BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         _________________________________________________________________
 
                     
 
         LINDA S. OWENS,       
 
                     
 
              Claimant,   
 
                     
 
         vs.         
 
                                               File No. 826663
 
         WAPELLO COUNTY,       
 
                                                 A P P E A L
 
              Employer,   
 
                                               D E C I S I O N
 
         and         
 
                     
 
         UNITED STATES FIDELITY AND      
 
         GUARANTY COMPANY,     
 
                     
 
              Insurance Carrier,    
 
              Defendants.      
 
         _________________________________________________________________
 
         The record, including the transcript of the hearing before the 
 
         deputy and all exhibits admitted into the record, has been 
 
         reviewed de novo on appeal.  The decision of the deputy filed 
 
         April 21, 1992 is affirmed and is adopted as the final agency 
 
         action in this case.
 
         Claimant shall pay the costs of the appeal, including the 
 
         preparation of the hearing transcript.
 
         Signed and filed this ____ day of March, 1993.
 
         
 
         
 
         
 
         
 
                                   ________________________________
 
                                         BYRON K. ORTON
 
                                   INDUSTRIAL COMMISSIONER
 
         
 
         Copies To:
 
         
 
         Mr. William D. Scherle
 
         Attorney at Law
 
         8th Floor-Fleming Bldg.
 
         218 Sixth Ave.
 
         Des Moines, Iowa 50309
 
         
 
         Ms. Iris J. Post
 
         Attorney at Law
 
         P.O. Box 10434
 
         Des Moines, Iowa 50306
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                              1303; 3400
 
                                              Filed March 10, 1993
 
                                              Byron K. Orton
 
                                              DRR
 
            
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
            
 
                        
 
            LINDA S. OWENS,       
 
                        
 
                 Claimant,   
 
                        
 
            vs.         
 
                                                File No. 826663
 
            WAPELLO COUNTY,       
 
                                                 A P P E A L
 
                 Employer,   
 
                                               D E C I S I O N
 
            and         
 
                        
 
            UNITED STATES FIDELITY AND      
 
            GUARANTY COMPANY,     
 
                       
 
                 Insurance Carrier,    
 
                 Defendants.      
 
            ____________________________________________________________
 
            
 
            
 
            1303; 3400
 
            Claimant and others claim disability due to toxic exposure 
 
            in "sick building" case.  In complex third-party litigation 
 
            (in which defendant was also a party), all plaintiffs 
 
            reached settlement with one of several defendants.  The 
 
            proceeds not used for attorney fees and litigation expenses 
 
            were distributed and spent.
 
            The settlement was negotiated clandestinely and presented to 
 
            these defendants as a fait accompli.  They successfully 
 
            moved the trial court to reinstate the settling defendant on 
 
            the grounds that the settlement had not been approved under 
 
            section 85.22(3).  Jury verdicts were rendered in favor of 
 
            all plaintiffs, but vacated by the trial court; the matter 
 
            is now before the Iowa Supreme Court.
 
            Claimant now seeks retroactive approval of the settlement or 
 
            a declaration that the issue is moot.
 
            Approval of the settlement was denied.  Section 85.22(3) 
 
            contemplates some voice in the settlement process for 
 
            defendants.  Claimant should not be rewarded for her 
 
            conduct, and the agency should not act so as to encourage 
 
            similar conduct by others.
 
            
 
 
            
 
            
 
            
 
            
 
            
 
            
 
                   BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                                          :
 
            LINDA S. OWENS,               :
 
                                          :         File No. 826663
 
                 Claimant,                :
 
                                          :         D E C I S I O N
 
            vs.                           :
 
                                          :               O N
 
            WAPELLO COUNTY,               :
 
                                          :      A P P L I C A T I O N
 
                 Employer,                :
 
                                          :     F O R   A P P R O V A L
 
            and                           :
 
                                          :               O F
 
            UNITED STATES FIDELITY AND    :
 
            GUARANTY COMPANY,             :       S E T T L E M E N T
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ____________________________________________________________
 
            
 
                              STATEMENT OF THE CASE
 
            
 
                 Claimant Linda S. Owens filed an application (treated 
 
            as petition) against defendant employer Wapello County and 
 
            its insurance carrier, United States Fidelity and Guaranty.  
 
            The application seeks approval of the industrial 
 
            commissioner for a settlement agreement she reached with a 
 
            third party during the course of related litigation.
 
            
 
                 The cause came on for hearing in Des Moines, Iowa, on 
 
            February 25, 1992.  The record consists of joint exhibits 1 
 
            through 9 and the testimony of claimant, Edward Blando, Jon 
 
            Swanson and Raymond Card.
 
            
 
                                      ISSUE
 
            
 
                 The following issue is presented for resolution:
 
            
 
                 Whether the industrial commissioner should approve 
 
                 or disapprove (or declare moot) a third party 
 
                 settlement reached between claimant and Winger 
 
                 Contracting Company on November 20, 1989.
 
            
 
                                 FINDINGS OF FACT
 
            
 
                 The undersigned deputy industrial commissioner finds:
 
            
 
                 Linda Owens commenced employment with Wapello County, 
 
            Iowa, in 1982 or 1983.  She worked in a county building used 
 
            primarily to house the Wapello County Department of Human 
 
            Services.  In 1984, that building became infested with 
 
            fleas.  Extensive pest eradication measures were undertaken 
 
            which Ms. Owens and four other individuals claim were the 
 
            cause of serious health problems.  It is unnecessary in this 
 
            proceeding to decide whether those claims are well founded.
 
            
 
                 On June 3, 1987, claimant and the other four workers 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            (who were employees of the State of Iowa) filed a petition 
 
            seeking money damages from a number of defendants, including 
 
            Wapello County and Winger Contracting Company, an Iowa 
 
            corporation engaged in the heating and cooling business.  
 
            All claimants were represented by David Elderkin and Edward 
 
            Blando of the law firm Elderkin, Pirnie, Von Lackum & 
 
            Elderkin.  Jack Paige, also a member of that firm, 
 
            represented claimant with respect to her workers' 
 
            compensation claim, but had only peripheral involvement in 
 
            the tort action.
 
            
 
                 On May 9, 1988, Wapello County and USF&G filed notice 
 
            of workers' compensation lien in the Wapello County District 
 
            Court action.  A certificate of service reflects that copies 
 
            were mailed to Mr. Elderkin and Mr. Blando on May 6, 1988.  
 
            Mr. Blando and Mr. Paige (who testified by deposition on 
 
            January 27, 1992) deny in their testimony in this litigation 
 
            that a copy of the lien was contained in the office file.
 
            
 
                 The third party action, Bloomquist, et al. v. Wapello 
 
            County, et al., became extremely complex and costly, largely 
 
            because all parties were required to rely heavily upon 
 
            expert testimony.  During the course of litigation, all 
 
            plaintiffs negotiated settlement with one defendant only:  
 
            Winger Contracting Company.  The other defendants, including 
 
            Wapello County, were by tacit agreement kept in the dark.  
 
            Winger Contracting paid the lump sum of $275,000 in exchange 
 
            for full releases and a dismissal of the third party action 
 
            with prejudice.  The total settlement was allocated equally 
 
            among the five plaintiffs ($55,000 each).  As to claimant's 
 
            share, $18,333.33 was used for attorney fees, $10,666.67 was 
 
            used to reimburse claimant's law firm for expenses to date, 
 
            $11,000.00 was placed into a trust account for future 
 
            expenses, and $15,000.00 was distributed directly to 
 
            claimant.  She has since spent that money and the entire 
 
            trust account was consumed by subsequent trial expenses.
 
            
 
                 Only after distribution of the settlement funds were 
 
            the other defendants notified.  Wapello County thereupon 
 
            moved the trial court to set aside the dismissal citing lack 
 
            of approval by it or the industrial commissioner under Iowa 
 
            Code section 85.22(3).  Although injunctive relief was not 
 
            granted, the trial court set aside the dismissal and 
 
            reinstituted Winger Contracting as a party defendant.
 
            
 
                 The cause proceeded to trial, but plaintiffs and Winger 
 
            continued to treat the settlement as binding.  As a matter 
 
            of trial tactics, plaintiffs did not try to persuade the 
 
            jury of Winger's liability.  A verdict was returned in favor 
 
            of Linda Owens totalling $335,438.00, attributing eight 
 
            percent to the comparative negligence of Winger Contracting 
 
            Company, or $26,835.00 plus interest.  The jury returned 
 
            verdicts in favor of all plaintiffs, the largest for Linda 
 
            Owens.  However, the trial court subsequently vacated all 
 
            judgments and the matter is currently pending before the 
 
            Iowa Supreme Court.
 
            
 
                 Claimant filed her Application for Approval of 
 
            Settlement in this matter on February 5, 1990, and a 
 
            petition in arbitration seven days later.  By the time the 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            Application for Approval of Settlement came on for hearing 
 
            on February 25, 1992, defendants had voluntarily (but 
 
            without admitting liability) paid some $45,375.17 in medical 
 
            expenses and $47,992.86 in weekly benefits.  Even though 
 
            claimant's attorneys may not have been aware that a workers' 
 
            compensation lien had been duly filed at the time of 
 
            settlement with Winger Contracting Company (November 20, 
 
            1989), there is no dispute but that claimant and her 
 
            attorneys were aware that Wapello County and USF&G had made 
 
            substantial voluntary payments.
 
            
 
                                CONCLUSIONS OF LAW
 
            
 
                 Iowa Code section 85.22(3) provides:
 
            
 
                 Before a settlement shall become effective between 
 
                 an employee or an employer and such third party 
 
                 who is liable for the injury, it must be with the 
 
                 written consent of the employee, in case the 
 
                 settlement is between the employer or insurer and 
 
                 such third person; and the consent of the employer 
 
                 or insurer, in case the settlement is between the 
 
                 employee and such third party; or on refusal of 
 
                 consent, in either case, then upon the written 
 
                 approval of the industrial commissioner.
 
            
 
                 Very few cases deal specifically with this section of 
 
            The Code.  Claimant argues vigorously for a liberal 
 
            construction of the statute in her favor, citing McSpadden 
 
            v. Big Ben Coal Co., 288 N.W.2d 181 (Iowa 1980).  Factors 
 
            relative construction of an ambiguous statute were 
 
            succinctly set forth in another deputy's prior Ruling on 
 
            Motion to Adjudicate Law Point filed June 14, 1991:
 
            
 
                 The ultimate goal of statutory construction is to 
 
            determine and effectuate the intent of the legislature.  
 
            Iowa Beef Processors, Inc. v. Miller, 312 N.W.2d 530, 532 
 
            (Iowa 1981); American Home Products Corp. v. Iowa State Bd. 
 
            of Tax Review, 302 N.W.2d 140, 142 (Iowa 1981).  One must 
 
            look to the object to be accomplished, the mischiefs to be 
 
            remedied, or the purpose to be served, and place on the 
 
            statute a reasonable or liberal construction which will best 
 
            effect, rather than defeat, the legislature's purpose.  City 
 
            of Mason City v. Pub. Employment Relations Bd., 316 N.W.2d 
 
            851, 854 (Iowa 1982).  Strained, impractical or absurd 
 
            results are to be avoided in favor of a sensible, logical 
 
            construction.  Ida County Courier & Reminder v. Attorney 
 
            General, 316 N.W.2d 846, 851 (Iowa 1982); Iowa Beef 
 
            Processors, Inc., 312 N.W.2d at 532.  All parts of the 
 
            statute are to be considered together without attributing 
 
            undue importance to any single or isolated portion.  Iowa 
 
            Beef Processors, Inc., 312 N.W.2d at 532; Peffers v. City of 
 
            Des Moines, 299 N.W.2d 675, 678 (Iowa 1980).  The spirit of 
 
            the statute must be considered along with its words.  Hanson 
 
            v. State, 298 N.W.2d 263, 265 (Iowa 1981).  The manifest 
 
            intent of the legislature will prevail over the literal 
 
            import of the words.  Iowa Beef Processors, Inc., 312 N.W.2d 
 
            at 533.  The legislation should be given a rational, 
 
            workable meaning.  Iowa Dep't of Transp. v. Nebraska-Iowa 
 
            Supply Co., 272 N.W.2d 6, 11 (Iowa 1978).  It is generally 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            presumed that statutory words are used in their ordinary and 
 
            usual sense with the meaning commonly attributed to them.  
 
            American Home Products Corp. v. Iowa State Bd. of Tax 
 
            Review, 302 N.W.2d at 142.  The policy is to liberally 
 
            construe workers' compensation statutes in favor of the 
 
            worker.  Caterpillar Tractor Co. v. Shook, 313 N.W.2d 503, 
 
            506 (Iowa 1981).
 
            
 
                 However, claimant's interests are not the only 
 
            interests to be considered.
 
            
 
                 A rare reference to section 85.22(3) is contained in 
 
            Am. Mut. Liab. Ins. Co. v. State Farm Auto. Ins. Ass'n, 72 
 
            N.W.2d 88 (Iowa 1955):
 
            
 
                 Presumably the commissioner would approve a 
 
                 reasonable settlement to which the insurer refused 
 
                 to consent.  If neither the insurer nor the 
 
                 commissioner would consent to the proposed 
 
                 settlement defendants, in effect, had the option 
 
                 not to make it or to settle with the employee 
 
                 charged with knowledge that under subsection 5 for 
 
                 subrogation purposes it would be "under 
 
                 circumstances creating a legal liability against" 
 
                 them.
 
            
 
                 Accordingly, it appears that "reasonableness" of the 
 
            settlement is of significance.  However, this writer is of 
 
            the view that this reference by the court relates to prior 
 
            approval, rather than approval sought for a fait accompli.  
 
            A reasonable construction of the statute compels the 
 
            conclusion that employer and defendant are entitled to some 
 
            voice in the settlement process.  In this case, they had 
 
            none.  Claimant negotiated the settlement clandestinely, 
 
            executed all necessary documents and participated in 
 
            distribution of the resulting funds, then presented 
 
            defendants with a belated set of "new facts."  Now, claimant 
 
            wishes this agency to approve the settlement, arguing that 
 
            it has been proven reasonable by the jury verdict in a 
 
            lesser amount than the settlement.  Defendants, however, 
 
            persuasively argue that the jury verdict serves no such 
 
            function.  Claimant made no effort to persuade the jury to 
 
            return a verdict against Winger Contracting Company; it is 
 
            not unreasonable to postulate the likelihood that a larger 
 
            verdict would have resulted had she and the other plaintiffs 
 
            done so.  It might also be noted here that claimant was 
 
            barred by the trial court from introducing evidence as to 
 
            her substantial medical expenses and the likelihood of 
 
            future medicals, apparently as a sanction for discovery 
 
            misconduct by her trial counsel.
 
            
 
                 It seems ill-advised to reward claimant for her doings 
 
            with respect to this settlement.  Approving it retroactively 
 
            may well have the unfortunate consequence of encouraging 
 
            similar conduct by other claimants involved in third party 
 
            tort litigation.  This consequence would clearly fly in the 
 
            face of the objectives to be accomplished and mischiefs to 
 
            be remedied by the statutory scheme.  It is again noted that 
 
            even though claimant's attorneys may have been unaware of 
 
            defendants' lien, there is no question but that she and they 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            were aware of their right to indemnification.  Section 
 
            85.22(3) sets forth both a right to indemnification and a 
 
            lien provision to back up that right.  Even assuming 
 
            (without deciding) that there was good cause to avoid the 
 
            lien, there was no good cause to avoid the right to 
 
            indemnification.
 
            
 
                 On balance, the equities favor defendants.  
 
            Accordingly, unless the issue is moot, approval should be 
 
            withheld.
 
            Claimant does argue mootness of the issue, since the corpus 
 
            of the settlement is now long gone.  She believes
 
            
 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            OWENS v. WAPELLO COUNTY
 
            Page 6
 
            
 
            
 
            
 
            that there is now no justiciable controversy because the 
 
            issues have become academic or nonexistent.  Martin-Trigona 
 
            v. Baxter, 435 N.W.2d 744 (Iowa 1989) is cited for the 
 
            proposition that the test is whether a judgment, if 
 
            rendered, would have any practical legal effect upon the 
 
            existing controversy.  However, this cause is not moot.  
 
            Even now, litigation in the tort action continues at the 
 
            supreme court level.  If the settlement remains unapproved, 
 
            Winger may very well have a cause of action against claimant 
 
            to recover its funds.  It is not inconceivable that Wapello 
 
            County and USF&G may have some remedy against claimant or 
 
            her attorneys for their disregard of indemnity interests 
 
            (or, for that matter, the lien itself).  In her brief, 
 
            claimant concedes that "the facts which led the parties here 
 
            do not strictly track the language of the statute."  This is 
 
            a monumental understatement.  The litigation to date has 
 
            been complex and carried on in multiple forms; it is not 
 
            improbable that the complexity of this litigation will 
 
            increase in the future.
 
            
 
                 Defendants suggest in their brief that they be granted 
 
            a credit against future compensation benefits for the entire 
 
            amount of the settlement, some $55,000.  However, 
 
            entitlement to credit was not presented as an issue at 
 
            hearing or on the hearing assignment order scheduling the 
 
            cause for hearing.  Had the issue been presented, claimant 
 
            may well have presented different evidence, for example, 
 
            evidence as to whether the trial court was asked to or did 
 
            approve attorney fees under the specific language of 
 
            85.22(1).
 
            
 
                 Accordingly, the issue of entitlement to credit against 
 
            future benefits will not at this time be addressed.
 
            
 
                                      ORDER
 
            
 
                 THEREFORE, IT IS ORDERED:
 
            
 
                 Claimant's Application for Approval of Settlement filed 
 
            February 5, 1990, should be and is hereby denied.
 
            
 
                 Each party shall bear its own costs under rule 343 IAC 
 
            4.33.
 
            
 
                 Signed and filed this ______ day of ____________, 1992.
 
            
 
                 
 
            
 
                 
 
                 
 
                                          ______________________________
 
                                          DAVID RASEY
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
            OWENS v. WAPELLO COUNTY
 
            Page 7
 
            
 
            
 
            
 
            Copies To:
 
            
 
            Mr. William D. Scherle
 
            Attorney at Law
 
            803 Fleming Building
 
            Des Moines, Iowa  50309
 
            
 
            Ms. Iris J. Post
 
            Attorney at Law
 
            2222 Grand Avenue
 
            P.O. Box 10434
 
            Des Moines, Iowa  50306
 
            
 
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
                   BEFORE THE IOWA INDUSTRIAL COMMISSIONER            
 
            ____________________________________________________________
 
                                          :
 
            LINDA S. OWENS,               :
 
                                          :
 
                 Claimant,                :         File No. 826663
 
                                          :
 
            vs.                           :        R U L I N G   O N
 
                                          :
 
            WAPELLO COUNTY,               :        M O T I O N   T O
 
                                          :
 
                 Employer,                :       A D J U D I C A T E
 
                                          :
 
            and                           :              L A W
 
                                          :
 
            UNITED STATES FIDELITY AND    :            P O I N T
 
            GUARANTY COMPANY,             :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ____________________________________________________________
 
            
 
                 Claimant filed a Motion to Adjudicate Law Point to 
 
            which defendants filed a response.
 
            
 
                 Pursuant to section 85.22(3), claimant seeks the 
 
            commissioner's written approval of a settlement between 
 
            claimant as employee and a third party to which settlement 
 
            the employer has not given written consent.  Defendants have 
 
            not admitted liability in this file and no adjudication of 
 
            liability exists.  Section 85.22, unnumbered paragraph 1, 
 
            provides, in relevant part:
 
            
 
                 When an employee receives an injury or incurs an 
 
                 occupational disease or an occupational hearing 
 
                 loss for which compensation is payable under this 
 
                 chapter, chapter 85A or chapter 85B, and which 
 
                 injury or occupational disease or occupational 
 
                 hearing loss is caused under circumstances 
 
                 creating a legal liability against some person, 
 
                 other than the employee's employer or any employee 
 
                 of such employer as provided in section 85.20 to 
 
                 pay damages, the employee, or the employee's 
 
                 dependent, or the trustee of such dependent, may 
 
                 take proceedings against the employer for 
 
                 compensation, and the employer or, in case of 
 
                 death, the employee's legal representative may 
 
                 also maintain an action against such third party 
 
                 for damages.  When an injured employee or the 
 
                 employee's legal representative brings an action 
 
                 against such third party, a copy of the original 
 
     
 
            
 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
                 notice shall be served upon the employer by the 
 
                 plaintiff, not less than ten days before trial of 
 
                 the case, but a failure to give such notice shall 
 
                 not prejudice the rights of the employer, and the 
 
                 following rights and duties shall ensue:
 
            
 
                 * * *
 
            Numbered subsection 3 then provides:
 
            
 
                 3.  Before a settlement shall become effective 
 
                 between an employee or an employer and such third 
 
                 party who is liable for the injury, it must be 
 
                 with the written consent of the employee, in case 
 
                 the settlement is between the employer or insurer 
 
                 and such third person; and the consent of the 
 
                 employer or insurer, in case the settlement is 
 
                 between the employee and such third party; or on 
 
                 refusal of consent, in either case, then upon the 
 
                 written approval of the industrial commissioner.
 
            
 
                 As the introductory paragraph of section 85.22 speaks 
 
            of "[w]hen an employee receives an injury . . . for which 
 
            compensation is payable," a fair question arises as to 
 
            whether an injury arising out of and in the course of 
 
            employment for which the employer is liable, and therefore 
 
            obligated to make payments, must be established before the 
 
            parties can seek approval of a settlement pursuant to 
 
            subsection 3 of the section.
 
            
 
                 No law expressly on point has been found.  It can 
 
            fairly be said that the statute is ambiguous.  The 
 
            construction of an ambiguous statute is accomplished through 
 
            consideration of a number of long-standing principles:
 
            
 
                 The ultimate goal of statutory construction is to 
 
            determine and effectuate the intent of the legislature.  
 
            Iowa Beef Processors, Inc. v. Miller, 312 N.W.2d 530, 532 
 
            (Iowa 1981); American Home Products Corp. v. Iowa State Bd. 
 
            of Tax Review, 302 N.W.2d 140, 142 (Iowa 1981).  One must 
 
            look to the object to be accomplished, the mischiefs to be 
 
            remedied, or the purpose to be served, and place on the 
 
            statute a reasonable or liberal construction which will best 
 
            effect, rather than defeat, the legislature's purpose.  City 
 
            of Mason City v. Pub. Employment Relations Bd., 316 N.W.2d 
 
            851, 854 (Iowa 1982).  Strained, impractical or absurd 
 
            results are to be avoided in favor of a sensible, logical 
 
            construction.  Ida County Courier & Reminder v. Attorney 
 
            General, 316 N.W.2d 846, 851 (Iowa 1982); Iowa Beef 
 
            Processors, Inc., 312 N.W.2d at 532.  All parts of the 
 
            statute are to be considered together without attributing 
 
            undue importance to any single or isolated portion.  Iowa 
 
            Beef Processors, Inc., 312 N.W.2d at 532; Peffers v. City of 
 
            Des Moines, 299 N.W.2d 675, 678 (Iowa 1980).  The spirit of 
 
            the statute must be considered along with its words.  Hanson 
 
            v. State, 298 N.W.2d 263, 265 (Iowa 1981).  The manifest 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
            intent of the legislature will prevail over the literal 
 
            import of the words.  Iowa Beef Processors, Inc., 312 N.W.2d 
 
            at 533.  The legislation should be given a rational, 
 
            workable meaning.  Iowa Dep't of Transp. v. Nebraska-Iowa 
 
            Supply Co., 272 N.W.2d 6, 11 (Iowa 1978).  It is generally 
 
            presumed that statutory words are used in their ordinary and 
 
            usual sense with the meaning commonly attributed to them.  
 
            American Home Products Corp. v. Iowa State Bd. of Tax 
 
            Review, 302 N.W.2d at 142.  The policy is to liberally 
 
            construe workers' compensation statutes in favor of the 
 
            worker.  Caterpillar Tractor Co. v. Shook, 313 N.W.2d 503, 
 
            506 (Iowa 1981).
 
            
 
                 "Payable" means liable to be paid.  "Liable" implies 
 
            the possibility or probability of incurring something 
 
            because of position, nature, or particular situation.  See 
 
            Webster's Ninth New Collegiate Dictionary.
 
            
 
                 While the purpose of permitting the commissioner to 
 
            approve a settlement under section 85.22(3) has not been 
 
            discussed by the courts, the Iowa Supreme Court did discuss 
 
            the purpose of the subrogation provisions of section 
 
            85.22(1) in Johnson v. Harlan Community School Dist., 427 
 
            N.W.2d 460 (Iowa 1988).  In Harlan, the court stated, at 
 
            page 462:
 
            
 
                 It appears the purpose of the subrogation 
 
                 provisions of section 85.22(1) is to permit the 
 
                 employer to recoup monies it has been required to 
 
                 pay under the provisions of chapter 85 from a 
 
                 tortious third party whose conduct has produced 
 
                 the injury which necessitated such payments.
 
            
 
                 It would appear that an analogous purpose to section 
 
            85.22(3) is to permit the employer or the employee as the 
 
            case may be to protect its interests in a settlement with a 
 
            third party.  Expressly where the employer is not the 
 
            agreeing party, the section permits the employer to protect 
 
            its interests in recouping monies paid claimant under 
 
            chapter 85.  Arguably, that interest exists once the 
 
            employer has made payments to the employee, regardless of 
 
            whether the employer has actually accepted liability for the 
 
            employee's alleged injury.  Similarly, legislation enacted 
 
            in the past decade promotes a policy of payment of benefits 
 
            to a worker at the earliest possible date.  That policy is 
 
            promoted by the specific legislative enactment of section 
 
            86.13, unnumbered paragraph 1, which notes that payments 
 
            made establish conclusively that the employer and carrier 
 
            have notice of the injury for which benefits are claimed, 
 
            but the payments do not constitute an admission of 
 
            liability.
 
            
 
                 Permitting an employer to defend its interests in 
 
            monies paid without admitting liability for the injury, 
 
            hence, promotes early payment of benefits to an allegedly 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
            injured worker.  The policy of requiring adjudication of the 
 
            liability issue before addressing the settlement issue both 
 
            delays receipt of monies where such would be found to be in 
 
            the employee's best interest and promotes possible breakdown 
 
            of settlement arrangements between the employee and the 
 
            third party tort-feasor.  A policy which would argue that 
 
            the employer has no interest in the alleged settlement 
 
            between a third party tort-feasor and an alleged claimant 
 
            where the employer has admitted no liability would 
 
            discourage early payment of workers' compensation benefits 
 
            to injured workers and would be contrary to the policy 
 
            announced in Harlan of permitting recoupment of monies paid 
 
            under the Iowa Workers' Compensation Act.  For these reasons 
 
            also, the most appropriate construction of section 85.22, 
 
            unnumbered paragraph 1, as it relates to subsection 3 of the 
 
            section is that this agency has jurisdiction to determine 
 
            the appropriateness of a settlement between the employee and 
 
            a third party tort-feasor where such settlement is resisted 
 
            by the employer in those circumstances where the employer 
 
            has actually paid benefits to the employee but does not 
 
            acknowledge liability for the injury.  As the 
 
            appropriateness of defendants' resistance to the settlement 
 
            involves evidentiary issues, the contested settlement is a 
 
            contested case proceeding.  In the ordinary case, then, the 
 
            matter should be submitted with an attached form 100, 
 
            Original Notice and Petition.  As this matter was originally 
 
            accepted without the form 100, that requirement is waived 
 
            relative to this matter.
 
            
 
                 Therefore, it is found that this agency has 
 
            jurisdiction to determine the appropriateness of the 
 
            settlement pursuant to section 85.22(3) without a 
 
            determination of whether the alleged injury arose out of and 
 
            in the course of the claimant's employment where the 
 
            employer has paid benefits voluntarily.
 
            
 
                 THEREFORE, IT IS ORDERED that this matter is returned 
 
            to docket for appropriate scheduling of prehearing 
 
            conference and scheduling for hearing.
 
            
 
                 Signed and filed this ______ day of ____________, 1991.
 
            
 
                 
 
            
 
                 
 
                 
 
                                          ______________________________
 
                                          HELENJEAN WALLESER
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr. Jack C. Paige
 
            Attorney at Law
 
            Suite 700, Higley Building
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
            P.O. Box 1968
 
            Cedar Rapids, Iowa  52406-1968
 
            
 
            Ms. Iris J. Post
 
            Attorney at Law
 
            2222 Grand Avenue
 
            P.O. Box 10434
 
            Des Moines, Iowa  50306
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                               1303; 3400
 
                                               Filed April 21, 1992
 
                                               DAVID RASEY
 
            
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                                          :
 
            LINDA S. OWENS,               :
 
                                          :         File No. 826663
 
                 Claimant,                :
 
                                          :         D E C I S I O N
 
            vs.                           :
 
                                          :               O N
 
            WAPELLO COUNTY,               :
 
                                          :      A P P L I C A T I O N
 
                 Employer,                :
 
                                          :     F O R   A P P R O V A L
 
            and                           :
 
                                          :               O F
 
            UNITED STATES FIDELITY AND    :
 
            GUARANTY COMPANY,             :       S E T T L E M E N T
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ____________________________________________________________
 
            
 
            1303; 3400
 
            Claimant and others claim disability due to toxic exposure 
 
            in "sick building" case.  In complex third-party litigation 
 
            (in which defendant was also a party), all plaintiffs 
 
            reached settlement with one of several defendants.  The 
 
            proceeds not used for attorney fees and litigation expenses 
 
            were distributed and spent.
 
            The settlement was negotiated clandestinely and presented to 
 
            these defendants as a fait accompli.  They successfully 
 
            moved the trial court to reinstate the settling defendant on 
 
            the grounds that the settlement had not been approved under 
 
            section 85.22(3).  Jury verdicts were rendered in favor of 
 
            all plaintiffs, but vacated by the trial court; the matter 
 
            is now before the Iowa Supreme Court.
 
            Claimant now seeks retroactive approval of the settlement or 
 
            a declaration that the issue is moot.
 
            Approval of the settlement was denied.  Section 85.22(3) 
 
            contemplates some voice in the settlement process for 
 
            defendants.  Claimant should not be rewarded for her 
 
            conduct, and the agency should not act so as to encourage 
 
            similar conduct by others.
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                                     2301
 
                                                     Filed June 14, 1991
 
                                                     HELENJEAN WALLESER
 
            
 
                    BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                                          :
 
            LINDA S. OWENS,               :
 
                                          :
 
                 Claimant,                :         File No. 826663
 
                                          :
 
            vs.                           :        R U L I N G   O N
 
                                          :
 
            WAPELLO COUNTY,               :        M O T I O N   T O
 
                                          :
 
                 Employer,                :       A D J U D I C A T E
 
                                          :
 
            and                           :              L A W
 
                                          :
 
            UNITED STATES FIDELITY AND    :            P O I N T
 
            GUARANTY COMPANY,             :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ____________________________________________________________
 
            
 
            2301
 
            Found that agency has jurisdiction to determine the 
 
            appropriateness of a settlement between the employee and a 
 
            third party tort-feasor to which settlement the employer 
 
            objected where the employer had made voluntary workers' 
 
            compensation payments to the employee, but where neither an 
 
            admission nor an adjudication of liability existed.
 
            
 
 
            
 
            
 
            
 
            
 
            
 
            
 
                    BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                                          :
 
            SHIRLEY KORLESKI,             :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :      File Nos. 826734
 
                                          :                877046
 
            CHEROKEE MENTAL HEALTH        :                877047
 
            INSTITUTE,                    :
 
                                          :    A R B I T R A T I O N
 
                 Employer,                :
 
                                          :      D E C I S I O N
 
            and                           :
 
                                          :
 
            STATE OF IOWA,                :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
                 Shirley Korleski filed three petitions for arbitration 
 
            as a result of injuries suffered on June 21, 1986, May 22, 
 
            1987 and February 4, 1988(1).  The injuries were to claimant's 
 
            head neck, shoulder wrist elbow and tailbone.  Cherokee 
 
            Mental Health Institute (Cherokee ) was identified as 
 
            employer and the State of Iowa (State) was identified as the 
 
            workers compensation insurer (collectively defendants).  On 
 
            May 1, 1991 these matters came on for hearing in Storm Lake, 
 
            Iowa.  The parties appeared as follows:  the claimant in 
 
            person and by her counsel Daryl L. Hecht and Cherokee and 
 
            the State by their counsel Assistant Attorney General 
 
            Charles Lavarato of Des Moines, Iowa.  
 
            
 
                 The record in this proceeding consisted of the 
 
            following:
 
            
 
                 1.  The live testimony of the claimant.
 
            
 
                 2.  Joint exhibits 1-23
 
            
 
                       
 
            
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
            (1).  File Number 826734 was filed on June 6, 1988 alleging 
 
            an injury to claimant's head, neck and shoulder.  File 
 
            Number 877046 was also filed on June 6, 1988 alleging an 
 
            injury to claimant's wrist elbow neck and tailbone.  The 
 
            third file is File Number 877047.  Claimant again suffered 
 
            an injury to her head neck and shoulder.
 
            
 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
                                STIPULATIONS
 
            
 
                 In connection with all three injuries, the parties 
 
            stipulated to the following matters at the time of the 
 
            hearing:
 
            
 
                 a.  An employer-employee relationship existed between 
 
            claimant and employer at the time of the alleged injury.
 
            
 
                 b.  The claimant sustained injuries on June 21, 1986, 
 
            May 22, 1987 and February 4, 1988, which arose out of and in 
 
            the course of employment.
 
            
 
                 c.  The alleged injury is a cause of temporary 
 
            disability.
 
            
 
                 d.  The type of permanent disability, if the injury is 
 
            found to be a cause of permanent disability, is industrial 
 
            disability to the body as a whole.
 
            
 
                 e.  The commencement date for permanent partial 
 
            disability, is March 21, 1990.
 
            
 
                 f.  The rate of compensation, in the event of an award, 
 
            is as follows for each injury:
 
            
 
                    June 21, 1986                   219.90
 
                    May 22, 1987                    238.52
 
                 February 4, 1988                   253.91
 
            
 
                 At the time of all of these injuries, claimant was 
 
            married and had one child.  She is entitled to three 
 
            exemptions.
 
            
 
                 g.  With reference to disputed medical expenses the 
 
            parties agree that:
 
            
 
                 1  The fees charged for medical services are fair 
 
                 and reasonable.
 
            
 
                 2.  The expenses were incurred for reasonable and 
 
                 necessary medical treatment.
 
            
 
                 3  The expenses are causally connected to the work 
 
            injury.
 
            
 
                 4.  The causal connection of the expenses to 
 
                 treatment for a medical condition upon which 
 
                 claimant is now basing her claim is admitted but 
 
                 the causal connection of this condition to a work 
 
                 injury remains an issue to be decided in these 
 
                 proceedings.
 
            
 
            
 
                 5.  The expenses were authorized by the employer.
 
            
 
                 h.  Defendants are entitled to a credit for employee 
 
            nonoccupational group health plan benefits paid prior to 
 
            hearing in the amount of $2,471.25.
 
            
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
                 i.  That defendants have paid 25 weeks of workers' 
 
            compensation benefits to claimant at the rate of $219.90 per 
 
            week prior to hearing.
 
            
 
                 j.  That there are no bifurcated claims.
 
            
 
            Issues
 
 
 
                 The issues for resolution for all three files are as 
 
            follows:
 
            
 
                 1.  Whether a causal relationship exists between 
 
            claimant's claimed injuries and the claimed disability and 
 
            the nature and extent of any entitlement to benefits, if 
 
            any.
 
            
 
                 2.  Whether claimant is entitled to medical benefits.
 
 
 
                                        
 
                                 FINDINGS OF FACT
 
            
 
                 After considering all of the evidence and the arguments 
 
            of counsel, the undersigned makes the following findings of 
 
            fact and conclusions of law, findings of fact
 
            
 
                 1.  At the time of the hearing, claimant was 36 years 
 
            of age.  At the time of her various injuries, which occurred 
 
            on June 21, 1986, May 22, 1987 and February 4, 1988 
 
            respectively, claimant was 32, 33, and 34 years old.  
 
            Claimant is a 1972 high school graduate.  Claimant obtained 
 
            further education at Western Iowa Technical College where 
 
            she received her licensed practical nursing certificate in 
 
            August of 1973.  Claimant has had no other formal education.
 
            
 
                 2.  Claimant's work history reflects unskilled 
 
            positions until she obtained her LPN certificate.  Claimant 
 
            worked as a sewing machine operator in 1972.  She earned 
 
            approximately $70.00 per week.  Claimant's next employment 
 
            was with a hospital in Primghar, Iowa.  Claimant worked as a 
 
            licensed practical nurse in this capacity.  She earned 
 
            approximately $70.00 per week.  Claimant's next position was 
 
            again as a sewing machine operator.  Claimant worked in that 
 
            position from 1974 until 1976, when she left that job to 
 
            take care of her disabled husband.  Claimant then was not 
 
            employed outside of the home between January 1976 and April 
 
            1983.
 
            
 
                 3.  On April 4, 1983, claimant began to work for 
 
            Cherokee as a resident treatment worker.  When she received 
 
            her LPN license, she was promoted into an LPN slot on July 
 
            15, 1983.  
 
            
 
                 4.  At the time claimant began working for Cherokee, 
 
            she was in good health.  She had had no prior complaints of 
 
            pain in her right shoulder or her neck.  Claimant did have a 
 
            history that was significant for an appendicectomy, 
 
            gallbladder surgery, two cesareans, several D and C 
 
            procedures and ongoing bouts of gastritis and bronchitis.  
 
            Claimant is right hand dominant and wears eye glasses.
 
            
 
                 5.  Prior to her injury, claimant's job duties included 
 
            dispensing medication to patients, taking doctors' orders, 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            assisting at the team meetings, bathing patients, feeding 
 
            patients, toileting patients, restraining patients, and 
 
            lifting patients.  Additionally, claimant cleaned patient 
 
            rooms, moved furniture, pushed wheelchairs, made beds, and 
 
            generally performed all of the duties required of a licensed 
 
            practical nurse in a mental health facility.  Claimant 
 
            worked generally in the intensive care unit of the facility.  
 
            However, she had experience in each of the areas of the 
 
            hospital.  These included the men's ward, the pediatric and 
 
            adolescence ward, chemical dependant ward and the geriatric 
 
            ward.  Claimant thoroughly enjoyed her work.
 
            
 
                 6.  At the time of the first injury, claimant was 
 
            earning $8.60 per hour.  At the time of the second injury in 
 
            1987, claimant was earning $9.41 per hour.  At the time of 
 
            the third injury in 1988, claimant was earning $9.90 per 
 
            hour.  
 
            
 
                 7.  On June 21, 1986, claimant was working in the 
 
            intensive care unit.  Breakfast had just been served and 
 
            claimant was walking down the hall when a patient said 
 
            something to her.  Claimant did not hear what the patient 
 
            said and when she asked the patient to repeat the statement, 
 
            the patient slapped claimant across the right side of the 
 
            face and kicked her on the upper leg.  The force of the slap 
 
            jerked claimant's head and pushed it backwards.  She was 
 
            dazed but did not lose consciousness.  As a result of the 
 
            attack, claimant had pain in her neck and upper back.  She 
 
            experienced a burning sensation in her right shoulder.  
 
            Claimant was excused from work for the balance of the day.  
 
            Claimant attempted to return to work for two hours on June 
 
            22, 1986, but to no avail.  Thereafter, claimant was off 
 
            work for approximately eleven months with intermittent 
 
            attempts to return to work on a limited basis.
 
            
 
                 8.  After conservative treatment,  claimant was 
 
            evaluated at the Mayo Clinic, on March 23, 1987.  As the 
 
            result of this examination, Lee A. Nauss, M.D., the treating 
 
            physician at the Mayo Clinic found that claimant's 
 
            neurologic examination and EMG studies were normal.  Dr. 
 
            Nauss also concluded that claimant's right suprascapula pain 
 
            was caused by local musculoligmentous pathology.  Claimant 
 
            was directed to the pain clinic for treatment with some good 
 
            results.
 
            
 
                 9.  On May 13, 1987, claimant was released to return to 
 
            work from May 20, 1987.  A 25 pound lifting restriction was 
 
            imposed by Dr. Harrison.
 
            
 
                 10. On May 19, 1987, Dr. Harrison reported that a MRI 
 
            study of claimant's cervical and upper thoracic region had 
 
            been normal.  Claimant also had a normal MRI of her right 
 
            shoulder.  No inflammatory process was found in the right 
 
            shoulder.  Additionally, there was no evidence of disc 
 
            degeneration, no evidence of bulging or posterior 
 
            protrusions in the spinal canal and the spinal canal was 
 
            normal.
 
            
 
                 11. On May 22, 1987, claimant suffered her second 
 
            injury.  As claimant was leaving the ward to go home, a 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            patient attacked a co-worker.  Claimant went to help her and 
 
            was knocked to the floor.  Claimant testified that she hit 
 
            her right shoulder.  She indicated that she suffered an 
 
            injury to her wrist, elbow, neck and tailbone.
 
            
 
                 12. There is no medical evidence that claimant 
 
            consulted with any doctor regarding this injury.  On June 1, 
 
            1987, claimant consulted with her family physician, Dr. 
 
            Harrison but did not mention this injury.  Claimant told Dr. 
 
            Harrison that the weight restriction was working out alright 
 
            and that she was doing fine at work.  On June 2, 1987, Dr. 
 
            Harrison further delineated claimant's restrictions.  
 
            Claimant was able to assist patients into or out of bed, 
 
            bathtubs, chairs and the like.  Claimant was also able to 
 
            push wheelchairs if the patient did not weigh greater than 
 
            200 pounds.
 
            
 
                 13. On June 12, 1987, claimant consulted Robert J. 
 
            Feser, O.D., an optometrist regarding her eyesight.  
 
            Claimant did not advise Cherokee Mental Health or anyone at 
 
            the Iowa Department of Personnel that she was having eye 
 
            problems resulting from her injury either on May 22, 1987 or 
 
            the injury suffered on June 21, 1986.  Dr. Feser found that 
 
            claimant had a refractive error with right hypertropia 
 
            possibly secondary to a blow to the right side of the face.  
 
            Additionally, he found possible injury to the facial bone 
 
            structure, again secondary to the injury.  Finally, he found 
 
            that claimant had a chronic inflammation of the right sinus 
 
            possibly secondary to the injury.  However, Dr. Feser never 
 
            gave an unqualified report that all of these problems arose 
 
            as a result of the injury suffered on June 21, 1986 or May 
 
            22, 1987.
 
            
 
                 14. On June 15, 1987, claimant returned to Mayo Clinic.  
 
            No mention of the incident of May 22 appears in the 
 
            treatment notes for this visit.  Claimant was treated for 
 
            trigger point pain.  Dr. Nauss found no loss of motor 
 
            strength or reflexes in the upper extremities.  He noted 
 
            smooth motion with no pain.  The x-ray studies he reviewed 
 
            were unremarkable.  In conclusion Dr. Nauss had no 
 
            orthopedic explanation for the pain claimant described.  Nor 
 
            was he in a position to comment regarding claimant's ability 
 
            to work or not work.  Claimant had no further treatment 
 
            until October of 1987 when she again traveled to Rochester 
 
            for treatment of pain in the right trapezius and over the 
 
            right occipital nerve.  Claimant continued to complain of 
 
            right back pain.  On November 6, 1987, Dr. Harrison's notes 
 
            reflected that claimant's 25 pound weight restriction was 
 
            still in place.
 
            
 
                 15. Claimant suffered her third injury on February 4, 
 
            1988.  Claimant was in the office talking to a doctor when 
 
            she was struck across the head by a patient.  She was struck 
 
            on the left side of the head.  Her right side immediately 
 
            got worse.  She was able to finish work that day but she was 
 
            not able to return the next day.  Claimant experienced the 
 
            same symptoms, pain and burning sensation in the shoulders 
 
            after this incident.  Claimant's head pain continued and was 
 
            the same as the headache pain had been after the June 1986 
 
            injury.
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            
 
                 16. On February 8, 1988, claimant was referred to 
 
            Daniel J. Miller, M.D., by Dr. Harrison.  Dr. Miller found 
 
            that claimant was suffering from right occipital neuralgia 
 
            with scapular myofascial pain, both of a traumatic origin.  
 
            Dr. Miller treated claimant conservatively throughout 
 
            February.  However, claimant's pain did not improve and 
 
            occipital nerve compression surgery was scheduled for April 
 
            1, 1988.  Claimant had successful decompression surgery on 
 
            April 1, 1988, and by April 13, 1988, Dr. Miller felt that 
 
            claimant was asymptomatic from her cranial complaints.
 
            
 
                 17. In a return visit, Dr. Miller noted that claimant's 
 
            x-ray studies showed a normal right scapula and that her MRI 
 
            scan of her neck and shoulder were normal.  Plate x-rays of 
 
            her right scapula and flexion extension x-ray of the 
 
            cervical spine were normal.  Dr. Miller concluded that the 
 
            etiology of her chronic pain complaints was unknown.  
 
            Claimant's weight restriction was renewed on May 22, 1988 by 
 
            Dr. Harrison.  Claimant was again restricted to lifting only 
 
            25 pounds.  
 
            
 
                 18. Throughout the summer of 1988, claimant continued 
 
            to complain of pain in her right shoulder.  At the end of 
 
            June, claimant indicated that she was having no further 
 
            problems with headache pain but she was complaining of right 
 
            leg pain after she had been horseback riding.  Complaints of 
 
            leg pain continued through the end of June when claimant 
 
            complained of pain on her right side running down the 
 
            posterior thigh and calf all the way to her foot.  The 
 
            objective evaluation of pain was somewhat vague and the pain 
 
            complaints were of a questionable etiology.
 
            
 
                 19. After claimant had no relief from conservative 
 
            treatment, claimant was referred to Quentin J. Durward, 
 
            M.D., for further investigation of her persistent right 
 
            parascapular burning pain in the right shoulder.  Claimant 
 
            also reported that she had an aching pain which radiated 
 
            down the right arm and into the middle three fingers of her 
 
            right hand.  This had occurred after she had done 
 
            wallpapering at home and had really been persistent for the 
 
            four weeks without relief.  Dr. Durward made a principle 
 
            diagnosis of right mild myofascial shoulder pain and 
 
            secondary problems with right carpal tunnel syndrome and 
 
            right occipital neuralgia.  Claimant had a series of tests 
 
            done October 4, 1988, which were normal.  On October 5, 
 
            1988, Dr. Durward concluded that claimant was inflicted with 
 
            two syndromes, myofascial pain syndrome affecting the right 
 
            shoulder and some right carpal tunnel syndrome.
 
            
 
                 20. On November 7, 1988, claimant was seen by Mark E. 
 
            Wheeler, M.D.  After an examination, he found that claimant 
 
            had full range of motion in the shoulder.  He noted that she 
 
            was negative for impingement syndrome and that her x-rays 
 
            were normal.  He concluded that claimant did not have a 
 
            shoulder pathology.  He felt that most of her pain radiation 
 
            into the shoulder and scapular area was related to her 
 
            original injury in June of 1986.  He found a normal right 
 
            shoulder with no rotator cuff tear.
 
            
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
                 21. Beginning in March of 1989, claimant received 
 
            extensive physical therapy for her myofascial pain syndrome.  
 
            The therapy lasted until September of 1989.  By June of 
 
            1989, claimant had still not reached her maximum medical 
 
            improvement.  Dr. Durward indicated that claimant's clinical 
 
            symptoms of myofasical pain disorder and occipital neuralgia 
 
            combined with right carpal tunnel syndrome by history were 
 
            clearly work-related.(2)  
 
            
 
                 22. After extensive treatment during the summer of 
 
            1989, claimant was released to return to work on August 13, 
 
            1989.  Claimant was released to work for four hours.  
 
            Thereafter, claimant increased her work time so that by June 
 
            11, 1990, claimant was permitted to return to work for forty 
 
            hours per week.  She was restricted to this time limit per 
 
            week.
 
            
 
                 23. During early 1990, claimant continued to have neck, 
 
            shoulder and headache pain.  On March 6, 1990, claimant was 
 
            examined for neck shoulder pain by Leonel Herrera M.D.  Dr. 
 
            Herrera indicated that the neck pain had been improving with 
 
            physical therapy.  Dr. Herrera also indicated that 
 
            claimant's shoulder had a mild ligamentous injury and should 
 
            be evaluated by an orthopedic surgeon.  Dr. Herrera did 
 
            conclude that claimant has chronic pain syndrome, which will 
 
            not improve past March 6, 1990.  She has reached maximum 
 
            medical improvement with her pain syndromes and is fully 
 
            rateable.  Claimant was directed to continue with the 25 
 
            pound weight lifting restriction and a limited work 
 
            schedule.  Claimant was released to work into a regular work 
 
            shift.
 
            
 
                 24. On March 21, 1990, claimant was examined by Dr. 
 
            Durward and he concluded that claimant has chronic 
 
            myofascial pain despite excellent prolonged conservative 
 
            treatment.  He felt that claimant needed to use physical 
 
            therapy for maintenance up to twice a week to treat this 
 
            condition.  Additionally, he noted that claimant has mild 
 
            carpal tunnel syndrome.  However, he also concluded that the 
 
            carpal tunnel syndrome was not related to her work injuries.  
 
            He assigned a five percent functional impairment rating to 
 
            claimant based on the chronic pain syndrome from neck 
 
            strain.
 
            
 
                 25. Even after claimant received her rating, she 
 
            continued to complain of pain in her neck and shoulder area.  
 
            On April 9, 1990, claimant's restrictions were reduced from 
 
            25 pound weight limit to 20 pound weight restriction.  
 
            Throughout the summer of 1990, claimant's pain complaints 
 
            did not abate.  She was restricted to working a 40 hour work 
 
            week but she continued to suffer from chronic pain syndrome.  
 
            Further MRI studies were done in August of 1990.  These 
 
            studies indicated that claimant suffered from mild 
 
            spondylosis of the cervical spine with no disc herniation 
 
            and no cervical cord imperfections.
 
            
 
                 26. During September of 1990, claimant was again 
 
            treated for pain relief.  In October, claimant was still 
 
            complaining of recurrent right suboccipital headaches and 
 
            chronic pain in the right suboccipital area.  Dr. Durward 
 
            (2).  Dr. Durward's own report is inconsistent on the point 
 
            of whether the carpal tunnel syndrome is work related or not 
 
            work related.  Claimant does not believe that the carpal 
 
            tunnel syndrome is work-related.  The medical report 
 
            authored by Dr. Durward supports this conclusion.  
 
            Claimant's continuing complaints regarding carpal tunnel 
 
            syndrome were triggered by a wallpapering event in her home 
 
            and did not arise in the course of her employment.
 
            
 
            
 
            Page   8
 
            
 
            
 
            
 
            
 
            concluded that the nerve had become re-entraped and that a 
 
            second decompression surgery was necessary.  Claimant had 
 
            this surgery on November 7, 1990 with good success.  
 
            Claimant was released to return to work on November 26, 
 
            1990.
 
            
 
                 27. On December 3, 1990, Dr. Durward continued 
 
            claimant's weight lifting restriction of 20 pounds.  
 
            Additionally, Dr. Durward advised that claimant should avoid 
 
            working in intensive care and on the geriatric floor and to 
 
            avoid other physically demanding areas.  He limited her work 
 
            week to 40 hours.  Since her release to work in November of 
 
            1990, claimant has continued to work at Cherokee Mental 
 
            Health.  Throughout the history of this injury, claimant's 
 
            wages have gone up.  At the time of hearing, claimant was 
 
            earning $12.73 per hour.
 
            
 
                 28. At some point after claimant suffered the first 
 
            injury, claimant executed a supplemental benefit form that 
 
            indicated that she was willing to use her sick leave and 
 
            other leave time to supplement her worker's compensation 
 
            benefit payments.  Exhibit 19 includes pay stubs that 
 
            claimant had for the pay periods between December 23, 1988 
 
            and July 6, 1989.  During this period of time, claimant was 
 
            paid a regular base pay of $855.20 bi-weekly.  The check 
 
            stubs show that there were some variations in the payments 
 
            that claimant received.  For example, for the pay period of 
 
            June 9, 1989 to June 22, 1989, claimant had a base pay of 
 
            $227.83.  For the pay period beginning June 23, 1989 to July 
 
            6, 1989, claimant had a base pay of $483.39.  For the 
 
            periods of time claimant's check was below the base wage, 
 
            claimant's pay stubs also reflect that she had a negative 
 
            balance of vacation days and a very low sick leave reserve.  
 
            It should also be noted that during this time period, 
 
            claimant continued to accumulate sick leave and vacation 
 
            time even when she was not working.
 
            
 
                 29. During 1990, claimant was paid a base salary of 
 
            $922.93.  No deductions for a workers' compensation were 
 
            made because claimant had vacation and sick leave available 
 
            for her use.  Claimant's healing period for all three 
 
            injuries ended on March 20, 1990.  After that date, claimant 
 
            was entitled to permanency payments if she had sustained an 
 
            industrial loss.  The defendants paid claimant 25 weeks of 
 
            benefits for an industrial loss of 5%.  The twenty five week 
 
            period ended on September 11, 1990.  For the pay period 
 
            beginning August 31, 1990 and ending September 13, 1990, no 
 
            deduction was made.  Claimant was paid $1,018.40 for the 
 
            bi-weekly pay period.  Additionally, claimant was paid 
 
            $1,018.40 for the pay period ending on September 27, 1990.  
 
            Likewise, claimant was paid the same amount for the pay 
 
            period that began December 7, 1990 and ended December 20, 
 
            1990.
 
            
 
                 30. In the briefs submitted by defendants and claimant, 
 
            the parties were asked to summarize the information that was 
 
            contained in Exhibit 23 regarding the claim for lost healing 
 
            period benefits.  After the analysis was completed, the 
 
            defendants indicated that the claimant could purchase 92 
 
            hours of sick leave for $367.63.  The value of this 
 

 
            
 
            Page   9
 
            
 
            
 
            
 
            
 
            repurchase option is approximately $4.00 per hour for the 
 
            benefit hours the claimant used.
 
            
 
                 31. From October 9, 1990 and thereafter, claimant 
 
            recorded mileage to Dr. Durward's office, the State 
 
            Vocational Rehabilitation counselor, Marian Health Center, 
 
            and St. Luke's Hospital for various services.  Claimant 
 
            drove a total 1,200 miles which at the time of hearing had 
 
            not been reimbursed.
 
            
 
                 32. Exhibit 14 indicates that claimant made a $243 
 
            payment to Dr. Kennedy and another $200.60 payment to Dr. 
 
            Robert J. Fiser for services rendered during 1989 and 1987 
 
            respectively.  Claimant seeks reimbursement for these 
 
            expenses.  No other medical bills were outstanding at the 
 
            time of the hearing.
 
            
 
                 33. Since claimant was released to return to work, she 
 
            has missed no work due to the series of injuries that she 
 
            suffered in 1986, 1987 and 1988.  Presently, claimant 
 
            indicated that she is no longer able to participate in 
 
            recreational activities including snowmobiling, sledding, 
 
            roller skating, fishing, and bowling.  Claimant also has 
 
            difficulty with simple housekeeping tasks and is not able to 
 
            do outside maintenance including mowing, raking, and 
 
            shoveling snow.  Additionally, claimant is foreclosed from 
 
            any overtime work at her place of employment.
 
            
 
                 34. Claimant was evaluated by a vocational 
 
            rehabilitation specialist who did nothing to place claimant 
 
            in a different job but merely speculated as to what would 
 
            happen in the event claimant lost her job with Cherokee 
 
            Mental Health Institute.  Since claimant is employed, the 
 
            vocational rehabilitation specialist report is too 
 
            speculative to be relied upon as an accurate measure of 
 
            claimant's industrial loss and will be accorded little 
 
            weight.
 
            
 
                                CONCLUSIONS OF LAW
 
            
 
                 1.  Whether a causal relationship exists between 
 
            claimant's claimed injuries and the claimed disability and 
 
            the nature and extent of any entitlement to benefits, if 
 
            any.
 
            
 
                 Claimant contends that she has suffered a permanent 
 
            disability from her work related injuries that entitle her 
 
            to a substantial industrial award.  Cherokee and the State 
 
            contend that claimant has not suffered a permanent loss and 
 
            that she has been fully compensated for the injuries that 
 
            she has suffered.
 
            
 
                 The claimant has the burden of proving by a 
 
            preponderance of the evidence that the injuries of June 21, 
 
            1986,  May 22, 1987 and February 4, 1988, are causally 
 
            related to the disability on which she now bases her claim.  
 
            Bodish v. Fischer, Inc., 133 N.W.2d 867, 868 (Iowa 1965);  
 
            Lindahl v. L. O. Boggs, 18 N.W.2d 607, 613-14 (Iowa 1945).  
 
            A possibility is insufficient; a probability is necessary.  
 
            Burt v. John Deere Waterloo Tractor Works, 73 N.W.2d 732, 
 

 
            
 
            Page  10
 
            
 
            
 
            
 
            
 
            738 (Iowa 1955).  The question of causal connection is 
 
            essentially within the domain of expert testimony.  Bradshaw 
 
            v. Iowa Methodist Hospital, 101 N.W.2d 167, 171 (Iowa 1960). 
 
            
 
                 Expert medical evidence must be considered with all 
 
            other evidence introduced bearing on the causal connection.  
 
            Burt, 73 N.W.2d at 738.  The opinion of the experts need 
 
            not be couched in definite, positive or unequivocal 
 
            language.  Sondag v. Ferris Hardware, 220 N.W.2d 903, 907 
 
            (Iowa 1974).  Moreover, the expert opinion may be accepted 
 
            or rejected, in whole or in part, by the trier of fact.  
 
            Sondag, 220 N.W.2d at 907.  Finally, 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 material circumstances.  Bodish, 133 N.W.2d 
 
            at 870; Musselman, 154 N.W.2d at 133.  The Supreme Court has 
 
            also observed that greater deference is ordinarily accorded 
 
            expert testimony where the opinion necessarily rests on 
 
            medical expertise.  Sondag, 220 N.W.2d at 907.
 
            
 
                 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, 76 N.W.2d 756, 
 
            760-61 (Iowa 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. Gosek v. Garmer and Stiles 
 
            Co., 158 N.W.2d 731, 737 (Iowa 1968);  Barz v. Oler, 133 
 
            N.W.2d 704, 707 (Iowa 1965); Olson v. Goodyear Service 
 
            Stores, 125 N.W.2d 251, 256 (Iowa 1963); Nicks v. Davenport 
 
            Produce Co., 115 N.W.2d 812, 815 (Iowa 1962);  Yeager v. 
 
            Firestone Tire & Rubber Co., 112 N.W.2d 299, 302 (Iowa 
 
            1961); Ziegler v. United States Gypsum Co., 106 N.W.2d 591, 
 
            595 (Iowa 1960); Almquist v. Shenandoah Nurseries, 254 N.W. 
 
            35,38 (Iowa 1934).  Additionally, in order for an 
 
            aggravation of a preexisting condition to be compensable, 
 
            the aggravation should be material.  Yeager, 112 N.W.2d at 
 
            302.
 
            
 
                 The medical evidence is sufficient to support a finding 
 
            that the claimant has suffered a permanent impairment.  The 
 
            first injury was the proverbial straw that caused claimant 
 
            to have significant medical problems with her neck, shoulder 
 
            and head.  Previously, claimant had been struck by patients 
 
            with no ill effect.  The blow struck in June of 1986 
 
            resulted in a permanent disability.(3)  The second injury 
 
            aggravated the pre-existing shoulder and neck condition.  
 
            The last injury also aggravated claimant's shoulder pain and 
 
            resulted in two occipital nerve decompression surgeries.  As 
 
            a result of these injuries, claimant cannot lift more than 
 
            twenty pounds and she is limited to a 40 hour work week.  
 
            Claimant's injuries have left her eligible for sedentary to 
 
            light work.  Claimant also has a 5% functional impairment 
 
            due to chronic pain.
 
            
 
                 Where 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., 258 N.W.2d 899, 902 (Iowa 1935) as loss of 
 
            (3).  Dr. Durward, one of claimant's many treating 
 
            physicians, indicated that the root cause of claimant's 
 
            complaints were caused by traumatic injuries suffered on the 
 
            job.
 
            
 
            
 
            Page  11
 
            
 
            
 
            
 
            
 
            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 person.  The essence 
 
            of an earning capacity inquiry then, is not how much has the 
 
            claimant been functionally impaired, but whether that 
 
            impairment, in combination with the claimant's age, 
 
            education, work experience, pre and post injury wages, 
 
            motivation and ability to get a job within her restrictions, 
 
            if any restrictions have been imposed, have caused a loss of 
 
            earning capacity.  Olson v. Goodyear Service Stores, 125 
 
            N.W.2d 251, 257 (Iowa 1963); Diederich v. Tri-City Railway 
 
            Co., 258 N.W. 899, 902 (Iowa 1935);  Peterson v. Truck Haven 
 
            Cafe, Inc., 1 Iowa Industrial Comm'r Dec. No. 3, 654, 658 
 
            (1985); Christensen v. Hagen, Inc., 1 Iowa Industrial Comm'r 
 
            Dec. No. 3, 529, 534-535 (1985). 
 
            
 
                 There are no weighting guidelines that indicate how 
 
            each of the factors are to be considered.  There is no 
 
            equation which can be applied and then calculated to 
 
            determine the degree of industrial disability to the body as 
 
            a whole.  It therefore becomes necessary for the deputy or 
 
            commissioner to draw upon prior experience and general and 
 
            specialized knowledge to make a finding with regard to the 
 
            degree of industrial disability.  See, Peterson, 1 Iowa 
 
            Industrial Commissioner Decisions No. 3, at 658; 
 
            Christening, 1 Iowa Industrial Commissioner Decisions No. 
 
            3, at 535.
 
            
 
                 In order to accurately analyze claimant's various 
 
            injuries and the effect each has had on claimant's earning 
 
            capacity, the injuries must be separated at this point.  
 
            After the first injury, claimant was able to return to work 
 
            and work a full shift with a 25 pound lifting restriction.  
 
            Claimant had no functional impairment as a result of this 
 
            incident however.  Claimant was relatively young and her 
 
            industrial disability is not as serious as it would be for 
 
            an older employee. Mccoy v. Donaldson Company, Inc., 1 IWAC 
 
            Decisions of the Iowa Industrial Commissioner 400, 405 
 
            (Appeal 1989); Walton v. B & H Tank Corp., II Iowa 
 
            Industrial Commissioner Report 426, 429 (Arb. 1981); Becke 
 
            v. Turner-Busch, Inc., 34 Biennial Report Iowa Industrial 
 
            Commissioner 34, 36 (Appeal 1979).  Claimant's employer has 
 
            put her back to work as an LPN in a capacity suited to her 
 
            restrictions.  Claimant has a high school education and some 
 
            college courses.  Based upon the foregoing factors, all of 
 
            the factors used to determine industrial disability, and 
 
            employing agency expertise, it is determined that claimant 
 
            sustained a seven percent industrial disability for the 
 
            first injury.  
 
            
 
                 After the second injury, claimant was able to return to 
 
            work with the same restrictions.  She was working full time 
 
            and earning the same wage or more as she had before she was 
 
            attacked.  No doctor gave claimant a functional impairment 
 
            rating as a result of the second injury.  There is no other 
 
            evidence in the record indicating that claimant's ability to 
 
            earn had been compromised.  Consequently, claimant will take 
 
            nothing for the second claim.  
 
            
 
                 As a result of the third injury, claimant urges that 
 

 
            
 
            Page  12
 
            
 
            
 
            
 
            
 
            she is entitled to a substantial industrial disability, 
 
            largely based on the report of the vocational rehabilitation 
 
            specialist in evidence as Exhibit 15.  This report 
 
            speculates that claimant will have a substantial loss of 
 
            earning capacity if she is not working for Cherokee.  
 
            However, claimant is still working at that facility and has 
 
            not lost her job.  Again, claimant's hourly wage has 
 
            increased and she will receive another wage increase pending 
 
            the outcome of litigation between her union and the State.  
 
            Claimant's industrial loss must be measured by her current 
 
            circumstances rather than guessing what the future might 
 
            hold.  See, Burt v. John Deere Waterloo Tractor Works, 73 
 
            N.W.2d 732, 737-38 (Iowa 1955) (The findings of the 
 
            commissioner must be based on testimony that tends to 
 
            establish facts or upon proper inferences that may be drawn 
 
            therefrom.  The findings cannot be predicated upon 
 
            conjecture, speculation or mere surmise.)  Claimant's 
 
            circumstances have not substantially changed since the first 
 
            injury.  She has more restrictions by way of lifting limits 
 
            and she was found to be functionally impaired.  However 
 
            claimant's functional impairment is related only to her 
 
            subjective pain complaints.  Pain that is not supported by 
 
            clinical findings is not a substitute for impairment.  
 
            Waller v. Chamberlain Manufacturing, II Iowa Industrial 
 
            Commissioner Report 419, 425 (1981); Fernandez v. Good 
 
            Samaritan Nursing Center, No. 856640, Slip op. at 15 (Iowa 
 
            Ind. Comm'r Arb. February 27, 1991).  Moreover, claimant's 
 
            pain has not prevented her from working.  
 
            
 
                 On the other hand, claimant has restrictions that have 
 
            affected her earning capacity.  She can lift only 20 pounds 
 
            and she is limited to a 40 hour work week.  Based upon the 
 
            foregoing factors, all of the factors used to determine 
 
            industrial disability, and employing agency expertise, it is 
 
            determined that claimant sustained a ten percent industrial 
 
            disability for the third injury.(4)  
 
            
 
                 Claimant's next contention is that she is still owed 
 
            healing period benefits or other benefits for the time that 
 
            she was away from work while receiving care for her neck, 
 
            shoulder and head.  Defendants urge that claimant agreed to 
 
            the pay arrangement that was established at the outset of 
 
            claimant's injury period, where claimant supplemented her 
 
 
 
            (4).  This series of injuries is not suitable for 
 
            apportionment since an apportionment theory is limited in 
 
            its application.  Varied Industries v. Sumner, 353 N.W.2d 
 
            407, 411 (Iowa 1984).  The court held that apportionment is 
 
            only appropriate where claimant is suffering from a prior 
 
            injury or illness, unrelated to claimant's employment which 
 
            independently produces some ascertainable portion of the 
 
            ultimate industrial disability.  In Bearce v. FMC 
 
            Corporation, 465 N.W.2d 531 (Iowa 1991), the court indicated 
 
            that no apportionment should be considered where the earlier 
 
            injuries had no effect on earning capacity.  The Court was 
 
            again considering the effect of a non work related injury 
 
            and a work related injury.  Since this is not the case in 
 
            these disputes, apportionment was not appropriate.
 
            
 
            
 
            Page  13
 
            
 
            
 
            
 
            
 
            worker's compensation payments by using her sick leave, 
 
            vacation time and compensatory time to make up the 
 
            difference between the amount worker's compensation pays and 
 
            claimant's actual wage.  
 
            
 
                 Healing period benefits may be characterized as that 
 
            period during which there is a reasonable expectation of 
 
            improvement of a disabling condition and ends when maximum 
 
            medical improvement is reached. Armstrong Tire and Rubber 
 
            Co. v. Kubli, 312 N.W.2d 60, 65 (Iowa Ct. App. 1981).  In 
 
            discussing the concept of healing period as contemplated by 
 
            Iowa Code Section 85.34(1) (1991) the Kubli Court observed 
 
            that recuperation refers to that condition in which healing 
 
            is complete and the extent of the disability can be 
 
            determined. Kubli, 312 N.W.2d at 65.  The healing period 
 
            generally terminates at the time the attending physician 
 
            determines that the employee has recovered as far as 
 
            possible from the effects of the injury. Kubli, 312 N.W.2d 
 
            at 65.
 
            
 
                 In this instance, the parties have agreed that 
 
            permanent benefits should begin is March 21, 1990.  
 
            Consequently, healing period benefits ended on March 20, 
 
            1990.  Claimant was then paid 25 weeks of permanency for any 
 
            one of the three injuries.  After a careful review of 
 
            claimant's pay stubs and listening to claimant explain that 
 
            she used her vacation, sick leave and comp time to 
 
            supplement her wages, it is clear from the record that the 
 
            State did not supplant its obligation to pay claimant 
 
            healing period benefits with claimant's various forms of 
 
            leave.  The value of claimant's leave time totals $3,517.54.  
 
            Claimant was paid $14,696.55 during the period between 
 
            January 6, 1989 and December 20, 1990.  The value of the 
 
            healing period benefits equaled $10,047.56.  Claimant 
 
            received both the value of her leave time and the value of 
 
            her healing period benefits.
 
            
 
            
 
            Page  14
 
            
 
            
 
            
 
            
 
            Consequently, claimant is entitled to no further payments 
 
            for healing period benefits.(5)
 
            
 
                 2.  Whether claimant is entitled to medical benefits, 
 
            including a determination of causal connection to the work 
 
            injury and the causal connection of this condition to a work 
 
            injury.
 
 
 
                 Claimant also seeks payment for services rendered by 
 
            Dr. Feser, an optometrist.  Claimant has the burden of 
 
            demonstrating that the medical services obtained were 
 
            causally related to the injury in order to have the expenses 
 
            reimbursed or paid.  Auxier v. Woodward State Hospital, 266 
 
            N.W.2d 139, 144 (1978).  Under Iowa Code Section 85.27(1991) 
 
            an employer has the responsibility to provide an injured 
 
            worker with reasonable medical care and has the right to 
 
            select the care the worker will receive.  
 
            
 
                 In the report issued by Dr. Feser he indicates that 
 
            claimant's eye problems are possibly related to the work 
 
            injury.  A possibility is insufficient; a probability is 
 
            necessary.  Burt v. John Deere Waterloo Tractor Works, 73 
 
            N.W.2d 732, 738 (Iowa 1955).  The question of causal 
 
            connection is essentially within the domain of expert 
 
            testimony.  Bradshaw v. Iowa Methodist Hospital, 101 N.W.2d 
 
            167, 171 (Iowa 1960).  Since claimant has failed to show 
 
            that the medical services obtained from Dr. Feser are 
 
            related to the injuries claimant suffered at work claimant 
 
            is not entitled to reimbursement for these services.
 
            
 
                 In order for the employer to be held responsible for 
 
            claimant's medical expenses, claimant must show that the 
 
            treatment sought was either of an emergency nature or was 
 
            authorized.  Templeton v. Little Giant Crane & Shovel, 1 
 
            Iowa Industrial Commissioner Decisions No. 3, 702, 704 (App. 
 
            1985).  An employee may engage medical services if the 
 
            employer has expressly or impliedly conveyed to the employee 
 
            the impression that the employee has authorization to 
 
            proceed in this fashion.  2 Larson's Workmen's Compensation 
 
            Section 61.12(g) (1990).  Claimant has made no such showing 
 
            in connection with the other bill that is in contention; the 
 
            bill from Dr. Kennedy for chiropractic services.  Dr. 
 
            Kennedy was not an authorized physician and he did not 
 
            improve the claimant's condition.  Claimant is not entitled 
 
            to reimbursement for these charges.  
 
            
 
                 Claimant is also claiming mileage in the amount of 1200 
 
            miles for travel to and from the hospital, doctors' offices 
 
            and physical therapy.  This travel was required for 
 
            claimant's ongoing medical care related to workplace 
 
            injuries and should be reimbursed accordingly.  
 
            
 
                                      ORDER
 
            (5).
 
            Period                Sick      Vac.    Comp   Absent  
 
            Hourly Wage    Total
 
            
 
            1-6-89/7-6-90      118.74    74.24   69.96   5.68      
 
            $10.69      $2,871.55
 
            7-6-90/7-19-90       6.49     1.51                        
 
            $11.53         $92.24
 
            8-31-90/9-27-90     27.18     0.32                       
 
            $12.73        $350.08
 
            12-7-90/12-20-90     4.93     4.66           6.41        
 
            $12.73        $203.68
 
            TOTAL              157.34    80.73   69.96  12.09                   
 
            $3,517.54
 
            
 
            State Paid During period:      $14,696.55
 
            Value of Leave Time:           ($3,517.54)
 
            Credit/Debit                   $11,179.01
 
            
 
            Value of HP Benefits           $10,047.56  (39.5713 Weeks @ 
 
            $253.91)
 
            Over/under payment              $1,131.45  (Over payment 
 
            11,179.01 - 10, 047.56)
 
            
 
            
 
            Page  15
 
            
 
            
 
            
 
            
 
            
 
                 THEREFORE, it is ordered:
 
            
 
                 1.  Cherokee and the State of Iowa shall pay to 
 
            claimant permanent partial disability benefits for injuries 
 
            to claimant's head, neck and shoulders as follows:
 
            
 
                 Date of Injury            Rate           Industrial 
 
            Loss
 
                 June 21, 1986           $219.90                7%
 
                 May 22, 1987            $238.52                0%
 
                 February 4, 1988        $253.91               10%
 
            
 
            Payment will commence as of March 21, 1990.  As these 
 
            benefits have accrued, they shall be paid in a lump sum 
 
            together with statutory interest thereon pursuant to Iowa 
 
            Code section 85.30 (1991).
 
            
 
                 2.  Cherokee and the State of Iowa shall have a credit 
 
            in the amount of twenty-five (25) weeks at the rate of two 
 
            hundred nineteen and 90/100 dollars ($219.90) per week 
 
            against any amounts owed.  Additionally, Cherokee and the 
 
            State of Iowa shall have a credit for two thousand four 
 
            hundred seventy-one and 35/100 dollars ($2,471.35) for 
 
            non-occupational benefits paid to claimant.
 
            
 
                 3.  The costs of this action shall be assessed to 
 
            Cherokee and the State of Iowa pursuant to rule 343 IAC 
 
            4.33.
 
            
 
                 4.  Cherokee and the State of Iowa shall pay to 
 
            claimant two hundred fifty-two dollars ($252.00) for mileage 
 
            incurred by claimant to travel to and from medical treatment 
 
            necessitated by her work injuries.
 
            
 
                 5.  Cherokee and the State of Iowa shall file claim 
 
            activity reports as required by rule 343 IAC 3.1.
 
            
 
                 Signed and filed this ____ day of November, 1991.
 
            
 
            
 
            
 
            
 
                                          
 
                                        ________________________________
 
                                          ELIZABETH A. NELSON
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr Daryl L Hecht
 
            Attorney at Law
 
            614 Pierce Street
 
            PO Box 27
 
            Sioux City Iowa 51102
 
            
 
            Mr Charles S Lavorato
 
            Assistant Attorney General
 
            Tort Claims Division
 
            Hoover State Office Building
 

 
            
 
            Page  16
 
            
 
            
 
            
 
            
 
            Des Moines Iowa 50319
 
            
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                      5-1802; 5-1803
 
                      Filed November 27, 1991
 
                      ELIZABETH A. NELSON
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
                      :
 
            SHIRLEY KORLESKI,   :
 
                      :
 
                 Claimant, :
 
                      :
 
            vs.       :      File No. 826734
 
                      :               877046
 
            CHEROKEE MENTAL HEALTH   :               877047
 
            INSTITUTE,     :
 
                      :    A R B I T R A T I O N
 
                 Employer, :
 
                      :      D E C I S I O N
 
            and       :
 
                      :
 
            STATE OF IOWA, :
 
                      :
 
                 Insurance Carrier,  :
 
                 Defendants.    :
 
            ___________________________________________________________
 
            
 
            5-1802
 
            Claimant was not owed more healing period benefits.  
 
            Claimant signed a supplemental payment agreement so that she 
 
            would receive her full wage while she was not working.  She 
 
            continued to accrue vacation and sick leave even though she 
 
            was not working.  Claimant received all of her healing 
 
            benefits according to the evidence submitted.  No other 
 
            benefits were awarded.
 
            
 
            5-1803
 
            Claimant suffered three injuries in three years arising out 
 
            of and in the course of her employment.  Claimant was a high 
 
            school graduate, aged 36 at the time of hearing.  Claimant 
 
            is a licensed practical nurse.  As a result of her injuries, 
 
            claimant has a lifting restriction of 20 pounds.  She is 
 
            working at the same job with different duties for more 
 
            money.  She is restricted to a 40 hour work week.  As a 
 
            result of the first injury she suffered an industrial loss 
 
            of seven percent.  Claimant took nothing for the second 
 
            injury as no industrial loss was shown.  Claimant suffered 
 
            an industrial loss of ten percent as a result of the third 
 
            injury.
 
            
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            RAFAEL LEZA,                  :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :      File No. 826799
 
            H. J. HEINZ,                  :
 
                                          :    A R B I T R A T I O N
 
                 Employer,                :
 
                                          :       D E C I S I O N
 
            and                           :
 
                                          :
 
            LIBERTY MUTUAL INSURANCE      :
 
            COMPANY,                      :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
            
 
                              statement of the case
 
            
 
                 This is a proceeding in arbitration brought by Rafael 
 
            Leza, claimant, against H. J. Heinz, employer (hereinafter 
 
            referred to as Heinz), and Liberty Mutual Insurance Company, 
 
            insurance carrier, defendants, for workers' compensation 
 
            benefits as a result of an alleged injury on June 25, 1986.  
 
            On May 7, 1991, a hearing was held on claimant's petition 
 
            and the matter was considered fully submitted at the close 
 
            of this hearing.
 
            
 
                 The parties have submitted a prehearing report of 
 
            contested issues and stipulations which was approved and 
 
            accepted as a part of the record of this case at the time of 
 
            hearing.  Oral testimony and written exhibits were received 
 
            during the hearing from the parties.  The exhibits received 
 
            into the evidence are listed in the prehearing report.
 
            
 
                 According to the prehearing report, the parties have 
 
            stipulated to the following matters:
 
            
 
                 1.  On June 25, 1986, claimant received an injury which 
 
            arose out of and in the course of his employment with Heinz.
 
            
 
                 2.  Claimant's entitlement to temporary total 
 
            disability or healing period benefits has been paid to 
 
            claimant prior to hearing.
 
            
 
                 3.  If the injury is found to have caused permanent 
 
            disability, the type of disability is an industrial 
 
            disability to the body as a whole.
 
            
 
                 4.  If permanent partial disability benefits are 
 
            awarded, they shall begin as of October 13, 1986.
 
            
 
                 5.  Claimant's rate of weekly compensation shall be 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            $301.51.
 
            
 
                 6.  All requested medical benefits have been or will be 
 
            paid by defendants.
 
            
 
                                      issue
 
            
 
                 The only issue submitted by the parties for 
 
            determination in this proceeding is the extent of claimant's 
 
            entitlement to permanent disability benefits.
 
            
 
                                 findings of fact
 
            
 
                 Having heard the testimony and considered all the 
 
            evidence, the deputy industrial commissioner finds as 
 
            follows:
 
            
 
                 A credibility finding is necessary to this decision as 
 
            defendants place claimant's credibility at issue during 
 
            cross-examination as to the nature and extent of the injury 
 
            and disability.  From his demeanor while testifying, 
 
            claimant is found credible.
 
            
 
                 Claimant has worked for Heinz for the last 17 years and 
 
            continues to do so at the present time.  Throughout this 
 
            employment, claimant has worked as a maintenance mechanic.  
 
            In this job, claimant utilizes welding skills he acquired in 
 
            a welding course at a local community college in 1973 for 
 
            which he received a certificate.  Claimant was earning 
 
            $11.22 per hour in his job at the time of the injury.  
 
            Claimant continues at Heinz at the present time as a 
 
            maintenance mechanic and is earning at the present time 
 
            $12.40 per hour, the normal rate for a maintenance mechanic 
 
            of claimant's status.
 
            
 
                 Claimant's work injury in June 1986 occurred as a 
 
            result of a fall approximately five foot from a catwalk onto 
 
            a concrete floor.  Claimant suffered a skull fracture and a 
 
            brain concussion as a result of the fall.  Claimant also has 
 
            suffered upper back and neck pain as well as low back and 
 
            left leg pain since the fall.  As a result of the fall and 
 
            the head injury, claimant suffered post-traumatic or 
 
            post-concussion syndrome with a multitude of complaints.  
 
            His most predominant complaint is the intermittent 
 
            occurrence of severe headaches while at work.  This is 
 
            aggravated by noise and stress at work.  Claimant is notably 
 
            irritable and has been since the injury.  Claimant also 
 
            suffers symptoms of ear ringing; a runny nose sensation in 
 
            his nose; and, an inability to sleep.  This is all due to 
 
            the post-traumatic syndrome based upon the views of 
 
            claimant's only treating neurosurgeon, John Van Gilder, M.D.  
 
            Dr. Van Gilder is a professor and head of the Neurosurgery 
 
            Department at the University of Iowa Hospitals and Clinics 
 
            in Iowa City, Iowa.  Claimant also suffers from upper and 
 
            lower vertebrae injuries and continued pain.
 
            
 
                 As a result of the work injury of June 25, 1986, 
 
            claimant has suffered a five percent permanent partial 
 
            impairment to the body as a whole.  Also, claimant is 
 
            permanently restricted from physical activity consisting of 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            no lifting over 50 pounds and no climbing of high ladders 
 
            excessively.  This finding is based upon the opinions of Dr. 
 
            Van Gilder.  An opinion that claimant could eventually 
 
            recover was made by another neurosurgeon in February 1988.  
 
            However, the idea that claimant would recover was also the 
 
            view of Dr. Van Gilder until he issued his opinion on 
 
            permanency in May 1990.  Defendants argue that Dr. Van 
 
            Gilder's opinion is only based upon claimant's subjective 
 
            complaints.  However, as claimant is found credible, a 
 
            rating based upon his complaints is also credible.  
 
            Furthermore, there was evidence that claimant had suffered 
 
            from reoccurring headaches for a period of two months in 
 
            1980 but there was no evidence suggesting that these 
 
            complaints continued after that time.
 
            
 
                 As a result of the work injury of June 25, 1986, and as 
 
            a result of the permanent partial impairment and work 
 
            restrictions, claimant has suffered only a mild 10 percent 
 
            loss of earning capacity.  Claimant's medical condition 
 
            before the work injury was very good and he had no 
 
            functional impairments or ascertainable disabilities.  
 
            Claimant was able to fully perform physical tasks involving 
 
            heavy lifting and was free to climb ladders.  Claimant is 
 
            substantially restricted from these activities at the 
 
            present time.  However, claimant's employer has accommodated 
 
            for claimant's disability and has returned him to work 
 
            despite the restrictions and continued complaints.  
 
            Therefore, it is unnecessary for claimant to seek vocational 
 
            rehabilitation and he has suffered no actual loss of 
 
            earnings.  Claimant is 47 years of age and has only very 
 
            limited schooling.  He has limited ability to read English 
 
            but adequately speaks English.  He has taught welding at a 
 
            community college to migrant workers having difficulty with 
 
            understanding the English language.  Claimant has suffered a 
 
            restricted access to the labor market.  On the other hand, 
 
            claimant's job at Heinz appears suitable and stable at the 
 
            present time.
 
            
 
                    
 
            
 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            conclusions of law
 
            
 
                 Claimant must establish by a preponderance of the 
 
            evidence the extent of weekly benefits for permanent 
 
            disability to which claimant is entitled.  As the claimant 
 
            has shown that the work injury was a cause of a permanent 
 
            physical impairment or limitation upon activity involving 
 
            the body as a whole, the degree of permanent disability must 
 
            be measured pursuant to Iowa Code section 85.34(2)(u).  
 
            However, unlike scheduled member disabilities, the degree of 
 
            disability under this provision is not measured solely by 
 
            the extent of a functional impairment or loss of use of a 
 
            body member.  A disability to the body as a whole or an 
 
            "industrial disability" is a loss of earning capacity 
 
            resulting from the work injury.  Diederich v. Tri-City 
 
            Railway Co., 219 Iowa 587, 593, 258 N.W. 899 (1935).  A 
 
            physical impairment or restriction on work activity may or 
 
            may not result in such a loss of earning capacity.  The 
 
            extent to which a work injury and a resulting medical 
 
            condition has resulted in an industrial disability is 
 
            determined from examination of several factors.  These 
 
            factors include the employee's medical condition prior to 
 
            the injury, immediately after the injury and presently; the 
 
            situs of the injury, its severity and the length of healing 
 
            period; the work experience of the employee prior to the 
 
            injury, after the injury and potential for rehabilitation; 
 
            the employee's qualifications intellectually, emotionally 
 
            and physically; earnings prior and subsequent to the injury; 
 
            age; education; motivation; functional impairment as a 
 
            result of the injury; and inability because of the injury to 
 
            engage in employment for which the employee is fitted.  Loss 
 
            of earnings caused by a job transfer for reasons related to 
 
            the injury is also relevant.  Olson v. Goodyear Service 
 
            Stores, 255 Iowa 1112, 1121, 125 N.W.2d 251, 257 (1963).  
 
            See Peterson v. Truck Haven Cafe, Inc., (Appeal Decision, 
 
            February 28, l985).
 
            
 
                 In this decision, it was found that claimant suffered a 
 
            loss of earning capacity despite a lack of showing of a loss 
 
            of actual earnings.  A showing that claimant had no loss of 
 
            actual earnings does not preclude a finding of industrial 
 
            disability.  See Michael v. Harrison County, Thirty-Fourth 
 
            Biennial Report, Iowa Industrial Commissioner 218, 220 
 
            (Appeal Decision 1979).
 
            
 
                 In the case sub judice, it was found that claimant has 
 
            suffered a 10 percent loss of earning capacity as a result 
 
            of the work injury.  Based upon such a finding, claimant is 
 
            entitled as a matter of law to 50 weeks of permanent partial 
 
            disability benefits under Iowa Code section 85.34(2)(u) 
 
            which is 10 percent of 500 weeks, the maximum allowable 
 
            number of weeks for an injury to the body as a whole in that 
 
            subsection.
 
            
 
                                      order
 
            
 
                 1.  Defendants shall pay to claimant fifty (50) weeks 
 
            of permanent partial disability benefits at the rate of 
 
            three hundred one and 51/l00 dollars ($301.51) per week from 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            October 13, 1986.
 
            
 
                 2.  Defendants shall receive credit for the twenty-five 
 
            (25) weeks of permanent partial disability previously paid.
 
            
 
                 3.  Defendants shall pay accrued weekly benefits in a 
 
            lump sum.
 
            
 
                 4.  Defendants shall pay interest on weekly benefits 
 
            awarded herein as set forth in Iowa Code section 85.30.
 
            
 
                 5.  Defendants shall pay the costs of this action 
 
            pursuant to rule 343 IAC 4.33, including reimbursement to 
 
            claimant for any filing fee paid in this matter.
 
            
 
                 6.  Defendants shall file activity reports on the 
 
            payment of this award pursuant to rule 343 IAC 3.l.
 
            
 
            
 
            
 
                 Signed and filed this ____ day of June, 1991.
 
            
 
            
 
            
 
            
 
            
 
                                          ______________________________
 
                                          LARRY P. WALSHIRE
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr. William J. Bribriesco
 
            Attorney at Law
 
            2407 18th St
 
            Suite 202
 
            Bettendorf  IA  52722
 
            
 
            Mr. Greg A. Egbers
 
            Attorney at Law
 
            600 Union Arcade Bldg
 
            111 E 3rd St
 
            Davenport  IA  52801
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                           5-1803
 
                           Filed June 20, 1991
 
                           LARRY P. WALSHIRE
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            RAFAEL LEZA,                  :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :      File No. 826799
 
            H. J. HEINZ,                  :
 
                                          :    A R B I T R A T I O N
 
                 Employer,                :
 
                                          :       D E C I S I O N
 
            and                           :
 
                                          :
 
            LIBERTY MUTUAL INSURANCE      :
 
            COMPANY,                      :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
            
 
            5-1803
 
            Extent of permanent disability benefits.
 
            
 
 
        
 
 
 
 
 
        
 
        
 
                    BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
        
 
        
 
        TONY L. BONE,
 
        
 
            Claimant,
 
                                                   File No. 826900
 
        vs.
 
                                                A R B I T R A T I O N
 
        PINEWOOD APARTMENTS,
 
                                                   D E C I S I O N
 
            Employer,
 
        
 
        and                                           F I L E D
 
        
 
        CNA INSURANCE COMPANIES,                     JUL 07 1989
 
            Insurance Carrier
 
                                             IOWA INDUSTRIAL 
 
        COMMISSIONER
 
        
 
        
 
        
 
                                 STATEMENT OF THE CASE
 
        
 
             This is a proceeding in arbitration brought by Tony L. Bone, 
 
             claimant, against Pinewood Apartments, employer (hereinafter 
 
             referred to as Pinewood), and CNA Insurance Companies, insurance 
 
             carrier, defendants, for workers' compensation benefits as a 
 
             result of an alleged injury on May 30, 1986. On November 18, 
 
             1988, a hearing was held on claimant's petition and the matter 
 
             was considered fully submitted at the close of this hearing.
 
        
 
            The parties have submitted a prehearing report of contested 
 
        issues and stipulations which was approved and accepted as a part 
 
        of the record of this case at the time of hearing. Oral 
 
        testimony was received during the hearing from claimant and his 
 
        wife Lisa. The exhibits received into the evidence at the hearing 
 
        are listed in the prehearing report.
 
        
 
            According to the prehearing report, the parties have 
 
        stipulated to the following matters:
 
        
 
            1. An employer-employee relationship existed between 
 
        Pinewood and claimant at the time of the alleged injury.
 
        
 
            2. Claimant's rate of weekly compensation in the event of 
 
        an award of weekly benefits from this proceeding shall be 
 
        $120.31.
 
        
 
             3. The involved medical providers would testify that the 
 
             medical bills they generated which were submitted by claimant at 
 
             hearing were fair and reasonable and defendants are not offering 
 
             contrary evidence. It was agreed that these expenses were 
 
             causally connected to the medical condition(s) upon which the 
 
             claim herein is based, but that the issue of their causal 
 
             connection to any work injury remains at issue.
 
        
 
                                      ISSUES
 
        
 
             The parties submitted the following issues for determination 
 
             in this proceeding:
 

 
        
 
 
 
 
 
        
 
              I. Whether claimant received an injury arising out of and 
 
             in the course of his employment at Pinewood;
 
        
 
              II. Whether there is a causal relationship between the 
 
             work injury and the claimed disability;
 
        
 
             III. The extent of claimant's entitlement to weekly 
 
             benefits for temporary total disability; and,
 
        
 
             IV. The extent of claimant's entitlement to medical 
 
             benefits. The issue of whether the injury caused any permanent 
 
             disability was bifurcated from this proceeding and if necessary 
 
             tried at a later date.
 
        
 
                                 STATEMENT OF FACTS
 
        
 
             The following is a brief statement highlighting some of the 
 
             more pertinent evidence presented. Whether or not specifically 
 
             referred to in this statement, all of the evidence received at 
 
             the hearing was independently reviewed and considered in arriving 
 
             at this decision. Any conclusions about the evidence received 
 
             contained in the following statement should be viewed as 
 
             preliminary findings of fact.
 
        
 
            Claimant testified that he worked for Pinewood as a painter 
 
        and maintenance man from February 19, 1986, until his termination 
 
        on June 13, 1986. According to Christine Whitesel, the assistant 
 
        property manager at Pinewood at the time of the alleged injury, 
 
        claimant was terminated for absenteeism although she was not 
 
        actually present when this was announced to claimant's wife.
 
        
 
            Claimant testified that he injured his right knee, hip, 
 
        shoulders and back on May 30, 1986, after slipping and falling 
 
        onto a cement sidewalk while leaving Pinewood for lunch. He said 
 
        that this fall was witnessed by his wife and a fellow employee, 
 
        Andrew Terry. Claimant's wife verified the fall in her 
 
        testimony. Andrew Terry's account of the incident was not offered 
 
        into the evidence in any manner. Claimant said that he and his 
 
        wife immediately reported the incident to his supervisor, Abe 
 
        McFadden, who inquired if claimant desired medical attention. 
 
        Claimant stated that he declined such medical treatment at that 
 
        time thinking the problem would subside. After lunch on the date 
 
        of injury, claimant said that he became very sore and did not 
 
        work the remainder of the day. Claimant explained that not all 
 
        of his absences are reflected on the time sheets as he received 
 
        comp time on several occasions which are not formerly recorded on 
 
        the time sheets.
 
        
 
             Claimant testified that he sought treatment from Broadlawns 
 
             Medical Center because he had no insurance and that Broadlawns 
 
             offered free care to needy persons. Hospital records indicated 
 
             that claimant first received treatment on June 10, 1986, for 
 
             right knee injury. At that time it is reported that claimant 
 
             described a fall at Pinewood six weeks earlier. Claimant 
 
             reported to the hospital staff that he continued working but that 
 
             the knee increasingly began to "lock up." Claimant also 
 
             complained at the time of low back and neck pain from the fall. 
 
             Claimant was given a work release slip for the next two days. 
 
             Claimant's wife testified that she gave the slip to Pinewood. 
 
             Claimant testified that he worked only half days for a period of 
 
             two consecutive days following his initial visit at Broadlawns. 
 
             Claimant was subsequently treated at Broadlawns for his right 
 
             knee complaints following an arthrogram which revealed a possible 
 
             meniscus tear and claimant received medication and physical 
 
             therapy for his upper and lower back pain. Claimant was referred 
 

 
        
 
 
 
 
 
             to the University of Iowa Hospitals in July of 1986. Claimant 
 
             testified that he did not go to this facility because he had no 
 
             medical insurance. On July 29, 1986, claimant's attorney sent a 
 
             letter to Pinewood demanding payment of his workers' compensation 
 
             claim for an injury on May 30, 1986.
 
        
 
            Claimant received treatment from a chiropractor, Roger 
 
        Nyberg, D.O., in January and February of 1987, for his back and 
 
        neck pain. Claimant was examined by an orthopedic surgeon, Peter 
 
        Wirtz, M.D., in April 1987. Dr. Wirtz opined that claimant's low 
 
        back and neck pain was due to muscle strain and he felt that 
 
        there was a possibility that claimant had a meniscus tear in his 
 
        right knee. Dr. Wirtz recommended an arthroscopy be performed to 
 
        finally diagnose his condition and there should be surgery if 
 
        necessary. Dr. Wirtz reported that he would causally connect 
 
        these conditions to the injury of May 1986, by history but stated 
 
        that claimant's injury was an aggravation of a prior knee 
 
        condition. However, at no time does Dr. Wirtz explain what he 
 
        meant by a prior injury and his only reference to the medical 
 
        records failed to indicate histories of a prior injury. Dr. 
 
        Wirtz, in one report, makes reference to a description of history 
 
        contained in the letter dated February 13, 1987. This letter was 
 
        not offered into evidence.
 
        
 
             Defendants dispute claimant's account of the injury. 
 
             Whitesel testified by deposition and stated that claimant had 
 
             called in sick during his employment before May 30, 1986, 
 
             complaining of knee problems from a prior gunshot wound to the 
 
             knee. A medical history contained in an x-ray report at 
 
             Broadlawns on June 10, 1986, also reports a history of a prior 
 
             gunshot wound to the knee. However, there is no mention of any 
 
             such gunshot wound contained in the histories taken by the 
 
             admitting nurse and physicians. Whitesel also testified that she 
 
             talked to other managers at Pinewood including McFadden and all 
 
             indicated that claimant had not reported any work injury to them.
 
        
 
            Claimant disputes the gunshot testimony of Whitesel. He 
 
        states that he was never shot in the knee at any time. 
 
        Claimant's wife likewise testified that she is unaware of any 
 
        gunshot wound to the knee. Dr. Wirtz reported that he found no 
 
        evidence of any such gunshot injury. With reference to the 
 
        actual injury date, claimant responded that he was simply unsure 
 
        of the injury date when he first sought medical attention.
 
        
 
            The appearance and demeanor of claimant and his wife at 
 
        hearing indicated that they were testifying truthfully.
 
        
 
                            APPLICABLE LAW AND ANALYSIS
 
        
 
                  I. Claimant has the burden of proving by a preponderance 
 
                  of the evidence that claimant received an injury which arose out 
 
                  of and in the course of employment. The words "out of" refer to 
 
                  the cause or source of the injury. The words "in the course of" 
 
                  refer to the time and place and circumstances of the injury. See 
 
                  Cedar Rapids Community Sch. v. Cady, 278 N.W.2d 298 (Iowa 1979); 
 
                  Crowe v. DeSoto Consol. Sch. Dist., 246 Iowa 402, 68 N.W.2d 63 
 
                  (1955). An employer takes an employee subject to any active or 
 
                  dormant health impairments, and a work connected injury which 
 
                  more than slightly aggravates the condition is considered to be a 
 
                  personal injury. Ziegler v. United States Gypsum Co., 252 Iowa 
 
                  613, 620, 106 N.W.2d 591 (1960) and cases cited therein.
 
        
 
             The facts in evidence in this case are admittedly confused. 
 
             Although claimant maintained that he was injured at the end of 
 
             May in 1986, he reported on more than one occasion to Broadlawns' 
 
             physicians that the injury occurred six weeks prior to his first 
 

 
        
 
 
 
 
 
             visit on June 10, 1986, which would place the injury date in the 
 
             first week of May 1986. It is quite clear that claimant is not a 
 
             good historian. However, claimant was consistent with the 
 
             general outline of his fall to physicians in all respects other 
 
             than the precise date. Therefore, given claimant's credible 
 
             appearance and demeanor and that of his wife, it will be found 
 
             that claimant did suffer an injury at Pinewood as related by him 
 
             and his wife in May of 1986.
 
        
 
             Defendants' contentions that the prior gunshot wound may 
 
             have caused the injury must be rejected. Dr. Wirtz, an 
 
             orthopedic surgeon found no evidence of such prior injury. The 
 
             single Broadlawns record must be in error as contended by 
 
             claimant. Admittedly, Whitesel's testimony conflicts with 
 
             claimant's regarding his admissions of a prior injury at work. 
 
             However, her credibility could not be assessed as she did not 
 
             testify live at hearing. Such testimony cannot be given the same 
 
             weight as live, credible testimony given by claimant and his 
 
             wife. Also, Whitesel's testimony is controverted by Dr. Wirtz.
 
        
 
            Therefore, on the whole record, the preponderance of the 
 
        credible evidence demonstrates that claimant suffered an injury 
 
        arising out of and in the course of employment sometime in May of 
 
        1986 when he fell on the sidewalk at Pinewood on his way to lunch 
 
        injuring his right knee, low back and upper neck.
 
        
 
             II. Defendants have raised the issue of lack of notice of 
 
             a work injury within 90 days from the date of the occurrence 
 
             under Iowa Code section 85.23. Lack of such notice is an 
 
             affirmative defense. DeLong v. Iowa State Highway Commission 229 
 
             Iowa 700 295 N.W. 91 (1940). In Reddick v. Grand Union Tea 
 
             Company, 230 Iowa 108, 296 N.W. 800 (1941), the Iowa Supreme 
 
             Court has ruled that once claimant sustains the burden of showing 
 
             that an injury arose out of and in the course of employment, 
 
             claimant prevails unless defendants can prove by a preponderance 
 
             of the evidence an affirmative defense. Although an employer may 
 
             have actual knowledge of an injury, actual knowledge requirement 
 
             under Iowa Code section 85.23 is not satisfied unless the 
 
             employer has information putting him on notice that the injury 
 
             may be work related. Robinson v. Department of Transp., 296 
 
             N.W.2d 809, 811 (Iowa 1980).
 
        
 
             In the case sub judice, the defendants have not shown that 
 
             they failed to receive timely 90 day notice. Even if we assume a 
 
             worse case scenario and choose the injury date reported by 
 
             claimant to his physicians on June 10, 1986 (6 weeks prior), the 
 
             injury date would fall within the first week of May 1986. 
 
             Claimant's attorney formally notified employer by letter dated 
 
             July 29, 1986, of his claim of a work injury. Defendants offered 
 
             no evidence to show that this letter was not timely postmarked or 
 
             that they failed to receive this letter within the 90 day period 
 
             following the injury.
 
        
 
             III. The claimant has the burden of proving by a 
 
             preponderance of the evidence that the work injury is a cause of 
 
             the claimed disability. A disability may be either temporary or 
 
             permanent. In the case of a claim for temporary disability, the 
 
             claimant must establish that the work injury was a cause of 
 
             absence from work and lost earnings during a period of recovery 
 
             from the injury. Generally, a claim of permanent disability 
 
             invokes an initial determination of whether the work injury was a 
 
             cause of permanent physical impairment or permanent limitation in 
 
             work activity. However, in some instances, such as a job 
 
             transfer caused by a work injury, permanent disability benefits 
 
             can be awarded without a showing of a causal connection to a 
 
             physical change of condition. Blacksmith v. All-American, Inc., 
 

 
        
 
 
 
 
 
             290 N.W.2d 348, 354 (Iowa 1980); McSpadden v. Big Ben Coal Co., 
 
             288 N.W.2d 181 (Iowa 1980).
 
        
 
            The question of causal connection is essentially within the 
 
        domain of expert medical opinion. Bradshaw v. Iowa Methodist 
 
        Hospital, 251 Iowa 375, 101 N.W.2d 167 (1960). The opinion of 
 
        experts need not be couched in definite, positive or unequivocal 
 
        language and the expert opinion may be accepted or rejected, in 
 
        whole or in part, by the trier of fact. Sondag v. Ferris 
 
        Hardware, 220 N.W.2d 903 (Iowa 1974). The weight to be given to 
 
        such an opinion is for the finder of fact, and that may be 
 
        affected by the completeness of the premise given the expert and 
 
        other surrounding circumstances. Bodish v. Fischer, Inc., 257 
 
        Iowa 516, 133 N.W.2d 867 (1965).
 
        
 
            Furthermore, if the available expert testimony is 
 
        insufficient along to support a finding of causal connection, 
 
        such testimony may be coupled with nonexpert testimony to show 
 
        causation and be sufficient to sustain an award. Giere v. Asse 
 
        Haugen Homes, Inc., 259 Iowa 1065, 146 N.W.2d 911, 915 (1966). 
 
        Such evidence does not, however, compel an award as a matter of 
 
        law. Anderson v. Oscar Mayer & Co., 217 N.W.2d 531, 536 (Iowa 
 
        1974). To establish compensability, the injury need only be a 
 
        significant factor, not be the only factor causing the claimed 
 
        disability. Blacksmith, 290 N.W.2d 348, 354. In the case of a 
 
        preexisting condition, an employee is not entitled to recover for 
 
        the results of a preexisting injury or disease but can recover 
 
        for an aggravation thereof which resulted in the disability found 
 
        to exist. Olson v. Goodyear Service Stores, 255 Iowa 1112, 125 
 
        N.W.2d 251 (1963).
 
        
 
            The only causal connection opinion was rendered by Dr. Wirtz 
 
        who causally related claimant's complaints to the May 1986 fall 
 
        at Pinewood. His reference to prior knee problems is not 
 
        verified by the medical records and it is assumed that Dr. Wirtz 
 
        was mistaken as to such a history. The only description of a 
 
        history that might have been taken by Dr. Wirtz is contained in 
 
        the letter of February 13, 1987, which was not introduced into 
 
        evidence. Therefore, the preponderance of the evidence shows a 
 
        causal connection between claimant's fall at Pinewood in May of 
 
        1986 and his knee, back and neck complaints following the injury.
 
        
 
             IV. According to claimant's testimony, claimant was off 
 
             work for several days after his first visit to Broadlawns. 
 
             However, as stated above, claimant is not a good historian and 
 
             cannot be relied upon as to the accuracy of specific dates. 
 
             Relying therefore upon the medical evidence, the only absence 
 
             authorized by a physician in the record are the two days off 
 
             following the initial visit to Broadlawns on June 10, 1986. The 
 
             release form submitted into the evidence following the July 3, 
 
             1986 visit to Broadlawns cannot be read due to the poorness in 
 
             the quality of the copy presented. The release form for the 
 
             visit at Broadlawns on July 9, 1986, authorizes immediate release 
 
             return to work. Claimant testified that he has worked many jobs 
 
             after his discharge at Pinewood on June 13, but again was not 
 
             specific as to dates. Therefore, given claimant's memory 
 
             problem, the preponderance of the evidence shows only two days of 
 
             absence from work caused by the work injury of May 1986. 
 
             According to Iowa Code section 85.32, weekly benefits for 
 
             disability less than 14 days do not begin until the fourth day of 
 
             disability following the injury. Claimant, therefore, is not 
 
             entitled to temporary total disability benefits.
 
        
 
                  V. Pursuant to Iowa Code section 85.27, claimant is 
 
                  entitled to payment of reasonable medical expenses incurred for 
 
                  treatment of a work injury. However, claimant is entitled to an 
 

 
        
 
 
 
 
 
                  order of reimbursement only if claimant has paid those expenses. 
 
                  Otherwise, claimant is entitled to only an order directing the 
 
                  responsible defendants to make such payments. See Krohn v. 
 
                  State, 420 N.W.2d 463 (Iowa 1988).
 
        
 
             Given the stipulations in the prehearing report and the 
 
             finding that the complaints of back, neck and knee problems are 
 
             related to the work injury in May of 1986, it will be found that 
 
             the treatment for those conditions is likewise causally connected 
 
             to the injury. All of the requested expenses will be awarded.
 
        
 
            Claimant seeks authorized care for only his knee problems as 
 
        his back and neck problems are no longer symptomatic. This 
 
        request will be granted and Dr. Wirtz appears to be the most 
 
        logical choice of competent care given his familiarity with 
 
        claimant's case.
 
        
 
                                 FINDINGS OF FACT
 
        
 
             1. Claimant and his wife were credible witnesses given 
 
             their appearance and demeanor while testifying.
 
        
 
            2. Sometime in early May 1986, claimant suffered an injury 
 
        at Pinewood which arose out of and in the course of his 
 
        employment. This injury consisted of a fall onto a concrete 
 
        sidewalk which precipitated symptoms in his right knee, low back 
 
        and neck. The nature of the knee injury is not certain at this 
 
        time. The other injuries appear to be limited to soft tissue and 
 
        are no longer symptomatic.
 
        
 
            3. The work injury at Pinewood in May of 1986, was a cause 
 
        of only two days of absence from work after claimant's initial 
 
        treatment at Broadlawns Hospital on June 10, 1986.
 
        
 
            4. The expenses, as set forth in exhibit 2, namely: Mercy 
 
        Hospital in the amount of $51.00 and Dr. Nyberg in the amount of 
 
        $740.80, were incurred by claimant as reasonable and necessary 
 
        treatment of the work injury at Pinewood in May 1986.
 
        
 
            5. Continued treatment of claimant's right knee is 
 
        necessary. Dr. Peter Wirtz, of Des Moines, Iowa, is the best 
 
        choice of care at this time given his familiarity with claimant's 
 
        case. Reasonable care by Dr. Wirtz will include at least a 
 
        diagnostic arthroscopy to determine the extent of injury in 
 
        claimant's right knee compartment and possible surgery should 
 
        such be warranted.
 
        
 
                                 CONCLUSIONS OF LAW
 
        
 
             Claimant is entitled under law to the medical benefits 
 
             awarded below. Claimant has not shown entitlement to disability 
 
             benefits.
 
        
 
                                      ORDER
 
        
 
             1. Defendants shall pay the medical expenses listed in 
 
             exhibit 2 to Mercy Hospital and to Dr. Nyberg. Claimant shall be 
 
             reimbursed if he has paid these expenses. Otherwise, defendants 
 
             shall pay the provider directly including any reasonable late 
 
             charges imposed by the provider under his customary billing 
 
             practices.
 
        
 
            2. Defendants shall provide future medical treatment of 
 
        claimant's symptoms caused by the work injury at Pinewood in May 
 
        of 1986 as prescribed and recommended by Peter Wirtz, M.D., of 
 
        Des Moines, Iowa. This treatment shall specifically include any 
 

 
        
 
 
 
 
 
        diagnostic procedures recommended by Dr. Wirtz to the right knee 
 
        and arthroscopic surgery if necessary.
 
        
 
             3. Defendants shall pay the costs of this action pursuant 
 
             to Division of Industrial Services Rule 343-4.33.
 
        
 
            4. Defendants shall file a first report of injury and 
 
        activity reports on the payment of this award as requested by 
 
        this agency pursuant to Division of Industrial Services Rule 
 
        343-3.1.
 
        
 
             5. This matter shall be set back into assignment for 
 
             prehearing and hearing on the extent of permanent disability 
 
             benefits to which claimant may be entitled.
 
        
 
        
 
            Signed and filed this 7th day of July, 1989.
 
        
 
        
 
        
 
        
 
                                     LARRY P. WALSHIRE
 
                                     DEPUTY INDUSTRIAL COMMISSIONER
 
        
 
        Copies To:
 
        
 
        Mr. Channing L. Dutton
 
        Attorney at Law
 
        West Towers Office
 
        1200 35th St., STE 500
 
        West Des Moines, Iowa 50265
 
        
 
        Ms. Dorothy L. Kelley
 
        Attorney at Law
 
        500 Liberty Bldg.
 
        Des Moines, Iowa 50309
 
        
 
        
 
 
        
 
 
 
 
 
        
 
        
 
                                             51801; 52500
 
                                             Filed July 7, 1989
 
                                             LARRY P. WALSHIRE
 
        
 
                    BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
        
 
        
 
        TONY L. BONE,
 
        
 
             Claimant,
 
                                            File No. 826900
 
        vs.
 
                                        A R B I T R A T I O N 
 
        PINEWOOD APARTMENTS,
 
                                            D E C I S I O N
 
             Employer,
 
             
 
        and
 
        
 
        CNA INSURANCE COMPANIES,
 
        
 
             Insurance Carrier,
 
             Defendants.
 
             
 
             
 
             
 
        51801; 52500
 
        
 
             The decision gives an award of medical benefits. As 
 
             claimant was off work for only two days as a result of the 
 
             injury, no temporary total disability benefits were awarded.
 
             
 
        
 
 
        
 
 
 
 
 
                       BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
        
 
        
 
        DONALD G. REED,
 
        
 
            Claimant,
 
        
 
        vs.                              File No. 826902
 
        
 
        VAN GORP CORPORATION,              A P P E A L
 
        
 
            Employer,                   D E C I S I O N
 
        
 
        and
 
        
 
        LIBERTY MUTUAL INSURANCE CO.,
 
        
 
            Insurance Carrier,
 
            Defendants.
 
        
 
                                 STATEMENT OF THE CASE
 
        
 
        Defendants appeal from an arbitration decision awarding permanent 
 
        total disability benefits as the result of an alleged injury on 
 
        February 8, 1985.
 
        
 
        The record on appeal consists of the transcript of the 
 
        arbitration hearing; joint exhibit 1; claimant's exhibit 1; and 
 
        defendants' exhibits A, B and C. Both parties filed briefs on 
 
        appeal.
 
        
 
                                      ISSUES
 
        
 
        Defendants state the following issues on appeal:
 
        
 
        1. What is the causal relationship between the alleged work 
 
        injury of February 8, 1985, and the claimed impairments and 
 
        disabilities rated by Doctors Boulden, Thornton and Neff at 5-10% 
 
        of the body, and by Dr. McClain at 15%.
 
        
 
        2. Was there substantial evidence before the deputy commissioner 
 
        to support an award of permanent total disability.
 
        
 
                                 REVIEW OF THE EVIDENCE
 
        
 
        The arbitration decision adequately and accurately reflects the 
 
        pertinent evidence and it will not be totally set forth herein.
 
        
 
        REED V. VAN GORP CORPORATION
 
        Page 2
 
        
 
        
 
        Briefly stated, claimant was employed by defendant Van Gorp 
 
        Corporation as a welder. Claimant's work involved both sitting 
 
        and standing while welding. On February 8, 1985, a 600 pound 
 
        pulley fell over and knocked claimant to the floor where he 
 
        struck his left lower back and left side. Claimant experienced 
 
        immediate pain and after a weekend of rest, returned to work but 
 
        still experienced pain in his back and leg. Claimant testified 
 
        he had not experienced any back problems prior to this injury.
 
        
 
        Claimant visited Kurt Vander Ploeg, M.D., who treated claimant 
 
        with physical therapy. Claimant attempted to return to work 
 

 
        
 
 
 
 
 
        several times, but always experienced pain when he performed his 
 
        duties. Claimant was referred to Dr. Berg and to William R. 
 
        Boulden, M.D. A CAT scan by Dr. Boulden in May 1985 revealed a 
 
        probable herniated disc at the L5-S1 level.
 
        
 
        Dr. Boulden diagnosed a bulging rather than a herniated disc and 
 
        gave claimant a five percent "disability" rating to the body as a 
 
        whole. Scott B. Neff, D.O., concurred with Dr. Boulden's rating 
 
        of five percent of the body as a whole and gave claimant 
 
        permanent restrictions against repetitive bending, stooping or 
 
        lifting. In October 1985 Dr. Neff recommended claimant consider 
 
        retirement. Claimant left his employment on October 28, 1985, 
 
        and did not return.
 
        
 
        Claimant received an orthopedic evaluation by Daniel B. McClain, 
 
        D.O., who opined that claimant suffered a 15 percent permanent 
 
        partial impairment to the body as a whole as a result of the 
 
        February 8, 1985 injury. Dr. McClain also imposed restrictions of 
 
        no repetitive bending, stooping, or lifting with his back. 
 
        Claimant also received an initial rating of five percent 
 
        permanent partial impairment of the body as a whole from Donald 
 
        W. Blair, M.D., which was later modified to ten percent of the 
 
        body as a whole. However, it appears that Dr. Blair's revised 
 
        rating of impairment was based in part on the fact that claimant 
 
        was required to modify his activities, and not based solely on 
 
        physical impairment. Since July 1986 claimant has been treated 
 
        by Lawrence Merrick, D.O., who opined that claimant is totally 
 
        disabled from gainful employment.
 
        
 
        Claimant testified that subsequent to the injury he can no longer 
 
        lift, bend or carry objects without pain. This was confirmed by 
 
        Dr. Merrick. Claimant stated he cannot grip with his hands, 
 
        cannot ride in a car for more than 20 miles at a time, has 
 
        trouble sitting, walking, reaching or extending his arms, and 
 
        cannot stand for a prolonged period of time. Claimant's prior 
 
        work experience consisted of welding, heavy labor, heavy work as 
 
        a foreman, and driving truck. Claimant was 57 years old at the 
 
        time of the hearing and had an eleventh grade education.
 
        
 
        Claimant underwent two evaluations by vocational rehabilitation 
 
        specialists. Kathryn Bennett, who was retained by defendant
 
        
 
        REED V. VAN GORP CORPORATION
 
        Page 3
 
        
 
        
 
        insurance carrier, reported that claimant had transferable skills 
 
        but could not utilize those skills due to his permanent 
 
        restrictions. A labor market survey in claimant's area of 
 
        residence was conducted, and 21 employers were contacted but all 
 
        were found to be reluctant to hire claimant "in light of his age, 
 
        physical restrictions, and potential for future difficulties." 
 
        (Joint Exhibit 1, page 2) Bennett concluded that claimant was 
 
        unemployable.
 
        
 
        Bennett testified that claimant had made an unsuccessful search 
 
        for work in his community. Claimant also testified that he has 
 
        looked for work in his community, including work as a truck 
 
        driver or in farming, but has not been able to locate work.
 
        
 
        Carma Mitchell, another rehabilitation consultant, concurred with 
 
        Kathryn Bennett's evaluation and testified that claimant could 
 
        not return to his old job, could not transfer his skills to 
 
        another job, and concluded that claimant is not competitively 
 
        employable at any wage due to his age and restrictions. 
 
        Mitchell's evaluation also mentioned the economic state in the 
 

 
        
 
 
 
 
 
        area of claimant's residence.
 
        
 
        The parties stipulated that claimant received an injury on 
 
        February 8, 1985, that arose out of and was in the course of his 
 
        employment with defendant Van Gorp Corporation; claimant's rate 
 
        is $247.10 per week; claimant's temporary total disability or 
 
        healing period is limited to 69 days after February 21, 1985; 
 
        permanency, if any, would commence August 29, 1985; and 
 
        claimant's medical bills were causally related to claimant's 
 
        condition, but the causal relationship between that condition and 
 
        a work injury remained in dispute.
 
        
 
                                 APPLICABLE LAW
 
        
 
        The claimant has the burden of proving by a preponderance of the 
 
        evidence that the injury of February 8, 1985 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 60, (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
 
        
 
        REED V. VAN GORP CORPORATION
 
        Page 4
 
        
 
        
 
        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).
 
        
 
        Permanent partial disabilities are classified as either scheduled 
 
        or unscheduled. A specific scheduled disability is evaluated by 
 
        the functional method; the industrial method is used to evaluate 
 
        an unscheduled disability. Martin v. Skelly Oil Co., 252 Iowa 
 
        128, 133, 106 N.W.2d 95, 98 (1960); Graves v. Eagle Iron Works, 
 
        331 N.W.2d 116 (Iowa 1983); Simbro v. DeLong's sportswear, 332 
 
        N.W.2d 886, 887 (Iowa 1983).
 
        
 
        If claimant has an impairment to the body as a whole, an 
 
        industrial disability has been sustained. Industrial disability 
 
        was defined in Diederich v. Tri-City Railway Co., 219 Iowa 587, 
 
        593, 258 N.W. 899, 902 (1935) as follows: "It is therefore plain 
 
        that the legislature intended the term 'disability' to mean 
 
        'industrial disability' or loss of earning capacity and not a 
 
        mere 'functional disability' to be computed in the terms of 
 
        percentages of the total physical and mental ability of a normal 
 
        man."
 
        
 
        The opinion of the supreme court in Olson v. Goodyear 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.* * 
 
        * *
 
        
 
        
 
        In Parr v. Nash Finch Co., (Appeal Decision, October 31, 1989) 
 
        the industrial commissioner, after analyzing the decisions of 
 
        McSpadden v. Big Ben Coal Co., 288 N.W.2d 181 (Iowa 1980) and 
 
        Blacksmith v. All-American, Inc., 290 N.W.2d 348 (Iowa 1980), 
 
        stated:
 
        
 
        Although the court stated that they were looking for the 
 
        reduction in earning capacity it is undeniable that it was the 
 
        "loss of earnings" caused by the job transfer for reasons related 
 
        to the injury that the court was indicating justified a finding 
 
        of "industrial disability." Therefore, if a worker is placed in a 
 
        position by his employer after an injury to the body as a whole 
 
        and because of the injury which results
 
        
 
        REED V. VAN GORP CORPORATION
 
        Page 5
 
        
 
        
 
        in an actual reduction in earning, it would appear this would 
 
        justify an award of industrial disability. This would appear to 
 
        be so even if the worker's "capacity" to earn has not been 
 
        diminished.
 
        
 
        For example, a defendant employer's refusal to give any sort of 
 
        work to a claimant after he suffers his affliction may justify an 
 
        award of disability. McSpadden, 288 N.W.2d 181. Similarly, a 
 
        claimant's inability to find other suitable work after making 
 
        bona fide efforts to find such work may indicate that relief 
 
        would be granted. McSpadden, 288 N.W.2d 181.
 
        
 
        Functional impairment is an element to be considered in 
 
        determining industrial disability which is the reduction of 
 
        earning capacity, but consideration must also be given to the 
 
        injured employee's age, education, qualifications, experience and 
 
        inability to engage in employment for which he is fitted. Olson, 
 
        255 Iowa 1112, 125 N.W.2d 251. 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 or 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
 
        
 
        REED V. VAN GORP CORPORATION
 
        Page 6
 
        
 
        
 
        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).
 
        
 
        Expert testimony that a condition could be caused by a given 
 
        injury coupled with additional, non-expert testimony that 
 
        claimant was not afflicted with the same condition prior to the 
 
        injury was sufficient to sustain an award. Giere v. Aase Haugen 
 
        Homes, Inc., 259 Iowa 1065, 146 N.W.2d 911 (1966).
 
        
 
        In determining industrial disability, the fact that employment 
 
        opportunities are temporarily restricted due to a local economic 
 
        situation is not a factor, in that such conditions affect all 
 
        workers in the area equally, regardless of claimant's injury. 
 
        Webb v. Lovejoy Construction Company, II Iowa Indus. Comm'r Rep. 
 
        430 (Appeal Decision 1984).
 
        
 
        An older worker with a relatively low functional disability, 
 
        little education, a history of former employment involving 
 
        physical labor, and restrictions on his present ability to 
 
        perform similar labor, may be totally disabled. Diederich, 219 
 
        Iowa 587, 258 N.W. 899.
 
        
 
        The approach of later years when it can be anticipated that under 
 
        normal circumstances a worker would be retiring is, without some 
 
        clear indication to the contrary, a factor which can be 
 
        considered in determining the loss of earning capacity or 
 
        industrial disability which is causally related to the injury. 
 
        Becke v. Turner-Busch, Inc., Thirty-fourth Biennial Report of the 
 
        Iowa Industrial Commissioner 34 (Appeal Decision 1979).
 
        
 
                                      ANALYSIS
 
        
 
        Defendants on appeal raise as an issue whether the claimant's 
 
        present condition is causally related to his work injury of 
 
        February 8, 1985. Dr. McClain clearly causally connects 
 
        claimant's present back condition to the February 8, 1985 injury. 
 
        The reports of Dr. Boulden and Dr. Neff, although not explicitly 
 
        causally connecting claimant's condition to the February 8, 1985 
 
        injury, do describe claimant's injury of that date, then proceed 
 
        to diagnose claimant's condition. A fair reading of those reports 
 
        also establishes that both Dr. Neff and Dr. Boulden attributed 
 

 
        
 
 
 
 
 
        claimant's present back condition to his February 8, 1985 injury. 
 
        Claimant testified that prior to February 8, 1985, he did not 
 
        have back problems. Claimant has shown
 
        
 
        REED V. VAN GORP CORPORATION
 
        Page 7
 
        
 
        
 
        by the greater weight of the evidence that his present back 
 
        condition is causally connected to his work injury of February 8, 
 
        1985.
 
        
 
        Defendants' second stated issue on appeal is whether claimant has 
 
        shown his entitlement to benefits by substantial evidence. It is 
 
        noted that the standard of review of a deputy industrial 
 
        commissioner's decision by the industrial commissioner is de 
 
        novo. Substantial evidence is the standard of judicial review of 
 
        a final decision of this agency by a reviewing court. Iowa Code 
 
        section 17A.19(8)(f). This issue will therefore be treated as an 
 
        issue of whether claimant has shown entitlement to benefits by a 
 
        preponderance of the evidence.
 
        
 
        Claimant's injury is to the back and leg, and thus claimant's 
 
        injury is an injury to the body as a whole. Industrial disability 
 
        is determined by several factors. Claimant's permanent physical 
 
        impairment is one such factor.
 
        
 
        Both Dr. Merrick and Dr. Boulden described claimant's condition 
 
        in terms of "disability" rather than impairment. The 
 
        determination of industrial disability is for the trier of fact, 
 
        and is not properly the subject of expert medical testimony. The 
 
        ratings of Dr. Merrick and Dr. Boulden will be given little 
 
        weight.
 
        
 
        The remainder of the medical evidence is consistent in 
 
        establishing that claimant can no longer perform the duties of 
 
        the job he was performing on February 8, 1985. Claimant now has 
 
        permanent restrictions on repetitive bending, stooping, and 
 
        lifting. Claimant has been given permanent ratings of impairment 
 
        of five percent of the body as a whole, ten percent of the body 
 
        as a whole, and fifteen percent of the body as a whole. Claimant 
 
        continues to have pain and weakness in his back and leg. Claimant 
 
        has suffered a permanent physical impairment.
 
        
 
        Claimant's age and education are also factors. Claimant was 55 
 
        years old at the time of the hearing. Claimant's age makes 
 
        retraining or further education impractical.
 
        
 
        Claimant's work experience is limited to heavy labor. He has no 
 
        skills in occupations that do not require heavy labor. Two 
 
        vocational rehabilitationists concluded that claimant is not 
 
        employable. This evidence is uncontroverted. However, the 
 
        conclusion of Carma Mitchell was based in part on local economic 
 
        factors and her conclusion will be given less weight because of 
 
        this factor.
 
        
 
        Claimant's motivation appears to be good. He has cooperated with 
 
        the vocational rehabilitation service providers, and has 
 
        expressed a desire to return to work. Although claimant 
 
        apparently requested a given salary level, there is no showing in 
 
        the record that claimant refused to accept or consider a lesser
 
        
 
        REED V. VAN GORP CORPORATION
 
        Page 8
 
        
 
        
 

 
        
 
 
 
 
 
        paying position. Indeed, the record shows that even jobs paying 
 
        minimum wage were sought for claimant but without success.
 
        
 
        Claimant has lost wages due to his injury by virtue of being 
 
        unable to return to his prior job. Defendant employer apparently 
 
        made no effort to provide claimant with light duty work.
 
        
 
        Based on these and all other appropriate factors for determining 
 
        industrial disability, it is determined that claimant is 
 
        permanently totally disabled. Because of this determination, it 
 
        is not necessary to determine if claimant had a preexisting 
 
        disability or to apportion degrees of disability between the 
 
        injury of February 8, 1985,-and claimant's prior injury, if any. 
 
        Claimant's injury of February 8, 1985, has rendered him 
 
        permanently and totally disabled. It is, however, noted the 
 
        record is not adequate to ascertain whether claimant's 
 
        preexisting hearing and vision impairments or prior back injury 
 
        caused any disability.
 
        
 
                                 FINDINGS OF FACT
 
        
 
        1. Claimant was employed by defendant employer as a welder.
 
        
 
        2. Claimant's duties included welding heavy pulleys, and involved 
 
        lifting, bending, and stooping.
 
        
 
        3. On February 8, 1985, claimant received an injury which arose 
 
        out of and was in the course of his employment when a pulley 
 
        fell over onto him, injuring his back.
 
        
 
        4. Claimant began to experience pain in his back and left leg 
 
        when working.
 
        
 
        5. Claimant received medical treatment from several physicians, 
 
        and was given ratings of permanent partial impairment of five 
 
        percent, ten percent and fifteen percent of the body as a whole.
 
        
 
        6. Claimant was given permanent medical restrictions against 
 
        repetitive lifting, bending, and stooping.
 
        
 
        7. Claimant left work due to his medical condition on October 28, 
 
        1985.
 
        
 
        8. Subsequent to his injury of February 8, 1985, claimant cannot 
 
        lift, bend, or stoop, and experiences difficulty in sitting, 
 
        standing, and walking.
 
        
 
        9. Claimant's work experience is limited to heavy labor, welding, 
 
        and truck driving.
 
        
 
        10. Claimant's age at the time of the hearing was 57 years old.
 
        
 
        REED V. VAN GORP CORPORATION
 
        Page 9
 
        
 
        
 
        11. Claimant has an eleventh grade education.
 
        
 
        12. Claimant underwent two vocational rehabilitation evaluations, 
 
        both of which showed claimant was unemployable due to his 
 
        physical
 
        restrictions.
 
        
 
        13. Claimant's weekly rate is $247.10 per week.
 
        
 
        14. Claimant has a permanent and total loss of earning capacity.
 

 
        
 
 
 
 
 
        
 
                                 CONCLUSION OF LAW
 
        
 
        Claimant's back condition is causally connected to his work 
 
        injury of February 8, 1985.
 
        
 
        Claimant has proven by a preponderance of the evidence that he is 
 
        permanently totally disabled as a result of his injury on 
 
        February 8, 1985.
 
        
 
        WHEREFORE, the decision of the deputy is affirmed.
 
        
 
                                      ORDER
 
        
 
        THEREFORE, it is ordered:
 
        
 
        That defendants are to pay unto claimant permanent total 
 
        disability benefits at the rate of two hundred forty-seven and 
 
        10/100 dollars ($247.10) during the period of his disability and 
 
        commencing August 29, 1985.
 
        
 
        That defendants shall pay accrued weekly benefits in a lump sum.
 
        
 
        That defendants shall pay interest on weekly benefits awarded 
 
        herein as set forth in Iowa Code section 85.30.
 
        
 
        That defendants are to be given credit for benefits previously 
 
        paid .
 
        
 
        That defendants are to pay the costs of this action.
 
        
 
        That defendants shall file claimant activity reports as required 
 
        by this agency pursuant to Division of Industrial Services Rule 
 
        343-3.1(2).
 
        
 
        Signed and filed this 31st day of January 1989.
 
        
 
        
 
        
 
                                          DAVID E. LINQUIST
 
                                       INDUSTRIAL COMMISSIONER