 
         
 
         
 
         
 
                                          HELEN JEAN WALLESER
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
         
 
         
 
         Copies To:
 
         
 
         Mr. Sheldon M. Gallner
 
         Attorney at Law
 
         803 Third Avenue
 
         P.O. Box 1588
 
         Council Bluffs, Iowa 51502
 
         
 
         Mr. Michael O'Bradovich
 
         Attorney at Law
 
         4535 Leavenworth, Suite 22
 
         Omaha, Nebraska 68106
 
         
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                              2701; 2906
 
                                              Filed August 19, 1993
 
                                              DAVID R. RASEY
 
            
 
                      BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                      
 
            JENNIFER MCGRUDER,  
 
                      
 
                 Claimant,                       File No. 825195
 
                      
 
            vs.                                  MEMORANDUM  OF
 
                      
 
            MANA BALAGNA d/b/a                    DECISION  ON
 
            AUNT BEA'S,    
 
                                                   ALTERNATE
 
                 Employer, 
 
                                                  MEDICAL CARE
 
            and       
 
                      
 
            IOWA INSURANCE GUARANTY  
 
            ASSOCIATION, On Behalf of     
 
            Insolvent Rockwood Service    
 
            Corporation,   
 
                      
 
                 Insurance Carrier,  
 
                 Defendants.    
 
            ___________________________________________________________
 
            
 
            2701; 2906
 
            Guaranty fund could not contest "arising out of" issue in 
 
            alternate care proceeding because it was bound by adverse 
 
            arbitration decision against the defunct carrier and defunct 
 
            employer.  The fund stands in a representative capacity.
 
            However, the petition was dismissed without prejudice where 
 
            the fund contested causal nexus between the injury and the 
 
            requested treatment.
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                                 1108, 1802, 1803, 2200
 
                                                 3001, 3002
 
                                                 Filed February 22, 1988
 
                                                 HELEN JEAN WALLESER
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         JENNIFER MCGRUDER,
 
         
 
              Claimant,
 
         VS.
 
                                                      File No. 825195
 
         MANAS BALAGNA
 
         d/b/a AUNT BEA'S,                        A R B I T R A T I 0 N
 
         
 
              Employer,                              D E C I S I 0 N
 
         
 
         and
 
         
 
         ROCKWOOD SERVICE CORPORATION,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         1108, 1802, 1803, 2200, 3001, 3002
 
         
 
              Healing period found to have ceased when treating medical 
 
         physician assigned permanent partial impairment rating.  Care 
 
         from that point onward found related to treatment of symptoms 
 
         only without affecting underlying condition.
 
         
 
              Rate found based on claimant's testimony where defendants 
 
         offered no competent contrary evidence.
 
         
 
              Claimant, who was not well motivated, found to have 20% 
 
         industrial disability following back injury without surgery and 
 
         permanent partial impairment of between 5% and 10% of the body as 
 
         a whole.
 
 
 
         
 
         
 
 
            
 
            
 
            
 
            
 
                      BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                      
 
            JENNIFER MCGRUDER,  
 
                      
 
                 Claimant, 
 
                                                 File No. 825195
 
            vs.       
 
                                                 MEMORANDUM  OF
 
            MANA BALAGNA d/b/a  
 
            AUNT BEA'S,                           DECISION  ON
 
                      
 
                 Employer,                         ALTERNATE
 
                      
 
            and                                  MEDICAL  CARE
 
                      
 
            IOWA INSURANCE GUARANTY  
 
            ASSOCIATION, On Behalf of     
 
            Insolvent Rockwood Service   
 
            Corporation,   
 
                      
 
                 Insurance Carrier,  
 
                 Defendants.    
 
            ___________________________________________________________
 
                             STATEMENT OF THE CASE
 
            
 
            Claimant's application for alternate medical care under rule 
 
            343 IAC 4.48 came on for telephone hearing on August 16, 
 
            1993.  Claimant's exhibits 1-3 and defendants' exhibits 1-10 
 
            were received.
 
            
 
            A final agency decision has established that claimant 
 
            sustained injury arising out of and in the course of her 
 
            employment at Aunt Bea's Restaurant.  Aunt Bea's was insured 
 
            for workers' compensation purposes by Rockwood Insurance, 
 
            now defunct.  The Iowa Insurance Guaranty Association, now 
 
            the real party in interest, contends that it is not bound by 
 
            the earlier determination on "arising out of."  It was ruled 
 
            that the Guaranty Association is bound by the result in the 
 
            earlier contested case, as it stands in the shoes of 
 
            Rockwood Insurance in a representative capacity.
 
            
 
            However, defendants also contend that a causal nexus does 
 
            not exist between claimant's current condition (and the 
 
            treatment sought) and the compensable injury of September 
 
            13, 1985.  This contention cannot be said to be frivolous; 
 
            therefore, the case was ruled inappropriate for 
 
            determination under rule 343 IAC 4.48(7).  The petition was 
 
            dismissed without prejudice, but defendants were barred from 
 
            hereafter raising an "authorization" defense.  A hearing 
 
            date has already been established for trial of claimant's 
 
            concurrent action for review-reopening.
 
            
 
            The undersigned has been delegated authority to issue final 
 
            agency action in this matter.  Appeal of this decision, if 
 
            any, would be by judicial review pursuant to Iowa Code 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            section 17A.19.
 
            
 
                                       ORDER
 
            
 
            IT IS THEREFORE ORDERED:
 
            
 
            Claimant's petition for alternate medical care is dismissed 
 
            without prejudice.
 
            
 
            IT IS FURTHER ORDERED that defendants are barred from 
 
            asserting lack of authorization as a defense in further 
 
            proceedings concerning this claim.
 
            
 
            Signed and filed this ____ day of August, 1993.
 
            
 
            
 
            
 
            
 
                                       ________________________________
 
                                       DAVID R. RASEY
 
                                       DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr Sheldon M Gallner
 
            Attorney at Law
 
            803 Third Avenue
 
            PO Box 1588
 
            Council Bluffs Iowa 51502
 
            
 
            Mr D Brian Scieszinski
 
            Mr Cecil Goettsch
 
            Attorneys at Law
 
            801 Grand Avenue
 
            Suite 3700
 
            Des Moines Iowa 50309-2727
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                    BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         JENNIFER McGRUDER,
 
         
 
              Claimant,
 
         
 
         VS.
 
                                                   File No. 825195
 
         MANAS BALAGNA d/b/a
 
         AUNT BEA'S,                                 A P P E A L
 
         
 
              Employer,                              R U L I N G
 
         
 
         and
 
         
 
         ROCKWOOD SERVICE CORPORATION,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
               On February 22, 1988 an arbitration decision was filed in 
 
         this contested case.  On March 21, 1988 defendants filed an 
 
         appeal.  The essence of this matter is that defendants' appeal 
 
         was filed more than twenty days after the arbitration decision 
 
         was filed.
 
         
 
               Iowa Code section 86.24(l) states in part: "Any party 
 
         aggrieved by a decision, order, ruling, finding or other act of a 
 
         deputy commissioner in a contested case proceeding arising under 
 
         this chapter or chapter 85 or 85A may appeal to the industrial 
 
         commissioner in the time and manner provided by rule."  Division 
 
         of Industrial Services Pule 343-4.27, states in part:
 
         
 
                 Except as provided in 4.2 and 4.25, an appeal to the 
 
              commissioner from a decision, order, or ruling of a 
 
              deputy commissioner in contested case proceedings where 
 
              the proceeding was commenced after July 1, 1975, shall 
 
              be commenced within twenty days of the filing of the 
 
              decision, order or ruling by filing a notice of appeal 
 
              with the industrial commissioner.  The notice shall be 
 
              served on the opposing parties as provided in 4.13.  An 
 
              appeal under this section shall be heard in Polk county 
 
              or in any location designated by the industrial 
 
              commissioner.
 
         
 
         (Emphasis supplied.)
 
         
 
              This rule clearly states that the appealing party has twenty 
 
         days following the day in which the deputy commissioner's
 
         decision, order, or ruling is filed in which to file a notice of 
 
         appeal with the commissioner.
 
         
 
              Iowa Code section 4.1(22) provides the method for computing 
 
         time in applying Rule 343-4.27. It states in part:
 
         
 
                 In computing time, the first day shall be excluded 
 
     
 
         
 
         
 
         
 
         
 
         McGRUDER V. MANAS BALAGNA d/b/a AUNT BEAOS
 
         Page   2
 
         
 
         
 
              and the last included, unless the last falls on Sunday, 
 
              in which case the time prescribed shall be extended so 
 
              as to include the whole of the following Monday, 
 
              provided that, whenever by the provisions of any 
 
              statute or rule prescribed under authority of a 
 
              statute, the last day for the commencement of any 
 
              action or proceedings, the filing of any pleading or 
 
              motion in a pending action or proceedings or the 
 
              perfecting or filing of any appeal from the decision or 
 
              award of any court, board, commission or official falls 
 
              on a Saturday, a Sunday, the first day of January, the 
 
              twelfth day of February, the third Monday in February, 
 
              the last Monday in May, the fourth day of July, the 
 
              first Monday in September, the eleventh day of 
 
              November, the fourth Thursday in November, the 
 
              twenty-fifth day of December, and the following Monday 
 
              whenever any of the foregoing named legal holidays may 
 
              fall on a Sunday, and any day appointed or recommended 
 
              by the governor of Iowa or the president of the United 
 
              States as a day of fasting or thanksgiving, the time 
 
              therefor shall be extended to include the next day 
 
              which is not a Saturday, Sunday or such day 
 
              hereinbefore enumerated.
 
         
 
         Therefore, under Rule 343-4.27, the last day on which an appeal 
 
         could be filed from the February 22, 1988 decision of the deputy 
 
         industrial commissioner was March 14, 1988.
 
         
 
              The deputy's proposed decision was filed on February 22, 
 
         1988.  The twenty-day period prescribed in Division of Industrial 
 
         Services Rule 343-4.27 expired on March 14, 1988.  Thus, the 
 
         proposed decision became, by operation of law, the final decision 
 
         of the agency on March 14, 1988.
 
         
 
              THEREFORE, defendants' notice of appeal is hereby 
 
         dismissed.
 
         
 
         
 
              Signed and filed this 24th day of March, 1988.
 
         
 
         
 
         
 
         
 
                                                   DAVID E. LINQUIST
 
                                                   INDUSTRIAL COMMISSIONER
 
         
 
         
 
         
 
         Copies To:
 
         
 
         Mr. Sheldon M. Gallner
 
         Attorney at Law
 
         803 Third Avenue
 
         P.O. Box 1588
 
         Council Bluffs, Iowa 51502
 
         
 
         Mr. Michael O'Bradovich
 
         Attorney at Law
 

 
         
 
         
 
         
 
         McGRUDER V. MANAS BALAGNA d/b/a AUNT BEAOS
 
         Page   3
 
         
 
         
 
         4535 Leavenworth, Suite 22
 
         Omaha, Nebraska 68106
 
         
 
         
 
         
 
 
            
 
            
 
            
 
            
 
            
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ------------------------------------------------------------
 
            JENNIFER MCGRUDER,            :
 
                                          :
 
                 Claimant,                :
 
                                          :        File No. 825195
 
            vs.                           :
 
                                          :
 
            MANAS BALAGNA d/b/a           :
 
            AUNT BEA'S,                    R E V I E W - R E O P E N I N G
 
                                          : 
 
                 Employer,                :
 
                                          :         D E C I S I O N
 
            and                           :
 
                                          :
 
            IOWA INSURANCE GUARANTY       :
 
            ASSOCIATION, on behalf of     :
 
            ROCKWOOD INSURANCE,           :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ------------------------------------------------------------
 
                              STATEMENT OF THE CASE
 
            
 
                 This is a proceeding in review-reopening brought by 
 
            Jennifer McGruder against her former employer and the Iowa 
 
            Insurance Guaranty Association.  Claimant seeks to reopen 
 
            from the arbitration decision filed February 22, 1988.  The 
 
            issues to be decided are whether there has been a change of 
 
            condition which warrants reopening of this case.  Claimant 
 
            also seeks to have surgery performed.  In the event that 
 
            surgery is not to be performed, she seeks additional 
 
            permanent partial disability compensation.  Claimant also 
 
            seeks payment of outstanding medical bills.
 
            
 
                   The Iowa Insurance Guaranty Association asserts that 
 
            no change to warrant additional weekly benefits has 
 
            occurred.  The Association also asserts that it is not bound 
 
            by the determinations made in the arbitration decision filed 
 
            February 22, 1988, since it was not a party to that 
 
            proceeding. 
 
            
 
                 This case was heard at Council Bluffs, Iowa, on January 
 
            7, 1994.  The evidence consists of testimony from Jennifer 
 
            McGruder and John McGruder.  The evidence also contains 
 
            exhibits 1 through 11.  
 
            
 
                                 FINDINGS OF FACT
 
            
 
                 The arbitration decision filed February 22, 1988, 
 
            determined that claimant had a 20 percent permanent partial 
 
            disability and awarded her 100 weeks of benefits.  The 
 
            decision fixed the rate of compensation at $229.06 per week.  
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            The findings of fact made in that decision do not contain an 
 
            express diagnosis of claimant's physical ailment or 
 
            condition.  In particular, it does not make a determination 
 
            with regard to whether or not she has a herniated disc.  The 
 
            assessment made by the various medical practitioners as 
 
            shown in the arbitration decision and in exhibit 8, does not 
 
            show any consensus of opinion.  In the decision itself it is 
 
            noted on page six that Bernard L. Kratochvil, M.D., had 
 
            reported that claimant had a disc herniation.  That 
 
            assessment was not predominant however as shown by the 
 
            assessments made by Michael J. Morrison, M.D., Daniel L. 
 
            McKinney, M.D., R. Schuyler Gooding, M.D., and Len Webber, 
 
            M.D.  (arb. dec. page 8; exhibit 8, pp. 3-8, 13 & 16-18).  
 
            The fact that only 20 percent permanent partial disability 
 
            was awarded is a strong indication that the medical 
 
            condition was not considered by the arbitration deputy to be 
 
            extremely disabling.  
 
            
 
                 Since the arbitration decision was entered, claimant 
 
            has had further medical testing.  While at the time of the 
 
            first hearing the existence of a herniated disc was, at 
 
            most, equivocal, the more recent testing shows that the disc 
 
            definitely exists to a very substantial degree.  (exs. 2; 3; 
 
            6; & 8, p. 15).  The CT scan conducted in 1986 was 
 
            interpreted by Dr. Morrison as having an equivocal disc 
 
            finding while the myelogram was considered as being normal.  
 
            (ex. 8, pp. 7-8).  Dr. Gooding interpreted the myelogram and 
 
            CT scan as being normal.  (ex. 8, p. 3).  The nerve 
 
            conduction testing was interpreted as normal.  (ex. 8, p. 
 
            4).  The recent findings irrefutably show a change for the 
 
            worse.  Nothing in the record indicates that such a 
 
            worsening was anticipated.  
 
            
 
                 The record in this case shows no intervening trauma 
 
            since this case was initially heard.  The treatment provided 
 
            to claimant by practitioners is not a plausible explanation 
 
            of the worsening of her condition.  As indicated by Dr. 
 
            Kratochvil in his more recent report of April 19, 1993, the 
 
            condition of claimant's back is due to her 1985 injury.  
 
            (ex. 4).  No physician has even suggested that anything 
 
            other than the original fall in 1985 is responsible for 
 
            producing the claimant's current back difficulties.  
 
            Accordingly, it is found that the fall of September 13, 
 
            1985, is the predominant cause for claimant's current back 
 
            problems, including the herniated disc.
 
            
 
                 Claimant has incurred medical expenses as set forth in 
 
            the document entitled "Itemized Expenses."  There are as 
 
            follows:
 
            
 
                 Bernard Kratochvil, M.D.                $    95.00
 
                 West Omaha Orthopedic Surgeons            1,216.00
 
                 Charles Taylon, M.D.                         65.00
 
                 Jay J. Parsow, M.D.                         240.70
 
                 Radiology Nuclear Medici                    130.00
 
                 Neurological Surgery, Inc.                  125.00
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
                 (Dr. George Green)
 
                 Clifford M. Danneel, M.D.,                  120.00
 
                                          Total           $1,991.70
 
            
 
                 As indicated in the arbitration decision claimant is 
 
            likely a hystroid individual with psychophysiological 
 
            conversion symptoms.  As indicated in the arbitration 
 
            decision at page seven, the conversion reaction is likely an 
 
            aggravation of an emotional condition which resulted from a 
 
            1979 motorcycle accident.
 
            
 
                 One of the critical issues in this case is surgery.  
 
            Charles Taylon, M.D. and George M. Green, M.D., have both 
 
            indicated that surgery is appropriate.  Dr. Danneel seems to 
 
            indicate that surgery would be a reasonable approach.  (exs. 
 
            2, 3 & 5).  Dr. Kratochvil states that conservative care 
 
            should be attempted before proceeding with surgery.  (ex. 
 
            4).  It is recognized that it has now been more than eight 
 
            years since the date of injury in this case.  A great deal 
 
            of conservative care has been provided.  It appears to have 
 
            produced relatively good results at times.  The record of 
 
            this case, however, shows a worsening since February 1991.  
 
            (exs. 3 & 4).  At hearing claimant stated that she was now 
 
            convinced that her condition would not improve without 
 
            surgery and she desires that have surgery to correct her 
 
            herniated disc condition.
 
            
 
                 It is noted that this file shows that on August 2, 
 
            1993, claimant filed an application for alternate medical 
 
            care seeking to have surgery performed.  The defendants 
 
            denied that they were liable for the claimant's condition 
 
            and accordingly, the agency dismissed claimant's application 
 
            for alternate care since defendants denied liability for the 
 
            condition.  That ruling likewise barred defendants from 
 
            raising an "authorization" defense should claimant seek care 
 
            on her own.
 
            
 
                                CONCLUSIONS OF LAW
 
            
 
                 The Iowa Insurance Guaranty Association contends that 
 
            it is not bound by the prior arbitration decision.  That 
 
            decision became final agency action by virtue of a lack of a 
 
            timely appeal.  Res judicata or issue preclusion applies in 
 
            administrative proceedings.  Board of Supervisors, Carroll 
 
            Co. v. Chicago and N.W. Transp. Co., 260 N.W.2d 813 (Iowa 
 
            1977).  Review-reopening proceedings are an exception to the 
 
            normal rules of res judicata and issue preclusion.  Sutton 
 
            v. Glenwood State Hospital School, file number 896346 (App. 
 
            Dec. September 28, 1993).  The statutory basis for 
 
            review-reopening is found in section 86.14 of the Code of 
 
            Iowa.  An additional basis is found in section 85.26(2).  
 
            The key factor is the condition of the employee.  
 
            
 
                 Upon review-reopening, claimant has the burden to show 
 
            a change in condition related to the original injury since 
 
            the original award or settlement was made.  The change may 
 
            be either economic or physical.  Blacksmith v. All-American, 
 
            Inc., 290 N.W.2d 348 (Iowa 1980); Henderson v. Iles, 250 
 
            Iowa 787, 96 N.W.2d 321 (1959).  A mere difference of 
 
            opinion of experts as to the percentage of disability 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            arising from an original injury is not sufficient to justify 
 
            a different determination on a petition for 
 
            review-reopening.  Rather, claimant's condition must have 
 
            worsened or deteriorated in a manner not contemplated at the 
 
            time of the initial award or settlement before an award on 
 
            review-reopening is appropriate.  Bousfield v. Sisters of 
 
            Mercy, 249 Iowa 64, 86 N.W.2d 109 (1957).  A failure of a 
 
            condition to improve to the extent anticipated originally 
 
            may also constitute a change of condition.  Meyers v. 
 
            Holiday Inn of Cedar Falls, Iowa, 272 N.W.2d 24 (Iowa Ct. 
 
            App. 1978).  It has also been held that additional 
 
            compensation may be allowed where it is shown that pertinent 
 
            facts existed but were unknown and could not have been 
 
            discovered by the exercise of reasonable diligence 
 
            previously.  Gosek v. Garmer and Stiles Co., 158 N.W.2d 731, 
 
            735 (Iowa 1968).  
 
            
 
                 First and foremost, the only issues to be addressed in 
 
            a proceeding for review-reopening are those directly related 
 
            to the claimant's disability and whether it has changed.  
 
            Issues such as whether the injury arose out of and in the 
 
            course of employment and the rate of compensation are not 
 
            subject to relitigation.  Even if such were not the rule, it 
 
            would be necessary for defendants to make a showing in the 
 
            nature of a change required for review-reopening.  There is 
 
            nothing in the record of this case which indicates that the 
 
            evidence today regarding whether the injury arose out of and 
 
            in the course of employment or evidence regarding the 
 
            claimant's earnings is any different now than what it would 
 
            have been, through the exercise of reasonable diligence, at 
 
            the time of the arbitration hearing.  Review-reopening is 
 
            not an opportunity for a second bite at the entire apple.  
 
            The fact that the Iowa Insurance Guaranty Association is now 
 
            the named party rather than Rockwood has no bearing on the 
 
            outcome.  The Iowa Insurance Guaranty Association exits by 
 
            virtue of chapter 515B of the Code of Iowa.  Section 515B.5 
 
            clearly makes the Association obligated to pay covered 
 
            claims against Rockwood in the same manner as Rockwood would 
 
            be required to pay if it were not insolvent.  The 
 
            Association stands in the shoes of Rockwood for purposes of 
 
            this claim and has no lawful right to relitigate those 
 
            previously determined issues of whether the injury arose out 
 
            of and in the course of employment and the rate of 
 
            compensation.  
 
            
 
                 The claimant has the burden of proving by a 
 
            preponderance of the evidence that the injury is a proximate 
 
            cause of the disability on which the claim is based.  A 
 
            cause is proximate if it is a substantial factor in bringing 
 
            about the result; it need not be the only cause.  A 
 
            preponderance of the evidence exists when the causal 
 
            connection is probable rather than merely possible.  
 
            Blacksmith v. All-American, Inc., 290 N.W.2d 348 (Iowa 
 
            1980); Holmes v. Bruce Motor Freight, Inc., 215 N.W.2d 296 
 
            (Iowa 1974).
 
            
 
                 The question of causal connection is essentially within 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            the domain of expert testimony.  The expert medical evidence 
 
            must be considered with all other evidence introduced 
 
            bearing on the causal connection between the injury and the 
 
            disability.  The weight to be given to any expert opinion is 
 
            determined by the finder of fact and may be affected by the 
 
            accuracy of the facts relied upon by the expert as well as 
 
            other surrounding circumstances.  The expert opinion may be 
 
            accepted or rejected, in whole or in part.  Sondag v. Ferris 
 
            Hardware, 220 N.W.2d 903 (Iowa 1974); Anderson v. Oscar 
 
            Mayer & Co., 217 N.W.2d 531 (Iowa 1974); Bodish v. Fischer, 
 
            Inc., 257 Iowa 516, 133 N.W.2d 867 (1965).
 
            
 
                 The evidence from Dr. Kratochvil clearly establishes 
 
            that the injury is a proximate cause of the disability upon 
 
            which this claim is based.  There is no evidence in the 
 
            record which suggests anything to the contrary.
 
            
 
                 The employer shall furnish reasonable surgical, 
 
            medical, dental, osteopathic, chiropractic, podiatric, 
 
            physical rehabilitation, nursing, ambulance and hospital 
 
            services and supplies for all conditions compensable under 
 
            the workers' compensation law.  The employer shall also 
 
            allow reasonable and necessary transportation expenses 
 
            incurred for those services.  The employer has the right to 
 
            choose the provider of care, except where the employer has 
 
            denied liability for the injury.  Section 85.27.  Holbert v. 
 
            Townsend Engineering Co., Thirty-second Biennial Report of 
 
            the Industrial Commissioner 78 (Review-reopen 1975).
 
            
 
                 Since the defendants in this case denied liability for 
 
            the claimant's condition when she sought alternate care they 
 
            have lost the right to choose the care which will be 
 
            provided to her.  Claimant is therefore free to pursue a 
 
            course of care with a physician of her choice and defendants 
 
            are responsible for paying the cost of that care to the 
 
            extent that the care is reasonable and that the charges are 
 
            reasonable.  
 
            
 
                 In view of the well documented finding regarding the 
 
            existence of a large herniated disc, such finding is 
 
            determined to constitute a substantial change of 
 
            circumstances that was not anticipated at the time the 
 
            arbitration decision was issued.  It is a fact which could 
 
            not have been discovered at the time of the arbitration 
 
            decision through the exercise of reasonable diligence.  
 
            Accordingly, it constitutes good cause for reopening this 
 
            case.
 
            
 
                 Section 85.34(1) provides that healing period benefits 
 
            are payable to an injured worker who has suffered permanent 
 
            partial disability until (1) the worker has returned to 
 
            work; (2) the worker is medically capable of returning to 
 
            substantially similar employment; or (3) the worker has 
 
            achieved maximum medical recovery.  The healing period can 
 
            be considered the period during which there is a reasonable 
 
            expectation of improvement of the disabling condition.  See 
 
            Armstrong Tire & Rubber Co. v. Kubli, 312 N.W.2d 60 (Iowa 
 
            Ct. App. 1981).  Healing period benefits can be interrupted 
 
            or intermittent.  Teel v. McCord, 394 N.W.2d 405 (Iowa 
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            1986).
 
            
 
                 Effective with the date of this decision, claimant 
 
            shall be placed into a healing period status and defendants 
 
            shall pay additional healing period compensation to claimant 
 
            at the previously determined rate of $229.06 per week until 
 
            such time as one of the three terminating events provided by 
 
            the statute occurs.  In making this order, it is determined 
 
            that there is a reasonable expectation of improvement that 
 
            is likely to occur from additional medical treatment in view 
 
            of the potential for treating the herniated disc 
 
            conservatively as indicated by Dr. Kratochvil or by surgery 
 
            or both.  Claimant may, if so indicated by her treating 
 
            physician, attempt a reasonable course of conservative care 
 
            for a reasonable amount of time before proceeding to surgery 
 
            or before deciding to refrain from surgery.  She is entitled 
 
            to receive the diagnostic tests recommended by her treating 
 
            physician prior to submitting to surgery.  Defendants shall 
 
            continue to pay weekly healing period compensation, 
 
            uninterrupted, until such time as claimant's condition has 
 
            been treated to a conclusion or a condition of stablization.
 
            
 
                 In view of the fact that 20 percent permanent partial 
 
            disability has been previously awarded and that claimant is 
 
            requesting further treatment in the nature of surgery, there 
 
            is every reason to believe that her extent of permanent 
 
            disability may very well be no greater than that which has 
 
            previously been awarded if the surgical procedure is 
 
            successful.  For this reason the current extent of permanent 
 
            partial disability will not be determined in this decision 
 
            even though there is ample evidence upon which to make a 
 
            determination of the extent of increased disability if 
 
            further medical care were not to be provided.  
 
            
 
                 Claimant also seeks to recover costs.  She is entitled 
 
            to recover those costs in the amounts set forth on the 
 
            document entitled "Claimant Expenses/Court Costs.  The 
 
            amount thereof totals $292.
 
            
 
                 Claimant is entitled to recover the medical expenses 
 
            which have been entered into evidence in this case.  This 
 
            recovery is limited to expenses incurred since the 
 
            arbitration hearing.
 
            
 
                                      ORDER
 
            
 
                 IT IS THEREFORE ORDERED that defendants pay Jennifer 
 
            McGruder weekly compensation for healing period at the rate 
 
            of two hundred twenty-nine and 06/100 dollars ($229.06) per 
 
            week commencing on the date of this decision and continuing 
 
            thereafter for so long as she remains entitled to receive 
 
            healing period compensation in accordance with the terms of 
 
            this decision and section 85.34(1) of the Code of Iowa.
 
            
 
                 It is further ordered that defendants promptly pay the 
 
            medical expenses that claimant incurs in obtaining treatment 
 
            for her back condition, including diagnostic tests, 
 
            conservative care, evaluation, and surgery, all in 
 
            accordance with the provisions of this decision.  Defendants 
 
            shall not have the right to choose the care since they 
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
            denied liability for the condition.  
 
            
 
                 It is further ordered that defendants pay the following 
 
            medical expenses incurred by claimant:  
 
            
 
                 Bernard Kratochvil, M.D.                $    95.00
 
                 West Omaha Orthopedic Surgeons            1,216.00
 
                 Charles Taylon, M.D.                         65.00
 
                 Jay J. Parsow, M.D.                         240.70
 
                 Radiology Nuclear Medi                      130.00
 
                 Neurological Surgery, Inc.                  125.00
 
                 (Dr. George Green)
 
                 Clifford M. Danneel, M.D.,                  120.00
 
                                          Total           $1,991.70
 
            
 
                 It is further ordered that defendants pay to claimant 
 
            the sum of two hundred ninety dollars ($292) representing 
 
            costs pursuant to rule 343 IAC 4.33.
 
            
 
                 It is further ordered that defendants file claim 
 
            activity reports as requested by this agency.
 
            
 
                 Signed and filed this __________ day of March, 1994.
 
            
 
            
 
            
 
            
 
                                          ______________________________
 
                                          MICHAEL G. TRIER
 
                                          DEPUTY INDUSTRIAL COMMISSIONER    
 

 
            
 
            Page   8
 
            
 
            
 
            
 
            
 
            
 
            Copies to:
 
            
 
            Mr. Cecil Goettsch
 
            Mr. D. Brian Scieszinski
 
            Attorneys at Law
 
            801 Grand Ave STE 3700
 
            Des Moines, Iowa  50309-2727
 
            
 
            Mr. Sheldon Gallner
 
            Attorney at Law
 
            803 3rd Ave 
 
            PO Box 1588
 
            Council Bluffs, Iowa  51502
 
            
 
 
         
 
         
 
         
 
         
 
                                                 2905 2501 2701 1802
 
                                                 Filed March 9, 1994
 
                                                 Michael G. Trier
 
         
 
                      BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         ----------------------------------------------------------------
 
                   
 
         JENNIFER MCGRUDER,  
 
                   
 
              Claimant, 
 
                                               File No. 825195
 
         vs.       
 
                   
 
         MANAS BALAGNA d/b/a 
 
         AUNT BEA'S,                     R E V I E W - R E O P E N I N G
 
                    
 
              Employer, 
 
                                               D E C I S I O N
 
         and       
 
                   
 
         IOWA INSURANCE GUARANTY  
 
         ASSOCIATION, on behalf of    
 
         ROCKWOOD INSURANCE, 
 
                   
 
              Insurance Carrier,  
 
              Defendants.    
 
         ----------------------------------------------------------------
 
         
 
         2905
 
         Claimant was diagnosed with a herniated disc subsequent to the 
 
         arbitration hearing,  Such was a basis for review-reopening.  It 
 
         was held that in a review-reopening decision, the Iowa Insurance 
 
         Guaranty Association stands in the shoes of the insolvent insurer 
 
         and is not entitled to relitigate the issues of injury arising 
 
         out of and in the course of employment and the rate of 
 
         compensation.
 
         
 
         2501 2701
 
         Claimant had brought a proceeding seeking alternate care but 
 
         defendants denied liability and they were prohibited from raising 
 
         authorization as a defense.  Claimant sought for surgery and was 
 
         allowed to select her own care at defendants' expense subject to 
 
         the care.
 
         
 
         1802 1803
 
         Claimant awarded healing period commencing with the date of the 
 
         decision and to continue indefinitely in accordance with the 
 
         statute while the ordered care is being provided.
 
         Permanent partial disability was not addressed since the amount 
 
         previously awarded might ultimately be determined adequate if the 
 
         expected surgery is successful.
 
         
 
 
         
 
 
 
 
 
 
 
 
 
 
 
                   BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         _________________________________________________________________
 
                     
 
         WILLIAM E. JARRETT, JR.,   
 
                     
 
              Claimant,   
 
                     
 
         vs.         
 
                                                   File No. 825200
 
         CHURCHILL TRUCK LINES, INC.,    
 
                                                      A P P E A L
 
              Employer,   
 
                                                    D E C I S I O N
 
         and         
 
                     
 
         LIBERTY MUTUAL INSURANCE CO.,   
 
                     
 
              Insurance Carrier,    
 
              Defendants.      
 
         _________________________________________________________________
 
         The record, including the transcript of the hearing before the 
 
         deputy and all exhibits admitted into the record, has been 
 
         reviewed de novo on appeal.  The decision of the deputy filed 
 
         January 5, 1993 is affirmed and is adopted as the final agency 
 
         action in this case.
 
         Defendants shall pay the costs of the appeal, including the 
 
         preparation of the hearing transcript.
 
         Signed and filed this ____ day of November, 1993.
 
         
 
         
 
         
 
         
 
                                    ________________________________
 
                                             BYRON K. ORTON
 
                                        INDUSTRIAL COMMISSIONER
 
         
 
         Copies To:
 
         
 
         Mr. William Bauer
 
         Attorney at Law
 
         P.O. Box 517
 
         Burlington, Iowa 52601
 
         
 
         Mr. Greg A. Egbers
 
         Attorney at Law
 
         600 Union Arcade Bldg.
 
         111 East Third St.
 
         Davenport, Iowa 52801-1596
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                           5-1803
 
                                           Filed November 18, 1993
 
                                           Byron K. Orton
 
            
 
                      BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
            
 
            WILLIAM E. JARRETT, JR.,   
 
                        
 
                 Claimant,   
 
                        
 
            vs.         
 
                                                File No. 825200
 
            CHURCHILL TRUCK LINES, INC.,    
 
                                                  A P P E A L
 
                 Employer,   
 
                                                D E C I S I O N
 
            and         
 
                        
 
            LIBERTY MUTUAL INSURANCE CO.,   
 
                        
 
                 Insurance Carrier,    
 
                 Defendants.      
 
            ____________________________________________________________
 
            
 
            5-1803
 
            Claimant awarded permanent total disability benefits.
 
            
 
            
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            WILLIAM E. JARRETT, JR.,      :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :      File No. 825200
 
            CHURCHILL TRUCK LINES, INC.,  :
 
                                          :     A R B I T R A T I O N
 
                 Employer,                :
 
                                          :       D E C I S I O N
 
            and                           :
 
                                          :
 
            LIBERTY MUTUAL INSURANCE      :
 
            COMPANY,                      :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
                              statement of the case
 
            
 
                 This is a proceeding in arbitration brought by William 
 
            E. Jarrett, Jr., claimant, against Churchill Truck Lines, 
 
            Inc., employer, and Liberty Mutual Insurance Company, both 
 
            as defendants.  Mr. Jarrett bases his claim upon an injury 
 
            arising out of and in the course of his employment on May 
 
            19, 1986.
 
            
 
                 The record in this case consists of the testimony from 
 
            the claimant; Steve Waterman, the Mediapolis High School 
 
            Superintendent; G. Brian Paprocki, a vocational consultant; 
 
            Marilyn Marshall, claimant's sister-in-law; and, Kathryn 
 
            Jarrett, claimant's wife; claimant's exhibits 1 through 4; 
 
            and, defendants' exhibits A through P.
 
            
 
                 This matter came on for hearing before the undersigned 
 
            deputy industrial commissioner on December 18, 1992, at 
 
            Burlington, Iowa.
 
            
 
                                      issue
 
            
 
                 The sole issue to be determined is the nature and 
 
            extent of claimant's disability.
 
            
 
                                 FINDINGS OF FACT
 
            
 
                 The undersigned deputy, having reviewed all of the 
 
            evidence received and having presided at the hearing, finds 
 
            the following facts:
 
            
 
                 Claimant, William Jarrett, was born on February 5, 
 
            1955, and was 37 years old at the time of the hearing.  He 
 
            is married and has two sons ages 19 and 15.  Claimant 
 
            completed the ninth grade, but quit school while he was a 
 
            sophomore in high school.  He attempted to earn his GED in 
 
            July of 1988, but was unsuccessful due to his inability to 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            sit comfortably during class.
 
            
 
                 Claimant's employment history is concentrated in the 
 
            general labor field.  In 1973, he began working as a gas 
 
            station attendant, a job he held for approximately three 
 
            years.  He then became an employee of First Mississippi 
 
            Company and worked as a general laborer.  From 1973 to 1974, 
 
            claimant worked for U.S. Borax as a general laborer.  His 
 
            job duties included stacking onto pallets or boxcars boxes 
 
            of soap weighing approximately 35 pounds.
 
            
 
                 In 1974, claimant began working for U.S. Gypsum 
 
            Company.  Claimant received several promotions during his 
 
            ten years with U.S. Gypsum, and received on-the-job training 
 
            in mechanics.
 
            
 
                 In November of 1978, claimant began working for 
 
            defendant Churchill Truck Lines.  Claimant received 
 
            on-the-job training as a diesel mechanic and was 
 
            instrumental in the repair of various engine parts for semi 
 
            trucks, including heavy wheels, motors, lights, floorboards, 
 
            clutches and differentials.  At times, claimant was required 
 
            to lift between 125 to 170 pounds.  His job duties required 
 
            him to perform an extensive amount of bending and twisting.  
 
            Claimant described his occupation as "heavy" labor.  
 
            Claimant stated that he worked continuously from his date of 
 
            hire until his injury in May of 1986.
 
            
 
                 Claimant first began to experience problems on May 14, 
 
            1986.  While performing his job duties, he felt pain in his 
 
            low back and legs.  He was sent to the company doctor, J. 
 
            Kivlahan, M.D.  Dr. Kivlahan is a general surgeon located in 
 
            Burlington, Iowa.  Dr. Kivlahan's notes do not reflect any 
 
            treatment on May 14, 1986 but contain entries for an 
 
            incident reported on May 19, 1986.  Specifically, a 
 
            surgeon's report notes that claimant sustained a strain in 
 
            the left inguinal region which resulted in acute low back 
 
            strain and a possible herniated disc.  Results of x-rays of 
 
            the lumbosacral area were negative, and claimant was 
 
            referred to an orthopedic surgeon.  Claimant was also 
 
            hospitalized in June of 1986 (Joint Exhibit B, pages 1-13).
 
            
 
                 Claimant was first referred to Harry Honda, M.D., a 
 
            neurological surgeon, who recommended claimant undergo a 
 
            myelogram and a CT scan (Jt. Ex. E, pp. 1-2).  Claimant was 
 
            then seen by Duane Nelson, M.D.  Dr. Nelson's notes indicate 
 
            that therapy undertaken by claimant had been unsuccessful, 
 
            and he was to be hospitalized again in July of 1986.  Dr. 
 
            Nelson finally diagnosed a disc prolapse or herniation at 
 
            the L5-S1 level.  He recommended epidural steroid 
 
            injections, and referred claimant to physicians at the 
 
            University of Iowa Hospitals and Clinics (Jt. Ex. C, pp. 5-6 
 
            and 8-12).
 
            
 
                 In August of 1986, claimant was treated by numerous 
 
            physicians at the University of Iowa Clinics, including 
 
            Doctors Weinstein, Walsh, Noe and Kumar.  Initially, 
 
            claimant was diagnosed with low back pain of unknown 
 
            etiology.  It was recommended that he continue conservative 
 
            management and return to work with no activity restrictions.  
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            Claimant was referred to the Spine Diagnostic and Treatment 
 
            Center at the University of Iowa Hospitals for inpatient 
 
            rehabilitation (Jt. Ex. D, pp. 1-3).
 
            
 
                 Apparently, claimant attempted a return to work but was 
 
            unable to perform his job duties.  Dr. Kivlahan then 
 
            referred claimant to the Steinndler Clinic, where claimant 
 
            was treated by W. Pontarelli, M.D., and E. Law, M.D.  Dr. 
 
            Pontarelli reviewed the myelogram and the CT scan and was of 
 
            the opinion that claimant had a central herniated disc with 
 
            a likely extruded fragment in the sacrum of the spine.  He 
 
            believed claimant had been through a sufficient trial of 
 
            conservative treatment and admitted claimant for a 
 
            discectomy which was performed on September 15, 1986 (Jt. 
 
            Ex. F, pp. 1-6).
 
            
 
                 As part of his postoperative treatment plan, claimant 
 
            began a progressive work hardening program to increase 
 
            flexibility in his back (Jt. Ex. F, pp. 9-10).
 
            
 
                 In January of 1987, claimant returned to Mercy Hospital 
 
            in Iowa City.  Dr. Law recommended a second discectomy which 
 
            was performed on February 10, 1987 (Jt. Ex. F, pp. 22-23 and 
 
            26).
 
            
 
                 Postoperative treatment included exercises recommended 
 
            by Dr. Law who eventually recommended a functional capacity 
 
            assessment at the Burlington Medical Center.  The results of 
 
            the assessment indicated that claimant should not perform 
 
            repeated standup lifts, avoid kneeling for more than five 
 
            minutes at a time, avoid lifting or moving any objects 
 
            weighing more than 20 pounds.  Claimant could pull a maximum 
 
            of 45 pounds and push a maximum of 55 pounds.  He was not to 
 
            perform any repeated bending movements beyond two minutes at 
 
            a time and was unable to sit for more than ten minutes.  
 
            Claimant could not stand for more than nine minutes and was 
 
            not to perform prolonged walking of more than ten minutes 
 
            without rest.  Claimant was unable to carry more than ten 
 
            pounds more than 100 feet.  He was to avoid repeated stair 
 
            climbing and was not to climb ladders.  He was not to 
 
            perform any repetitive bending or stooping.  Impairment 
 
            ratings included a 15 percent impairment of the right lower 
 
            extremity secondary to pain and loss of strength and a 15 
 
            percent impairment of the body as a whole based on loss of 
 
            motion in the lumbar spine.  An additional 5 percent 
 
            impairment was assessed to claimant based on the residuals 
 
            of two disc surgeries.  As a result, Dr. Law found claimant 
 
            to have sustained a 24 percent impairment to the body as a 
 
            whole (Jt. Ex. F, pp. 39-40).
 
            
 
                 Claimant then undertook an aggressive vocational 
 
            rehabilitation campaign with Pam Hirshberg and Karen 
 
            Hogberg.  The counselors recommended that claimant take the 
 
            GATB test and although the scores are provided to the 
 
            undersigned, the interpretation of the scores was not.  
 
            Claimant expressed interest in obtaining his GED and 
 
            interest in pursuing the JTPA program.  Throughout the 
 
            vocational rehabilitation reports, in excess of 50 pages, 
 
            there are references to claimant's physical condition and 
 
            his inability to perform the type of work which he performed 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            prior to the accident.  At one point, the counselors 
 
            suggested volunteer work, and in the end were unable to help 
 
            claimant secure a suitable employment.  Claimant did not 
 
            pass the GED test.
 
            
 
                 After continued problems with his low back and right 
 
            leg, claimant returned to Dr. Law who referred him to the 
 
            Institute For Low Back Care in Minneapolis.  Claimant met 
 
            with Alexander Lifson, M.D., who recommended claimant 
 
            undergo surgery for implantation of a spinal cord 
 
            neurostimulator.  Apparently, the insurance carrier for the 
 
            employer felt the costs of the procedure were too high, and 
 
            did not authorize the surgery.  Claimant was scheduled for 
 
            an appointment with William Boulden, M.D., in Des Moines 
 
            (Jt. Ex. J, pp. 50-52).
 
            
 
                 Claimant first met with Dr. Boulden in November of 
 
            1988.  A physical examination showed that claimant had a 
 
            "very positive" straight leg raising test result on the 
 
            right side.  Reflexes were absent in the right ankle and 
 
            claimant displayed decreased sensation on the right side at 
 
            the L5-S1 level.  Claimant showed a marked limitation of 
 
            left and right lateral bending, extension and forward 
 
            flexion.  Dr. Boulden was of the opinion that claimant had 
 
            two failed back discectomies at the L5-S1 level.  He 
 
            indicated that claimant may have a damaged S1 nerve root and 
 
            proposed that a neural stimulator may be the only choice of 
 
            treatment.  However, Dr. Boulden recommended that further 
 
            testing in the form of a discogram and further treatment of 
 
            facet blocks be used prior to the implantation of the neural 
 
            stimulator (Jt. Ex. G, p. 1).
 
            
 
                 Apparently, Dr. Boulden reviewed an MRI and recommended 
 
            claimant undergo diagnostic injections.  Approval for the 
 
            same was slow in coming from the insurance carrier, and 
 
            claimant was eventually scheduled for outpatient surgery in 
 
            the form of a facet block and discogram (Jt. Ex. G, pp. 1-
 
            2). 
 
            
 
                 After reviewing the results of the facet block and 
 
            discograms, Dr. Boulden recommended claimant undergo an 
 
            anterior fusion to stabilize his spine at the L5-S1 level 
 
            (Jt. Ex. G, pp. 3-4).  This procedure was performed on March 
 
            29, 1989, at the Iowa Lutheran Hospital in Des Moines, Iowa.  
 
            He was referred to the manual therapy center for a physical 
 
            therapy program designed to provide pain relief and enhance 
 
            his overall functional capabilities.  It was recommended 
 
            that claimant be provided a rehabilitation program in Iowa 
 
            City due to the distance between his home and Des Moines.  
 
            Again, it appears that the insurance company was slow in 
 
            authorizing such therapy and even Dr. Boulden became 
 
            frustrated that claimant's rehabilitation therapy was 
 
            delayed (Jt. Ex. G, p. 11).
 
            
 
                 Claimant finally received physical therapy in Iowa City 
 
            approximately six or seven months after it had been 
 
            recommended.
 
            
 
                 Upon release from Dr. Boulden in January of 1990, he 
 
            provided the following restrictions:
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            
 
                    Based on our last examination of Mr. Jarrett, 
 
                 we feel that he will need to return to a job that 
 
                 entails no lifting, bending, twisting, pushing or 
 
                 pulling with his back.  He is also to engage in no 
 
                 sitting/standing for greater than 45 minutes at a 
 
                 time.  Weight restrictions, of course, would be 
 
                 based on a functional capacities evaluation.
 
            
 
            (Jt. Ex. G, p. 16)
 
            
 
                 Upon receipt of the restrictions, the employer, 
 
            Churchill Truck Lines, developed an opening for on-the-job 
 
            training of the computer system for the shop.  David 
 
            Edwards, the director of safety and personnel, stated that 
 
            the position would require claimant to stand or sit for less 
 
            than 45 minutes at a time, and would also include light 
 
            janitorial work such as sweeping, cleaning and painting.  
 
            Claimant would also have to supply and stock light truck 
 
            parts such as seals and lights (Jt. Ex. G, p. 18).
 
            
 
                 When claimant returned to work on November 5, 1990, he 
 
            was required to stand on a cement floor.  The employer 
 
            refused to cover the floor with carpet or a rubber mat 
 
            because of the potential safety hazards involved.  Claimant 
 
            was also willing to buy a special orthopedic chair which 
 
            would enable him to sit more comfortably, but the company 
 
            refused to allow claimant to supply a chair due to the 
 
            limited office space.  Claimant had initially started work 
 
            for 40 hours per week.  Eventually, he began working eight 
 
            hours per day every other day, then four hours every day, 
 
            and eventually four hours every other day.  He testified 
 
            that his low back and right leg continued to hurt and that 
 
            he sometimes fell due to loss of strength in his right leg.  
 
            This, coupled with supposedly good natured but very 
 
            insensitive teasing from fellow coworkers, caused claimant 
 
            to leave his position with Churchill Truck Lines.  In May of 
 
            1991, claimant received a formal letter of termination from 
 
            the company (Claimant's Exhibit 2).
 
            
 
                 Claimant currently receives social security disability 
 
            payments.  The most recent activity restrictions can be 
 
            found from a report from the Spine Diagnostic and Treatment 
 
            Center dated April 10, 1991.  Apparently, this is a six 
 
            month rehabilitation follow-up report which suggests that 
 
            claimant would no longer be able to continue with any work 
 
            situation at Churchill Truck Lines (Jt. Ex. K, p. 44).
 
            
 
                 Defendants offered exhibit M, a video tape of 
 
            claimant's activities during a move by the school district 
 
            from one building to another.  The undersigned reviewed the 
 
            entire tape.  When claimant was shown, he was walking, 
 
            standing and carrying a clipboard.  In one sequence, he 
 
            jogged a short distance to a truck, climbed in, and drove it 
 
            a short distance.  The video was shot in the summer of 1990.  
 
            Since that time, claimant has experienced several falls due 
 
            to weakness in his right leg.  A physician prescribed a 
 
            walker, and claimant was using a cane while at the hearing.
 
            
 
                         ANALYSIS and conclusions of law
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            
 
                 The sole issue to be determined is the nature and 
 
            extent of claimant's disability.
 
            
 
                 As claimant has sustained an injury to the body as a 
 
            whole, an evaluation of his industrial disability is 
 
            warranted.
 
            
 
                 Functional impairment is an element to be considered in 
 
            determining industrial disability which is the reduction of 
 
            earning capacity, but consideration must also be given to 
 
            the injured employee's age, education, qualifications, expe
 
            rience 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 disabil
 
            ity.  This is so as impairment and disability are not syn
 
            onymous.  Degree of industrial disability can in fact be 
 
            much different than the degree of impairment because in the 
 
            first instance reference is to loss of earning capacity and 
 
            in the latter to anatomical or functional abnormality or 
 
            loss.  Although loss of function is to be considered and 
 
            disability can rarely be found without it, it is not so that 
 
            a degree of industrial disability is proportionally related 
 
            to a degree of impairment of bodily function.
 
            
 
                 Factors to be considered in determining industrial dis
 
            ability include the employee's medical condition prior to 
 
            the injury, immediately after the injury, and presently; the 
 
            situs of the injury, its severity and the length of healing 
 
            period; the work experience of the employee prior to the 
 
            injury, after the injury and potential for rehabilitation; 
 
            the employee's qualifications intellectually, emotionally 
 
            and physically; earnings prior and subsequent to the injury; 
 
            age; education; motivation; functional impairment as a 
 
            result of the injury; and inability because of the injury to 
 
            engage in employment for which the employee is fitted.  Loss 
 
            of earnings caused by a job transfer for reasons related to 
 
            the injury is also relevant.  These are matters which the 
 
            finder of fact considers collectively in arriving at the 
 
            determination of the degree of industrial disability.
 
            
 
                 There are no weighting guidelines that indicate how 
 
            each of the factors are to be considered.  There are no 
 
            guidelines which give, for example, age a weighted value of 
 
            ten percent of the total value, education a value of fifteen 
 
            percent of total, motivation - five percent; work experience 
 
            - thirty percent, etc.  Neither does a rating of functional 
 
            impairment directly correlate to a degree of industrial 
 
            disability to the body as a whole.  In other words, there 
 
            are no formulae which can be applied and then added up to 
 
            determine the degree of industrial disability.  It therefore 
 
            becomes necessary for the deputy or commissioner to draw 
 
            upon prior experience, general and specialized knowledge to 
 
            make the finding with regard to degree of industrial dis
 
            ability.  See Peterson v. Truck Haven Cafe, Inc., (Appeal 
 
            Decision, February 28, 1985); Christensen v. Hagen, Inc., 
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
            (Appeal Decision, March 26, l985).
 
            
 
                 At the time of the injury, claimant was 31 years of 
 
            age.  His work history has been focused primarily in the 
 
            heavy labor type positions.  Claimant does not possess a 
 
            high school diploma, and failed to obtain his GED due to low 
 
            test scores which he blames on his inability to sit for 
 
            extended periods of time.
 
            
 
                 Many attempts at vocational rehabilitation were 
 
            undertaken, but to no avail.  With three back surgeries and 
 
            claimant's non-achievement in the educational aspect of his 
 
            life, he is not an attractive employee.  In fact, the 
 
            employer at the time of the injury was very reluctant to 
 
            re-employ claimant after the surgeries, and showed almost a 
 
            total disregard for claimant's plight in trying to 
 
            accommodate his physical limitations via proper equipment 
 
            and recommended changes in the work station.
 
            
 
                 The job finally offered to claimant paid approximately 
 
            one-half of what claimant had been earning at the time of 
 
            the injury.  Claimant is unable to return to the work he was 
 
            performing at the time of the injury.  This in and of itself 
 
            makes his industrial disability great.
 
            
 
                 Claimant has been saddled with very limited activities 
 
            due to his medically imposed restrictions.  Most notably, he 
 
            is unable to lift more than 20 pounds.  He is not to perform 
 
            any bending, twisting, pushing or pulling with his back.  He 
 
            cannot sit or stand for more than 45 minutes at a time.
 
            
 
                 It is difficult to imagine what type of job claimant 
 
            could secure and satisfactorily perform given these 
 
            restrictions.  Although defendant employer offered 
 
            employment, the undersigned is skeptical about whether the 
 
            employment was suitable for claimant and his physical 
 
            limitations.  Likewise, a mere offer of employment, without 
 
            additional cooperation to accommodate claimant's limitations 
 
            is unacceptable to the undersigned.
 
            
 
                 Claimant is a long-term employee with the defendant 
 
            employer with experience in little else other than as a 
 
            mechanic.
 
            
 
                 Claimant's actual loss of earnings, coupled with his 
 
            restrictions on any activities he performs, will make him a 
 
            difficult person to place in gainful employment.  As a 
 
            result, it is found that claimant is permanently, totally 
 
            disabled.
 
            
 
                                      order
 
            
 
                 THEREFORE, it is ordered:
 
            
 
                 That claimant is entitled to permanent total disability 
 
            payments paid at the rate of three hundred fifty-six and 
 
            48/100 dollars ($356.48) per week commencing on November 1, 
 
            1990.
 
            
 
                 That defendants shall pay interest on benefits herein 
 

 
            
 
            Page   8
 
            
 
            
 
            
 
            
 
            as set forth in Iowa Code section 85.30.
 
            
 
                 That defendants shall receive credit for weekly 
 
            benefits previously paid.
 
            
 
                 That defendants shall pay the costs of this action 
 
            pursuant to rule 343 IAC 4.33.
 
            
 
                 That defendants shall file an activity report upon 
 
            payment of this award as required by the agency pursuant to 
 
            rule 343 IAC 3.1.
 
            
 
                 Signed and filed this ____ day of January, 1993.
 
            
 
            
 
            
 
            
 
                                          
 
            ________________________________
 
                                          PATRICIA J. LANTZ
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr William Bauer
 
            Attorney at Law
 
            100 Valley St
 
            P O Box 517
 
            Burlington IA 52601
 
            
 
            Mr Greg A Egbers
 
            Attorney at Law
 
            600 Union Arcade Bldg
 
            111 E 3rd St
 
            Davenport IA 52801
 
            
 
            
 
                 
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                      5-1803
 
                      Filed January 5, 1993
 
                      Patricia J. Lantz
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            WILLIAM E. JARRETT, JR.,      :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :      File No. 825200
 
            CHURCHILL TRUCK LINES, INC.,  :
 
                                          :     A R B I T R A T I O N
 
                 Employer,                :
 
                                          :       D E C I S I O N
 
            and                           :
 
                                          :
 
            LIBERTY MUTUAL INSURANCE      :
 
            COMPANY,                      :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
            5-1803
 
            Claimant awarded permanent total disability benefits.
 
            
 
            
 
 
         
 
 
 
 
 
 
 
 
 
 
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         CINDY ROBERTS,
 
         
 
              Claimant,
 
                                                File Nos. 825371
 
                                                       831987
 
         VS.
 
         
 
         ARMOUR PROCESSED MEAT COMPANY,
 
                                               A R B I T R A T I 0 N
 
              Employer,
 
                                               D E C I S I 0 N 
 
         and
 
         
 
         HARTFORD INSURANCE GROUP,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         
 
                                   INTRODUCTION
 
         
 
              This is a proceeding in arbitration brought by the 
 
         claimant, Cindy Roberts, against Armour Processed Meat Company, 
 
         employer, and the Hartford Insurance Group, insurance carrier, 
 
         defendants, to recover benefits as a result of alleged injuries 
 
         on May 28, 1986 and August 28, 1986.  This matter came on for 
 
         hearing before the deputy industrial commissioner in Des Moines, 
 
         Iowa, on October 26, 1989.  The record consists of the testimony 
 
         of claimant, Roger Marquardt, Kathryn Bennett, and Bruce 
 
         Heitmann; joint exhibits 1 and 2.
 
         
 
                                      ISSUES
 
         
 
              The issues the parties set out in the prehearing for 
 
         resolution are the same for both injuries, namely:
 
         
 
              1. Whether claimant's injuries arose out of and in the 
 
         course of claimant's employment;
 
         
 
              2. Whether claimant's alleged disability is caSUally 
 
         connected to the respective injury;
 
         
 
              3. The nature and extent of claimant's disability; and
 
         
 
              4. Claimant's entitlement to medical benefits under Iowa 
 
         Code section 85.27.
 
         
 
         
 
         
 
         ROBERTS V. ARMOUR PROCESSED MEAT CO.
 
         Page 2
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         
 
                              REVIEW OF THE EVIDENCE
 
         
 
              Claimant testified she is 33 years old and has only a high 
 
         school education.  Claimant described her jobs beginning in high 
 
         school until she began working for the defendant employer on 
 
         December 19, 1983.  These prior jobs involved working as a 
 
         cashier, sales clerk and stocker at K-Mart; a laborer at A.M.P.I. 
 
         (Associated Milk Producers); as a laborer at Amana Refrigeration, 
 
         driving a forklift and working on the lines spot welding; and a 
 
         chicken sexer and machine cleaner at Hy-Cross Chicks.  She said 
 
         her hourly wages ran between minimum pay to $7.00 per hour.  
 
         Claimant stated that her health was good when she began working 
 
         with defendant-employer on December 19, 1983.  She said she had 
 
         no problems with her arms, neck and shoulders at the time.
 
         
 
              Claimant described her duties at defendant employer as 
 
         working first on the grill line placing fifteen strips of bacon 
 
         on a piece of paper and placing them in a box.  She said she was 
 
         constantly lifting these fifteen pound boxes during the entire 
 
         day.  Claimant testified she then progressed into other jobs 
 
         involving molding and scaling bacon in one pound packages and 
 
         removing bacon caught in a package seal.  This latter job also 
 
         involved lifting a 45 pound bucket every half hour.  Claimant 
 
         indicated she was making $7.75 per hour at this time.
 
         
 
              Claimant said she first saw the company nurse involving her 
 
         left hand on May 21, 1986, at which time the nurse gave her some 
 
         Tylenol.  Claimant then saw Adrian J. Wolbrink, M.D., on June 13, 
 
         1986 because of her left arm pain.  The doctor took claimant off 
 
         work June 16, 1986 through June 29, 1986.
 
         
 
              Claimant stated the company nurse referred her to Michael 
 
         W. Crane, M.D., on September 2, 1986 due to her right hand 
 
         problem.  Claimant was taken off work by Dr. Crane on September 
 
         3, 1986 through September 26, 1986.  Claimant indicated she had 
 
         no pain at this time in her forearm.  Claimant said she is right 
 
         handed.  Claimant said she returned to her same job of scaling.  
 
         Claimant said she got along okay.  She indicated that the company 
 
         nurse would wrap her arm and provide Tylenol.
 
         
 
              Claimant testified she went to Dr. Crane in February 1987 
 
         as the pain got worse in her right elbow, shoulder and neck.  
 
         Claimant emphasized she never had shoulder and neck pain before.  
 
         Claimant said she was placed on medication, physical therapy and 
 
         cortisone in her shoulder on February 16, 1987.  Claimant stated 
 
         she was off work again beginning on or around February 21, 1987.  
 
         Claimant indicated the pain in her neck and right arm was getting 
 
         worse and she couldn't stand it.  Claimant said Dr. Crane sent 
 
         her to Sant M.S. Hayreh, M.D., in June of 1987 for an evaluation 
 
         because of the pain in her right upper extremity.  She indicated 
 
         the doctor ruled out carpal tunnel.
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         ROBERTS V. ARMOUR PROCESSED MEAT CO.
 
         Page 3
 
         
 
         
 
              Claimant indicated she worked four hours per day June 22, 
 
         1987 to and including July 10, 1987 and received temporary 
 
         partial disability benefits.  She said she left this work because 
 
         defendant employer ran out of light duty work for her to do.
 
         
 
              Claimant said she then was referred to and saw Peter D. 
 
         Wirtz, M.D., on September 29, 1987.  He recommended she return to 
 
         work on October 5, 1987.  Claimant contends she could not work 
 
         and left the next day, October 6, 1987.  Claimant said she hasn't 
 
         been back to work.  Claimant said she was making $7.50 per hour 
 
         when she left defendant employer.
 
         
 
              Claimant testified ulnar surgery was suggested to her on 
 
         November 24, 1987 but she did not have it until May 1988.  This 
 
         surgery was performed by Sterling J. Laaveg, M.D.
 
         
 
              Claimant also testified through her deposition taken 
 
         January 24, 1989 that her neck problems came on gradually the 
 
         latter part of November 1986 and became worse in February 1987.  
 
         Claimant could not relate to any particular incident that caused 
 
         this problem.
 
         
 
              On January 24, 1989, claimant said that the only complaint 
 
         was pain in her neck, right shoulder and some numbness in her 
 
         hand and down her right arm.  Claimant also said she was not 
 
         having problem with her left wrist and indicated that problem was 
 
         in May of 1986.
 
         
 
              Claimant said she has not looked for work.  She indicated 
 
         she started working in 1988 through a vocational rehabilitation 
 
         counselor to see what she could do.  Claimant revealed she 
 
         currently spends the day watching television and doing light 
 
         housework.
 
         
 
              Claimant acknowledged that she has competed in five to six 
 
         bow and arrow tournaments while employed at Armour.  She 
 
         indicated she shoots once a month versus once a week before she 
 
         was injured.  Claimant said the bow has a 45 pound drawback, 24 
 
         pound holding weight, and the bow and arrow weighs 12 to 15 
 
         pounds.  Claimant stated she also used to bowl once a week.
 
         
 
              Bruce Heitmann said he was subpoenaed to testify.  He said 
 
         he was familiar with the work claimant did, which involved 
 
         feeding and arranging bacon.  He indicated he worked seven feet 
 
         from claimant in May of 1986.  He described the nature of the job 
 
         and the necessary hand movements involved in performing the job.
 
         
 
              Roger Marquardt, vocational rehabilitation consultant, 
 
         testified as to the various records of the claimant he reviewed 
 
         in arriving at his report.  He characterized claimant as a low 
 
         normal intellectual.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         
 
         
 
         ROBERTS V. ARMOUR PROCESSED MEAT CO.
 
         Page 4
 
         
 
         
 
              Marquardt opined that claimant could not go back and do any 
 
         of the work she has done this last eighteen years under Dr. 
 
         Laaveg's restrictions.  He emphasized claimant's past work 
 
         history would be considered unskilled.  He indicated there are no 
 
         past skills that claimant could use in work that she is currently 
 
         able to perform.  Marquardt said a sedentary job would be out for 
 
         claimant at her current functional level.  He encouraged claimant 
 
         to get a GED.  He asserted that claimant is adaptable to be 
 
         retrained to a degree.  He said claimant has a good work record, 
 
         evaluation and motivation.  He emphasized age is on claimant's 
 
         side.  He indicated claimant is considered totally disabled at 
 
         this time.
 
         
 
              Marquardt emphasized that it is best for claimant to seek a 
 
         rehabilitation job with work hardening as she is deteriorating 
 
         doing nothing.  He agreed that if claimant hasn't looked for work 
 
         since October 1987, this could show lack of motivation.
 
         
 
              Kathryn Bennett, a vocational rehabilitation consultant 
 
         with Eischen Rehabilitation Services, testified that her job is 
 
         to help injured workers, doctors and employers get the worker 
 
         back to work.  She described the information provided her by the 
 
         defendants' attorney, which included claimant's medical records 
 
         so she could determine claimant's employability.  She concluded 
 
         claimant has transferable skills and could work independently.  
 
         Bennett said claimant is employable, but being off work can 
 
         affect a person's motivation.  Bennett acknowledged a state 
 
         vocational rehabilitation report concluded claimant was not 
 
         capable of competitive employment.  She admitted that this final 
 
         report is accepted as the entire staff's opinion.  Bennett 
 
         further admitted that Dr. Hines indicated claimant's cognitive 
 
         ability as very low - normal to borderline mental deficiency.
 
         
 
              David A. Boarini, M.D., a neurosurgeon, testified by 
 
         deposition on July 17, 1989 that he has seen claimant on two 
 
         occasions, namely, July 30, 1987 and February 23, 1989.  He 
 
         indicated he thought at the time claimant had a myofascial neck 
 
         pain and could not find any neurological abnormality.  He thought 
 
         a referral to a pain clinic may be appropriate.  He said his July 
 
         30, 1987 letter summarizes his findings at the time.  He revealed 
 
         claimant "was not a very cooperate person to examine didn't make 
 
         a very good effort, which made it a little difficult to evaluate, 
 
         but I couldn't find any real sign of weakness, weakness I thought 
 
         was actually there."
 
         
 
              The doctor testified that claimant was not very cooperative 
 
         when he saw her again on February 23, 1989 and he really couldn't 
 
         tell if there were any abnormality at all.  The doctor referred 
 
         to certain letters he wrote pursuant to his February 1989 
 
         examination of claimant and reviewed her MRI.  The doctor was 
 
         asked
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         
 
         
 
         ROBERTS V. ARMOUR PROCESSED MEAT CO.
 
         Page 5
 
         
 
         
 
         the following questions and answered as follows:
 
         
 
              Q.  Doctor, I'm going to ask you for a series of opinions, 
 
              and I would ask that you answer them in terms of reasonable 
 
              medical probability.  Is that agreeable, Doctor?
 
              
 
              A.  Yes.
 
              
 
              Q.  First of all, Doctor, do you have an opinion as to 
 
              whether or not Ms. Roberts has any abnormality in the 
 
              cervical spine?
 
              
 
              A.  She has some mild degenerative changes.
 
              
 
              Q.  And what do you attribute [sic] those changes to, 
 
              Doctor?
 
              
 
              A.  Aging process.
 
              
 
              Q.  Doctor, do you have an opinion as to whether or not the 
 
              pathology that you have described as degenerative arthritis 
 
              would be casually related to either of her alleged injuries 
 
              in May or August of 1986 or to her general work activity? Do 
 
              you have an opinion?
 
              
 
              A.  Yes.
 
              
 
              Q.  And.what is that opinion?
 
              
 
              A.  I don't believe it is.
 
              
 
              Q.  Doctor, you have described an ulnar nerve procedure 
 
              performed by Dr. Laaveg.  I would ask you whether or not you 
 
              have an opinion as to whether that procedure and the 
 
              pathology which required the surgery would be related to 
 
              either of the injuries in May or August of 1986 or to the 
 
              general nature of her work activity.  Do you have an 
 
              opinion?
 
              
 
              A.  Yes.
 
              
 
              Q.  What is that opinion?
 
              
 
              A.  I don't believe it is.
 
              
 
              Q.  What's the reason for that opinion?
 
              
 
              A.. Well, because historically that developed--became 
 
              symptomatic while she was not working.  She had been off 
 
              work already.
 

 
              
 
 
 
 
 
 
 
 
 
 
 
         
 
         
 
         
 
         ROBERTS V. ARMOUR PROCESSED MEAT CO.
 
         Page 6
 
         
 
         
 
              Q.  Doctor, do you have an opinion as to whether or not Ms. 
 
              Roberts would have any permanent functional impairment as a 
 
              result of either of the conditions we've just talked about, 
 
              the degenerative arthritis or the ulnar nerve transposition?
 
              
 
              A.  From the degenerative arthritis, she certainly, I'd 
 
              expect, will have some neck pain in the future.  From the 
 
              ulnar nerve, she's got some changes.  They're mild.  They 
 
              will not restrict her significantly in  what she can do, but 
 
              she will have some probable, permanent sensory changes in 
 
              the hand and forearm.
 
              
 
              Q.  Do you believe either of these conditions would restrict 
 
              Miss Roberts' work activity in the future?
 
              
 
              A.  Probably not.  There are some jobs that degenerative 
 
              arthritis in her neck would make inappropriate.  For 
 
              instance, the long-haul truck drivers have a very difficult 
 
              time.  Very heavy work, something involving shoveling, for 
 
              instance, would not be appropriate for someone with that 
 
              kind of arthritic neck.
 
         
 
         (Joint Exhibit 2, Boarini Deposition, pp. 10-12)
 
         
 
              Dr. Boarini opined that claimant's ulnar nerve procedure 
 
         performed by Dr. Laaveg was not related to either claimant's May 
 
         1986 or August 1986 injuries or to the general nature of her work 
 
         activity.  He also opined that claimant's cervical spine trouble 
 
         is not work related.  He acknowledged claimant has some 
 
         arthritis, but does not have a 15 percent impairment.  At the 
 
         most he said the impairment would be 2, 3 or 4 percent.  Dr. 
 
         Boarini also disagreed with Dr. Laaveg's opinion that claimant's 
 
         ulnar nerve transposition was work related.  Dr. Boarini 
 
         acknowledged that he would defer judgment to Dr. Laaveg as to 
 
         claimant's shoulder impairment as Dr. Boarini is not qualified to 
 
         evaluate that.  Dr. Boarini said he disagreed with Dr. Laaveg's 
 
         15 to 20 pound restriction.  He agreed with Dr. Laaveg that 
 
         claimant had some existing arthritic problems in the cervical 
 
         spine but disagreed her work aggravated her neck.  He further 
 
         concluded that claimant's subjective complaint's were out of 
 
         proportion to his findings.  He emphasized claimant's "neck 
 
         problems, and so on, are not work related.  She has an arthritic 
 
         neck, and it may very well hurt, but its just not work related."  
 
         Dr. Boarini said claimant "complains of some things that I cannot 
 
         find, and., in fact, there's good evidence that they're not even 
 
         really there.  That's not to say she doesn't have neck pain."  
 
         Although the doctor acknowledged that claimant's history 
 
         indicated that claimant's gradual condition brought about her
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         
 
         
 
         ROBERTS V. ARMOUR PROCESSED MEAT CO.
 
         Page 7
 
         
 
         
 
         inability to work, he said that wasn't important in determining 
 
         its work relatedness.
 
         
 
              Sterling J. Laaveg, M.D., an orthopedic surgeon, testified 
 
         by deposition on August 25, 1989 that he first saw claimant on 
 
         April 21, 1988.  He related the history claimant gave him.  Dr. 
 
         Laaveg said claimant came to him because "Doctor Crane had 
 
         recommended that the ulnar nerve, which is the nerve at the 
 
         elbow, be moved or transposed to take the pressure off.... Dr. 
 
         Laaveg was asked and answered as follows:
 
         
 
              Q.  Okay.  Was your diagnosis essentially the same as that 
 
              of Doctor Crane?
 
              
 
              A.  Concerning -- for sure concerning the ulnar nerve it 
 
              was, that there was ulnar nerve compression or what's 
 
              commonly called a tardy ulnar palsy.  She had some other 
 
              problems and I cannot recall whether Dr. Crane specifically 
 
              listed them the same way I did concerning her neck and 
 
              shoulder.
 
         
 
         (Jt. Ex. 1, Laaveg Dep., p. 7)
 
         
 
         
 
              Dr. Laaveg stated claimant returned on May 6, 1988 and 
 
         desired that he, rather than Dr. Crane, perform the suggested 
 
         surgery.  The interior ulnar nerve surgery was performed on May 
 
         24, 1988.
 
         
 
              Dr. Laaveg was asked-and answered as follows:
 
         
 
              Q.  Doctor Laaveg based upon the history you took from Ms. 
 
              Roberts, the work that you did with her in April and May of 
 
              '88, do you have an opinion on whether or not her work 
 
              activity played a substantial part in bringing about the 
 
              surgical intervention that you did in May of 1988 with 
 
              regard to Ms. Roberts?
 
              
 
              A.  It was my opinion that her ulnar nerve tardy palsy was 
 
              related to work activity with an overuse syndrome and, as 
 
              such, was directly related to her work that led to her 
 
              subsequent surgery.
 
              
 
              Q.  Following the surgery, did you continue to treat her, 
 
              not only for the nerve problem and surgery that you've 
 
              described, but for an impingement syndrome and for a 
 
              cervical problem as well?
 
              
 

 
              
 
 
 
 
 
 
 
 
 
 
 
              A.  Yes.
 
         
 
         
 
         
 
         ROBERTS V. ARMOUR PROCESSED MEAT CO.
 
         Page 8
 
         
 
         
 
              Q.  Okay.  And likewise, based upon the history you took 
 
              from the patient and your examination treatment and 
 
              diagnosis, did you find a relationship between her work 
 
              activity at Armour and those two problems?
 
              
 
              A.  It was my feeling that her cervical problem was an 
 
              exacerbation or making worse of some previous degenerative 
 
              disk disease and degenerative arthritis that she had but 
 
              that her work activity was exacerbating or making worse her 
 
              degenerative disk disease and degenerative arthritis and 
 
              causing pain and discomfort.  It was also my opinion that 
 
              her shoulder problem was related to overuse at work.
 
         
 
         (Jt. Ex. 1, Laaveg Dep., pp. 10-11)
 
         
 
              The doctor described the various appointments claimant 
 
         continued to have with him regarding her treatment and claimant's 
 
         complaint.  Dr. Laaveg felt claimant was at maximum healing on 
 
         December 2, 1988 unless David W. Beck, M.D., felt surgery was 
 
         indicated.  The doctor said that it was later determined that 
 
         claimant did not have a surgical problem. (Jt. Ex. 1; Laaveg 
 
         Dep., p. 17) Dr. Laaveg was asked and answered as follows:
 
         
 
              Q.  Okay.  Doctor Laaveg, at this point in time, May 15 of 
 
              1989, did you feel that she had healed sufficiently from the 
 
              injuries which you've described as the work injuries, to 
 
              permit her to return to any kind of employment activity?
 
              
 
              A.  We -- yes, we set final work restrictions and it was 
 
              felt that she really should be in a moderately sedentary job 
 
              if she returned to work in which she was told not to lift 
 
              over 15 to 20 pounds off the floor, shouldn't carry over 25 
 
              pounds, should avoid repetitious bending or twisting or to 
 
              hold her neck in fixed positions for extended periods or do 
 
              a lot of twisting, rotationally, with her neck, and she 
 
              should definitely not work with her arms above shoulder 
 
              level and which would cause problems with her right 
 
              shoulder.
 
              
 
              Q.  Okay.  Doctor, if you could tell us what the final 
 
              impairment rating is with regard to each of the 
 
              three.injuries hat you talked about, and then in your 
 
              opinion as to whether or not there's a casual.relationship 
 
              to any work activity here?
 
              
 
              A.  First of all, it was my feeling that there were casual 
 
              relationships concerning all three problems, and let me try 
 
              to carefully explain.
 

 
              
 
 
 
 
 
 
 
 
 
 
 
         
 
         
 
         
 
         ROBERTS V. ARMOUR PROCESSED MEAT CO.
 
         Page 9
 
         
 
         
 
                 With two-level degenerative disk disease with persistent 
 
              limitation of motion and persistent pain it was my feeling 
 
              on reviewing the AMA Guidelines on Physical Impairment and 
 
              the American Orthopedic Guidelines on Physical Impairment, 
 
              she had a 15 percent final physical impairment rating for 
 
              her cervical spine alone.  One-third of that or 5 percent of 
 
              the whole person was felt to be due to her previous 
 
              condition, and two-thirds of that or 10 percent to the whole 
 
              person was felt to be due to her work-related condition and 
 
              secondary pain and discomfort.
 
              
 
                 It was my feeling on the basis of her mild decreased 
 
              motion and her rotator cuff impingement that she had a 7 
 
              percent impairment of the shoulder and upper extremity as a 
 
              result of her shoulder problem.  This too was felt to be 
 
              work-related.  That it would be a whole person final 
 
              physical impairment rating of 4 percent.
 
              
 
                 It was my feeling that she had a 5 percent impairment 
 
              rating of the right upper extremity due to her sensory 
 
              change as a result of her tardy ulnar palsy and her 
 
              subsequent surgery, and that would be a whole person final 
 
              physical impairment rating of 3 percent.
 
              
 
                 So using the combined whole person final physical 
 
              impairment rating chart in the AMA combined values, it's 10 
 
              percent plus 4 percent plus 3 percent relating to those ' 
 
              three injuries, or those three work-related conditions, 
 
              which is a whole person combined value of 17 percent.
 
         
 
         (Jt. Ex. 1, Laaveg Dep., p. 22-24)
 
         
 
              Dr. Laaveg said he did not have Dr. Hayreh's February 1987 
 
         EMG of claimant's ulnar nerve, which was normal, but probably 
 
         would not have changed what he would have done.
 
         
 
              Peter D. Wirtz, M.D., an orthopedic surgeon, testified by 
 
         way of deposition on October 10, 1989 that he first examined 
 
         claimant on January 29, 1987.  He said claimant told him her neck 
 
         symptoms first developed in February 1987, causing her to be seen 
 
         by Dr. Crane for evaluation.  She gave him a prior history of 
 
         loss of strength in her right arm and pain in her fourth and 
 
         fifth fingers.  Dr. Wirtz testified as to his examination on 
 
         September 29, 1987, December 15, 1988 and April 10, 1989.  Dr. 
 
         Wirtz testified as follows as to his February 15, 1989 report 
 
         which he said contains his most recent opinions and conclusions 
 
         regarding the physical condition of claimant: "[S]he has a loss 
 
         of sensation on the right fifth finger compared to the opposite 
 
         hand on 9-29-87, and on 12-15-88 had decrease feeling over the
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         
 
         
 
         ROBERTS V. ARMOUR PROCESSED MEAT CO.
 
         Page 10
 
         
 
         
 
         right fourth and fifth fingers to touch compared to the opposite 
 
         side as the only neurologic condition that I've been able to 
 
         demonstrate as being abnormal."  (Jt. Ex. 2, Wirtz Dep, p. 11) 
 
         Dr. Wirtz was further asked and answered:
 
         
 
              Q.  And can you tell us, please, what is your opinion?
 
              
 
              A.  That she has disc degeneration at C4-5 and C5-6.
 
              
 
              Q.  And what is the cause of that condition?
 
              
 
              A.  Natural degenerate disease.
 
              
 
              Q.  Do you have an opinion, Doctor, within a reasonable 
 
              degree of medical certainty, as to whether this condition, 
 
              the degenerative disease in her cervical spine, would be 
 
              casually related to either of her alleged injuries of May or 
 
              August 1986?
 
              
 
              A.  Yes.
 
              
 
              Q.  Or to her general work activity at Armour?
 
              
 
              A.  Yes.
 
              
 
              Q.  And what is your opinion?
 
              
 
              A.  That I can find no one incident at work or otherwise 
 
              that would relate to the cause of this cervical disc 
 
              degeneration.
 
              
 
              Q.  Do you have an opinion to a reasonable degree of medical 
 
              certainty whether or not Cindy Roberts would have any 
 
              permanent functional impairment as a result of her neck 
 
              condition?
 
              
 
              A.  Yes.
 
              
 
              Q.  And what is that, please?
 
              
 
              A.  Based on the fact that she has cervical disc 
 
              degeneration, she will have some limitations of function.
 
              
 
              Q   Would that be permanent or temporary in nature?
 
              
 
              A.  The disc degeneration is permanent and would be a
 
              permanent condition.
 
              
 

 
              
 
 
 
 
 
 
 
 
 
 
 
              Q.  Okay. Taking into account Ms. Roberts' condition, her 
 
              neck condition, do you have an opinion as to
 
         
 
         
 
         
 
         ROBERTS V. ARMOUR PROCESSED MEAT CO.
 
         Page 11
 
         
 
         
 
              whether or not this would restrict her employability in the 
 
              future?
 
              
 
              A.  It has been my experience that people with this disc 
 
              degeneration, based on her MRI study, are not significantly 
 
              limited in employment ability.
 
         
 
         (Jt. Ex. 1, Wirtz Dep., pp. 12-13)
 
         
 
              Dr. Wirtz disagreed with Dr. Laaveg's 15 percent impairment 
 
         on the cervical spine to the body as a whole.  He opined a 5 
 
         percent rating, but disagreed that any work aggravation caused 
 
         any permanent impairment.  He did agree that orthopedic surgeons 
 
         could disagree in this area.  He also disagreed with Dr. Laaveg 
 
         as to claimant's possibly needing a cervical spine fusion.
 
         
 
              Dr. Wirtz acknowledged he understood claimant's job 
 
         involved working with her hands on a repetitive basis throughout 
 
         the day and that this did aggravate her cervical degenerative 
 
         disease.  He indicated his muscular strain diagnosis he made in 
 
         September 1987 was casually related to an aggravation of her 
 
         cervical disc disease.  Dr. Wirtz said he disagrees with Dr. 
 
         Laaveg's opinion that claimant has a permanent right shoulder 
 
         impairment, but agrees with his rotator cuff impingement 
 
         syndrome.  Dr. Wirtz emphasized that this is an extremity injury 
 
         and not to the body as a whole.
 
         
 
              He was asked and answered as follows:
 
              
 
              Q.  Do you relate any of this impairment to a repetitive 
 
              motion or overuse syndrome by history that she had while 
 
              working for Armour Food Company?
 
              
 
              A.  Symptoms in that shoulder that the patient has exhibited 
 
              are due to overstress to that structure.  '
 
              
 
              Q.  And by history, would you casually relate that to the 
 
              work?
 
              
 
              
 
              A.  Yes.
 
         
 
         (Jt. Ex. 2, Wirtz Dep., p. 26)
 
         
 
              He agreed with Dr. Laaveg's surgery and Dr. Crane taking 
 
         claimant off work in May and November 1986.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              As to claimant's right arm and elbow surgery, Dr. Wirtz was 
 
         asked and answered as follows:
 
         
 
              Q. ...Was Dr. Laaveg's surgery appropriate?
 
              
 
              A.  Yes.
 
         
 
         
 
         
 
         ROBERTS V. ARMOUR PROCESSED MEAT CO.
 
         Page 12
 
         
 
         
 
              Q.  Do you think that was casually related to an aggravation 
 
              of her disease?
 
              
 
              A.  I believe it's due to an overstress condition to the 
 
              forearm causing the nerve to be irritated, requiring surgery 
 
              and the overstress is related to work.
 
              
 
              Q.  Do you agree with his permanent impairment rating with 
 
              regard to the transposition operation? It is in the letter 
 
              of May 15, 1989.
 
              
 
              A   I would agree with his 5 percent physical impairment to 
 
              the right upper extremity due to the sensory change 
 
              secondary to her tardy ulnar palsy post anterior 
 
              transposition.
 
              
 
              Q.  And would you casually relate that permanent impairment 
 
              to the aggravation of her preexisting problem and, hence, 
 
              work related?
 
              
 
              A.  I would casually relate it to the overstress syndrome at 
 
              work.
 
         
 
         (Jt. Ex. 2, Wirtz Dep., pp. 18-19)
 
         
 
         
 
              The Park Clinic medical records on June 13, 1986 show that 
 
         claimant first saw a Dr. Wolbrink regarding left arm pain which 
 
         has been present about six weeks.  The records reflect no right 
 
         hand problem or cervical spine or shoulder problems. one week 
 
         later, June 20, 1986, claimant was complaining of neck and 
 
         cervical spine problems.  Claimant was off work two weeks.  In 
 
         the Park Clinic notes of September 2, 1986, Dr. Crane indicated 
 
         claimant was now having significant pain in her right hand and 
 
         forearm area rather than in her left arm.  In February 1987,.The 
 
         Park Clinic records reflect claimant was having pain in her neck.  
 
         Claimant also complained of her shoulder acting up.  On April 10, 
 
         1987, Dr. Crane referred claimant to a work hardening program 
 
         with Lon Baker, L.P.T.  On May 8, 1987, Dr. Crane's notes 
 
         indicate his referral of claimant to Dr. Hayreh.  Dr. Crane felt 
 
         he could do little more for claimant.  He said claimant continued 
 
         to complain of shoulder pain and pain into her elbow and hand.  
 
         He noted neck improvement.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              Todd F. Hines, Ph.D., evaluated claimant on August 18 and 
 
         26, 1987.  Dr. Hines said he gave claimant a complete 
 
         psychological examination including full range of personality and 
 
         intellectual tests.  He wrote on September 2, 1987:
 
         
 
         
 
         
 
         ROBERTS V. ARMOUR PROCESSED MEAT CO.
 
         Page 13
 
         
 
         
 
              Most succinctly stated, Mrs. Roberts does not demonstrate 
 
              any psychological disorder which could arise from her work 
 
              injury....
 
              
 
              
 
              
 
              ... This young woman functions within the cognitive range of 
 
              very low normal to borderline mental deficiency.  Her 
 
              abstract thinking skills are very poor and it is likely that 
 
              she often fails to grasp the basic nature of what is 
 
              happening within her life.  Her social problem solving 
 
              skills are low and the lack of logical sequential thought 
 
              can lead to poor judgment.  Memory skills are not good.  
 
              Vocabulary is poor and she may well have a learning 
 
              disability within the realm of verbal reception of 
 
              information.  There is a general slowness of information 
 
              processing which can be seen even in the area of manual 
 
              skills.
 
              
 
                 It appears as though the most salient feature of her 
 
              current situation from a psychological perspective may be 
 
              the intellectual deficits which result in her being a rather 
 
              passive person who is easily intimidated by persons or 
 
              events and one who needs a great deal of support and 
 
              guidance.
 
         
 
         (Jt. Ex. 1, p. 27)
 
         
 
              Dr. Crane's notes on October 16, 1987 reflected that: 
 
         "Cindy really does not have a handle what is going on around her, 
 
         all she keeps saying is that she wants to return to work which is 
 
         a fine attitude to have." (Jt. Ex. 1, p. 32)
 
         
 
              On November 9, 1987,.Dr. Crane wrote:
 
         
 
                 My feeling at this point is that she is unsuitable to 
 
              return to work because of her tardy ulnar nerve palsy.  My 
 
              recommendation has been to transpose the ulnar nerve 
 
              anteriorly and at an appropriate time return her to work.  
 
              That will then provide us with an evaluation of whether or 
 
              not her tendonitis type problem will have resolved enough 
 
              for work.
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         (Jt. Ex. 1, p. 33)
 
         
 
              Dr. Laaveg evaluated claimant on April 26, 1988 for a 
 
         second opinion.  He wrote on April 26, 1988:
 
         
 
                 Cynthia Roberts' right tardy ulnar palsy with ulnar 
 
              neuropathy is directly related to an overuse syndrome at 
 
              work according to her history.  It also appears as
 
              
 
              
 
              
 
         ROBERTS V. ARMOUR PROCESSED MEAT CO.
 
         Page 14
 
         
 
         
 
              if her right rotator cuff impingement with bursitis is also 
 
              related to work by her history.  She does have degenerative 
 
              cervical disc disease at C4-5 and C5-6 which would have 
 
              predated her work problem.  However, the patient has had 
 
              some exacerbation of neck symptoms which are indirectly 
 
              related to her problems with her right shoulder and with her 
 
              right tardy ulnar palsy which has exacerbated her cervical 
 
              pain as a result of her degenerative arthritis and 
 
              degenerative disc disease.
 
         
 
         (Jt. Ex. 1, p. 38)
 
         
 
              On May 24, 1988, Laaveg performed "right ulnar nerve 
 
         anterior transposition at the elbow."
 
         
 
              Dr. Laaveg wrote on August 2, 1988 that claimant had not 
 
         reached maximum medical healing.  On September 21, 1988, Dr. 
 
         Laaveg wrote:
 
         
 
                 The patient is recovering from her ulnar transposition.  
 
              She has significant degenerative cervical disc disease with 
 
              persistent symptoms and a probable degenerative rotator cuff 
 
              with impingement of the right shoulder although rotator cuff 
 
              tear cannot totally be ruled out.  She will continue with 
 
              her same regimen including her traction at home.  I will see 
 
              her back in 4-5 weeks.  If she is not improving, we may need 
 
              to consider ' an arthrogram of the right shoulder.  Whether 
 
              she will be able to return to her original employment is 
 
              uncertain at this time but I doubt this.
 
              
 
                 The patient has already contacted Voc. Rehab. and is in 
 
              the process of looking into training options at North Iowa 
 
              Area Community College.
 
         
 
         (Jt. Ex. 1, p. 48)
 
         
 
              Dr. Laaveg indicated on December 2, 1988 that claimant was 
 
         nearing maximum healing.  He said her neck was still bothering 
 
         her and he was going to refer claimant to David W. Beck, M.D., a 
 
         neurosurgeon, for evaluation and consideration of a cervical 
 
         fusion.  On March 2, 1989, Dr. Beck wrote:
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
                 Cindy Roberts was seen by me and has been followed by Dr. 
 
              Laaveg, in Orthopaedics here in Mason City, for neck pain.  
 
              Neither in my records or in Dr. Laaveg's records is there 
 
              any indication of a specific injury on August 28, 1986, or 
 
              on May 28, 1986.  I am sorry, but I
 
         
 
         
 
         
 
         ROBERTS V. ARMOUR PROCESSED MEAT CO.
 
         Page 15
 
         
 
         
 
              do not think her present condition can be related to this, 
 
              judging on what I know about her.
 
         
 
         (Jt. Ex. 1, p. 52)
 
         
 
         
 
              On September 5, 1989, Dr. Beck wrote:
 
         
 
                 The nature of Cindy Roberts' work is one of repetitive 
 
              bending of her neck.  I think there probably is a 
 
              relationship between her work and her cervical spine 
 
              problems, in that she does not have a specific injury but 
 
              rather a repetitive motion injury.
 
         
 
         (Jt. Ex. 1, p. 65)
 
         
 
         
 
              On April 27, 1989, Dr. Boarini wrote:
 
         
 
              I have reviewed her February of 1989 MRI scan of the neck.  
 
              This shows some chronic degenerative changes but no acute 
 
              abnormality and no surgical lesion.  Furthermore, to clarify 
 
              my previous letter, I did not think the patient's present 
 
              complaints were work related.  I also don't think that based 
 
              upon her neck pain, there is any basis for giving the 
 
              patient a permanent partial impairment rating.
 
         
 
         (Jt. Ex. 1, p. 58)
 
         
 
         
 
              On May 15, 1989, Dr. Laaveg wrote:
 
              
 
              She has reached maximum healing.
 
              
 
                 Patient's final physical impairment rating concerning her 
 
              injury is as follows: 15% of the cervical spine due to 
 
              two-level degenerative disc disease and limitation of motion 
 
              following her cervical sprain. one-third of this is due to 
 
              her previous condition of degenerative disc disease, i.e., 
 
              5% of the whole person, and 2/3 of this is due to her 
 
              work-related injury, i.e., 10% of the whole person.  She has 
 
              a 7% impairment of the shoulder due to decreased motion and 
 
              her rotator cuff impingement syndrome secondary to bursitis.  
 
              This is a whole person final physical impairment rating of 
 
              4%.  She has a 5% physical impairment rating of the right 
 
              upper extremity due to her sensory change secondary to her 
 
              tardy ulnar palsy post anterior transposition.  This is a 
 
              whole person final physical impairment rating of 3%.  The 
 
              combined
 

 
              
 
 
 
 
 
 
 
 
 
 
 
         
 
         
 
         
 
         ROBERTS V. ARMOUR PROCESSED MEAT CO.
 
         Page 16
 
         
 
         
 
              whole person final physical impairment rating for all 
 
              injuries, i.e., 10% + 4% + 3% of the whole person, using the 
 
              AMA Combined Values Chart, is 17% of the whole person.
 
              
 
                 Patient's final work restriction is as follows: she could 
 
              not be in a job where she lifts over 15-20 lbs. off the 
 
              floor, carries over 25 lbs., does repetitious bending or 
 
              twisting, has to hold her head in fixed positions for 
 
              extended times or do repetitious bending or twisting of her 
 
              neck.  She should not work with her arms above shoulder 
 
              level.
 
         
 
         (Jt. Ex. 1, p. 62)
 
         
 
         
 
              On May 15, 1989, Dr. Wirtz wrote:
 
              
 
                 This patient is capable of employment within her 
 
              physiologic strength and dexterity.  The neck disc 
 
              degeneration would restrict activities of bending the neck 
 
              forward on a continuous basis and likewise repetitive 
 
              rotations of the neck, right and left, would be an 
 
              aggravatory condition that would need to be restricted to a 
 
              degree rather than being continuous throughout the day.  
 
              This patient exhibits no condition in her upper extremities 
 
              that would restrict functional activity restrictions in that 
 
              her previous job description was work with elbows by side 
 
              and no over-shoulder-heighth activities.  The continued 
 
              symptoms in the right elbow relating to the ulnar nerve 
 
              surgical transfer are not restrictive in functional 
 
              capabilities.
 
         
 
         (Jt. Ex. 1, p. 61)
 
         
 
         
 
              The State of Iowa Department of Education, Division of 
 
         vocational Rehabilitation Services, issued a very extensive 
 
         report on claimant dated September 5, 1989 which tested areas of 
 
         but not limited to academics, dexterity and skills:
 
         
 
              Cindy has a 74 on the verbal, 77 on the performance and 74 
 
              on the full scale on a WAIS test in her case file.  If these 
 
              scores are valid, Cindy would appear.to be limited in 
 
              potential to significantly upgrade her academic skills to a 
 
              level needed for post-secondary academic training at the 
 
              community college level.
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         ROBERTS V. ARMOUR PROCESSED MEAT CO.
 
         Page 17
 
         
 
         
 
              Cindy also expressed concern about her ability to physically 
 
              tolerate a sedentary classroom environment.
 
         
 
         (Jt. Ex. 1, p. 22)
 
         
 
                           APPLICABLE LAW AND ANALYSIS
 
         
 
              Claimant has the burden of proving by a preponderance of 
 
         the evidence that she received injuries on May 28, 1986 and 
 
         August 28, 1986 which arose out of and in the course of her 
 
         employment.  McDowell v. Town of Clarksville, 241 N.W.2d 904 
 
         (Iowa 1976); Musselman v. Central Telephone Co., 261 Iowa 352, 
 
         154 N.W.2d 128 (1967).
 
         
 
              The claimant has the burden of proving by a preponderance 
 
         of the evidence that the injuries of May 28, 1986 and August 28, 
 
         1986 are casually related to the disability on which she now 
 
         bases her claim.  Bodish v. Fischer, Inc., 257 Iowa 516, 133 
 
         N.W.2d 867 (1965).  Lindahl v. L. 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 casual 
 
         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 casual 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.2d 756, 760-61 
 
         (1956).  If the claimant had a preexisting condition or 
 
         disability that is aggravated, accelerated, worsened or lighted 
 
         up so that it results in disability, claimant is entitled to 
 
         recover. Nicks v. Davenport Produce Co., 254 Iowa 130, 115 N.W.2d 
 
         812, 815 (1962).
 
         
 
              When an aggravation occurs in the performance of an 
 
         employer's work and a casual connection is established, claimant
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         
 
         
 
         ROBERTS V. ARMOUR PROCESSED MEAT CO.
 
         Page 18
 
         
 
         
 
         may recover to the extent of the impairment.  Ziegler v. United 
 
         States Gypsum Co., 252 Iowa 613, 620, 106 N.W.2d 591, 595 (1960).
 
         
 
              The Iowa Supreme Court cites, apparently with approval, the 
 
         C.J.S. statement that the aggravation should be material if it is 
 
         to be compensable.  Yeager v. Firestone Tire & Rubber Co., 253 
 
         Iowa 369, 112 N.W.2d 299 (1961); 100 C.J.S. Workmen's 
 
         Compensation sec. 555(17)a.
 
         
 
              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); 
 
         Yeager, 253 Iowa 369, 112 N.W.2d 299; Ziegler, 252 Iowa 613, 106 
 
         N.W.2d 591.  See also Barz v. Oler, 257 Iowa 508, 133 N.W.2d 704 
 
         (1965); Almquist v. Shenandoah Nurseries, 218 Iowa 724, 254 N.W. 
 
         35 (1934).
 
         
 
              Claimant has filed two petitions approximately three months 
 
         apart.  The evidence and allegations refer to four areas of 
 
         alleged injuries.  As to the May 28, 1986 alleged injury, it 
 
         appears to have involved claimant's left wrist.  Claimant was off 
 
         two weeks.  There is no medical evidence tying this to a specific 
 
         injury.  Claimant contends it is a cumulative trauma.  Claimant's 
 
         job involved repetitious action but is not hard work and there is 
 
         insufficient medical evidence to casually connect claimant's 
 
         alleged disability to her alleged injury on May 29, 1986.  Other 
 
         than being off two weeks, there is no other evidence showing any 
 
         further problem of permanency with claimant's left hand or wrist.  
 
         Claimant testified as to her archery accomplishments.  Claimant's 
 
         involvement in these athletic events and practice connected 
 
         therewith are as likely if hot more likely to cause certain 
 
         problems in claimant's hands, wrists and arms and other parts of 
 
         her body than the nature of her work.  Claimant has not carried 
 
         her burden of proof as to her alleged May 28, 1986 injury.  The 
 
         undersigned finds that this alleged injury did not arise out of 
 
         and in the course of claimant's employment.  The undersigned 
 
         further finds that claimant's alleged disability to her left hand 
 
         or wrist is not casually connected to her alleged May 28, 1986 
 
         injury.
 
         
 
              Claimant alleges an August 28, 1986 injury to her hands and 
 
         wrists.  The medical testimony, as conflicting as it may be, 
 
         basically involves claimant's right extremity, right shoulder and 
 
         neck.  Claimant's petition involving the alleged August 28, 1986 
 
         injury makes no reference to claimant's neck but refers only to 
 
         claimant's hands and wrists.  The medical evidence shows that the 
 
         first real onset of claimant's complaint as to her neck or 
 
         shoulders occurred in February 1987.  It appears claimant took 
 
         off work in February 1987, mainly because of her neck and 
 
         shoulder problems.  Claimant testified she was referred to Dr.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         
 
         
 
         ROBERTS V. ARMOUR PROCESSED MEAT CO.
 
         Page 19
 
         
 
         
 
         Crane by the company nurse on September 2, 1986 due to a right 
 
         arm and hand complaint.  Claimant indicated she was off work 
 
         September 3, 1986 through September 21, 1986, at which time 
 
         claimant returned to her same work.  She said she went to Dr. 
 
         Crane in February 1987 due to the pain in her elbow, neck and 
 
         shoulder.  Claimant testified she never had shoulder and neck 
 
         pain before this.  In her deposition taken on January 24, 1989, 
 
         (joint exhibit 2, exhibit 8, p. 21), claimant testified that her 
 
         neck problems came on the last part of November 1986 and just 
 
         started gradually getting worse until February 1987.  She could 
 
         think of nothing that could have caused her problems.  She said 
 
         she first sought medical attention for her neck problems in 
 
         February 1987.  It appears from her testimony that the arm and 
 
         shoulder problems were occurring at this time also.
 
         
 
              There is no mention in the evidence about claimant's active 
 
         participation in archery until her testimony pursuant to 
 
         cross-examination on the date of the hearing.  Claimant never 
 
         disclosed her archery ability to any of the several doctors she 
 
         saw.  At least there is no mention of it in any of the the 
 
         doctors' records involving claimant's history.  There is 
 
         considerable medical testimony that cannot casually connect 
 
         claimant's alleged elbow, neck and shoulder problems to any work 
 
         injury.  There is testimony that casually connect her alleged 
 
         problems to her work.  The undersigned believes the doctors who 
 
         find a casual connection feel there is no other known etiology 
 
         for claimant's condition based on the facts given to them.  It is 
 
         apparent Claimant did not give them all the facts.  Claimant is 
 
         obviously very good at archery.  She is a champion having won 
 
         every event in which she entered.  She said she practiced once a 
 
         week before the alleged injuries.  She indicated the last 
 
         shooting of her bow and arrow was in 1986.  She also said she 
 
         shot once a month during the winter and not during the summer.  
 
         It takes strength, particularly in the hands, fingers, arms, 
 
         shoulder and neck to handle the type of archery claimant 
 
         described and to have the stability and accuracy to be a 
 
         champion.  Claimant is righthanded.  Claimant did not appear to 
 
         be physically or athletically gifted.  Her true strength is 
 
         obviously well hidden within her average frame.  It is hard to 
 
         believe that claimant could be such an accomplished bow and arrow 
 
         athlete and practice as little as she contends.  It is common 
 
         knowledge that in order to use a bow and arrow one must extend 
 
         the hands and arms outward from the body and hold it steady in an 
 
         attempt to hit a designated target.  Claimant described her bow 
 
         and arrow as a type seen on television and used in the Olympics.  
 
         It has a 45 pound drawback and lets off at 24 pounds.  The bow 
 
         and arrow together weigh 12 to 15 pounds.  Claimant also 
 
         indicated she bowls.  There is no evidence of the extent of her 
 
         bowling activity or if in fact claimant no longer bowls.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         
 
         
 
         ROBERTS V. ARMOUR PROCESSED MEAT CO.
 
         Page 20
 
         
 
         
 
              It is obvious no doctor mentioned anything in any report or 
 
         history regarding claimant's activity in these athletic events.  
 
         This is a major fact when considering claimant's complaints and 
 
         the fact she does have to some extent a preexisting arthritic 
 
         condition.
 
         
 
              The medical evidence is very confusing and there is a great 
 
         degree of disagreement between the specialists.  The undersigned 
 
         is concerned about the fact that none of the doctors appear to 
 
         have been told of claimant's archery activity.  This is a 
 
         material fact.  It appears that the claimant's activity of 
 
         pulling the bow with her right arm would have been more 
 
         consistent with what was bothering her than the posture she 
 
         showed at work.  Claimant has an arthritic condition in her neck.  
 
         This did not accrue overnight nor does an injury cause arthritis.  
 
         An injury can exacerbate, accelerate, worsen or lighten an 
 
         arthritic condition.  Archery and bowling activities performed by 
 
         claimant can also exacerbate, accelerate, worsen or light up an 
 
         arthritic condition.
 
         
 
              The undersigned feels there is no necessity to further 
 
         discuss the confusing state of the medical testimony.  Claimant 
 
         has the burden of proof.  The medical testimony is tainted by the 
 
         withholding of material information as to claimant's athletic 
 
         activity.  Claimant must prove that her alleged work-related 
 
         injuries materially accelerated, worsened or lighted up her 
 
         preexisting condition in order to recover.  The claimant's own 
 
         testimony plus a greater weight of medical testimony indicates 
 
         claimant's neck, upper extremity and shoulder problems did not 
 
         exist prior to November 1986, and most likely not until February 
 
         1987.  If, in fact, claimant has an injury to these parts of her 
 
         bodies the injury date would be February 1987.  The undersigned 
 
         notes that the claimant's petitions as to both the May 1986 and 
 
         August 1986 injuries referred to claimant's "hands and wrists" as 
 
         the parts of the bodies affected.  Although this petition 
 
         terminology is not decisive or controlling in this decision, it 
 
         is of interest.
 
         
 
              The undersigned finds that claimant's alleged cumulative 
 
         injury on August 28, 1986 did not arise out of and in the course 
 
         of claimant's employment.  This deputy further finds that 
 
         claimant failed to carry her burden of proof showing claimant's 
 
         ulnar nerve surgery, upper extremity, shoulder or neck problems 
 
         were casually connected to any traumatic or cumulative injury on 
 
         August 28, 1986, nor were any preexisting conditions in those 
 
         parts of claimant's body materially accelerated, worsened or 
 
         lighted up by the alleged injury on August 28, 1986.
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
              On the basis of the above decision, any other issues are 
 
         moot.
 
         
 
         
 
         
 
         ROBERTS V. ARMOUR PROCESSED MEAT CO.
 
         Page 21
 
         
 
         
 
                                 FINDINGS OF FACT
 
         
 
              1. Claimant failed to carry her burden of proof that her 
 
         alleged May 28, 1986 left hand or wrist injury was the result of 
 
         a work-related injury.
 
         
 
              2. Claimant failed to carry her burden of proof that her 
 
         alleged injury to her left hand or wrist on May 28, 1986 resulted 
 
         in any disability.
 
         
 
              3. Claimant incurred no permanent impairment to her left 
 
         hand or wrist as a result of her May 28, 1986 injury.
 
         
 
              4. Claimant failed to carry her burden of proof that her 
 
         alleged August 28, 1986 cumulative injury to her right hand, 
 
         wrist, elbow, upper extremity, shoulder or neck was the result of 
 
         a work-related injury.
 
         
 
              5. Claimant failed to carry her burden of proof to show 
 
         that her current alleged disabilities to her arm, shoulder or 
 
         cervical spine (neck) are the result of a work-related cumulative 
 
         injury on August 26, 1986.
 
         
 
              6. Claimant had an arthritic cervical spine condition prior 
 
         to her alleged August 28, 1986 injury which was not materially 
 
         aggravated, accelerated, worsened or lighted up by any 
 
         work-related injury on August 28, 1986.
 
         
 
                                CONCLUSIONS OF LAW
 
         
 
              Claimant's alleged May 28, 1986 injury to her left hand or 
 
         wrist did not arise out of and in the course of claimant's 
 
         employment.
 
         
 
              Claimant's alleged disability to her left hand or wrist was 
 
         not.casually connected to her alleged May 28, 1986 injury.
 
         
 
              Claimant's alleged August 28, 1986 injury did not arise out 
 
         of and in the course of claimant's employment.
 
         
 
              Claimant's alleged disability and impairment to her hand, 
 
         wrist, elbow, upper extremity, shoulder and cervical spine (neck) 
 
         are not casually connected to claimant's alleged injury on August 
 
         28, 1986.
 
         
 
              Claimant's preexisting arthritis was not materially 
 
         accelerated, aggravated, worsened or lightened up by claimant's 
 
         alleged cumulative injury on August 28, 1986.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         
 
         
 
         ROBERTS V. ARMOUR PROCESSED MEAT CO.
 
         Page 22
 
         
 
         
 
                                      ORDER
 
         
 
              THEREFORE, it is ordered:
 
         
 
              1. That claimant take nothing from these proceedings as to. 
 
         her alleged May 28, 1986 injury.
 
         
 
              2. That claimant take nothing from these proceedings as to 
 
         her alleged August 28, 1986 injury.
 
         
 
              3. That defendants pay the costs of this action pursuant to 
 
         Division of Industrial Services Rule 343-4.33.
 
         
 
         
 
              Signed and filed this 8th day of January, 1990.
 
         
 
         
 
         
 
         
 
                                               BERNARD J. O'MALLEY
 
                                               DEPUTY INDUSTRIAL 
 
         COMMISSIONER
 
         
 
         
 
         
 
         
 
         Copies To:
 
         
 
         Mr Robert W Pratt
 
         Attorney at Law
 
         1913 Ingersoll Ave
 
         Des Moines IA 50309
 
         
 
         Mr Marvin E Duckworth
 
         Attorney at Law
 
         Terrace Ctr Ste 111
 
         2700 Grand Ave
 
         Des Moines IA 50312
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
 
         
 
 
 
 
 
 
 
 
 
 
 
                                               51100; 51108; 51402.30; 
 
                                               51402;40; 1400; 2600 
 
                                               Filed January 8, 1990 
 
                                               Bernard J. O'Malley
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         CINDY ROBERTS,
 
         
 
              Claimant,
 
                                         File Nos. 825371
 
         VS.                                       831987
 
         
 
         ARMOUR PROCESSED MEAT COMPANY,
 
                                               A R B I T R A T I 0 N
 
              Employer,
 
                                               D E C I S I 0 N 
 
         and
 
         
 
         HARTFORD INSURANCE GROUP,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         51100; 51402.30
 
         
 
              Found neither of claimant's two injuries arose out of and 
 
         in the course of claimant's employment.
 
         
 
         51108; 51402.40
 
         
 
              Found claimant's alleged disabilities were not casually 
 
         connected to her alleged injuries.
 
         
 
         1400; 2600
 
         
 
              There was considerable conflicting medical evidence, but no 
 
         doctor was told of claimant's athletic activity as an archery 
 
         champion.  Claimant's complaints were with her hands, wrist, 
 
         elbow, shoulder and neck.  Claimant had a preexisting arthritic 
 
         condition in her neck.  Held claimant's archery activity could be 
 
         as material a cause if not more of a cause to claimant's 
 
         condition than her work.  The claimant's withholding of this 
 
         information from the doctors materially tainted their testimony 
 
         and the doctors' ability to determine all probable causes of 
 
         claimant's condition and alleged disability.  Claimant took 
 
         nothing from this proceeding.