BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         BRIAN CHURCH,
 
         
 
              Claimant,
 
         
 
         VS.
 
                                                        FILE NO. 826904
 
          JOHN MORRELL & CO.,
 
                                                    A R B I T R A T I 0 N
 
              Employer,
 
                                                       D E C I S I 0 N
 
          and
 
          
 
          NATIONAL UNION FIRE
 
          INSURANCE COMPANY,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
                              STATEMENT OF THE CASE
 
         
 
              This is a proceeding in arbitration brought by Brian Church, 
 
         claimant, against John Morrell & Company, employer (hereinafter 
 
         referred to as Morrell), and National Union Fire Insurance 
 
         Company, insurance carrier, defendants, for workers' compensation 
 
         benefits as a result of an alleged injury on July 22, 1986 
 
         (claimant amended his petition as to the injury date at the time 
 
         of hearing).  On July 9, 1987, 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 
 
         Rexanne Smith.  The exhibits received into the evidence are 
 
         listed in the prehearing report.  All of the evidence received at 
 
         the hearing was considered in arriving at this decision.
 
         
 
              The prehearing report contains the following stipulations:
 
         
 
              1.  Claimant last worked for Morrell on July 22, 1986;
 
         
 
              2.  Claimant's rate of compensation in the event of an award 
 
         of weekly benefits from this proceeding shall be $191.99 per 
 
         week;
 
         
 
              3.  If it is found that the alleged work injury has caused
 
         permanent disability, the disability is an industrial 
 

 
         
 
         
 
         
 
         CHURCH V. JOHN MORRELL & CO.
 
         Page   2
 
         
 
         
 
         disability to the body as a whole; and,
 
         
 
              4.  The medical expenses for which claimant seeks 
 
         reimbursement in this proceeding are fair and reasonable and 
 
         causally connected to the back condition upon which claimant is 
 
         basing her claim herein but that the issue of their causal 
 
         connection to any work injury remains an issue to be decided.
 
         
 
              The prehearing report submits the following issues for 
 
         determination in this decision:
 
         
 
              I.  Whether claimant received an injury arising out of and 
 
         in the course of his employment;
 
         
 
              II.  Whether there is a causal relationship between the 
 
         work injury and the claimed disability;
 
         
 
             III.  The extent of claimant's entitlement to weekly 
 
         disability benefits; and,
 
         
 
              IV.  The extent of claimant's entitlement to medical 
 
         benefits under Iowa Code section 85.27.
 
         
 
                              FINDINGS OF FACT
 
         
 
              1.  Claimant was employed by Morrell from November, 1985 
 
         through July 22, 1986 in labor jobs within Morrell's meat packing 
 
         plant in Sioux City, Iowa.
 
         
 
              There was little dispute among the parties as to the nature 
 
         of claimant's employment.  Claimant testified that he held 
 
         various jobs within the plant from working on the dock to meat 
 
         cutting.  At the time of the alleged work injury claimant was 
 
         working on a job called "grading bellies" in which he hooked, 
 
         lifted and threw onto a nearby table bellies at shoulder height 
 
         weighing from 10 to 30 pounds on a repetitive basis over an eight 
 
         hour day.  Claimant testified that he moved to this job 
 
         approximately one to one and a-half months after being involved 
 
         in an automobile accident in April, 1986, which will be further 
 
         discussed later in this decision.  According to claimant, at the 
 
         time of this car accident, claimant was assigned to trimming 
 
         bellies using an electrically powered wizard knife.
 
         
 

 
         
 
         
 
         
 
         CHURCH V. JOHN MORRELL & CO.
 
         Page   3
 
         
 
         
 
              2.  On July 22, 1986, claimant suffered an injury which 
 
         arose out of and in the course of his employment at Morrell 
 
         consisting of a temporary aggravation of a preexisting back and 
 
         neck condition.
 
         
 
              Claimant suffered significant back and neck injuries as a 
 
         result of an automobile accident in April, 1986.  Claimant was a 
 
         passenger in the front seat of an auto driven by one of his 
 
         friends when the car in which he was riding left the roadway and 
 
         struck an embankment head-on.  Claimant testified that he was not 
 
         wearing a seatbelt at the time and struck his head and face on 
 
         the dashboard.  Claimant stated that he initially experienced 
 
         neck and shoulder pain and stiffness following the accident.  He 
 
         also admitted in cross-examination that he experienced mid-back 
 
         difficulties as well.  After initial treatment at a hospital, 
 
         claimant was treated by his family physician, Edward Pierce, M.D. 
 
         After tests and studies, Dr. Pierce and other physicians at the 
 
         hospital believed that claimant had suffered a cervical strain 
 
         and a possible "wedge fracture of the vertebrae at the D12, L-1 
 
         level of claimant's spine."  However, Dr. Pierce treated claimant 
 
         conservatively with rest and medication.  Claimant was released 
 
         for work three days after the accident by Dr. Pierce without 
 
         restrictions.
 
         
 
              When claimant returned to work he began a new job grading 
 
         bellies as discussed above.  Claimant stated in cross-examination 
 
         that he experienced some mid-back pain at the time of Dr. 
 
         Pierce's release and for a short time thereafter.  However, 
 
         claimant did not seek medical attention for his back again until 
 
         May 7, 1986 at which time he reported to the company medical 
 
         department seeking pills for back pain.  These complaints of back 
 
         pain along with numerous references by claimant to the April, 
 
         1986, auto accident to medical department personnel compelled the 
 
         company to consider claimant's problem as related to the car 
 
         accident and they referred claimant back to his family physician, 
 
         Dr. Pierce.  Dr. Pierce reexamined claimant on July 23.  Dr. 
 
         Pierce stated as follows concerning the diagnosis of claimant's 
 
         problems at that time: "I think this is probably an exacerbation 
 
         of this back pain related to the car wreck and the work is just 
 
         exacerbating that." Dr. Pierce then prescribed medication and 
 
         absence from work.  Claimant returned with the same complaints of 
 
         back pain on July 29 and Dr. Pierce referred claimant for 
 
         evaluation by an orthopedist, John Dougherty, M.D.  On August 1, 
 
         1986, Dr. Pierce reported in his notes that Dr. Dougherty felt 
 
         that claimant had a congenital defect at the D12 level rather 
 
         than a fracture and believed that claimant had aggravated this 
 
         congenital problem in the car accident.
 
         
 
              Without deciding whether the underlying permanent back 
 
         condition claimed herein was caused by claimantOs work, claimant 
 
         has at least shown by the above evidence that he suffered back 
 
         pain after performing the grading bellie job at Morrell which 
 
         required his absence from work and for medical treatment.  
 
         Claimant consistently made complaints during such work activity 
 
         to the Morrell medical personnel in May, June and most of July 
 
         and at least an aggravation injury is verified by the views of 
 
         Dr. Pierce.  The injury date chosen to be plead by claimant does 
 
         coincide with the time claimant was compelled by his back pain to 
 
         leave work.
 

 
         
 
         
 
         
 
         CHURCH V. JOHN MORRELL & CO.
 
         Page   4
 
         
 
         
 
         
 
              3.  Claimant has failed to show by a preponderance of the 
 
         evidence that the work injury of July 22, 1986 was a cause of 
 
         permanent impairment or disability.
 
         
 
              What is unclear in the record presented and especially from 
 
         claimant's testimony is the exact nature of claimant's current 
 
         complaints and the specific nature of claimant's impairments.  He 
 
         testified that he wears a back brace but did not identify what 
 
         area of the back causes him the most problems.  We must assume 
 
         from the medical records presented that claimant's primary 
 
         problems is chronic pain in his mid-back, rather than his 
 
         shoulder or neck.
 
         
 
              As mentioned above, Dr. Pierce, claimant's own family 
 
         physician, believes that claimant suffered only an aggravation 
 
         injury of the back condition caused by the April, 1986, auto 
 
         accident.  Dr. Pierce also reveals another possible cause, that 
 
         being a congenital problem in claimant's mid-back which was first 
 
         raised as a possibility by Dr. Dougherty.
 
         
 
              In February, 1987, after another examination of claimant, 
 
         Dr. Dougherty stated in a report that claimant probably did not 
 
         have a significant problem after the April, 1986, auto accident. 
 
          He also does not believe that claimant suffered a fracture of 
 
         the D12 level in this accident because claimant was able to 
 
         return to work after only three days.  As aptly pointed out by 
 
         defense counsel in his brief, Dr. Dougherty was given a history 
 
         by claimant that he had no problems for six to eight weeks after 
 
         the accident.  Claimant did not state to Dr. Dougherty (as he did 
 
         at hearing) that he continued to suffer mid-back pain at the time 
 
         of Dr. Pierce's release for work and for a few days thereafter.  
 
         After review of more records from the hospital that treated 
 
         claimant after the auto accident, Dr. Dougherty appeared to back 
 
         off somewhat on his views concerning problems caused by the auto 
 
         accident and those arising from claimant's work activity.  Dr. 
 
         Dougherty states that he is not sure if he could "really separate 
 
         one from the other."  Dr. Dougherty also was unaware that 
 
         claimant assumed a new job after the auto accident which appeared 
 
         to be more physically demanding on his upper back than the one he 
 
         had at the time of the auto accident.  This aspect would support 
 
         a causal connection finding.
 
         
 
              Claimant has received more recent treatment of his back from 
 
         Horst Blume, M.D., a Sioux City neurosurgeon.  However, no 
 
         reports were submitted from Dr. Blume.  Defense counsel in his 
 
         brief states that the conspicuous absence of such reports from a 
 
         traditional "liberal" doctor should bare some weight in this 
 
         proceeding.  The undersigned disagrees.  Nothing can be concluded 
 
         from the absence of reports from this doctor.  Although one could 
 
         speculate that Dr. Blume's views are not favorable to claimant if 
 
         they were not offered by him one could also speculate that they 
 
         were not favorable to defense because defense chose not to offer 
 
         this evidence.  Defense cannot contend that they were surprised 
 
         by Dr. Blume's involvement because the involvement of Dr. Blume 
 
         was first made aware to defense counsel in January, 1987, by Dr. 
 
         Dougherty.
 
         
 
              Therefore, we have only two doctors submitting causal 
 

 
         
 
         
 
         
 
         CHURCH V. JOHN MORRELL & CO.
 
         Page   5
 
         
 
         
 
         connection opinions.  Given the extent of the prior injuries, 
 
         this agency must look to the opinions of experts to find causal 
 
         connection more than would be the case otherwise.  Dr. Pierce's 
 
         views only support a theory of temporary aggravation of a 
 
         preexisting condition caused by the auto accident.  The views of 
 
         Dr. Dougherty are confused.  Dr. Dougherty suggests that there 
 
         are three possible causes of claimant's problems: congenital, the 
 
         auto accident or the work activity.  In his last report Dr. 
 
         Dougherty states that he could not identify which event was the 
 
         cause of claimant's current problems.  Consequently, to the 
 
         extent that claimant does have persistent back problems, the 
 
         evidence submitted in this case does not establish (one way or 
 
         another) that the pain or aggravation injury he experienced while 
 
         working for Morrell from May until July, 1986, was the cause of 
 
         his current chronic problems.  Claimant has simply failed to 
 
         carry his burden of proof.
 
         
 
              However, aside from causal connection, another problem with 
 
         claimant's case for permanent disability is that claimant failed 
 
         to establish the precise nature of his current physical 
 
         limitations.  His current physical limitations were not discussed 
 
         in detail by him at hearing other than the fact he wears a back 
 
         support four to five times a week.  No physician has imposed 
 
         restrictions upon his activity.  Claimant testified that he 
 
         recently "rolled" his automobile in another auto accident without 
 
         apparent injury.  Whether or not he wore a seatbelt in this 
 
         latest auto accident, the undersigned finds it unlikely that he 
 
         could suffer no problems from such a severe auto-accident if he 
 
         truly had persistent back problems.  Although Dr. Dougherty 
 
         opined that claimant has a three percent permanent partial 
 
         impairment to his body as a whole due to the persistent 
 
         complaints, Dr. Dougherty had serious questions about "how much 
 
         trouble he is having."
 
         
 
              4.  The work injury was a cause of a temporary period of 
 
         total disability while claimant was recovering from the 
 
         aggravation injury from July 23, 1986 through November 15, 1986.
 
         
 
              Dr. Pierce treated claimant for the aggravation injury until 
 
         mid-November at which time he released claimant for light duty 
 
         work according to claimant's testimony.  Claimant then returned 
 
         to Morrell seeking work but was told no light duty was available 
 
         and he would have to have a full release before returning to work 
 
         at Morrell.  Claimant has not obtained such a release and has not 
 
         returned to Morrell.  However, by releasing claimant for work, 
 
         Dr. Pierce apparently felt that claimant was medically able to do 
 
         so and had reached maximum healing from the aggravation injury.
 
         
 
              5.  Claimant has incurred reasonable medical expenses for 
 
         treatment of his work injury in the amount of $31.25.
 
         
 
              In the prehearing report, claimant seeks the above amount of 
 
         money as reimbursement for medication prescribed by the company 
 
         doctor, Milton D. Grossman, M.D., before the time claimant left 
 
         Morrell.  Why the defendants are objecting to payment of these 
 
         bills is not explained in the record.  Defendants stipulated that 
 
         they are fair and reasonable and are causally connected to the 
 
         back condition upon which claimant is basing his claim herein.  
 
         Both of these prescriptions were prescribed for treatment of the 
 

 
         
 
         
 
         
 
         CHURCH V. JOHN MORRELL & CO.
 
         Page   6
 
         
 
         
 
         aggravation work injury.
 
         
 
                                CONCLUSIONS OF LAW
 
         
 
              The foregoing findings of fact were made under the following 
 
         principles of law:
 
         
 
              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 of 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.
 
         
 
              It is not necessary that claimant prove his disability 
 
         results from a sudden unexpected traumatic event.  It is 
 
         sufficient to show that the disability developed gradually or 
 
         progressively from work activity over a period of time.  
 
         McKeever Custom Cabinets v. Smith, 379 N.W.2d 368 (Iowa 1985).  
 
         The McKeever court also held that the date of injury in gradual 
 
         injury cases is a time when pain prevents the employee from 
 
         continuing to work.
 
         
 
              II.  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 
 

 
         
 
         
 
         
 
         CHURCH V. JOHN MORRELL & CO.
 
         Page   7
 
         
 
         
 
         insufficient alone to support a finding of causal connection, 
 
         such testimony may be coupled with nonexpert testimony to show 
 
         causation and be sufficient to sustain an award.  Giere v. Aase 
 
         Haugen Homes, Inc., 259 Iowa 1065, 146 N.W.2d 911, 915 (1966).  
 
         Such evidence does not, however, compel an award as a matter of 
 
         law.  Anderson v. Oscar Mayer & Co., 217 N.W.2d 531, 536 (Iowa 
 
         1974).  To establish compensability, the injury need only be a 
 
         significant factor, not be the only factor causing the claimed 
 
         disability.  Blacksmith, 290 N.W.2d 348, 354.  In the case of a 
 
         preexisting condition, an employee is not entitled to recover for 
 
         the results of a preexisting injury or disease but can recover 
 
         for an aggravation thereof which resulted in the disability found 
 
         to exist.  Olson v. Goodyear Service Stores, 255 Iowa 1112, 125 
 
         N.W.2d 251 (1963).
 
         
 
              In the case sub judice, although a finding that the work 
 
         injury was causally connected to a permanent disability could not 
 
         be made, there was a finding that the injury was a cause of 
 
         temporary disability during a period of recovery.
 
         
 
              III.  Pursuant to Iowa Code section 85.33(l) claimant is 
 
         entitled to temporary total disability benefits from the first 
 
         day of his absence from work until claimant returns to work or 
 
         until claimant is medically capable of returning to substantially 
 
         similar work to the work he was performing at the time of the 
 
         injury.  Due to the fact that it was found that claimant had a 
 
         prior condition that rendered him incapable of heavy work before 
 
         being assigned to grading bellies at Morrell, claimant can never 
 

 
         
 
         
 
         
 
         CHURCH V. JOHN MORRELL & CO.
 
         Page   8
 
         
 
         
 
         return to substantially similar work.  However, the temporary 
 
         total disability period should end when claimant reached a state 
 
         of maximum healing or when he returned to the same condition as 
 
         existed before the work injury.  It was found as a matter of fact 
 
         that his maximum healing occurred on November 15, 1986 at the 
 
         time Dr. Pierce released claimant for light duty work.
 
         
 
             Therefore, claimant is entitled as a matter of law to 
 
         temporary total disability benefits from July 23, 1986 through 
 
         November 15, 1986.
 
         
 
             IV.  Employers are obligated to furnish all reasonable 
 
         medical services for treatment of a work injury under Iowa Code 
 
         section 85.27.
 
         
 
              Given the findings of fact, claimant is entitled to 
 
         reimbursement for medical expenses in the amount of $31.25 and 
 
         defendants will be ordered to reimburse claimant this amount.
 
         
 
                                      ORDER
 
         
 
              1.  Defendants shall pay to claimant temporary total 
 
         disability benefits from July 23, 1986 through November 15, 1986 
 
         at the rate of one hundred ninety-one and 99/100 dollars 
 
         ($191.99) per week.
 
         
 
              2.  Defendants shall pay claimant the total sum of 
 
         thirty-one and 25/100 dollars ($31.25) for medical expenses.
 
         
 
              3.  Defendants shall pay interest on benefits awarded herein 
 
         from July 23, 1986.
 
         
 
              4.  Defendants shall pay the costs of this action pursuant 
 
         to Division of Industrial Services Rule 343-4.33.
 
         
 
              5.  Defendants shall file activity reports upon payment of 
 
         this award as requested by this agency pursuant to Division of 
 
         Industrial Services Rule 343-3.1.
 
         
 
         
 
              Signed and filed this 23rd day of September, 1987.
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
                                            LARRY P. WALSHIRE
 
                                            DEPUTY INDUSTRIAL COMMISSIONER
 
         
 
         
 
         
 
         
 
         
 
         Copies To:
 
         
 
         Mr. Harry H. Smith
 

 
         
 
         
 
         
 
         CHURCH V. JOHN MORRELL & CO.
 
         Page   9
 
         
 
         
 
         Attorney at Law
 
         632-640 Badgerow Bldg.
 
         P. 0. Box 1194
 
         Sioux City, Iowa 51102
 
         
 
         Mr. Thomas M. Plaza
 
         Attorney at Law
 
         200 Home Federal Bldg.
 
         P. O. Box 3086
 
         Sioux City, Iowa 51102
 
         
 
         
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                                 1100
 
                                                 Filed September 23, 1987
 
                                                 LARRY P. WALSHIRE
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         BRIAN CHURCH,
 
         
 
             Claimant,
 
         
 
         VS.
 
                                                       FILE NO. 826904
 
         
 
         JOHN MORRELL & CO.,
 
                                                    A R B I T R A T I 0 N
 
         
 
              Employer,
 
                                                      D E C I S I 0 N
 
         and
 
         
 
         NATIONAL UNION FIRE INSURANCE COMPANY,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         
 
         1100
 
         
 
              Permanent disability benefits were denied to claimant 
 
         because a causal connection could not be found between the 
 
         chronic condition of his back and a work injury.  However, an 
 
         aggravation of a preexisting condition was found and claimant was 
 
         awarded temporary total disability benefits until the time he 
 
         returned to the condition that existed before the aggravation 
 
         injury.
 
 
 
         
 
 
         
 
 
 
 
 
 
 
 
 
 
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         STEVE WILLIAMS,
 
         
 
              Claimant,
 
                                         File No. 826911
 
         VS.
 
         
 
         JOHN MORRELL & CO.,
 
         
 
              Employer,
 
                                         A R B I T R A T I 0 N
 
         and
 
                                         D E C I S I 0 N
 
         
 
         NATIONAL UNION FIRE INSURANCE
 
         COMPANY,
 
         
 
              Insurance Carrier,
 
         
 
         and
 
         
 
         SECOND INJURY FUND OF IOWA,
 
         
 
              Defendants.
 
         _________________________________
 
         STEVEN WILLIAMS,
 
         
 
              Claimant,
 
                                         File No. 807893
 
         vs.
 
         
 
         IOWA MEAT PROCESSING CO.,
 
         
 
              Employer,
 
         
 
         and
 
         
 
         CHUBB GROUP OF INSURANCE
 
         COMPANIES,
 
         
 
              Insurance Carrier,
 
         
 
         and
 
         
 
         SECOND INJURY FUND OF IOWA,
 
         
 
              Defendants.
 
         
 
         
 
                              STATEMENT OF THE  CASE
 
         
 
              These are proceedings in arbitration brought by claimant 
 
         Steve Williams against defendant employer Iowa Meat Processing
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         
 
         
 
         WILLIAMS V. JOHN MORRELL & CO./IOWA MEAT PROCESSING CO.
 
         Page 2
 
         
 
         
 
         Company, its insurance carrier Chubb Group of Insurance Companies 
 
         (807893), employer John Morrell & Company, its insurance carrier 
 
         National Union Fire Insurance Company (826911) and Second Injury 
 
         Fund of Iowa (both files) to recover benefits under the Iowa 
 
         Workers' Compensation Act.  In file number 807893, claimant's 
 
         petition alleged an injury to the right hand sustained July 18, 
 
         1986 and an earlier (for Second Injury Fund purposes) injury to 
 
         the left hand of June 6, 1986.  Claimant's first amended petition 
 
         in that file alleged an injury date of June 13, 1986, and a 
 
         preceding injury of June 6, 1970.  Claimant's second amended 
 
         petition alleged an injury date of July 18, 1985.  This action 
 
         was brought against Iowa Meat Processing Company, Chubb Group of 
 
         Insurance Companies and Second Injury Fund of Iowa.  In case 
 
         number 826911, claimant alleged an injury to the right hand of 
 
         February 24, 1986, and a preceding injury of June 6, 1970.  This 
 
         action was brought against John Morrell & Company, National Union 
 
         Fire Insurance Company and Second Injury Fund of Iowa.  Both 
 
         actions came on for hearing before Deputy Industrial Commissioner 
 
         Garry Woodward in Sioux City, Iowa, on April 21, 1988.  Each 
 
         matter was considered fully submitted at the close of hearing, 
 
         although the parties subsequently filed briefs.
 
         
 
              The record consisted of the testimony of claimant and joint 
 
         exhibits 1 through 236.
 
         
 
              Before evidence was taken, Second Injury Fund of Iowa 
 
         objected that claimant was not entitled to claim multiple second 
 
         injuries, while Mr. Woodward ruled that "objection will merge 
 
         into the decision." The hearing deputy has since discontinued his 
 
         employment with the industrial commissioner.  By Order of July 
 
         22, 1988, jurisdiction for the purpose of preparing and filing a 
 
         proposed agency decision was transferred to the undersigned.  It 
 
         appears that no ruling was made on the motion, and the same is 
 
         hereby overruled.
 
         
 
              At the conclusion of evidence, claimant moved to amend the 
 
         petition to conform with the proof as follows:
 
         
 
              At this time, Mr. Commissioner, I would move to amend my 
 
              petition -- our petition in this case to conform with the 
 
              proof, particularly with respect to the dates of various 
 
              injuries, and I would appreciate the commissioner reserving 
 
              ruling until such a time as I could file a written brief on 
 
              it.
 
              
 
              THE HEARING OFFICER: All right.  I'm not sure just exactly 
 
              -- Do you have prepared an amendment?
 
              
 

 
              
 
 
 
 
 
 
 
 
 
 
 
              MR. SMITH: No, sir.
 
              
 
              THE HEARING OFFICER: So I can clarify this, you're not 
 
              permitted to amend to change the issues, but, I mean, in 
 
              effect, when you file petitions like in
 
         
 
         
 
         
 
         WILLIAMS V. JOHN MORRELL & CO./IOWA  MEAT PROCESSING  CO.
 
         Page 3
 
         
 
         
 
              the pleading and the issues are really set at the pretrial 
 
              conference and pretrial order, they may under certain 
 
              circumstances you may stipulate away issues in your pretrial 
 
              report;.but if we're dealing with mere dates, I'm not -- 
 
              different than this, you're changing the issues.
 
              
 
              MR. SMITH: Our position is that this claimant very obviously 
 
              had a second injury that incapacitated him on his right 
 
              extremity, and it's very difficult to get the exact date and 
 
              so on and so forth, and I think the medical records that are 
 
              in evidence will clarify the situation.  It seems -- As I 
 
              understand, the Second Injury Fund's defense is that if he 
 
              was injured three or four times that we have to pick one out 
 
              that had to be the one, and I would like to at least brief 
 
              that issue.
 
              
 
              THE HEARING OFFICER: Well, I'm going to close on the record, 
 
              and you would be trying to amend the petition here on a 
 
              brief, is what it appears to me.
 
              
 
              MR. SMITH: To conform with the proof as it appears in the 
 
              medical records.  It appears to me that he had difficulties 
 
              with his right extremity as early as 1984.  In fact, he was 
 
              paid some disability back in '84.
 
              
 
              THE HEARING OFFICER: It seems to me that you were -- if 
 
              you're going to try to amend your petition, you're going to 
 
              have to at this time come forth with what you intend to 
 
              amend.
 
              
 
              MR. SMITH: All right.  We would amend the petition -- we ask 
 
              to amend the petition to conform to the earliest injury date 
 
              as shown by the medical records to the right extremity, 
 
              which is in 1984.  I don't have -- I can't put my finger on 
 
              the exact date, but the records will indicate a date in '84 
 
              where the first problems occurred with the right extremity.
 
         
 
         (Transcript of Proceedings, page 41, line 25 through page 45, 
 
         line 25)
 
         
 
              Deputy Woodward took the motion under advisement and 
 
         indicated it would be ruled upon in the proposed agency decision.  
 
         While the undersigned finds it somewhat difficult to understand 
 
         exactly the nature of the proposed amendment, it appears from a 
 
         review of the entire transcript that defendant seeks for second 
 
         injury fund purposes to allege a second injury separate and apart 
 
         from either of the injuries alleged in the petitions (as 
 
         subsequently amended).  At page 23 of the transcript, claimant 
 
         made reference to getting "meat hook slashed to my wrist" in 
 
         approximately 1984.  A hearing assignment order was filed by 
 
         Deputy Industrial
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         
 
         
 
         WILLIAMS V. JOHN MORRELL & CO./IOWA MEAT PROCESSING CO.
 
         Page 4
 
         
 
         
 
         
 
         Commissioner T. J. McSweeney in each file on January 19, 1988.  
 
         The hearing assignment order specified that no further amendments 
 
         to a party's pleading which materially change the issues of the 
 
         hearing would be allowed without a modification of the order.  No 
 
         such modification appears of record.  The industrial commissioner 
 
         has ruled that a deputy has neither authority nor jurisdiction to 
 
         overrule or change an order entered by another deputy.  Swift v. 
 
         Allied Construction Services, Inc., file number 799010, (App.  
 
         Decn., June 24, 1988).  As best this deputy can determine, the 
 
         proposed amendment alleges a completely separate and unrelated 
 
         second injury, and clearly would change materially the issues at 
 
         hearing if the amendment were to be allowed.  Therefore, 
 
         claimant's motion to conform his petition to the proof is 
 
         overruled.
 
         
 
              After these actions were transferred to the undersigned, a 
 
         transcript of proceedings was prepared and received.  All of the 
 
         record evidence has been reviewed.
 
         
 
                                      ISSUES
 
         
 
              In case number 807893, the parties submitted a prehearing 
 
         report containing certain stipulations.  There is no indication 
 
         that Deputy Woodward accepted and approved the prehearing report; 
 
         the same is hereby accepted and approved.  Pursuant to that 
 
         report, the parties stipulated: To the existence of an 
 
         employer-employee relationship at the time of the injury; that 
 
         claimant sustained an injury on July 18, 1985, which both arose 
 
         out of and in the course of that employment; that the injury 
 
         caused both temporary and permanent disability; that claimant is 
 
         entitled to compensation for healing period benefits from July 
 
         25, 1985 through October 29, 1985 (13 weeks, 6 days); that 
 
         claimant is entitled to compensation for permanent disability of 
 
         11.4 weeks based upon a six percent loss of use of the right 
 
         hand; that claimant's proper rate of weekly compensation is 
 
         $230.57; that affirmative defenses are waived; that all requested 
 
         medical benefits have been or will be paid by defendants; that 
 
         defendants are not entitled to credit for payments under a 
 
         nonoccupational group plan pursuant to Iowa Code section 
 
         85.38(2); that defendants paid compensation of 13 weeks 6 days 
 
         healing period and 11.4 weeks permanent partial disability; that 
 
         taxation of costs is not disputed; in an additional and attached 
 
         stipulation, the parties further set forth that claimant seeks no 
 
         further relief from Iowa Meat Processing Company or Chubb Group 
 
         of Insurance Companies, and that all benefits due claimant as the 
 
         result of the July 18, 1985 injury have been paid; further, that 
 
         the purpose of this action is to establish a case against the 
 
         Second Injury Fund of Iowa.  This appears to be the only issue 
 
         requiring resolution as to this file.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              The parties also submitted a prehearing report in file 
 
         number 826911, which was approved and accepted by Deputy Woodward 
 
         at hearing.  Pursuant to that prehearing report, which was signed 
 
         by all parties, it was stipulated: That an employer-employee
 
         
 
         
 
         
 
         WILLIAMS V. JOHN MORRELL & CO./IOWA MEAT PROCESSING CO.
 
         Page 5
 
         
 
         
 
         relationship existed between claimant and employer at the time of 
 
         the injury; that claimant sustained an injury on February 24, 
 
         1986 which both arose out of and in the course of that 
 
         employment; that the injury did not cause temporary disability; 
 
         that the injury did cause permanent disability; that claimant was 
 
         not entitled to compensation for temporary total disability or 
 
         healing period benefits; that claimant's appropriate rate of 
 
         weekly compensation is $228.09; that affirmative defenses are 
 
         waived; that all requested medical benefits have been or will be 
 
         paid by defendants; that defendants do not seek credit for 
 
         payments under a nonoccupational group plan; that defendants paid 
 
         claimant six-tenths of one week of compensation at the stipulated 
 
         rate prior to hearing.  The issues remaining for resolution are: 
 
         The extent of claimant's entitlement to compensation for 
 
         permanent disability; the type of permanent disability; liability 
 
         of the Second Injury Fund of Iowa.
 
         
 
                              REVIEW OF THE EVIDENCE
 
         
 
              Claimant testified that he is 32 years old and single.  He 
 
         testified further that he was seriously injured at age 14 
 
         (approximately 1970) when his left arm was caught in an auger.  
 
         He indicated he had been treated by A. D. Blenderman, M.D. 
 
         Claimant further stated that he is unable to move his thumb, that 
 
         he has scars on his arm, that he has lost strength and lifting 
 
         ability, and demonstrated that he is unable to make a fist with 
 
         his left hand.  On cross-examination, claimant agreed that he may 
 
         have been mistaken as to the injury date, which might have 
 
         occurred in 1967 when he was 11 years old (and that this was the 
 
         only such accident to befall him).
 
         
 
              Claimant also testified to the injuries in 1985 and 1986.  
 
         He testified that his hand was caught between a gate and a wall 
 
         while he was driving hogs on one occasion, and that on the second 
 
         occasion, he was pushing a bone cart and his little finger on the 
 
         right hand was broken when the hand hit a "stomach machine."
 
         
 
              As to the 1985 injury, claimant agreed on cross-examination 
 
         that he had suffered a cut to one finger which required a 
 
         surgical procedure to the finger, but not the hand.  After 
 
         returning to work, he broke the little finger of his right hand, 
 
         but indicated that no bones were broken in the hand, but only the 
 
         little finger.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              Claimant further indicated that he was returned to work with 
 
         no restrictions arising from either the 1985 or 1986 injuries 
 
         under review.
 
         
 
              Medical records of A. D. Blenderman, M.D., dated March 22, 
 
         1968 note that claimant was then 12 years old and had suffered a 
 
         serious injury to his left forearm approximately one and one-half 
 
         years before.  He was described as receiving not only extensive 
 
         soft tissue damage to the left forearm, but fractures
 
         
 
         
 
         
 
         WILLIAMS V. JOHN MORRELL & CO./IOWA MEAT PROCESSING CO.
 
         Page 6
 
         
 
         
 
         of both the left radius and ulna which were subsequently plated 
 
         at the time of the initial injury.  Dr. Blenderman's diagnosis:
 
         
 
              Healed fractures left radius and ulna with extensive soft 
 
              tissue [sic].  Damage of scarring to the left forearm.
 
         
 
              The medical records submitted as exhibits do not indicate 
 
         that Dr. Blenderman or any other physician has expressed an 
 
         opinion as to whether claimant suffered any permanent disability 
 
         or loss of use to the left hand or arm from this unfortunate 
 
         accident.
 
         
 
              The medical records further reflect a number of other 
 
         problems claimant has suffered with his hands and arms, including 
 
         a tendon repair and surgical removal of a tumor.  However, a 
 
         review of the medical records does not disclose any medical 
 
         opinion as to permanent impairment to the right or left arms as a 
 
         result of these or any other problems predating the injuries 
 
         under review.
 
         
 
              John J. Dougherty, M.D., wrote to defendant Chubb Insurance 
 
         on July 29,1985, reference claimant's injury of July 18, 1985.  
 
         He at that time rated claimant as suffering a 7%-8% disability to 
 
         the right upper extremity.  However, Dr. Dougherty wrote again on 
 
         February 3, 1986, to limit his reference to the finger and rated 
 
         claimant as suffering approximately a 30% disability to the 
 
         finger.  This was extrapolated to 6% of the hand, but Dr. 
 
         Dougherty did not indicate that claimant had suffered an injury 
 
         to the hand, as opposed to the finger..
 
         
 
              Nino R. Lentini, M.D., wrote to Crawford & Company on April 
 
         23, 1986, concerning claimant's February 24, 1986 injury.  Dr. 
 
         Lentini noted that x-rays showed a fractured distal end of the 
 
         right fifth metacarpal in good alignment.  Claimant was seen on 
 
         February 26, 1986, and again on March 27, 1986, at which time the 
 
         metacarpal was noted to be healing and claimant was started on 
 
         exercises.  On the final visit of April 17, 1986, the x-ray of 
 
         the hand showed complete healing.  Claimant had no pain and good 
 
         range of motion and was told that he would not be required to 
 
         return for further examination or treatment.  Dr. Lentini 
 
         subsequently wrote to attorney Thomas Plaza on August 4, 1986, 
 
         and felt at that time, and on the basis of the last notes he had 
 
         written, claimant had a zero percent impairment rating.  However, 
 
         he asked to see claimant again, and did so on September 5, 1986.  
 
         He wrote again to Mr. Plaza on September 9, 1986, and felt that 
 
         claimant had suffered a three percent permanent partial 
 
         disability to the right fifth finger.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         
 
         
 
         WILLIAMS V. JOHN MORRELL & CO./IOWA MEAT PROCESSING CO.
 
         Page 7
 
         
 
         
 
                           APPLICABLE LAW AND ANALYSIS
 
         
 
              As has been stipulated, claimant seeks no relief from Iowa 
 
         Meat Processing Company or Chubb Group of Insurance Companies 
 
         with regard to file number 807893.  That action was filed 
 
         essentially in an effort to establish a claim against the Second 
 
         Injury Fund of Iowa.
 
         
 
              In file number 826911, claimant seeks additional 
 
         compensation for permanent partial disability based on his injury 
 
         of February 24, 1986.  The evidence in the file indicates that 
 
         claimant suffered a fracture to the distal end of the right fifth 
 
         metacarpal, which is part of the hand.  However, the only 
 
         evidence as to claimant's impairment is that of Dr. Lentini, who 
 
         opined that claimant had suffered a three percent permanent 
 
         partial "disability" to the right fifth finger, a scheduled 
 
         member under Iowa Code section 85.34(2)(e). In the case of a 
 
         scheduled member, the degree of impairment is the same as the 
 
         degree of disability.  There is no indication in this record 
 
         whatsoever that claimant suffered any further injury to the body 
 
         as a whole.  The statute provides for compensation during twenty 
 
         weeks for the loss of a little finger, and three percent of 20 
 
         weeks is six-tenths of one week.  As claimant has already been 
 
         paid permanent partial disability of six-tenths of one week, he 
 
         is entitled to no further relief from defendants John Morrell & 
 
         Company or National Union Fire Insurance Company.
 
         
 
              Under the Second Injury Compensation Act, Iowa Code section 
 
         85.63 through 85.69, benefits are recoverable from the Second 
 
         Injury Fund where an employee who has previously lost, or lost 
 
         the use of, one hand, one arm, one foot, one leg or one eye, 
 
         becomes permanently disabled by a compensable injury which has 
 
         resulted in the loss of or loss of use of another such member or 
 
         organ.  Preliminarily, claimant must establish the loss or loss 
 
         of use to a hand, arm, foot, leg or eye.  In each file, it is 
 
         alleged that claimant suffered such a loss on June 6, 1970.  The 
 
         selection of an incorrect injury date in a petition is 
 
         unimportant if only a few days off.  Yeager v. Firestone Tire & 
 
         Rubber Co., 253 Iowa 369, 112 N.W.2d 295 (1961).  The evidence in 
 
         this case shows that claimant's serious injury occurred long 
 
         before 1970.  However, it is held that this is not significant in 
 
         the cases under review, since no parties have been shown to be 
 
         misled as to the claimed first injury.  However, the final 
 
         diagnosis of Dr. Blenderman was of healed fractures and scarring.  
 
         There is no medical evidence whatsoever to establish that 
 
         claimant's first injury left him with a permanent disability or 
 
         impairment.  The burden of proof is on the party asserting the 
 
         affirmative of an issue in an administrative proceeding, that 
 
         party who would suffer loss if the issue were not established.  
 
         Wonder Life Company v. Liddy, 207 N.W.2d 27 (Iowa 1973); Norland 
 
         v. Iowa Department of Job Service, 412 N.W.2d 904 (Iowa 1987).  
 
         Claimant has himself testified to continuing problems with his 
 
         left hand, but the record does
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         
 
         
 
         WILLIAMS V. JOHN MORRELL & CO./IOWA MEAT PROCESSING CO.
 
         Page 8
 
         
 
         
 
         not show any medical opinion that disability resulted from the 
 
         childhood farm injury.  It would be pure speculation for this 
 
         deputy to attempt to determine to what degree claimant was 
 
         disabled, if at all, by reason of that-injury.  This is essential 
 
         in determining the benefits to which claimant may be entitled, 
 
         since Iowa Code section 85.64 requires that the compensable value 
 
         of the previously lost member be deducted.  Where claimant has 
 
         failed to establish any expert medical opinion of permanent 
 
         functional disability, no finding of functional disability can be 
 
         rendered.  Boe v. Consolidated Packing Corp. and Ideal Mutual 
 
         Insurance Company, IV Iowa Industrial Commissioner Report, 39 
 
         (1983).
 
         
 
              As claimant has failed to establish this essential element 
 
         of his claim against the Second Injury Fund, no benefits will be 
 
         awarded.
 
         
 
                                 FINDINGS OF FACT
 
         
 
              THEREFORE, based on the evidence presented, the following 
 
         ultimate facts are found:
 
         
 
              1. Claimant seeks no relief from Iowa Meat Processing 
 
         Company or Chubb Group of Insurance Companies in industrial 
 
         commissioner file number 807893; the action was filed essentially 
 
         in an effort to establish a claim against the Second Injury Fund 
 
         of Iowa.
 
         
 
              2. In file number 826911, claimant suffered an injury 
 
         stipulated to have arisen out of and in the course of his 
 
         employment on February 24, 1986.
 
         
 
              3. The 1986 injury did not cause temporary total disability 
 
         or healing period as stipulated by the parties.
 
         
 
              4. Claimant has been paid all requested medical benefits 
 
         relating to the 1986 injury.
 
         
 
              5. Claimant's 1986 injury was a fracture to the distal end 
 
         of the right fifth metacarpal; claimant has suffered a three 
 
         percent permanent partial disability to the right fifth or little 
 
         finger.
 
         
 
              6. Claimant has failed to establish by medical testimony to 
 
         what degree, if at all, he was disabled by reason of his 
 
         childhood injury to his left arm.
 
         
 
                                CONCLUSIONS OF LAW
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              WHEREFORE, based on the principles of law previously cited, 
 
         the following conclusions are made:
 
         
 
              1. In file number 807893, claimant has been fully 
 
         compensated
 
         
 
         
 
         
 
         WILLIAMS V. JOHN MORRELL & CO./IOWA MEAT PROCESSING CO.
 
         Page 9
 
         
 
         
 
         
 
         by Iowa Meat Processing Company and Chubb Group of Insurance 
 
         Companies.
 
         
 
              2. In file number 826911, claimant has suffered a disability 
 
         of three percent to the right fifth or little finger, for which 
 
         he has been fully compensated by defendants John Morrell & 
 
         Company and National Union Fire Insurance Company.
 
         
 
              3. As claimant has failed to establish a previously lost 
 
         major member under Iowa Code section 85.64, he has failed to meet 
 
         his burden of proof in establishing a compensable second injury 
 
         under the Second Injury Compensation Act.
 
         
 
                                      ORDER
 
         
 
              THEREFORE, IT IS ORDERED:
 
         
 
              That claimant shall take nothing from this proceeding.
 
         
 
              That costs of this action shall be assessed against claimant 
 
         pursuant to Division of Industrial Services Rule 343-4.33.
 
         
 
              Signed and filed this 31st day of March, 1989.
 
         
 
         
 
         
 
                                         DAVID RASEY
 
                                         DEPUTY INDUSTRIAL COMMISSIONER
 
         
 
         Copies To:
 
         
 
         Mr. Harry H. Smith
 
         Attorney at Law
 
         P.O. Box 1194
 
         Sioux City, Iowa  51102
 
         
 
         Mr. Thomas M. Plaza
 
         Attorney at Law
 
         200 Home Federal Building
 
         P.O. Box 3086
 
         Sioux City, Iowa  51102
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         Mr. Charles E. Cutler
 
         Attorney at Law
 
         720 Insurance Exchange Building
 
         Des Moines, Iowa 50309
 
         
 
         Ms. Joanne Moeller
 
         Assistant Attorney General
 
         Tort Claims Division
 
         Hoover State Office Building
 
         Des Moines, Iowa  50319
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
 
         
 
 
 
 
 
 
 
 
 
 
 
                                         2901, 3202
 
                                         Filed March 31, 1989
 
                                         DAVID RASEY
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         STEVE WILLIAMS,
 
         
 
              Claimant,
 
                                         File No. 826911
 
         VS.
 
         
 
         JOHN MORRELL & CO.,
 
         
 
              Employer,
 
                                         A R B I T R A T I 0 N
 
         and
 
                                         D E C I S I 0 N
 
         NATIONAL UNION FIRE INSURANCE
 
         COMPANY,
 
         
 
              Insurance Carrier,
 
         
 
         and
 
         
 
         SECOND INJURY FUND OF IOWA,
 
              Defendants.
 
         _________________________________
 
         STEVEN WILLIAMS,
 
              Claimant,
 
                                         File No. 807893
 
         VS.
 
         
 
         IOWA MEAT PROCESSING CO.,
 
         
 
              Employer,
 
         
 
         and
 
         
 
         CHUBB GROUP OF INSURANCE
 
         COMPANIES,
 
         
 
              Insurance Carrier,
 
         
 
         and
 
         
 
         SECOND INJURY FUND OF IOWA,
 
         
 
              Defendants.
 
         
 
         
 
         
 
         3202
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
              Claimant, who failed to establish disability arising from 
 
         first injury, did not establish liability of Second Injury Fund 
 
         for either of two claimed second injuries.
 
         
 
         2901
 
         
 
              Motion to conform to the proof was overruled where the 
 
         motion requested deputy to pick an unspecified date of second 
 
         injury that would benefit claimant.  Motion would substantially 
 
         change issues.
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                   BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         JERRI MATTER,
 
         
 
              Claimant,
 
         
 
         vs.
 
                                                File No. 826924
 
         RAY BENEGAS, d/b/a
 
         RAY'S MAID RITE,                    A R B I T R A T I O N
 
         
 
              Employer,                         D E C I S I O N
 
         
 
         and
 
         
 
         FARM BUREAU MUTUAL INS.,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         
 
         
 
                                   INTRODUCTION
 
         
 
              This is a proceeding in arbitration brought by Jerri Matter 
 
         wherein she alleges that she injured her back on or about 
 
         September 23, 1985.  The case was heard and fully submitted at 
 
         Fort Dodge, Iowa on January 25, 1988.  The record in this 
 
         proceeding consists of testimony from Jerri Matter, LeRoy 
 
         Caldwell, Delores Groves, Robin Yates, Carol Yates and Ray 
 
         Benegas.  The record contains claimant's exhibits A, B, C, G, H, 
 
         I, J, K, L, M, N, 0, P, Q, S, V, X, Z, AA.  The record contains 
 
         defendants' exhibit A which contains parts 1 through 36.
 
         
 
                                      ISSUES
 
         
 
              The issues identified by the parties for determination are 
 
         whether claimant sustained an injury which arose out of and in 
 
         the course of her employment; whether the alleged injury 
 
         proximately caused any temporary total disability, healing period 
 
         or permanent partial disability; whether the claim is barred by 
 
         lack of notice pursuant to Iowa Code section 85.23; and, whether 
 
         the injury was a proximate cause of the conditions for which 
 
         claimant received medical treatment and incurred expenses.  
 
         Additionally, claimant seeks treatment at the Mercy Medical 
 
         Center Pain Clinic.  Claimant asserts her case as either a new 
 
         injury or as an aggravation of a preexisting condition.
 
         
 
                               SUMMARY OF EVIDENCE
 
         
 
              The following is a summary of evidence presented in this 
 
         case.  Only the evidence most pertinent to this decision is 
 
         discussed, but all of the evidence received at the hearing was 
 
         considered in arriving at this decision.  Conclusions about what 
 
         the evidence showed are inevitable with any summarization.  The 
 
         conclusions in the following summary should be considered to be 
 
         preliminary findings of fact.
 
         
 
              Jerri Matter is a 44-year-old lady who is currently employed 
 
         in the Wal-Mart cafeteria.  Most of her employment history has 
 

 
         
 
         
 
         
 
         MATTER V. RAY BENEGAS, d/b/a/ RAYS MAID RITE
 
         PAGE   2
 
         
 
         
 
         involved the food service industry.  Claimant commenced 
 
         employment at the Maid Rite at Fort Dodge when it was owned by 
 
         Jim Kennedy.  She remained employed at the Maid Rite during the 
 
         five or six months it was owned by LeRoy Caldwell in early 1985.  
 
         Her employment continued when the Maid Rite was purchased by Ray 
 
         Benegas in mid-1985.  Claimant's job duties included waitress 
 
         work, cooking and cleanup.
 
         
 
              Matter testified that she was injured on September 23, 1985. 
 
          She stated that she was placing a stack of eight or ten 
 
         stoneware plates onto an overhead shelf when she felt a sharp 
 
         pain in her lower back.  Claimant stated that she completed the 
 
         task, but then grabbed the counter where she was working so that 
 
         she would not fall.  She stated that, while standing there, Ray 
 
         Benegas approached her, asked what was wrong and she reported 
 
         that she hurt her back.  Claimant stated that she stood there and 
 
         held the counter while Ray Benegas called John Calisesi, D.C., 
 
         and then directed claimant to see him.  Claimant stated that she 
 
         left work and attended the 11:00 appointment.  Claimant stated 
 
         that the injury occurred at approximately 8:30 a.m.
 
         
 
              Claimant testified that she treated with Dr. Calisesi for 
 
         approximately a week, but did not improve.  She was referred to 
 
         the University of Iowa Hospitals and Clinics at Iowa City where 
 
         she was diagnosed as having a herniated L5-Sl disc.  On March 24, 
 
         1986, discectomy was performed by Patrick Collalto, M.D.  
 
         Claimant was also seen by Thomas R. Lehmann, M.D., who at the 
 
         time was a professor in the Department of Orthopaedic Surgery.  
 
         Dr. Lehmann's clinical notes indicate that, on August 27, 1986, 
 
         it was indicated that further improvement in her condition was 
 
         not expected (exhibits A-24 and A-28).  Claimant incurred 
 
         expenses in the amount of $5,252.58 at the University of Iowa 
 
         Hospitals and Clinics (exhibit A-26).  Claimant complained of 
 
         residual pain, discomfort and restrictions since the surgery.
 
         
 
              Claimant stated that she did not feel able to return to work 
 
         when she was released by Dr. Lehmann, but actually returned to 
 
         work in March of 1987.  Claimant feels that she would be unable 
 
         to perform some of the activities that she had previously 
 
         performed as a waitress, in particular, bussing tables and 
 
         carrying tubs of dishes.  Claimant stated that she would like to 
 
         be treated at the Mercy Medical Center Pain Clinic.
 
         
 
              Claimant testified that she has had minor problems with her 
 
         back.  She stated that she had been to a physician for her back 
 
         once and received physical therapy.  She denied having any reason 
 
         to see a physician for her back while she was employed at the 
 
         Maid Rite until the time of this injury.
 
         
 
              Claimant testified that, when she was hospitalized in March 
 
         of 1974, her ex-husband had used a hose on her back.  When 
 
         questioned regarding exhibit A-5, pages 2 and 3, claimant was 
 
         unable to recall having given a history including years of back 
 
         pain.  Claimant did not recall completing the form which appears 
 
         in the record as exhibit 1 to exhibit A-35, the deposition of Dr. 
 
         Calisesi.  The same document appears in the record as exhibit 
 
         A-23.  Claimant stated that her back started bothering her a few 
 
         days before it actually went out on September 23, 1985.  She 
 
         attributed the onset to carrying grease from the donut machine.
 
         
 
              LeRoy Caldwell, claimant's employer for approximately the 
 
         first six months of 1985 when he owned the Maid Rite, testified 
 
         that claimant never complained of her back and never had a 
 

 
         
 
         
 
         
 
         MATTER V. RAY BENEGAS, d/b/a/ RAYS MAID RITE
 
         PAGE   3
 
         
 
         
 
         problem doing anything while he employed her.
 
         
 
              Delores Groves testified that she had been employed at the 
 
         Maid Rite restaurant when it was owned by Jim Kennedy, but left 
 
         the employment prior to the time the restaurant was purchased by 
 
         Ray Benegas.  Groves testified that part of claimant's duties 
 
         involved draining roasters which weighed 25 pounds and draining 
 
         the deep fat fryer which likewise weighs 25 pounds.  Groves 
 
         stated that she was not aware of claimant having any problems 
 
         with her back prior to the current alleged injury of September 
 
         23, 1985.  Groves was not aware that claimant had received 
 
         treatment for her back in March of 1984.
 
         
 
              Robin Yates testified that she has been employed as a 
 
         waitress, cook and cleanup person at the Maid Rite since June of 
 
         1985.  Robin stated that the heavier chores include changing the 
 
         fryer grease, but that claimant never did it because she was not 
 
         strong enough.  Robin stated that claimant did change the oil in 
 
         the donut machine which, when full, weighs 10 or 12 pounds.
 
         
 
              Robin testified that claimant frequently complained of back 
 
         pain during the time when the restaurant was owned by LeRoy 
 
         Caldwell.  Robin stated that, at times, claimant had exhibited a 
 
         limp and would sit down carefully.  Robin stated that claimant's 
 
         complaints and actions were the same when Ray Benegas owned the 
 
         business as they had been previously and that, during the summer 
 
         of 1985, claimant continued to complain of back and leg soreness.  
 
         Robin stated that, when she asked claimant why she had 
 
         difficulty, claimant replied that her ex-husband had beat her 
 
         up.
 
         
 
              Robin testified that she recalled September 23, 1985 as the 
 
         day when claimant went to see Dr. Calisesi.  Robin denied that 
 
         claimant said anything about hurting her back at work on that 
 
         occasion and further stated that Benegas had suggested to 
 
         claimant previously that she see Dr. Calisesi for her back 
 
         problems.  Robin stated that claimant did not return to work 
 
         after September 23 and that she and her mother went to claimant's 
 
         residence to obtain the key which claimant had used to open the 
 
         restaurant in the mornings.  Robin stated that, while there, 
 
         claimant again stated that her ex-husband beating her up was the 
 
         source of her back problems.
 
         
 
              Robin stated that she was certain that claimant had gone to 
 
         Dr. Calisesi prior to September 23, 1985, but on 
 
         re-cross-examination, stated that the first time claimant went 
 
         was when Ray Benegas phoned to arrange the appointment.
 
         
 
              Carol Yates, the mother of Robin Yates, testified that she 
 
         has known claimant since junior high school, but did not 
 
         socialize with her.  Carol stated that she had seen claimant 
 
         working at the Maid Rite when she patronized the restaurant.  
 
         Carol testified that she first became aware of claimant's back 
 
         problem while LeRoy Caldwell owned the restaurant when claimant 
 
         told her she was having trouble with her back.  Carol testified 
 
         that, when Robin went to get the key following September 23, 
 
         1985, claimant stated that her back trouble had resulted from her 
 
         husband beating her.
 
         
 
              Ray Benegas, the owner of the Maid Rite; restaurant at Fort 
 
         Dodge, testified that claimant was one of four employees who 
 
         continued to be employed when he purchased the restaurant.  
 
         Benegas stated that claimant often talked of her back at the 
 

 
         
 
         
 
         
 
         MATTER V. RAY BENEGAS, d/b/a/ RAYS MAID RITE
 
         PAGE   4
 
         
 
         
 
         restaurant and that he suggested she see a doctor or 
 
         chiropractor.  Benegas stated that the situation had continued 
 
         throughout the summer of 1985.
 
         
 
             Benegas stated that one day claimant indicated she had hurt 
 
         her back and he phoned Dr. Calisesis office and talked to a 
 
         secretary.  Benegas stated that claimant was placed on the 
 
         telephone and made an appointment.  Benegas testified that 
 
         claimant was taken off work following that appointment and has 
 
         not returned since.  He stated that claimant never indicated to 
 
         him that she had hurt her back at work and that his first notice 
 
         of this claim was in August of 1986 when he received notice of 
 
         this proceeding.
 
         
 
              Exhibit 3, page 3, contains records of when claimant was 
 
         hospitalized on March 2, 1974.  The history indicates that 
 
         claimant had been beaten by her former husband, that she 
 
         complained of back pain and reported being kicked in the back.  
 
         The document shows that claimant's back was bruised.
 
         
 
              Exhibits A-6 and A-7 indicate that claimant received 
 
         treatment for low back pain in October of 1975.  Exhibit A-9 
 
         shows that claimant was treated for a condition that was 
 
         diagnosed as lumbar disc syndrome.  An x-ray report dated June 5, 
 
         1980 was interpreted as showing a normal lumbosacral spine.  
 
         Similar normal x-ray reports appear at exhibit A-5, page 14.  
 
         Regular x-rays of claimant's lumbosacral spine taken March 6, 
 
         1986 were interpreted as being normal (exhibit A-24, page 4).
 
         
 
              Records dated March 30, 1980 indicate that claimant was 
 
         treated for low back pain with physical therapy.  The record 
 
         indicates that she complained of pain in her left leg at that 
 
         time, but that she had previously had pain in both legs.  The 
 
         report indicates that she reported having episodes of weakness in 
 
         her legs (exhibit A-21).
 
         
 
              Exhibit A-5, page 2, is a record dated March 30, 1984 
 
         showing that claimant sought treatment for back complaints.  A 
 
         portion of the record indicates that claimant is a 40-year-old 
 
         female with recurrent episodes of low back pain which have 
 
         continued for four years with some radiation into her left leg.
 
         
 
                           APPLICABLE LAW AND ANALYSIS
 
         
 
              Claimant has the burden of proving by a preponderance of the 
 
         evidence that she received an injury on September 23, 1985 which 
 
         arose out of and in the course of her employment.  McDowell v. 
 
         Town of Clarksville, 241 N.W.2d 904 (Iowa 1976); Musselman v. 
 
         Central Telephone Co., 261 Iowa 352, 154 N.W.2d 128 (1967).
 
         
 
              The words "out of" refer to the cause or source of the 
 
         injury.  Crowe v. DeSoto Consol. Sch. Dist., 246 Iowa 402, 68 
 
         N.W.2d 63 (1955).
 
         
 
              The words "in the course of" refer to the time and place and 
 
         circumstances of the injury.  McClure v. Union et al. Counties, 
 
         188 N.W.2d 283 (Iowa 1971); Crowe v. DeSoto Consol. Sch. Dist., 
 
         246 Iowa 402, 68 N.W.2d 63 (1955).
 
         
 
              The supreme court of Iowa in Almquist v. Shenandoah 
 
         Nurseries, 218 Iowa 724, 254 N.W. 35 (1934) at 731-32, discussed 
 
         the definition of personal injury in workers' compensation cases 
 
         as follows:
 

 
         
 
         
 
         
 
         MATTER V. RAY BENEGAS, d/b/a/ RAYS MAID RITE
 
         PAGE   5
 
         
 
         
 
         
 
              While a personal injury does not include an 
 
              occupational disease under the workmen's Compensation 
 
              Act, yet an injury to the health may be a personal 
 
              injury (Citations omitted.]  Likewise a personal injury 
 
              includes a disease resulting from an injury .... The 
 
              result of changes in the human body incident to the 
 
              general processes of nature do not amount to a personal 
 
              injury.  This must follow, even though such natural 
 
              change may come about because the life has been devoted 
 
              to labor and hard work.  Such result of those natural 
 
              changes does not constitute a personal injury even 
 
              though the same brings about impairment of health or 
 
              the total or partial incapacity of the functions of the 
 
              human body.
 
         
 
                 ....
 
         
 
              A personal injury, contemplated by the Workmen's 
 
              Compensation Law, obviously means an injury to the 
 
              body, the impairment of health, or a disease, not 
 
              excluded by the act, which comes about, not through the 
 
              natural building up and tearing down of the human body, 
 
              but because of a traumatic or other hurt or damage to 
 
              the health or body of an employee. [Citations omitted.]  
 
              The injury to the human body here contemplated must be 
 
              something, whether an accident or not, that acts 
 
              extraneously to the natural processes of nature and 
 
              thereby impairs the health, overcomes, injures, 
 
              interrupts, or destroys some function of the body, or 
 
              otherwise damages or injures a part or all of the 
 
              body.
 
         
 
              While a claimant is not entitled to compensation for the 
 
         results of a preexisting injury or disease, the mere existence at 
 
         the time of a subsequent injury is not a defense.  Rose v. John 
 
         Deere Ottumwa Works, 247 Iowa 900, 908, 76 N.W.2nd 756 (1956).  
 
         If the claimant had a preexisting condition or disability that is 
 
         aggravated, accelerated, worsened or lighted up so that it 
 
         results in disability, claimant is entitled to recover.  Nicks v 
 
         Davenport Produce Co., 254 Iowa 130, 115 N.W.2d 812, (1962).
 
         
 
              The appearance an demeanor of all the witnesses who 
 
         testified at hearing was observed and considered.  The record in 
 
         this case clearly shows that claimant had.substantial preexisting 
 
         problems with her back.  Exhibits A-5 and A-21 are particularly 
 
         noteworthy.  When claimant initially saw Dr. Calisesi, she 
 
         reported having problems with her back for as much as seven 
 
         years.  The employer and Robin Yates, who claimant agreed was 
 
         present at the time of her alleged injury, both denied that 
 
         claimant was injured at work or that claimant made any claim of a 
 
         work injury on September 23, 1985.  A review of the medical 
 
         records indicates that it was not until a time subsequent to her 
 
         surgery that any medical record shows a history wherein the 
 
         claimant attributed her problem to lifting plates at work or any 
 
         similar activity.  Exhibit A-22, reports from the University of 
 
         Iowa Hospitals and Clinics, indicates a history of pain worsened 
 
         by coughing (the date of the exhibit is interpreted as being 
 
         January 16, 1986 rather than 1985).
 
         
 
              X-rays of claimant's lumbar spine taken prior to her injury 
 
         were generally reported as being normal.  Regular x-rays taken on 
 
         March 6, 1986 were likewise interpreted as being normal.  
 

 
         
 
         
 
         
 
         MATTER V. RAY BENEGAS, d/b/a/ RAYS MAID RITE
 
         PAGE   6
 
         
 
         
 
         Claimant's herniated disc was confirmed by a CT scan which was 
 
         performed March 14, 1986.  Apparently, the abnormality was one 
 
         which was not discernible through regular x-rays and pre-1985 
 
         x-rays, although normal, do not establish the absence of a 
 
         preexisting disc herniation.
 
         
 
              Claimant's testimony of having injured her back a few days 
 
         prior to September 23, 1985 is likewise uncorroborated by 
 
         anything in the medical records, except for the possibility of 
 
         the records maintained by Dr. Calisesi where claimant indicates 
 
         that the onset of her problem was one month ago, worse 
 
         approximately a week ago.  The notation, however, goes on to 
 
         state that claimant has had back problems for seven years.
 
         
 
              In considering this case, it is recognized that claimant's 
 
         incident of being kicked and beaten by her ex-husband occurred in 
 
         1974, a time approximately 11 years prior to the time at which 
 
         she alleges to have been injured in this claim.
 
         
 
              Having observed all the witnesses as they testified, it is 
 
         determined that claimant has failed to prove, by a preponderance 
 
         of the evidence, that she injured her back while performing any 
 
         of the duties of her employment with Ray Benegas, d/b/a Ray's 
 
         Maid Rite on or about September 23, 1985.
 
              Since claimant has failed to prove an injury arising out of 
 
         and in the course of employment, it is unnecessary to address the 
 
         section 85.23 defense.
 
         
 

 
         
 
         
 
         
 
         MATTER V. RAY BENEGAS, d/b/a/ RAYS MAID RITE
 
         PAGE   7
 
         
 
         
 
                                 FINDINGS OF FACT
 
         
 
              1.  Having observed the appearance and demeanor of all 
 
         witnesses as they testified at hearing and having considered 
 
         their testimony in light of all the other evidence in the case, 
 
         it is determined that claimant's credibility is not sufficiently 
 
         strong to overcome the conflicting evidence of what occurred on 
 
         September 23, 1985 as related by Ray Benegas and Robin Yates.
 
         
 
              2.  Jerri Matter has failed to introduce evidence in the 
 
         case showing it to be more likely than not that she injured her 
 
         back while lifting plates, carrying grease or in any other 
 
         activity which she performed at Ray's Maid Rite on or about 
 
         September 23, 1985.
 
         
 
                                CONCLUSIONS OF LAW
 
         
 
              1.  This agency has jurisdiction of the subject matter of 
 
         this proceeding and its parties.
 
         
 
              2.  Claimant has failed to prove, by a preponderance of the 
 
         evidence, that she sustained an injury to her back, whether it be 
 
         an original injury or an aggravation of a preexisting condition, 
 
         which arose out of and in the course of her employment with Ray 
 
         Benegas, d/b/a Ray's Maid Rite on or about September 23, 1985.
 
         
 
                                      ORDER
 
         
 
              IT IS THEREFORE ORDERED that claimant take nothing from this 
 
         proceeding.
 
         
 
              IT IS FURTHER ORDERED that the costs of this action are 
 
         assessed against claimant pursuant to Division of Industrial 
 
         Services Rule 343-4.33.
 
         
 
              Signed and filed this 7th day of December, 1988.
 
         
 
         
 
         
 
         
 
                                       MICHAEL G. TRIER
 
                                       DEPUTY INDUSTRIAL COMMISSIONER
 
         
 
         Copies To:
 
         
 
         Mr. Terry W. Guinan
 
         Attorney at Law
 
         403 Snell Building
 
         P.O. Box 896
 
         Fort Dodge, Iowa  50501
 
         
 
         Mr. Tito Trevino
 
         Attorney at Law
 
         503 Snell Building
 
         P.O. Box 1680
 
         Fort Dodge, Iowa 50501
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                               1402.20, 1402.30
 
                                               Filed December 7, 1988
 
                                               MICHAEL G. TRIER
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         JERRI MATTER,
 
         
 
              Claimant,
 
         
 
         vs.
 
                                                  File  No. 826924
 
         RAY BENEGAS, d/b/a
 
         RAY'S MAID RITE,                      A R B I T R A T I O N
 
         
 
               Employer,                          D E C I S I O N
 
         
 
         and
 
         
 
         FARM BUREAU MUTUAL INS.,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         1402.20, 1402.30
 
         
 
              The evidence clearly established that claimant had a long 
 
         standing problem with her back.  She testified to an event of 
 
         injury, which testimony was contradicted by testimony from her 
 
         employer and a co-employee.  The history which claimant gave to 
 
         her treating physicians for a period of approximately six months 
 
         following the injury made no reference to the events of which she 
 
         testified at hearing.  It was determined that claimant's 
 
         credibility was not sufficiently strong to overcome the 
 
         conflicting evidence.  It was held that claimant failed to prove 
 
         that she sustained an injury which arose out of and in the course 
 
         of her employment.
 
         
 
 
         
 
 
 
 
 
 
 
 
 
 
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         DAVID L. FREDERIKSEN,
 
         
 
              Claimant,
 
                                                 File No. 826930
 
         vs.
 
                                                    A P P E A L
 
         PIZZA HUT RESTAURANT OF
 
         ATLANTIC, IOWA,                          D E C I S I O N
 
         
 
              Employer,
 
                                                     F I L E D
 
         and
 
                                                    JUL 27 1989
 
         HOME INSURANCE COMPANY,
 
                                                INDUSTRIAL SERVICES
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
                              STATEMENT OF THE CASE
 
         
 
              Claimant appeals from an arbitration decision denying 
 
         claimant temporary total disability benefits and medical expenses 
 
         as a result of an alleged injury on February 18, 1986.
 
         
 
              The record on appeal consists of the transcript of the 
 
         arbitration decision and joint exhibit 1.  The claimant filed a 
 
         brief on appeal.
 
         
 
                                      ISSUE
 
         
 
              Claimant states the following issue on appeal:  "The 
 
         Industrial Commissioner erred in finding that the injury of 
 
         claimant-appellant did not 'arise out of' his employment."
 
         
 
                              REVIEW OF THE EVIDENCE
 
         
 
              The arbitration decision adequately and accurately reflects 
 
         the pertinent evidence and it will not be set forth herein.
 
         
 
                                  APPLICABLE LAW
 
         
 
              The citations of law in the arbitration decision are 
 
         appropriate to the issue and the evidence.
 
         
 
                                     ANALYSIS
 
         
 
              The analysis of the evidence in conjunction with the law is 
 
         adopted.
 
         
 
                                 FINDINGS OF FACT
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
              1.  On February 18, 1986, claimant suffered an injury to his 
 
         right hand when he struck a plastic plate with his right hand 
 
         while on break.
 
         
 
              2.  Claimant has failed to introduce any evidence which 
 
         shows it to be more likely than not that anything connected with 
 
         his employment at Pizza Hut was a substantial factor in causing 
 
         him to strike a plate with his right hand.
 
         
 
                                    CONCLUSION
 
         
 
              Claimant has failed to establish by a preponderance of the 
 
         evidence, that he sustained an injury on February 18, 1986, which 
 
         arose out of his employment with Pizza Hut Restaurant of 
 
         Atlantic, Iowa.
 
         
 
              WHEREFORE, the decision of the deputy is affirmed.
 
         
 
                                      ORDER
 
         
 
              THEREFORE, it is ordered:
 
         
 
              That claimant take nothing from this proceeding.
 
         
 
              That claimant pay the costs of this proceeding pursuant to 
 
         Division of Industrial Services Rule 343-4.33.
 
         
 
                   Signed and filed this 27th day of July, 1989.
 
         
 
         
 
         
 
         
 
         
 
                                                 DAVID E. LINQUIST
 
                                              INDUSTRIAL COMMISSIONER
 
         
 
         Copies To:
 
         
 
         Mr. Robert Kohorst
 
         Attorney at Law
 
         602 Market Street
 
         P.O. Box 722
 
         Harlan, Iowa  51537
 
         
 
         Mr. James E. Thorn
 
         Attorney at Law
 
         P.O. Box 398
 
         Council Bluffs, Iowa  51502
 
         
 
              
 
         
 
         
 
         
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         
 
         
 
         
 
                                        
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
 
                                            
 
 
 
 
 
 
 
 
 
 
 
                                            1402, 1042.30
 
                                            Filed July 27, 1989
 
                                            DAVID E. LINQUIST
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         DAVID L. FREDERIKSEN,
 
         
 
              Claimant,
 
                                                  File No. 826930
 
         vs.
 
         
 
         PIZZA HUT RESTAURANT OF                     A P P E A L
 
         ATLANTIC, IOWA,
 
         
 
              Employer,                            D E C I S I O.N
 
         
 
         and
 
         
 
         HOME INSURANCE COMPANY,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         
 
         1402, 1402.30
 
         
 
              Claimant struck a plastic plate in anger and injured his 
 
         right hand while on break.  Claimant was denied temporary total 
 
         disability benefits and medical expenses because although the 
 
         injury was in the course of the employment, it did not arise out 
 
         of the employment.
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         DAVID L. FREDERIKSEN,
 
         
 
              Claimant,
 
         
 
         vs.
 
                                                 File No. 826930
 
         PIZZA HUT RESTAURANT
 
         OF ATLANTIC, IOWA,                   A R B I T R A T I 0 N
 
         
 
              Employer,                          D E C I S I 0 N
 
         
 
         and
 
         
 
         HOME INSURANCE COMPANY,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
                                   INTRODUCTION
 
         
 
              This is a proceeding in arbitration brought by David L. 
 
         Frederiksen against Pizza Hut Restaurant of Atlantic, Iowa, his 
 
         former employer, and Home Insurance Company, the employer's 
 
         insurance carrier.  Frederiksen seeks compensation for temporary 
 
         total disability and payment of expenses of medical treatment 
 
         incurred in connection with injury to his right hand that 
 
         occurred at his place of employment on February 18, 1986.  The 
 
         primary issue in the case is whether the injury to Frederiksen's 
 
         right hand arose out of and in the course of employment.
 
         
 
              The case was heard and fully submitted on February 16, 1988 
 
         at Council Bluffs, Iowa.  The record in the proceeding consists 
 
         of joint exhibit 1.
 
         
 
                               SUMMARY OF EVIDENCE
 
         
 
              The following is a summary of evidence presented in this 
 
         case.  Only the evidence most pertinent to this decision is 
 
         discussed, but all of the evidence received at the hearing was 
 
         considered in arriving at this decision.  Conclusions about what 
 
         the evidence showed are inevitable with any summarization.  The 
 
         conclusions in the following summary should be considered to be 
 
         preliminary findings of fact.
 
         
 
              David L. Frederiksen was employed as a cook and also 
 
         performed general clean-up work at the Pizza Hut Restaurant of 
 
         Atlantic, Iowa.  On February 18, 1986, he took a break and sat at 
 
         a table with a co-employee and with a friend who had entered the 
 
         restaurant.  During the course of their conversation, Frederiksen 
 
         became upset.  He raised his right hand and intentionally struck 
 
         a plastic plate.  The plate broke and injured Frederiksen's right 
 
         hand.  In explaining the incident, Frederiksen stated as 
 
         follows:
 
         
 
              Q.  What was the cause of you being upset?
 
         
 
              A.  Well, numerous things.  I was angry with my 
 
              parents, my girl friend.  My jobs got me down.  I was 
 
              
 

 
              
 
 
 
       FREDRIKSEN V. PIZZA HUT RESTAURANT OF ATLANTIC, IOWA 
 
       PAGE 2       
 
              
 
              
 
              just depressed.
 
         
 
              Q.  In particular, it is my understanding that the 
 
              conversation focused on your girl friend, however?
 
         
 
              A.  Yes.
 
         
 
              Q.  And that while you and Jeff were discussing 
 
              something relating to your girl friend, you became 
 
              extremely angry?
 
         
 
              A.  Yeah. Yeah, I was mad and the longer -- you know -- 
 
              all around -- I didn't discuss my family problems but 
 
              --
 
         
 
              Q.  And while in this fit of anger, what did you do?
 
         
 
              A.  I struck a plate on the table.
 
         
 
         (Exhibit 1, pages 6 and 7)
 
         
 
              Q.  All right.  What things at work also were upsetting 
 
              you on that particular evening?
 
         
 
              A.  Pardon me?
 
         
 
              Q.  You had mentioned that your girl friend, your 
 
              parents and your work, all had combined to make you 
 
              angry.
 
         
 
              A.  Yeah.  My manager at the other job, on my other job 
 
              at Gene's Super-Valu was kind of riding me that day and 
 
              Russ Mangels, the manager of Pizza Hut, was making me 
 
              mad because he was never there to supervise. and we 
 
              couldn't get the work done right, cause nobody would 
 
              listen.
 
         
 
         (Exhibit 1, page 12)
 
         
 
                           APPLICABLE LAW AND ANALYSIS
 
         
 
              Claimant has the burden of proving by a preponderance of the 
 
         evidence that he received an injury on February 18, 1986 which 
 
         arose out of and in the course of his employment.  McDowell v. 
 
         Town of Clarksville, 241 N.W.2d 904 (Iowa 1976); Musselman v. 
 
         Central Telephone Co., 261 Iowa 352, 154 N.W.2d 128 (1967).
 
         
 
              The injury must both arise out of and be in the course of 
 
         the employment.  Crowe v. DeSoto Consol. Sch. Dist., 246 Iowa 
 
         402, 68 N.W.2d 63 (1955) and cases cited at pp. 405-406 of the 
 
         Iowa Report.  See also Sister Mary Benedict v. St. Mary's Corp., 
 
         255 Iowa 847, 124 N.W.2d 548 1963) and Hansen v. State of Iowa, 
 
         249 Iowa 1147, 91 N.W.2d 555 (1958).
 
         
 
              The words "out of" refer to the cause or source of the 
 
         injury.  Crowe v. DeSoto Consol. Sch. Dist., 246 Iowa 402, 68 
 
         N.W.2d 63 (1955).
 
         
 
              Frederiksen's injury clearly occurred in the course of his 
 
         employment since he was at the employer's place of business and 
 
         engaged in authorized activity, namely, a break.
 
         
 
              The requirement that the injury arise out of employment 
 
         relates to the cause and origin of the injury.  Sheerin v. Holin 
 

 
         
 
         
 
         
 
         FREDERIKSEN V. PIZZA HUT RESTAURANT OF ATLANTIC, IOWA
 
         PAGE   3
 
         
 
         Co., 380 N.W.2d 415 (Iowa 1986).
 
         
 
              The evidence fails to show that the injury arose out of the 
 
         employment.  The only statement that Frederiksen made regarding 
 
         his employment contributing to his anger was that the manager of 
 
         the Pizza Hut was never there to supervise and that therefore the 
 
         work was not being done properly.  There is no indication that 
 
         Frederiksen was being blamed, pressured or in any manner treated 
 
         unfairly by his employer at the Pizza Hut.  It appears that 
 
         claimant's dissatisfaction at Pizza Hut was quite minor in 
 
         comparison to the other stresses in his life.  It is therefore 
 
         determined that Frederiksen has failed to prove, by a 
 
         preponderance of the evidence that the injury to his right hand 
 
         arose out of his employment.
 
         
 
                                 FINDING OF FACT
 
         
 
              1.  David L. Frederiksen has failed to introduce any 
 
         evidence which shows it to be more likely than not that anything 
 
         connected with his employment at the Pizza Hut was a substantial 
 
         factor in causing him to strike a plate with his right hand on 
 
         February 18, 1986.
 
         
 
                                CONCLUSIONS OF LAW
 
         
 
              1.  This agency has jurisdiction of the subject matter of 
 
         this proceeding and its parties.
 
         
 
              2.  David L. Frederiksen has failed to prove, by a 
 
         preponderance of the evidence, that he sustained an injury on 
 
         February 18, 1986 which arose out of his employment with Pizza 
 
         Hut Restaurant of Atlantic, Iowa.
 
         
 
              3.  Claimant is entitled to take nothing from this 
 
         proceeding.
 
         
 
                                      ORDER
 
         
 
              IT IS THEREFORE ORDERED that David L. Frederiksen take 
 
         nothing from this proceeding.
 
         
 
              IT IS FURTHER ORDERED that the costs of this proceeding are 
 
         assessed against David L. Frederiksen pursuant to Division of 
 
         Industrial Services Rule 343-4.33.
 
         
 
              Signed and filed this 28th day of November, 1988.
 
         
 
         
 
         
 
         
 
         
 
         
 
                                       MICHAEL G. TRIER
 
                                       DEPUTY INDUSTRIAL COMMISSIONER
 
         
 
         Copies To:
 
         
 
         Mr. Robert Kohorst
 
         Attorney at Law
 
         602 Market Street
 

 
         
 
         
 
         
 
         FREDERIKSEN V. PIZZA HUT RESTAURANT OF ATLANTIC, IOWA
 
         PAGE   4
 
         
 
         
 
         
 
         
 
         P.O. Box 722
 
         Harlan, Iowa 51537
 
         
 
         Mr. James E. Thorn
 
         Attorney at Law
 
         P.O. Box 398
 
         Council Bluffs, Iowa 51502
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                             1103
 
                                             Filed November 28, 1988
 
                                             MICHAEL G. TRIER
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         
 
         DAVID L. FREDERIKSEN,
 
         
 
              Claimant,
 
         
 
         vs.
 
                                                 File No. 826930
 
         PIZZA HUT RESTAURANT
 
         OF ATLANTIC, IOWA,                   A R B I T R A T I 0 N
 
         
 
              Employer,                          D E C I S I 0 N
 
         
 
         and
 
         
 
         HOME INSURANCE COMPANY,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         1103
 
         
 
              Claimant, while on break, became angry and struck a plate 
 
         with his hand resulting in injury.  The evidence showed that the 
 
         anger was primarily connected with matters other than his 
 
         employment with the employer against whom the claim was made.  It 
 
         was held that claimant failed to prove that the injury arose out 
 
         of his employment.
 
 
 
         
 
 
        
 
 
 
 
 
                       BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
        
 
        
 
        ROBERT A. MEIER,
 
        
 
            Claimant,
 
        
 
        vs                                File No. 826937
 
        
 
        JOHN KIRBY, INC.,                    A P P E A L
 
        
 
            Employer,                     D E C I S I O N
 
        
 
        and
 
        
 
        FIREMAN'S FUND INSURANCE CO.,
 
        
 
            Insurance Carrier,
 
            Defendants.
 
        
 
        
 
                                 STATEMENT OF THE CASE
 
        
 
        Defendants appeal from an arbitration decision awarding permanent 
 
        partial disability benefits as the result of an alleged injury on 
 
        November 3, 1985. The record on appeal consists of the transcript 
 
        of the arbitration hearing; and joint exhibits 1 through 35. Both 
 
        parties filed briefs on appeal.
 
        
 
                                      ISSUE
 
        
 
        Defendants state the following issue on appeal: "Whether the 
 
        award of permanent partial disability benefits equal to 75% of 
 
        the body as a whole is excessive, contrary to law and not 
 
        supported by the evidence."
 
        
 
                                 REVIEW OF THE EVIDENCE
 
        
 
        The arbitration decision adequately and accurately reflects the 
 
        pertinent evidence and it will not be set forth herein.
 
        
 
                                 APPLICABLE LAW
 
        
 
        Functional impairment is an element to be considered in 
 
        determining industrial disability which is the reduction of 
 
        earning capacity, but consideration must also be given to the 
 
        injured employee's age, education, qualifications, experience and 
 
        inability to engage in employment for which he is fitted. Olson 
 
        v. Goodyear Service Stores, 255 Iowa 1112, 125 N.W.2d 251 (1963). 
 
        Barton v. Poultry, 253 Iowa 285, 110 N.W.2d 660 (1961).
 
        
 
        MEIER V. JOHN KIRBY, INC.
 
        Page 2
 
        
 
        A finding of impairment to the body as a whole found by a medical 
 
        evaluator does not equate to industrial disability. This is so as 
 
        impairment and disability are not synonymous. Degree of 
 
        industrial disability can in fact be much different than the 
 
        degree of impairment because in the first instance reference is 
 
        to loss of earning capacity and in the latter to anatomical or 
 
        functional abnormality or loss. Although loss of function is to 
 
        be considered and disability can rarely be found without it, it 
 
        is not so that a degree of industrial disability is 
 

 
        
 
 
 
 
 
        proportionally related to a degree of impairment of bodily 
 
        function.
 
        
 
        Factors to be considered in determining industrial disability 
 
        include the employee's medical condition prior to the injury, 
 
        immediately after the injury, and presently; the situs of the 
 
        injury, its severity and the length of healing period; the work 
 
        experience of the employee prior to the injury, after the injury 
 
        and potential for rehabilitation; the employee's qualifications 
 
        intellectually, emotionally and physically; earnings prior and 
 
        subsequent to the injury; age; education; motivation; functional 
 
        impairment as a result of the injury; and inability because of 
 
        the injury to engage in employment for which the employee is 
 
        fitted. Loss of earnings caused by a job transfer for reasons 
 
        related to the injury is also relevant. These are matters which 
 
        the finder of fact considers collectively in arriving at the 
 
        determination of the degree of industrial disability.
 
        
 
        There are no weighting guidelines that indicate how each of the 
 
        factors are to be considered. There are no guidelines which give, 
 
        for example, age a weighted value of ten percent of the total 
 
        value, education a value of fifteen percent of total, motivation 
 
        - five percent; work experience - thirty percent, etc. Neither 
 
        does a rating of functional impairment directly correlate to a 
 
        degree of industrial disability to the body as a whole. In other 
 
        words, there are no formulae which can be applied and then added 
 
        up to determine the degree of industrial disability. It therefore 
 
        becomes necessary for the deputy or commissioner to draw upon 
 
        prior experience, general and specialized knowledge to make the 
 
        finding with regard to degree of industrial disability. See 
 
        Peterson v. Truck Haven Cafe, Inc., (Appeal Decision, February 
 
        28, 1985); Christensen v. Hagen, Inc., (Appeal Decision, March 
 
        26, 1985).
 
        
 
                                      ANALYSIS
 
        
 
        The sole issue on appeal is the extent of claimant's industrial 
 
        disability. Industrial disability is determined by consideration 
 
        of several factors. Claimant's physical impairment subsequent to 
 
        his injury is one of these factors.
 
        
 
        Claimant has been given a permanent physical impairment rating of 
 
        15 percent of the body as a whole. This rating is
 
        
 
        MEIER V. JOHN KIRBY, INC.
 
        Page 3
 
        
 
        
 
        uncontroverted on the record. Robert J. Chesser, M.D., has 
 
        recommended against claimant returning to truck driving.
 
        
 
        Claimant's past work experience is also a factor. Claimant's work 
 
        experience is limited to over the road truck driving. Although 
 
        claimant has a small amount of skill in woodworking and typing, 
 
        these are not seen as viable employment options for him.
 
        
 
        Claimant is reasonably intelligent. He has obtained a GED. 
 
        Claimant is 42 years old, which places him at an age where he 
 
        would normally be the most productive in his work life. 
 
        Claimant's age makes retraining or further education possible in 
 
        his case.
 
        
 
        The evidence on claimant's motivation to return to work varies. 
 
        Claimant has not sought alternative work since his injury. 
 
        However, the vocational rehabilitation counselors found claimant 
 
        to be cooperative. They nevertheless predict that claimant would 
 

 
        
 
 
 
 
 
        be resistive to a work-hardening program that required claimant 
 
        to endure pain.
 
        
 
        Claimant has lost earnings as a result of his injury. Claimant 
 
        was earning approximately $27,000 before his injury. Claimant now 
 
        only works at a tavern busing tables and serving coffee without 
 
        compensation. This demonstrates that claimant could perform the 
 
        same or similar work for compensation and raises a question as to 
 
        why claimant is not doing so.
 
        
 
        The claimant's present potential for rehabilitation is a relevant 
 
        factor in determining claimant's industrial disability. 
 
        Claimant's impairment and aptitudes indicate that certain 
 
        sedentary jobs would be available to him, such as welding, 
 
        assembling, or accounting. It is also noted, however, that 
 
        claimant has no present skills in these areas and would need to 
 
        be trained. Claimant's enrollment in a community college program 
 
        designed to lead to a position of accountant's assistant is 
 
        indicative of claimant's motivation, but it would be speculative 
 
        to predict claimant's future earnings as an accountant's 
 
        assistant upon graduation in the future. Claimant's present 
 
        industrial disability must be determined on the various factors 
 
        utilized in determining industrial disability as they presently 
 
        exist.
 
        
 
        Based on these and all other appropriate factors for determining 
 
        industrial disability, claimant is determined to have an 
 
        industrial disability of 50 percent.
 
        
 
                                 FINDINGS OF FACT
 
        
 
        1. On November 3, 1985, claimant suffered an injury to the low 
 
        back and hip which arose out of and in the course of his 
 
        employment with Kirby.
 
        
 
        MEIER V. JOHN KIRBY, INC.
 
        Page 4
 
        
 
        
 
        2. The work injury of November 3, 1985 was a cause of a period of 
 
        disability from work beginning on November 3, 1985 and ending on 
 
        November 3, 1986, at which time claimant reached maximum healing.
 
        
 
        3. The work injury of November 3, 1985 was a cause of a 15 
 
        percent permanent partial physical impairment to the body as a 
 
        whole and of permanent restrictions upon claimant's physical 
 
        activity consisting of no heavy lifting, pushing, pulling; no 
 
        repetitive lifting, bending, stooping or climbing; or prolonged 
 
        sitting or standing.
 
        
 
        4. Claimant is 42 years of age with a GED.
 
        
 
        5. Claimant is unable to return to his job as a truck driver.
 
        
 
        6. Claimant's work experience is limited to truck driving.
 
        
 
        7. Claimant currently works as a part-time bartender/waiter for 
 
        which he receives no compensation.
 
        
 
        8. Claimant is able to perform sedentary work as a low grade 
 
        clerical person, restaurant or bar worker, or some type of light 
 
        bench work.
 
        
 
        9. Claimant has a 50 percent loss of earning capacity as a result 
 
        of his work injury of November 3, 1985.
 
        
 

 
        
 
 
 
 
 
                                 CONCLUSION OF LAW
 
        
 
        Claimant has an industrial disability of 50 percent as a result 
 
        of his work injury of November 3, 1985.
 
        
 
        WHEREFORE, the decision of the deputy is affirmed and modified.
 
        
 
                                      ORDER
 
        
 
        THEREFORE, it is ordered:
 
        
 
        That defendants shall pay to claimant two hundred fifty (250) 
 
        weeks of permanent partial disability benefits at the rate of two 
 
        hundred seventy-eight and 37/100 dollars ($278.37) per week from 
 
        November 4, 1986.
 
        
 
        That defendants shall pay to claimant healing period benefits 
 
        from November 3, 1985 through November 3, 1986 at the rate of two 
 
        hundred seventy-eight and 37/100 dollars ($278.37) per week.
 
        
 
        MEIER V. JOHN KIRBY, INC.
 
        Page 5
 
        
 
        
 
        That defendants shall pay accrued weekly benefits in a lump sum 
 
        and shall receive credit against this award for all benefits 
 
        previously paid.
 
        
 
        That defendants shall pay interest on benefits awarded herein as 
 
        set forth in Iowa Code section 85.30.
 
        
 
        That defendants shall pay the costs of this action pursuant to 
 
        Division of Industrial Services Rule 343-4.33.
 
        
 
        That defendants shall file activity reports on the payment of 
 
        this award as requested by this agency pursuant to Division of 
 
        Industrial Services Rule 343-3.1.
 
        
 
        
 
        Signed and filed this 31st day of March, 1989
 
        
 
        
 
        
 
                                              DAVID E. LINQUIST
 
                                            INDUSTRIAL COMMISSIONER
 
        
 
        
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                   BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         ROBERT A. MEIER,
 
         
 
              Claimant,                               File No. 826937
 
         
 
         vs.                                            A P P E A L
 
         
 
         JOHN KIRBY, INC.,                            D E C I S I O N
 
         
 
              Employer,                                  F I L E D
 
         
 
         and                                            MAR 31 1989
 
         
 
         FIREMAN'S FUND INSURANCE CO.,         IOWA INDUSTRIAL 
 
         COMMISSIONER
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
                              STATEMENT OF THE CASE
 
         
 
              Defendants appeal from an arbitration decision awarding 
 
         permanent partial disability benefits as the result of an alleged 
 
         injury on November 3, 1985.  The record on appeal consists of the 
 
         transcript of the arbitration hearing; and joint exhibits 1 
 
         through 35.  Both parties filed briefs on appeal.
 
         
 
                                    ISSUE
 
         
 
              Defendants state the following issue on appeal:  "Whether 
 
         the award of permanent partial disability benefits equal to 75% 
 
         of the body as a whole is excessive, contrary to law and not 
 
         supported by the evidence."
 
         
 
                             REVIEW OF THE EVIDENCE
 
         
 
              The arbitration decision adequately and accurately reflects 
 
         the pertinent evidence and it will not be set forth herein.
 
         
 
                               APPLICABLE LAW
 
         
 
              Functional impairment is an element to be considered in 
 
         determining industrial disability which is the reduction of 
 
         earning capacity, but consideration must also be given to the 
 
         injured employee's age, education, qualifications, experience and 
 
         inability to engage in employment for which he is fitted.  Olson 
 
         v. Goodyear Service Stores, 255 Iowa 1112, 125 N.W.2d 251 (1963). 
 
         Barton v. Nevada Poultry, 253 Iowa 285, 110 N.W.2d 660 (1961).
 
         
 
              A finding of impairment to the body as a whole found by a 
 
         medical evaluator does not equate to industrial disability.  This 
 
         is so as impairment and disability are not synonymous.  Degree of 
 
                                                
 
                                                         
 
         industrial disability can in fact be much different than the 
 
         degree of impairment because in the first instance reference is 
 
         to loss of earning capacity and in the latter to anatomical or 
 
         functional abnormality or loss.  Although loss of function is to 
 
         be considered and disability can rarely be found without it, it 
 
         is not so that a degree of industrial disability is 
 
         proportionally related to a degree of impairment of bodily 
 
         function.
 
         
 
              Factors to be considered in determining industrial 
 
         disability include the employee's medical condition prior to the 
 
         injury, immediately after the injury, and presently; the situs of 
 
         the injury, its severity and the length of healing period; the 
 
         work experience of the employee prior to the injury, after the 
 
         injury and potential for rehabilitation; the employee's 
 
         qualifications intellectually, emotionally and physically; 
 
         earnings prior and subsequent to the injury; age; education; 
 
         motivation; functional impairment as a result of the injury; and 
 
         inability because of the injury to engage in employment for which 
 
         the employee is fitted. Loss of earnings caused by a job transfer 
 
         for reasons related to the injury is also relevant.  These are 
 
         matters which the finder of fact considers collectively in 
 
         arriving at the determination of the degree of industrial 
 
         disability.
 
         
 
              There are no weighting guidelines that indicate how each of 
 
         the factors are to be considered.  There are no guidelines which 
 
         give, for example, age a weighted value of ten percent of the 
 
         total value, education a value of fifteen percent of total, 
 
         motivation - five percent; work experience - thirty percent, etc. 
 
         Neither does a rating of functional impairment directly correlate 
 
         to a degree of industrial disability to the body as a whole.  In 
 
         other words, there are no formulae which can be applied and then 
 
         added up to determine the degree of industrial disability.  It 
 
         therefore becomes necessary for the deputy or commissioner to 
 
         draw upon prior experience, general and specialized knowledge to 
 
         make the finding with regard to degree of industrial disability.  
 
         See Peterson v. Truck Haven Cafe, Inc., (Appeal Decision, 
 
         February 28, 1985); Christensen v. Hagen, Inc., (Appeal Decision, 
 
         March 26, 1985).
 
         
 
                                   ANALYSIS
 
         
 
              The sole issue on appeal is the extent of claimant's 
 
         industrial disability.  Industrial disability is determined by 
 
         consideration of several factors.  Claimant's physical impairment 
 
         subsequent to his injury is one of these factors.
 
         
 
              Claimant has been given a permanent physical impairment 
 
         rating of 15 percent of the body as a whole.  This rating is 
 
         uncontroverted on the record.  Robert J. Chesser, M.D., has 
 
         recommended against claimant returning to truck driving.
 
         
 
              Claimant's past work experience is also a factor.  
 
         Claimant's work experience is limited to over the road truck 
 
                                                
 
                                                         
 
         driving. Although claimant has a small amount of skill in 
 
         woodworking and typing, these are not seen as viable employment 
 
         options for him.
 
         
 
              Claimant is reasonably intelligent.  He has obtained a GED. 
 
         Claimant is 42 years old, which places him at an age where he 
 
         would normally be the most productive in his work life.  
 
         Claimant's age makes retraining or further education possible in 
 
         his case.
 
         
 
              The evidence on claimant's motivation to return to work 
 
         varies.  Claimant has not sought alternative work since his 
 
         injury.  However, the vocational rehabilitation counselors found 
 
         claimant to be cooperative.  They nevertheless predict that 
 
         claimant would be resistive to a work-hardening program that 
 
         required claimant to endure pain.
 
         
 
              Claimant has lost earnings as a result of.his injury. 
 
         Claimant was earning approximately $27,000 before his injury. 
 
         Claimant now only works at a tavern busing tables and serving 
 
         coffee without compensation.  This demonstrates that claimant 
 
         could perform the same or similar work for compensation and 
 
         raises a question as to why claimant is not doing so.
 
         
 
              The claimant's present potential for rehabilitation is a 
 
         relevant factor in determining claimant's industrial disability. 
 
         Claimant's impairment and aptitudes indicate that certain 
 
         sedentary jobs would be available to him, such as welding, 
 
         assembling, or accounting.  It is also noted, however, that 
 
         claimant has no present skills in these areas and would need to 
 
         be trained.  Claimant's enrollment in a community college program 
 
         designed to lead to a position of accountant's assistant is 
 
         indicative of claimant's motivation, but it would be speculative 
 
         to predict claimant's future earnings as an accountant's 
 
         assistant upon graduation in the future.  Claimant's present 
 
         industrial disability must be determined on the various factors 
 
         utilized in determining industrial disability as they presently 
 
         exist.
 
         
 
              Based on these and all other appropriate factors for 
 
         determining industrial disability, claimant is determined to have 
 
         an industrial disability of 50 percent.
 
         
 
                               FINDINGS OF FACT
 
         
 
              1.  On November 3, 1985, claimant suffered an injury to the 
 
         low back and hip which arose out of and in the course of his 
 
         employment with Kirby.
 
         
 
              2.  The work injury of November 3, 1985 was a cause of a 
 
         period of disability from work beginning on November 3, 1985 and 
 
         ending on November 3, 1986, at which time claimant reached 
 
         maximum healing.
 
         
 
              3.  The work injury of November 3, 1985 was a cause of a 15 
 
                                                
 
                                                         
 
         percent permanent partial physical impairment to the body as a 
 
         whole and of permanent restrictions upon claimant's physical 
 
         activity consisting of no heavy lifting, pushing, pulling; no 
 
         repetitive lifting, bending, stooping or climbing; or prolonged 
 
         sitting or standing.
 
         
 
              4.  Claimant is 42 years of age with a GED.
 
         
 
              5.  Claimant is unable to return to his job as a truck 
 
         driver.
 
         
 
              6.  Claimant's work experience is limited to truck driving.
 
         
 
              7.  Claimant currently works as a part-time bartender/waiter 
 
         for which he receives no compensation.
 
         
 
              8.  Claimant is able to perform sedentary work as a low 
 
         grade clerical person, restaurant or bar worker, or some type of 
 
         light bench work.
 
         
 
              9.  Claimant has a 50 percent loss of earning capacity as a 
 
         result of his work injury of November 3, 1985.
 
         
 
                            CONCLUSION OF LAW
 
         
 
                            
 
                                                         
 
              Claimant has an industrial disability of 50 percent as a 
 
         result of his work injury of November 3, 1985.
 
         
 
              WHEREFORE, the decision of the deputy is affirmed and 
 
         modified.
 
         
 
                                   ORDER
 
         
 
              THEREFORE, it is ordered:
 
         
 
              That defendants shall pay to claimant two hundred fifty 
 
         (250) weeks of permanent partial disability benefits at the rate 
 
         of two hundred seventy-eight and 37/100 dollars ($278.37) per 
 
         week from November 4, 1986.
 
         
 
              That defendants shall pay to claimant healing period 
 
         benefits from November 3, 1985 through November 3, 1986 at the 
 
         rate of two hundred seventy-eight and 37/100 dollars ($278.37) 
 
         per week.
 
         
 
              That defendants shall pay accrued weekly benefits in a lump 
 
         sum and shall receive credit against this award for all benefits 
 
         previously paid.
 
         
 
              That defendants shall pay interest on benefits awarded 
 
         herein as set forth in Iowa Code section 85.30.
 
         
 
              That defendants shall pay the costs of this action pursuant 
 
         to Division of Industrial Services Rule 343-4.33.
 
         
 
              That defendants shall file activity reports on the payment 
 
         of this award as requested by this agency pursuant to Division of 
 
         Industrial Services Rule 343-3.1.
 
         
 
         
 
              Signed and filed this 31st day of March, 1989.
 
         
 
         
 
         
 
         
 
         
 
         
 
                                               DAVID E. LINQUIST
 
                                            INDUSTRIAL COMMISSIONER
 
         
 
         Copies To:
 
         
 
         Mr. William J. Bribriesco
 
         Attorney at Law
 
         2407 18th Street, Suite 202
 
         Bettendorf, Iowa  52722
 
         
 
         Mr. Richard G. Book
 
         Attorney at Law
 
         500 Liberty Building
 
                                                
 
                                                         
 
         Des Moines, Iowa  50309
 
         
 
         
 
         
 
                                   
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                                 1803
 
                                                 Filed March 31, 1989 
 
                                                 DAVID E. LINQUIST
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         ROBERT A. MEIER,
 
         
 
              Claimant,
 
         
 
         vs.                                            File No. 826937
 
         
 
         JOHN KIRBY, INC.,                                A P P E A L
 
         
 
              Employer,                                 D E C I S I 0 N
 
         
 
         and
 
         
 
         FIREMAN'S FUND INSURANCE CO.,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         1803
 
         
 
              Claimant with a 15% permanent impairment of the body as a 
 
         whole, an inability to return to truck driving, work experience 
 
         limited to truck driving, 42 years of age, lost earnings, and 
 
         mediocre motivation awarded 50% industrial disability.
 
         
 
              Claimant's current enrollment in a college accounting 
 
         program noted for its relevance to claimant's motivation and 
 
         intelligence, but consideration of claimant's future earnings as 
 
         an accountant rejected as speculative.
 
         
 
              It was noted that claimant is currently helping out in a 
 
         tavern by waiting on tables and doing other minimal labor jobs 
 
         without compensation, and concluded that claimant was capable of 
 
         performing similar jobs for wages.
 
         
 
         
 
         
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
                                                
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                    BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         ROBERT A. MEIER,
 
         
 
              Claimant,
 
                                                  FILE NO.  826937
 
         VS.
 
                                               A R B I T R A T I 0 N
 
         JOHN KIRBY, INC.,
 
                                                  D E C I S I O N
 
              Employer,
 
         
 
         and
 
         
 
         FIREMAN'S FUND INSURANCE CO.,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         
 
                              STATEMENT OF THE CASE
 
         
 
              This is a proceeding in arbitration brought by Robert A. 
 
         Meier, claimant, against John Kirby, Inc., employer (hereinafter 
 
         referred to as Kirby), and Fireman's Fund Insurance Company, 
 
         insurance carrier, for workers' compensation benefits as a result 
 
         of an alleged injury on November 3, 1985.  On December 9, 1987, 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 the 
 
         following witnesses: Linwood Goldstone and Mary Ann Meier.  The 
 
         exhibits received into the evidence at the hearing are listed in 
 
         the prehearing report.  According to the prehearing report, the 
 
         parties have stipulated to the following matters:
 
         
 
              1.  On November 3, 1985, claimant received an injury which 
 
         arose out of and in the course of his employment with Kirby.
 
         
 
              2.  Claimant's rate of weekly compensation in the event of 
 
         an award of weekly benefits from this proceeding shall be $278.37 
 
         per week.
 
         
 
              3.  Claimant is seeking temporary total disability or 
 
         healing period benefits from November 3, 1985 and defendants 
 
         agree that claimant last worked for Kirby at that time.
 
         
 
              4.  If the injury is found to have caused permanent 
 
         disability, the type of disability is an industrial disability 
 
         to the body as a whole.
 
         
 

 
         
 
         
 
         
 
         MEIER V. JOHN KIRBY, INC.
 
         Page   2
 
         
 
              5.  All requested medical benefits have been or will be 
 
         paid by defendants.
 
         
 
                                   ISSUES
 
         
 
              The parties submitted the following issues for determination 
 
         in this proceeding:
 
         
 
              I.  Whether there is a causal relationship between the work 
 
         injury and permanent disability; and,
 
         
 
             II.  The extent of weekly benefits for permanent disability 
 
         to which claimant is entitled.
 
         
 
                             SUMMARY OF THE EVIDENCE
 
         
 
              The following is a summary of evidence presented in this 
 
         case.  For the sake of brevity, only the evidence most pertinent 
 
         to this decision is discussed.  Whether or not specifically 
 
         referred to in this summary, all of the evidence received at the 
 
         hearing was considered in arriving at this decision.  As will be 
 
         the case in any attempted summarization, conclusions about what 
 
         the evidence offered may show are inevitable.  Such conclusions, 
 
         if any, in the following summary should be considered as 
 
         preliminary findings of fact.
 
         
 
              Claimant testified that he worked for Kirby, based in the 
 
         Bettendorf, Iowa area, from May 31, 1985 until November 3, 1985, 
 
         the date of the work injury in this case, as an over-the-road 
 
         truck driver.  Claimant drove a truck hauling loads of inedible 
 
         animal fat to various parts of the nation.  Claimant testified 
 
         that he earned approximately $26,000 - $28,000 annually in this 
 
         job.  This job did not involve loading or unloading cargo but did 
 
         require claimant to hook up and pull hoses.  As a part of this 
 
         work, claimant was paid extra money to clean and wash the truck.  
 
         Claimant stated at hearing that he left his employment on 
 
         November 3, 1985, solely because of the work injury.  Defendants 
 
         stated in answers to interrogatories submitted into the evidence 
 
         that claimant was not terminated from his job following the work 
 
         injury but his job was filled by another person.  Claimant states 
 
         that Kirby is no longer in business.
 
         
 
              The facts surrounding the work injury are not in dispute.  
 
         Claimant testified that on November 3, 1985, while washing his 
 
         truck, he slipped and fell from the top of the tank trailer, a 
 
         distance of approximately 12 feet, onto a concrete surface.  
 
         Claimant said that he landed on his right side and hip.  Claimant 
 
         felt immediate pain in his hip and back and a rescue squad was
 
         
 
         
 
         called who transported him to the hospital.  After a diagnosis of 
 
         multiple contusions and soft tissue injury from the fall, 
 
         claimant was admitted to the hospital for observation and 
 
         testing.  X-rays at the time did not show any fractures or other 
 
         abnormalities and he was discharged on November 5, 1985 for 
 
         further follow up care.  Upon the advice of his physician, 
 
         claimant did not return to Kirby after the accident.
 
         
 
              Following his discharge from the hospital, claimant was at 
 
         first treated by Michael Kelly, M.D., specialty, if any, unknown, 
 

 
         
 
         
 
         
 
         MEIER V. JOHN KIRBY, INC.
 
         Page   3
 
         
 
         with pain medication and physical therapy for persistent low back 
 
         and hip pain.  Claimant, at this time, began using a cane for 
 
         walking.  Claimant was then referred by Dr. Kelly to Fareeduddin 
 
         Ahmed, M.D., specialty, if any, unknown, for evaluation and 
 
         treatment in January, 1986.  Upon a diagnosis of "inflammatory 
 
         change effecting [sic] the right sacroiliac joint as well as the 
 
         sypphysis pubis", and noting that the x-rays were negative, Dr. 
 
         Ahmed treated claimant with physical therapy, ultrasound therapy 
 
         and anti-inflammatory medication.  In March, 1986, Dr. Ahmed 
 
         noted a small decrease in pain and suggested claimant undergo a 
 
         weight reduction program and continue exercises.  In May, 1986, 
 
         claimant had not improved and was referred by the defendant 
 
         insurance carrier to Robert J. Chesser, M.D., a board certified 
 
         rehabilitation specialist at the Franciscan Rehabilitation Center 
 
         in Rock Island, Illinois.  Upon receiving complaints of 
 
         persistent lower back and right hip pain and negative CT scan and 
 
         myelogram test, Dr. Chesser diagnosed claimant was suffering from 
 
         right S-1 radicular process or a pinched nerve at the S-1 level 
 
         of claimant's lower spine.  In his deposition, Dr. Chesser could 
 
         not state whether the impingement of the nerve was due to bone or 
 
         disc material but from the history of no prior problems, he 
 
         concluded that the condition was due to the November 3, 1985 
 
         fall.  This opinion is based, in part, upon a positive ankle jerk 
 
         test, a clinical test to detect nerve damage.  Dr. Chesser 
 
         admitted in his deposition upon cross-examination that it was 
 
         possible that this positive ankle jerk test could be the result 
 
         of a 1968 fracture of claimant's leg but maintained that in his 
 
         opinion it was due to the November 3, 1985 fall.  Dr. Chesser 
 
         over the next several minutes attempted extensive physical 
 
         therapy of claimant to improve his condition but the treatment 
 
         did not prove successful.  Only the use of an electrical nerve 
 
         stimulation device called a TENS unit was helpful in relieving 
 
         some of claimant's pain.  In his deposition, Dr. Chesser stated 
 
         that although he indicated to defendants' insurance carrier in 
 
         June, 1987, that claimant's recovery had leveled off, he was not 
 
         asked for such an opinion earlier.  He stated that he usually 
 
         concludes that patients reach maximum recovery in these types of 
 
         injury one year after the injury.  He also stated that in his 
 
         opinion, claimant similarly had reached maximum healing one year 
 
         after the incident or on November 3, 1986.
 
         
 
              In August, 1986, claimant underwent extensive physical and 
 
         vocational rehabilitation testing at the Franciscan Center.  
 
         Results of this testing indicated that claimant was very limited 
 
         functionally and that claimant could not return to over-the-road 
 
         truck driving.  According to the Center, claimant was not able to 
 
         lift over 11.5 pounds or lift frequently; could not carry over 13 
 
         pounds; could only push or pull infrequently and with no more 
 
         force than 30 pounds; cannot bend forward, climb ladders and only 
 
         climb stairs infrequently; sitting must be limited; must be 
 
         allowed to change positions frequently; can only walk 
 
         occasionally on his job; prolonged standing or squatting is not 
 
         recommended; kneeling; and, crawling can only be performed 
 
         extremely and frequently.  The Center concluded as follows:  "At 
 
         present, Mr. Meier is functioning at a significantly low level.  
 
         At the present time he would qualify for a part-time sedentary 
 
         job due to his poor strength and overall endurance."  From the 
 
         vocational testing and assessment, the Center states as follows:
 
         
 
              Vocational Interests/Skills:
 

 
         
 
         
 
         
 
         MEIER V. JOHN KIRBY, INC.
 
         Page   4
 
         
 
         
 
              The patient said he enjoyed trucking because it allowed 
 
              him alot of independence.  He has no other real skills.  
 
              His only hobby was raising horses for a while.  He said 
 
              he did minor mechanics work, but has never had any 
 
              formal training.  "I figured I'd be a trucker driver 
 
              forever".  He says he has never thought about 
 
              alternatives.  He currently enjoys doing some 
 
              woodworking; he recently built a cabinet for their 
 
              microwave oven.  Although he did typing in the service, 
 
              it is not viewed as a vocational alternative.
 
         
 
                 . . .
 
         
 
              Vocational Summary:
 
         
 
              The patient seems reasonably intelligent but his 
 
              education is limited.  He has virtually no transferable 
 
              skills.  He has worked as a truck driver for over 20 
 
              years.  Any other work experiences, such as minor 
 
              repair work or typing, seem quite peripheral and do not 
 
              afford the basis for vocational redirection.  The 
 
              patient also has no vocational alternatives in mind.
 
         
 
              Recommendations:
 
         
 
              From a vocational viewpoint, the only obvious choice is 
 
              to try to return this man to his regular employment.  
 
              He expresses willingness to be evaluated and 
 
              participate in a work hardening program.  Other than 
 
              this, vocational redirection would basically have to 
 
              start from scratch, with a battery of aptitude and 
 
              interest tests.  I would not expect the patient to be 
 
              resistant initially, when started on physical capacity 
 
              evaluation.  However, he 
 
         
 
              seems to have some conflicting attitudes about his 
 
              rehabilitation needs.  I believe he would become 
 
              resistant if expected to push himself to tolerate pain, 
 
              or if he was expected to go through very many 
 
              changes/adjustments/adaptations.  Although he can be 
 
              pleasant, the M.M.P.I. suggests he is not actually a 
 
              very flexible person.
 
         
 
              Claimant has not returned to work in any capacity since the 
 
         work injury.  According to the Franciscan Center, claimant has 
 
         cooperated fully in the testing of his physical and vocational 
 
         attributes.  Claimant earned his GED shortly before the hearing 
 
         and plans on looking into the possibility of further training at 
 
         a local community college.
 
         
 
              Claimant was re-evaluated by Dr. Chesser in December, 1986, 
 
         and his condition was found unchanged.  Dr. Chesser opined that 
 
         claimant suffers from permanent impairment which he rates at 15 
 
         percent caused by the November 3, 1985 injury.  This opinion is 
 
         uncontroverted in the record.  Claimant testified that his low 
 
         back, hip and leg pain continues especially with activity.  This 
 
         pain at times becomes severe when he "over does it."  Claimant 
 
         states that his activities around the house are extremely 
 
         limited.  Claimant currently does assist his wife in helping out 
 

 
         
 
         
 
         
 
         MEIER V. JOHN KIRBY, INC.
 
         Page   5
 
         
 
         relatives operate a bar and claimant spends a few hours each day 
 
         serving coffee and busing tables without compensation.
 
         
 
              Claimant is 42 years of age and possesses only a ninth grade 
 
         formal education.  Claimant joined the Navy during the tenth 
 
         grade.  In the Navy he was primarily a janitor but occasionally 
 
         he did clerical work with some typing.  Claimant testified that 
 
         he has not performed typing since the Navy.  Claimant was in the 
 
         Navy for two years and has been a truck driver and after leaving 
 
         the Navy he became a truck driver.  Most of his truck driving has 
 
         been as an over-the-road interstate trucker.  Many of these truck 
 
         driver jobs required that claimant load and unload trucks but a 
 
         significant number only required that claimant drive the truck.
 
         
 
              Claimant has admitted to being an alcoholic but denies that 
 
         he has consumed any alcoholic beverages since receiving treatment 
 
         in a detoxification center in February, 1985.  Claimant denied 
 
         during the hearing that he was drinking at the time of the 
 
         November, 1985, fall.
 
         
 
              There was no evidence from either party as to the possible 
 
         availability of part-time sedentary work to claimant in the area 
 
         of his residence.
 
         
 
              Claimant's appearance and demeanor at the hearing indicated 
 
         he was testifying truthfully.
 
         
 
                           APPLICABLE LAW AND ANALYSIS
 
         
 
         
 
              I.  The claimant has the burden of proving by a 
 
         preponderance of the evidence that the work injury is a cause of 
 
         the claimed disability.  A disability may be either temporary or 
 
         permanent.  In the case of a claim for temporary disability, the 
 
         claimant must establish that the work injury was a cause of 
 
         absence from work and lost earnings during a period of recovery 
 
         from the injury.  Generally, a claim of permanent disability 
 
         invokes an initial determination of whether the work injury was a 
 
         cause of permanent physical impairment or permanent limitation in 
 
         work activity.  However, in some instances, such as a job 
 
         transfer caused by a work injury, permanent disability benefits 
 
         can be awarded without a showing of a causal connection to a 
 
         physical change of condition.  Blacksmith v. All-American, Inc., 
 
         290 N.W.2d 348, 354 (Iowa 1980); McSpadden v. Big Ben Coal Co., 
 
         288 N.W.2d 181 (Iowa 1980).
 
         
 
              The question of causal connection is essentially within the 
 
         domain of expert medical opinion.  Bradshaw v. Iowa Methodist 
 
         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 alone to support a finding of causal connection, 
 

 
         
 
         
 
         
 
         MEIER V. JOHN KIRBY, INC.
 
         Page   6
 
         
 
         such testimony may be coupled with nonexpert testimony to show 
 
         causation and be sufficient to sustain an award.  Giere v. Aase 
 
         Haugen Homes, Inc., 259 Iowa 1065, 146 N.W.2d 911, 915 (1966).  
 
         Such evidence does not, however, compel an award as a matter of 
 
         law.  Anderson v. Oscar Mayer & Co., 217 N.W.2d 531, 536 (Iowa 
 
         1974).  To establish compensability, the injury need only be a 
 
         significant factor, not be the only factor causing the claimed 
 
         disability.  Blacksmith, 290 N.W.2d 348, 354.  In the case of a 
 
         preexisting condition, an employee is not entitled to recover for 
 
         the results of a preexisting injury or disease but can recover 
 
         for an aggravation thereof which resulted in the disability found 
 
         to exist.  Olson v. Goodyear Service Stores, 255 Iowa 1112, 125 
 
         N.W.2d 251 (1963).
 
         
 
              In the case sub judice, given the uncontroverted views of 
 
         Dr. Chesser, claimant-has established that he has suffered 
 
         permanent impairment as a result of the work injury on November 
 
         3, 1985.  Claimant was credible in testifying that he had no 
 
         prior or subsequent injuries involving his back or hip.
 
         
 
              II.  Claimant must establish by a preponderance of the 
 
         evidence the extent of weekly benefits for permanent disability 
 
         to which claimant is entitled.  As the claimant has shown that 
 
         the work injury was a cause of a permanent physical impairment or 
 
         limitation upon activity involving the body as a whole, the 
 
         degree of permanent disability must be measured pursuant to Iowa 
 
         Code section 85.34(2)(u).  However, unlike scheduled member 
 
         disabilities, the degree of disability under this provision is 
 
         not measured solely by the extent of a functional impairment or 
 
         loss of use of a body member.  A disability to the body as a 
 
         whole or an "industrial disability" is a loss of earning capacity 
 
         resulting from the work injury.  Diederich v. Tri-City Railway 
 
         Co., 219 Iowa 587, 593, 258 N.W. 899 (1935).  A physical 
 
         impairment or restriction on work activity may or may not result 
 
         in such a loss of earning capacity.  The extent to which a work 
 
         injury and a resulting medical condition has resulted in an 
 
         industrial disability is determined from examination of several 
 
         factors.  These factors include the employee's medical condition 
 
         prior to the injury, immediately after the injury and presently; 
 
         the situs of the injury, its severity and the length of healing 
 
         period; the work experience of the employee prior to the injury, 
 
         after the injury and potential for rehabilitation; the employee's 
 
         qualifications intellectually, emotionally and physically; 
 
         earnings prior and subsequent to the injury; age; education; 
 
         motivation; functional impairment as a result of the injury; and 
 
         inability because of the injury to engage in employment for which 
 
         the employee is fitted.  Loss of earnings caused by a job 
 
         transfer for reasons related to the injury is also relevant.  
 
         Olson, 255 Iowa 1112, 1121, 125 N.W.2d 251, 257 (1963).  See 
 
         Peterson v. Truck Haven Cafe, Inc., (Appeal Decision, February 
 
         28, 1985).
 
         
 
              In the case sub judice, claimant's medical condition before 
 
         the work injury was excellent and he had no functional 
 
         impairments or ascertainable difficulties.  Claimant was able to 
 
         fully perform his physical tasks which at times included heavy 
 
         lifting, repetitive lifting, bending, twisting and stooping and 
 
         prolonged sitting and standing.  As a result of the painful back 
 
         injury, the function of his whole body has been affected.  
 
         Claimant's injury took several months to heal and he has 
 

 
         
 
         
 
         
 
         MEIER V. JOHN KIRBY, INC.
 
         Page   7
 
         
 
         experienced almost continuous pain in varying degrees since the 
 
         date of injury.
 
         
 
              Claimant's treating physician, Dr. Chesser, has given 
 
         claimant a significant permanent impairment rating to the body as 
 
         a whole and, more importantly, from an industrial disability 
 
         standpoint, has imposed very significant work restrictions.  
 
         Claimant had no prior work restrictions or physical impairments.  
 
         Claimant's medical condition now prevents him from returning to 
 
         his work as a truck driver, the type of work to which he is best 
 
         suited or to any other heavy manual labor position.  Claimant has 
 
         Very limited experience in any type of sedentary or clerical type 
 
         of work.
 
         
 
              Apart from his lost earnings during his healing period, 
 
         claimant has suffered a significant permanent loss in actual 
 
         earnings because of his inability to return to work.
 
         
 
              Claimant is middle aged and should be in the most productive 
 
         years of his life.  Now his economic future is highly uncertain 
 
         and depends largely upon his ability to rehabilitate himself 
 
         vocationally.  Defendants argue in their brief that any 
 
         assessment of claimant's disability is premature because claimant 
 
         is attempting vocational rehabilitation at the present time and 
 
         this may effect his industrial disability.  This agency has 
 
         decided that any assessment of future success of retraining is 
 
         improper in an industrial disability case.  Such an assessment is 
 

 
         
 
         
 
         
 
         MEIER V. JOHN KIRBY, INC.
 
         Page   8
 
         
 
         too speculative.  It is only claimant's present earning capacity 
 
         which is relevant to the issue of permanent disability.  Stewart 
 
         v. Crouse Cartage Company, Appeal Decision filed February 20, 
 
         1987.  Certainly, it the rehabilitation efforts are successful, 
 
         this agency is available to defendants to review the matter upon 
 
         a petition by defendants for review-reopening.
 
         
 
              At the prehearing conference in this case, claimant 
 
         indicated that he was not relying upon the so-called "odd-lot" 
 
         doctrine under the holding in Guyton v. Irving Jensen Co., 373 
 
         N.W.2d 101, 105 (Iowa 1985).  According to this decision, the 
 
         burden of proof shifts to defendants, in appropriate 
 
         circumstances, on the issue of the availability of light duty 
 
         work to an injured worker.  It is the policy of this agency that 
 
         such a theory of law cannot be invoked by claimant without prior 
 
         notice to defendants at the prehearing conference.
 
         
 
              Looking then to the claimant's case, we find that claimant 
 
         is able to perform part-time sedentary work according to his 
 
         physicians and vocational assessments.  Claimant is currently 
 
         functioning in the capacity as a part-time bartender/waiter.  One 
 
         must conclude that he could do such work on an employed basis and 
 
         claimant has not shown that such work is not available to him.
 
         
 
              However, moving from an over-the-road truck driver making 
 
         $28,000 per year to a part-time bartender/waiter, clerk or other 
 
         unskilled sedentary work is certainly a very severe loss of 
 
         earning capacity which should be fully compensated.
 
         
 
              Therefore, after examination of all the factors of 
 
         industrial disability, it is found as a matter of fact that 
 
         claimant has suffered a 75 percent loss of earning capacity from 
 
         his work injury.  Based upon such a finding, claimant is entitled 
 
         as a matter of law to 375 weeks of permanent partial disability 
 
         benefits under Iowa Code section 85.34(2)(u) which is 75 percent 
 
         of 500 weeks, the maximum allowable number of weeks for an injury 
 
         to the body as a whole in that subsection.
 
         
 
              As claimant has established entitlement to permanent partial 
 
         disability benefits, claimant may be entitled to weekly benefits 
 
         for healing period under Iowa Code section 85.34(l) from the date 
 
         of injury until claimant returns to work; until claimant is 
 
         medically capable of returning to substantially similar work to 
 
         the work he was performing at the time of the injury; or, until 
 
         it is indicated that significant improvement from the injury is 
 
         not anticipated, whichever occurs first.  Dr. Chesser indicates 
 
         in this case that claimant reached maximum healing one year after 
 
         the injury on November 3, 1986 and his opinions are 
 
         uncontroverted.  Therefore, claimant is entitled to healing 
 
         period benefits from November 3, 1985 through November 3, 1986 
 
         and permanent partial disability benefits shall be awarded from 
 
         November 4, 1986.
 
         
 
                                 FINDINGS OF FACT
 
         
 
              1.  Claimant was a credible witness.
 
         
 
              2.  Claimant was in the employ of Kirby at all times 
 
         material herein.
 
         
 

 
         
 
         
 
         
 
         MEIER V. JOHN KIRBY, INC.
 
         Page   9
 
         
 
              3.  On November 3, 1985, claimant suffered an injury to the 
 
         low back and hip which arose out of and in the course of his 
 
         employment with Kirby.  This was a soft tissue injury causing a 
 
         radiculopathy or pinched nerve at the S-1 level of claimant's 
 
         lower spine.
 
         
 
              4.  The work injury of November 3, 1985 was a cause of a 
 
         period of disability from work beginning on November 3, 1985 and 
 
         ending on November 3, 1986, at which time claimant reached 
 
         maximum healing.
 
         
 
              5.  The work injury of November 3, 1985 was a cause of 15 
 
         percent permanent partial physical impairment to the body as a 
 
         whole and of permanent restrictions upon claimant's physical 
 
         activity consisting of no heavy lifting, pushing, pulling; no 
 
         repetitive lifting, bending stooping or climbing; or, prolonged 
 
         sitting or standing.
 
         
 
              6.  The work injury of November 3, 1985 and the resulting 
 
         permanent partial impairment then work restrictions is a cause of 
 
         a 75 percent industrial disability.  Claimant is 42 years of age 
 
         with only a ninth grade formal education.  Claimant is unable to 
 
         return to truck driving, the employment to which he is best 
 
         suited.  Claimant's only work history has been as an employed 
 
         truck driver.  Claimant has only worked in a sedentary clerical 
 
         job briefly when he was 18 years old while in the Navy.  Claimant 
 
         has earned his GED and plans on taking further schooling to 
 
         achieve vocational rehabilitation.  The probable success of 
 
         claimant's plans to retrain himself is unknown.  Claimant is 
 
         currently unemployed and only helps out as a part-time bartender/ 
 
         waiter in a bar owned by relatives for which he receives no 
 
         compensation.  Claimant is able to perform part-time sedentary 
 
         work as a low grade clerical person; restaurant or bar worker; 
 
         or, some type of light bench work.
 
                                
 
                                CONCLUSIONS OF LAW
 
         
 
              Claimant has established by a preponderance of the evidence 
 
         entitlement to the permanent partial disability benefits and 
 
         healing period benefits as ordered below.
 
         
 
                                      ORDER
 
         
 
              1.  Defendants shall pay to claimant three hundred 
 
         seventy-five (375) weeks of permanent partial disability benefits 
 
         at the rate of two hundred seventy-eight and 37/100 dollars 
 
         ($278.37) per week from November 4, 1986.
 
         
 
              2.  Defendants shall pay to claimant healing period benefits 
 
         from November 3, 1985 through November 3, 1986 at the rate of two 
 
         hundred seventy-eight and 37/100 dollars ($278.37) per week.
 
         
 
              3.  Defendants shall pay accrued weekly benefits in a lump 
 
         sum and shall receive credit against this award for all benefits 
 
         previously paid.
 
         
 
              4.  Defendants shall pay interest on benefits awarded herein 
 
         as set forth in Iowa Code section 85.30.
 
         
 
              5.  Defendants shall pay the costs of this action pursuant 
 
         to Division of Industrial Services Rule 343-4.33.
 

 
         
 
         
 
         
 
         MEIER V. JOHN KIRBY, INC.
 
         Page  10
 
         
 
         
 
              6.  Defendants shall file activity reports on the payment of 
 
         this award as requested by this agency pursuant to Division of 
 
         Industrial Services Rule 343-3.1.
 
         
 
         
 
              Signed and filed this 9th day of February, 1988.
 
         
 
         
 
         
 
         
 
                                            LARRY P. WALSHIRE
 
                                            DEPUTY INDUSTRIAL COMMISSIONER
 
         
 
         
 
         Copies To:
 
         
 
         Mr. William J. Bribriesco
 
         Attorney at Law
 
         2407 18th Street-Suite 202
 
         Bettendorf, Iowa 52722
 
         
 
         Mr. Richard G. Book
 
         Attorney at Law
 
         1000 Des Moines Bldg.
 
         Des Moines, Iowa 50309-2462
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                                 1803
 
                                                 Filed February 9, 1988
 
                                                 LARRY P. WALSHIRE
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         ROBERT A. MEIER,
 
         
 
              Claimant,
 
                                                FILE NO.  826937
 
         VS.
 
                                             A R B I T R A T I 0 N
 
         JOHN KIRBY, INC.,
 
                                                D E C I S I 0 N
 
              Employer,
 
         
 
         and
 
         
 
         FIREMAN'S FUND INSURANCE CO.,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         1803
 
         
 
              Claimant was given a 75 percent award for industrial 
 
         disability due to his inability to return to truck driving or any 
 
         other position to which he is best suited since the work injury.  
 
         Claimant remains unemployed and claimant's future potential 
 
         vocational rehabilitation is unknown at the present time although 
 
         he plans on attempting some sort of rehabilitation in the future.  
 
         The odd-lot doctrine was not pled and was not applied.
 
 
 
         
 
         
 
 
         
 
 
 
 
 
 
 
 
 
 
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         ROSE A. PEDERSEN,
 
         
 
              Claimant,
 
         
 
         VS.
 
                                                File Nos. 826938
 
                                                         812431
 
         EVENTIDE LUTHERAN HOME FOR
 
         THE AGED,
 
                                                 A P P E A L
 
         
 
              Employer,
 
                                                 D E C I S I 0 N
 
         
 
         and
 
         
 
         NORTHWESTERN NATIONAL INS.,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         
 
                              STATEMENT OF THE CASE
 
         
 
              Defendants appeal from an arbitration decision awarding 
 
         permanent partial disability benefits as the result of an alleged 
 
         injury on April 11, 1985.  The record on appeal consists of the 
 
         transcript of the arbitration proceeding and joint exhibits 2 
 
         through 8, 12, 13, 14, 24, 25, and 26.  Both parties filed briefs 
 
         on appeal.  Defendants filed a reply brief.
 
         
 
                                      ISSUES
 
         
 
              Defendants state the following issues on appeal:
 
         
 
                   I.  The deputy commissioner erred in failing to
 
               apply the legal standard adopted by the commissioner
 
               and approved by the supreme court to determine
 
               causation where aggravation of employees' pre-existing
 
               disease occurs.
 
         
 
                   II.  The deputy erred in his determination that the
 
               work claimant was doing was greater than that of non-
 
               employment life.
 
         
 
                              REVIEW OF THE EVIDENCE
 
         
 
              The arbitration decision adequately and accurately reflects 
 
         the pertinent evidence and it will not be set forth herein.
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         PEDERSEN V. EVENTIDE LUTHERAN HOME FOR THE AGED
 
         Page 2
 
         
 
         
 
                                  APPLICABLE LAW
 
         
 
              The citations of law in the arbitration decision are 
 
         appropriate to the issues and the evidence.
 
         
 
                                     ANALYSIS
 
         
 
              The analysis of the evidence in conjunction with the law  in 
 
         the arbitration decision is adopted.
 
         
 
                                 FINDINGS OF FACT
 
         
 
              1. Claimant was employed by employer from December of 1980 
 
         until April 11, 1985 as a nurse's aide.
 
         
 
              2. Claimant injured her back while turning a water mattress 
 
         on April 11, 1985 to change the pad underneath the water 
 
         mattress.
 
         
 
              3. Claimant sustained an injury to the lumbar spine on April 
 
         11, 1985 that arose out of and in the course of her employment 
 
         with employer.
 
         
 
              4. The injury of April 11, 1985 was a substantial factor in 
 
         the aggravation of a preexisting degenerative back condition and 
 
         the cause of claimant's present disability.
 
         
 
              5. Claimant works 40 hours a week and earns $4.00 per hour 
 
         for a gross weekly wage of $160.00 per week.
 
         
 
              6. Claimant's activity at the time of her work injury 
 
         involved greater exertion than that experienced in the normal 
 
         non-employment life of a normal person.
 
         
 
                                CONCLUSIONS OF LAW
 
         
 
              Claimant did sustain the burden of proof by a preponderance 
 
         of the evidence that she sustained an injury on April 11, 1985 to 
 
         her lumber spine which arose out of and in the course of her 
 
         employment with employer.
 
         
 
              This injury was the cause of permanent total disability.
 
         
 
              Claimant is entitled to permanent total disability benefits 
 
         for the injury of April 11, 1985.
 
         
 
              The issues of whether claimant sustained a carpal tunnel 
 
         syndrome injury, whether it caused disability, whether claimant 
 
         is entitled to benefits, and whether claimant gave proper notice 
 
         of this injury are now moot.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         
 
         
 
         PEDERSEN V. EVENTIDE LUTHERAN HOME FOR THE AGED
 
         Page 3
 
         
 
         
 
              The issue of whether claimant is an odd-lot employee is also 
 
         moot.
 
         
 
              The proper rate of compensation is $109.54 per week.
 
         
 
              Claimant is entitled to $3,156.60 in medical expenses as 
 
         stipulated to by the parties itemized above and set forth in 
 
         exhibit 26.
 
         
 
              WHEREFORE, the decision of the deputy is affirmed.
 
         
 
                                      ORDER
 
         
 
              THEREFORE, it is ordered:
 
         
 
              That defendants pay to claimant one hundred nine and 54/100 
 
         dollars ($109.54) per week commencing on April 12, 1985 for as 
 
         long as claimant continues to be permanently and totally 
 
         disabled.
 
         
 
              That defendants are entitled to a credit for seventy-seven 
 
         (77) weeks of workers' compensation benefits paid prior to 
 
         hearing at the rate of one hundred one and 60/100 dollars 
 
         ($101.60) per week.
 
         
 
              That all accrued benefits are to be paid in a lump sum.
 
         
 
              That defendants pay claimant or the.provider of services 
 
         three thousand one hundred fifty-six and 60/100 ($3,156.60) in 
 
         medical expenses as shown above.
 
         
 
              That interest on the workers' compensation benefits, but not 
 
         the medical benefits, will accrue pursuant to Iowa Code section 
 
         85.30.
 
         
 
              That the costs of this action are charged to defendants 
 
         including the cost of the transcription of the hearing proceeding 
 
         pursuant to Division of Industrial Services Rule 343-4.33.
 
         
 
              Signed and filed this 23rd day of March, 1990.
 
         
 
         
 
         
 
         
 
         
 
                                         DAVID E. LINQUIST
 
                                         INDUSTRIAL COMMISSIONER
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         PEDERSEN V. EVENTIDE LUTHERAN HOME FOR THE AGED
 
         Page 4
 
         
 
         
 
         Copies To:
 
         
 
         Mr. Stephan M. Engelhardt
 
         Attorney at Law
 
         P 0 Box 217
 
         Denison, Iowa 51442
 
         
 
         Mr. Michael R. Mundt
 
         Attorney at Law
 
         1321 Broadway
 
         Denison, Iowa 51442
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
 
         
 
 
 
 
 
 
 
 
 
 
 
                                         1402.20; 2202; 1108/10
 
                                         Filed March 23, 1990
 
                                         DAVID E. LINQUIST
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         
 
         ROSE A. PEDERSEN,
 
         
 
              Claimant,
 
         
 
         VS.                                     File Nos.  826938
 
                                                            812431
 
         EVENTIDE LUTHERAN HOME FOR
 
         THE AGED,                                  A P P E A L
 
         
 
              Employer,                          D E C I S I 0 N
 
         
 
         and
 
         
 
         NORTHWESTERN NATIONAL INS.,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         
 
         1402.20; 2202; 1108.10.
 
         
 
              Affirmed deputy's refusal to extend the unusual exertion 
 
         greater than non-employment life requirement of heart attack 
 
         cases to back injury cases.
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         ROSE A..PEDERSEN,
 
         
 
              Claimant,
 
                                                     File Nos. 826938
 
         vs.                                                   812431
 
         
 
         EVENTIDE LUTHERAN HOME FOR               A R B I T R A T I 0 N
 
         THE AGED,
 
                                                     D E C I S I 0 N
 
              Employer,
 
         
 
         and                                            F I L E D
 
         
 
         NORTHWESTERN NATIONAL INS.                    JAN 31 1989
 
         
 
              Insurance Carrier,              IOWA INDUSTRIAL 
 
         COMMISSIONER
 
              Defendants.
 
         
 
         
 
                               INTRODUCTION
 
         
 
              This is a proceeding in arbitration brought by Rose A. 
 
         Pedersen, claimant, against Eventide Lutheran Home for the Aged, 
 
         employer, and Northwestern National Insurance Company, insurance 
 
         carrier, for benefits as the result of an alleged back injury 
 
         which occurred on April 11, 1985, and another alleged injury to 
 
         the hands which occurred on August 5, 1985.  A hearing was held 
 
         in Sioux City, Iowa, on November 24, 1987, and the case was fully 
 
         submitted at the close of the hearing.  The record consists of 
 
         the testimony of Rose A. Pedersen, claimant, Thomas A. Kerr, 
 
         claimant's uncle, Robert Pedersen, claimant's husband, Arvin G. 
 
         Schmidt, employer's administrator, Cindy Meseck, nurse's aide, 
 
         and joint exhibits 2, 3, 4, 5, 6, 7, 8, 12, 13, 14, 24, 25, and 
 
         26. Joint Exhibit 24 is a video of an employee turning a water 
 
         mattress.  Defendants were charged with the responsibility of 
 
         custody and storage of the video until the expiration of all 
 
         appellate periods.
 
         
 
                                  STIPULATIONS
 
         
 
              The parties stipulated to the following matters at the time 
 
         of the hearing.
 
         
 
              That an employer-employee relationship existed between 
 
         claimant and employer at the time of both alleged injuries.
 
         
 
              That claimant has not worked since the date of the first 
 
         injury on April 11, 1985.
 
         
 
              That claimant was married and entitled to two exemptions on 
 
         the date of both injuries.
 
                                                
 
                                                         
 
         
 
              That the provider of medical services and supplies would 
 
         testify that the fees charged were fair and reasonable.
 
         
 
              That the provider of medical services and supplies would 
 
         testify that the treatment was reasonable and necessary treatment 
 
         of the alleged work injuries.
 
         
 
              That the causal connection of the expenses to treatment for 
 
         a medical condition upon which claimant is now basing her claim 
 
         is admitted but that the causal connection of this condition to a 
 
         work injury remains an issue to be decided in this case.
 
         
 
              That defendants make no claim for credit for payments made 
 
         under an employee nonoccupational group health plan prior to 
 
         hearing.
 
         
 
              That defendants are entitled to a credit for 77 weeks of 
 
         workers' compensation benefits paid at the rate of $101.60 per 
 
         week prior to hearing.
 
         
 
              That there are no bifurcated claims.
 
         
 
                                  ISSUES
 
         
 
              The parties submitted the following issues for determination 
 
         at the time of the hearing.
 
         
 
              Whether claimant sustained an injury on April 11, 1985, and 
 
         August 5, 1985, which arose out of and in the course of 
 
         employment with employer.
 
         
 
              Whether either injury was the cause of either temporary or 
 
         permanent disability.
 
         
 
              Whether claimant is entitled to any temporary or permanent 
 
         disability benefits as the result of either injury.
 
         
 
              Whether claimant is entitled to payment of medical 
 
         expenses.
 
         
 
              Whether claimant is an odd-lot employee.
 
         
 
              A determination of the proper rate of compensation.
 
         
 
              Whether claimant gave proper notice for the alleged injury 
 
         to the hands, which occurred on August 5, 1985.
 
         
 
                            PRELIMINARY MATTER
 
         
 
              Defendants' counsel mentioned at the hearing and in his 
 
         brief that claimant was contending bad faith.  What defendants' 
 
         counsel meant by these.statements is not understood.  Claimant 
 
         did not ask for Iowa Code section 86.13 penalty benefits on 
 
         either of the original notices and petitions and penalty benefits 
 
                                                
 
                                                         
 
         were not designated as a hearing issue on the.hearing assignment 
 
         order in this case.  Therefore, this decision will not address 
 
         the issue of penalty benefits or bad faith (Transcript page 
 
         133).
 
         
 
                           SUMMARY OF THE EVIDENCE
 
         
 
              Of all of the evidence that was introduced, the following is 
 
         a summary of the evidence most pertinent to this decision.
 
         
 
              Claimant was 48 years old at the time of the injury on April 
 
         11, 1985, and was approximately 50 years old at the time of the 
 
         hearing.  By stipulation, claimant was married and entitled to 
 
         two exemptions at the time of the injury on April 11, 1985.
 
         
 
              Claimant was employed full time as a nurse's aide for 
 
         employer.  She testified that she worked 40 hours a week and 
 
         earned $4 per hour.  She was paid every two weeks for 80 hours of 
 
         work (Tr. pp. 19, 25 & 62).  Joint exhibit 25 shows that 
 
         claimant's net pay varied for the 13 weeks prior to the injury 
 
         date of April 11, 1985.  Joint exhibit 25, page 1 shows 
 
         claimant's net pay for the 13 week period prior to April 11, 
 
         1985, as follows:
 
         
 
              January   4, 1985       $407.03
 
              January  18, 1985       $313.00
 
              February  1, 1985       $320.00
 
              February 15, 1985       $312.50
 
              March     1, 1985       $288.00
 
              March    15, 1985       $327.50
 
              March    29, 1985       $292.50
 
              April    12, 1985       $256.00
 
         
 
              Claimant testified that her job as a nurse's aide included 
 
         lifting and carrying patients and dealing with combative patients 
 
         sometimes.  Claimant started to work for employer in December of 
 
         1980.  She worked for employer a period of approximately four and 
 
         one-half years, up until the time of her injury on April 11, 
 
         1985. Claimant testified that she was basically in pretty good 
 
         health when she started to work for employer (Ex. 23).  She 
 
         maintained that she never had any difficulty in performing her 
 
         job and received regular pay increases (Tr. p. 23).  Claimant 
 
         testified that the net pay figures shown on exhibit 25, page 1, 
 
         were gross pay minus health insurance premiums as well as 
 
         withholding taxes (Tr. p. 62).
 
         
 
              Claimant described that on April 11, 1985, she was changing 
 
         a mattress pad by herself when she injured her back.  In order 
 
         to.change the mattress pad it is necessary tb move the water 
 
         mattress which rests on top of the pad.  Claimant testified that 
 
         the water mattress that she was turning was one of the older, gel 
 
         type, heavier ones.  She said it takes three or four people to 
 
         actually remove one of these from a bed.  Claimant described,her 
 
         actions in changing the mattress pad as follows:
 
         
 
                                                
 
                                                         
 
                   Q.  Could you describe how that happened?
 
         
 
                   A.  My partner had already gone to lunch, and I had a 
 
              bed that was not made.  It had a water mattress on it.. And 
 
              during the course of making this bed or stripping this bed, 
 
              you take the water mattress and flip the bottom half to the 
 
              top, take your mattress pad out in that section, and put the 
 
              clean pad in.  Then you take the two ends and you flip them 
 
              back to the other end and you do the top section the same 
 
              way you did the other section.
 
         
 
         (Tr. p. 26)
 
         
 
              Claimant testified that the video introduced into evidence 
 
         by defendants did in fact, show the regular method of changing a 
 
         mattress pad, however, the water mattress used in the video 
 
         appeared to be one of the lighter weight water mattresses.  She 
 
         said it was much thinner than the one that she moved.  This one 
 
         minute video demonstration was shown in the court room at the 
 
         hearing (Tr. pp. 28 & 29).  Claimant testified that she 
 
         immediately knew that she was injured because she had a burning 
 
         sensation and quite a bit of pain across her lower back and some 
 
         tingling and numbness in her legs.  She notified the charge nurse 
 
         of the injury and an incident report was filled out (Tr. pp. 30 & 
 
         32).
 
 
 
                           
 
                                                         
 
         
 
              Claimant said she was injured at 10:45 a.m. on April 11, 
 
         1985, on the incident report that she filled out and she 
 
         described the injury as follows:  "I was changing matress (sic) 
 
         pad under a water mat felt a burning feeling after lifting the 
 
         matress (sic). I have sharp pain in lower right side of back & 
 
         down right leg." (Ex. 2, p. 2)
 
         
 
              The charge nurse also filled out a similar report for this 
 
         injury which reads as follows:  "Rose came to me sometime between 
 
         12n & 1P & stated that she had lifted a H20 mattress to change 
 
         the mattress pad earlier and felt a sharp pain in lower right 
 
         side of back & down right leg."  (Ex. 2, p. 8)
 
         
 
              Claimant related that she went.to see Steven L. Dierenfield, 
 
         D.C., that evening.  She determined that he was unable to help 
 
         her so employer sent claimant to see David TanCreti, M.D., on 
 
         April 15, 1985.  He sent claimant to the hospital for x-rays and 
 
         administered ultrasound, massage, pain medication and muscle 
 
         relaxants (Tr. pp. 33-36).
 
         
 
              Dr. Dierenfield's records show that he saw claimant on April 
 
         11, 1985, took x-rays and gave chiropractic treatments until 
 
         April 29, 1985 (Ex. 13, p. 43-49).
 
         
 
              Dr. TanCreti saw claimant on April 15, 1985, and made this 
 
         report:
 
         
 
              Rose Pedersen:  4/15/85 She was lifting a Water-Mat at 
 
              Eventide last Thursday and strained her back.  She has pain 
 
              and tenderness and pain running down her right leg and 
 
              across the buttocks posterior.  She has definite spasm in 
 
              the right flank.  She did have x-rays of her back for pulled 
 
              muscles several years ago taken, she thinks by Dr. Crabb.  
 
              Otherwise she has been getting along well and has not had 
 
              apparently any back pain similar to this or other work 
 
              injuries.  We gave her some Equagesic II q.i.d. and to get 
 
              x-rays at the hospital and return here in a few days for a 
 
              recheck. DIAGNOSIS:  Lumbar Strain with nerve root pain.
 
         
 
         (Ex. 7)
 
         
 
              William W. Klumper, M.D., the radiologist, reported as 
 
         follows:  "SUMMARY:  Mild disc degeneration between L1/L2, L2/L3 
 
         by comparison with last lumbar spine films taken 8 of July, 1982. 
 
         Mild degenerative arthritis in the articulating facets of the 
 
         lower lumbar spine."  (Ex. 4; Ex. 8, p. 83).
 
         
 
              Dr. TanCreti's final note was as follows:  "Rose Pedersen: 
 
         4/18/85 She still has quite abit (sic) of pain on bending or 
 
         moving her low back.  We will have her come in tomorrow for an 
 
         ultrasound treatment.  I don't think she is able to return to 
 
         work yet.  Her x-ray's (sic) did show some mild disc 
 
         degeneration. (Ex. 7).
 
         
 
                                                
 
                                                         
 
              Claimant testified that she then began to see her regular 
 
         physician, Dennis W. Crabb, M.D., after he returned from vacation 
 
         (Tr. p. 36; Ex. 3, p. 17).  Dr. Crabb hospitalized claimant from 
 
         April 29, 1985 until May 7, 1985, with this diagnosis (Tr. p. 37): 
 
         "FINAL DIAGNOSIS:  Acute low back strain with right 
 
         sciatica-failure of outpatient therapy.  Hypertension.  Obesity.  
 
         Medication induced gastritis."  (Ex. 3, p. 16).
 
         
 
              Claimant said that Dr. Crabb treated her for a back strain 
 
         in 1982 and took x-rays at that time.  She said that she returned 
 
         to work shortly after the injury and did not have any recurrence 
 
         of it (Tr. p. 38).  The incident report for a back strain that 
 
         occurred on July 8, 1982, reads as follows:  "Sts. she bent at 
 
         the knees to pick up a resident's shoes and "heard something pop 
 
         in her back".  c/o Lower 'L' back pain."  (Ex. 2, p. 10).  At the 
 
         time of this injury, Dr. Crabb diagnosed low back strain and 
 
         treated claimant with intermittent leg traction, bed rest and 
 
         medication (Ex. 3, p. 26).
 
         
 
              It was also brought out at the hearing that claimant was 
 
         treated by Dr. Dierenfield for another back strain after claimant 
 
         had been lifting at work on March 7, 1984 (Ex. 13, p. 3).  
 
         However, there is no incident report for this injury in the 
 
         employer's record of incident reports (Ex. 2).
 
         
 
              Although not mentioned by counsel, there is another incident 
 
         report for July 21, 1982, which shows that claimant was trying to 
 
         keep Mary Ann from sliding out of a chair in the bathroom and she 
 
         injured her back (Ex. 2, pp. 3 & 4).
 
         
 
              Dr. Crabb continued to treat claimant with physical therapy 
 
         and a corset and continued to keep her off work (Ex. 3, p. 18). 
 
         In late July of 1985, Dr. Crabb sent claimant to see John T. 
 
         Bakody, M.D., a neurosurgeon (Tr. p. 42; Ex. 3, p. 23).
 
         
 
              Dr. Bakody saw claimant on July 24, 1985 (Tr. p. 43).  She 
 
         complained of low back pain with aching into the right buttock 
 
         and right lower extremity with tingling, numbness of the right 
 
         thigh and both hands.  In a report dated July 29, 1985, Dr. 
 
         Bakody summarized her medical treatment from the date of the 
 
         injury until that time.  He stated that claimant denies back 
 
         discomfort prior to this accident and denies other accidents.  He 
 
         recorded that she described tingling and numbness in the first 
 
         two digits of the hands which awakens her at night and has been 
 
         bothering her for the past couple of weeks.  He noted that 
 
         claimant was 5'6" tall and weighed 214 pounds.  She was admitted 
 
         to Mercy Hospital Medical Center the following day for a 
 
         myelogram that resulted in poor visualization of the fifth lumbar 
 
         nerve root on the left.  A computerized scan showed a defect at 
 
         L4-5 on the left and some bulging of the disc in the midline (Ex. 
 
         8, p. 52b & 58).  Surgery was proposed in view of the failure of 
 
         previous conservative measures (Ex. 3, pp. 19 & 20).
 
         
 
              Surgery was performed on August 5, 1985, for a lumbar 
 
         laminectomy with removal of disc at L4-5 level both right and left 
 
                                                
 
                                                         
 
         (Tr. p. 43; Ex. 3, p. 21; Ex. 8, pp. 40 & 64).  Dr. Bakody saw 
 
         claimant in follow up on September 4, 1985, October 9, 1985, and 
 
         December 11, 1985.  On December 13, 1985, Dr. Bakody said that 
 
         claimant reported increased low back and lower extremity pain.  
 
         She also reported nocturnal tingling of the right hand and 
 
         increased numbness.in both arms.  Tinel's sign was produced by 
 
         percussion over the median nerve at the left flexor wrist and 
 
         Phelan's Wrist Flexion Test was positive bilaterally (Ex. 3, p. 
 
         15).  Claimant testified that she was not aware of the fact that 
 
         she had carpal tunnel syndrome up to that point in time (Tr. p. 
 
         48).
 
         
 
              Dr. Bakody said on January 10, 1986, that an electromyogram 
 
         and nerve conduction study on January 8, 1986, disclosed active, 
 
         bilateral carpal tunnel syndrome, right worse than left (Tr. pp. 
 
         48 & 49; Ex. 8, p. 71).  Claimant continued to have low back and 
 
         leg pains (Ex. 8, p. 26).  Carpal tunnel surgery was carried out 
 
         on January 22, 1986 (Tr. p. 29; Ex. 3, p. 12).  Dr. Bakody 
 
         conducted progress examinations on February 3, 1986, March 4, 
 
         1986 and April 22, 1986.  Due to claimant's continued back and 
 
         leg complaints that were similar to her prelaminectomy pain, 
 
         claimant was admitted to Mercy Hospital Medical Center again on 
 
         May 16, 1986.  A lumbar myelogram showed asymmetries in the L4-5 
 
         level.  A computerized scan showed bony growth  out into the 
 
         foramen probably producing pressure on the fifth lumbar nerve 
 
         root on the left.  A lumbar decompression laminectomy was 
 
         proposed (Tr. p. 51; Ex. 3, pp. 12 & 13; Ex. 14, pp. 12-15).  
 
         Claimant was admitted to Mercy Hospital Medical Center on June 
 
         22, 1986, for surgery, but was discharged the following day 
 
         without surgery because her potassium level was only 3.2 and the 
 
         anesthesiology department will not give an anesthetic for an 
 
         elective procedure with a potassium level of less than 3.5.  
 
         Potassium was administered orally and intravenously but claimant 
 
         became nauseated.and developed diarrhea and the surgery was 
 
         canceled (Tr. p. 52; Ex. 3, pp. 9 & 13).  Claimant continued to 
 
         have severe gastrointestinal problems in 1986 and 1987 (Ex. 2, 
 
         pp. 2-8).  The second proposed lumbar laminectomy was never 
 
         performed (Tr. p. 52).
 
         
 
              On January 16, 1987, claimant fell down at a food store.  
 
         She was hospitalized by Dr. Crabb from March 24, 1987 to April 8, 
 
         1987.  Dr. Crabb diagnosed her condition as follows at that time: 
 
         "FINAL DIAGNOSIS:  Severe back pain, right sciatica; failed 
 
         outpatient therapy, all related to the fall on January 16, 11987 
 
         [sic].  Obesity.  Hypertension.  Chronic peptic ulcer disease. 
 
         History of lumbar disk syndrome relating to job injury at 
 
         Eventide."  (Ex. 3, p. 5).
 
         
 
              Dr. Bakody, a board certified neurosurgeon, testified by 
 
         deposition on February 2, 1987 (Ex. 14).  He said that claimant 
 
         denied back problems prior to this injury and did not describe 
 
         other accidents.  Prior surgeries included a total knee 
 
         replacement on the left, a breast biopsy, tonsillectomy, and an 
 
         appendectomy (Ex. 11, pp. 5 & 6).  He summarized claimant's 
 
         complete treatment history for this injury to the back on April 
 
                                                
 
                                                         
 
         11, 1985 and to the hands on August 5, 1985 (Ex. 14, pp. 5-15).  
 
         He said that the first back surgery failed to bring about entirely 
 
         the desired effect and that the explanation for that was obscure 
 
         (Ex. 14, pp. 10 & 11).
 
         
 
              Dr. Bakody testified in his deposition that claimant was not 
 
         able to return to work.  He further opined that further surgery 
 
         cannot guarantee a restoration to a functional state would 
 
         require heavy use of the back (Ex. 14, pp. 15 & 16).  Dr. Bakody 
 
         further testified that the present condition of claimant's back 
 
         was aggravated by the accident that she described (Ex. 14, pp. 16 
 
         & 17).  The following colloquy then transpired between 
 
         defendants' counsel and Dr. Bakody.
 
         
 
                        BY MR. MUNDT:
 
         
 
                   Q.  As I understand your present testimony, you, 
 
              are.saying that there was a causal connection between her 
 
              back problems and the work that she had done at Eventide on 
 
              April 11th, 1985, based upon what she told you that she had 
 
              no prior back pain or problems before that; would that be a 
 
              fair statement?
 
         
 
                   A.  She told me that she had lifted at work and had 
 
              developed symptoms for which I saw her.  And whether she did 
 
              or did not have pain or back problems before then, is not my 
 
              approach to this.  My approach is that she described an 
 
              accident, and it is my opinion that indeed what is going on 
 
              now is causally related to that accident.
 
         
 
                   Q.  Well, Doctor, let me try it a different way. 
 
              Supposing she would bend over to pick up a shoe and would 
 
              have these same symptoms; that is, severe radiating pain 
 
     
 
         
 
                           
 
                                                         
 
              down her back that would be from a disabling accident, could 
 
              that have occurred just because she was doing that as 
 
              opposed to turning a mattress?
 
         
 
                   A.  This is a speculative question, and I'll have to 
 
              answer it speculatively.  I've answered the question in the 
 
              framework of the information that the patient gave me.  I 
 
              have indeed had patients bend over to pick up a newspaper 
 
              and, zingo, have a sudden severe pain in the back radiating 
 
              down the leg, and this proved to be a rupture of an 
 
              intervertebral disk responsible for this.  So that it did 
 
              not always require severe exertion, if this is what you have 
 
              in mind, and it could be a more--sometimes it's not what you 
 
              do, it's how you do it.
 
         
 
         (Ex. 14, pp. 17 & 18)
 
         
 
              Dr. Bakody added that degenerative changes from aging do not 
 
         necessarily predispose a person to a back injury (Ex. 14, pp. 18 
 
         & 19).  This additional exchange occurred between defendants' 
 
         counsel and Dr. Bakody on the point of causal connection.
 
         
 
                   Q.  In part, what we're tying [sic] to determine, 
 
              Doctor, is whether there is a causal connection; in other 
 
              words, was the work she was doing that day a substantial 
 
              factor in bringing about her disk injury.  Do you 
 
              understand?,
 
         
 
                   A   I've already given my opinion that it is.
 
         
 
                   Q.  And that was based upon the history she gave you?
 
         
 
                   A.  Based upon my findings, certainly of the history 
 
              that she gave and the fact that there was an accident 
 
              following upon which she developed these symptoms, yes.
 
         
 
         (Ex. 14, p. 19)
 
         
 
              On the subject of whether the fact that claimant did not 
 
         disclose the injury to her back when she picked up the shoe on 
 
         July 8, 1982 (Ex. 2, p. 10) or when she saw Dr. Dierenfield on 
 
         March 7, 1984, for lower back pain and leg pain after lifting 
 
         (Ex. 13, p. 3), this dialogue then occurred between claimant's 
 
         counsel and Dr. Bakody:
 
         
 
                   Q.  I noticed in your statement about the lifting she 
 
              gave, you did inquire as to whether she had prior accidents. 
 
              What would be the purpose of that?
 
         
 
                   A.  Oh, this would be just a routine question.
 
         
 
                   Q.  If she had severe accidents that injured her back, 
 
              would that have some bearing on your opinion as to 
 
              causation?
 
         
 
                                                
 
                                                         
 
                   A.  Not necessarily.  That would be a part of any 
 
              history, but she could have had many injuries previous, but 
 
              she did not speak to them.  But I'm interested in what is 
 
              bringing her to me, and what is bringing her to me, by her 
 
              own story, is turning this water mattress and developing 
 
              this severe pain.
 
         
 
         
 
         (Ex. 14, pp. 19 & 20)
 
         
 
              Dr. Bakody replied that the fact that claimant had two 
 
         serious automobile accidents, one of which caused a severe 
 
         whiplash 17 years ago and another one that occurred two years ago 
 
         where she was a passenger in a car that struck the rear end of 
 
         another car and claimant struck her head on the windshield, would 
 
         not have made any difference to him in terms of causation.  He 
 
         said that doctors are always interested in knowing past 
 
         histories, but striking the forehead was a little far from the 
 
         buttocks (Ex. 14, pp. 20 & 21).
 
         
 
              Dr. Bakody was asked if the prior back injuries on July 8, 
 
         1982 and March 7, 1984 were indicative of a disc injury at that 
 
         time.  Dr. Bakody replied that claimant had returned to work 
 
         after these.accidents and was able to perform her regular duties 
 
         after they occurred.  By comparison, she was not working when she 
 
         saw him and she has not been able to work since the injury of 
 
         April 11, 1985 and therefore the situations are not comparable 
 
         (Ex. 14, pp. 21 & 22).  Dr. Bakody agreed that if she was turning 
 
         a mattress at home or picking up a shoe at home then the injury 
 
         would not be work related (Ex. 14, pp. 22 & 23).
 
         
 
              Dr. Bakody stated that the carpal tunnel syndrome was also 
 
         probably related to her work because this was one of her initial 
 
         symptoms and it occurred in this time frame.  It may have started 
 
         when she reported hand symptoms to Dr. Dierenfield on March 7, 
 
         1984 and had been aggravated when she turned the mattress on 
 
         April 11, 1985 (Ex. 14, pp. 24-28).
 
         
 
              Dr. Bakody said that where an accident happens is indeed 
 
         important and it is his opinion that there is a causal connection 
 
         between claimant's medical problem and the lifting accident of 
 
         April 11, 1985 (Ex. 14, p. 28).  The doctor acknowledged that 
 
         claimant had arthritic degeneration of the spine but responded 
 
         that this does not mean that such a spine cannot be aggravated to 
 
         produce the symptoms involved here from turning a heavy water 
 
         mattress (Ex. 14, pp. 30 & 31).
 
         
 
              Claimant was also examined by R. L. Bendixen, M.D., for 
 
         social security disability on April 3, 1986 and again on May 27, 
 
         1986.  He reviewed claimant's extensive treatment for this 
 
         injury. He said that she had less than the desired result from 
 
         the disc surgery and had been left with a lot of back pain.  She 
 
         has hypesthesia and paresthesia in the left lower extremities.  
 
         She sleeps poorly and does require pain medication.  She does 
 
         have recurring swelling of her legs at night.  He concludes his 
 
                                                
 
                                                         
 
         report by stating:  "It does appear that this woman is still 
 
         having compression and irritation of the nerve supply to her left 
 
         lower extremity.  She is, however, also quite obese which 
 
         complicates the situation.  I think she is definitely completely 
 
         disabled." (Ex. 6)
 
         
 
              John J. Dougherty, M.D., a board certified orthopedic 
 
         surgeon, examined claimant for defendants on May 15, 1987.
 
         
 
              Dr. Dougherty made a written report on May 18, 1987 (Ex. 12, 
 
         deposition Ex. 1).  Dr. Dougherty gave a deposition on August 12, 
 
         1987 (Ex. 12).  He said that claimant's obesity would tend to 
 
         aggravate.her back condition.  He said claimant's auto accident 
 
         in 1969 or 1970 would effect her diseased back but he did not say 
 
         how or to what extent.  He stated that the injury of July 8, 1982 
 
         when her back popped picking up a shoe at the Care Center would 
 
         indicate a preexisting problem.  He said that the automobile 
 
         accident in 1983 might have aggravated her back also.  He said 
 
         the March 7, 1984 lifting injury would indicate a degenerative 
 
         disc or degenerative arthritis.  He did not think that coronary 
 
         artery disease, cerebral vascular insufficiencies and 
 
         hypertension would have any bearing on her problem (Ex. 12, pp. 
 
         7-10).  Dr. Dougherty said he viewed a video prepared by 
 
         defendants' counsel.  He gave his opinion that the turning of a 
 
         mattress by claimant on April 11, 1985 would not cause disc 
 
         degeneration but it might aggravate the problem she had all along 
 
         (Ex. 12, p. 11).  He opined that any normal torsional movement 
 
         could have triggered her back injury (Ex 12, p. 12).  In his 
 
         opinion the injury could have occurred lifting a golf bag or a 
 
         step ladder at home (Ex. 12, p. 16).  The doctor said that he did 
 
         not think that claimant could get carpal tunnel from one instance 
 
         of turning the mattress on April 11, 1985 (Ex. 12, pp. 17-19).  
 
         Dr. Dougherty said that the turning of the mattress in the video 
 
         which he saw, looked pretty innocuous to him; but he added if it 
 
         was a significantly heavy thing it could precipitate problems.  
 
         He said that the cause of a herniated disc is questionable.  If 
 
         you put abnormal stress on your back you may herniate a disc (Ex. 
 
         12, pp. 29 & 30).  Dr. Dougherty had no disagreement with the 
 
         surgery which Dr. Bakody performed on claimant's back (Ex. 12, p. 
 
         32).  Dr. Dougherty had no suggestions to assist claimant to 
 
         alleviate her pain (Ex. 12, p. 33).  The doctor could not say 
 
         whether claimant was 100 percent disabled or not; he would not 
 
         hire her to work in a nursing home; but he wondered if there was 
 
         not something that she could do like sell dresses.  He said that 
 
         he would need to see her again in order to make a determination 
 
         as to whether she was 100 percent disabled or not (Ex. 12, pp. 35 
 
         & 36).  He said he could not give an opinion as to whether 
 
         claimant's work caused her carpal tunnel syndrome (Ex. 12, pp. 
 
         37-39).  Dr. Dougherty agreed that the two automobile accidents 
 
         that injured claimant's neck and head would not necessarily 
 
         injure her low back (Ex. 12, pp. 41 & 42).
 
         
 
              Claimant testified that neither Dr. Crabb nor Dr. Bakody had 
 
         ever released her to return to work (Tr. p. 56).
 
         
 
                                                
 
                                                         
 
              Claimant described that on a typical day her mother helps 
 
         her get out of bed, helps her with her personal grooming and 
 
         care, and helps her put on her shoes.  Claimant's mother who is 
 
         81 years old, does 90 percent of the housework and cooking.  
 
         Claimant's husband does the vacuuming and drives her to where she 
 
         has to go because she is not able to drive (Tr. pp. 57 & 58).
 
         
 
              Claimant said that there was no comparison between the April 
 
         11, 1985 injury and the earlier ones in 1982 and 1984 (Tr. 
 
         p..58). She said in 1982 it was just a muscle spasm or strain 
 
         which was much less severe (Tr. pp. 73, 75 & 83).  Claimant 
 
         testified.that prior to working for employer she had no back 
 
         problems.  The automobile accidents did not hurt her back and she 
 
         always returned to work after a short period of treatment for 
 
         each of these automobile accidents.  The degeneration.at L 1-2 
 
         disclosed on the X-rays taken by Dr. Klumper for Dr. TanCreti was 
 
         not what Dr. Bakody operated on.  Dr. Bakody performed surgery on 
 
         a disc problem at L 4-5 on the right and left (Tr. pp. 58-61).
 
         
 
              Claimant testified that the nurse's aide job was stressful. 
 
         She lifted many patients and turned these water mattresses 
 
         hundreds of times (Tr. pp. 61, 62 & 90).  Claimant denied that 
 
         she gave Dr. Bakody an inaccurate history because all of her 
 
         previous injuries were a different kind of pain and she always 
 
         returned to work after a short period of treatment (Tr. pp. 84, 
 
         88 & 91). Claimant testified that she now receives $386.00 per 
 
         month from social security disability (Tr. p. 89).  Again she 
 
         affirmed that she did not hurt her back in the car accident (Tr. 
 
         pp. 92-94). Claimant's medication intake is as follows:
 
         
 
                   Q.  And can you tell us what some of those medications 
 
              are that you take on a daily basis?
 
         
 
                           
 
                                                         
 
                   A.  That I take on a daily basis?  I take Lanoxin for a 
 
              rapid heartbeat.  I take Inderal for high blood pressure, 
 
              hypertension.  I take Dyazide for a diuretic.  And I take 
 
              Micro-K Potassium to keep my potassium level up.  And I take 
 
              Tagamet, which has later been changed to Zantac for stomach 
 
              problems.  And I take Anexsia-D for pain.
 
         
 
                   Q.  And the pain medication you take on a daily basis?
 
         
 
                   A.  Yes.
 
         
 
                   Q.  How frequently a day do you take that?
 
         
 
                   A.  I believe it's every four hours or as need [sic].
 
         
 
                   Q.  Does that alleviate the pain?
 
         
 
                   A.  Sometimes it takes the edge off, but never 
 
              completely stops it.
 
         
 
         (Tr. p. 97)
 
         
 
              Robert W. Pedersen, claimant's husband of 20 years, said 
 
         that claimant was in good health prior to her back injury on 
 
         April 11, 1985.  She was able to work, did household duties and 
 
         could go fishing.  She could do all of those things between 1982, 
 
         and 1985. She has not been able to return to work since this 
 
         injury.  She has not worked for any place else.  Her ability to 
 
         do housework has changed drastically.  He does the heavy 
 
         housework, vacuuming and lifting.  He said that claimant now 
 
         suffers depression because of the pain.  He said that claimant's 
 
         income was necessary to maintain the house payments and when the 
 
         workers' compensation payments were terminated the house was lost 
 
         as a result of a foreclosure action.  He did not recall his wife 
 
         having any prior lower back problems other than for just a day or 
 
         so (Tr. pp. 108 to 120).
 
         
 
              Thomas A. Kerr, claimant's uncle, verified that the testimony 
 
         given by claimant and her husband is essentially correct.  
 
         Claimant cannot drive a car.  He drives for her.  Before April 11, 
 
         1985, she could drive a car, now she never drives (Tr. pp. 
 
         120-122).
 
         
 
              Arvin G. Schmidt, employer's administrator, who also handles 
 
         workers' compensation claims, testified that employer requires 
 
         incident reports to be filed as timely as possible.  An incident 
 
         report was filled out in a timely manner for the back injury on 
 
         April 11, 1985, but it was not done for the carpal tunnel 
 
         syndrome.  He said employer first learned of the carpal tunnel 
 
         syndrome when he received a telephone call from Mercy Hospital 
 
         Medical Center in Des Moines asking if employer's workers' 
 
         compensation would pay for the surgery just shortly before the 
 
         surgery took place in January of 1986.  Schmidt stated that he 
 
         assisted in the preparation of the video.  He said the video 
 
         accurately depicts the changing of a mattress pad under a water 
 
                                                
 
                                                         
 
         mattress (Tr. pp. 134-137).  Schmidt explained that the water 
 
         mattresses are heavy.  It takes three people to lift or even 
 
         slide a water mattress to take it off of a bed but that there is 
 
         no actual lifting involved in turning a water mattress (Tr. pp. 
 
         138-142).
 
         
 
              Cindy L. Meseck, age 26, testified that she has worked for 
 
         employer for one and one half years as a nurse's aide.  She said 
 
         the video accurately reflects the changing of a mattress pad 
 
         under a water mattress.  She has done it a number of times 
 
         herself.  She did not consider it heavy exertion.  She did not 
 
         think it was more stressful than the work she does at home as a 
 
         homemaker.  She agreed that some water mattresses are heavier 
 
         than others.  She heard Schmidt testify that he did not know 
 
         which one claimant was turning.  She admitted that she did not 
 
         know which mattress claimant was turning.  She admitted that the 
 
         lady in the video was larger than herself and taller than 
 
         claimant.  She admitted that she did not turn water mattresses or 
 
         lift or carry patients at home.  She acknowledged that water 
 
         mattresses are heavy and that it takes three or four persons to 
 
         remove one from a bed (Tr. pp. 141-158).
 
         
 
              The actual weight of a heavy, gel filled, water mattress was 
 
         never introduced into evidence by either party nor was there any 
 
         evidence as to the actual weight of one of the lighter 
 
         mattresses.
 
         
 
              The parties stipulated that if it is determined that the 
 
         injury of April 11, 1985 was the cause of claimant's disability, 
 
         then defendants would pay to claimant certain stipulated medical 
 
         expenses set out in exhibit 26.  Exhibit 26 itemizes in detail 
 
         medical mileage which totals $1,157.10.  Exhibit 26 also lists 
 
         the following unpaid medical expenses:
 
         
 
               Neuro Associates                $1,120.00
 
               Dennis Crabb, M.D.                 457.50
 
               Steven Dierenfield, D.C.            17.00
 
               Mercy Hospital Medical Center      335.00
 
               Joseph Song, M.D.                   70.00
 
                                  Total        $1,999.50
 
         
 
              Adding together $1,157.10 in medical mileage and $1,999.50 
 
         in medical bills brings these medical expenses to a total of 
 
         $3,156.60.
 
         
 
              Defendants refused to stipulate to pay Walters Pharmacy in 
 
         the amounts of $538.37 and $2,221.38.
 
         
 
              Claimant did not prove that these bills were caused by this 
 
         injury (Tr. pp. 44-46, 55, & 124-129).
 
         
 
                         APPLICABLE LAW AND ANALYSIS
 
         
 
              An employee is entitled to compensation for any and all 
 
         personal injuries which arise out of and in the course of the 
 
                                                
 
                                                         
 
         employment.  Section 85.3(1).
 
         
 
              Claimant has the burden of proving by a preponderance of the 
 
         evidence that she received injuries on April 11, 1985 and August 
 
         5, 1985 which arose out of.and in the course of her employment. 
 
         McDowell v. Town of Clarksville, 241 N.W.2d 904 (Iowa 1976); 
 
         Musselman v. Central Telephone Co., 261 Iowa 352, 154 N.W.2d 128 
 
         (1967).
 
         
 
              The injury must both arise out of and be in the course of 
 
         the employment.  Crowe v. DeSoto Consol. Sch. Dist., 246 Iowa 
 
         402, 68 N.W.2d 63 (1955) and cases cited at pp. 405-406 of the 
 
         Iowa Report.  See also Sister Mary Benedict.v. St. Mary's Corp., 
 
         255 Iowa 847, 124 N.W.2d 548 (1963) and Hansen v. State of Iowa, 
 
         249 Iowa 1147, 91 N.W.2d 555 (1958).
 
         
 
              The claimant has the burden of proving by a preponderance of 
 
         the evidence that the injuries of April 11, 1985 and August 5, 
 
         1985 are causally related to the disability on which she now 
 
         bases her claim.  Bodish v. Fischer, Inc., 257 Iowa 516, 133 
 
         N.W.2d 867 (1965).  Lindahl v. L.O. Boggs, 236 Iowa 296, 18 
 
         N.W.2d, 607 (1945).  A possibility is insufficient; a probability 
 
         is necessary.  Burt v. John Deere Waterloo Tractor Works, 247 
 
         Iowa 691, 73 N.W.2d 732 (1955).  The question of causal 
 
         connection is essentially within the domain of expert testimony.  
 
         Bradshaw v. Iowa Methodist Hospital, 251 Iowa 375, 101 N.W.2d 167 
 
         (1960).
 
         
 
              However, expert medical evidence must be considered with all 
 
         other evidence introduced bearing on the causal connection.  
 
         Burt, 247 Iowa 691, 73 N.W.2d 732.  The opinion of experts need 
 
         not be couched in definite, positive or unequivocal language.  
 
         Sondag v. Ferris Hardware, 220 N.W.2d 903 (Iowa 1974).  However, 
 
         the expert opinion may be accepted or rejected, in whole or in 
 
         part, by the trier of fact.  Id. at 907.  Further, the weight to 
 
         be given to such an opinion is for the finder of fact, and that 
 
         may be affected by the completeness of the premise given the 
 
         expert and other surrounding circumstances.  Bodish, 257 Iowa 
 
         516, 133 N.W.2d 867.  See also Musselman, 261 Iowa 352, 154 
 
         N.W.2d 128 (1967).
 
         
 
              While a claimant is not entitled to compensation for the 
 
         results of a preexisting injury or disease, the mere existence at 
 
         the time of a subsequent injury is not a defense.  Rose v. John 
 
         Deere Ottumwa Works, 247 Iowa 900, 908, 76 N.W.2nd 756, (1956).  
 
         If the claimant had a preexisting condition or disability that is 
 
         aggravated, accelerated, worsened or lighted up so that it results 
 
         in disability, claimant is entitled to recover.  Nicks v Davenport 
 
         Produce Co., 254 Iowa 130, 115 N.W.2d 812, (1962).
 
         
 
              When an aggravation occurs in the performance of an 
 
         employer's work and a causal connection is established, claimant 
 
         may recover to the extent of the impairment.  Ziegler v. United 
 
         States Gypsum Co., 252 Iowa 613, 620, 106 N.W.2d 591, (1960).
 
         
 
                                                
 
                                                         
 
              The Iowa Supreme Court cites, apparently with approval, the 
 
         C.J.S. statement that the aggravation should be material if it is 
 
         to be compensable.  Yeager v. Firestone Tire & Rubber Co., 253 
 
         Iowa 369, 112 N.W.2d 299 (1961); 100 C.J.S. Workmen's 
 
         Compensation section 555(17)a.
 
         
 
              Our supreme court has stated many times that a claimant may 
 
         recover for a work connected aggravation of a preexisting 
 
         condition.  Almquist v. Shenandoah Nurseries, 218 Iowa 724, 254 
 
         N.W. 35 (1934).  See also Auxier v. Woodward State Hospital Sch., 
 
         266 N.W.2d 139 (Iowa 1978); Gosek v. Garmer and Stiles Co., 158 
 
         N.W.2d 731 (Iowa 1968); Barz v. Oler, 257 Iowa 508, 133 N.W.2d 
 
         704 (1965); Olson v. Goodyear Service Stores, 255 Iowa 1112, 125 
 
         N.W.2d 251 (1963); Yeager, 253 Iowa 369, 112 N.W.2d 299 (1961); 
 
         Ziegler, 252 Iowa 613, 106 N.W.2d 591 (1960).
 
         
 
              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, 252 Iowa 613, 620, 106 N.W.2d 591 
 
         (1960), and cases cited.
 
         
 
              The right of a worker to receive compensation for injuries 
 
         sustained which arose out of and in the course of employment is 
 
         statutory.  The statute conferring this right can also fix the 
 
         amount of compensation to be paid for different specific 
 
         injuries, and the employee is not entitled to compensation except 
 
         as provided by the statute.  Soukup v. Shores Co., 222 Iowa 272, 
 
         268 N.W. 598 (1936).
 
         
 
              As a claimant has an impairment to the body as a whole, an 
 
         industrial disability has been sustained.  Industrial disability 
 
         was defined in Diederich v. Tri-City Railway Co., 219 Iowa 587, 
 
 
 
                         
 
                                                         
 
         593, 258 N.W. 899, 902 (1935) as follows:  "It is therefore plain 
 
         that the legislature intended the term 'disability' to mean 
 
         'industrial disability' or loss of earning capacity and not a 
 
         mere 'functional disability' to be computed in the terms of 
 
         percentages of the total physical and mental ability of a normal 
 
         man."
 
         
 
              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, 1121 125 N.W.2d 251, 257 (1963).
 
         
 
              Claimant did sustain the burden of proof by preponderance of 
 
         the evidence that she sustained an injury arising out of and in 
 
         the course of her employment with employer on April 11, 1985 when 
 
         she experienced pain while turning a water mattress to change the 
 
         pad underneath it.  Claimant reported the incident immediately to 
 
         the charge nurse.  Claimant and the charge nurse both completed 
 
         incident reports.  Claimant saw Dr. Dierenfield for the injury on 
 
         the day of the injury.  Schmidt, employer's administrator, sent 
 
         claimant to see Dr. TanCreti on April 15, 1985.  Claimant then 
 
         saw Dr. Crabb, her personal physician, when he returned from 
 
         vacation. He eventually sent claimant to Dr. Bakody who performed 
 
         surgery at the L4-5 disc both right and left.  Claimant 
 
         consistently gave the same history and complaints to all of the 
 
         doctors who accepted her history as true and proceeded to and did 
 
         treat her for a work related injury that occurred on April 11, 
 
         1985.
 
         
 
              Claimant did sustain the burden of proof by preponderance of 
 
         the evidence that the injury of April 11, 1985 was the cause of 
 
         permanent total disability.  Dr. Bendixen said claimant is 
 
         definitely, completely disabled.  Dr. Bakody testified that 
 
         claimant is unable to return to work.  Dr. Bakody added that her 
 
         present condition was aggravated by the accident which Claimant 
 
         described that occurred on April 11 1985.  Dr. Bakody confirmed 
 
         his opinion on causal connection several times in response to 
 
         questions propounded by defendants' counsel.
 
         
 
              Defendants assert that claimant had a preexisting condition. 
 
         Nevertheless, the employer takes an employee as he finds her 
 
         subject to any active or dormant health impairments.  Hanson v. 
 
         Dickinson, 188 Iowa 728, 732, 733, 176 N.W. 823, 824-825 (1920). 
 
         There was no evidence that claimant's prior automobile accidents 
 
         affected her back.  Her testimony was that her back was not 
 
         affected, only her head and her neck.  There was no evidence to 
 
         contradict her testimony.  When Dr. Crabb saw claimant for the 
 
         injury that occurred at work while picking up a shoe and she 
 
         heard a pop in her back on July 8, 1982, her preexisting 
 
         condition, as verified by Dr. Klumper's X-rays and Dr. Crabb's 
 
         records, was degeneration of L 1-2, 2-3 which still existed 
 
         without significant change at the time of this injury.  This 
 
         injury, which required the lumbar laminectomy by Dr. Bakody, was 
 
                                                
 
                                                         
 
         for a disc at the level of L4-5 both right and left.  It is not 
 
         possible to determine specifically what Dr. Dierenfield treated 
 
         claimant for from his deposition other than what he described as 
 
         tipping of the lumbar spine.
 
         
 
              Next defendants assert that the rule of heart attack cases 
 
         on causation from Briarcliff College v. Campolo, 360 N.W.2d 91, 
 
         94-95 (Iowa 1984) and 1A A. Larson Workers' Compensation section 
 
         38.83 should be applied to the back injury in this case to the 
 
         effect that where the employee contributes some personal element 
 
         of risk, such as a degenerative back condition, then the 
 
         employment must contribute some substantial increase in the risk.  
 
         The employment contribution must take the form of an exertion 
 
         greater than non-employment life.
 
         
 
              This decision will not extend the rule of heart attack cases 
 
         to back cases.  Even if this decision did extend the rule of 
 
         heart attack cases to back cases, defendants did not prove 
 
         degeneration specifically at the level of L 4-5, where the 
 
         surgery occurred as a result of this injury, but rather the only 
 
         evidence was degeneration at L1-2, and L2-3.  Even if this 
 
         decision did extend the rule on heart attack cases to this back 
 
         case, then it must be noted that Dr. Bakody said that the turning 
 
         of the water mattress was a substantial factor in bringing about 
 
         claimant's disc injury (Ex. 14, p. 19).  Furthermore, it is 
 
         determined that the turning of a heavy, gel filled water 
 
         mattress, that requires three or four persons to lift or even 
 
         just to slide it, is now determined to be a work place exertion 
 
         greater than normally a person would perform in non-employment 
 
         life.
 
         
 
              Defendants assert that Dr. Bakody's opinion would be 
 
         different if claimant had not told Dr. Bakody that she had no 
 
         previous back discomfort or prior accidents; but Dr. Bakody 
 
         himself negated this proposition and continued to testify that 
 
         these factors would not make any difference in his opinion in 
 
         terms of causation (Ex. 14, pp. 19-21).
 
         
 
              Neither of the treating physicians, Dr. Crabb or Dr. Bakody, 
 
         ever released claimant to return to work.  On the contrary Dr. 
 
         Bakody stated that claimant is unable to work at all and 
 
         attributed this disability to the back injury of April 11, 1985. 
 
         Dr. Bendixen said that claimant is definitely, completely 
 
         disabled.  There was no evidence from any vocational 
 
         rehabilitation specialist in this case to provide information on 
 
         the issue of claimant's employability.  Dr. Dougherty testified 
 
         that he would need to examine claimant more and to give this 
 
         question more consideration before he could answer it (Ex. 12, 
 
         pp. 35 & 36).
 
         
 
              Dr. Dougherty did not actually contradict or refute Dr. 
 
         Bakody's testimony.  On the contrary, Dr. Dougherty testified 
 
         that if the water mattress was heavy it could precipitate 
 
         problems (Ex. 12, pp. 29 & 30).  Dr. Dougherty also stated that 
 
         even though turning the mattress would not cause disc 
 
                                                
 
                                                         
 
         degeneration, it nevertheless might aggravate the problem that 
 
         claimant had all along (Ex. 12, p. 11).  In any event, Dr. 
 
         Bakody's testimony is accepted as controlling the final 
 
         disposition of this case.  Dr. Bakody was the treating physician 
 
         responsible for the success or failure of claimant's treatment 
 
         and spoke from his actual experience in dealing with claimant and 
 
         this injury for a long period of time whereas Dr. Dougherty 
 
         conducted only one short evaluation.  Rockwell Graphics Systems, 
 
         Inc. v. Prince, 366 N.W.2d 187, 192 (Iowa 1985).
 
         
 
              Therefore, claimant did sustain the burden of proof by 
 
         preponderance of the evidence that the injury of April 11, 1985 
 
         was the cause of permanent total disability and that she is 
 
         entitled to permanent total disability benefits.  Iowa Code 
 
         section 85.34(3).  Due to this determination, it is not necessary 
 
         to determine (1) whether claimant sustained a carpal tunnel 
 
         syndrome injury which arose out of and in the course of her 
 
         employment with employer (2) whether claimant is entitled to 
 
         scheduled member benefits for carpal tunnel syndrome or (3) 
 
         whether employer proved that claimant failed to give proper 
 
         notice under Iowa Code section 85.23 as to the carpal tunnel 
 
         injury. Since claimant is to receive permanent total disability 
 
         benefits, then the subject of whether claimant is entitled to 
 
         scheduled member benefits is now moot.  Likewise, the issue of 
 
         whether claimant is an odd-lot employee is also moot.
 
         
 
              The next issue is the proper rate of compensation.  Claimant 
 
         testified that she worked 40 hours per week and earned $4.00 per 
 
         hour.  This means that claimant's gross pay then was $160.00 per 
 
         week.  Defendants did not contradict or refute this evidence.  
 
         The net pay figures for the 13 weeks prior to April 11, 1985 do 
 
         not refute claimant's testimony that she was working 40 hours a 
 
         week and earning $4.00 per hour as she testified because the net 
 
         pay was arrived at by deducting both withholding taxes and health 
 
         insurance from gross pay.  It is not possible to determine the 
 
         proper rate of compensation from the net pay figures.  If 
 
         defendants wished to contradict claimant's testimony, they should 
 
         have introduced evidence proving her gross pay for the 13 weeks 
 
         prior to the injury, which they failed to do.  The first report 
 
         of injury contains pay information, however, by statute it cannot 
 
         be used as evidence (Iowa Code section 86.11).  Defendants did 
 
         not file any Form 2As which could be used in the determination of 
 
         the proper rate of compensation by way of official notice (Iowa 
 
         Administrative Procedure Act section 17A 14(4)).  Therefore, 
 
         claimant's gross pay is determined to be $160.00 per week 
 
         pursuant to claimant's testimony which is the only evidence which 
 
         can be used in this case to make this determination.  Claimant is 
 
         determined to be entitled to married status with two exemptions 
 
         pursuant to the stipulation of the parties on the prehearing 
 
         report.  The proper rate of compensation then on April 11, 1985 
 
         is $109.54 per week.
 
         
 
                                  FINDINGS OF FACT
 
         
 
              WHEREFORE, based upon the evidence presented, the following 
 
                                                
 
                                                         
 
         findings of fact are made:
 
         
 
              That claimant was employed by employer from December of 1980 
 
         until April 11, 1985 as a nurse's aide.
 
         
 
              That claimant injured her back while turning a water 
 
         mattress on April 11, 1985 to change the pad underneath the water 
 
         mattress.
 
         
 
              That claimant sustained an injury to the lumbar spine on 
 
         April 11, 1985 that arose out of and in the course of her 
 
         employment with employer.
 
         
 
              That Dr. Bendixen determined for the social security 
 
         administration that claimant was definitely, completely 
 
         disabled.
 
         
 
              That Dr. Bakody, the treating physician, testified that 
 
         claimant was unable to work at all.
 
         
 
              That there was no evidence to prove that claimant could work 
 
         in any occupation.
 
         
 
              That Dr. Bakody testified that the injury of April 11, 1985 
 
         was a substantial factor in the aggravation of a preexisting 
 
         degenerative back condition and that it was the cause of 
 
         claimant's present disability.
 
         
 
              That claimant works 40 hours a week and earns $4.00 per hour 
 
         for a gross weekly wage of $160.00 per week.
 
         
 
                                CONCLUSIONS OF LAW
 
                                
 
                                                
 
                                                         
 
              WHEREFORE, based upon the evidence presented and the 
 
         principles of law previously discussed, the following findings of 
 
         law are made:
 
         
 
              That claimant did sustain the burden of proof by a 
 
         preponderance of the evidence that she sustained an injury on 
 
         April 11, 1985 to her lumbar spine which arose out of and in the 
 
         course of her employment with employer.
 
         
 
              That this injury was the cause of permanent total 
 
              disability.
 
         
 
              That claimant is entitled to permanent total disability 
 
         benefits for the injury of April 11, 1985.
 
         
 
              That the issues of whether claimant sustained a carpal 
 
         tunnel syndrome injury, whether it caused disability, whether 
 
         claimant is entitled to benefits, and whether claimant gave 
 
         proper notice of this injury are now moot.
 
         
 
              That the issue of whether claimant is an odd-lot employee is 
 
         also moot.
 
         
 
              That the proper rate of compensation is $109.54 per week.
 
         
 
              That claimant is entitled to $3,156.60 in medical expenses 
 
         as stipulated to by the parties itemized above and set forth in 
 
         exhibit 26.
 
         
 
                                   ORDER
 
         
 
              THEREFORE, IT IS ORDERED:
 
         
 
              That defendants pay to claimant one hundred nine and 54/100 
 
         dollars ($109.54) per week commencing on April 12, 1985 for as 
 
         long as claimant continues to be permanently and totally 
 
         disabled.
 
         
 
              That defendants are entitled to a credit for seventy-seven 
 
         (77) weeks of workers' compensation benefits paid prior to 
 
         hearing at the rate of one hundred one and 60/100 dollars 
 
         ($101.60) per week.
 
         
 
              That all accrued benefits are to be paid in a lump sum.
 
         
 
              That defendants pay claimant or the provider of services 
 
         three thousand one hundred fifty-six and 60/100 dollars 
 
         ($3,156.60) in medical expenses as shown above.
 
         
 
              That interest on the workers' compensation benefits, but not 
 
         the medical benefits, will accrue pursuant to Iowa Code section 
 
         85.30.
 
         
 
              That the costs of this action are charged to defendants 
 
         pursuant to Division of Industrial Services Rule 343-4.33. 
 
                                                
 
                                                         
 
         Claimant's statement of costs attached to the prehearing report 
 
         does not contain sufficient information to rule on each separate 
 
         item.  Therefore, claimant is entitled to be paid for the costs 
 
         which she can establish are specified as costs in Division of 
 
         Industrial Services 343-4.33.
 
         
 
         
 
              Signed and filed this 31st day of January, 1989.
 
         
 
         
 
         
 
         
 
         
 
         
 
                                            WALTER R. McMANUS, JR.
 
                                            DEPUTY INDUSTRIAL 
 
                                            COMMISSIONER
 
         
 
         Copies To:
 
         
 
         Mr. Stephan M. Engelhardt
 
         Attorney at Law
 
         P. 0. Box 217
 
         Denison, Iowa  51442
 
         
 
         Mr. Michael R. Mundt
 
         Attorney at Law
 
         1321 Broadway
 
         Denison, Iowa  51442
 
         
 
         
 
         
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
                                                
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                       1106; 1108.50; 1401; 1402.20; 
 
                                       1402.30; 1402.40; 1402.60;
 
                                       1403.10; 1403.20; 1804; 2206;
 
                                       2501; 2503; 2505; 2700; 2907;
 
                                       3000; 3001; 3002; 3003; 4100
 
                                       Filed January 31, 1989
 
                                       WALTER R. McMANUS, JR.
 
         
 
                  BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         ROSE A. PEDERSEN,
 
         
 
              Claimant,
 
                                                    File Nos. 826938
 
         vs.                                                  812431
 
         
 
         EVENTIDE LUTHERAN HOME FOR              A R B I T R A T I 0 N
 
         THE AGED,
 
                                                    D E C I S I 0 N
 
              Employer,
 
         
 
         and
 
         
 
         NORTHWESTERN NATIONAL INS.
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         
 
         1106; 1108.50; 1401; 1402.20; 1402.30; 1402.40; 1402.60; 1804; 
 
         2206; 4100
 
         
 
              Claimant did prove an injury arising out of and in the 
 
         course of employment with employer from turning a water mattress 
 
         as a nurse's aide and injured her back.  She was awarded 
 
         permanent total disability benefits.
 
         
 
              Since claimant was awarded permanent total disability for 
 
         her back, then the issue of a second carpal tunnel injury was 
 
         moot and the odd-lot issue became moot.
 
         
 
         1402.60; 1403.10; 1403.20; 2501; 2503; 2505; 2700
 
         
 
              Claimant was awarded medical benefits but was denied 
 
         medications because she did not prove which ones were caused by 
 
         this injury and which ones were due to her other many ailments.
 
         
 
         3000; 3001; 3002; 3003
 
         
 
              The rate was determined by claimant's testimony because 
 
         defendants net pay figures could not be used to determine rate 
 
         because they included deductions for health insurance.
 
         
 
                                                
 
                                                         
 
         2907
 
         
 
              Claimant did not give enough data to award costs item by 
 
         item so the order said claimant was entitled to costs that she 
 
         could prove to defendants that were specified in Division of 
 
         Industrial Services Rule 343-4.33.