BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         JOYCE F. GORHAM,
 
         
 
              Claimant,
 
         
 
         vs.
 
                                              File No.  825459
 
         WESTMONT CARE CENTER,
 
                                           A R B I T R A T I O N
 
              Employer,
 
                                              D E C I S I O N
 
         and
 
         
 
         BITUMINOUS COMPANY,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         
 
                              STATEMENT OF THE CASE
 
         
 
              This is a proceeding in arbitration upon claimant's petition 
 
         filed January 21, 1988. claimant sustained an injury to her back 
 
         arising out of and in the course of her employment as a nurse's 
 
         aide while assisting an obese patient to walk when the patient 
 
         began to fall.  She now seeks benefits under the Iowa Workers' 
 
         Compensation Act from defendant employer Westmont Care Center and 
 
         defendant insurance carrier Bituminous Company.
 
         
 
              Hearing on the arbitration petition was had in Council 
 
         Bluffs, Iowa, on June 29, 1989.  The record consists of 
 
         claimant's testimony, joint exhibits 1 through 18, and 
 
         defendants' exhibits A through DD, both inclusive.
 
         
 
                                      ISSUES
 
         
 
              Pursuant to the prehearing report, the parties have 
 
         stipulated:  that claimant sustained an injury arising out of and 
 
         in the course of her employment with Westmont Care Center on June 
 
         9, 1986; that the injury caused temporary and permanent 
 
         disability; that claimant's permanent disability is an industrial 
 
         disability to the body as a whole; that the appropriate rate of 
 
         weekly benefits is $96.25; that all requested medical benefits 
 
         have been or will be paid by defendants, although claimant seeks 
 
         an award for transportation expense; that defendants voluntarily 
 
         paid claimant 143 weeks, 1 day of compensation at the stipulated 
 
         rate prior to hearing.
 
         
 
              Issues presented for resolution include:  the extent of 
 
         claimant's entitlement to compensation for healing period and 
 
         permanent disability, and the commencement date of the latter; 
 
         taxation of costs.
 

 
         
 
         
 
         
 
         GORHAM V. WESTMONT CARE CENTER
 
         PAGE   2
 
         
 
         
 
                               FINDINGS OF FACT
 
         
 
              The undersigned deputy, having heard the testimony and 
 
         considered all of the evidence, finds:
 
         
 
              Claimant was 40 years of age at the time of hearing.  She 
 
         has a tenth grade education, but has also obtained a General 
 
         Equivalency Diploma since leaving school and is a certified med 
 
         aide.  Shortly before hearing she began taking courses in 
 
         urology, composition and literature at the Des Moines Area 
 
         Community College, and impressed this observer as being of at 
 
         least average intelligence.  Claimant's work history is rather 
 
         limited.  She left school to marry and worked for a brief time in 
 
         restaurants and for approximately one month as a security guard.  
 
         Beginning in 1971, she accepted employment as a nurse's aide and 
 
         has remained employed in that field since.
 
         
 
              Prior to accepting work with defendant, claimant enjoyed 
 
         good health.  She had no prior back trouble.  The work injury 
 
         occurred when she was assisting an obese patient to the bath.  
 
         The patient fell, but claimant was able to grab her.  However, 
 
         her back immediately began hurting and continued to get worse 
 
         through the shift and thereafter.  Claimant awakened the next 
 
         morning with a numb leg and was immediately taken to the 
 
         hospital, where she remained for several weeks.  Eventually, 
 
         feeling returned to her leg and a drop foot problem that had 
 
         developed also unproved.
 
         
 
              Claimant was first treated by James P. O'Hara, M.D., Enrique 
 
         E. Cohen, M.D., and Gary Jorgensen, D.C.  She was treated 
 
         conservatively.  Dr. O'Hara opined on October 21, 1986 that 
 
         claimant had markedly improved and had not sustained any 
 
         permanent impairment.  Leonard E. Weber, M.D., wrote on August 4, 
 
         1986 of his impression that claimant suffered muscle tension 
 
         headaches, probable conversion reactions, possible depression, 
 
         and had objectively normal neurological examination.  He 
 
         suggested that, if claimant continued to feel disabled, she might 
 
         seek further neurological testing, but otherwise treatment should 
 
         be for symptoms and possibly psychological evaluation. on 
 
         September 16, 1986, Dr. Cohen assessed claimant as suffering low 
 
         back pain, left lower extremity weakness, pain and foot drop 
 
         resulting from a disc herniation at L4-5, disagreeing with Dr. 
 
         Weber.
 
         
 
              Dr. Jorgensen eventually referred claimant to R. Schuyler 
 
         Gooding, M.D., a board-certified neurosurgeon.  Dr. Gooding first 
 
         saw claimant on October 19, 1987.  He caused a myelogram to be 
 
         performed by Jerrad Hertzler, M.D., which showed an abnormality 
 
         at L4-5 predominantly on the left, reinforcing a CT scan also 
 
         ordered by Dr. Gooding.  As a result, surgery was performed on 
 
         November 18, 1987.  Surgery consisted of complete excision of the 
 
         disc at L4-5 without fusion.
 
         
 
              Dr. Gooding testified by deposition taken September 26, 
 
         1988.  He had released claimant from his care on May 20, 1988.  
 
         However, it was Dr. Gooding's view that individuals situated such 
 
         as claimant could not be expected to fully recover from such 
 
         surgery for 12-14 months following the surgical event.
 
         
 

 
         
 
         
 
         
 
         GORHAM V. WESTMONT CARE CENTER
 
         PAGE   3
 
         
 
              Dr. Gooding opined that claimant's surgery and subsequent 
 
         impairment was causally related to the subject work injury, as 
 
         the parties have stipulated.  He believed that claimant had 
 
         incurred a 15 percent impairment to the body as a whole and was 
 
         unable to return to work in her position as a nurse's aide.  He 
 
         also imposed certain physical restrictions.  On December 17, 
 
         1987, Dr. Gooding had written (exhibit F) that patients "of this 
 
         type" would be subject to a permanent lifting limit of 10 pounds 
 
         regularly and 12 pounds upon occasion as a preference.  By the 
 
         time of his deposition, Dr. Gooding felt that claimant should 
 
         routinely be able to pick up 10 pounds and upon occasion as much 
 
         as 25 pounds, but not in an assembly line situation.  He did not 
 
         wish claimant to sit for an extended time, that is in excess of 
 
         30 minutes, without an opportunity to get up and move around.  
 
         Also, he would be concerned if claimant were to take work that 
 
         involved sitting for eight hours, even if she could get up every 
 
         30 minutes for five minutes or so because sitting is not a good 
 
         posture for an individual who has undergone major back surgery.  
 
         Dr. Gooding opined that claimant could stand throughout an eight 
 
         hour work day, but not in one position: it would be necessary 
 
         that she move around, such as might be possible in a sales type 
 
         position.  Claimant should not be put in a working position that 
 
         would require her to bend down or reach up or to carry, and 
 
         should only squat on rare occasion.  Claimant could climb stairs, 
 
         but not be on a ladder.  She could reach above her shoulder 
 
         level, but not with a heavy weight.  Claimant should not push and 
 
         pull heavy items.
 
         
 
              Claimant has made some efforts to find work without success, 
 
         except that she worked at a county home for a few days before 
 
         leaving due to an inability to perform the work.  Vocational 
 
         counselors have suggested retraining as a phlebotomist, but 
 
         claimant professes an inability to "stick" people.
 
         
 
              Claimant has accumulated 2,580 miles of unreimbursed mileage 
 
         expenses for medical purposes as shown by exhibit 18.
 
         
 
                                CONCLUSIONS OF LAW
 
         
 
              The parties have stipulated that claimant sustained an 
 
         injury arising out of and in the course of her employment on June 
 
         9, 1986.  Further, they have stipulated that the injury caused 
 
         both temporary and permanent disability.
 
         
 
              Under Iowa Code section 85.34(l), healing period is 
 
         compensable beginning on the date of injury and until the 
 
         employee has returned to work, it is medically indicated that 
 
         significant improvement from the injury is not anticipated, or 
 
         until the employee is medically capable of returning to 
 
         substantially similar employment, whichever first occurs.
 
         
 
              Claimant has not returned to work and the medical evidence 
 
         establishes that she will not be medically capable of returning 
 
         to substantially similar employment.  Therefore, her healing 
 
         period must end at such time as it is medically indicated that 
 
         significant improvement from the injury is not anticipated.  
 
         Defendants are of the view that the healing period should end on 
 
         May 20, 1988, when claimant was last seen by her treating 
 
         surgeon, Dr. Gooding.  However, Dr. Gooding's testimony is to the 
 
         effect that claimant had not reached full improvement at that 
 

 
         
 
         
 
         
 
         GORHAM V. WESTMONT CARE CENTER
 
         PAGE   4
 
         
 
         point, but that she would do so one year to 14 months from the 
 
         surgical event.  Therefore, it is held that the best evidence in 
 
         this case requires a healing period of one year from November 18, 
 
         1987.  For purposes of this decision, a year shall be defined as 
 
         fifty-two weeks plus one day, or 365 days.  It is claimant's 
 
         burden to establish any healing period beyond the minimum set 
 
         forth by Dr. Gooding and no such evidence has been forthcoming.
 
         
 
              Functional impairment is an element to be considered in 
 
         determining industrial disability which is the reduction of 
 
         earning capacity, but consideration must also be given to the 
 
         injured employee's age, education, qualifications, experience and 
 
         inability to engage in employment for which he is fitted.  Olson 
 
         v. Goodyear Service Stores, 255 Iowa 1112, 125 N.W.2d 251 (1963).  
 
         Barton v. Nevada Poultry, 253 Iowa 285, 110 N.W.2d 660 (1961).
 
         
 
              A finding of impairment to the body as a whole found by a 
 
         medical evaluator does not equate to industrial disability.  This 
 
         is so as impairment and disability are not synonymous.  Degree of 
 
         industrial disability can in fact be much different than the 
 
         degree of impairment because in the first instance reference is 
 
         to loss of earning capacity and in the latter to anatomical or 
 
         functional abnormality or loss.  Although loss of function is to 
 
         be considered and disability can rarely be found without it, it 
 
         is not so that a degree of industrial disability is 
 
         proportionally related to a degree of impairment of bodily 
 
         function.
 
         
 
              Factors to be considered in determining industrial 
 
         disability include the employee's medical condition prior to the 
 
         injury, immediately after the injury, and presently; the situs of 
 
         the injury, its severity and the length of healing period; the 
 
         work experience of the employee prior to the injury, after the 
 
         injury and potential for rehabilitation; the employee's 
 
         qualifications intellectually, emotionally and physically; 
 
         earnings prior and subsequent to the injury; age; education; 
 
         motivation; functional impairment as a result of the injury; and 
 
         inability because of the injury to engage in employment for which 
 
         the employee is fitted.  Loss of earnings caused by a job 
 
         transfer for reasons related to the injury is also relevant.  
 
         These are matters which the finder of fact considers collectively 
 
         in arriving at the determination of the degree of industrial 
 
         disability.
 
         
 
              There are no weighting guidelines that indicate how each of 
 
         the factors are to be considered.  There are no guidelines which 
 
         give, for example, age a weighted value of ten percent of the 
 
         total value, education a value of fifteen percent of total, 
 
         motivation - five percent; work experience - thirty percent, etc.  
 
         Neither does a rating of functional impairment directly correlate 
 
         to a degree of industrial disability to the body as a whole.  In 
 
         other words, there are no formulae which can be applied and then 
 
         added up to determine the degree of industrial disability.  It 
 
         therefore becomes necessary for the deputy or commissioner to 
 
         draw upon prior experience, general and specialized knowledge to 
 
         make the finding with regard to degree of industrial disability.  
 
         See Peterson v. Truck Haven Cafe, Inc., (Appeal Decision, 
 
         February 28, 1985); Christensen v. Hagen, Inc., (Appeal Decision, 
 
         March 26, 1985).
 
         
 

 
         
 
         
 
         
 
         GORHAM V. WESTMONT CARE CENTER
 
         PAGE   5
 
         
 
              Essentially all of claimant's work history has been as a 
 
         nurse's aide, a profession from which she is now barred by reason 
 
         of the work injury.  Claimant was 40 years of age at the time of 
 
         hearing and in what should be her prime earning years.  Her 
 
         industrial disability is greater than would be the case for a 
 
         younger or older individual.  It should be clear that an 
 
         individual who has undergone major lower back surgery will be 
 
         less attractive as a candidate for employment to at least some 
 
         prospective employers.  Claimant has sought at least some work 
 
         without success and did work at a county home following her 
 
         surgery until she found herself unable to perform the work.  
 
         These are all factors tending to show increased industrial 
 
         disability.
 
         
 
              On the other hand, claimant does have a General Equivalency 
 
         Diploma and is currently taking community college course work.  
 
         It seems clear to this observer that she has the intelligence and 
 
         ability to successfully undertake retraining and to develop new 
 
         salable skills.  Vocational rehabilitation counselors have 
 
         advised that she become a phlebotomist, a profession which would 
 
         involve transfer of skills claimant already possesses.  While 
 
         claimant does not desire to pursue this line of work, it is 
 
         nonetheless a factor indicating lessened industrial disability.  
 
         Claimant is licensed to drive, can make change can operate a cash 
 
         register and is able to telephone.  With the restrictions she has 
 
         and given her innate abilities, it seems clear that there are 
 
         regularly available jobs for which claimant could qualify.  
 
         Nonetheless, she has serious restrictions as to lifting, bending 
 
         and carrying, can sit for only 30 minutes at a time and must move 
 
         around if she has a standing job.  It seems clear that her job 
 
         openings will be limited and that she may require an employer 
 
         willing to accommodate these restrictions.
 
         
 
              Considering these factors in particular and the record in 
 
         general, it is held that claimant has established an industrial 
 
         disability of 50 percent, or 250 weeks.
 
         
 
              Claimant also has 2,580 miles of unreimbursed mileage 
 
         accumulated for medical treatment.  Pursuant to Division of 
 
         Industrial Services Rule 343-8.1(2), the mileage for the use of a 
 
         private automobile shall be the same as the state of Iowa 
 
         reimburses its employees, or $.21 per mile.  Therefore, claimant 
 
         shall also be awarded mileage expenses of $541.80.
 
         
 
                                      ORDER
 
         
 
              THEREFORE, IT IS ORDERED:
 
         
 
              Defendants shall pay unto claimant healing period benefits 
 
         at the weekly rate of ninety-six and 25/100 dollars ($96.25) from 
 
         June 9, 1986 through November 17, 1988, a total of one hundred 
 
         twenty-seven (127) weeks, three (3) days.
 
         
 
              Defendants shall pay unto claimant permanent partial 
 
         disability benefits commencing November 18, 1988, of two hundred 
 
         fifty (250) weeks at the weekly rate of ninety-six and 25/100 
 
         dollars ($96.25).
 
         
 
              Defendants shall be entitled to credit for all benefits paid 
 
         voluntarily prior to hearing.
 

 
         
 
         
 
         
 
         GORHAM V. WESTMONT CARE CENTER
 
         PAGE   6
 
         
 
         
 
              Defendants shall pay unto claimant mileage expenses 
 
         totalling five hundred forty-one and 80/100 dollars ($541.80).
 
         
 
              All accrued benefits shall be paid in a lump sum with 
 
         interest pursuant to Iowa Code section 85.30.  However, interest 
 
         on transportation expenses shall accrue only from the filing date 
 
         of this decision.
 
         
 
              Costs of this action shall be assessed to defendants 
 
         pursuant to Division of Industrial Services Rule 343-4.33.
 
         
 
              Defendants shall file claim activity reports as requested by 
 
         this agency pursuant to Division of Industrial Services Rule 
 
         343-3.1.
 
         
 
         
 
               Signed and filed this 6th day of July, 1990.
 
         
 
         
 
         
 
         
 
         
 
         
 
                                       DAVID RASEY
 
                                       DEPUTY INDUSTRIAL COMMISSIONER
 
         
 
         
 
         
 
         Copies To:
 
         
 
         Mr. Bennett Cullison, Jr.
 
         Attorney at Law
 
         Sixth & Durant Streets
 
         P.O. Box 68
 
         Harlan, Iowa  51537
 
         
 
         Mr. W. Curtis Hewett
 
         Mr. Gregory G. Barntsen
 
         Attorneys at Law
 
         P.O. Box 249
 
         Council Bluffs, Iowa 51502
 
         
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            JOYCE F. GORHAM,              :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :         File No. 825459
 
            WESTMONT CARE CENTER,         :
 
                                          :      A R B I T R A T I O N
 
                 Employer,                :
 
                                          :         D E C I S I O N
 
            and                           :
 
                                          :
 
            BITUMINOUS COMPANY,           :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ____________________________________________________________
 
            
 
                              statement of the case
 
            
 
                 This is a proceeding in arbitration upon claimant's 
 
            petition filed January 21, 1988.  Claimant sustained an 
 
            injury to her back arising out of and in the course of her 
 
            employment as a nurse's aide while assisting an obese 
 
            patient to walk when the patient began to fall.  She now 
 
            seeks benefits under the Iowa Workers' Compensation Act from 
 
            defendant employer Westmont Care Center and defendant 
 
            insurance carrier Bituminous Company.
 
            
 
                 Hearing on the arbitration petition was had in Council 
 
            Bluffs, Iowa, on June 29, 1989.  The record consists of 
 
            claimant's testimony, joint exhibits 1 through 18, and 
 
            defendants' exhibits A through DD, both inclusive.
 
            
 
                                      issues
 
            
 
                 Pursuant to the prehearing report, the parties have 
 
            stipulated:  that claimant sustained an injury arising out 
 
            of and in the course of her employment with Westmont Care 
 
            Center on June 9, 1986; that the injury caused temporary and 
 
            permanent disability; that claimant's permanent disability 
 
            is an industrial disability to the body as a whole; that the 
 
            appropriate rate of weekly benefits is $96.25; that all 
 
            requested medical benefits have been or will be paid by 
 
            defendants, although claimant seeks an award for 
 
            transportation expense; that defendants voluntarily paid 
 
            claimant 143 weeks, 1 day of compensation at the stipulated 
 
            rate prior to hearing.
 
            
 
                 Issues presented for resolution include:  the extent of 
 
            claimant's entitlement to compensation for healing period 
 
            and permanent disability, and the commencement date of the 
 
            latter; taxation of costs.
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
                                 findings of fact
 
            
 
                 The undersigned deputy, having heard the testimony and 
 
            considered all of the evidence, finds:
 
            
 
                 Claimant was 40 years of age at the time of hearing.  
 
            She has a tenth grade education, but has also obtained a 
 
            General Equivalency Diploma since leaving school and is a 
 
            certified med aide.  Shortly before hearing she began taking 
 
            courses in urology, composition and literature at the Des 
 
            Moines Area Community College, and impressed this observer 
 
            as being of at least average intelligence.  Claimant's work 
 
            history is rather limited.  She left school to marry and 
 
            worked for a brief time in restaurants and for approximately 
 
            one month as a security guard.  Beginning in 1971, she 
 
            accepted employment as a nurse's aide and has remained 
 
            employed in that field since.
 
            
 
                 Prior to accepting work with defendant, claimant 
 
            enjoyed good health.  She had no prior back trouble.  The 
 
            work injury occurred when she was assisting an obese patient 
 
            to the bath.  The patient fell, but claimant was able to 
 
            grab her.  However, her back immediately began hurting and 
 
            continued to get worse through the shift and thereafter.  
 
            Claimant awakened the next morning with a numb leg and was 
 
            immediately taken to the hospital, where she remained for 
 
            several weeks.  Eventually, feeling returned to her leg and 
 
            a drop foot problem that had developed also improved.
 
            
 
                 Claimant was first treated by James P. O'Hara, M.D., 
 
            Enrique E. Cohen, M.D., and Gary Jorgensen, D.C.  She was 
 
            treated conservatively.  Dr. O'Hara opined on October 21, 
 
            1986 that claimant had markedly improved and had not 
 
            sustained any permanent impairment.  Leonard E. Weber, M.D., 
 
            wrote on August 4, 1986 of his impression that claimant 
 
            suffered muscle tension headaches, probable conversion 
 
            reactions, possible depression, and had objectively normal 
 
            neurological examination.  He suggested that, if claimant 
 
            continued to feel disabled, she might seek further 
 
            neurological testing, but otherwise treatment should be for 
 
            symptoms and possibly psychological evaluation.  On 
 
            September 16, 1986, Dr. Cohen assessed claimant as suffering 
 
            low back pain, left lower extremity weakness, pain and foot 
 
            drop resulting from a disc herniation at L4-5, disagreeing 
 
            with Dr. Weber.
 
            
 
                 Dr. Jorgensen eventually referred claimant to R. 
 
            Schuyler Gooding, M.D., a board-certified neurosurgeon.  Dr. 
 
            Gooding first saw claimant on October 19, 1987.  He caused a 
 
            myelogram to be performed by Jerrad Hertzler, M.D., which 
 
            showed an abnormality at L4-5 predominantly on the left, 
 
            reinforcing a CT scan also ordered by Dr. Gooding.  As a 
 
            result, surgery was performed on November 18, 1987.  Surgery 
 
            consisted of complete excision of the disc at L4-5 without 
 
            fusion.
 
            
 
                 Dr. Gooding testified by deposition taken September 26, 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            
 
            
 
            1988.  He had released claimant from his care on May 20, 
 
            1988.  However, it was Dr. Gooding's view that individuals 
 
            situated such as claimant could not be expected to fully 
 
            recover from such surgery for 12-14 months following the 
 
            surgical event.
 
            
 
                 Dr. Gooding opined that claimant's surgery and 
 
            subsequent impairment was causally related to the subject 
 
            work injury, as the parties have stipulated.  He believed 
 
            that claimant had incurred a 15 percent impairment to the 
 
            body as a whole and was unable to return to work in her 
 
            position as a nurse's aide.  He also imposed certain 
 
            physical restrictions.  On December 17, 1987, Dr. Gooding 
 
            had written (exhibit F) that patients "of this type" would 
 
            be subject to a permanent lifting limit of 10 pounds 
 
            regularly and 12 pounds upon occasion as a preference.  By 
 
            the time of his deposition, Dr. Gooding felt that claimant 
 
            should routinely be able to pick up 10 pounds and upon 
 
            occasion as much as 25 pounds, but not in an assembly line 
 
            situation.  He did not wish claimant to sit for an extended 
 
            time, that is in excess of 30 minutes, without an 
 
            opportunity to get up and move around.  Also, he would be 
 
            concerned if claimant were to take work that involved 
 
            sitting for eight hours, even if she could get up every 30 
 
            minutes for five minutes or so because sitting is not a good 
 
            posture for an individual who has undergone major back 
 
            surgery.  Dr. Gooding opined that claimant could stand 
 
            throughout an eight hour work day, but not in one position:  
 
            it would be necessary that she move around, such as might be 
 
            possible in a sales type position.  Claimant should not be 
 
            put in a working position that would require her to bend 
 
            down or reach up or to carry, and should only squat on rare 
 
            occasion.  Claimant could climb stairs, but not be on a 
 
            ladder.  She could reach above her shoulder level, but not 
 
            with a heavy weight.  Claimant should not push and pull 
 
            heavy items.
 
            
 
                 Claimant has made some efforts to find work without 
 
            success, except that she worked at a county home for a few 
 
            days before leaving due to an inability to perform the work.  
 
            Vocational counselors have suggested retraining as a 
 
            phlebotomist, but claimant professes an inability to "stick" 
 
            people.
 
            
 
                 Claimant has accumulated 2,580 miles of unreimbursed 
 
            mileage expenses for medical purposes as shown by exhibit 
 
            18.
 
            
 
                                conclusions of law
 
            
 
                 The parties have stipulated that claimant sustained an 
 
            injury arising out of and in the course of her employment on 
 
            June 9, 1986.  Further, they have stipulated that the injury 
 
            caused both temporary and permanent disability.
 
            
 
                 Under Iowa Code section 85.34(1), healing period is 
 
            compensable beginning on the date of injury and until the 
 
            employee has returned to work, it is medically indicated 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            
 
            
 
            that significant improvement from the injury is not 
 
            anticipated, or until the employee is medically capable of 
 
            returning to substantially similar employment, whichever 
 
            first occurs.
 
            
 
                 Claimant has not returned to work and the medical 
 
            evidence establishes that she will not be medically capable 
 
            of returning to substantially similar employment.  
 
            Therefore, her healing period must end at such time as it is 
 
            medically indicated that significant improvement from the 
 
            injury is not anticipated.  Defendants are of the view that 
 
            the healing period should end on May 20, 1988, when claimant 
 
            was last seen by her treating surgeon, Dr. Gooding.  
 
            However, Dr. Gooding's testimony is to the effect that 
 
            claimant had not reached full improvement at that point, but 
 
            that she would do so one year to 14 months from the surgical 
 
            event.  Therefore, it is held that the best evidence in this 
 
            case requires a healing period of one year from November 18, 
 
            1987.  For purposes of this decision, a year shall be 
 
            defined as fifty-two weeks plus one day, or 365 days.  It is 
 
            claimant's burden to establish any healing period beyond the 
 
            minimum set forth by Dr. Gooding and no such evidence has 
 
            been forthcoming.
 
            
 
                 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 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            
 
            
 
            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., 
 
            (Appeal Decision, March 26, l985).
 
            
 
                 Essentially all of claimant's work history has been as 
 
            a nurse's aide, a profession from which she is now barred by 
 
            reason of the work injury.  Claimant was 40 years of age at 
 
            the time of hearing and in what should be her prime earning 
 
            years.  Her industrial disability is greater than would be 
 
            the case for a younger or older individual.  It should be 
 
            clear that an individual who has undergone major lower back 
 
            surgery will be less attractive as a candidate for 
 
            employment to at least some prospective employers.  Claimant 
 
            has sought at least some work without success and did work 
 
            at a county home following her surgery until she found 
 
            herself unable to perform the work.  These are all factors 
 
            tending to show increased industrial disability.
 
            
 
                 On the other hand, claimant does have a General 
 
            Equivalency Diploma and is currently taking community 
 
            college course work.  It seems clear to this observer that 
 
            she has the intelligence and ability to successfully 
 
            undertake retraining and to develop new salable skills.  
 
            Vocational rehabilitation counselors have advised that she 
 
            become a phlebotomist, a profession which would involve 
 
            transfer of skills claimant already possesses.  While 
 
            claimant does not desire to pursue this line of work, it is 
 
            nonetheless a factor indicating lessened industrial 
 
            disability.  Claimant is licensed to drive, can make change, 
 
            can operate a cash register and is able to telephone.  With 
 
            the restrictions she has and given her innate abilities, it 
 
            seems clear that there are regularly available jobs for 
 
            which claimant could qualify.  Nonetheless, she has serious 
 
            restrictions as to lifting, bending and carrying, can sit 
 
            for only 30 minutes at a time and must move around if she 
 
            has a standing job.  It seems clear that her job openings 
 
            will be limited and that she may require an employer willing 
 
            to accommodate these restrictions.
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
                 Considering these factors in particular and the record 
 
            in general, it is held that claimant has established an 
 
            industrial disability of 50 percent, or 250 weeks.
 
            
 
                 Claimant also has 2,580 miles of unreimbursed mileage 
 
            accumulated for medical treatment.  Pursuant to Division of 
 
            Industrial Services Rule 343-8.1(2), the mileage for the use 
 
            of a private automobile shall be the same as the state of 
 
            Iowa reimburses its employees, or $.21 per mile.  Therefore, 
 
            claimant shall also be awarded mileage expenses of $541.80.
 
            
 
                                      order
 
            
 
                 THEREFORE, IT IS ORDERED:
 
            
 
                 Defendants shall pay unto claimant healing period 
 
            benefits at the weekly rate of ninety-six and 25/100 dollars 
 
            ($96.25) from June 9, 1986 through November 17, 1988, a 
 
            total of one hundred twenty-seven (127) weeks, three (3) 
 
            days.
 
            
 
                 Defendants shall pay unto claimant permanent partial 
 
            disability benefits commencing November 18, 1988, of two 
 
            hundred fifty (250) weeks at the weekly rate of ninety-six 
 
            and 25/100 dollars ($96.25).
 
            
 
                 Defendants shall be entitled to credit for all benefits 
 
            paid voluntarily prior to hearing.
 
            
 
                 Defendants shall pay unto claimant mileage expenses 
 
            totalling five hundred forty-one and 80/100 dollars 
 
            ($541.80).
 
            
 
                 All accrued benefits shall be paid in a lump sum with 
 
            interest pursuant to Iowa Code section 85.30.  However, 
 
            interest on transportation expenses shall accrue only from 
 
            the filing date of this decision.
 
            
 
                 Costs of this action shall be assessed to defendants 
 
            pursuant to Division of Industrial Services Rule 343-4.33.
 
            
 
                 Defendants shall file claim activity reports as 
 
            requested by this agency pursuant to Division of Industrial 
 
            Services Rule 343-3.1.
 
            
 
                 Signed and filed this ______ day of ____________, 1990.
 
            
 
                 
 
            
 
                 
 
                 
 
                                          ______________________________
 
                                          DAVID RASEY
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
            
 
            
 
            Mr. Bennett Cullison, Jr.
 
            Attorney at Law
 
            Sixth & Durant Streets
 
            P.O. Box 68
 
            Harlan, Iowa  51537
 
            
 
            Mr. W. Curtis Hewett
 
            Mr. Gregory G. Barntsen
 
            Attorneys at Law
 
            P.O. Box 249
 
            Council Bluffs, Iowa  51502
 
            
 
            
 
            
 
 
            
 
 
 
 
 
 
 
                                                   5-1803
 
                                                   Filed July 6, 1990
 
                                                   DAVID RASEY
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         JOYCE F. GORHAM,
 
         
 
              Claimant,
 
         
 
         vs.
 
                                                  File No. 825459
 
         WESTMONT CARE CENTER,
 
                                              A R B I T R A T I O N
 
              Employer,
 
                                                  D E C I S I O N
 
         and
 
         
 
         BITUMINOUS COMPANY,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         
 
         5-1803
 
         
 
              Extent of disability determined.
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                               5-1803
 
                                               Filed July 6, 1990
 
                                               DAVID RASEY
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            JOYCE F. GORHAM,              :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :         File No. 825459
 
            WESTMONT CARE CENTER,         :
 
                                          :      A R B I T R A T I O N
 
                 Employer,                :
 
                                          :         D E C I S I O N
 
            and                           :
 
                                          :
 
            BITUMINOUS COMPANY,           :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ____________________________________________________________
 
            
 
            5-1803
 
            Extent of disability determined.
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                    BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         TIM LITTON,
 
         
 
              Claimant,
 
                                                 FILE NO. 825590
 
         VS.
 
                                              A R B I T R A T I 0 N
 
         ECONOMY FIRE & CASUALTY CO.,
 
                                                 D E C I S I 0 N
 
              Employer,
 
         
 
         and
 
         
 
         AMERICAN MOTORISTS INS. CO.,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         
 
                                   INTRODUCTION
 
         
 
              Timothy Litton, the claimant, filed an arbitration petition 
 
         against Economy Fire & Casualty Company, employer, and American 
 
         Motorists Insurance Company, its insurance carrier, on January 2, 
 
         1987, for benefits under the Iowa Workers' Compensation Act as a 
 
         result of an alleged injury on February 28, 1986 (originally 
 
         alleged to be February 25, 1986).  At Council Bluffs, Iowa on 
 
         February 9, 1988, before the undersigned the case was heard and 
 
         submitted.
 
         
 
              The record consists of the testimony of Timothy Litton, 
 
         David John Dickey and Harriett L. Weaver; joint documentary 
 
         exhibits 1-52 and deposition exhibits 53-60.
 
         
 
              In the approved prehearing report certain stipulations were 
 
         made.  The parties stipulated claimant received an injury arising 
 
         out of and in the course of his employment.  Only the issues 
 
         which remain for decision follow.
 
         
 
                                      ISSUES
 
         
 
              1.  Whether there is a causal connection between the 
 
         claimant's fall on February 28, 1986 and his claimed disability.
 
         
 
              2.  The nature and extent of disability is questioned.
 
         
 
              3.  The awarding of healing period payments to claimant for 
 
         the period commencing June 9, 1986 and ending August 28, 1987.
 
              4.  Whether claimant should receive medical expense 
 
         benefits under Iowa Code section 85.27.
 
         
 
                              FACTS PRESENTED
 

 
         
 
         
 
         
 
         LITTON V. ECONOMY FIRE & CASUALTY CO.
 
         Page   2
 
         
 
         
 
         
 
              Claimant was injured on a ladder at Cedar Rapids, Iowa on 
 
         February 28, 1986 when a rung broke on the ladder.  He was 
 
         working as an insurance adjuster for the defendant employer and 
 
         was descending from a residential roof after inspecting for a 
 
         claim.  When the rung broke his right knee struck a lower rung of 
 
         the ladder.  Claimant avoided a fall to the ground by grasping 
 
         the ladder. This incident was observed by John J. Arp, claimant's 
 
         supervisor.
 
         
 
              At the time of injury claimant's weight was about 260 
 
         pounds.  His knee immediately became painful and swollen and 
 
         claimant testified that he treated it with compresses and sought 
 
         relief for aches to his back and other parts of his body by using 
 
         a whirlpool at the motel where he was staying.  Claimant 
 
         testified he continued self-treatment to his knee which was his 
 
         main concern, but he had continuing pain in his back and hips.
 
         
 
              On June 6, 1986, during the inspection of a roof for the 
 
         defendant employer claimant's right knee locked.  Claimant went 
 
         down on the roof and after he worked out the locked condition of 
 
         his knee and descended from the roof he called his supervisor.  
 
         Claimant told the supervisor he could not work any longer.  He 
 
         never returned to work for defendant employer.
 
         
 
              After conservative medical treatment failed, knee surgery 
 
         was performed by R. Michael Gross, M.D., in July of 1986.  As 
 
         claimant became more mobile he stated his back became worse and 
 
         he discussed his back problem with Dr. Gross at the end of August 
 
         or September.  He was then treated by Dr. Gross and other 
 
         physicians by therapy and cortisone shots.
 
         
 
              On January 29, 1987, R. Schuyler Gooding, M.D., a 
 
         neurosurgeon, performed back surgery on claimant after a CT scan 
 
         revealed a herniated disc on the left at L5-Sl.  The L5-Sl 
 
         discectomy by Dr. Gooding resulted in much improvement.  On 
 
         August 28, 1987, Dr. Gooding released claimant for work stating 
 
         that claimant had reached the "maximum medical benefits" from his 
 
         lumbar surgery.
 
         
 
              Claimant opined that both the knee surgery and the back 
 
         surgery were successful and that he felt good although he needed 
 
         to be careful.  Claimant reduced his weight by over 70 pounds 
 
         from the time of the incident on February 28, 1986, which was 
 
         part of therapy at the recommendation of his physicians.
 
         
 
         
 
                                  APPLICABLE LAW
 
         
 
              The claimant has the burden of proving by a preponderance of 
 
         the evidence that the injury of February 28, 1986 is causally 
 
         related to the disability on which he now bases his claim.  
 
         Bodish v. Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867 (1965).  
 
         Lindahl v. L. 0. Boggs, 236 Iowa 296, 18 N.W.2d 607 (1945).  A 
 
         possibility is insufficient; a probability is necessary.  Burt v. 
 
         John Deere Waterloo Tractor Works, 247 Iowa 691, 73 N.W.2d 732 
 
         (1955).  The question of causal connection is essentially within 
 
         the domain of expert testimony.  Bradshaw v. Iowa Methodist 
 
         Hospital, 251 Iowa 375, 101 N.W.2d 167 (1960).
 

 
         
 
         
 
         
 
         LITTON V. ECONOMY FIRE & CASUALTY CO.
 
         Page   3
 
         
 
         
 
         
 
              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).  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).
 
         
 
              An injury to a scheduled member which, because of 
 
         aftereffects (or compensatory change), creates impairment to the 
 
         body as a whole entitles claimant to industrial disability.  
 
         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).
 
         
 
              An injury is the producing cause; the disability, however, 
 
         is the result, and it is the result which is compensated.  
 
         Barton, 253 Iowa 285, 110 N.W.2d 660 (1961); Dailey, 233 Iowa 
 
         758, 10 N.W.2d 569 (1943).
 
         
 
              The opinion of the supreme court in Olson v. Goodyear 
 
         Service Stores, 255 Iowa 1112, 1121, 125 N.W.2d 251, 257 (1963) 
 
         cited with approval a decision of the industrial commissioner for 
 
         the following proposition:
 
         
 
              Disability * * * as defined by the Compensation Act 
 
              means industrial disability, although functional 
 
              disability is an element to be considered . . . In 
 
              determining industrial disability, consideration may be 
 
              given to the injured employee's age, education, 
 
              qualifications, experience and his inability, because 
 
              of the injury, to engage in employment for which he is 
 
              fitted. * * * *
 
         
 
              Iowa Code section 85.34(l) as amended provides as follows:
 
         
 
              If an employee has suffered a personal injury causing 
 
              permanent partial disability for which compensation is 
 
              payable as provided in subsection 2 of this section, 
 
              the employer shall pay to the employee compensation for 
 
              a healing period, as provided in section 85.37, 
 
              beginning on the date of injury, and until the employee 
 
              has returned to work or it is medically indicated that 
 
              significant improvement from the injury is not 
 
              anticipated or until the employee is medically capable 
 
              of returning to employment substantially similar to the 
 
              employment in which the employee was engaged at the 
 
              time of injury, whichever occurs first.
 
         
 
              Iowa Code section 85.27, as amended, provides in part:
 
         
 
                 The employer, for all injuries compensable under 
 
              this chapter or chapter 85A, shall furnish reasonable 
 

 
         
 
         
 
         
 
         LITTON V. ECONOMY FIRE & CASUALTY CO.
 
         Page   4
 
         
 
         
 
              surgical, medical, dental, osteopathic, chiropractic, 
 
              podiatric, physical rehabilitation, nursing, ambulance 
 
              and hospital services and supplies therefor and shall 
 
              allow reasonably necessary transportation expenses 
 
              incurred for such services.  The employer shall also 
 
              furnish reasonable and necessary crutches, artificial 
 
              members and appliances but shall not be required to 
 
              furnish more than one set of permanent prosthetic 
 
              devices.
 
         
 
                 ....
 
         
 
                 For purposes of this section, the employer is 
 
              obliged to furnish reasonable services and supplies to 
 
              treat an injured employee, and has the right to choose 
 
              the care.
 
         
 
              In Barnhart v. MAQ Incorporated, I Iowa Industrial 
 
         Commissioner Report 16, 17 (1981), the following statement of law 
 
         pertaining to failure to obtain authorization from defendants for 
 
         medical treatment appears:
 
         
 
                 As the second full issue on appeal, defendants claim they 
 
              should not have to pay Dr. Wilson's bill.  The evidence 
 
              shows that defendants did not know claimant went to see Dr. 
 
              Wilson and that claimant was sent to that doctor by his 
 
              then-lawyer.  Often, such an allegation would be valid; in 
 
              the usual compensable case, defendants have the right to 
 
              choose the care, as it is clearly stated by the code 
 
              section.  However, defendants in their answer denied that 
 
              claimant's injuries arose out of and the course of the 
 
              employment; further, the issue of arising out of and in the 
 
              course of the employment was included in the pre-hearing 
 
              order as an issue to be tried.  It does not seem logical 
 
              that defendants can deny liability on the one hand and guide 
 
              the course of treatment on the other ... (Emphasis added)
 
         
 
         
 
                                     ANALYSIS
 
         
 
              A causal connection must be shown in this case by  claimant 
 
         to exist between the injury of February 28, 1986 and the 
 
         claimant's back problems.
 
         
 
              It is undisputed that the ladder incident on February 28, 
 
         1986, took place and that at the time the claimant was acting in 
 
         the course of his employment and that it arose out of his 
 
         employment.  Claimant had knee surgery on July 31, 1986 and back 
 
         surgery occurred on January 29, 1987.
 
         
 
              At the time of the incident on February 28, 1986, claimant 
 
         testified that:
 
         
 
         
 
              ...I felt a jolting and a pop as I stopped going down.
 
         
 
                 Q.  Where was the pop in regard to the anatomy of 
 
              your body, Mr. Litton?
 
         
 

 
         
 
         
 
         
 
         LITTON V. ECONOMY FIRE & CASUALTY CO.
 
         Page   5
 
         
 
         
 
                 A.  My knee, my right knee.
 
         
 
                 Q.  And where at that time did you feel pain, if 
 
              any?
 
         
 
                 A.  Well, it hurt like hell.  Pardon my language.  
 
              My right knee.  I got real stiff and real sore all 
 
              over, but my right knee just, you know, hurt quite a 
 
              bit.  It swole up instantly.  As a matter of fact, I 
 
              commented to John, I said Jesus, look at this, because 
 
              my pants got real tight in the knee.
 
         
 
                 Q.  And did you continue working that day or did you 
 
              call it a day?
 
         
 
                 A.  No. I was real stiff.  My back was real stiff.  
 
              My knee hurt real bad and my shoulders were sore ....
 
         
 
              From February 28, 1986 until June 6, 1986, the claimant 
 
         testified that he had daily swelling of his knee and he also had 
 
         pain in his back and in both hips which he thought was because of 
 
         the knee.  His knee would lock periodically.  However, claimant 
 
         continued to work until about June 6, 1986, when his knee locked 
 
         when he was walking down a roof.  Claimant stopped working and 
 
         sought medical treatment for his knee.
 
         
 
         
 
              Claimant stated that after his knee surgery in July of 1986, 
 
         his back became worse as he became more mobile and that by the 
 
         end of August or the first part of September he was discussing 
 
         his back problem with Dr. Gross who had performed the knee 
 
         surgery.
 
         
 
              John J. Dougherty, M.D., an examining physician, reported 
 
         that he was not sure as to whether the back injury was caused by 
 
         the fall on February 28, 1986.  Joel T. Cotton, M.D., another 
 
         examining physician, expressed the opinion that it was not;while 
 
         Dr. Gooding, a treating physician, expressed the opinion that it 
 
         was.  Dr. Cotton is a neurologist who does not perform surgery.  
 
         Dr. Dougherty is an orthopedist specialist who reported but was 
 
         not deposed.  Dr. Gooding is a neurosurgeon who specialized in 
 
         the type of operation that was performed on claimant.  Dr. 
 
         Gooding expressed the opinion that the back injury was caused by 
 
         the ladder incident.  He opined it was caused at the time the 
 
         ladder rung broke, but with increased mobility claimant's back 
 
         became worse as time progressed.  Reports of Dr. Gross, who 
 
         performed the knee surgery, support Dr. Gooding's view of how the 
 
         back problem became worse at a later time.
 
         
 
              Dr. Gooding's medical opinion is accepted as best describing 
 
         claimant's medical condition in view of his: (1) specialization 
 
         precisely in the medical problem involved; (2) the greater 
 
         opportunity he had as a treating physician to observe claimant; 
 
         and, (3) the manner in which his view best describes the 
 
         development of the medical problem as it coincided with overt 
 
         developments.
 
         
 
              Defendants claim that claimant lacks credibility and that 
 
         the causal connection is flawed by his lack of credibility both 
 

 
         
 
         
 
         
 
         LITTON V. ECONOMY FIRE & CASUALTY CO.
 
         Page   6
 
         
 
         
 
         as to his own testimony and as to the testimony of doctors who 
 
         relied upon the history given to them by the claimant.
 
         
 
              Claimant's credibility is attacked on the basis of 
 
         misrepresentation of fact in prior statements.  Defendants 
 
         produced the transcript of a tape interview of claimant by 
 
         Michael Sigwalt, an employee of defendant Economy Fire & Casualty 
 
         Company.  In this taped interview dated June 16, 1986, claimant, 
 
         at best, evaded answering the question as to whether he had had a 
 
         prior knee injury other than when in high school and at worst 
 
         claimant deliberately evaded answering that he had been injured 
 
         on the job for a prior employer in 1985.  When pressed for an 
 
         answer to this question claimant answered "not really."  However, 
 
         it should be pointed out that claimant did state in his 
 
         application and also in a health questionnaire to defendant 
 
         employer that he had had prior surgery for his right knee.  See 
 
         exhibit 45.  Michael Sigwalt did not appear to testify as to the 
 
         authenticity and accuracy of the transcript of the tape for the 
 
         defense nor did he give testimony by deposition.
 
         
 
              Claimant concealed information to obtain a job with Republic 
 
         Insurance.  Claimant explained that he did so because he 
 
         desperately needed work.
 
         
 
              Defendants next assert that claimant's 1985 knee problem 
 
         never really went away and that the problem was perhaps 
 
         aggravated by the "fall" on June 6, 1986.  The exact words of 
 
         claimant are: "...I was on top of a roof in a small town in 
 

 
         
 
         
 
         
 
         LITTON V. ECONOMY FIRE & CASUALTY CO.
 
         Page   7
 
         
 
         
 
         western Iowa and as I was walking down the roof the knee locked 
 
         and I went down and I couldn't work it out.  I stayed up there 
 
         about 35 minutes trying to work the knee out.O  What occurred 
 
         when claimant's knee buckled on June 6, 1986 was not shown as a 
 
         fall or as a fall causing injury.
 
         
 
              Defendants claim that claimant did not tell John Arp or 
 
         Joanie Ward, employees of defendant, that he had hurt his back.  
 
         Claimant claims that he did.  This is conflicting testimony, but 
 
         it is not unusual for honest differences to exist between what is 
 
         said and what is heard particularly concerning what appeared at 
 
         the time to be something aside from the focus of attention, 
 
         claimant's knee.  At all times claimant emphasized the overriding 
 
         concern was his knee until after his knee operation.  This would 
 
         also apply to when claimant went to doctors for help on his knee 
 
         and he thought that his back problem was caused only by the knee 
 
         condition.  Claimant's mother, Harriett L. Weaver, testified to 
 
         explain her son's belief concerning his back that she had been 
 
         told by a doctor that an injury in a leg could cause back 
 
         problems and that she had relayed this information to the 
 
         claimant shortly after the ladder fall.
 
         
 
              Defendants also complained that Frank W. Iwersen, M.D.Os 
 
         report shows in October of 1986 that claimant "began having back 
 
         trouble in September of 1986...." Trouble comes in different 
 
         degrees and in any event this testimony is not inconsistent with 
 
         the opinion of Dr. Gooding that the back injury was brought on by 
 
         increased mobility which mobility increased after the knee 
 
         surgery.
 
         
 
              No other attacks on claimantOs credibility by defendants 
 
         have merit or relevancy to the case.
 
         
 
              Under all the circumstances claimant's relevant testimony 
 
         has not been impeached.  His credibility is sound as to the 
 
         injury and its results including the case histories related to 
 
         physicians.
 
         
 
              Claimant's account of events fit with known facts.  He was 
 
         not incapacitated nor had he indicated any back problems which 
 
         relate in any way to any incident in evidence other than the 
 
         injury of February 28, 1986.  To assert the knee and back 
 
         problems may have been caused by a prior knee injury in 1985 does 
 
         not explain; (1) why there was no complaint of back injury before 
 
         the February 28, 1986 incident; (2) why he became incapacitated 
 
         for his back problem only after that incident; and, (3),the need 
 
         for surgery on his knee on July 31, 1986 when he had already been 
 
         successfully operated on in 1985 according to the treating 
 
         physician, Thomas C. Bush, M.D.
 
         
 
              Further, the testimony at the hearing by David J. Dickey, an 
 
         unbiased observer who became acquainted with claimant in Little 
 
         League, substantiates that early in April of 1986 claimant was 
 
         having trouble with his back and not just his knee.  Dickey 
 
         observed that claimant's posture and movements indicated that he 
 
         was having back pain at the time.
 
         
 
              A casual connection to the injury of February 28, 1986 and 
 
         the back problems has been demonstrated to exist by a 
 

 
         
 
         
 
         
 
         LITTON V. ECONOMY FIRE & CASUALTY CO.
 
         Page   8
 
         
 
         
 
         preponderance of the evidence.
 
         
 
              Claimant's back injury gives rise to the need for a 
 
         determination of industrial disability with reference to the body 
 
         as a whole.  First, functional disability will be considered as 
 
         it applies to claimant's body.
 
         
 
              Dr. Dougherty, in reporting to defendants' attorney on 
 
         October 5, 1987, gave claimant a 10 percent disability to his 
 
         body (Exhibit 3).  Dr. Cotton reported to defendants' attorney on 
 
         July 15, 1987 and later testified in a deposition that the 
 
         claimant had a functional disability to the whole man of five 
 
         percent (Ex. 6).  Dr. Gooding, who had performed the back 
 
         surgery, in a deposition (Ex. 59, p. 19) confirmed his earlier 
 
         report to claimant's attorney in which he rated functional 
 
         disability of the whole person at 15 percent.
 
         
 
              It is accepted that claimant will have extreme difficulty 
 
         and probably will find it impossible to obtain employment as an 
 
         insurance adjuster or as a manager of claims in the insurance 
 
         industry.  He has demonstrated this by his testimony pertaining 
 
         to applying for work.  However, claimant's earning capacity has 
 
         not been reduced to the extent he pessimistically asserts.
 
         
 
              Claimant appears in the long run to be highly motivated and 
 
         his loss of weight will greatly enhance his chance of getting 
 
         rewarding employment in areas other than insurance.  Claimant's 
 
         functional handicap should not hurt him much in view of his 
 
         relative youth (age 39) and education.  Indeed, claimant is so 
 
         close to having enough hours to receive a bachelors' degree in 
 
         the arts or science that he might exacerbate earning capacity by 
 
         picking up needed college hours.  Claimant had demonstrated an 
 
         ability to supervise others and earn a good salary when he was 
 
         with Republic Insurance.
 
         
 
              Claimant is found to be 20 percent industrially disabled.
 
         
 
              It follows from the authority cited and the prior analysis 
 
         that healing period benefits should be awarded for the period of 
 
         June 9, 1986 through August 28, 1987, inclusive.
 
         
 
              In view of the fact that defendants denied any obligation 
 
         for the claimant's injury of February 28, 1986, there was no 
 
         unauthorized medical treatment.  Medical expenses should be 
 
         awarded to claimant.
 
         
 
                                 FINDINGS OF FACT
 
         
 
              Finding 1.  On February 28, 1986, claimant received an 
 
         injury arising out of and in the course of his employment with 
 
         defendant Economy Fire & Casualty Company.
 
         
 
              Finding 2.  As a result of his February 28, 1986 injury, 
 
         claimant had medical problems with his right knee and back.
 
         
 
              Finding 3.  As a result of his injury claimant had surgery 
 
         to his right knee and back.
 
         
 
              Finding 4.  Claimant began to miss work because of his 
 

 
         
 
         
 
         
 
         LITTON V. ECONOMY FIRE & CASUALTY CO.
 
         Page   9
 
         
 
         
 
         injury on June 9, 1986.
 
         
 
              Finding 5.  Claimant reached maximum recovery on August 28, 
 
         1987.
 
         
 
              Finding 6.  As part of claimant's medical treatment claimant 
 
         has lost about 70 pounds from the date of injury and now weighs 
 
         about 185.
 
         
 
              Finding 7.  As a result of his injury claimant has a 
 
         permanent functional impairment of 15 percent.
 
         
 
              Finding 8.  Claimant is now 34 years of age and has college 
 
         credits nearly sufficient for a BA or BS degree and appears to be 
 
         a motivated person.
 
         
 
              Finding 9.  Claimant has experience primarily as a law 
 
         enforcement officer, insurance claims manager and claims 
 
         adjuster, but has held a variety of full time and part-time jobs 
 
         on a short term basis.
 
         
 
              Finding 10. Claimant would have great difficulty obtaining 
 
         employment in law enforcement or as an insurance claims manager 
 
         or claims adjuster for an insurance company.
 
         
 
              Finding 11. Claimant is found to be credible in so far as 
 
         the relevant and material testimony given by him in this case.
 
         
 
              Finding 12. Upon the principles of law and facts previously 
 
         stated claimant is found to have a 20 percent industrial 
 
         disability.
 
         
 
                                CONCLUSIONS OF LAW
 
         
 
              A.  Claimant has met his burden in proving he has an 
 
         industrial disability of 20 percent as a result of his injury on 
 
         February 28, 1986.
 
         
 
              B.  Claimant is entitled to temporary disability benefits 
 
         from June 9, 1986 to and including August 28, 1987.
 
         
 
              C.  Claimant is entitled to medical benefits under Iowa Code 
 
         section 85.27.
 
         
 
                                      ORDER
 
         
 
              THEREFORE, IT IS ORDERED:
 
         
 
              1.  Defendants shall pay claimant one hundred (100) weeks of 
 
         permanent partial disability benefits at the rate of two hundred 
 
         seventy and 63/100 dollars ($270.63) per week and sixty-three 
 
         point seven-one-four (63.714) weeks of healing period at the rate 
 
         of two hundred seventy and 63/100 dollars ($270.63) per week 
 
         together with interest as provided under Iowa Code section 
 
         85.30.
 
         
 
              2.  Defendants are to pay the medical bills pursuant to the 
 
         itemized list filed in this proceeding.
 
         
 

 
         
 
         
 
         
 
         LITTON V. ECONOMY FIRE & CASUALTY CO.
 
         Page  10
 
         
 
         
 
              3.  Costs of this action are assessed against the defendants 
 
         pursuant to Division of Industrial Services Rule 343-4.33.
 
         
 
              4.  Defendants shall file activity reports on payment of 
 
         this award as requested by this agency pursuant to Division of 
 
         Industrial Services Rule 343-3.1.
 
         
 
              5.  This case is returned to pretrial status pending hearing 
 
         on the bifurcated issue under Iowa Code section 86.13.
 
         
 
         
 
              Signed and filed this 18th day of April, 1988.
 
         
 
         
 
         
 
         
 
         
 
         
 
                                         G. WOODWARD
 
                                         DEPUTY INDUSTRIAL COMMISSIONER
 
         
 
         
 
         
 
         Copies To:
 
         
 
         Mr. Sheldon M. Gallner
 
         Attorney at Law
 
         803 Third Ave.
 
         P. 0. Box 1588
 
         Council Bluffs, Iowa 51502
 
         
 
         Mr. James E. Harris
 
         Attorney at Law
 
         Suite 200 Westmark Plaza
 
         10707 Pacific Street
 
         Omaha, Nebraska 68114
 
         
 
         Mr. Thomas M. Plaza
 
         Attorney at Law
 
         200 Home Federal Bldg.
 
         P. 0. Box 3086
 
         Sioux City, Iowa 51102
 
         
 
         
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                                    1402.20; 1402.40
 
                                                    1803; 3700
 
                                                    Filed April 18, 1988
 
                                                    G. WOODWARD
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         TIM LITTON,
 
         
 
              Claimant,
 
                                                    FILE NO. 825590
 
         VS.
 
                                                A R B I T R A T I 0 N
 
         
 
         ECONOMY FIRE & CASUALTY CO.,
 
                                                   D E C I S I 0 N
 
              Employer,
 
         
 
         and
 
         
 
         AMERICAN MOTORISTS INS. CO.,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         
 
         1402.20; 1402.40; 1803; 3700
 
         
 
              When claimant injured his knee and back and after 
 
         self-treatment for a time his knee locked knee causing him to 
 
         stop working and have knee and back surgery; claimant met his 
 
         burden of proof of causal connection of results to injury through 
 
         his testimony, medical records and history, expert medical 
 
         testimony and the occurrence of surgery itself.
 
         
 
              Proof by claimant of functional disability, good motivation, 
 
         an age of 37, supervisory ability, near completion of college, 
 
         his surgically treated knee and back feeling good, but with no 
 
         likelihood of being able to get employment in areas he had the 
 
         most experience resulted in 20 percent industrial disability.
 
         
 
              Where claimant's knee and lumbar surgery was successful, 
 
         injuries resulted in 15 percent functional disability and a 20
 
         percent industrial disability.
 
         
 
              Although some deception or concealment was shown, attempted 
 
         impeachment of claimant was unsuccessful where such showing did 
 
         not relate directly to the issues, was mitigated under the 
 
         circumstances or was simply not proven by defendants.
 
 
 
         
 
 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         MIKE GALLI,
 
         
 
              Claimant,
 
         vs.
 
                                                 File No. 825795
 
         ADVANCED DRAINAGE SYSTEMS
 
         INC.,                                      A P P E A L
 
         
 
              Employer,                           D E C I S I O N
 
         
 
         KEMPER INSURANCE GROUP,                     F I L E D
 
         
 
              Insurance Carrier,                    NOV 30 1989
 
              Defendants.
 
                                          IOWA INDUSTRIAL COMMISSIONER
 
                                                      
 
         
 
                              STATEMENT OF THE CASE
 
         
 
              Defendants appeal from an arbitration decision awarding 
 
         permanent partial disability benefits as the result of an alleged 
 
         injury on July 10, 1986.
 
         
 
              The record on appeal consists of the transcript of the 
 
         arbitration proceeding; defendants, exhibit 20; claimant's 
 
         exhibits B through E, F(b), F(c), F(d), G and H; and joint 
 
         exhibits 1 through 19.  Both parties filed briefs on appeal. 
 
         Defendants filed a reply brief.
 
         
 
                                      ISSUES
 
         
 
              Defendants state the following issues on,appeal:  "1.  Did 
 
         the Deputy err in awarding industrial disability?  2.  Did the 
 
         Deputy err in awarding penalty benefits for the Respondents 
 
         unreasonably withholding or delaying payments?"
 
         
 
                              REVIEW OF THE EVIDENCE
 
         
 
              The arbitration decision adequately and accurately reflects 
 
         the pertinent evidence and it will not be set forth herein.
 
         
 
                                  APPLICABLE LAW
 
         
 
              The citations of law in the arbitration decision are 
 
         appropriate to the issues and the evidence.
 
         
 
                                     ANALYSIS
 
         
 
              Claimant was released to return to work after his injury by 
 
         his physician without any restrictions.  Claimant testified that 
 
         he attempted to return to work, but was told by his employer that 
 
         the insurance company would not let the employer rehire claimant 
 
         because of his injury.  Claimant also stated that the employer 
 
         characterized him as "accident prone."  The employer denies this.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              The employer did, however, clearly refuse to rehire claimant 
 
         when he first returned to work, due to claimant's injury.  The 
 
         employer then hired another employee to take over claimant's 
 
         duties.  The employer, on appeal, states that the reason claimant 
 
         was not rehired was due to economic circumstances, the seasonal 
 
         nature of the work, and a rehire system based on seniority, and 
 
         not due to his injury.  The record shows that the employer hired, 
 
         in the months following the injury, two or three similarly 
 
         skilled employees to do work similar to that which claimant was 
 
         performing at the time of his injury.  Contrary to the employer's 
 
         argument, the fact that the Iowa Civil Rights Commission failed 
 
         to take action on claimant's claim of discrimination on the basis 
 
         of disability has no binding effect or relevance in this action, 
 
         as clearly other factors and criteria are involved in a civil 
 
         rights action that are not applicable to a workers, compensation 
 
         proceeding.
 
         
 
              Even considering the seasonal nature of the employer's work, 
 
         and the possibility that claimant, had he not been injured, may 
 
         have been subject to layoff, nevertheless the record clearly 
 
         establishes that at the time of his initial attempt to return to 
 
         work, claimant was denied re-employment even though there were no 
 
         physical restrictions preventing his rehire.  There is no 
 
         indication in the record that claimant would have been subject to 
 
         layoff at that point in time had he not been injured.  The 
 
         economic or seasonal factors relied on by employer did not 
 
         prevent the employer from hiring a substitute employee to replace 
 
         claimant.  But for claimant's injury, claimant would have 
 
         continued working for employer for some period of time, but 
 
         because of his injury claimant was not rehired and therefore 
 
         suffered a loss of wages.
 
         
 
              The employer correctly points out that claimant has not 
 
         suffered a permanent physical impairment as a result of his 
 
         injury, and that claimant is now earning more in wages than 
 
         previously and now has more stable, year-around employment. 
 
         Nevertheless, an employer's refusal to give any sort of work to a 
 
         claimant after he suffers his affliction may justify an award of 
 
         disability.  McSpadden v. Big Ben Coal Co., 288 N.W.2d 181 (Iowa 
 
         1980).  The employer could not predict that claimant would be 
 
         able to find substitute work when it refused to rehire claimant, 
 
         and in fact claimant was without wages for a substantial period 
 
         of time due to the employer's refusal to rehire.  Claimant has 
 
         suffered a ten percent industrial disability.
 
         
 
              The deputy also imposed a penalty of 50 percent of unpaid 
 
         benefits pursuant to section 86.13.  However, in light of the 
 
         fact that no impairment rating or other indication of permanency 
 
         existed, a penalty is not appropriate.
 
         
 
                                 FINDINGS OF FACT
 
         
 
              1.  Claimant was injured on July 10, 1986 while working for 
 
         defendant employer.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              2.  Claimant's injury on July 10, 1986 was the result of his 
 
         employment with defendant employer.
 
         
 
              3.  Claimant was released to return to work on August 22, 
 
         1986 and sought the return of his job with defendant employer.
 
         
 
              4.  Defendant employer refused to allow claimant to return 
 
         to work upon his release.
 
              
 
              5.  Defendant insurance company instructed defendant 
 
         employer not to allow claimant to return to work upon his 
 
         release.
 
              
 
              6.  Claimant has a ten percent industrial disability 
 
         resulting from his injury of July 10, 1986.
 
         
 
              7.  Claimant has a loss of earnings and earning capacity.
 
              
 
              8.  Claimant reached maximum recovery on August 22, 1986.
 
              
 
              9.  Defendants are to pay Iowa Musculoskeletal Center's bill 
 
         for $144.00 and all mileage set out in exhibit F(c) except for 
 
         the mileage to and from George A. Neff, D.C.
 
         
 
                                CONCLUSIONS OF LAW
 
         
 
              Claimant's injury arose out of.and in the course of his 
 
         employment on July 10, 1986.
 
         
 
              Claimant has established a causal connection between his 
 
         injury of July 10, 1986 and his disability.
 
         
 
              Claimant has incurred a loss of earnings and earning 
 
         capacity as a result of his injury of July 10, 1986.
 
         
 
              Claimant has a ten percent industrial disability.
 
         
 
              Claimant is entitled to 5 5/7 weeks of healing period 
 
         benefits for the period beginning July 14, 1986 up to August 22, 
 
         1986 at the rate of $136.24 per week.
 
         
 
              Claimant is entitled to have Iowa Musculoskeletal Center's 
 
         bill for $144.00 be paid and all mileage set out in exhibit F(c) 
 
         except for Dr. Neff.
 
         
 
              WHEREFORE, the decision of the deputy is affirmed and 
 
         modified.
 
         
 
                                      ORDER
 
         
 
              THEREFORE, it is ordered:
 
         
 
              That claimant is entitled to five and five-sevenths (5 5/7) 
 
         weeks of healing period benefits at the weekly rate of one 
 
         hundred thirty-six and 24/100 dollars ($136.24).
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              That claimant is entitled to fifty (50) weeks of permanent 
 
         partial disability benefits at the rate of one hundred thirty-six 
 
         and 34/100 dollars ($136.24) commencing August 22, 1986.
 
         
 
              That defendants shall be given credit for the nine and 
 
         two-tenths (9 2/10) weeks of compensation that defendants have 
 
         already paid to claimant.
 
         
 
              That defendants shall pay the one hundred forty-four dollar 
 
         ($144. 00) bill of the Iowa Musculoskeletal Center, P.C., and 
 
         claimant's transportation expenses set out in exhibit F(c) except 
 
         for the mileage to and from Dr. Neff's office.
 
         
 
              That defendants shall pay the accrued weekly benefits in a 
 
         lump sum.
 
         
 
              That defendants shall pay interest on benefits awarded 
 
         herein as set forth in Iowa Code section 85.30.
 
         
 
              That defendants shall pay the costs of this action pursuant 
 
         to Division of Industrial Services Rule 343-4.33.
 
         
 
              That defendants file claim activity reports as requested by 
 
         this agency pursuant to Division of Industrial Services Rule 
 
         343-3.1.
 
         
 
              Signed and filed this 30th day of November, 1989.
 
         
 
         
 
         
 
         
 
         
 
                                               DAVID E. LINQUIST
 
                                            INDUSTRIAL COMMISSIONER
 
                                            
 
         Copies to:
 
         
 
         Mr. Robert R. Rush
 
         Attorney at Law
 
         526 2nd Ave. SE
 
         P.O. Box 2457
 
         Cedar Rapids, IA  52406
 
         
 
         Mr. Craig A. Levien
 
         Attorney at Law
 
         600 Union Arcade Bldg.
 
         111 East Third St.
 
         Davenport, IA  52801-1550
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         
 
                                
 
                                            1803
 
                                            Filed November 30, 1989
 
                                            DAVID E. LINQUIST
 
                                            
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
                                        
 
         
 
         MIKE GALLI,
 
         
 
              Claimant,
 
         
 
         vs.                                       File No. 825795
 
         
 
         ADVANCED DRAINAGE SYSTEMS
 
         INC.,                                       A P P E A L
 
         
 
              Employer,                            D E C I S I O N
 
         
 
         KEMPER INSURANCE GROUP,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         1803
 
         
 
              Claimant with back injury had no permanency and was released 
 
         to return to work without restrictions.  Claimant testified the 
 
         employer refused to rehire him, and the employer recited as a 
 
         reason that the insurance company would not let them rehire 
 
         claimant because he was "accident prone."  Employer was 
 
         unpersuasive in trying to show that claimant was "laid off" for 
 
         economic reasons, where similarly skilled employees were hired to 
 
         do the same work as claimant during the period when re-employment 
 
         was denied claimant.  Award of 10 percent industrial disability 
 
         affirmed on appeal, but award of 50 percent 86.13 penalty was 
 
         reversed in light of absence of impairment ratings or any 
 
         indication of permanency.
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         
 
         
 
                                                                                                                    
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
                                                                                       
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         
 
                                
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         MICHAEL GALLI,
 
         
 
              Claimant,                           File No. 825795
 
         
 
         vs.                                   A R B I T R A T I O N
 
         
 
         ADVANCED DRAINAGE SYSTEMS,               D E C I S I O N
 
         INC.,
 
         
 
         and                                         F I L E D
 
         
 
         KEMPER INSURANCE GROUP,                    MAR 14 1989
 
         
 
              Insurance Carrier,           IOWA INDUSTRIAL COMMISSIONER
 
              Defendants.
 
         
 
                                   INTRODUCTION
 
         
 
              This is a proceeding in arbitration brought by claimant, 
 
         Michael Galli, against Advanced Drainage Systems, Inc., employer, 
 
         and Kemper Insurance Group, insurance carrier, to recover 
 
         benefits as a result of an injury sustained on July 10, 1986.  
 
         This matter came on for hearing before the undersigned deputy 
 
         industrial commissioner in Cedar Rapids, Iowa, on December 30, 
 
         1988.  The record in this proceeding consists of the testimony of 
 
         claimant and claimant's wife, Von Rae Galli; claimant's exhibits 
 
         B through E, F(b), F(c), F(d), G and H; joint exhibits 1 through 
 
         19; and defendant's exhibit 20.  Claimant's exhibit H is the 
 
         deposition of Larry S. Eastwood.
 
         
 
              Pursuant to the prehearing report, the parties stipulated 
 
         that an employer-employee relationship existed, that the weekly 
 
         rate would be $136.24, and that defendants paid 9 2/7 weeks of 
 
         benefits at the $136.24 weekly rate which represents a healing 
 
         period of July 14, 1986 through September 16, 1986.
 
         
 
                                      ISSUES
 
                                                                                                                    
 
         
 
              The issues are:
 
         
 
             1.  Whether claimant's injury arose out of and in the course 
 
         of his employment on July 10, 1986;
 
         
 
             2.  Whether claimant's injury of July 10, 1986 is causally 
 
         connected to his disability;
 
         
 
              3.  The nature and extent of claimant's disability; and
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              4.  Whether there should be an 86.13 penalty.
 
         
 
                              REVIEW OF THE EVIDENCE
 
         
 
              Claimant testified that he injured his back on July 10, 1986 
 
         while loading coiled drainage tubing into defendant employer's 
 
         truck.  Claimant stated that he attempted to return to work two 
 
         days later but the work was aggravating his back.  Claimant was 
 
         off work six weeks until he received a work release from his 
 
         treating physician to return to work on August 22, 1986 with no 
 
         restrictions.  Claimant said he showed the nonrestrictive work 
 
         release to defendant employer's Iowa City plant manager, Larry 
 
         Eastwood, who indicated defendant employer could not hire 
 
         claimant back because of claimant's bad back and that the 
 
         insurance company would not let defendant employer hire claimant 
 
         back as claimant is accident-prone.  Claimant testified he later 
 
         went to defendant employer or called defendant employer ten to 
 
         fifteen times asking for his job back.  Claimant said defendant 
 
         employer said they would like to hire him back but the insurance 
 
         company would not let them.  Claimant indicated he was unemployed 
 
         from the date of the injury, July 10, 1986 to December 1, 1986, 
 
         when he found a job.  In May 1987, claimant stated he obtained 
 
         his present job at Bob Zimmerman Ford beginning at $3.85 per hour 
 
         and is now earning $5.50 per hour as a used car mechanic.
 
         
 
              Claimant said he still has back flare-ups two times a week 
 
         and has taken time off from his present job because of his back 
 
         problems.  Claimant admitted that when he worked for defendant 
 
         employer, it was seasonal work and there were weeks when 
 
         defendant employer was not busy.  Claimant agreed that it was not 
 
         a twelve month job.
 
         
 
              On April 23, 1987, claimant answered interrogatories 
 
         propounded by defendants.  Claimant was asked in interrogatory 
 
         number 20:
 
         
 
              If you claim that your normal work activities are or will be 
 
              limited in any way as a result of your accident, describe in 
 
              complete detail each and every limitation or impairment of 
 
              your normal work activities, indicating any specific manual 
 
              tasks formerly required by your employer which you feel you 
 
              cannot perform at the present time.
 
              
 
              ANSWER:  None to my knowledge.
 
              
 
         (Joint Exhibit 19, page 1)
 
         
 
              In Interrogatory number 22, claimant was asked:
 
              
 
              If you claim that your normal leisure activities are or will 
 
              be limited in any way as a result of the accident, please 
 
              describe any and all limitations on your normal leisure time 
 
              activities which you attribute to the subject accident:
 
              
 

 
              
 
 
 
 
 
 
 
 
 
 
 
              ANSWER:  None.
 
              
 
         (Jt. Ex. 19, p. 2)
 
         
 
              On August 25, 1987, during his deposition, claimant was 
 
         asked the same question as asked in interrogatory number 20 and 
 
         claimant gave the same answer.  In his deposition, claimant was 
 
         further asked, "In other words, you do not feel you have any 
 
         physical limitations as a result of the alleged injury of July 
 
         10, 1986; is that correct?"  Claimant's answer was "yes."  (Ex. 
 
         18, p. 8)
 
         
 
              Dr. John Koch wrote on August 19, 1986 that claimant was 
 
         able to resume regular work on August 22, 1986.  William J. 
 
         Robson, M.D., wrote with regard to this claimant on October 14, 
 
         1986, "no permanent injury" (Ex. 12)  Michael Toomey, L.P.T., 
 
         noted on his report to Martin F. Roach, M.D., that the claimant 
 
         did not show on August 21, 1986 for further physical therapy 
 
         treatments and noted on September 3, 1986, "no further contact.  
 
         discharged."  (Jt. Ex. A)
 
         
 
                           APPLICABLE LAW AND ANALYSIS
 
         
 
              Claimant has the burden of proving by a preponderance of the 
 
         evidence that he received an injury on July 10, 1986 which arose 
 
         out of and in the course of his employment.  McDowell v. Town of 
 
         Clarksville, 241 N.W.2d 904 (Iowa 1976); Musselman v. Central 
 
         Telephone Co., 261 Iowa 352, 154 N.W.2d 128 (1967).
 
         
 
              An employee is entitled to compensation for any and all 
 
         personal injuries which arise out of and in the course of the 
 
         employment.  Section 85.3(1).
 
         
 
              The claimant has the burden of proving by a preponderance of 
 
         the evidence that the injury of July 10, 1986 is causally related 
 
         to the disability on which he now bases his claim.  Bodish v. 
 
         Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867 (1965).  Lindahl v. 
 
         L.O. Boggs, 236 Iowa 296, 18 N.W.2d 607 (1945).  A possibility is 
 
         insufficient; a probability is necessary.  Burt v. John Deere 
 
         Waterloo Tractor Works, 247 Iowa 691, 73 N.W.2d 732 (1955).  The 
 
         question of causal connection is essentially within the domain of 
 
         expert testimony.  Bradshaw v. Iowa Methodist Hospital, 251 Iowa 
 
         375, 101 N.W.2d 167 (1960).
 
         
 
              However, expert medical evidence must be considered with all 
 
         other evidence introduced bearing on the causal connection.  
 
         Burt, 247 Iowa 691, 73 N.W.2d 732.  The opinion of experts need 
 
         not be couched in definite, positive or unequivocal language.  
 
         Sondag v. Ferris Hardware, 220 N.W.2d 903 (Iowa 1974).  However, 
 
         the expert opinion may be accepted or rejected, in whole or in 
 
         part, by the trier of fact.  Id. at 907.  Further, the weight to 
 
         be given to such an opinion is for the finder of fact, and that 
 
         may be affected by the completeness of the premise given the 
 
         expert and other surrounding circumstances.  Bodish, 257 Iowa 
 
         516, 133 N.W.2d 867.  See also Musselman v. Central Telephone 
 
         Co., 261 Iowa 352, 154 N.W.2d 128 (1967).
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              The right of a worker to receive compensation for injuries 
 
         sustained which arose out of and in the course of employment is 
 
         statutory.  The statute conferring this right can also fix the 
 
         amount of compensation to be paid for different specific 
 
         injuries, and the employee is not entitled to compensation except 
 
         as provided by the statute.  Soukup v. Shores Co., 222 Iowa 272, 
 
         268 N.W. 598 (1936).
 
         
 
              If a claimant has an impairment to the body as a whole, an 
 
         industrial disability has been sustained.  Industrial disability 
 
         was defined in Diederich v. Tri-City Railway Co., 219 Iowa 587, 
 
         593, 258 N.W. 899, 902 (1935) as follows:  "It is therefore plain 
 
         that the legislature intended the term 'disability' to mean 
 
         'industrial disability' or loss of earning capacity and not a 
 
         mere 'functional disability' to be computed in the terms of 
 
         percentages of the total physical and mental ability of a normal 
 
         man."
 
         
 
              A defendant employer's refusal to give any sort of work to a 
 
         claimant after he suffers his affliction may justify an award of 
 
         disability.  McSpadden v. Big Ben Coal Co., 288 N.W.2d 181 (Iowa 
 
         1980).
 
         
 
              Iowa Code section 85.34(1) provides that if an employee has 
 
         suffered a personal injury causing permanent partial disability, 
 
         the employer shall pay compensation for a healing period from the 
 
         day of the injury until (1) the employee returns to work; or (2) 
 
         it is medically indicated that significant improvement from the 
 
         injury is not anticipated; or (3) until the employee is medically 
 
         capable of returning to substantially similar employment.
 
         
 
              Iowa Code section 86.13 states in part:
 
         
 
                  If a delay in commencement or termination of benefits 
 
              occurs without reasonable or probably cause or excuse, the 
 
              industrial commissioner shall award benefits in addition to 
 
              those benefits payable under this chapter, or chapter 85, 
 
              85A, or 85B, up to fifty percent of the amount of benefits 
 
              that were unreasonably delayed or denied.
 
              
 
              This 27 year old claimant was injured while in the 
 
         employment of defendant employer.  The greater weight of evidence 
 
         shows that the claimant was released to return to work on August 
 
         22, 1986. Defendant employer did not take claimant back as 
 
         defendant employer appeared fearful of doing so because of the 
 
         insurance carrier's concern.  The employer indicated to claimant 
 
         that the insurance company would not let them take claimant back 
 
         to work even though he received a nonrestrictive work release.  
 
         Defendants contend claimant is accident prone.  There is no 
 
         evidence of this in the record.  Defendants must feel that 
 
         claimant has a work-related disability.  Claimant was out of work 
 
         and could not find work until December 1, 1986 at a rate less 
 
         than claimant was making with defendant employer.  The evidence 
 
         shows that defendant employer hired several people after claimant 
 
         was released to return to work to perform the same or similar 
 
         duties that claimant was performing.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
              
 
              Defendant employer's refusal to take claimant back causes 
 
         claimant to have an actual reduction of earnings.  As per the 
 
         McSpadden case, any actual reduction of earnings caused by 
 
         defendant employer's refusal to hire claimant can be the basis on 
 
         which to find industrial disability.  Claimant emphasized that 
 
         there were occasions in which defendant employer could have hired 
 
         claimant but instead hired someone else.  An employer's refusal 
 
         to give any sort of work to a claimant after he suffers his 
 
         affliction may justify an award of disability.
 
              
 
              Claimant is now employed, making as much if not more money 
 
         than he was making at the time of his injury of July 10, 1986.  
 
         In regard to claimant's present employment, the evidence 
 
         indicates that it is now full-time and year around with claimant 
 
         having received periodic promotions.  The evidence shows that 
 
         claimant's employment with defendant employer was seasonal and 
 
         was not a twelve month job, and there was an expected layoff 
 
         depending on the work.  Claimant now, in fact, has more stable 
 
         employment than he did on the day of the injury.  It appears his 
 
         present job does not require the physical abilities that were 
 
         needed when claimant worked for the defendant employer.
 
              
 
              In April, 1987, August 1987, and at the hearing on December 
 
         30, 1988, claimant was not claiming that his normal work 
 
         activities were or will be limited in any way as a result of his 
 
         injury of July 10, 1986.  Claimant has shown a loss of earning 
 
         capacity.  Claimant has a 10 percent permanent partial 
 
         disability.
 
              
 
              Claimant was paid healing period benefits beginning July 14, 
 
         1986 through September 16, 1986 even though he was released to 
 
         return to work with no restrictions on August 22, 1986.  
 
         Claimant's healing period ended on August 22, 1986 when he was 
 
         released to return to work.
 
              
 
              Iowa Code section 86.13 requires payment to not be 
 
         unreasonably withheld or delayed.  It is obvious from the record 
 
         that defendants knew claimant had some permanent impairment and a 
 
         reduction in earning capacity when defendants refused to hire 
 
         claimant.  Therefore, defendants were unreasonable in denying any 
 
         permanent disability benefits.  Defendants knew claimant was not 
 
         working and should know about the McSpadden case.  Claimant 
 
         therefore has some permanent disability.  Claimant is to be 
 
         awarded 50 percent of the amount of benefits that were 
 
         unreasonably delayed or denied.
 
              
 
              Dr. Neff's bill is not for authorized medical services nor 
 
         is it causally connected to claimant's injury of July 10, 1986. 
 
         Defendants shall pay the Iowa Musculoskeletal Center bill for 
 
         $144.00 and the mileage set out in exhibit F(c) except for the 
 
         mileage to and from Dr. Neff's office.
 
              
 
                                 FINDINGS OF FACT
 
                                        
 

 
         
 
 
 
 
 
 
 
 
 
 
 
              WHEREFORE, it is found:
 
              
 
              1.  Claimant was injured on July 10, 1986 while working for 
 
         defendant employer.
 
              
 
              2.  Claimant's injury on July 10, 1986 was the result of his 
 
         employment with defendant employer.
 
              
 
              3.  Claimant was released to return to work on August 22, 
 
         1986 and sought the return of his job with defendant employer.
 
              
 
              4.  Defendant employer refused to allow claimant to return 
 
         to work upon his release.
 
              
 
              5.  Defendant insurance company instructed defendant 
 
         employer not to allow claimant to return to work upon his 
 
         release.
 
              
 
              6.  Claimant has a 10 percent industrial disability 
 
         resulting from his injury of July 10, 1986.
 
              
 
              7.  Claimant has a loss of earnings and earning capacity.
 
              
 
              8.  Claimant reached maximum recovery on August 22, 1986.
 
              
 
              9.  Defendants showed no reasonable or probably cause or 
 
         excuse for delay or termination of claimant's benefits.
 
              
 
              10.  Defendants are to pay Iowa Musculoskeletal Center's 
 
         bill for $144.00 and all mileage set out in exhibit F(c) except 
 
         for the mileage to and from Dr. Neff's office.
 
              
 
                                CONCLUSIONS OF LAW
 
                                        
 
              THEREFORE, it is concluded:
 
              
 
              Claimant's injury arose out of and in the course of his 
 
         employment on July 10, 1986.
 
              
 
              Claimant has established a causal connection between his 
 
         injury of July 10, 1986 and his disability.
 
              
 
              Claimant has incurred a loss of earnings and earning 
 
         capacity as a result of his injury of July 10, 1986.
 
              
 
              Claimant has a 10 percent industrial disability.
 
              
 
              Claimant is entitled to 5 5/7 weeks of healing period 
 
         benefits for the period beginning July 14, 1986 up to August 22, 
 
         1986 at the rate of $136.24 per week.
 
              
 
              Claimant is entitled to 86.13 penalty benefits.
 
              
 
              Claimant is entitled to have Iowa Musculoskeletal Center's 
 
         bill for $144.00 be paid and all mileage set out in exhibit F(c) 
 
         except for Dr. Neff.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
              
 
                                      ORDER
 
                                        
 
              THEREFORE, it is ordered:
 
              
 
              Claimant is entitled to five and five/sevenths (5 5/7) weeks 
 
         of healing period benefits at the weekly rate of one hundred 
 
         thirty-six and 24/100 ($136.24).
 
              
 
              Claimant is entitled to fifty (50) weeks of permanent 
 
         partial disability benefits at the rate of one hundred thirty-six 
 
         and 34/100 dollars ($136.24) commencing August 22, 1986.
 
              
 
              Defendants shall be given credit for the nine and two/tenths 
 
         (9 2/10) weeks of compensation that defendants have already paid 
 
         to claimant.
 
              
 
              Claimant is entitled to a penalty of three thousand four 
 
         hundred six dollars ($3,406.00) which is fifty percent (50%) of 
 
         the amount of benefits that were unreasonably delayed or denied 
 
         claimant.
 
              
 
              Defendants shall pay the one hundred forty-four dollar 
 
         ($144.00) bill of the Iowa Musculoskeletal Center, P.C., and 
 
         claimant's transportation expenses set out in exhibit F(c) except 
 
         for the mileage to and from Dr. Neff's office.
 
              
 
              Defendants shall pay the accrued weekly benefits in a lump 
 
         sum.
 
              
 
              Defendants shall pay interest on benefits awarded herein as 
 
         set forth in Iowa Code section 85.30.
 
              
 
              Defendants shall pay the costs of this action pursuant to 
 
         Division of Industrial Services Rule 343-4.33.
 
              
 
              Defendants shall file an activity report upon payment of 
 
         this award as required by this agency pursuant to Division of 
 
         Industrial Services Rule 343-3.1.
 
              
 
              Signed and filed this 14th day of March, 1989.
 
              
 
              
 
              
 
              
 
              
 
              
 
                                            BERNARD J. O'MALLEY
 
                                            DEPUTY INDUSTRIAL COMMISSIONER
 
                                            
 
         Copies to:
 
         
 
         Mr. Robert R. Rush
 
         Attorney at Law
 
         526 2nd Ave.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         P.O. Box 2457
 
         Cedar Rapids, IA  50206-2457
 
         
 
         Mr. Craig A. Levien
 
         Attorney at Law
 
         600 Union Arcade Bldg.
 
         Davenport, IA  52801
 
              
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
                                                                                       
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
 
         
 
 
 
 
 
 
 
 
 
 
 
                                           1803; 4000
 
                                            Filed March 14, 1989
 
                                            Bernard J. O'Malley
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         MICHAEL GALLI,
 
         
 
              Claimant,
 
                                                 File No. 825795
 
         vs.
 
         
 
         ADVANCED DRAINAGE SYSTEMS,            A R B I T R A T I 0 N
 
         INC.,
 
                                                 D E C I S I 0 N
 
              Employer,
 
         
 
         and
 
         
 
         KEMPER INSURANCE GROUP,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         1803
 
         
 
              Claimant, who had no permanent impairment, given 10% 
 
         industrial disability due to defendants' failure to re-employ 
 
         claimant.
 
         
 
         4000
 
         
 
              Claimant, who had no impairment but was awarded 10% 
 
         industrial disability, was entitled to 86.13 benefits of 50% 
 
         because defendants should have known claimant had a permanent 
 
         disability.
 
         
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
 
         
 
 
 
 
 
 
 
 
 
 
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         TODD  A. TITUS,
 
         
 
              Claimant,
 
         
 
                                            File Nos.  825816
 
          VS.                                          828115
 
          
 
          SUPER VALU STORES, INC.,          A R B I T R A T I 0 N
 
          
 
               Employer,                       D E C I S I 0 N
 
          
 
          and
 
          
 
          LIBERTY MUTUAL INSURANCE CO.,
 
          
 
               Insurance Carrier,
 
               Defendants.
 
         
 
         
 
                              STATEMENT OF THE CASE
 
                                        
 
              This is a proceeding in arbitration brought by claimant Todd 
 
         A. Titus against defendant employer Super Valu Stores, Inc., and 
 
         defendant insurance carrier Liberty Mutual Insurance Company to 
 
         recover benefits under the Iowa Workers' Compensation Act as the 
 
         result of alleged injuries of June 7, 1986 (file 828115) and July 
 
         6, 1986 (file number 825816).  This matter came on for hearing 
 
         before the undersigned in Des Moines, Iowa, on October 31, 1988, 
 
         and was considered fully submitted at the close of hearing.  The 
 
         parties thereafter each filed briefs.
 
         
 
              The record in the proceeding consists of joint exhibits 1 
 
         through 18, defendants' exhibit 1, and claimant's exhibits A 
 
         through X, inclusive, with the exception of exhibit H, which was 
 
         not admitted.  In addition, exhibits Y (a corset) and Z (a brace) 
 
         were described on the record, and on that basis accepted as 
 
         evidence, but not physically included in the record.  In 
 
         addition, the record includes the testimony of the following 
 
         witnesses: Claimant, Lisa Titus, Dave Mitchell, John Garfield and 
 
         Kelly O'Neill.
 
         
 
                                      ISSUES
 
         
 
              Pursuant to the prehearing report submitted by the parties 
 
         and approved by the deputy at hearing, the following issues have 
 
         been stipulated: The existence of an employer-employee 
 
         relationship at the time of each alleged injury; that claimant 
 
         sustained injuries arising out of and in the course of his 
 
         employment on June 7 and July 6, 1986; that the alleged injuries 
 
         caused temporary disability; that claimant's injury is an 
 
         industrial disability to the body as a whole; that affirmative 
 
         defenses
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         
 
         
 
         TITUS V. SUPER VALU STORES, INC.
 
         Page 2
 
         
 
         
 
         are waived; that all requested medical benefits under Iowa Code 
 
         sections 85.27 and 85.39 have been or will be paid by defendants; 
 
         that defendants paid weekly compensation to claimant in the sum 
 
         of $19,381.27 as of the time of hearing, at various rates of 
 
         compensation; that the parties do not seek taxation of costs.
 
         
 
              The following issues have been identified as requiring 
 
         resolution: Whether the work injury caused permanent disability; 
 
         the commencement date for permanent partial disability, if 
 
         awarded; the appropriate rate of weekly compensation.
 
         
 
                              REVIEW OF THE EVIDENCE
 
         
 
              Claimant at time of hearing was a 25-year-old man with a 
 
         work history of unskilled labor.  He was hired by defendant Super 
 
         Valu Stores as a warehouse order filler on March 30, 1986.  
 
         Claimant testified that he remained in that employment until 
 
         August 28, 1986, having gone on light duty as of July 22, 1986.
 
         
 
              Claimant's work as an order filler in this grocery warehouse 
 
         was heavy work and involved lifting large numbers of grocery 
 
         cases all day.  Claimant reported that he moved some 300-500 
 
         cases each day, and that each case might weigh anywhere from 5 
 
         pounds to 100 pounds.  Claimant testified that he earned $8.85 
 
         per hour and worked an average of 40 hours per week until the 
 
         injury of June 7, 1986.
 
         
 
              Claimant testified that his first injury occurred while 
 
         filling an order, when he was required to squeeze through a tight 
 
         area in a bent-over position while handling a 50-pound case of 
 
         groceries.  He suffered a pain in his right side and back, which 
 
         he promptly reported to his foreman, Dave Reedy.  He was treated 
 
         by Don Green, M.D., and Mercy Clinic, and returned to work.  On 
 
         July 6, 1986, claimant again suffered a sharp pain in his back 
 
         when lifting a case of groceries.  That pain was in the same area 
 
         as the first injury, following which claimant returned to Mercy 
 
         Hospital.  Thereafter, he was referred to William R. Boulden, 
 
         M.D., his primary treating physician.  Dr. Boulden then took him 
 
         off all work.
 
         
 
              Claimant testified that he underwent back surgery on 
 
         September 14, 1986, but that the surgery was not effective in 
 
         alleviating his back.pain and pain radiating to the leg. He 
 
         underwent various walking and exercise programs, but his pain did 
 
         not diminish.  Claimant testified further that he began a work 
 
         hardening program in February, 1987, but that it worsened his 
 
         pain situation.  By this time, claimant indicated that he was 
 
         suffering constant pain to the right leg and back.  Claimant 
 
         indicated that he continued work training only because of a fear 
 
         that he would lose workers' compensation benefits if he did not.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         
 
         
 
         TITUS V. SUPER VALU STORES, INC.
 
         Page 3
 
         
 
         
 
              In June, 1987, claimant obtained a position as a printer 
 
         with a business known as Seward Graphics.  This position was 
 
         secured through a vocational rehabilitation agency.  Claimant 
 
         accepted the position due to his financial problems, even though 
 
         he was still suffering from pain.  However, the position was 
 
         within his then physician-imposed restrictions.  In July, 1987, 
 
         claimant moved his residence to a ground floor in the same 
 
         building so as to avoid the necessity of climbing stairs.
 
         
 
              Claimant further testified that he underwent a second 
 
         surgical procedure on October 7, 1987, which included the 
 
         positioning of a bone growth stimulator in his body.  Dr. Boulden 
 
         performed both surgical procedures.  Unfortunately, claimant 
 
         considered the second procedure to be unsuccessful.  He testified 
 
         that his pain problems at present are not improved from before 
 
         the second surgical procedure.
 
         
 
              Mr. Titus indicated in his testimony that before his 
 
         injuries, he used to "love" to work.  Such is not now the case.  
 
         He indicated that he did seek to return to work with defendant in 
 
         March, 1987, but was advised by management that there were no 
 
         positions available given his limitations.
 
         
 
              Claimant further indicated that there are numerous 
 
         activities that he previously enjoyed, but that are now beyond 
 
         his capabilities.  These include fishing and hunting, viewing 
 
         movies, bicycling, swimming, exercising and visiting friends.  He 
 
         further indicated that because of his pain problems, he is unable 
 
         to sleep more .,.than one hour at a time, stand or sit in excess 
 
         of ten consecutive minutes, walk for more than ten minutes or 
 
         approximately one-half block, or lift in excess of ten pounds.  
 
         He sends his time watching his children, and is able to dress 
 
         himself (but not the children), shower, and fix himself 
 
         sandwiches.  He does watch television, but is unable to wash 
 
         dishes after dining.  He takes no prescribed medication for pain 
 
         because Dr. Boulden refused to continue renewing his prescription 
 
         because of a fear that claimant was becoming unduly dependent 
 
         upon pain medications.  However, he does "medicate" himself for 
 
         pain with approximately a six-pack of beer each day.  Claimant 
 
         last took prescription medication for pain in May, 1987.
 
         
 
              Claimant feels depressed and agrees that he has discussed 
 
         and contemplated suicide.  He has no special work skills, but 
 
         would like to seek work in the fields of construction, drafting, 
 
         warehousing, landscaping or operating computers.  Nonetheless, he 
 
         currently feels incapable of accepting work in any of those 
 
         positions, because he is unable to "stay focused.' Further, 
 
         claimant indicated that he had no psychological problems 
 
         predating his injuries.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              Lisa Titus testified that she is claimant's wife, and that 
 
         there are two children of the marriage.  One child, Joshua, was 
 
         born after the injuries.  The parties earlier stipulated
 
         
 
         
 
         
 
         TITUS V. SUPER VALU STORES, INC.
 
         Page 4
 
         
 
         
 
         that claimant's rate should be calculated on the basis of three 
 
         exemptions.
 
         
 
              Ms. Titus testified that before his injury, claimant enjoyed 
 
         exercising, lifting weights, swimming, walking, and traveling.  
 
         Further, that he was a sociable individual and a good family man.  
 
         Now, she indicates that claimant is angry, bitter, depressed, 
 
         that he refuses to participate actively in life or help around 
 
         the home, socialize, and that he has expressed his wish to die, 
 
         or to "blow his leg off."  Claimant no longer swims, lifts 
 
         weights, goes out, drives or rides any long distance, sleeps for 
 
         over two to three hours, hunts, fishes, or plays with his 
 
         children.  He can walk less than five minutes, and then is 
 
         required to sit.  Nor is he able to watch movies because of the 
 
         long sitting.  Claimant still complains of back and right leg 
 
         pain.  Although he used beer before his injuries, he is now 
 
         intoxicated more frequently than was previously the case.  Ms. 
 
         Titus indicated that the injuries have been damaging to the 
 
         marriage relationship, and that there were no marital problems 
 
         predating those injuries.
 
         
 
              John Garfield testified that he is a clinical psychologist, 
 
         and that he holds a Ph.D. in that field.  He also testified as to 
 
         extensive experience as a clinical psychologist.
 
         
 
              Dr. Garfield did an evaluation of claimant in May, 1988.  
 
         This included tests such as the Minnesota Multiphasic Personality 
 
         Inventory and the West Haven Pain Screening Inventory.
 
         
 
              Dr. Garfield opined that as a result of claimant's injuries 
 
         and subsequent surgical procedures, he demonstrates pain 
 
         behaviors (such as limping, furrowed brow, short sitting 
 
         tolerance, grimacing), lowered frustration tolerance, heightened 
 
         irritability, extreme preoccupation with his predicament, and 
 
         emotional and labile behavior.  Further, that claimant is 
 
         depressed and brooding, that he suffers from social withdrawal, 
 
         anahedonia, and lowered libidinal drive.
 
         
 
              Dr. Garfield also noted that claimant medicates himself with 
 
         approximately 12 beers per day.
 
         
 
              According to Dr. Garfield, the MMPI test was consistent with 
 
         his clinical impression and showed at least moderately severe 
 
         depression, no psychosis, curtailed coping ability and distress.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              Dr. Garfield reported a diagnosis of major depressive and 
 
         adjustment disorder with depressed mood, indicating that the two 
 
         diagnoses were close.   He felt that psychological intervention 
 
         was so necessary as to be imperative.  Claimant should be 
 
         prescribed Elavil, pain medications, and undergo psychological 
 
         therapy.
 
         
 
              Dr. Garfield reported his opinion as to claimant's 
 
         psychological
 
         
 
         
 
         
 
         TITUS V. SUPER VALU STORES, INC.
 
         Page 5
 
         
 
         
 
         impairment.  Under AMA guidelines, claimant's impairment is 
 
         moderate to moderate/severe, and is indicative of a 25%-50% 
 
         psychological impairment.  Dr. Garfield would assign a 40% 
 
         impairment based on his personal impression.  He indicated that 
 
         the underlying factor as to claimant's psychological difficulties 
 
         is physical.    Further, he opined that claimant's psycho     
 
         ical impairment was caused by his work injuries and subsequent 
 
         surgeries.  Without medical alleviation of the physical problems, 
 
         claimant's impairment should, according to Dr. Garfield, be 
 
         considered permanent within a reasonable degree of psychological 
 
         certainty.
 
         
 
              On cross-examination, Dr. Garfield was questioned about the 
 
         diagnosis rendered by psychologist Sam L. Graham of "sub-chronic 
 
         pain syndrome." Dr. Garfield considered that an ill-defined term 
 
         with relatively little meaning and one which is not considered a 
 
         diagnosis, at least to Social Security Disability.    He agreed 
 
         that claimant was seen only for evaluation as opposed to 
 
         treatment, but indicated further that this is not a total 
 
         distinction.  They discussed treatment options, although 
 
         treatment was not begun.
 
         
 
              Dr. Garfield indicated that he did not refer claimant to a 
 
         medical practitioner for the prescription of Elavil because 
 
         claimant was unable to afford it.  He indicated that, although 
 
         claimant is not now an alcoholic, he is at risk.
 
         
 
              On cross-examination, Dr. Garfield agreed that alcohol 
 
         problems and depressive symptoms have a strong positive 
 
         correlation, which is also the case with labile tendencies.  
 
         Further, that chronic use of alcohol may result in depression.
 
         
 
              As concerns the Minnesota Multiphasic Personality Inventory, 
 
         Dr. Garfield agreed on cross-examination that when an individual 
 
         is under a great deal of stress, it is difficult to "tease out" 
 
         the individual's underlying personality.  Further, that the MMPI 
 
         does not measure psychogenic pain.
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
              Dr. Garfield described claimant's personality as action 
 
         oriented, of high energy, practical, and noted that claimant is 
 
         not given to psychological mindedness, self-analysis, or 
 
         ruminations as to cause and effect.  This is not a personality 
 
         profile in which psychiatric disorders are likely.
 
         
 
              Under questioning, Dr. Garfield reiterated that claimant 
 
         required a multi-disciplinary coordinated approach, including 
 
         physical therapy, psychological counseling, medical treatment and 
 
         substance abuse counseling.
 
         
 
              When questioned as to whether his opinion that medical 
 
         intervention is "imperative" indicates that claimant's condition 
 
         is not permanent, Dr. Garfield testified that such intervention 
 
         does not carry that implication, and should be directed to avoid 
 
         worsening of claimant's condition.
 
         
 
         
 
         
 
         TITUS V. SUPER VALU STORES, INC.
 
         Page 6
 
         
 
         
 
              David Mitchell testified that he is a counselor for the Iowa 
 
         Division of Vocational Rehabilitation.  He met claimant on 
 
         September 5, 1986, and last saw him in December, 1987.  However, 
 
         he and claimant had several telephone conversations, most 
 
         recently in July, 1988.
 
         
 
              Mr. Mitchell agreed that he had read Dr. Garfield's report 
 
         and that his observations were similar to those of Dr. Garfield.  
 
         He believed that claimant demonstrated good motivation and tries 
 
         hard to get back to work, but appears unable to do so by reason 
 
         of his psychological problems.  He found claimant to be 
 
         frustrated, anxious, complaining of the pain and injury, and 
 
         generally preoccupied with that injury.  Physically, claimant 
 
         fidgets a great deal and demonstrates stiffness of movement.  
 
         However, Mr. Mitchell did not test claimant.
 
         
 
              Mr. Mitchell indicated that claimant attended only the ninth 
 
         grade, but has since obtained a GED.  He helped arrange 
 
         claimant's employment with Seward Graphics, and noted that this 
 
         company reported favorably on claimant's performance.  Further, 
 
         that he is qualified to reapply for that position.
 
         
 
              Mr. Mitchell indicated that claimant requires rehabilitation 
 
         and psychological counseling, and also that his wife needs 
 
         counseling as to claimant's psychological state and physical 
 
         limitations.
 
         
 
              Based on Dr. Garfield's  report, Mr. Mitchell  believes that 
 
         claimant is unable to undergo work training in his present state 
 
         of mind.  He has a limited attention span and is "extremely" 
 
         depressed at present, or at least as to when he was last seen.  
 
         Claimant's problems were described as pain-related and related to 
 
         behaviors associated with pain.  These include problems with 
 
         interpersonal skills (such as relating to people and 
 
         communicating with people), sitting tolerance, concentration, 
 
         attention to detail and the ability to follow through with plans 
 
         and projects.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              Mr. Mitchell indicated that there are numerous jobs claimant 
 
         can perform given his physical restrictions.  He noted that Dr. 
 
         Boulden issued a return to work with restrictions on May 17, 
 
         1988, involving the use of proper body mechanics and no twisting, 
 
         bending, stooping, or lifting with his back.  Physical 
 
         rehabilitation through the University of Iowa Spine Program would 
 
         increase conditioning and claimant's ability to handle pain.  Mr. 
 
         Mitchell agreed that it is possible to probable that claimant 
 
         could become employable if he obtains proper rehabilitation and 
 
         training.
 
         
 
              On redirect-examination, Mr. Mitchell reiterated his view 
 
         that claimant is not now employable.  Further, that even 
 
         excluding claimant's psychological. difficulties, claimant would 
 
         require concessions from an employer to obtain and keep 
 
         employment.  Asked to assume that claimant is unable to sit or 
 
         stand in
 
         
 
         
 
         
 
         TITUS V. SUPER VALU STORES, INC.
 
         Page 7
 
         
 
         
 
         excess of ten minutes, walk over one-half block at a time, that 
 
         he suffers depression, psychological overlay, major pain, and 
 
         that Dr. Garfield's views were.generally correct, Mr. Mitchell 
 
         opined that claimant could not now undergo job training without 
 
         further psychological counseling or successfully undertake any of 
 
         the employment positions that are within his physical 
 
         restrictions.
 
         
 
              On recross-examination, Mr. Mitchell agreed that it was 
 
         claimant's responsibility to seek out treatment, including 
 
         physical. rehabilitation and psychological counseling.  Further, 
 
         that claimant now requires a combination of medical treatment and 
 
         psychological counseling, and only then would he be a proper 
 
         candidate for job retraining.
 
         
 
              Kelly O'Neill testified that she is personnel director of 
 
         defendant Super Valu Stores.  Defendant employs some 90 
 
         over-the-road drivers, and approximately 290 warehouse employees, 
 
         such as order fillers, forklift drivers, and the like.  Some 
 
         60-70 of those individuals are employed on a part-time basis.
 
         
 
              Ms. O'Neill testified that she is familiar with claimant's 
 
         file, and that claimant was employed as a part-time order filler.  
 
         He earned $8.85 per hour, while full-time order fillers earned 
 
         $12.795 per hour.  There is a difference in duties between 
 
         full-time and part-time order fillers, no fringe benefits accrue 
 
         to part-timers, while full-time employees are guaranteed 40 hours 
 
         per week, as opposed to part-timers who are guaranteed zero hours 
 
         per week.  Part-time employees work from zero up to 50 hours per 
 
         week, and average some 18-24 hours per week.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              Ms. O'Neill testified that part-time employees such as 
 
         claimant are paid on an hourly basis at weekly intervals, and not 
 
         on a piece rate basis.  During the weeks between April 6 and June 
 
         7, 1986, claimant worked from 31.75 hours up to a maximum of 
 
         48.25 hours.  In the nine weeks before the injury, claimant 
 
         earned a total of $3,259.04, of which $3,051.06 constituted 
 
         regular time earnings, and $207.98 was paid for overtime.  This 
 
         is an average of $362.12 per week.  Ms. O'Neill testified that 
 
         this is consistent with other grocery warehouse positions in the 
 
         locality.
 
         
 
              Ms. 0'Neill agreed that defendant employer has not made an 
 
         attempt to find claimant work or an alternate light job, such as 
 
         clerking, accounting, or sales.  Further, that claimant has not 
 
         asked for work, and that she did not know from Resource 
 
         Opportunities, Inc., that claimant wished to continue working for 
 
         defendant.
 
         
 
              Voluminous medical records were admitted into evidence. of 
 
         these, a very high percentage consisted of duplicate copies 
 
         introduced by the opposing parties, indicating noncompliance with 
 
         the hearing assignment order entered April 25, 1988. ("Every 
 
         reasonable effort should be made to avoid duplication.")
 
         
 
         
 
         
 
         TITUS V. SUPER VALU STORES, INC.
 
         Page 8
 
         
 
         
 
         The undersigned wishes to express his disappointment with that 
 
         noncompliance.
 
         
 
              The records of William R. Boulden, M.D., were submitted.  
 
         The earliest notes include a letter of July 22, 1986, in which 
 
         Dr. Boulden expressed an impression of low back pain, etiology 
 
         undetermined.  A letter from Mark B. Kirkland, D.O., dated July 
 
         30, 1986, and addressed to Don Green, M.D., of Mercy Merle Hay 
 
         Clinic, reflects radiology reports showing claimant to have a 
 
         unilateral spondylolysis at L5 on the left, with a small 
 
         herniated disc at L5-Sl with compression of the right Sl nerve 
 
         root.  Dr. Kirkland is a member of Central Iowa Orthopaedics, and 
 
         works with Dr. Boulden.
 
         
 
              As early as August 7, 1986, Dr. Boulden reported to Dr. 
 
         Green that with claimant's herniated disc and unilateral 
 
         spondylolysis defect, a structurally unsound back, claimant was 
 
         "a walking time bomb if returned back to heavy industrial work" 
 
         and a candidate for job retraining.
 
         
 
              An August 21, 1986 letter from Dr. Boulden to Dr. Green 
 
         indicated Dr. Boulden's wish to continue conservative treatment.  
 
         However, a September 11, 1986 letter to Dr. Green indicated that 
 
         Dr. Boulden and claimant had decided on disc surgery and a fusion 
 
         because of the underlying instability.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              Claimant did undergo surgery on September 19, 1986.  This 
 
         was a lumbar fusion, posterolateral with iliac graft and 
 
         bilateral discectomy, at L5-Sl.
 
         
 
              In a subsequent follow-up letter from Dr. Boulden to Dr. 
 
         Green of February 5, 1987, Dr. Boulden noted that claimant was 
 
         still having a "catching sensation" in the right lower back and 
 
         down the posterior thigh, that claimant had been discontinued 
 
         from a swimming program, and that financial problems were 
 
         definitely giving claimant psychological stresses at that time.  
 
         He noted that claimant's bone grafts appeared to be healing, but 
 
         there was still some question as to whether the fusion was 
 
         complete or not.
 
         
 
              On April 13, 1987, Dr. Boulden wrote again to Dr. Green.  He 
 
         felt that claimant had shown good improvement in strength after 
 
         completion of his work hardening program and, although he felt 
 
         that claimant would continue to improve, he opted to consider 
 
         claimant's healing period to be at an end, with a "disability" 
 
         rating of 20%.
 
         
 
              Subsequent letters of July 31, August 11, August 18 and 
 
         August 27, 1987 to Dr. Green reflect that claimant continued to 
 
         complain of chronic pain and that a discogram indicated claimant 
 
         was having problems at the disc above the previous discectomy and 
 
         fusion; further surgical intervention was called for, to be an 
 
         anterior and posterior fusion of the L4-5 level and exploration 
 
         of the L5-Sl level to review results of the
 
         
 
         
 
         
 
         TITUS V. SUPER VALU STORES, INC.
 
         Page 9
 
         
 
         
 
         previous fusion.  The August 27, 1987 letter specified that the 
 
         MRI did correlate with the discograms and that Dr. Boulden 
 
         believed all of claimant's symptoms.were real and documented.
 
         
 
              Claimant underwent additional surgery on October 7, 1987.  
 
         This was an anterior lumbar interbody fusion; transverse process 
 
         and facet fusion with internal fixation; internal 
 
         bone.stimulator. The surgery was at both the L4-5 and L5-Sl 
 
         levels.
 
         
 
              A letter from Dr. Boulden to Dr. Green on April 19, 1988 
 
         indicated that claimant, on evaluation of that date, was tender 
 
         in the paraspinous muscles and had expected limitation of motion.  
 
         He believed at that time that the fusions appeared to be solid.  
 
         Dr. Boulden recommended that claimant begin a manipulative 
 
         release technique physical therapy.
 
         
 
              Dr. Boulden's consultation notes from July 22, 1986 through 
 
         November 4, 1987 were also admitted into evidence.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              The notes contain a letter of September 8, 1986 to defendant 
 
         Liberty Mutual, which is independently in evidence.  Dr. Boulden 
 
         expressed the view then that claimant had a five percent 
 
         "disability" rating based on the herniated disc, but not on the 
 
         unilateral spondylolysis.  That is because the spondylolysis was 
 
         preexisting as to the work injury, "and it is my feeling that the 
 
         herniated disc was related to the incident." However, he felt the 
 
         herniated disc was asymptomatic at that point.
 
         
 
              Dr. Boulden described claimant's physical limitations in a 
 
         December 24, 1986 letter to defendant Liberty Mutual:
 
         
 
              Claimant should be put in an environment where there is no 
 
              bending, stooping, or twisting with his back, and no 
 
              prolonged sitting.
 
         
 
         In a January 6, 1987 letter, Dr. Boulden noted that claimant's 
 
         healing period time would probably be six months from the time of 
 
         surgery, that his earlier disability rating was no longer valid, 
 
         and that a final disability rating would be made when claimant's 
 
         healing time had been completed.  As earlier noted, Dr. Boulden 
 
         subsequently rated claimant as having a 20% "disability" on April 
 
         13, 1987.
 
         
 
              Dr. Boulden wrote again to Liberty Mutual on March  3, 1988 
 
         and April 22, 1988.  He noted,that claimant was continuing to 
 
         suffer from severe low back and right leg pain, although he was 
 
         unable to diagnose the cause of the pain.  He noted that the 
 
         restrictions should be about the same and would be permanent in 
 
         nature.  He believed that claimant's symptoms were in large part 
 
         due to psychological overlay and felt that claimant was nearing 
 
         the end of his healing period.
 
         
 
              Dr. Boulden subsequently issued a return to work on May 17, 
 
         1988.  The  release restricted claimant to using proper
 
         
 
         
 
         
 
         TITUS V. SUPER VALU STORES, INC.
 
         Page 10
 
         
 
         
 
         body mechanics with no bending, twisting, stooping or lifting 
 
         with his back.
 
         
 
              Claimant also saw Harold E. Eklund, M.D., shortly after his 
 
         first injury.  Dr. Eklund released claimant to return to work on 
 
         a half-day basis on June 15, 1986, provided a return to work 
 
         release without restriction on July 10, 1986, and issued a return 
 
         to work for half days of light duty to not include bending or 
 
         lifting on July 13, 1986.
 
         
 
              Radiologist M. J. Quinn, M.D., performed a CT scan of the 
 
         lumbar spine on July 23, 1986.  He found a very small herniated 
 
         disc on the right at L5-Sl compressing the right Sl nerve root.  
 
         He also found a bulging disc at L4-5 with a central prominence of 
 
         disc material.  He found unilateral spondylolysis at L5 on the 
 
         left with contralateral reactive sclerosis of the posterior 
 
         elements in the region of the pars interarticularis and pedicle.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              The evidence also contains physical therapy records from 
 
         Iowa Lutheran Hospital, beginning November 20, 1987.  At the 
 
         first assessment, claimant was unable to obtain an upright 
 
         standing position, had difficulty in any mobility and complained 
 
         of severe pain.  A note of November 23, 1987, entered by licensed 
 
         physical therapist Karen Curley, indicated that claimant was 
 
         extremely depressed and discouraged about his present condition.  
 
         The final notes of December 1, 1987, indicated that claimant did 
 
         not show any decrease in pain or discomfort or any objective 
 
         signs of recovery during physical. therapy.
 
         
 
              A consultation report was prepared by Robert Thompson, M.D., 
 
         on October 6, 1987, immediately before the second surgery.  Dr. 
 
         Thompson considered claimant a satisfactory candidate for 
 
         anterior interbody fusion.  Claimant saw Jerome G. Bashara, M.D., 
 
         an orthopaedic surgeon, for evaluation on August 12, 1988.  Dr. 
 
         Bashara found claimant to have a rather severe lumbar paraspinous 
 
         muscle spasm with tenderness over the L3-4, L4-5 and L5-Sl 
 
         interspaces posteriorly.  Motion of claimant's lumbar spine was 
 
         restricted.  Forward flexion was 20 degrees and extension was 5 
 
         degrees.  Lateral bending 5 degrees in each direction.  Straight 
 
         leg raising was positive on the right at 40 degrees and left at 
 
         70 degrees.  Knee jerks were absent bilaterally.  Dr. Bashara 
 
         noted his review of various radiological. records and diagnosed 
 
         herniated lumbar discs L4-5 and L5-Sl; postoperative status and 
 
         anterior and posterior fusion L4 through Sl.
 
         
 
              Dr. Bashara opined that claimant's condition was related to 
 
         a primary injury on June 7, 1986, while working at Super Valu 
 
         Stores.  Dr. Bashara further opined that claimant had a 37% 
 
         permanent partial physical impairment of the body as a whole 
 
         related to his two surgical procedures with moderate persistent 
 
         pain and modification of his activities, and in view of the 
 
         severity of claimant's symptomatology, recommended that he be 
 
         seen and evaluated at the Minnesota Institute for Failed Low Back 
 
         Surgery.
 
         
 
         
 
         
 
         TITUS V. SUPER VALU-STORES, INC.
 
         Page 11
 
         
 
         
 
              Claimant saw John C. Tapp, D.O., at Mercy Hospital Medical 
 
         Clinic.  Although page 110 of joint exhibit 5 is somewhat 
 
         difficult to read, it appears that on June 8, 1986, claimant 
 
         presented complaining of injury to the lower lumbar area 
 
         attributed to the June 7, 1986 incident.  Claimant at that time 
 
         denied pain radiating into the legs.  Dr. Tapp had an impression 
 
         of low back strain.  Claimant was also seen by Dr. Eklund at 
 
         about the same time, who eventually diagnosed low back strain 
 
         unresolved and recommended physical therapy.  In preparing an 
 
         insurance form for Liberty Mutual on June 25, 1986, Dr. Tapp 
 
         expressed the opinion that claimant's lower lumbar injuries were 
 
         related to the accident of June 7, 1986.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              Claimant was referred to James L. Blessman, M.D., Medical 
 
         Director of Mercy Hospital Medical Center Pain Center.  In a 
 
         letter to Dr. Boulden of January 28, 1988, Dr. Blessman stated:
 
         
 
              The patient's prognosis for improvement is certainly 
 
              limited, particularly with his attitude towards exercise 
 
              therapy after he went through the work hardening program.  
 
              He will be a difficult candidate to work with in a pain 
 
              center.  However, he certainly does have chronic pain and 
 
              has gone through all the usual things that would normally 
 
              correct his pain problem.  Therefore, he does meet all of 
 
              our criteria for admission.  His prognosis for improvement, 
 
              I would estimate at somewhere around 25-30%.  As long as 
 
              everyone is aware of this, including the patient (and I have 
 
              had a very frank discussion with him regarding his 
 
              prognosis.) we would recommend proceeding with comprehensive 
 
              pain management therapy.
 
         
 
              Claimant also sought assistance from Resource Opportunities, 
 
         Inc., a rehabilitation business.  Rehabilitation consultant Jack 
 
         Reynolds prepared the initial report after an interview with 
 
         claimant on December 5, 1986.  Mr. Reynolds felt that it was 
 
         difficult to attain rapport with claimant because of the 
 
         intervention and participation of claimant's present attorney 
 
         during the initial interview.  However, Mr. Reynolds did 
 
         apparently accumulate a fair amount of information in that 
 
         interview.  Included was claimant's vocational history.
 
         
 
              Mr. Reynolds reported claimant's vocational history as 
 
         follows: From March, 1986 to the date of interview, as an order 
 
         filler with Super Valu Stores; from January, 1985 through March, 
 
         1986, as mailroom clerk, building maintenance laborer, showroom 
 
         supply clerk and offset press operator apprentice with a business 
 
         known as Ardans; for four to five months before that, as a 
 
         construction laborer for Porter Grain System; for approximately 
 
         three months before that, as a concrete paving laborer for Sierra 
 
         Construction in California; for three to four months before that, 
 
         as a landscape construction laborer in California; and for 
 
         approximately two years before that
 
         
 
         
 
         
 
         TITUS V. SUPER VALU STORES, INC.
 
         Page 12
 
         
 
         
 
         as a groundskeeper.  Claimant continued his contacts with this 
 
         business until after his second surgery.  A progress report was 
 
         prepared on April 11, 1988 by rehabilitation consultant Jeff 
 
         Johnson.  After reviewing the case and claimant's then current 
 
         physical status, Mr. Johnson concluded that introduction of 
 
         vocational rehabilitation at that time might be premature and 
 
         that claimant should first attain a level of medical stability.
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
              A functional capacity evaluation was performed by James 
 
         Weinstein, Associate Professor and Director, Spine Diagnostic and 
 
         Treatment Center, on June 10, 1988.  Dr. Weinstein reported that 
 
         claimant continued to complain of a great deal of pain and 
 
         discomfort and a severe limp, along with frustration with various 
 
         treatment efforts.  He found claimant's lifting strengths to be 
 
         extremely low and that body mechanics, posture and leg strengths 
 
         were in a very poor category.  He reported that the medical staff 
 
         of the center had reviewed CT scans and had found nothing that 
 
         could be remedied by surgical procedures.  Dr. Weinstein reported 
 
         that claimant was not then ready for a rehabilitation program, 
 
         but that his back was solid, stable and essentially healed and 
 
         that a great deal of physical exercise and effort would be 
 
         necessary to get claimant back to normal activities.
 
         
 
              A rehabilitation evaluation was reported on May 31, 1988 by 
 
         licensed physical therapist Mary Lou Fairchild of the University 
 
         of Iowa Hospitals & Clinics, Department of Physical Therapy.  Ms. 
 
         Fairchild reported that claimant did not appear to be motivated 
 
         ,to do well and did not recommend claimant for the rehabilitation 
 
         program, as in his current condition he would be unable to keep 
 
         up.  Claimant was seen by Eugene Gauron, Ph.D., in clinical 
 
         psychology.  In a report of May 31, 1988, Dr. Gauron indicated 
 
         that claimant's emotional. state and general attitude were rather 
 
         poor, that his present thought content was a mixture of great 
 
         concern about the future, failed expectations and misinformation, 
 
         and that in general, Dr. Gauron saw no possibility of offering 
 
         claimant any meaningful service.
 
         
 
              Claimant was also seen by Sam L. Graham, Ph.D., a 
 
         psychologist, on December 2, 1987.  Dr. Graham's diagnostic 
 
         impressions were subchronic pain syndrome; rule out reactive 
 
         depression, and psychological factors affecting a physical 
 
         condition.  He believed that Mr. Titus had reasonable potential 
 
         to benefit from a program of psychological pain management 
 
         focusing on relaxation training, distraction technique, and 
 
         cognitive restructuring.  He also recommended a psychiatric 
 
         assessment as claimant has "significant potential of benefiting 
 
         from anti-depressant medication." Dr. Graham did believe that 
 
         claimant was motivated and cooperative at that time.
 
         
 
                           APPLICABLE LAW AND ANALYSIS
 
         
 
              An employee is entitled to compensation for any and all 
 
         personal injuries which arise out of and in the course of the 
 
         employment.  Section 85.3(1).
 
         
 
         
 
         
 
         TITUS V. SUPER VALU STORES, INC.
 
         Page 13
 
         
 
         
 
              The claimant has the burden of proving by a preponderance of 
 
         the evidence that the injuries of June 7 and July 6, 1986 are 
 
         causally related to the disability on which he now bases his 
 
         claim.  Bodish v. Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867 
 
         (1965).  Lindahl v. L.O. Boggs, 236 Iowa 296, 18 N.W.2d 607 
 
         (1945).  A possibility is insufficient; a probability is 
 
         necessary.  Burt v. John Deere Waterloo Tractor Works, 247 Iowa 
 
         691, 73 N.W.2d 732 (1955).  The question of causal connection is 
 
         essentially within the domain of expert testimony.  Bradshaw 
 
         v.Iowa Methodist Hospital, 251 Iowa 375, 101 N.W.2d 167 (1960).
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              However, expert medical evidence must be considered with all 
 
         other evidence introduced bearing on the causal connection.  
 
         Burt, 247 Iowa 691, 73 N.W.2d 732.  The opinion of experts need 
 
         not be couched in definite, positive or unequivocal language.  
 
         Sondag v. Ferris Hardware, 220 N.W.2d 903 (Iowa 1974).  However, 
 
         the expert opinion may be accepted or rejected, in whole or in 
 
         part, by the trier of fact.  Id. at 907.  Further, the weight to 
 
         be given to such an opinion is for the finder of fact, and that 
 
         may be affected by the completeness of the premise given the 
 
         expert and other surrounding circumstances.  Bodish, 257 Iowa 
 
         516, 133 N.W.2d 867.  See also Musselman v. Central Telephone Co.
 
         , 261 Iowa 352, 154 N.W.2d 128 (1967).
 
         
 
              While a claimant is not entitled to compensation for the 
 
         results of a preexisting injury or disease, the mere existence at 
 
         the time of a subsequent injury is not a defense.  Rose v. John 
 
         Deere Ottumwa Works, 247 Iowa 900, 908., 76 N.W.2nd 756 (1956).  
 
         If the claimant had a preexisting condition or disability that is 
 
         aggravated, accelerated, worsened or lighted up so that it 
 
         results in-disability, claimant is entitled to recover.  Nicks v 
 
         Davenport Produce Co., 254 Iowa 130, 115 N.W.2d 812 (1962).
 
         
 
              The supreme court of Iowa in Almquist v. Shenandoah 
 
         Nurseries, 218 Iowa 724, 254 N.W. 35 (1934) at 731-32, discussed 
 
         the definition of personal injury in workers' compensation cases 
 
         as follows:
 
         
 
              While a personal injury does not include an occupational 
 
              disease under the workmen's Compensation Act, yet an injury 
 
              to the health may be a-personal injury [Citations omitted.] 
 
              Likewise a personal injury includes a disease resulting from 
 
              an injury .... The result of changes in :the human body 
 
              incident to the general processes of nature do not amount to 
 
              a personal injury.  This must follow, even though such 
 
              natural change may come about because the life has been 
 
              devoted to labor and hard work.  Such result of those 
 
              natural changes does not constitute a personal injury even 
 
              though the same brings about impairment of health or the 
 
              total or partial incapacity of the functions of the human 
 
              body.
 
         
 
         
 
         
 
         TITUS V. SUPER VALU STORES, INC.
 
         Page 14
 
         
 
         
 
                   ....
 
         
 
              A personal injury, contemplated by the Workmen's 
 
              Compensation Law, obviously means an injury to the body, the 
 
              impairment of health, or a disease, not excluded by the act, 
 
              which comes about, not through the natural building up and 
 
              tearing down of the human body  but because of a traumatic 
 
              or other hurt or damage to the health or body of an 
 
              employee. [Citations omitted.] The injury to the human body 
 
              here contemplated must be something, whether an accident or 
 
              not, that acts extraneously to the natural processes of 
 
              nature and thereby impairs the health, overcomes, injures, 
 
              interrupts, or destroys some function of the body, or 
 
              otherwise damages or injures a part or all of the body.
 

 
              
 
 
 
 
 
 
 
 
 
 
 
         
 
              It is stipulated that claimant's injuries of June 7 and July 
 
         6, 1986 arose out of and in the course of his employment.  
 
         Causation remains an issue.  The medical evidence in this case is 
 
         essentially unanimous to the effect that claimant's work-related 
 
         injuries have caused permanent disability.  Dr. Boulden found 
 
         early that claimant had a disability based in part upon a 
 
         herniated disc, but also from spondylolysis.  He felt that the 
 
         spondylolysis was preexisting, but did feel that the herniated 
 
         disc was work-related.  Of course, claimant has since undergone 
 
         two surgical procedures relating to discs at two separate levels 
 
         of his back.  Dr. Boulden increased claimant's impairment rating 
 
         in April, 1987 after the first surgical procedure.
 
         
 
              Dr. Bashara also expressed an opinion as to causal 
 
         connection.  He expressed the view that claimant's condition was 
 
         causally related to the June 7, 1986 injury.
 
         
 
              There is no countervailing evidence as to causation. It is 
 
         therefore held that claimant has met his burden  of  proof in 
 
         establishing that his permanent disability is causally related to 
 
         his work injuries in 1986.
 
         
 
              Functional impairment is an element to be considered in 
 
         determining industrial. disability which is the reduction of 
 
         earning capacity, but consideration must also be given to the 
 
         injured employee's age, education, qualifications, experience and 
 
         inability to engage in employment for which he is fitted. Olson 
 
         v. Goodyear Service Stores, 255 Iowa 1112, 125 N.W.2d 251 (1963).  
 
         Barton v. Nevada Poultry, 253 Iowa 285, 110 N.W.2d 660 (1961).
 
         
 
              A finding of impairment to the body as a whole found by a 
 
         medical evaluator does not equate to industrial disability.  This 
 
         is so as impairment and disability are not synonymous.  Degree of 
 
         industrial disability can in fact be much different than the 
 
         degree of impairment because in the first instance reference is 
 
         to loss of earning capacity and in the latter
 
         
 
         
 
         
 
         TITUS V. SUPER VALU STORES, INC.
 
         Page 15
 
         
 
         
 
         to anatomical or functional abnormality or loss.  Although loss 
 
         of function is to be considered and disability can rarely be 
 
         found without it, it is not so that a degree of industrial 
 
         disability is proportionally related to a degree of impairment of 
 
         bodily function.
 
         
 
              Factors to be considered in determining industrial 
 
         disability include the employee's medical condition prior to the 
 
         injury, immediately after the injury, and presently; the situs of 
 
         the injury, its severity and the length of healing period; the 
 
         work experience of the employee prior to the injury, after the 
 
         injury and potential for rehabilitation; the employee's 
 
         qualifications intellectually, emotionally and physically; 
 
         earnings prior and subsequent to the injury; age; education; 
 
         motivation; functional impairment as a result of the injury; and 
 
         inability because of the injury to engage in employment for which 
 
         the employee is fitted.  Loss of earnings caused by a job 
 
         transfer for reasons related to the injury is also relevant.  
 
         These are matters which the finder of fact considers collectively 
 
         in arriving at the determination of the degree of industrial 
 
         disability.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              There are no weighting guidelines that indicate how each of 
 
         the factors are to be considered.  There are no guidelines which 
 
         give, for example, age a weighted value of ten percent of the 
 
         total value, education a value of fifteen percent of total, 
 
         motivation - five percent; work experience - thirty percent, etc.  
 
         Neither does a rating of functional impairment directly correlate 
 
         to a degree of industrial disability to the body as a whole.  In 
 
         other words, there are no formulae which can be applied and then 
 
         added up to determine the degree of industrial disability.  It 
 
         therefore becomes necessary for the deputy or commissioner to 
 
         draw upon prior experience, general and specialized knowledge to 
 
         make the finding with regard to degree of industrial disability.  
 
         See Peterson v. Truck Haven Cafe, Inc., (Appeal Decision, 
 
         February 28, 1985); Christensen v.Hagen, Inc., (Appeal Decision, 
 
         March 26, 1985).
 
         
 
              Claimant clearly has serious physical. restrictions by 
 
         reason of his two surgical procedures.  Dr. Boulden's return to 
 
         work of May 17, 1988 restricted claimant to using proper body 
 
         mechanics (this is not truly a restriction, since all persons 
 
         should use proper body mechanics) with no bending, twisting, 
 
         stooping or lifting with the back.  While claimant does have a 
 
         general equivalency diploma, his work history is essentially that 
 
         of unskilled and heavy labor.  He has worked as a groundskeeper, 
 
         concrete worker, construction laborer, mailroom clerk, building 
 
         maintenance laborer, showroom supply clerk, offset press operator 
 
         and order filler.  It is difficult to see how claimant could 
 
         perform any of these duties given his serious restrictions.
 
         
 
              While the evidence is undisputed that there are some jobs 
 
         claimant could handle with his physical restrictions (although
 
         
 
         
 
         
 
         TITUS V. SUPER VALU STORES, INC.
 
         Page 16
 
         
 
         
 
         such jobs would also require a cooperative employer willing to 
 
         make concessions), claimant's physical condition is only a part 
 
         of his current disability.  The evidence is clear and undisputed 
 
         that claimant suffers from a psychological overlay such that he 
 
         is currently unable even to undergo the necessary rehabilitation 
 
         and retraining that would be required to reenter the labor force.  
 
         Dr. Garfield was established as an expert witness in the field of 
 
         clinical psychology and expressed an uncontradicted opinion that 
 
         claimant's psychological impairment has been caused by his work 
 
         injuries and subsequent surgeries.  Dr. Garfield believed that 
 
         without medical alleviation of the physical problems, claimant's 
 
         psychological impairment should be considered permanent.    
 
         Psychological impairments are compensable in much the same way 
 
         that physical impairments might be.  Deaver v. Armstrong Rubber 
 
         Co., 170 N.W.2d 455 (Iowa 1969).  Claimant's physical impairments 
 
         cannot be viewed in a vacuum; his psychological impairments are 
 
         also real and have a direct and immediate effect on the degree of 
 
         claimant's industrial disability.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              While there are some factors involved in claimant's 
 
         psychological impairment that may not be directly attributable to 
 
         the work injury (alcohol abuse) the undersigned accepts Dr. 
 
         Garfield's opinion as to causation.
 
         
 
              David Mitchell of the Iowa Division of Vocational 
 
         Rehabilitation was familiar with Dr. Garfield's report and 
 
         expressed the opinion that claimant is not now employable due to 
 
         his physical impairments (given his work history and experience) 
 
         and also that claimant could not at present undergo job training 
 
         without further psychological counseling and.could not 
 
         successfully undertake any of the employment positions that are 
 
         now within his physical restrictions.  Mr. Mitchell believes that 
 
         claimant requires a combination of medical and psychological 
 
         treatment in order to be a proper candidate for job retraining.
 
         
 
              Claimant has established that now and for the immediately 
 
         foreseeable future he is unable to return to work to earn a 
 
         living for himself and his family.  Therefore, his disability is 
 
         a total disability.  Diederich v. Tri-City Railway Co., 219 Iowa 
 
         587, 258 N.W. 899 (1935).  See Iowa Code section 85.34(3). The 
 
         concept of "permanency" does not necessarily embrace the idea of 
 
         absolute perpetuity; it means for an indefinite or indeterminate 
 
         period.  Wallace v. Brotherhood of Locomotive Firemen and 
 
         Enginemen, 230 Iowa 1127 (1941).
 
         
 
              By reason of his physical and psychological impairments, 
 
         each of which arose out of and in the course of employment and 
 
         are causally related thereto, claimant has established that he 
 
         now suffers from a total and permanent disability on an 
 
         industrial basis.
 
         
 
              Since claimant is awarded permanent total disability, 
 
         healing period is not an issue.  The commencement date for
 
         
 
         
 
         
 
         TITUS V. SUPER VALU STORES, INC.
 
         Page 17
 
         
 
         
 
         benefits is July 6, 1986.  Claimant was not disabled after June 
 
         7, 1986, and returned to work, only to be re-injured.
 
         
 
              Yet to be resolved is claimant's weekly.rate of 
 
         compensation.  Claimant takes the position that his basis of 
 
         compensation should be calculated under Iowa Code sections 
 
         85.36(6) and (7), which relate to "an employee who is paid on a 
 
         daily, or hourly basis" and one who "has been in the employ of 
 
         the employer less than thirteen calendar weeks immediately 
 
         preceding the injury." Defendants take the position that benefits 
 
         should be calculated under section 85.36(10), which relates to 
 
         part-time employees, or those who earn "less than the usual 
 
         weekly earnings of the regular full-time adult laborer in the 
 
         line of industry in which the employee is injured in that 
 
         locality."
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              Viewed superficially, it would appear that either 
 
         subparagraphs 6 and 7 or subparagraph 10 might be literally 
 
         applicable.  How then should the statute be construed to 
 
         determine claimant's correct rate? An examination of the 
 
         statutory scheme is in order.  If an individual is paid weekly, 
 
         biweekly, semimonthly, monthly or annually, his weekly earnings 
 
         are determined on the basis of subparagraphs 1 through 5. If the 
 
         employee is paid daily, hourly or by output (presumably by a 
 
         piece rate or commission), weekly rate is calculated under 
 
         subparagraph 6. If the hourly earnings cannot be ascertained or 
 
         have not been fixed, subparagraph 8 is used.  It is hard to think 
 
         on what other basis an employee might be compensated other than 
 
         the situations covered in those subparagraphs.  Subparagraph 7 
 
         deals with a short-term employee, such as is presently the case, 
 
         while subparagraph 9 deals with seasonal employees.  What then is 
 
         the function of subparagraph 10? If all methods by which an 
 
         individual might normally be compensated have already been 
 
         covered by statutory provisions, including hourly employees such 
 
         as claimant, subparagraph 10 must necessarily set forth a 
 
         separate rule to be applied to part-time employees.  In many 
 
         cases this will be beneficial to the employee, such as where an 
 
         individual has worked on a full-time basis during much of the 
 
         preceding year, but is working part-time at the time of injury.  
 
         In other cases, such as the present case, the separate rule for 
 
         part-time employees will work to the detriment of the employee.
 
         
 
              One approach would be to calculate benefits separately under 
 
         the applicable section based upon method of payment (hourly, 
 
         weekly, etc.) and under subparagraph 10, awarding the rate that 
 
         is highest.  Certainly, a good argument can be made that this 
 
         approach is consistent with the liberal construction of the 
 
         statute in favor of the claimant that the Iowa courts have found 
 
         appropriate, at least within reason.  Caterpillar Tractor Co. v. 
 
         Shook, 313 N.W.2d 503 (Iowa 1981); Irish v. McCreary Saw Mill, 
 
         175 N.W.2d 364 (Iowa 1970); Barton v. Nevada Poultry Co., 253 
 
         Iowa 285, 110 N.W.2d 660 (1961).  Yet, it appears to the 
 
         undersigned that this construction is strained beyond
 
         
 
         
 
         
 
         TITUS V. SUPER VALU STORES, INC.
 
         Page 18
 
         
 
         
 
         reason and one which the legislature might well have specified 
 
         had it been intended.  Rather, it simply appears that a separate 
 
         rule has been established for individuals who are working on a 
 
         part-time basis at the time of injury and no exception appears in 
 
         the statute.  Therefore, claimant's weekly earnings shall be 
 
         one-fiftieth of the total earnings which he earned from all 
 
         employment during the twelve calendar months immediately 
 
         preceding the injury.
 
         
 
              The only evidence as to claimant's earnings during the year 
 
         prior to his injury appear in defendants' exhibit 1.  In 
 
         calculating claimant's rate, it is to be rioted that claimant did 
 
         work certain overtime hours during that year prior to injury.  
 
         "Overtime" in excess of the straight time rate for overtime hours 
 
         worked is not to be considered in determining gross weekly wages.  
 
         Iowa Code section 85.61(12); Division of Industrial Services Rule 
 
         343-8.2. Excluding any overtime premium (that is, calculating 
 
         "overtime" hours at the non-overtime rate), exhibit 1 discloses 
 
         that claimant earned $3,858.62 with defendant, $204.00 with Lomar 
 
         Foods, Inc., and $8,083.16 with Ardan, Inc.  This totals 
 
         $12,145.78. One-fiftieth of this sum is $242.92. Since it is 
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         found that claimant's disability commenced with his second 
 
         injury, that of July 6, 1986, his rate must be calculated under 
 
         the "Guide to Iowa Workers' Compensation Claim Handling" 
 
         published by the Division of Industrial Services and effective 
 
         July 1, 1986.  The tables set forth that a married individual 
 
         with three exemptions and an average weekly wage of $243.00 is 
 
         entitled to a rate of compensation equalling $162.38.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
                                 FINDINGS OF FACT
 
         
 
              THEREFORE, based on the evidence presented, the following 
 
         ultimate facts are found:
 
         
 
              1. As stipulated, claimant was an employee of defendant 
 
         Super Valu Stores on June 7 and July 6, 1986.
 
         
 
              2. Claimant suffered traumatic work injuries on each such 
 
         date, both times to his lower back.
 
         
 
              3. Claimant's injuries, and more.particularly the injury of 
 
         July 6, 1986, resulted in two extensive surgical procedures from 
 
         which claimant has failed to completely recover.
 
         
 
              4. Claimant's injuries are to the L4-5 and L5-Sl lumbar 
 
         discs and vertebrae.
 
         
 
              5. It has been stipulated that claimant's injuries arose out 
 
         of and in the course of his employment.
 
         
 
              6. Claimant's work injuries have caused physical impairment, 
 
         including permanent restrictions against bending, twisting, 
 
         stooping or lifting with the back.
 
         
 
         
 
         
 
         TITUS V. SUPER VALU STORES, INC.
 
         Page 19
 
         
 
         
 
              7. Claimant's work injuries caused a-psychological 
 
         impairment which currently and for the foreseeable future 
 
         disables claimant from rehabilitation and job retraining.
 
         
 
              8. Given claimant's-experience, education, limitations and 
 
         psychological impairment, he is unable at present to return to 
 
         any work for which he is suited, and unable to undertake 
 
         rehabilitation or job retraining.
 
         
 
              9. Claimant's work injury has caused him permanent 
 
         disability and a diminution of his earning capacity.
 
         
 
              10. Claimant's injury has been stipulated to be an 
 
         industrial disability to the body as a whole.
 
         
 
              11. Claimant was a part-time worker during the nine weeks 
 
         before his first injury and earned less than the usual weekly 
 
         earnings of the regular full-time adult laborer in the line of 
 
         industry in which he was injured; not counting overtime in excess 
 
         of claimant's regular hourly rate of pay, claimant earned a total 
 
         of $12,145.78 during the year before July 6, 1986, or an average 
 
         gross weekly wage of $242.92.
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
                                CONCLUSIONS OF LAW
 
         
 
              WHEREFORE, based on the principles of law previously stated, 
 
         the following conclusions of law are made:
 
         
 
              1. Claimant suffered injuries arising out of and in the 
 
         course of his employment on June 7 and July 6, 1986; he was 
 
         disabled from work following the second injury.
 
         
 
              2. Claimant's injury was an injury to the body as a whole.
 
         
 
              3. Claimant's injury has directly caused him to be 
 
         permanently and totally disabled by reason of his physical 
 
         impairments and psychological impairments, each of which resulted 
 
         from his injuries.
 
         
 
              4. Claimant's rate of weekly compensation should be 
 
         calculated under Iowa Code section 85.36(10); his rate of 
 
         compensation is $162,.38 per week.
 
         
 
                                      ORDER
 
         
 
              THEREFORE, IT IS ORDERED:
 
         
 
              Defendants are to pay unto claimant one hundred sixty-two 
 
         and 38/100 dollars ($162.38) as permanent total disability 
 
         compensation per week during the time that claimant remains 
 
         totally disabled.
 
         
 
         
 
         
 
         TITUS V. SUPER VALU STORES, INC.
 
         Page 20
 
         
 
         
 
              Defendants shall be entitled to credit for all compensation 
 
         paid to claimant as of the date of this decision.
 
         
 
              All benefits which have accrued as of the date of this 
 
         decision shall be paid in a lump sum together with statutory 
 
         interest pursuant to Iowa Code section 85.30.
 
         
 
              The costs of this action shall be assessed to defendants 
 
         pursuant to Division of Industrial Services Rule 343-4.33.
 
         
 
              Defendants shall file Claim Activity Reports as requested by 
 
         this agency pursuant to Division of Industrial Services Rule 
 
         343-3.1.
 
         
 
              Signed and filed this 21st day of April, 1989.
 
         
 
         
 
         
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
                                         DAVID RASEY
 
                                         DEPUTY INDUSTRIAL COMMISSIONER
 
         
 
         Copies To:
 
         
 
         Mr. Philip F. Miller
 
         Attorney at Law
 
         309 Court Avenue, Suite 200
 
         Des Moines, Iowa 50309
 
         
 
         Mr. W. C. Hoffmann
 
         Mr. Richard G. Book
 
         Attorneys at Law
 
         500 Liberty Building
 
         Des Moines, Iowa 50309
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
 
         
 
 
 
 
 
 
 
 
 
 
 
                                         1402.40, 1804, 2204, 3003
 
                                         Filed April 21, 1989
 
                                         DAVID RASEY
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         TODD A. TITUS,
 
          
 
               Claimant,
 
                                         File Nos. 825816
 
          VS.                                      828115
 
          
 
          SUPER VALU STORES, INC.,       A R B I T R A T I 0 N
 
          
 
               Employer,                    D E C I S I 0 N
 
          
 
          and
 
          
 
          LIBERTY MUTUAL INSURANCE CO.,
 
          
 
               Insurance Carrier,
 
               Defendants.
 
         
 
         1402.40, 1804, 2204
 
         
 
              Claimant who suffered two back injuries that resulted in two 
 
         unsuccessful surgeries at two levels and severe psychological 
 
         problems was disabled from any work within his present skills and 
 
         from the present and foreseeable ability to undergo 
 
         rehabilitation or retraining.  He was awarded permanent total 
 
         disability
 
         
 
         3003
 
         
 
              Rate for part-time hourly employee was calculated under 
 
         85.36(10), even though the rate was less than it would be under 
 
         85.36(6) and (7).  It was held that rate for persons meeting the 
 
         test of 85.36(10) must be calculated under that section.