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                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            RAYMOND E. BENNETT,           :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :        File No. 827119
 
            SIGNAL DELIVERY,              :
 
                                          :     A R B I T R A T I O N
 
                 Employer,                :
 
                                          :        D E C I S I O N
 
            and                           :
 
                                          :
 
            ALLSTATE INSURANCE CO.,       :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
            
 
                              statement of the case
 
            
 
                 This is a proceeding in arbitration brought by Raymond 
 
            E. Bennett, claimant, against Signal Delivery, employer 
 
            (hereinafter referred to as Signal), and Allstate Insurance 
 
            Company, insurance carrier, defendants, for workers' compen
 
            sation benefits as a result of an alleged injury on June 19, 
 
            l986.  On September 28, l989, a hearing was held on 
 
            claimant's petition and the matter was considered fully sub
 
            mitted at the close of this hearing.
 
            
 
                 The parties have submitted a prehearing report of con
 
            tested issues and stipulations which was approved and 
 
            accepted as a part of the record of this case at the time of 
 
            hearing.  Oral testimony and written exhibits were received 
 
            during the hearing from the parties.  The exhibits offered 
 
            into the evidence are listed in the prehearing report.
 
            
 
                 Claimant had objected to exhibit T at the hearing but 
 
            this objection has been withdrawn in a letter subsequent to 
 
            the hearing.  Therefore, exhibit T will be received.
 
            
 
                 According to the prehearing report, the parties have 
 
            stipulated to the following matters:
 
            
 
                 1.  Claimant is seeking temporary total disability or 
 
            healing period benefits from June 19, l986 through December 
 
            23, l988 and defendants agree that he was not working at 
 
            this time.
 
            
 
                 2.  If the injury is found to have caused permanent 
 
            disability, the type of disability is an industrial disabil
 
            ity to the body as a whole.
 
            
 

 
            
 
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                 3.  Claimant's rate of weekly compensation in the event 
 
            of an award of weekly benefits from this proceeding shall be 
 
            $430.30.
 
            
 
                 4.  The medical expenses requested by claimant at hear
 
            ing were fair and reasonable and causally connected to the 
 
            medical condition upon which the claim was based but the 
 
            issue of the causal connection of his condition to the work 
 
            injury remained at issue to be decided.
 
            
 
                 5.  Claimant has been paid no compensation to date.
 
            
 
                 6.  An employee/employer relationship existed between 
 
            claimant and Signal at the time of the alleged injury.
 
            
 
                                      issues
 
            
 
                 The parties have submitted the following issues for 
 
            determination in this proceeding:
 
            
 
                   I.  Whether claimant received an injury arising out 
 
            of and in the course of 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 
 
            benefits for disability; and,
 
            
 
                  IV.  The extent of claimant's entitlement to medical 
 
            benefits.
 
            
 
                              statement of the facts
 
            
 
                 The following is a brief statement highlighting some of 
 
            the more pertinent evidence presented.  Whether or not 
 
            specifically referred to in this statement, all of the evi
 
            dence received at the hearing was independently reviewed and 
 
            considered in arriving at this decision.  Any conclusions 
 
            about the evidence received contained in the following 
 
            statement shall be viewed as preliminary findings of fact.
 
            
 
                 Claimant testified that prior to his discharge in June 
 
            1986, he worked for Signal for approximately 16 years as a 
 
            truck driver delivering merchandise to Sears stores.  There 
 
            was little dispute that claimant was a good employee during 
 
            this time.  However, claimant was discharged due to a felony 
 
            conviction for receiving stolen property from an incident 
 
            unrelated to his employment at Signal.  Upon a plea of 
 
            guilty, claimant was sentenced on June 4, 1986, to 15 months 
 
            in prison but claimant served only eight months of this sen
 
            tence prior to being paroled.
 
            
 
                 Claimant states that prior to reporting to prison, he 
 
            continued working for Signal and injured himself on June 19, 
 
            1986, while unloading a dishwasher.  Claimant said that the 
 
            load in the truck shifted and he fell approximately four to 
 

 
            
 
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            five feet onto an asphalt surface with a dishwasher landing 
 
            on top of him.  He said that he lost consciousness.  He said 
 
            that he was transported to the hospital by the ambulance and 
 
            spent two days in the hospital.  The manager of the Sears 
 
            store testified that he observed claimant on the ground 
 
            after the incident.
 
            
 
                 Physicians at the hospital diagnosed contusions of the 
 
            lumbar spine and possible concussion.  It was noted that 
 
            claimant had been previously diagnosed as having a ruptured 
 
            disc from a prior injury requiring six months of physical 
 
            therapy before a return to work.  After his release from the 
 
            hospital, claimant was referred for evaluation and care to 
 
            an orthopedic surgeon, William Neff on July 3, 1986.  Noting 
 
            a prior history of back injury and prior diagnosis of herni
 
            ated disc, Dr. Neff viewed claimant's difficulties as an 
 
            aggravation of a prior existing condition and estimated that 
 
            recovery would occur in six to eight weeks.
 
            
 
                 On July 7, l986, claimant reported for prison.  On 
 
            August 29, l986, he was examined by an orthopedic surgeon 
 
            with a complaint of increased low back pain and he com
 
            plained that his right leg seemed to "give out" after load
 
            ing a hopper of a machine.  Apparently, claimant had been 
 
            assigned to operate this machine as a part of his prison 
 
            duties.  At the time he was seen by the orthopedic surgeon, 
 
            claimant had reported two prior back injuries, both requir
 
            ing extensive periods of absences from work for recovery.  
 
            Claimant testified that the pain that he experienced in 
 
            prison was not a new injury, simply a continuation of prior 
 
            systems.  Claimant was then sent to a prison medical facil
 
            ity for a period of time and only given light duty work for 
 
            the balance of his prison term.
 
            
 
                 Claimant denies that he contrived the June 1986 inci
 
            dent or his back pain in order to obtain easy time while in 
 
            prison.  He stated that doing time in the medical facility 
 
            was more difficult in that he was assigned a minimum secu
 
            rity facility but that the medical facility was operated in 
 
            the same manner as a maximum security facility.
 
            
 
                 Upon his release from prison, claimant was referred for 
 
            evaluation to William Boulden, M.D., another orthopedic sur
 
            geon and an associate of Dr. Neff.  After his treatment of 
 
            claimant over the next several months, Dr. Boulden concluded 
 
            that claimant had myofascial pain syndrome with underlining 
 
            degenerative disc disease of the lumbar spine.  He opined 
 
            that this is not related to the injury of June 19, 1986.  He 
 
            agrees with Dr. Neff's initial assessment that the claimant 
 
            suffered only a temporary aggravation of the prior existing 
 
            degenerative condition of the spine.
 
            
 
                 On the other hand, a neurosurgeon, Robert Jones, M.D., 
 
            evaluated claimant in December of 1988.  After discussing 
 
            the history presented to him, Dr. Jones, in his written 
 
            report, restated that claimant had sustained permanent par
 
            tial impairment from the 1986 injury "in the neighborhood" 
 

 
            
 
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            of five percent of the body as whole.
 
            
 
                 The only other causal connection opinion by a health 
 
            care practitioner was rendered by Robert Shelton, D.C., in 
 
            February of 1989.  Although he causally connected claimant's 
 
            current problems to the work injury, Dr. Shelton only 
 
            relates a history of the 1986 injury in the written report.  
 
            He stated that his causal connection views were based upon 
 
            such a history.  It is unclear whether he knew about any 
 
            other injuries.
 
            
 
                           applicable law and analysis
 
            
 
                   I.  Claimant has the burden of proving by a prepon
 
            derance of the evidence that claimant received an injury 
 
            which arose out of and in the course of employment.  The 
 
            words "out of" refer to the cause or source of the injury.  
 
            The words "in the course of" refer to the time and place and 
 
            circumstances of the injury.  See Cedar Rapids Community 
 
            Sch. v. Cady, 278 N.W.2d 298 (Iowa 1979); Crowe v. DeSoto 
 
            Consol. Sch. Dist., 246 Iowa 402, 68 N.W.2d 63 (1955).  An 
 
            employer takes an employee subject to any active or dormant 
 
            health impairments, and a work connected injury which more 
 
            than slightly aggravates the condition is considered to be a 
 
            personal injury.  Ziegler v. United States Gypsum Co., 252 
 
            Iowa 613, 620, 106 N.W.2d 591 (1960) and cases cited 
 
            therein.
 
            
 
                 Although defendants attacked claimant's credibility 
 
            with reference to the occurrence of the injury, it appears 
 
            unlikely that this incident was staged by claimant.  A wit
 
            ness of the incident verified claimant's account of the 
 
            incident and physicians at the hospital made it clear diag
 
            nosis of a contusion of the spine.  It will be found that 
 
            claimant has suffered a work injury.
 
            
 
                  II.  The claimant has the burden of proving by a pre
 
            ponderance of the evidence that the work injury is a cause 
 
            of the claimed disability.  A disability may be either tem
 
            porary 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, pos
 

 
            
 
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            itive 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 cir
 
            cumstances.  Bodish v. Fischer, Inc., 257 Iowa 516, 133 
 
            N.W.2d 867 (1965).
 
            
 
                 Furthermore, if the available expert testimony is 
 
            insufficient along to support a finding of causal connec
 
            tion, such testimony may be coupled with nonexpert testimony 
 
            to show causation and be sufficient to sustain an award.  
 
            Giere v. Asse Haugen Homes, Inc., 259 Iowa 1065, 146 N.W.2d 
 
            911, 915 (1966).  Such evidence does not, however, compel an 
 
            award as a matter of law.  Anderson v. Oscar Mayer & Co., 
 
            217 N.W.2d 531, 536 (Iowa 1974).  To establish compensabil
 
            ity, 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 condi
 
            tion, 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).
 
            
 
                 Although claimant was able to show a work injury, 
 
            claimant was not able to show causal connection of this work 
 
            injury to permanent disability, even if we assume claimant 
 
            is entirely truthful in his testimony.  To the extent that 
 
            claimant suffers back problems at the present time, given 
 
            the history of prior injuries, this agency is compelled to 
 
            rely upon the opinions of medical experts on the issue of 
 
            causal connection of the condition to any prior specific 
 
            injury.  In this case, four health care practitioners have 
 
            rendered opinions.  First, the view of the chiropractor must 
 
            be rejected as he basis his opinion upon an incomplete his
 
            tory.  Second, the views of Dr. Jones cannot be given 
 
            greater weight over the views of two primary treating physi
 
            cians, Drs. Neff and Boulden.  Therefore, the undersigned 
 
            has no choice but to find that the greater weight of evi
 
            dence fails to show that claimant suffered anything more 
 
            than a temporary aggravation of a prior existing condition 
 
            at the time of the work injury and that his current problems 
 
            are unrelated to the 1986 injury.  Claimant simply did not 
 
            have the greater weight of medical evidence in his favor.
 
            
 
                 Although claimant has not shown entitlement to perma
 
            nent disability benefits, he has shown entitlement to weekly 
 
            benefits for temporary total disability under Iowa Code sec
 
            tion 85.33(1) from the date of injury until claimant returns 
 
            to work or until he is medically capable of returning to 
 
            substantially similar work to the work he was performing at 
 
            the time of injury, whichever occurs first.  It is unclear 
 
            from the records of Drs. Neff and Boulden when claimant may 
 
            have reached maximum recovery from his temporary aggravation 
 
            injury.  Claimant was soon imprisoned after Neff's initial 
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
            examination.  However, Dr. Boulden did not appear to dis
 
            agree with the original assessment of Dr. Neff that there 
 
            would be a six to eight week recovery period.  For lack of 
 
            better evidence to the contrary, claimant will be awarded 
 
            eight weeks of temporary total disability benefits beginning 
 
            on June 19, l986.  Claimant's presence in prison does not 
 
            appear to defeat his claim given the language of section 
 
            85.33(1).  It would appear that when he was assigned to 
 
            work, he expressed difficulties in prison leading to a 
 
            restriction against anything other than light duty work.  
 
            Claimant simply was not capable of returning to any meaning
 
            ful work during his recovery period.
 
            
 
                  IV.  Pursuant to Iowa Code section 85.27, claimant is 
 
            entitled to payment of reasonable medical expenses incurred 
 
            for treatment of a work injury.  It was stipulated that all 
 
            the expenses were causally connected to the back condition.  
 
            The greater weight of evidence demonstrates that all of the 
 
            expenses in question are related to direct treatment of the 
 
            1986 aggravation injury or an evaluation of the extent of 
 
            that injury.  All of the requested expenses will be awarded.
 
            
 
                                 findings of fact
 
            
 
                 1.  On June 19, l986, claimant suffered an injury to 
 
            the low back which arose out of and in the course of employ
 
            ment with Signal.  Claimant suffered a contusion of the back 
 
            and back pain from a fall from a truck.
 
            
 
                 2.  The work injury of June 19, l986, was a cause of a 
 
            period of temporary total disability beginning on June 19, 
 
            l986 and ending eight weeks later on August 13, l986.
 
            
 
                 3.  Claimant failed to show by a preponderance of the 
 
            evidence that the work injury of June 19, l986, is a cause 
 
            of permanent impairment.  Claimant had several back injuries 
 
            prior to June 1986.  Two of these prior injuries resulted in 
 
            extensive absences from work and a prior diagnosis of a her
 
            niated disc.
 
            
 
                 4.  The medical expenses listed in the prehearing 
 
            report were incurred by claimant for reasonable and neces
 
            sary treatment of the aggravation work injury herein.
 
            
 
                                Conclusions of law
 
            
 
                 Claimant has established under law entitlement to eight 
 
            weeks of temporary total disability benefits and to medical 
 
            benefits in the amount of $5,286.94.
 
            
 
                                      order
 
            
 
                 1.  Defendants shall pay to claimant temporary total 
 
            disability benefits from June 19, l986 through August 13, 
 
            l986, at the rate of four hundred thirty and 30/l00 dollars 
 
            per week ($430.30).
 
            
 

 
            
 
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                 2.  Defendants shall pay the medical expenses listed in 
 
            the prehearing report.  Claimant shall be reimbursed for any 
 
            of these expenses paid by him.  Otherwise, defendants shall 
 
            pay the provider directly along with any lawful late payment 
 
            penalties imposed upon the account by the provider.
 
            
 
                 3.  Defendants shall pay accrued weekly benefits in a 
 
            lump sum and shall receive credit against this award for all 
 
            benefits previously paid.
 
            
 
                 4.  Defendants shall pay interest on weekly benefits 
 
            awarded herein as set forth in Iowa Code section 85.30.
 
            
 
                 5.  Defendants shall pay the cost of this action pur
 
            suant to Division of Industrial Services Rule 343-4.33.
 
            
 
                 6.  Defendants shall file activity reports on the pay
 
            ment of this award as requested by this agency pursuant to 
 
            Division of Industrial Services Rule 343-3.l.
 
            
 
                 
 
                 Signed and filed this ____ day of March, 1990.
 
            
 
            
 
            
 
            
 
            
 
                                          ______________________________
 
                                          LARRY P. WALSHIRE
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr. Mark S. Pennington
 
            Attorney at Law
 
            620 Fleming Bldg
 
            218 Sixth Ave
 
            Des Moines  IA  50309
 
            
 
            Mr. Marvin E. Duckworth
 
            Attorney at Law
 
            2700 Grand Ave
 
            Suite 111, Terrace Center
 
            Des Moines  IA  50312
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                                    5-1803
 
                                                    Filed March 29, 1990
 
                                                    LARRY P. WALSHIRE
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            RAYMOND E. BENNETT,           :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :        File No. 827119
 
            SIGNAL DELIVERY,              :
 
                                          :     A R B I T R A T I O N
 
                 Employer,                :
 
                                          :        D E C I S I O N
 
            and                           :
 
                                          :
 
            ALLSTATE INSURANCE CO.,       :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
            
 
            
 
            5-1803 - Extent of permanent disability
 
            
 
                 No permanent disability was found.  Only temporary 
 
            total disability awarded.
 
            
 
 
        
 
 
 
 
 
                       BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
        
 
        
 
        PATRICIA CONRAD,
 
        
 
            Claimant,                   File No. 827150
 
        vs .
 
        
 
        MATT PARROTT & SONS,               A P P E A L
 
        
 
            Employer,                   D E C I 5 I O N
 
        
 
        and
 
        
 
        BITUMINOUS INSURANCE COMPANIES,
 
        
 
            Insurance Carrier,
 
            Defendants.
 
        
 
        
 
                                 STATEMENT OF THE CASE
 
        
 
        Defendant Bituminous Insurance Company appeals from an 
 
        arbitration decision awarding temporary total disability benefits 
 
        as a result of an alleged injury on May 23, 1985. Claimant 
 
        cross-appeals.
 
        
 
        The record on appeal consists of the transcript of the 
 
        arbitration proceeding; claimant's exhibits A through M; 
 
        defendant employer's exhibit l; and defendant insurance carrier's 
 
        exhibits 2 and 3.
 
        
 
        Claimant and Bituminous Insurance Company filed briefs on appeal, 
 
        and Bituminous Insurance Company also filed a reply brief.
 
        
 
                                      ISSUES
 
        
 
        Defendant insurance carrier states the following issues on 
 
        appeal:
 
        
 
        1. Did the deputy industrial commissioner err in not applying the 
 
        McKeever case to the present cause of action and in the ultimate 
 
        finding that the insurance carrier, Bituminous Insurance Company, 
 
        was liable for the 1986 injury to claimant, Patricia Conrad?
 
        
 
        2. Did the deputy commissioner err in awarding the claimant 
 
        penalty benefits against the insurance carrier, Bituminous 
 
        Insurance Company?
 
        
 
        CONRAD V. MATT PARROTT & SONS
 
        Page 2
 
        
 
        
 
        3. Did the deputy commissioner err in allowing Dr. Phelps' 
 
        medical conclusions to determine the legal issue in this matter?
 
        
 
        4. In the event that the industrial commissioner reverses the 
 
        deputy commissioner's decision regarding liability, the employer, 
 
        Matt Parrott & Sons, Inc., should be responsible for costs.
 
        
 
        Claimant states the following issues on cross-appeal:
 
        
 
        1. Whether the Claimant is entitled to Section 86.13 penalty 
 

 
        
 
 
 
 
 
        damages in the amount of 50% based upon the unreasonable delay 
 
        and denial in making payment of benefits for the periods of May 
 
        23, 1985 - May 27, 1985, June 12, 1985 - July 15, 1985, and June 
 
        25, 1986 - September 2, 1986.
 
        
 
        2. Whether the Claimant has sustained disability as defined by 
 
        Section 85.34(2)(m) for which she is entitled to reimbursement in 
 
        the form of permanent partial disability benefits.
 
        
 
                                 REVIEW OF THE EVIDENCE
 
        
 
        The arbitration decision adequately and accurately reflects the 
 
        pertinent evidence and it will not be set forth herein.
 
        
 
                                 APPLICABLE LAW
 
        
 
        The citations of law in the arbitration decision are appropriate 
 
        to the issues and the evidence.
 
        
 
                                      ANALYSIS
 
        
 
        The analysis of the evidence in conjunction with the law is 
 
        adopted.
 
        
 
                                 FINDINGS OF FACT
 
        
 
        1. Claimant began working for defendant employer in May 1974 in 
 
        the bindery operating a shrink wrap machine which required 
 
        repeated use of her arm as well as lifting.
 
        
 
        2. Claimant sought medical treatment May 23, 1985 for right elbow 
 
        pain which she had been experiencing for some six to seven 
 
        months.
 
        
 
        3. Claimant was diagnosed as having tendonitis or medial 
 
        epicondylitis and was treated with physical therapy, long arm 
 
        cast, cortisone injection, and told to wear a tennis elbow splint 
 
        which claimant did wear for approximately one year.
 
        
 
        4. Claimant's condition was caused by her employment.
 
        
 
        CONRAD V. MATT PARROTT & SONS
 
        Page 3
 
        
 
        
 
        5. Claimant was unable to work as a result of her injury from May 
 
        23 through May 27, 1985, inclusive, and again from June 12, 1985 
 
        through July 15, 1985, inclusive.
 
        
 
        6. Claimant continued to experience pain despite the treatment 
 
        she had received.
 
        
 
        7. Claimant returned to see her physician in June 1986, and on 
 
        June 25, 1986 an excision of the medial epicondyle and release of 
 
        her flexors was done.
 
        
 
        8. Claimant's surgery of June 25, 1986 was as a result of the May 
 
        23, 1985 injury.
 
        
 
        9. Claimant was unable to work as a result of her injury from 
 
        June 25, 1986 through September 1, 1986.
 
        
 
        10. Claimant has no permanent impairment as a result of her 
 
        injury.
 
        
 
        11. Defendants delayed commencement of benefits without 
 

 
        
 
 
 
 
 
        reasonable or probable cause or excuse.
 
        
 
                                 CONCLUSIONS OF LAW
 
        
 
        Claimant sustained an injury which arose out of and in the course 
 
        of her employment May 23, 1985, which resulted in surgery 
 
        occurring June 25, 1986.
 
        
 
        Claimant has not established her entitlement to any permanent 
 
        partial disability benefits.
 
        
 
        Claimant has established entitlement to temporary total 
 
        disability benefits for periods from May 23 through May 27, 1985, 
 
        June 12 through July 15, 1985, and June 25 through September 1, 
 
        1986, inclusive.
 
        
 
        Claimant has established entitlement to Iowa Code section 86.13 
 
        penalty benefits.
 
        
 
        Claimant has established entitlement to medical benefits pursuant 
 
        to Iowa Code section 85.27.
 
        
 
        WHEREFORE, the decision of the deputy is affirmed.
 
        
 
                                      ORDER
 
        
 
        THEREFORE, it is ordered:
 
        
 
        That defendants pay unto claimant five point five seven one 
 
        (5.571) weeks of temporary total disability benefits for the 
 
        period from May 23 through May 27, 1985 and June 12 through
 
        
 
        CONRAD V. MATT PARROTT & SONS
 
        Page 4
 
        
 
        
 
        July 15, 1985, inclusive, at the stipulated rate of one hundred 
 
        thirty-seven and 88/100 dollars ($137.88) per week.
 
        
 
        That defendants pay unto claimant nine point eight five seven 
 
        (9.857) weeks of temporary total disability benefits for the 
 
        period from June 25, 1986 through September 1, 1986, inclusive, 
 
        at the stipulated rate of one hundred thirty-eight and 85/100 
 
        dollars ($138.85) per week.
 
        
 
        That defendants pay unto claimant the additional sum of five 
 
        hundred twenty-seven and 62/100 dollars ($527.62) or thirty-five 
 
        percent (35%) of those benefits which were unreasonably denied 
 
        claimant specifically for the week of July 9 through July 15, 
 
        1985 and the period from June 25, 1986 through September 1, 1986.
 
        
 
        Defendants shall pay all disputed medical expenses as follows:
 
        
 
        Dr. Dale H. Phelps                            $750.00
 
        Allen Memorial Hospital
 
           5/24/ 26, 29, 31/85                         72.00
 
        Allen Memorial Hospital
 
           6/3, 4, 6, 8                                90.00
 
        Radiological Associates, 6/23/86                17.50
 
        Waterloo Internal Medicine
 
           Associates, P.C., 6/25/86                   12.00
 
        John Glascock, M.D., P.C., 6/25/86             240.00
 
        Allen Memorial Hospital, 6/25/86               589.64
 
        Dr. James D. Collins, Jr.                       25.00
 
        Evansdale Pharmacy (Prescriptions)               4.88
 
        
 

 
        
 
 
 
 
 
        That defendants shall receive full credit for all disability 
 
        benefits previously paid.
 
        
 
        That weekly benefits which have accrued shall be paid in a lump 
 
        sum together with statutory interest thereon pursuant to Iowa 
 
        Code section 85.30.
 
        
 
        That defendants pay the costs including the costs of the 
 
        transcription of the hearing proceeding.
 
        
 
        That defendants file claim activity reports as required by 
 
        Division of Industrial Services Rule 343-3.1(2).
 
        
 
        Signed and filed this 28th day of October, 1988.
 
        
 
        
 
        
 
                                        DAVID E. LINQUIST
 
                                     INDUSTRIAL COMMISSIONER
 
        
 
        
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         PATRICIA CONRAD,
 
         
 
              Claimant,                              File No. 827150
 
         
 
         vs.                                      A R B I T R A T I O N
 
         
 
         MATT PARROTT & SONS,                        D E C I S I O N
 
         
 
              Employer,
 
                                                       F I L E D
 
         and
 
                                                      MAR 28 1988
 
         BITUMINOUS INSURANCE COMPANIES,
 
                                             IOWA INDUSTRIAL COMMISSIONER
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
                              STATEMENT OF THE CASE
 
         
 
              This is a proceeding in arbitration concerning Patricia A. 
 
         Conrad, claimant, Matt Parrott & Sons, employer, and Bituminous 
 
         Casualty, insurance carrier, to recover benefits under the Iowa 
 
         Workers' Compensation Act as a result of an injury sustained May 
 
         23, 1985.  This matter came on for hearing before the undersigned 
 
         deputy industrial commissioner February 29, 1988.  The record was 
 
         considered fully submitted at the close of hearing.  The record 
 
         in this case consists of the testimony of claimant, Hamer Conrad, 
 
         her husband, Brenda Hardee, and Russell Hemmingson; claimant's 
 
         exhibits A through M, inclusive; defendant employer's exhibit 1; 
 
         and defendant insurance carrier's exhibits 2 and 3.
 
         
 
                                    ISSUES
 
         
 
              Pursuant to the prehearing report and order submitted and 
 
         approved February 29, 1988, the following issues are presented 
 
         for resolution:
 
         
 
              1.  Whether claimant sustained an injury arising out of and 
 
         in the course of her employment on May 23, 1985;
 
         
 
              2.  Whether claimant sustained a new injury arising out of 
 
         and in the course of her employment June 24, 1986;
 
         
 
              3.  Whether the alleged injury is the cause of any permanent 
 
         disability;
 
         
 
              4.  The extent of claimant's entitlement to temporary total 
 
         disability/healing period benefits;
 
         
 
              5.  The extent of claimant's entitlement, if any, to 
 
         permanent partial disability benefits stipulated to be a 
 
                                                   
 
                                                            
 
         scheduled member;
 
         
 
              6.  Claimant's entitlement to certain medical benefits 
 
         pursuant to Iowa Code section 85.27; and,
 
         
 
              7.  Whether claimant is entitled to Iowa Code section 86.13 
 
         penalty benefits.
 
         
 
                               FACTS PRESENTED
 
         
 
              Claimant works in the bindery department of defendant 
 
         employer's plant wrapping packaging of all shapes, sizes, weights 
 
         and thicknesses with a shrink wrap machine.  Originally, this 
 
         machine was operated manually requiring claimant to push down on 
 
         a bar to seal a package and then to push the package through onto 
 
         a conveyor belt.  However, since approximately January 1985, an 
 
         automated machine has been in place which uses a simple push 
 
         button.  Claimant explained the shrink wrap machine is situated 
 
         behind her and requires her to turn around each time she places a 
 
         package in it.
 
         
 
              Claimant testified she had been experiencing pain in her 
 
         right elbow for approximately six to seven months before she 
 
         sought any type of medical treatment.  Claimant saw Dale G. 
 
         Phelps, M.D., on May 23, 1985, who placed a splint on her arm and 
 
         prescribed physical therapy.  Claimant was released to return to 
 
         work and did return approximately May 28, 1985, working until a 
 
         long arm cast was put in place on June 11.  Although claimant was 
 
         able to perform left arm duty, none was available with defendant 
 
         employer and she therefore was off work until July 16, 1985. 
 
         Claimant testified that by this time her pain had not dissipated 
 
         and she received an injection of cortisone.  Claimant returned to 
 
         work with instructions to wear a tennis elbow splint which she 
 
         did wear for approximately one year.
 
         
 
              Claimant testified her pain diminished after the cortisone 
 
         injection but returned to its previous intensity approximately 
 
         two months later.  Claimant did not return to see her physician 
 
         at that time, however, explaining that she had been told surgery 
 
         may be necessary and she feared undergoing an operation.  
 
         Claimant testified she continued to experience pain and 
 
         eventually did return to see Dr. Phelps in June 1986, when she 
 
         felt she could no longer continue working with her elbow in such 
 
         a painful state. Claimant had surgery to her right elbow June 26, 
 
         1986 and returned to work in her regular job September 2, 1986.  
 
         Claimant acknowledged the condition of her elbow has improved 
 
         since surgery and that she is able to perform all the 
 
         responsibilities of her job but that she continues to experience 
 
         pain and numbness in her elbow approximately three or four days 
 
         per week.  Claimant testified she no longer wears the tennis 
 
         elbow splint, has had no further medical care since her surgery, 
 
         that she had no problems with her elbow prior to 1985 and no 
 
         other subsequent injuries to it.
 
         
 
              Hamer Conrad testified he is employed with defendant 
 
                                                   
 
                                                            
 
         employer and that claimant complained continuously about her 
 
         elbow from the onset of the pain and continues to so complain as 
 
         of the time of the hearing.
 
         
 
              Brenda Hardee testified she has been employed with defendant 
 
         employer for approximately eight years, has worked with the 
 
         claimant, and has listened to claimant's complaints of elbow pain 
 
         for approximately two and one-half to three years.  She opined 
 
         that after the long arm cast was removed, claimant did better but 
 
         there was never a time claimant was pain free, that the longer 
 
         claimant was at her job the worse she became and at times, 
 
         depending on how busy the work flow is, claimant is not able to 
 
         keep up with her job.
 
         
 
              Dale G. Phelps, M.D., orthopedic surgeon, testified he first 
 
         saw claimant May 23, 1985 with right elbow pain which he felt was 
 
         caused by repeated lifting of boxes resulting in tendonitis or 
 
         medial epicondylitis which is related to use.  Claimant was 
 
         initially treated by iontophoresis, then a long arm cast, and 
 
         then an injection of cortisone.  Claimant was released to return 
 
         to work July 9, 1985 but, because of pain, did not return to work 
 
         with the doctor's agreement until July 16, 1985.  Claimant was 
 
         advised at the time of her medical appointment with Dr. Phelps on 
 
         July 2 to return to see him if she had further difficulty.
 
         
 
              Dr. Phelps' notes reveal claimant returned to see him on 
 
         June 9, 1986, stating that in spite of all her treatment and 
 
         wearing the tennis elbow splint, she still continued to have pain 
 
         in the medial side of her elbow especially when using it at work. 
 
         Claimant was scheduled for an excision of the medial epicondyle 
 
         and release of her flexors performed June 25, 1986.  Dr. Phelps 
 
         testified:
 
         
 
              Q.  You have no reason to believe that Mrs. Conrad's pain 
 
              went away after you last saw her during 1985, do you?
 
         
 
              A.  No.
 
         
 
              Q.  And isn't it true that more often than not a cortisone 
 
              shot is basically for relief of symptoms rather than for 
 
              cure of the underlying condition?
 
         
 
              A.  Sometimes the relief is permanent with it.
 
         
 
              Q.  In this case it was not?
 
         
 
              A.    In this case it was not.
 
         
 
              Q.  Have you ever indicated to anyone that Mrs. Conrad
 
              sustained a new injury during 1986?
 
         
 
              A.  No.
 
         
 
              Q.  Has it ever been your opinion that she sustained a new 
 
              injury during 1986?
 
                                                   
 
                                                            
 
         
 
              A.  No.
 
         
 
         (Claimant's Exhibit A, pp. 20-21)
 
         
 
              When he last examined claimant, Dr. Phelps found claimant 
 
         had no limitation of motion in her elbow and minimal functional 
 
         disability but, at the time of his deposition, stated:
 
         
 
              Q.  Dr. Phelps, at the time you last saw Patricia Conrad I 
 
              believe you mentioned she continued to have some complaints 
 
              concerning pain and some numbness?
 
         
 
              A.  Yes.
 
         
 
              Q.  If those complaints continue to the present time, would 
 
              you consider those to be permanent?
 
         
 
              A.  If she still had them at one year after that I would 
 
              consider it to have some permanent problem, yes.
 
         
 
              Q.  Although the range of motion may be normal, would that 
 
              be a basis for you to give her some physical impairment if 
 
              those complaints did persist to the present time?
 
         
 
                               
 
                                                            
 
                I am an orthopedic surgeon and primarily a treating 
 
              surgeon and not a Work Comp evaluating surgeon.  I try and 
 
              use the guidelines in the books that are given us, and those 
 
              books do not allow anything for a minimal amount of pain 
 
              over a long period of time.  So in utilizing the guidelines 
 
              which I have, I would not give her any permanent disability, 
 
              although she certainly would have some functional disability 
 
              as far as doing any heavy lifting or repeated use of that 
 
              arm.
 
         
 
         (Cl. Ex. A, pp. 24-25)
 
         
 
              Russell Hemmingson testified he is employed by defendant 
 
         insurance carrier, Bituminous Casualty, as a claim manager and is 
 
         responsible for overseeing workers' compensation claim adjusting. 
 
         Defendant employer had a policy for workers' compensation 
 
         coverage with Bituminous from June 15, 1984 through June 15, 
 
         1985. Hemmingson explained Bob Engstrom, an investigator/ 
 
         adjuster, was assigned to claimant's file July 18, 1986, that he 
 
         (Engstrom) contacted claimant July 23, 1986 and denied the claim 
 
         July 24, 1986 on the basis that claimant sustained a new injury 
 
         in June 1986 although he had not received any medical information 
 
         on the claim at the time of the denial.  Hemmingson stated he 
 
         would have wanted to look at the medical data before a denial was 
 
         issued and that it is not a policy of Bituminous to deny a claim 
 
         before the medical reports are received.  Hemmingson acknowledged 
 
         the possibility of an Iowa Code section 85.21 agreement was 
 
         discussed between himself and Engstrom but rejected since the 
 
         other insurance carriers, who may have been involved, would not 
 
         go along with it.  Bituminous accepted responsibility for payment 
 
         for claimant's absence in 1985 and paid claimant in October 1986 
 
         four and four-sevenths weeks of benefits for the period from May 
 
         23 through May 27 and June 12 through July 8.
 
         
 
                                  APPLICABLE LAW
 
         
 
              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 an injury on May 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, 246 Iowa 402, 68 
 
         N.W.2d 63.
 
         
 
                                                   
 
                                                            
 
              When a worker sustains an injury, later sustains another 
 
         injury, and subsequently seeks to reopen an award predicated on 
 
         the first injury, he or she must prove one of two things:  (a) 
 
         that the disability for which he or she seeks additional 
 
         compensation was proximately caused by the first injury, or (b) 
 
         that the second injury (and ensuing disability) was proximately 
 
         caused by the first injury.  DeShaw v. Energy Manufacturing 
 
         Company, 192 N.W.2d 777, 780 (Iowa 1971).
 
         
 
              The claimant has the burden of proving by a preponderance of 
 
         the evidence that the injury of May 23, 1985 is causally related 
 
         to the disability on which she now bases her claim.  Bodish v. 
 
         Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867 (1965).  Lindahl v. 
 
         L. 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).  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.
 
         
 
              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).
 
         
 
              Iowa Code section 85.33(1) provides:
 
         
 
                   Except as provided in subsection 2 of this section, the 
 
              employer shall pay to an employee for injury producing 
 
              temporary total disability weekly compensation benefits, as 
 
              provided in section 85.32, until the employee has returned 
 
              to work or is medically capable of returning to employment 
 
              substantially similar to the employment in which the 
 
              employee was engaged at the time of injury, whichever occurs 
 
              first.
 
         
 
              Iowa Code section 85.27 provides, in part:
 
         
 
                   The employer, for all injuries compensable under this 
 
              chapter or chapter 85A, shall furnish reasonable surgical, 
 
                                                   
 
                                                            
 
                   medical, dental, osteopathic, chiropractic, podiatric, 
 
              physical rehabilitation, nursing, ambulance and hospital 
 
              services and supplies therefor and shall allow reasonably 
 
              necessary transportation expenses incurred for such 
 
              services.
 
         
 
              Iowa Code section 86.13 provides, in part:
 
         
 
                   If a delay in commencement or termination of benefits 
 
              occurs without reasonable or probable cause of excuse, the 
 
              industrial commissioner shall award benefits in addition to 
 
              those benefits payable under this chapter, or chapter 85, 
 
              85A, or 85B, up to fifty percent of the amount of benefits 
 
              that were unreasonably delayed or denied.
 
         
 
                                   ANALYSIS
 
         
 
              There can be no dispute claimant sustained an injury May 23, 
 
         1985.  Claimant, who had no previous problems with her right 
 
         elbow, sought treatment therefor with Dr. Phelps who rendered a 
 
         diagnosis of medical epicondylitis caused by repeated lifting and 
 
         use.  Dr. Phelps related this condition to claimant's employment. 
 
         There is no evidence in the record to support a conclusion that 
 
         claimant's condition was caused by anything outside of her 
 
         employment.  Claimant was off work as a result of this injury 
 
         from May 23 through May 27 and again from June 12 through July 
 
         15, 1985.  Therefore, it is concluded claimant sustained an 
 
         injury May 23, 1985 which arose out of and in the course of her 
 
         employment and which was the cause of temporary disability for 
 
         which claimant is entitled to five and four-sevenths weeks of 
 
         temporary total disability benefits.
 
         
 
              Likewise, there is no evidence in the record to support a 
 
         conclusion that claimant's problems in 1986 were anything but a 
 
         result of the 1985 injury.  Claimant's uncontroverted testimony 
 
         establishes that from the outset of her symptoms she was never 
 
         symptom free.  Although she had some relief through reduced (not 
 
         eliminated) pain from the cortisone injection, her elbow 
 
         continued to be troublesome, painful and interfered with her 
 
         ability to do the job as she had done before the pain began.  
 
         There is no evidence in the record to show claimant was "cured" 
 
         when she returned to work in July 1985 and then began later to 
 
         experience new symptoms.  The only physician to have seen or 
 
         treated claimant was Dr. Phelps, who continually expressed his 
 
         opinion that claimant's problems in 1986 were related to the 1985 
 
         injury. Indeed, at the time claimant was released to return to 
 
         work in 1985, the possibility of surgery had already been 
 
         discussed. Simply because the actuality of surgery did not occur 
 
         until some eleven months later does not give rise to the 
 
         conclusion that a new injury occurred in the interim period.  It 
 
         is not difficult to believe claimant did not want to face the 
 
         possibility of surgery and therefore delayed returning for 
 
         medical care until the condition was such that she could delay no 
 
         longer.  The fact that claimant delayed does not negate the fact 
 
         that she continued to experience the same type of symptoms that 
 
                                                   
 
                                                            
 
         initially led her to seek treatment.  Accordingly, it is 
 
         concluded claimant did not sustain a new injury in June 1986, but 
 
         that rather claimant's injury on May 23, 1985 was the proximate 
 
         cause of the surgery on June 25, 1986.  Claimant is therefore 
 
         entitled to payment for all disputed medical expenses and is 
 
         further entitled to temporary total disability benefits for the 
 
         period she was off work as a result of the surgery.
 
         
 
              As claimant has sustained an injury to a scheduled member, 
 
         the functional method of evaluating disability must be employed. 
 
         Dr. Phelps testified claimant has no limitation of motion in her 
 
         elbow and minimal functional disability and that, based on the 
 
         American Medical Association Guidelines, he would not give 
 
         claimant any permanent physical impairment.  Dr. Phelps does 
 
         admit claimant would have some functional disability as far as 
 
         doing any "heavy" lifting or repeated use of that arm.  Dr. 
 
         Phelps does not define his meaning of the term " heavy."  
 
         Claimant testified she wrapped packages of all sizes, shapes, 
 
         weights, and thickness and, outside of one reference to 25 pound 
 
         boxes, did not specify the weight she is or may be required to 
 
         lift.  Further, the record establishes that claimant went from 
 
         using a manual shrink wrap machine to an automated one.  
 
         Claimant, therefore, went from pulling down a bar to pressing a 
 
         button.  Following her surgery, claimant was released to return 
 
         to work without restriction and, although it is not subject to 
 
         doubt that claimant continues to experience some discomfort, she 
 
         has been able to perform all of the responsibilities of her job, 
 
         has missed no further work as a result of her injury, and has 
 
         sought no further medical care.  Therefore, it is concluded 
 
         claimant has failed to establish she sustained any permanent 
 
         impairment as a result of her work injury.
 
         
 
              The final issue for resolution is whether claimant is 
 
 
 
                                   
 
                                                            
 
         entitled to Iowa Code section 86.13 penalty benefits.  Generally 
 
         speaking, penalties are not imposed where there are legitimate 
 
         disputes on causation or extent of impairment.  See, for example, 
 
         Just v. Hygrade Food Products Corp. and National Union Fire 
 
         Insurance Company, IV Iowa Industrial Commissioner Reports 190 
 
         (Appeal Decision January 30, 1984).  There can be no dispute 
 
         Bituminous was responsible for payment on the 1985 period of 
 
         claimant's absence from work.  However, payment was not made 
 
         until October 1986.  Evidence in the record suggests the carrier 
 
         was not aware of claimant's absence from work until October 1986 
 
         and, when it was made aware, rendered immediate payment.  The 
 
         record is void of evidence as to why the insurance carrier would 
 
         not have been aware of claimant's absence from work.  However, 
 
         medical evidence establishes claimant was off work an additional 
 
         week as a result of the injury over and above that which was 
 
         compensated.  The company was aware of that additional week at 
 
         the time payment was made.  Yet, there is no evidence to show why 
 
         that final week was never compensated.
 
         
 
              Iowa Code section 86.13 allows for penalty benefits where 
 
         delay in the commencement of benefits occurs without reasonable or 
 
         probable cause or excuse.  To determine whether or nor defendants' 
 
         actions in withholding payments are reasonable, inquiry may first 
 
         be made into whether the claim was properly investigated.  
 
         Evidence establishes that, at best, a minimal investigation was 
 
         done by the insurance carrier before the claim was denied.  A 
 
         discussion was had with the claimant but no medical evidence had 
 
         been received although it was requested.  What was the point of 
 
         requesting the records if those records were not to be utilized?  
 
         Russell Hemmingson acknowledged he would have wanted to look at 
 
         the medical records before a response to the claim would be issued 
 
         and further that it is not a policy of the company to deny a claim 
 
         before receiving the medical.  Further, at the time Bituminous 
 
         denied claimant's claim, it had not not yet even paid what was 
 
         owing for 1985 for which it was clearly liable.  Defendants argue 
 
         that the claim was questionable in light of the court's ruling in 
 
         McKeever Custom Cabinets v. Smith, 379 N.W.2d 368 (Iowa 1985).  
 
         McKeever is not convincing here because the record clearly 
 
         establishes claimant first missed work in May 1985 for the 
 
         condition which resulted in surgery in June 1986 when Bituminous 
 
         was clearly the employer's insurance carrier.
 
         
 
              Inquiry is next made into whether or not there is a 
 
         legitimate dispute over causation.  A legitimate dispute over 
 
         causation would appear to exist to the undersigned when there are 
 
         differing opinions as to causation.  There is only one medical 
 
         expert in this case and it has been his opinion throughout 
 
         claimant's entire treatment expressed as early as September 24, 
 
         1986 that claimant's problems in 1986 were related to her injury 
 
         of May 1985.  As stated above, the issue of causation is 
 
         essentially within the domain of expert testimony.  Defendants' 
 
         actions herein have caused claimant to go without income and to 
 
         resort to having to retain counsel to secure what she rightfully 
 
         was due.  Penalty benefits are clearly in order.
 
         
 
                                                   
 
                                                            
 
                              FINDINGS OF FACT
 
         
 
              Wherefore, based on the evidence presented, the following 
 
         facts are found.
 
         
 
              1.  Claimant began working for defendant employer in May 
 
         1974 in the bindery operating a shrink wrap machine which 
 
         required repeated use of her arm as well as lifting.
 
         
 
              2.  Claimant sought medical treatment May 23, 1985 for right 
 
         elbow pain which she had been experiencing for some six to seven 
 
         months.
 
         
 
              3.  Claimant was diagnosed as having tendonitis or medial 
 
         epicondylitis and was treated with physical therapy, long arm 
 
         cast, cortisone injection, and told to wear a tennis elbow splint 
 
         which claimant did wear for approximately one year.
 
         
 
              4.  Claimant's condition was caused by her employment.
 
         
 
              5.  Claimant was unable to work as a result of her injury 
 
         from May 23 through May 27, 1985, inclusive, and again from June 
 
         12, 1985 through July 15, 1985, inclusive.
 
         
 
              6.   Claimant continued to experience pain despite the 
 
         treatment she had received.
 
         
 
              7.  Claimant returned to see her physician in June 1986, and 
 
         on June 25, 1986 an excision of the medial epicondyle and release 
 
         of her flexors was done.
 
         
 
              8.  Claimant's surgery June 25, 1986 was as a result of the 
 
         May 23, 1985 injury.
 
         
 
              9.  Claimant was unable to work as a result of her injury 
 
         from June 25, 1986 through September 1, 1986.
 
         
 
              10.  Claimant has no permanent impairment as a result of her 
 
         injury.
 
         
 
              11.  Defendants delayed commencement of benefits without 
 
         reasonable or probable cause or excuse.
 
         
 
                             CONCLUSIONS OF LAW
 
         
 
              Wherefore, based on the principles of law previously stated, 
 
         the following conclusions are made:
 
         
 
              1.  Claimant sustained an injury which arose out of and in 
 
         the course of her employment May 23, 1985, which resulted in 
 
         surgery occurring June 25, 1986.
 
         
 
              2.  Claimant has not established her entitlement to any 
 
         permanent partial disability benefits.
 
         
 
                                                   
 
                                                            
 
              3.  Claimant has established entitlement to temporary total 
 
         disability benefits for periods from May 23 through May 27, 1985, 
 
         June 12 through July 15, 1985, and June 25 through September 1, 
 
         1986, inclusive.
 
         
 
              4.  Claimant has established entitlement to Iowa Code 
 
         section 86.13 penalty benefits.
 
         
 
              5.  Claimant has established entitlement to medical benefits 
 
         pursuant to Iowa Code section 85.27.
 
         
 
                                      ORDER
 
         
 
              THEREFORE, IT IS ORDERED:
 
         
 
              Defendants are to pay to claimant five point five seven one 
 
         (5.571) weeks of temporary disability benefits for the period 
 
         from May 23 through May 27, and June 12 through July 15, 1985, 
 
         inclusive, at the stipulated rate of one hundred thirty-seven and 
 
         88/100 dollars ($137.88) per week.
 
         
 
              Defendants are to pay to claimant nine point eight five 
 
         seven (9.857) weeks of temporary disability benefits for the 
 
         period from June 25, 1986 through September 1, 1986, inclusive, 
 
         at the stipulated rate of one hundred thirty-eight and 85/100 
 
         dollars ($138.85).
 
         
 
              Defendants are to pay to claimant the additional sum of five 
 
         hundred twenty-seven and 62/100 dollars ($527.62) or thirty-five 
 
         percent (35%) of those benefits which were unreasonably denied 
 
         claimant specifically for the week of July 9 through July 15, 
 
         1985 and the period from June 25, 1986 through September 1, 
 
         1986.
 
         
 
              Defendants shall pay all disputed medical expenses as follows:
 
          
 
              Dr. Dale H. Phelps                              $750.00
 
              Allen Memorial Hospital
 
                       5/24, 26, 29, 31/85                      72.00
 
              Allen Memorial Hospital
 
                       6/3, 4, 6, 8                             90.00
 
              Radiological Associates, 6/23/86                  17.50
 
              Waterloo Internal Medicine
 
                       Associates, P.C., 6/25/86                12.00
 
              John Glascock, M.D., P.C., 6/25/86               240.00
 
              Allen Memorial Hospital, 6/25/86                 589.64
 
              Dr. James D. Collins, Jr.                         25.00
 
              Evansdale Pharmacy (Prescriptions)                 4.88
 
         
 
              Defendants shall receive full credit for all disability 
 
         benefits previously paid.
 
         
 
              Weekly benefits that have accrued shall be paid in a lump 
 
         sum together with statutory interest thereon pursuant to Iowa 
 
         Code section 85.30.
 
                                                   
 
                                                            
 
         
 
              A claim activity report shall be filed upon payment of this 
 
         award.
 
         
 
              Costs of this action are assessed against defendants 
 
         pursuant to Division of Industrial Services Rule 343-4.33.
 
         
 
              Signed and filed this 28th day of March, 1988.
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
                                            DEBORAH A. DUBIK
 
                                            DEPUTY INDUSTRIAL COMMISSIONER
 
         
 
         Copies to:
 
         
 
         Mr. Robert C. Andres
 
         Attorney at Law
 
         P.O. Box 2634
 
         616 Lafayette St
 
         Waterloo, Iowa  50704-2634
 
         
 
         Mr. Dennis L. Hanssen
 
         Attorney at Law
 
         Terrace Center, Suite 111
 
         2700 Grand Avenue
 
         Des Moines, Iowa  50312
 
 
 
                                
 
                                                            
 
         Mr. James E. Walsh, Jr.
 
         Mr. Bruce Gettman
 
         Attorneys at Law
 
         River Plaza Building
 
         10 W. Fourth Street
 
         Waterloo, Iowa  50704
 
 
 
         
 
 
            
 
          
 
                       
 
 
 
                                            1100; 1402.30; 1803
 
                                            4000.2
 
                                            Filed 3-28-88
 
                                            Deborah A. Dubik
 
         
 
                  BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         PATRICIA CONRAD,
 
         
 
              Claimant,
 
                                                     File No. 827150
 
         vs.
 
         
 
         MATT PARROTT & SONS,                     A R B I T R A T I 0 N
 
         
 
              Employer,                              D E C I S I 0 N
 
         
 
         and
 
         
 
         BITUMINOUS INSURANCE COMPANIES,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         1100; 1402.30
 
         
 
              In May 1985, claimant complained of elbow pain and sought 
 
         treatment.  After her release to return to work, claimant 
 
         continued to experience pain and sought additional treatment one 
 
         year later.  Held claimant sustained an injury arising out of and 
 
         in the course of her employment in May 1985 which was the cause 
 
         of her further treatment in June 1986.  Claimant did not sustain 
 
         a new injury in June 1986.
 
         
 
         1803
 
         
 
              Medical evidence established claimant had no limitation of 
 
         motion and minimal functional disability and the only medical 
 
         expert to testify would not rate claimant as impaired.  Claimant 
 
         has been able to return to her regular job and perform that job 
 
         without the necessity of any further medical treatment.  Held 
 
         claimant failed to establish the work injury was the cause of any 
 
         permanent impairment and no permanent partial disability benefits 
 
         awarded.
 
         
 
         4000.2
 
         
 
              Claimant awarded 35% penalty benefits for unreasonable delay 
 
         in commencement of benefits.  Insurance company had denied 
 
         liability although it failed to conduct any semblance of a 
 
         thorough investigation and there was no question of causation. 
 
         Only one medical expert treated claimant and offered any opinion 
 
         on the cause of her problem.
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                   BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         PATRICIA CONRAD,
 
         
 
              Claimant,                             File No. 827150
 
         
 
         vs.
 
                                                        N U N C
 
         MATT PARROTT & SONS,
 
                                                         P R 0
 
              Employer,
 
                                                        T U N C
 
         and
 
                                                       0 R D E R
 
         BITUMINOUS INSURANCE COMPANIES,
 
                                                      F I L E D
 
              Insurance Carrier,
 
              Defendants.                             APR 04 1988
 
         
 
                                             IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
              The decision in the above captioned matter filed March 28, 
 
         1988 erroneously referred to two different rates.  As there was 
 
         only one injury, only the 1985 rate ($137.88) is applicable (Iowa 
 
         Code section 85.36).
 
         
 
              Paragraphs 2 and 3 of the order of the decision are 
 
         corrected to read as follows:
 
         
 
              Defendants are to pay to claimant nine point eight five 
 
         seven (9.857) weeks of temporary disability benefits for the 
 
         period from June 25, 1986 through September 1, 1986, inclusive, 
 
         at the stipulated rate of one hundred thirty-seven and 88/100 
 
         dollars ($137.88).
 
         
 
              Defendants are to pay to claimant the additional sum of five 
 
         hundred twenty-three and 94/100 dollars ($523.94) or thirty-five 
 
         percent (35%) of those benefits which were unreasonably denied 
 
         claimant specifically for the week of July 9 through July 15, 
 
         1985 and the period from June 25, 1986 through September 1, 
 
         1986.
 
         
 
              The decision in all other regards remains as filed.
 
         
 
              Signed and filed this 4th day of April, 1988.
 
         
 
         
 
         
 
         
 
         
 
         
 
                                            DEBORAH A. DUBIK
 
                                            DEPUTY INDUSTRIAL 
 
                                                
 
                                                         
 
                                                                               COMMISSIONER
 
         
 
         Copies to:
 
         
 
         Mr. Robert C. Andres
 
         Attorney at Law
 
         P.O. Box 2634
 
         616 Lafayette St
 
         Waterloo, Iowa  50704-2634
 
         
 
         Mr. Dennis L. Hanssen
 
         Attorney at Law
 
         Terrace Center, Suite 111
 
         2700 Grand Avenue
 
         Des Moines, Iowa  50312
 
         
 
         Mr. James E. Walsh, Jr.
 
         Mr. Bruce Gettman
 
         Attorneys at Law
 
         River Plaza Building
 
         10 W. Fourth Street
 
         Waterloo, Iowa  50704
 
 
 
         
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            PETE BARATTA,                 :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :         File Nos. 827247
 
                                          :                   855430
 
            MONARCH CEMENT COMPANY,       :
 
                                          :      A R B I T R A T I O N
 
                 Employer,                :
 
                                          :         D E C I S I O N
 
            and                           :
 
                                          :
 
            WAUSAU INSURANCE COMPANIES,   :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ____________________________________________________________
 
            
 
                                   introduction
 
            
 
                 This decision concerns two proceedings in arbitration 
 
            brought by Pete Baratta against his former employer, Monarch 
 
            Cement Company, and its workers' compensation insurance 
 
            carrier, Wausau Insurance Companies.  File number 827247 
 
            deals with an alleged acute injury that occurred on November 
 
            25, 1985.  File number 855430 deals with an alleged 
 
            cumulative trauma injury of December 23, 1985.  Defendants 
 
            stipulated to the occurrence of an injury on November 25, 
 
            1985, but dispute the occurrence of the alleged cumulative 
 
            trauma injury.  With regard to both cases, issues exist with 
 
            regard to determining the claimant's entitlement to healing 
 
            period, temporary total disability, permanent partial 
 
            disability or permanent total disability.  Claimant relies 
 
            on the odd-lot doctrine.  Claimant seeks benefits under the 
 
            provisions of Iowa Code section 85.27 and additional 
 
            compensation for the wrongful denial or termination of 
 
            weekly benefits under the fourth unnumbered paragraph of 
 
            Iowa Code section 86.13.  Defendants assert that the claim 
 
            is barred by the provisions of Iowa Code section 85.23 for 
 
            lack of notice of injury.  Defendants also specifically 
 
            dispute the existence of any causal connection between the 
 
            admitted November 25, 1985 injury and the disability which 
 
            has afflicted claimant.  The rate of compensation was 
 
            stipulated to be $310.46 per week in the event of an award 
 
            based on claimant being married with three exemptions.
 
            
 
                 The case was heard and fully submitted at Des Moines, 
 
            Iowa on September 27, 1989.  The record in the proceeding 
 
            consists of testimony from Mike M. Nucaro, Charles Austin, 
 
            Bill McCoy, Cathrine Severino, Robin Haege, Harold Meyer, 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            
 
            
 
            Pete Baratta, Richard Welch and Austin Parrott.  The record 
 
            also contains jointly offered exhibits A through U and 
 
            deputy's exhibits 1 and 2.
 
            
 
                               summary of evidence
 
            
 
                 All the evidence referred to in the Introduction, as 
 
            well as the demeanor of those who testified at hearing, was 
 
            considered when deciding this case.  The lack of a reference 
 
            to any particular part of the record does not indicate that 
 
            it was overlooked.
 
            
 
                 There appears to be little dispute in the evidence 
 
            regarding many of the events which have occurred, even so 
 
            far as the extent of the claimant's current state of 
 
            disability.  The primary disputed issue in the case deals 
 
            with the cause or causes of that disability.
 
            
 
                 Pete Baratta was, at the time of hearing, a 50-year-old 
 
            married man with two children, one of whom was a minor 
 
            during November of 1985.  Baratta was born in Terravechia, 
 
            Italy in 1939.  He immigrated to the United States in 1962 
 
            and has since obtained U.S. citizenship.  Baratta did not 
 
            attend school in Italy or in the United States and is unable 
 
            to read or write in either Italian or English.  Baratta 
 
            speaks broken English with a heavy Italian accent.  He seems 
 
            to have difficulty understanding and expressing himself at 
 
            times and for this reason an interpreter was used during the 
 
            hearing.  Claimant's wife was also born in Italy.
 
            
 
                 In Italy, Baratta worked on a farm and performed 
 
            general labor.  In the United States, he has worked as a 
 
            handyman, bus boy, dishwasher and laborer.  He has been 
 
            employed by Monarch and its predecessor cement company since 
 
            1966.  The job has normally included a seasonal layoff 
 
            during the winter months during which time claimant has 
 
            collected unemployment, but he stated that he has not held 
 
            other jobs during those layoffs.  At the cement plant 
 
            claimant has performed cleanup work and loaded and unloaded 
 
            railroad cars.  He described the work as heavy.  In 
 
            claimant's most recent job, he tended a conveyor and was 
 
            responsible for oiling it and cleaning up materials which 
 
            fell from it.  The work required carrying buckets of oil, 
 
            sweeping and shoveling.
 
            
 
                 In 1980, claimant underwent disc surgery at the L4-5 
 
            level of his spine.  The surgery was performed by Marshall 
 
            Flapan, M.D., a Des Moines orthopaedic surgeon.  Dr. Flapan 
 
            did not recall whether any restrictions had been placed on 
 
            claimant's activities following that 1980 surgery (exhibit 
 
            F, page 25).  Claimant stated that after recovery from the 
 
            surgery, he had no pain or problems and was able to do all 
 
            of his work.
 
            
 
                 According to claimant, he slipped and fell on steel 
 
            steps near kiln number 1 on November 25, 1985.  Claimant 
 
            reported the incident to his supervisor, Harold Meyer, and 
 
            Robin Haege, the laboratory person (exhibit K).  Haege, 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            
 
            
 
            Meyer and the written note made when the injury was reported 
 
            all confirm that claimant reported injuring his back in a 
 
            fall.  Claimant stated that he had slipped on ice.  Exhibit 
 
            U reports freezing drizzle, a temperature of 31 degrees and 
 
            a light wind of no more than 10 miles per hour at the 
 
            approximate time of the fall.  According to the first report 
 
            of injury, claimant's work shift had started at 10:45 p.m.  
 
            In exhibit L, claimant placed the time of the fall at 1:00 
 
            to 2:00 a.m.  Kiln number 1 was operating on November 25, 
 
            1985 and had been for several days both prior to and after 
 
            November 25, 1985 (exhibit T).  According to Richard Welch, 
 
            the employer's office manager, and Austin Parrott, a 
 
            supervisor at the plant, ice does not form on the steps 
 
            outside of kiln number 1 when the kiln is operating due to 
 
            the extremely high temperatures produced by the kiln.
 
            
 
                 In claimant's answers to interrogatory number 12 
 
            (exhibit M), he relates that he was carrying two buckets of 
 
            oil when he slipped and fell, but when deposed, he denied 
 
            carrying anything when he fell (exhibit Q, page 13).
 
            
 
                 Claimant continued to work following November 25, 1985 
 
            until the December 23, 1985 seasonal layoff.  Claimant 
 
            stated that he experienced pain at the time he fell and 
 
            continued to have pain in his back and leg, but wanted to 
 
            keep working as long as he could.  He stated that he knew a 
 
            layoff would be coming and worked even though his pain 
 
            continued to worsen.  Claimant stated that he told Harold 
 
            Meyer he had hurt his back and that Meyer told him not to do 
 
            much shoveling.  Meyer testified that on some days if 
 
            claimant complained, he would tell him not to do the cleanup 
 
            work, but that on some nights after November 25, 1985 
 
            claimant did use the shovel and performed cleanup work.  
 
            Claimant stated that he used aspirin and a heating pad to 
 
            treat his back while he continued working and also while he 
 
            rested at home following the layoff.
 
            
 
                 After the layoff, claimant applied for and received 
 
            unemployment.  As a condition of receiving it, he applied 
 
            for work at other businesses.  Claimant stated that he told 
 
            them he had a bad back and that none of them would hire him.  
 
            Claimant stated that during January, February and March of 
 
            1986 after the layoff, he stayed home, lay down and sat 
 
            because his back bothered.  He denied lifting, pushing or 
 
            handling a freezer in his home in any manner during March or 
 
            April of 1986.  Claimant stated that in order to get relief 
 
            he lay on the floor and took aspirin.  He stated that 
 
            Cathrine Severino, a neighbor, had given him a heating pad 
 
            to use on his back.  Claimant stated that he had pain in his 
 
            back and leg and that his leg would go numb.  He stated that 
 
            he did not shovel his walk that winter.
 
            
 
                 Claimant stated that during the layoff his back 
 
            continued to worsen and he eventually sought treatment from 
 
            his family physician George H. White, M.D.  Exhibit E, page 
 
            4 shows that on or about March 5, 1985, claimant underwent a 
 
            physical from Dr. White wherein it was noted that he has 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            
 
            
 
            lumbosacral distress off and on.  At page 3 of exhibit E 
 
            appear records of a physical performed by Dr. White on March 
 
            5, 1986 where lumbosacral distress off and on is again 
 
            noted.  Notes from Dr. White dated April 14, 1986 report 
 
            lumbosacral distress into the hip and down the left leg.  
 
            The notes appear to indicate that it hurt while sitting, but 
 
            that claimant was comfortable while lying on the bed and 
 
            that this was the first distress he had experienced since 
 
            the 1980 left disc surgery.  The notes are not highly 
 
            legible.  No other evidence from Dr. White appears in the 
 
            record to explain or interpret his handwritten notes.  The 
 
            note of April 14, 1986 indicates that claimant was diagnosed 
 
            as having an acute lumbosacral strain, prescribed pain 
 
            relief medication and referred to Dr. Flapan.  The notes 
 
            reflect that claimant returned to Dr. White a second time on 
 
            April 16, 1986.  The notes seem to indicate that the 
 
            physical examination indicated that claimant was hurting bad 
 
            and trying to get an earlier appointment at Orthopaedic 
 
            Associates, the group with which Dr. Flapan practices 
 
            (exhibit E, page 2).
 
            
 
                 Claimant stated that he never told Dr. Flapan nor 
 
            anyone else that he had hurt his back while lifting a 
 
            freezer.  He stated that he never told anyone that he had 
 
            hurt himself at home.  Claimant stated that his back hurt 
 
            when he saw Dr. White in March of 1986, but that he did not 
 
            tell Dr. White about it.
 
            
 
                 Claimant was seen by Dr. Flapan on April 28, 1986.  
 
            Contained within the notes of the examination is the 
 
            following statement:
 
            
 
                 A 47 year old Italian immigrant who is currently 
 
                 laid off.  Comes in complaining of low back pain 
 
                 which started about 4 weeks.  Six years ago he had 
 
                 a lumbar laminectomy L4-L5 on the left and 
 
                 diskectomy and has gotten along well since that 
 
                 time until the present episode.
 
            
 
            (Exhibit C, page 8)
 
            
 
                 Dr. Flapan recommended that claimant be started on 
 
            physical therapy.
 
            
 
                 The notes of physical therapist Dave Peterson dated 
 
            April 29, 1986 state, in part:  "Patient is seen for initial 
 
            treatment.  Presents with acute back pain that he got when 
 
            he was lifting at home."  (Notes contained in exhibit S)
 
            
 
                 The physical therapy was not successful and claimant 
 
            was then admitted to Mercy Hospital Medical Center on May 6, 
 
            1986 (exhibit D, page 1).  The history entered by Dr. Flapan 
 
            at the time of admission was that claimant's low back pain 
 
            had started about six weeks earlier (exhibit D, page 67).  
 
            On May 9, 1986, claimant was seen in consultation by John R. 
 
            Ritzman, M.D.  The history in the notes states in part:  
 
            "[Status post] lumbar laminectomy 6 years ago, Re-injury 6 
 
            weeks ago -- lifting. . . ."  (Exhibit D, page 68)  A 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            
 
            
 
            patient questionnaire dated May 8, 1986 indicates a chief 
 
            complaint of lower back pain -- also in legs with a date of 
 
            onset listed as eight weeks and injured by picking up 
 
            freezer (exhibit D, page 151).  A patient history dated May 
 
            6, 1986 indicates that the reason for admission is pain in 
 
            low back which started six weeks ago (exhibit D, page 138).  
 
            At page 140 of exhibit D, it is noted that claimant 
 
            complained of three neuromuscular symptoms and it is also 
 
            reported that they started 6-8 weeks ago.  The patient 
 
            progress notes for May 6 at 1400 indicate that claimant's 
 
            symptoms were reported as pain in the left buttock and left 
 
            leg which started 6-8 weeks ago.  The remaining portion 
 
            appears to read that he treated with medications without 
 
            improvement (exhibit D, page 143).
 
            
 
                 Claimant was treated conservatively with medication and 
 
            physical therapy, but his symptoms did not resolve.  A 
 
            steroid injection did not relieve his symptoms.  A CT scan 
 
            was interpreted as showing a diffuse disc bulge at the L4-5 
 
            level and soft tissue density filling the left lateral 
 
            recess of the spinal canal causing deformity of the thecal 
 
            sac.  The impression was that claimant showed changes from a 
 
            left-sided L4-5 hemilaminectomy, left L4-5 epidural scar 
 
            causing deformity of the thecal sac and surrounding the left 
 
            nerve root and L4-5 lateral disc bulge on the left which 
 
            combined with left-sided epidural scarring has caused 
 
            significant narrowing of the left intervertebral foramen and 
 
            left-sided nerve root compression (exhibit D, pages 75 and 
 
            76).
 
            
 
                 On May 21, 1986, Dr. Flapan performed hemilaminectomy 
 
            and discectomy surgery at the left L4-5 level of claimant's 
 
            spine.  The nerve root was found to be entrapped in scar 
 
            tissue and the disc bulging (exhibit D, pages 84, 94 and 
 
            97).  Claimant was discharged from the hospital on May 30, 
 
            1986 (exhibit D, page 62).
 
            
 
                 Richard Welch, Monarch office manager, stated that on 
 
            July 7, 1986 claimant and his brother Joe Baratta, who had 
 
            previously filed workers' compensation claims for back 
 
            injuries against Monarch, came to the plant and made 
 
            application for disability for claimant's back, alleging 
 
            that claimant had been injured in November 1985.  Welch 
 
            stated that this was the first notice that he had of 
 
            claimant's back injury.  Exhibit L is a written report which 
 
            was signed by claimant, though apparently written by someone 
 
            else.  It states that during the night at 1:00 or 2:00 a.m., 
 
            while in the process of checking the gear drive on kiln 
 
            number 1, claimant's legs slipped and that he fell straight 
 
            backwards onto his back, feeling the immediate onset of 
 
            sharp pain.  The report goes on to state that claimant 
 
            worked until the layoff, but that the longer he worked the 
 
            worse his pain became.  It states that during the layoff, 
 
            claimant did not work, that his back was bothering and that 
 
            he tried to rest it.  The report denies any injury having 
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            
 
            
 
            occurred after the layoff.
 
            
 
                 Three of claimant's neighbors, namely Charles Austin, 
 
            Bill McCoy and Cathrine Severino, all testified that 
 
            claimant was having difficulty with his back throughout the 
 
            winter of 1985-86.  Austin, who delivers baked goods to his 
 
            neighbors at Christmas time, stated that when he did so 
 
            during the 1985 Christmas season, claimant was still 
 
            working, but told him that his back hurt and that he had 
 
            fallen at work.  Austin stated that claimant was laid off on 
 
            Christmas Eve 1985 and that during the early months of 1986 
 
            claimant's activities were limited.  Austin related that 
 
            claimant was not active outside his home as he had been 
 
            previously and that his back was killing him.  Austin stated 
 
            that he cleaned claimant's driveway of snow during that 
 
            winter, but that during previous winters, claimant had 
 
            cleaned his own driveway.  Austin had no knowledge of any 
 
            lifting injury which claimant would have sustained in 1986.
 
            
 
                 Bill McCoy, another neighbor, stated that when he 
 
            observed Baratta during the period of November 1985 through 
 
            February 1986, he was aware that claimant had been injured 
 
            at work and could see that claimant was having difficulty 
 
            moving about.  McCoy stated that claimant suffered a great 
 
            deal and that he could observe that claimant was in pain.  
 
            McCoy stated that since November of 1985, claimant has been 
 
            unable to do anything.  McCoy related that claimant had told 
 
            him that he had fallen at work.  McCoy had no knowledge of 
 
            any injury which claimant might have sustained while lifting 
 
            or moving a freezer in March or April of 1986.  He stated 
 
            that during March and April of 1986, claimant could not have 
 
            been lifting a freezer because he was unable to do anything.
 
            
 
                 Cathrine Severino stated that she knew claimant was 
 
            ailing and went to his home to see if she could assist.  
 
            Severino stated that she found claimant lying on the floor 
 
            to get relief and that she did all she could to take care of 
 
            him because he was in pain.  Severino had no knowledge of 
 
            claimant ever lifting a freezer.  She stated that in March 
 
            or April of 1986 he could not have done anything in the 
 
            nature of lifting a freezer.  She stated that she first 
 
            became aware of claimant's back trouble in November of 1985 
 
            or 1986.
 
            
 
                 All the neighbors agreed that claimant had been very 
 
            active in gardening, mowing his lawn and shoveling snow 
 
            during the appropriate seasons.  They all found him to be a 
 
            very active, hard working man prior to the winter of 
 
            1985-86.
 
            
 
                 Mike Nucaro, a workers' compensation claims manager for 
 
            Farmland Insurance Company, testified that he was born in 
 
            Terravechia, Italy, but left in 1947 to come to the United 
 
            States.  Nucaro stated that common labor was the occupation 
 
            of claimant's family in Italy and that to his knowledge, 
 
            claimant had no formal education in Italy.  Nucaro was aware 
 
            of when claimant moved to the United States in approximately 
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
            
 
            
 
            1962 and from that time on has seen him regularly.
 
            
 
                 Nucaro stated that claimant now speaks and understands 
 
            some English, but is not proficient in English.  He stated 
 
            that claimant has difficulty following directions to get to 
 
            locations and sometimes misunderstands English.  Nucaro 
 
            stated that in Italy there was nothing like workers' 
 
            compensation and that when someone was injured they were 
 
            simply injured and received no pay or benefits.
 
            
 
                 Nucaro was aware of claimant's work history and general 
 
            health history.  He stated that he had visited claimant in 
 
            the hospital in 1980 and also in 1986.  Nucaro stated that 
 
            during the visit in 1986, claimant told him the back trouble 
 
            had started when he fell at the cement plant and had 
 
            progressively worsened.  Nucaro stated that claimant knew 
 
            nothing about workers' compensation, was not getting 
 
            workers' compensation benefits, but had applied for 
 
            unemployment.  Nucaro stated that claimant did not know the 
 
            difference between workers' compensation and unemployment.  
 
            Nucaro further testified that claimant told him that a 
 
            report had been made of the fall.  Nucaro checked and found 
 
            from the report of the fall that it had occurred in 
 
            November.
 
            
 
                 Nucaro stated that claimant is currently unable to do 
 
            manual labor, is unable to perform any job which would 
 
            require that he read, write, speak or understand English 
 
            proficiently.  He knew of no steady job which claimant could 
 
            perform.
 
            
 
                 Nucaro testified that he and claimant are good friends 
 
            and sometimes see each other weekly, including visits in 
 
            each other's homes.  They attend the same church.  Their 
 
            wives also visit with each other.  Nucaro stated that during 
 
            the winter of 1985-86, and at Christmas time, claimant had 
 
            expressed complaints of back problems and of his leg being 
 
            numb.  Nucaro stated that during the winter, claimant 
 
            confined himself to his home and used a heating pad and was 
 
            taking pills for his back.  Nucaro stated that he could not 
 
            recall claimant having made any back complaints between 1980 
 
            and 1985.
 
            
 
                 Claimant now receives Social Security disability 
 
            benefits.  Nucaro acted as his interpreter at the Social 
 
            Security hearing.  Nucaro had no knowledge of claimant being 
 
            injured in any manner other than from the fall at work.
 
            
 
                 Claimant's surgeon was Dr. Flapan.  He was subsequently 
 
            evaluated by Ernest M. Found, Jr., M.D., at the Spine 
 
            Diagnostic and Treatment Center of the Department of 
 
            Orthopaedic Surgery at the University of Iowa Hospitals and 
 
            Clinics at Iowa City.  A further evaluation was performed by 
 
            Des Moines orthopaedic surgeon William R. Boulden, M.D.  All 
 
            three agree that claimant is disabled and unable to perform 
 
            any type of work (exhibit A, pages 1, 3 and 4; exhibit F, 
 
            page 13; exhibit R, page 18; exhibit S, page 38).
 
            
 

 
            
 
            Page   8
 
            
 
            
 
            
 
            
 
            
 
            
 
                 The physicians do not agree, however, on the issue of 
 
            the cause for claimant's current disability.  The basis for 
 
            their disagreement, however, rests upon which factual 
 
            history is to be believed or relied upon.  All three agree 
 
            that if the history which claimant verbally provided at 
 
            hearing is relied upon, then a causal connection does exist 
 
            between the fall, the surgery performed by Dr. Flapan and 
 
            the current state of disability (exhibit A, page 1; exhibit 
 
            C, page 1; exhibit F, pages 13-21 and 45-47; exhibit R, 
 
            pages 13-17, 23 and 24).  Dr. Boulden, however, expressed 
 
            the opinion that the November 1985 injury was a temporary 
 
            aggravation of a preexisting condition and that based upon 
 
            the histories given by claimant in April and May of 1986, a 
 
            new injury was sustained in late March or early April of 
 
            1986 (exhibit R, pages 20 and 21; exhibit S, pages 6 and 7).
 
            
 
                 Dr. Flapan, upon being shown the various early 
 
            histories given by claimant in April and May of 1986, agreed 
 
            that lifting at home could be a cause of claimant's symptoms 
 
            (exhibit F, pages 30-36).
 
            
 
                 Drs. Boulden and Flapan agreed that claimant's back 
 
            condition is not the result of cumulative trauma resulting 
 
            from years of heavy labor, although heavy labor may have 
 
            aggravated claimant's back condition (exhibit C, page 1; 
 
            exhibit S, pages 10 and 11).
 
            
 
                           applicable law and analysis
 
            
 
                 Code section 85.23 requires an injured employee to 
 
            report the injury to his employer within 90 days from the 
 
            date of its occurrence.  Claimant clearly did so for the 
 
            November 25, 1985 injury as established by his own 
 
            testimony, the testimony of Harold Meyer, Robin Haege and 
 
            exhibit K.  He did not for the alleged December 23, 1985 
 
            injury.
 
            
 
                 Claimant has the burden of proving by a preponderance 
 
            of the evidence that he received injuries on November 25, 
 
            1985 and/or December 23, 1985 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 claimant has the burden of proving by a preponderance of 
 
            the evidence that the injuries of November 25, 1985 and/or 
 
            December 23, 1985 are causally related to the disability on 
 
            which he now bases his claim.  Bodish v. Fischer, Inc., 257 
 
            Iowa 516, 133 N.W.2d 867 (1965).  Lindahl v. L. O. Boggs, 
 
            236 Iowa 296, 18 N.W.2d 607 (1945).  A possibility is 
 
            insufficient; a probability is necessary.  Burt v. John 
 
            Deere Waterloo Tractor Works, 247 Iowa 691, 73 N.W.2d 732 
 
            (1955).  The question of causal connection is essentially 
 
            within the domain of expert testimony.  Bradshaw v. Iowa 
 
            Methodist Hospital, 251 Iowa 375, 101 N.W.2d 167 (1960). 
 
            However, expert medical evidence must be considered with all 
 
            other evidence introduced bearing on the causal connection.  
 
            Burt, 247 Iowa 691, 73 N.W.2d 732.  The opinion of experts 
 
            need not be couched in definite, positive or unequivocal 
 

 
            
 
            Page   9
 
            
 
            
 
            
 
            
 
            
 
            
 
            language.  Sondag v. Ferris Hardware, 220 N.W.2d 903 (Iowa 
 
            1974).  However, the expert opinion may be accepted or 
 
            rejected, in whole or in part, by the trier of fact.  Id. at 
 
            907.  Further, the weight to be given to such an opinion is 
 
            for the finder of fact, and that may be affected by the 
 
            completeness of the premise given the expert and other 
 
            surrounding circumstances.  Bodish, 257 Iowa 516, 133 N.W.2d 
 
            867.  See also Musselman v. Central Telephone Co., 261 Iowa 
 
            352, 154 N.W.2d 128 (1967).
 
            
 
                 With regard to the alleged cumulative trauma injury of 
 
            December 23, 1985, no physician has diagnosed claimant to be 
 
            suffering from any cumulative trauma injury or stated that 
 
            any cumulative trauma from hard work injured or produced any 
 
            disability affecting claimant.  A preexisting condition can 
 
            be aggravated without actually producing any disability.  It 
 
            is therefore determined that Pete Baratta has failed to 
 
            prove by a preponderance of the evidence that he sustained 
 
            an injury through cumulative trauma during the period 
 
            leading up to and including December 23, 1985.  The claim 
 
            made in case number 855430 is therefore denied.
 
            
 
                 The record clearly shows that Pete Baratta did fall and 
 
            injure his back on November 25, 1985.  The severity of that 
 
            injury is, however, seriously disputed.  Claimant's friends 
 
            and neighbors have offered testimony of a notable change in 
 
            claimant's usual activities, of being told by claimant that 
 
            he had fallen at work and of observing him exhibiting 
 
            symptoms of back pain during the winter of 1985-86 and 
 
            since.  All those witnesses who appeared and testified at 
 
            the hearing appeared to be credible.  All appeared to be 
 
            good, upstanding citizens.  On the other hand, the evidence 
 
            in this case presents a number of medical histories given in 
 
            April and May of 1986 which make no reference whatsoever to 
 
            any fall occurring at work.  They provide a date for onset 
 
            of symptoms which is in late March or early April of 1986.  
 
            It is certainly not unusual for medical records to contain 
 
            erroneous histories due to extraneous entries or 
 
            misunderstandings, poorly asked questions or other factors.  
 
            The record of this case, however, shows a consistent 
 
            reporting to several different individuals of symptoms 
 
            having their onset in late March or early April of 1986.  
 
            More importantly, the record of this case shows claimant to 
 
            have been physically examined by his own family physician in 
 
            early March of 1986 and the records of that examination show 
 
            nothing substantially different from the records of a 
 
            similar examination conducted approximately a year earlier 
 
            in 1985.  The variances between the written medical records 
 
            and claimant's testimony are irreconcilable.  Both sources 
 
            of information appear to be highly reliable.  There are also 
 
            other inconsistencies in the record of this case.  According 
 
            to exhibit L, the written statement which was prepared in 
 
            July of 1986, and exhibit K as well as other evidence in the 
 
            record, the date of injury is placed at November 25, 1985.  
 

 
            
 
            Page  10
 
            
 
            
 
            
 
            
 
            
 
            
 
            There is uncertainty regarding whether the actual date of 
 
            the fall was the early morning of the 25th, late night of 
 
            the 25th, or early morning of the 26th.  On page 1 of 
 
            exhibit L, the statement reads:  "I hurt my back some time 
 
            during the night while I was on the night shift somewhere 
 
            around 1 a.m. to 2 a.m."  On page 2, it states:  "I did 
 
            record it in the log right after I fell . . ."  The weather 
 
            data does not show any freezing drizzle which could form ice 
 
            during the periods which would include 1:00 or 2:00 a.m. of 
 
            November 25, 1985.  Those conditions could, however, have 
 
            existed during the night hours of November 25th or at 1:00 
 
            or 2:00 a.m. of November 26, 1985.
 
            
 
                 The records clearly show the kiln to have been 
 
            operating.  With a surrounding air temperature of 30 degrees 
 
            or more it would not have required much heat to warm the 
 
            area sufficiently to have prevented ice from forming on the 
 
            steel steps.  Clearly, claimant could have slipped on steel 
 
            steps which were slippery due to water, rather than ice.  
 
            Whether or not ice was there is not particularly important.  
 
            It is, however, another source of uncertainty in this 
 
            record.
 
            
 
                 In the answers to interrogatories, claimant stated that 
 
            he was carrying buckets of oil when he fell, yet in his 
 
            deposition he denied carrying anything when he fell.  This 
 
            is another discrepancy.
 
            
 
                 The Italian-American community in Des Moines, Iowa has 
 
            been described as being quite close-knit.  It seems somewhat 
 
            inconsistent that claimant's brother could have been off 
 
            work with a workers' compensation claim from the same 
 
            employer as employed claimant, but that claimant would not 
 
            have even known of the existence of the workers' 
 
            compensation remedy.  It seems quite unusual that claimant 
 
            and Mike Nucaro could be close enough friends to visit in 
 
            each other's homes, but that claimant would not have been 
 
            aware of the type of work which Nucaro performs, or even of 
 
            the existence of workers' compensation.
 
            
 
                 A significant portion of claimant's physiological 
 
            problem seems to be related to the nerve root being 
 
            entrapped by scar tissue.  This is a condition which would 
 
            not likely have resulted from falling in November 1985.  It 
 
            is more likely a result of the 1980 surgery.
 
            
 
                 It is quite difficult to reconcile claimant's evidence 
 
            of extreme difficulties throughout the winter of 1985-86 
 
            with the apparent lack of any complaint to Dr. White, who 
 
            had been his family physician for years, when he was seen 
 
            for an examination in early March of 1986.  The consistency 
 
            between that apparent lack of complaint in early March, when 
 
            coupled with the medical histories which the point of onset 
 
            of difficulties as given in April and May of 1986, make it 
 
            sufficiently strong and reliable evidence that the quite 
 
            credible appearance and demeanor of claimant and his 
 
            witnesses does not prevail over it.  This is truly a case in 
 

 
            
 
            Page  11
 
            
 
            
 
            
 
            
 
            
 
            
 
            which the evidence is at equipoise.  Since claimant has the 
 
            burden of proof, his claim must be denied.
 
            
 
                                 findings of fact
 
            
 
                 1.  The evidence in this case is at a point of 
 
            equipoise with regard to whether or not the fall which Pete 
 
            Baratta experienced on November 25, 1985 is a substantial 
 
            factor in producing the severe disability which currently 
 
            afflicts him.
 
            
 
                 2.  The evidence regarding the onset of claimant's 
 
            symptoms as presented by himself and his witnesses is 
 
            strong, but it is no stronger than the evidence provided by 
 
            the records of Dr. White and the histories concerning the 
 
            onset of symptoms which is found in the records of 
 
            claimant's treatment from April and May of 1986.  The two 
 
            sources of evidence are totally irreconcilable.  The 
 
            variance between the source and onset of problems shown in 
 
            the medical records and that shown by the testimony of 
 
            claimant and his witnesses is too great to attribute to 
 
            communication difficulties
 
            
 
                 3.  The evidence fails to show it to be probable that 
 
            claimant sustained any injury on or about December 23, 1985 
 
            as a result of cumulative trauma from heavy work.
 
            
 
                 4.  The evidence in this case fails to demonstrate that 
 
            it is probable that the fall which claimant sustained on or 
 
            about November 25, 1985 is a substantial factor in producing 
 
            the disability which currently afflicts him as a result of 
 
            the condition of his back.
 
            
 
                 5.  The back problems claimant displayed during the 
 
            period of late December, 1985 through mid-March, 1986 are 
 
            not shown to probably be a result of the November fall.
 
            
 
                 6.  The fall of November 25, 1985 was probably only a 
 
            temporary aggravation of a preexisting condition as assessed 
 
            by Dr. Boulden.
 
            
 
                                conclusions of law
 
            
 
                 1.  This agency has jurisdiction of the subject matter 
 
            of this proceeding and its parties.
 
            
 
                 2.  Pete Baratta has failed to prove by a preponderance 
 
            of the evidence that he sustained an injury through 
 
            cumulative trauma on or about December 23, 1985.
 
            
 
                 3.  Claimant has failed to prove by a preponderance of 
 
            the evidence that the injury which he sustained on or about 
 
            November 25, 1985 is a proximate cause of the disability 
 
            which currently afflicts him due to the condition of his 
 
            back.
 
            
 
                 4.  Claimant's claims as made in both files should be 
 
            denied.
 

 
            
 
            Page  12
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
                 5.  The costs of this proceeding should be assessed 
 
            against the claimant.
 
            
 
                                      order
 
            
 
                 IT IS THEREFORE ORDERED that claimant take nothing with 
 
            regard to file number 855430.
 
            
 
                 IT IS FURTHER ORDERED that claimant take nothing with 
 
            regard to file number 827247.
 
            
 
                 IT IS FURTHER ORDERED that the costs of each proceeding 
 
            are assessed against the claimant pursuant to Division of 
 
            Industrial Services Rule 343-4.33.
 
            
 
                 Signed and filed this ______ day of ____________, 1990.
 
            
 
                 
 
            
 
                 
 
                 
 
                                          ______________________________
 
                                          MICHAEL G. TRIER
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr. Cecil L. Goettsch
 
            Attorney at Law
 
            1100 Des Moines Building
 
            Des Moines, Iowa  50309
 
            
 
            Mr. Marvin E. Duckworth
 
            Mr. Jeff M. Margolin
 
            Attorneys at Law
 
            Suite 111, Terrace Center
 
            2700 Grand Avenue
 
            Des Moines, Iowa  50312
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                               1108.50, 1402.30
 
                                               Filed April 16, 1990
 
                                               MICHAEL G. TRIER
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            PETE BARATTA,                 :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :         File Nos. 827247
 
                                          :                   855430
 
            MONARCH CEMENT COMPANY,       :
 
                                          :      A R B I T R A T I O N
 
                 Employer,                :
 
                                          :         D E C I S I O N
 
            and                           :
 
                                          :
 
            WAUSAU INSURANCE COMPANIES,   :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ____________________________________________________________
 
            
 
            1108.50, 1402.30
 
            Claimant failed to carry the burden of proving that an 
 
            injury which occurred in November of 1985 produced the 
 
            condition and disability for which he first sought medical 
 
            treatment in April of 1986.  Though claimant's witnesses 
 
            appeared fully credible, the medical records consistently 
 
            showed the onset of symptoms to have been in late March or 
 
            early April.  Some of the records made reference to lifting 
 
            as a source of injury, rather than falling.  Claimant's 
 
            annual physical examination from his family doctor which had 
 
            been conducted in early March failed to give any indication 
 
            of any more problems than had existed a year earlier in 
 
            early 1985.  The evidence was held to be at equipoise and 
 
            the claim was denied.
 
            
 
 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
            Page 1                OCT 91
 
            
 
            before the iowa industrial commissioner
 
            
 
            
 
            ____________________________________________________________
 
                   			:
 
            JAMES SNYDER,       	:
 
		                        :
 
              Claimant, 		:      File No. 827297
 
                   		        :
 
	              vs.	        :        A P P E A L
 
                   			:
 
            WILLIAMS PIPE LINE COMPANY, :       D E C I S I O N
 
                   			:
 
	              Employer, 	:
 
        	      Self-Insured,  	:
 
              		Defendants.     :
 
            ___________________________________________________________
 
            
 
            
 
            
 
            statement of the case
 
            
 
            Claimant appeals from a ruling dismissing claimant's 
 
            original notice and petition filed on November 14, 1990 
 
            seeking section 86.13 penalty benefits.  Both parties filed 
 
            briefs on appeal.  Claimant filed a reply brief.  
 
            
 
            issues
 
            
 
            Claimant states the issues on appeal are:
 
            
 
            1.  Whether [the] deputy [industrial] commissioner erred in 
 
            finding that there was no resistance filed by Snyder to 
 
            defendant's motion to dismiss.
 
            
 
            2.  Whether the deputy industrial commissioner erred in 
 
            dismissing Snyder's petition for section 86.13 benefits.
 
            
 
            findings of fact
 
            
 
            This cause of action arises out of a work-related injury 
 
            which claimant sustained on July 2, 1986.  Claimant filed 
 
            his first original notice and petition on October 24, 1986.  
 
            A hearing assignment order was filed on December 14, 1989 
 
            which set the day for the hearing as May 14, 1990.  In 
 
            addition to setting the time for hearing, the hearing 
 
            assignment order indicated which issues would be litigated 
 
            at the hearing.  The issue of section 86.13 benefits was 
 
            not listed on the hearing assignment order.  
 
            
 
            On April 26, 1990 claimant filed a motion for continuance 
 
   
 
         
 
         
 
 
 
 
 
 
 
 
 
 
 
            and a motion for change of venue which was granted.  The 
 
            arbitration hearing was set for September 13, 1990.  On 
 
            September 10, 1990, claimant attempted to amend his 
 
            petition to include the issue of section 86.13 benefits.  
 
            Claimant asserted that the event which triggered the 
 
            claimant's right to section 86.13 penalty benefits was a 
 
            permanent impairment rating of March 23, 1989. Deputy 
 
            Industrial Commissioner Helenjean Walleser denied 
 
            claimant's motion to amend his petition on September 13, 
 
            1990.  
 
            
 
            An arbitration hearing was held on September 13, 1990.  On 
 
            October 9, 1990, an arbitration decision was filed awarding 
 
            claimant permanent partial disability benefits as a result 
 
            of the July 2, 1986 work-related injury.  No appeal was 
 
            taken from the arbitration decision nor the ruling of the 
 
            deputy denying claimant's motion to amend his petition to 
 
            include section 86.13 benefits.
 
            
 
            1. Claimant's formal education through the eleventh grade 
 
            in the Alta school system.  Claimant quit school when he 
 
            was a junior because he found it difficult for him.
 
            
 
            2.  After he left school, claimant enlisted in the United 
 
            States Army and served for three years and six months as a 
 
            tank driver.  Claimant was honorably discharged.  After his 
 
            discharge, claimant was unemployed for a period of six 
 
            months and then began working for a hog farmer for minimum 
 
            wages.  Thereafter, claimant worked for a construction 
 
            company, IBP, and a seed corn company.  This employment 
 
            period lasted between approximately 1981 through March of 
 
            1985.  Claimant's wages during this time period were at or 
 
            slightly above minimum wage.
 
            
 
            3.  Claimant began working for Wilson on March 19, 1985.  
 
            At the time claimant began working for Wilson he was 
 
            assigned to the ham room where he was responsible for 
 
            making cardboard boxes.  During his tenure at Wilson, 
 
            claimant also shaved the sides of pigs and did paste 
 
            boning.  Claimant did not accumulate much seniority while 
 
            he was with Wilson.
 
            
 
            4.  On August 19, 1985, claimant was working in the ham 
 
            room making boxes.  A forklift was coming through the room 
 
            and claimant reached down to move a pallet out of the way 
 
            so the forklift could get by.  Claimant estimated that the 
 
            pallet weighed between 150 and 200 pounds.  While claimant 
 
            was attempting to move the pallet, he felt something pull 
 
            in his back.  Prior to this time, claimant had been in good 
 
            health and had had no prior back problems.  Additionally, 
 
            claimant had successfully passed the physical examination 
 
            that Wilson had required him to take prior to his 
 
            employment.  When claimant began his employment with Wilson 
 
            he was able to lift between 100 and 150 pounds.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
            
 
            5.  Claimant was sent to the Wilson's company physician, 
 
            Keith Garner, M.D., who examined his back and referred him 
 
            to D. E. Meylor, D.C., a chiropractor.  Dr. Meylor treated 
 
            claimant for a period of 20 days.  Dr. Meylor determined 
 
            that claimant had strained his low back and was 
 
            experiencing pain over the L3-L4 disc.  Dr. Meylor noted 
 
            that claimant had significant disc swelling on the left 
 
            side at the third lumbar disc level.  Dr. Meylor treated 
 
            claimant aggressively during the course of treatment.
 
            
 
            6.  Dr. Meylor's treatment consisted of a back brace, 
 
            manipulations, heat and electrical stimulation.  Claimant's 
 
            condition improved and by September 10, 1985, claimant was 
 
            released from Dr. Meylor's care.  Claimant returned to work 
 
            on August 28, 1985, however. 
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                      2906
 
                      Filed October 2, 1991
 
                      BYRON K. ORTON
 
                      HJW
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
		                      :
 
            JAMES SNYDER, 	      :
 
 		                      :
 
                 Claimant,	      :      File No. 827297
 
                     		      :
 
		            vs.       :        A P P E A L
 
                		      :
 
            WILLIAMS PIPE LINE COMPANY:      D E C I S I O N
 
                      		      :
 
                 Employer, 	      :
 
                 Self-Insured,        :
 
                 Defendant.           :
 
            ___________________________________________________________
 
            
 
            2906
 
            Pursuant to rule 343 IAC 4.27 the proper time to file an 
 
            appeal from a decision, order or ruling of a deputy 
 
            industrial commissioner in a contested case proceeding is 
 
            within twenty days of the filing of the decision, order or 
 
            ruling which disposes of the contested case.  Claimant's 
 
            failure to appeal the decision or ruling within twenty days 
 
            made it a final decision of the agency.  Claimant now seeks 
 
            to avoid the effect of the final judgment by filing a new 
 
            original notice and petition.  "We have held that, because 
 
            of the doctrine of claim preclusion, a final decision of an 
 
            agency is not subject to collateral attack in a subsequent 
 
            matter."  Walker v. Iowa Dept. of Job Service, 351 N.W.2d 
 
            802, 805 (Iowa 1984).  Claimant could have timely appealed 
 
            the deputy's decision and any interlocutory rulings but 
 
            failed to do so.  Claimant is not entitled to submit a new 
 
            original notice and petition seeking section 86.13 penalty 
 
            benefits for the July 2, 1986 work-related injury.
 
            
 
 
                                                           
 
 
 
 
 
 
 
 
 
 
 
                                                           
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         ROD A. SMITH,
 
         
 
              Claimant,                               File No. 827939
 
         
 
         vs.                                       A R B I T R A T I O N
 
                                                 
 
         SCHOEN'S ANTIQUES,                           D E C I S I O N
 
              
 
              Employer,
 
                                                         F I L E D
 
         and
 
                                                        APR 05 1990
 
         EMPLOYERS MUTUAL COMPANIES,
 
                                                    INDUSTRIAL SERVICES
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
                                   INTRODUCTION
 
         
 
              This is a proceeding in arbitration brought by the claimant, 
 
         Rod A. Smith, against his employer, Schoen's Antiques, and its 
 
         insurance carrier, Employers Mutual Companies, to recover 
 
         benefits under the Iowa Workers' Compensation Act as the result 
 
         of an injury sustained on March 1, 1986.  This matter came on for 
 
         hearing before the undersigned deputy industrial commissioner at 
 
         Dubuque, Iowa on December 29, 1989.  A first report of injury was 
 
         filed on July 21, 1986.  At hearing the parties stipulated that 
 
         claimant has received 26.143 weeks of healing period benefits and 
 
         60 weeks of permanent partial disability benefits at the 
 
         stipulated rate and that defendants should receive credit for 
 
         such benefits in event of an award.
 
         
 
              The record in this proceeding consists of the testimony of 
 
         claimant as well as of claimant's exhibit A, B, C, D, F, G, H, J, 
 
         K, L, and M and defendants' exhibits 1 through 9.  Claimant's 
 
         exhibits A, B, C, D, F, J, K, L, and M were received subject to 
 
         defendants' objection at hearing.  On review of the exhibits, 
 
         defendants' objections are overruled.  Exhibits B, C, and D do 
 
         not clearly represent settlement negotiations although they do 
 
         reflect communication between claimant and the insurance carrier. 
 
         Redundancy, hearsay, relevancy, and lack of competency were 
 
         raised relative to the other enumerated exhibits.  Hearsay per se 
 
         is not automatically excludable in an administrative 
 
         hearing...See section 17A.14(1).  Nor can it be said that 
 
         claimant's enumerated exhibits are clearly irrelevant, immaterial 
 
         or unduly repetitious. We note, however, that given the nature of 
 
         the enumerated exhibits, they may well be entitled to lesser 
 
         weight than would be more objective demonstrative evidence.
 
         
 
                                      ISSUES
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              Pursuant to the prehearing report and the oral stipulations 
 
         of the parties at hearing, the parties stipulated:
 
         
 
              1.  That claimant's rate of weekly compensation in the event 
 
         of an award is $306.02;
 
         
 
              2.  That claimant was off work on account of his injury from 
 
         June 18, 1986 through September 27, 1986 and from September 30, 
 
         1986 through December 29, 1986;
 
         
 
              3.  That the commencement date for any permanent partial 
 
         disability awarded claimant is December 30, 1986;
 
              
 
              4.  That claimant did receive an injury which arose out of 
 
         and in the course of his employment on March 1, 1986; and,
 
         
 
              5.  That defendants are entitled to credit for workers' 
 
         compensation benefits paid as stated above.
 
         
 
              The issues remaining to be decided are:
 
         
 
              1.  Whether a causal relationship exists between the injury 
 
         and the claimed disability; and,
 
         
 
              2.  Whether claimant is entitled to benefits and the nature 
 
         and extent of any benefit entitlement.
 
         
 
                              REVIEW OF THE EVIDENCE
 
         
 
              Claimant is 30 years old and a high school graduate who 
 
         maintained approximately a "B" average.  He has no subsequent 
 
         formal education.  Claimant has extensive experience in retail 
 
         business and management however.  He has worked as a stock boy, 
 
         sales clerk, floor supervisor, buyer, merchandising manager, 
 
         operations manager and assistant store manager at various general 
 
         merchandise retail establishments.  Claimant testified that he 
 
         was earning $27,500 per year as an assistant store manager 
 
         apparently at Zayre's when he left to begin his employment at 
 
         Schoen's Antiques.  Claimant's actual earnings at Zayre 
 
         corporation were $18,725 in 1983; $20,360 in 1984; and, $20,431 
 
         from January through September 1985.  Claimant began work at 
 
         Schoen's Antiques in September, 1985 and apparently earned $6,500 
 
         in the balance of that year.  He continued to work for Schoen's 
 
         through June 28, 1986 and earned $11,382.40 during that period.  
 
         Claimant testified that his gross weekly wage at Schoen's was 
 
         $480.00 and "may have been higher."  Claimant received no 
 
         benefits such as life insurance, health insurance or pension plan 
 
         at Schoen's.
 
         
 
              Claimant stated he was hired at Schoen's to learn the 
 
         antique business, although he basically worked as a lifter and 
 
         carrier.  He described his work performance as excellent.  
 
         Claimant denied having back problems prior to beginning work with 
 
         Schoen's and described himself as having been a weight lifter and 
 
         a runner prior to his Schoen's employment.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              On March 1, 1986, claimant was carrying a treadle sewing 
 
         machine up stairs at Schoen's when he wrenched his back.  
 
         Claimant continued to work and in June, 1986 again injured his 
 
         back while lifting a marble-top dresser.  Claimant was unable to 
 
         return to work after that incident.
 
         
 
              Claimant was initially referred to Dodd's Chiropractic 
 
         Service where he received approximately one month's treatment.  
 
         At claimant's request he was examined at the Mayo Clinic and on 
 
         August 13, 1986 he had a left L5 partial hemilaminectomy with 
 
         removal of an extruded disc fragment at the L5-S1 interspace 
 
         (February 21, 1989 medical report of Paulette Lynn, M.D.).
 
         
 
              Claimant subsequently began work at the Ertl Company in 
 
         Dyersville, Iowa on September 24, 1986.  Claimant is Ertl's shows 
 
         and booths or products line coordinator.  Claimant's earnings 
 
         with the Ertl Company are apparently divided between earnings 
 
         with the Ertl Company itself and with Kidde Rec Products, Inc., 
 
         an Ertl subsidiary.  Claimant has received a bonus each year he 
 
         has worked for the Ertl Company.  A potential for a bonus exists 
 
         each year. The bonus amount is determined by the company's profit 
 
         and the individual's initiative.  Claimant had overall earnings 
 
         of $23,269.64 from his Ertl employment in 1987; overall earnings 
 
         of $26,593.72 in 1988; and, overall earnings of $28,187.00 in 
 
         1989. Additionally, claimant has vacation benefits, life 
 
         insurance benefits and medical and health insurance benefits 
 
         including vision and dental care benefits (deposition of Philip 
 
         G. Brennan).
 
         
 
              Philip G. Brennan, manager of marketing services with the 
 
         Ertl Company, testified by way of his deposition taken October 
 
         17, 1989.  He has been claimant's supervisor for approximately 
 
         two years.  He reported that claimant travels extensively for the 
 
         company, either in the company plane or driving a Ryder or U Haul 
 
         truck to trade and product shows held in locations such as New 
 
         York, Chicago or Ontario, Canada.  When claimant flies, the 
 
         product is shipped to the show location.  When claimant drives, 
 
         claimant takes the product with him.  Product can range from die 
 
         cast to plastics, electronics, and steel.  Product is packed in 
 
         boxes weighing approximately 30 pounds.  Claimant must unpack the 
 
         product for display.  Claimant must set up displays weighing from 
 
         40 to 300 pounds.  Mr. Brennan reported that he has assisted 
 
         claimant in unloading and loading such displays.  The Ertl 
 
         Company management is aware of claimant's back problems.  Mr. 
 
         Brennan testified that claimant has never said he could not carry 
 
         out a task, but has indicated he would be in pain in carrying out 
 
         the task.  Brennan reported that claimant indicated that long 
 
         distance driving in a Ryder truck was potentially painful for him 
 
         as was riding in the company plane, a 7-8 passenger Chieftan, to 
 
         New York.  Brennan reported that claimant has been concerned 
 
         about the effects of lifting heavier displays, but has never 
 
         refused to handle those and has not been hurt in handling them.  
 
         Brennan stated he knew that claimant on occasion has had to be 
 
         readjusted following business trips.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              Brennan stated he had no present intent to terminate 
 
         claimant and his present intention is to move claimant through 
 
         the company commiserate with the type of work claimant does.  
 
         Brennan stated claimant likely will remain in show marketing, but 
 
         with expansion on his show-related duties.  Brennan reported that 
 
         claimant's salary in his current position will likely top out at 
 
         approximately $35 (thousand) or so, but that claimant certainly 
 
         could move from that pay grade.
 
         
 
              Claimant travels 52 miles round trip daily to work at the 
 
         Ertl Company.
 
         
 
              At the insurance company's recommendation, claimant saw Jack 
 
         E. Reynolds, M.S., C.R.S., a.rehabilitation consultant.  Mr. 
 
         Reynolds on December 22, 1987 reported that claimant was not 
 
         interested in seeking other employment and opined that claimant 
 
         was properly placed in his employment with the Ertl Company.  He 
 
         did not recommend further occupational exploration for claimant.
 
         
 
              Claimant stated that he has had physical stiffness and pain 
 
         subsequent to his surgery.  He has been unable to return to 
 
         weight lifting, racquetball, or running since his injury.  
 
         Claimant has had gastric pain since his injury.  His physiatrist, 
 
         Paulette Lynn, M.D., reports that pain may be related to overall 
 
         muscle spasm.  Claimant takes physical therapy on an as-needed 
 
         basis. Insoles have been prescribed for all of his shoes to 
 
         lessen the shock of walking.  Claimant uses a back brace and back 
 
         ointments as well as low back support foam while traveling.  He 
 
         takes Tylenol daily and receives massage treatment through the 
 
         Dubuque YMCA.  Claimant attempted to play mixed league volleyball 
 
         subsequent to his injury. Between September, 1986 and March, 1988 
 
         he had no formal medical treatment or physical therapy.  
 
         Apparently Mr. Reynolds arranged for claimant to see Dr. Lynn who 
 
         arranged his physical therapy program.
 
         
 
              Claimant saw David G. Piepgras, M.D., of the Mayo Clinic, 
 
         only at the time of his surgery, although claimant corresponded 
 
         with Dr. Piepgras a number of times subsequent to surgery.  On 
 
         September 8, 1986, Dr. Piepgras advised claimant to remain off 
 
         work for several weeks following his surgery and to avoid heavy 
 
         lifting and strenuous activity for approximately three months 
 
         following surgery.  He opined that claimant's prognosis for 
 
         complete relief of his sciatica was excellent.  On December 17, 
 
         1986, Dr. Piepgras indicated that claimant had "a permanent 
 
         partial disability" of ten percent at four months post-surgery, 
 
         but stated that final assessment could not be made until one year 
 
         post-surgery.
 
         
 
              On February 21, 1989, Dr. Lynn reported she had first seen 
 
         claimant on March 1, 1988.  Her impression then was of myofascial 
 
         syndrome and continued muscular stiffness subsequent to a 
 
         laminectomy with no evidence of neurological deficits.  On July 
 
         14, 1988, Dr. Lynn assigned claimant a 12 percent permanent 
 
         impairment rating.  Dr. Lynn's medical reports and physical 
 
         therapy notes in evidence demonstrate that claimant has 
 
         continuing pain and stiffness and that claimant maintains his 
 
         prescribed exercise and therapy program but for those times when 
 
         work-related travel makes it difficult for him to do so.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              Dr. Lynn saw claimant on October 6, 1989.  On October 26, 
 
         1989, she reported that claimant had continued intermittent 
 
         increases in stiffness and pain in his low back gradually 
 
         worsening with the onset of left heel pain.  Dr. Lynn stated that 
 
         claimant's physical therapist reported that claimant's pelvis was 
 
         rotated in a way not previously seen in claimant.  Physical 
 
         examination revealed a slight amount of pelvic obliquity.  Dr. 
 
         Lynn suggested claimant might benefit from routine manipulative 
 
         therapy with a doctor of chiropractic.
 
         
 
              Claimant denied having seen a chiropractic physician for 
 
         neck problems prior to his March 1, 1986 injury, but agreed that 
 
         he had seen a chiropractor subsequent to that injury for neck 
 
         stiffness.
 
         
 
                           APPLICABLE LAW AND ANALYSIS
 
         
 
              Our first concern is whether a causal relationship exists 
 
         between the claimant's injury and the claimed disability.
 
         
 
              The claimant has the burden of proving by a preponderance of 
 
         the evidence that the injury of March 1, 1986 is causally related 
 
         to the disability on which he now bases his claim.  Bodish v. 
 
         Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867 (1965).  Lindahl v. 
 
         L. O. Boggs, 236 Iowa 296, 18 N.W.2d 607 (1945).  A possibility 
 
         is insufficient; a probability is necessary.  Burt v. John Deere 
 
         Waterloo Tractor Works, 247 Iowa 691, 73 N.W.2d 732 (1955).  The 
 
         question of causal connection is essentially within the domain of 
 
         expert testimony.  Bradshaw v. Iowa Methodist Hospital, 251 Iowa 
 
         375, 101 N.W.2d 167 (1960).
 
         
 
              However, expert medical evidence must be considered with all 
 
         other evidence introduced bearing on the causal connection.  
 
         Burt, 247 Iowa 691, 73 N.W.2d 732.  The opinion of experts need 
 
         not be couched in definite, positive or unequivocal language.  
 
         Sondag v. Ferris Hardware, 220 N.W.2d 903 (Iowa 1974).  However, 
 
         the expert opinion may be accepted or rejected, in whole or in 
 
         part., by the trier of fact.  Id. at 907.  Further, the weight to 
 
         be given to such an opinion is for the finder of fact, and that 
 
         may be affected by the completeness of the premise given the 
 
         expert and other surrounding circumstances.  Bodish, 257 Iowa 
 
         516, 133 N.W.2d 867.  See also Musselman v. Central Telephone 
 
         Co., 261 Iowa 352, 154 N.W.2d 128 (1967).
 
         
 
              The medical evidence does not expressly state a causal 
 
         relationship between claimant's injury at Schoen's and his 
 
         current disability.  The medical evidence.does demonstrate, 
 
         however, that claimant had a left L5 partial hemilaminectomy with 
 
         removal of an extruded disc fragment at the L5-S1 interspace on 
 
         August 13, 1986. Nothing in the record supports a conclusion that 
 
         claimant had an L5-S1 disc problem prior to his lifting incidents 
 
         at Schoen's.  Dr. Lynn has assigned claimant a 12 percent 
 
         permanent impairment rating and has noted her impression that 
 
         claimant now has myofascial syndrome and continued muscular 
 
         stiffness subsequent to a laminectomy with no evidence of 
 
         neurological deficit.  Dr. Piepgras has also assigned claimant a 
 
         "permanent partial disability" rating of 10 percent and related 
 
         that back to claimant's surgical intervention.  The above, in the 
 
         absence of evidence to the contrary, is sufficient to support a 
 
         finding that claimant's need for low back surgery arose on 
 
         account of his lifting incidents at Schoen's Antiques and a 
 
         finding that claimant's current condition of myofascial syndrome 
 
         and continued muscle stiffness also results from the injury 
 
         received at Schoen's Antiques.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              Our final concern is whether claimant is entitled to 
 
         benefits and the nature and extent of any benefit entitlement.
 
         
 
              Initially, we address the question of healing period benefit 
 
         entitlement.  The parties have stipulated that claimant was off 
 
         work on account of his injury from June 18, 1986 through September 
 
         27, 1986 and from September 30, 1986 through December 29, 1986.  
 
         The parties have further stipulated that claimant has received 
 
         26.143 weeks of healing period benefits.  The time from June 18, 
 
         1986 through September 27, 1986 and from September 30, 1986 
 
         through December 29, 1986 actually reflects 27.714 weeks.  
 
         Claimant is entitled to the additional healing period benefits 
 
         equal to the difference from 26.143 weeks to 27.714 weeks.
 
         
 
              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).
 

 
         
 
 
 
 
 
 
 
 
 
 
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              Initially, claimant has been assessed a moderately severe 
 
         physical impairment.  Dr. Piepgras indicated four months 
 
         post-surgery that claimant's permanent physical impairment was 10 
 
         percent of the body as a whole.  Dr. Piepgras also indicated at 
 
         that time that final assessment of impairment could not be made 
 
         until a year post-surgery.  Apparently, Dr. Piepgras made no 
 
         final assessment of permanent partial impairment.  Dr. Lynn, on 
 
         July 14, 1988, almost two years post-surgery, assigned claimant a 
 
         12 percent permanent impairment rating.  Given the significantly 
 
         greater time subsequent to surgery at which Dr. Lynn assigned her 
 
         impairment rating, Dr. Lynn's impairment rating is accepted as 
 
         more reflective of claimant's actual permanent condition.
 
         
 
              Claimant suffers from myofascial syndrome and continued 
 
         muscular stiffness as a result of his injury.  He has no 
 
         neurological deficits.  Claimant does have continuing pain, the 
 
         above noted stiffness, and stomach upset that Dr. Lynn relates to 
 
         overall muscle spasm.  Claimant has had to modify his lifestyle 
 
         significantly in that he can no longer engage in physical 
 
         recreational activities that he engaged in prior to his injury 
 
         and must maintain a medically prescribed exercise and therapy 
 
         program to alleviate his pain and muscular stiffness.  No actual 
 
         medical restrictions on claimant's activities are in the record.
 
         
 
              Claimant did not attempt to return to work at Schoen's 
 
         Antiques.  It cannot be determined from this record whether the 
 
         employer would have made an attempt to accommodate claimant had 
 
         he returned to work.  Claimant apparently chose not to return or 
 
         attempt a work return with Schoen's as claimant believed he would 
 
         be unable to do the lifting that had been required for that work. 
 
         Claimant has found other employment which is clearly within his 
 
         experience in retail business and management.  Claimant's new 
 
         employment does require that he do some lifting, some physical 
 
         setup of materials, and some traveling.  All of those activities 
 
         appear to have some adverse impact on his back condition. 
 
         Claimant's current employer is aware of claimant's back condition 
 
         and makes accommodations for claimant.  Such is quite 
 
         commendable. Claimant's earnings with his current employer in 
 
         1987, 1988, and 1989 all exceeded what would have been his 
 
         projected annual earnings with Schoen's had he worked there 
 
         throughout 1986. Claimant has vacation benefits, life insurance 
 
         benefits and medical and health insurance benefits including 
 
         vision and dental care benefits with Ertl Company.  Claimant had 
 
         no such benefits at Schoen's.  Claimant has apparently a stable 
 
         position with the Ertl Company and can advance to a salary of 
 
         approximately $35,000 in his current position.  His immediate 
 
         supervisor indicated that it is possible that claimant could move 
 
         beyond that position with the company.  All of the above suggests 
 
         that claimant has had no actual loss of earnings beyond his 
 
         healing period on account of his work injury with Schoen's 
 
         Antiques.  They further suggest that claimant has been able to 
 
         use his education, experience, and training to obtain suitable 
 
         employment subsequent to his work injury.
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
              Claimant is a younger worker.  While he has only a high 
 
         school diploma, he is intelligent and well-spoken.  His overall 
 
         experience, training, and intellectual acumen place him in a 
 
         better position than would be many other workers who have 
 
         sustained a back injury leaving a moderate permanent.physical 
 
         impairment.  Furthermore, he is very motivated to earn a 
 
         livelihood and live a full life while giving only due regard to 
 
         the consequences of his work injury.  All of these factors work 
 
         to claimant's advantage and can be said to significantly decrease 
 
         the impact of his work injury on his earning capacity.  On the 
 
         other hand, it cannot fairly be stated that claimant's work 
 
         injury has left him in the same place as regards his earning 
 
         capacity as he had been prior to the injury.  Claimant has 
 
         demonstrable back problems which prescribe his life activities 
 
         including his work activities.  Claimant does lack formal 
 
         education beyond high school.  That fact alone to a certain 
 
         extent has always limited his job opportunities.  Prior to 
 
         claimant's work injury there were numerous manual labor jobs for 
 
         which claimant would have been suited for which he is not now 
 
         suited.  Indeed, there were undoubtedly jobs in retail business 
 
         for which he was then suited and for which he is not now suited.  
 
         Claimant's restricted access to those jobs which otherwise would 
 
         have been available to him given his age, education, experience, 
 
         and training reflects an actual loss of earning capacity on 
 
         account of his work injury. That restricted job market access, 
 
         however, must be balanced with the overall bright picture that 
 
         claimant's many surviving talents give him.  In balance, it is 
 
         found that claimant has sustained a loss of earning capacity of 
 
         20 percent.
 
         
 
                                  FINDINGS OF FACT
 
         
 
              WHEREFORE, IT IS FOUND:
 
         
 
              Claimant received an injury which arose out of and in the 
 
         course of his employment on March 1, 1986 while lifting, at 
 
         Schoen's Antiques.
 
         
 
              Claimant wrenched his back in that incident and again 
 
         injured his back while lifting a marble-top dresser at Schoen's 
 
         in June 1986.
 
         
 
              Claimant was unable to return to work after the June 
 
         incident.
 
              
 
              Claimant underwent a left,.L5 partial hemilaminectomy with 
 
         removal of an extruded disc fragment at the L5-Sl interspace on 
 
         August 13, 1986.
 
         
 
              Claimant has continuing pain and stiffness as a result of 
 
         his work injury and has a medical impression of myofascial 
 
         syndrome and continued muscular stiffness subsequent to 
 
         laminectomy without evidence of neurological deficits.
 
         
 
              Claimant maintains a prescribed exercise and therapy program 
 
         to control his pain and stiffness.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              Claimant has a 12 percent permanent partial impairment to 
 
         the body as a whole as a result of his work injury.
 
         
 
              Claimant has never returned to work at Schoen's Antiques.
 
         
 
              Claimant has obtained work at the Ertl Company in 
 
         Dyersville, Iowa as shows and booths or products line 
 
         coordinator.
 
         
 
              Claimant's Ertl Company earnings have equalled or surpassed 
 
         what he might have earned at Schoen's Antiques had he remained 
 
         working at Schoen's during the years that he has been working at 
 
         Ertl's.
 
         
 
              Claimant has vacation benefits, life insurance benefits and 
 
         medical and health insurance benefits including vision and dental 
 
         care benefits with Ertl Company.  Claimant had no such benefits 
 
         at Schoen's.
 
         
 
              Ertl Company personnel are aware of claimant's back 
 
         condition and accommodate claimant.
 
         
 
              Claimant's Ertl employment does involve lifting, display 
 
         setup, and travel which at times aggravates claimant's back 
 
         condition.
 
         
 
              Claimant's experience and training is in retail business and 
 
         management.
 
         
 
              Claimant is able to utilize his retail business and 
 
         management experience and training in his Ertl job employment.
 
         
 
              Claimant has opportunities for salary advancement in his 
 
         current pay grade at Ertl and opportunities to advance outside of 
 
         that pay grade with Ertl.
 
         
 
              Claimant is 30 years old.
 
         
 
              Claimant is a high school graduate.
 
         
 
              Claimant is intelligent and well-spoken.
 
         
 
              Claimant cannot engage in physical recreational activities 
 
         such as weight lifting and running which he was able to do prior 
 
         to his injury.
 
         
 
              Claimant has lost access to heavy manual labor jobs which he 
 
         might have chosen to perform prior to his injury.
 
         
 
              Claimant's inability to perform heavy manual labor also 
 
         restricts his access to some retail business and management 
 
         opportunities.
 
         
 
              Claimant has an actual loss of earning capacity of 20 
 
         percent.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              Claimant was off work on account of his injury from June 18, 
 
         1986 through September 27, 1986 and from September 30, 1986 
 
         through December 29, 1986.
 
         
 
                                CONCLUSIONS OF LAW
 
         
 
              THEREFORE, IT IS CONCLUDED:
 
         
 
              Claimant has established that his injury of March 1, 1986 is 
 
         the cause of the disability on which he now bases his claim.
 
         
 
              Claimant is entitled to permanent partial disability 
 
         resulting from his injury of March 1, 1986 of 20 percent.
 
         
 
              Defendants receive credit for 60 weeks of permanent partial 
 
         disability benefits previously paid claimant.
 
         
 
              Claimant is entitled to healing period benefits from June 
 
         18, 1986 through September 27, 1986 and from September 30, 1986 
 
         through December 29, 1986.  Defendants are entitled to credit for 
 
         healing period benefits paid.
 
         
 
                                      ORDER
 
         
 
              THEREFORE, IT IS ORDERED:
 
         
 
              Defendants pay claimant healing period benefits at the rate 
 
         of three hundred six and 02/100 dollars ($306.02) per week from 
 
         June 18, 1986 through September 27, 1986 and from September 30, 
 
         1986 through December 29, 1986.  Defendants receive credit for 
 
         twenty six point one four three (26.143) weeks of healing period 
 
         benefits previously paid claimant.
 
         
 
              Defendants pay claimant permanent partial disability 
 
         benefits for an additional forty (40) weeks at the rate of three 
 
         hundred six and 02/100 dollars ($306.02) per week with those 
 
         payments to commence October 6, 1987.
 
         
 
              Defendants pay accrued amounts in a lump sum.
 
         
 
              Defendants pay interest pursuant to Iowa Code section 85.30 
 
         as amended.
 
         
 
              Defendants pay costs pursuant to Division of Industrial 
 
         Services Rule 343-4.33.
 
         
 
              Defendants file status reports with the agency as requested 
 
         pursuant to Division of Industrial Services Rule 343-3.1.
 
         
 
              Signed and filed this 5th day of April, 1990.
 
         
 
         v
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         
 
         
 
         
 
                                            HELENJEAN WALLESER
 
                                            DEPUTY INDUSTRIAL COMMISSIONER
 
         
 
         Copies To:
 
         
 
         Mr. Rod A. Smith
 
         550 Sullivan Street
 
         Dubuque, Iowa  52001
 
         CERTIFIED MAIL
 
         
 
         Mr. E. J. Giovannetti
 
         Ms. Valerie A. Fandel
 
         Attorneys at Law
 
         Suite 111, Terrace Center
 
         2700 Grand Avenue
 
         Des Moines, Iowa  50312
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
 
                                            
 
 
 
 
 
 
 
 
 
 
 
                                            5-1803
 
                                            Filed April 5, 1990
 
                                            HELENJEAN WALLESER
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         ROD A. SMITH,
 
         
 
              Claimant,
 
         
 
         vs.
 
                                                    File No. 827939
 
         SCHOEN'S ANTIQUES,
 
                                                 A R B I T R A T I 0 N
 
              Employer,
 
                                                    D E C I S I 0 N
 
         and
 
         
 
         EMPLOYERS MUTUAL COMPANIES,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         5-1803
 
         
 
              Claimant with 12 percent permanent partial impairment 
 
         awarded 20 percent industrial disability where earnings 
 
         subsequent to injury were greater than preinjury earnings, but 
 
         injury actually precluded claimant from jobs he might have 
 
         engaged in prior to injury.
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
 
         
 
         
 
         
 
         
 
         
 
                   BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         _________________________________________________________________
 
                     
 
         KATHY TROGDON,   
 
                     
 
              Claimant,   
 
                     
 
         vs.         
 
                                                   File No. 827989
 
         WOODWARD STATE HOSPITAL SCHOOL, 
 
                                                    A P P E A L
 
              Employer,   
 
                                                  D E C I S I O N
 
         and         
 
                     
 
         STATE OF IOWA,   
 
                     
 
              Insurance Carrier,    
 
              Defendant.       
 
         _________________________________________________________________
 
         The record, including the transcript of the hearing before the 
 
         deputy and all exhibits admitted into the record, has been 
 
         reviewed de novo on appeal.  The decision of the deputy filed 
 
         February 14, 1991 is affirmed and is adopted as the final agency 
 
         action in this case with the following additional analysis:
 
         Defendant's motion for recusal was untimely.  Iowa Code section 
 
         17A.17(4) requires a motion for disqualification to be timely 
 
         made.  Presenting the motion at the start of the hearing does not 
 
         enable the agency to properly consider the motion and reassign 
 
         another hearing officer if the motion has merit.  
 
         In addition, the motion for disqualification in this case was 
 
         without merit.  The hearing deputy had no personal contact with 
 
         claimant, had not represented her in his capacity as a union 
 
         official, and in fact it appears claimant did not belong to the 
 
         union and occupied a supervisory position at the time of her 
 
         employment.  In addition, the record in this case lacks the 
 
         demonstration of bias that was present in the record in Miller v. 
 
         Woodward State Hospital, Appeal Decision, May, 1990.  The motion 
 
         for recusal was properly overruled.
 
         Defendant shall pay the costs of the appeal, including the 
 
         preparation of the hearing transcript.
 
         
 
         Signed and filed this ____ day of November, 1992.
 
         
 
         
 
         
 
                                     ________________________________
 
                                             BYRON K. ORTON
 
                                       INDUSTRIAL COMMISSIONER
 

 
         
 
         Page   2
 
         
 
         
 
         
 
         
 
         
 
         
 
         Copies To:
 
         
 
         Mr. Thomas M. Werner
 
         Attorney at Law
 
         1150 Polk Blvd
 
         Des Moines, Iowa  50311
 
         
 
         Ms. Joanne Moeller
 
         Assistant Attorney General
 
         Hoover State Office Building
 
         Des Moines, Iowa  50319
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                             9999
 
                                             Filed November 25, 1992
 
                                             Byron K. Orton
 
            
 
                    BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
            KATHY TROGDON,   
 
                        
 
                 Claimant,   
 
                        
 
            vs.         
 
                                                  File No. 827989
 
            WOODWARD STATE HOSPITAL SCHOOL, 
 
                                                   A P P E A L
 
                 Employer,   
 
                                                 D E C I S I O N
 
            and         
 
                        
 
            STATE OF IOWA,   
 
                        
 
                 Insurance Carrier,    
 
                 Defendant.       
 
            ____________________________________________________________
 
            
 
            9999
 
            Summary affirmance of deputy's decision filed February 14, 
 
            1991, with short additional analysis.
 
            
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                           :
 
            KATHY TROGDON,                 :
 
                                           :
 
                 Claimant,                 :
 
                                           :
 
            vs.                            :
 
                                           :      File No. 827989
 
            WOODWARD STATE HOSPITAL SCHOOL,:
 
                                           :    A R B I T R A T I O N
 
                 Employer,                 :
 
                                           :       D E C I S I O N
 
            and                            :
 
                                           :
 
            STATE OF IOWA,                 :
 
                                           :
 
                 Insurance Carrier,        :
 
                 Defendant.                :
 
            ___________________________________________________________
 
            
 
            
 
                              statement of the case
 
            
 
                 This is a proceeding in arbitration brought by Kathy 
 
            Trogdon, claimant, against Woodward State Hospital School, 
 
            an agency of the state of Iowa, a self-insured employer 
 
            (hereinafter referred to as Woodward), defendant, for 
 
            workers' compensation benefits as a result of an alleged 
 
            injury on July 9, 1986.  On October 2, 1990, 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 con
 
            tested issues and stipulations which was approved and 
 
            accepted as a part of the record of this case at the time of 
 
            hearing.  Oral testimony and written exhibits were received 
 
            during the hearing from the parties.  The exhibits offered 
 
            into the evidence are listed in the prehearing report.
 
            
 
                 According to the prehearing report, the parties have 
 
            stipulated to the following matters:
 
            
 
                 1.  On July 9, 1986, claimant received an injury which 
 
            arose out of and in the course of her employment with 
 
            Woodward.
 
            
 
                 2.  Claimant is seeking temporary total disability or 
 
            healing period benefits from July 9, 1986 through January 
 
            31, 1988 and from August 22, 1989 through January 14, 1990, 
 
            and defendants agree that she was not working during these 
 
            periods of time.
 
            
 
                 3.  If the injury is found to have caused permanent 
 
            disability, the type of disability is an industrial disabil
 
            ity to the body as a whole.
 
            
 
                 4.  Claimant's rate of weekly compensation in the event 
 
            of an award of weekly benefits from this proceeding shall be 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            $249.30.
 
            
 
                 5.  With reference to the requested medical expenses, 
 
            it was agreed that the providers would testify that the med
 
            ical bills submitted were fair and reasonable and defendant 
 
            is not offering contrary evidence.
 
            
 
                                      issues
 
            
 
                 The parties submitted the following issues for determi
 
            nation in this proceeding:
 
            
 
                   I.  The extent of claimant's entitlement to disabil
 
            ity benefits; and,
 
            
 
                  II.  The extent of claimant's entitlement to medical 
 
            benefits.
 
            
 
                                 findings of fact
 
            
 
                 Having heard the testimony and considered all the evi
 
            dence, this deputy industrial commissioner finds as follows:
 
            
 
                 Claimant worked for Woodward from February 1972 until 
 
            her termination on January 12, 1987.  Woodward is a state 
 
            hospital caring for mentally retarded persons.  Claimant was 
 
            a staff child development worker and eventually was promoted 
 
            to supervisor.  At the time of the injury, she was a resi
 
            dent treatment supervisor.  Although she had supervisory 
 
            duties, claimant was assigned to perform resident care 
 
            duties as well.  These care duties included the physical 
 
            handling and lifting of patients.  Such lifting exceeded at 
 
            times 35 pounds.  Had claimant remained working at Woodward 
 
            after the work injury, she would be currently earning 
 
            approximately $13 to $14 per hour as a resident treatment 
 
            supervisor.  This finding is based upon the testimony of 
 
            claimant's former supervisor who is still employed at 
 
            Woodward.
 
            
 
                 On or about July 9, 1986, claimant injured her low back 
 
            while lifting a heavy resident at Woodward.  There was no 
 
            dispute in the record that the claimant suffered this work 
 
            injury.
 
            
 
                 The work injury of July 9, 1986 was a cause of a period 
 
            of total disability from work from the date of injury 
 
            through January 31, 1988 and for a second period of time 
 
            from August 22, 1989 through January 14, 1990.  Claimant was 
 
            initially treated for low back pain following the injury by 
 
            a Woodward physician who felt that she had muscle strain.  
 
            Claimant was taken off work and she began treatment with her 
 
            family physician, K. J. Klise, M.D., over the next two 
 
            weeks.  When she failed to improve, Dr. Klise referred 
 
            claimant to an orthopedic surgeon, Ronald K. Bunten, M.D.  
 
            After a diagnosis of lumbar disc injury, Dr. Bunten treated 
 
            claimant until December 1986 with a lumbosacral corset, 
 
            medication and an exercise program.  Claimant was also 
 
            treated for depression during this time caused by her pain 
 
            and inability to work.  At one time Dr. Bunten released 
 
            claimant to return to full duty at work.  Dr. Bunten stated 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            in his report of December 11, 1986, that he felt claimant's 
 
            symptoms were caused by her work injury.
 
            
 
                 In early December 1986, claimant's care was transferred 
 
            by defendant to another orthopedic surgeon, Robert A. Hayne, 
 
            M.D.  Dr. Hayne diagnosed that claimant had myofascial symp
 
            toms and the doctor anticipated recovery.  In a letter 
 
            report dated December 29, 1986, Dr. Hayne released claimant 
 
            to return to work but with the restriction against lifting 
 
            over 35 pounds.  However, defendant would not allow claimant 
 
            to return to work until she received a release to full duty 
 
            without restrictions.
 
            
 
                 While still under the care of Dr. Hayne, claimant was 
 
            terminated from Woodward on January 12, 1987, as a result of 
 
            her work injury of July 9, 1986 and the physical disability 
 
            caused by this work injury.  The termination notice gave as 
 
            a reason for termination the following statement:   
 
            "...length of time away from work due to injury and uncer
 
            tainty of when she would be able to return and assume full 
 
            job responsibilities."  Claimant continued under the care of 
 
            Dr. Hayne after the loss of her job.
 
            
 
                 Claimant's workers' compenstion benefits were also ter
 
            minated by defendant on January 12, 1987.  Due to continued 
 
            symptoms of low back pain, claimant underwent an MRI test in 
 
            March 1987.  Finally in May 1987, claimant was referred by 
 
            Dr. Hayne to the University of Iowa Hospitals and Clinics 
 
            for further evaluation.  The departments of neurology and 
 
            orthopedic surgery recommended to Dr. Hayne various treat
 
            ment modalities including rest, physical therapy, use of a 
 
            TENS unit (an electrical device to relieve pain) and steroid 
 
            injections at various times over the next 12 months.  In the 
 
            latter part of 1988, claimant received additional physical 
 
            therapy from Iowa Methodist Low Back Institute upon the 
 
            recommendation of Dr. Hayne.  In November 1988, Dr. Hayne 
 
            stated that he last saw claimant in July and that she in all 
 
            likelihood would not need further treatment.  He opined that 
 
            she reached maximum healing from the work injury three 
 
            months after the injury and suffered a two-three percent 
 
            "total disability" as a result of the July 9, 1986 lifting 
 
            incident at work.  Dr. Hayne did not believe surgery was 
 
            appropriate for claimant.
 
            
 
                 In 1989, claimant continued to have persistent low back 
 
            pain upon physical exertion and prolonged sitting and stand
 
            ing.  In March 1989, claimant was evaluated by John R. 
 
            Walker, M.D., an orthopedic surgeon, who felt that claimant 
 
            had a 26 percent permanent partial disability to the body as 
 
            a whole as a result of the work injury.  Dr. Walker recom
 
            mended that claimant undergo back surgery to reduce her 
 
            symptoms and impairment.  In May 1989, claimant was evalu
 
            ated by another orthopedic surgeon, John H. Kelly, M.D., who 
 
            opined that claimant suffers an eight percent permanent par
 
            tial impairment under AMA Guidelines as a result of the work 
 
            injury.  He did not think claimant would be benefited by 
 
            surgery.
 
            
 
                 In August 1989, claimant decided she would undergo the 
 
            surgery recommended by Dr. Walker due to her persistent low 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            back pain.  As Dr. Walker was not available, his associate, 
 
            James Crouse, M.D., performed the surgery on August 22, 
 
            1989.  In his report of February 1990, Dr. Crouse opined 
 
            that claimant's permanent partial impairment was lowered as 
 
            a result of the surgery to approximately 15 to 18 percent of 
 
            the body as a whole.  Claimant agreed in her testimony that 
 
            her impairment was significantly improved from the surgery.
 
            
 
                 It is found that claimant did not reach maximum healing 
 
            from the injury until January 14, 1990, the time she 
 
            returned to work after recovery from her back surgery by Dr. 
 
            Crouse.  Although Dr. Hayne stated that claimant reached 
 
            maximum healing three months after the injury, this was 
 
            based upon his view that claimant's problems would improve.  
 
            Claimant did not improve as anticipated.  Dr. Hayne and 
 
            other physicians continued to treat claimant with various 
 
            treatment modalities until she finally recovered from her 
 
            back surgery.  However, during her healing period claimant 
 
            was employed between January 31, 1988 and August 22, 1989, 
 
            as stipulated by the parties.  Claimant was at first 
 
            employed part-time while attending a vocational retraining 
 
            class in clerical work and was then hired full time by Blue 
 
            Cross and Blue Shield as a clerical in the administration of 
 
            their health insurance claims.
 
            
 
                 It is found that claimant's work injury of July 9, 
 
            1986, is the cause of a 15-18 percent permanent partial 
 
            impairment to the body as a whole.  Also, it is found that 
 
            the work injury of July 9, 1986, is a cause of permanent 
 
            restrictions on claimant's activity consisting of no lifting 
 
            over 25 pounds occasionally; no lifting frequently more than 
 
            10 pounds; and, no job duties that require heavy work, con
 
            stant bending, stooping, lifting, pushing or pulling.  These 
 
            findings are based upon the views of Dr. Crouse.  His views 
 
            were given greater weight than any other physician in this 
 
            case as he is the most recent treating orthopedic surgeon 
 
            and as such is most familiar with claimant's current dis
 
            ability.  Also, the view that claimant needed surgery was in 
 
            retrospect correct in that the surgery significantly 
 
            improved claimant's condition.  Actually, there is no dis
 
            agreement among the treating orthopedic surgeons in this 
 
            case in that claimant had some extent of permanent impair
 
            ment as all of these physicians imposed permanent restric
 
            tions against heavy lifting due to the work injury.
 
            
 
                 It is found that claimant's work injury and the result
 
            ing permanent partial impairment and work restrictions are a 
 
            cause of a 60 percent loss of earning capacity.  Claimant's 
 
            medical condition before the work injury was excellent and 
 
            she had no functional impairments or ascertainable disabili
 
            ties.  Claimant was able to fully perform physical tasks 
 
            involving heavy lifting; repetitive lifting, bending and 
 
            prolonged standing and sitting.  Due to her physical limita
 
            tions, claimant's medical condition prevents her from 
 
            returning to her job at Woodward or any of her past work as 
 
            a cosmetologist.  Claimant has considerable motivation.  She 
 
            has completed vocational retraining and has found what 
 
            appears to be a suitable and stable job at Blue Cross and 
 
            Blue Shield.  However, claimant has suffered a considerable 
 
            loss in income as she now only earns $6.50 per hour.  There 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            is only limited opportunity for advancement in her current 
 
            position and she has been compelled by the loss of her job 
 
            at Woodward to restart her career.  Her current employer is 
 
            making accommodations for claimant's disability and consid
 
            ers claimant to be a valuable employee.  Such accommodations 
 
            were not made by Woodward.  Had it not been for the accommo
 
            dations by her current employer, it is likely claimant would 
 
            still be unemployed.  The fact that these accommodations are 
 
            necessary indicates to the undersigned that claimant's loss 
 
            of earning capacity is in excess of her actual loss of 
 
            earnings.
 
            
 
                 It should be noted that the finding of loss of earning 
 
            capacity in this case is not dependent upon the finding that 
 
            the injury caused permanent partial impairment.  It is clear 
 
            that claimant was terminated from Woodward due to the work 
 
            injury and that this job transfer resulted in a substantial 
 
            loss of earning capacity.
 
            
 
                 It is also found that the medical expenses set forth in 
 
            the prehearing report which are contested in this case are 
 
            causally connected to the work injury and constitute reason
 
            able and necessary treatment of the injury.  It is also 
 
            found that these expenses primarily involve the surgical and 
 
            related treatment after which claimant's condition was 
 
            improved.  Defendant actually benefited significantly from 
 
            this surgery and that the award herein is probably less due 
 
            to the surgery and claimant's ability to continue working at 
 
            Blue Cross and Blue Shield.
 
            
 
                                conclusions of law
 
            
 
                   I.  Claimant must establish by a preponderance of the 
 
            evidence the extent of weekly benefits for permanent dis
 
            ability to which claimant is entitled.  As the claimant has 
 
            shown that the work injury was a cause of a permanent physi
 
            cal 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 condi
 
            tion 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, imme
 
            diately 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; 
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            and inability because of the injury to engage in employment 
 
            for which the employee is fitted.  Loss of earnings caused 
 
            by a job transfer for reasons related to the injury is also 
 
            relevant.  Olson v. Goodyear Service Stores, 255 Iowa 1112, 
 
            1121, 125 N.W.2d 251, 257 (1963).  See Peterson v. Truck 
 
            Haven Cafe, Inc., (Appeal Decision, February 28, l985).
 
            
 
                 A refusal by an employer to reemploy the injured worker 
 
            is evidence of a lack of employability and a substantial 
 
            permanent disability.  2 Larson section 57.61, pages 
 
            10-164.90-95; Sunbeam Corporation v. Bates, 27 Ark 609 SW2d 
 
            102 (1980); Army and Air Force Exchange Service v. Neuman, 
 
            278 F.supp 865 (W.D.La 1967); Leonardo v. Uncas Mfg. Co., 77 
 
            R.I. 245, 75 A 2d 188 (1950).
 
            
 
                 In the case sub judice, it was found that claimant suf
 
            fered a 60 percent loss of earning capacity as a result of 
 
            the work injury.  Based upon such a finding, claimant is 
 
            entitled as a matter of law to 300 weeks of permanent par
 
            tial disability benefits under Iowa Code section 85.34(2)(u) 
 
            which is 60 percent of 500 weeks, the maximum allowable num
 
            ber of weeks for an injury to the body as a whole in that 
 
            subsection.
 
            
 
                 As claimant has established entitlement to permanent 
 
            partial disability, claimant is entitled to weekly benefits 
 
            for healing period under Iowa Code section 85.34 from the 
 
            date of injury until she returns to work or is medically 
 
            capable of returning to substantially similar work to the 
 
            work she was performing at the time of injury; or, until it 
 
            was anticipated that significant improvement from the injury 
 
            is not anticipated, whichever occurs first.  It is found 
 
            that claimant did not reach maximum healing until after the 
 
            surgery in 1990.  Claimant will be awarded healing period 
 
            benefits for all the times he was not working prior to her 
 
            return to work at Blue Cross and Blue Shield following the 
 
            surgery.
 
            
 
                  II.  Pursuant to Iowa Code section 85.27, claimant is 
 
            entitled to payment of reasonable medical expenses incurred 
 
            for treatment of a work injury.  However, claimant is enti
 
            tled to an order of reimbursement only if claimant has paid 
 
            those expenses.  Otherwise, claimant is entitled to only an 
 
            order directing the responsible defendant to make such pay
 
            ments.  See Krohn v. State, 420 N.W.2d 463 (Iowa 1988).
 
            
 
                 In the case at bar, it is found that all of the 
 
            requested medical benefits were causally connected to the 
 
            injury.  Defendants argue that none of these expenses were 
 
            authorized.  However, according to Iowa Code section 85.27, 
 
            in order to control the care, defendants must provide some 
 
            care to the injured worker.  Dr. Hayne essentially ended his 
 
            care in July 1988 despite claimant's continued symptoms.  No 
 
            other care was offered to claimant.  Therefore, claimant was 
 
            compelled to find her own care.  The requested expenses will 
 
            be awarded.
 
            
 
                 By statute, defendant is entitled to a credit against 
 
            this award for long-term disability benefits paid by them 
 
            but only for the net amount after deduction for payroll 
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
            taxes, Beller v. Iowa State Penitentiary, Arb. Decn. filed 
 
            July 23, 1990; and after deduction for a one-third attorney 
 
            fee, Fields v. University of Iowa Hospitals and Clinics, 
 
            Arb. Decn. filed May 31, 1990.
 
            
 
                                      order
 
            
 
                 1.  Defendant shall pay to claimant three hundred (300) 
 
            weeks of permanent partial disability benefits at the rate 
 
            of two hundred forty-nine and 30/l00 dollars ($249.30) per 
 
            week from January 15, 1990.
 
            
 
                 2.  Defendant shall pay to claimant healing period ben
 
            efits from July 9, 1986 through January 31, 1988 and from 
 
            August 22, 1989 through January 14, 1990, at the rate of two 
 
            hundred forty-nine and 30/l00 dollars ($249.30) per week.
 
            
 
                 3.  Defendant shall pay the medical expenses listed in 
 
            the prehearing report including any requested mileage 
 
            expenses at the rate of twenty-one cents ($.21) per mile.  
 
            Claimant shall be reimbursed for any of these expenses paid 
 
            by her.  Otherwise, defendant shall pay the provider 
 
            directly along with any lawful late payment penalties 
 
            imposed upon the account by the provider.
 
            
 
                 4.  Defendant shall pay accrued weekly benefits in a 
 
            lump sum and shall receive credit against this award for all 
 
            benefits previously paid.
 
            
 
                 5.  Defendant shall receive credit for previous payment 
 
            of benefits under a nonoccupational group insurance plan, if 
 
            applicable and appropriate under Iowa Code section 85.38(2), 
 
            less any tax deductions and a one-third (1/3) attorney fee 
 
            from those payments.
 
            
 
                 6.  Defendant shall pay interest on weekly benefits 
 
            awarded herein as set forth in Iowa Code section 85.30.
 
            
 
                 7.  Defendant shall pay the cost of this action pur
 
            suant to rule 343 IAC 4.33, including reimbursement to 
 
            claimant for any filing fee paid in this matter.
 
            
 
                 8.  Defendant shall file activity reports on the pay
 
            ment of this award as requested by this agency pursuant to 
 
            rule 343 IAC 3.1.
 
            
 
            
 
            
 
                 Signed and filed this ____ day of February, 1991.
 
            
 
            
 
            
 
            
 
            
 
                                          ______________________________
 
                                          LARRY P. WALSHIRE
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 

 
            
 
            Page   8
 
            
 
            
 
            
 
            
 
            Mr. Thomas M. Werner
 
            Attorney at Law
 
            1150 Polk Blvd
 
            Des Moines  IA  50311
 
            
 
            Ms. Joanne Moeller
 
            Assistant Attorney General
 
            Hoover State Office Bldg
 
            Des Moines  IA  50319
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                           5-1803
 
                           Filed February 14, 1991
 
                           LARRY P. WALSHIRE
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
                       :
 
            KATHY TROGDON,  :
 
                       :
 
                 Claimant,  :
 
                       :
 
            vs.        :
 
                       :      File No. 827989
 
            WOODWARD STATE HOSPITAL SCHOOL,:
 
                       :    A R B I T R A T I O N
 
                 Employer,  :
 
                       :       D E C I S I O N
 
            and        :
 
                       :
 
            STATE OF IOWA,  :
 
                       :
 
                 Insurance Carrier,   :
 
                 Defendants.     :
 
            ___________________________________________________________
 
            
 
            
 
            
 
            5-1803
 
            Extent of permanent disability.
 
            
 
 
         
 
 
 
 
 
 
 
 
 
 
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         DAVID G. SCHOSSOW,
 
          
 
                Claimant,
 
                                                File No. 828098
 
          VS.
 
          
 
          IDA COUNTY, IOWA,                   A R B I T R A T I 0 N
 
          
 
                Employer,                         D E C I S I 0 N
 
          
 
          and
 
          
 
          NORTHWESTERN NATIONAL
 
          INSURANCE COMPANY,
 
          
 
                Insurance Carrier,
 
                Defendants.
 
         
 
         
 
                              STATEMENT OF THE CASE
 
                                        
 
              This is a proceeding in arbitration brought by David G. 
 
         Schossow, claimant, against Ida County, Iowa, employer, and 
 
         Northwestern National Insurance Company, insurance carrier, to 
 
         recover benefits under the Iowa Workers' Compensation Act, as a 
 
         result of an alleged injury of June 22, 1986. This matter came on 
 
         for hearing before the undersigned deputy industrial commissioner 
 
         June 14, 1989.  The record was considered fully submitted at the 
 
         close of the hearing.  The record in this case consists of the 
 
         testimony of claimant, Don Gebers, and Don Bremer; and joint 
 
         exhibits 1 through 16, inclusive.
 
         
 
                                      ISSUES
 
                                        
 
              Pursuant to the prehearing report and order submitted and 
 
         approved June 14, 1989, the following issues are presented for 
 
         resolution:
 
         
 
              1. Whether claimant sustained an injury which arose out of 
 
         and in the course of his employment on June 22, 1986;
 
         
 
              2. Whether claimant's alleged injury is the cause of the 
 
         disability on which he now bases his claim;
 
         
 
              3. Claimant's entitlement to weekly benefits, including 
 
         temporary total disability/healing period and permanent partial 
 
         disability; and
 
         
 
              4. Claimant's entitlement to certain medical benefits 
 
         provided by Iowa Code.section 85.27.
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         SCHOSSOW V. IDA COUNTY, IOWA
 
         Page 2
 
         
 
         
 
              It has been stipulated between the parties that in the event 
 
         of an award defendants are entitled to credit under Iowa Code 
 
         section 85.38(2) for previous payments under a 
 
         medical/hospitalization nonoccupational group plan in the amount 
 
         of $1,192.
 
         
 
                                 FACTS PRESENTED
 
         
 
              It is essential to note at the outset that the underlying 
 
         facts which give rise to this claim are not in dispute.
 
         
 
              Claimant has been employed as a deputy sheriff for Ida 
 
         County since October of 1975 holding the rank of lieutenant for 
 
         approximately thirteen years.  On June 22, 1986, claimant was "on 
 
         duty" from 9:00 a.m. to 6:00 p.m. within an assigned duty station 
 
         at the "fun fly area" one mile east of Ida Grove where an "air 
 
         expo" of radio controlled airplanes was being demonstrated and an 
 
         air show was taking place.  This activity was not sponsored by 
 
         Ida County, claimant's employer, but, because the Ida County 
 
         population "doubles" during this show, law enforcement problems 
 
         with regard to traffic, security, crowd control and "airplane 
 
         traffic" and because the Federal Aviation Authority (FAA) charges 
 
         the sheriff with security to respond to any air crashes, the 
 
         sheriff and deputy sheriffs routinely appear at the annual event 
 
         to handle such things.  Claimant, as a deputy assigned to work 
 
         the air show, was required to attend a daily briefing conducted 
 
         by the FAA and show organizers.  Following the briefing on June 
 
         22, 1986, claimant was approached by one of the participants (a 
 
         pilot) and was asked to assist in the performance of his act.  
 
         Claimant was told it would be announced over the public address 
 
         system that a certain individual had won a ride on a plane.  This 
 
         pilot was to be that individual and was to pretend he did not 
 
         want the ride.  Claimant was asked to escort this pilot to the 
 
         plane.  Claimant agreed to participate as requested.  Claimant 
 
         testified that Don Gebers, then the Ida County Sheriff, overheard 
 
         the conversation between him and., the pilot, knew claimant was 
 
         going to participate as requested and that although he did not 
 
         specifically request permission from the sheriff to participate, 
 
         the sheriff did not tell him not to escort the pilot as 
 
         requested.  Claimant, at all times, was in uniform, armed, 
 
         carried his walky-talky and maintained he was capable of 
 
         responding to any call for emergency or other assistance which 
 
         may have arisen.
 
         
 
              Claimant testified that at the appointed hour (after the 
 
         name was announced), he approached the pilot and as he reached 
 
         out to take hold of the pilot's arm, his knee "gave away," he 
 
         fell against the pilot and both fell to the ground.  Claimant 
 
         stated he did not know if he tripped over his own feet but denied 
 
         tripping over the pilot and further denied that there were any 
 
         depressions in the ground.  Claimant testified the pilot helped 
 
         him over to the tower area and that he was then able to continue 
 
         escorting the pilot to his plane.  Claimant
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         
 
         
 
         SCHOSSOW V. IDA COUNTY, IOWA
 
         Page 3
 
         
 
         
 
         stated the extent of his participation, including the fall, 
 
         lasted a total of ninety seconds.
 
         
 
              Claimant recalled that after the pilot was at his plane, he 
 
         sat down in a nearby golf cart and then slowly walked the flight 
 
         line to his car where he iced his knee and waited until the air 
 
         show was over to go to the hospital.  Claimant stated he was 
 
         initially treated by Carl E. Toben, D.O., and later treated by D. 
 
         G. Paulsrud, M.D., Duane K. Nelson, M.D., and William V. Watson, 
 
         M.D., and ultimately underwent surgery on the right knee.  
 
         Claimant denied any problems with his knees prior to June 22, 
 
         1986 and maintained he has not reinjured the knee since.
 
         
 
              Claimant testified that part of his job as deputy sheriff is 
 
         to engage in public service and public relations in that Sheriff 
 
         Gebers "was one for public relations" and that it was a "big 
 
         thing to have good PR with the people."  Claimant opined he was 
 
         engaged in doing public relations when he was assisting the 
 
         pilot.
 
         
 
              Don Gebers, who identified himself as the retired Ida County 
 
         Sheriff after serving approximately 28 years, testified claimant, 
 
         while working the air show, was responsible for doing whatever 
 
         was necessary such as traffic/crowd control, making the FAA 
 
         happy, public relations such as visiting with and helping people 
 
         and public assistance.  Mr. Gebers stated he did not object to 
 
         claimant providing the escort and that although he had the 
 
         authority to order claimant not to escort the pilot, he did not 
 
         exercise such authority.  Mr. Gebers testified claimant's 
 
         participation did not result in any "gap" in his duties or 
 
         ability to carry out his duties.  In his deposition, Mr. Gebers 
 
         had testified.
 
         
 
              Q.  When Mr. Schossow was participating in this skit, what 
 
              was he doing with regard to any of the duties that he was 
 
              assigned as a deputy sheriff that day?
 
              
 
              A.  Well, at that point in time he wasn't doing anything.  
 
              Shortly after that he would have gone to the flight line.
 
              
 
         (Gebers Deposition, Joint Exhibit 14, page 26)
 
         
 
              Don Bremer, who identified himself as the current sheriff of 
 
         Ida County, testified he had no personal knowledge of the air 
 
         expo operations since he had never worked the flight line area, 
 
         but that as a general rule when a deputy has no specific 
 
         assignment "you let yourself be seen" by the public.
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
              The office notes of Carl E. Toben, D.O., dated June 23, 
 
         1986, reflect: "He has had an acute sprain of the right knee. 
 
         occurred yesterday.  He has some effusion of the suprapatellar
 
         
 
         
 
         
 
         SCHOSSOW V. IDA COUNTY, IOWA 
 
         Page 4
 
         
 
         
 
         area today on x-ray, that is all we see, nothing in the,joint, 
 
         joint space is well maintained.  He certainly pulled some 
 
         ligaments (Jt. Ex. 1, p. 2) Medical records from Northwest Iowa 
 
         Orthopedics, P.C., reflect claimant underwent right knee 
 
         arthroscopy on December 8, 1986 for a lateral meniscectomy and 
 
         anterior cruciate insufficiency.  Dr. Paulsrud recorded his 
 
         general impression on January 30, 1987 as claimant was recovering 
 
         well and opined that claimant's permanent impairment was 20 
 
         percent of the lower extremity based upon anterior cruciate 
 
         laxity and loss of lateral meniscus.
 
         
 
              Claimant was seen by Michael J. Morrison, M.D., on April 12, 
 
         1988, for an independent medical examination.  Dr. Morrison 
 
         opined:
 
         
 
              From the fact that he has undergone a partial lateral 
 
              meniscectomy in the past, his permanency from this would be 
 
              2-5% loss of physical impairment to his knee.  If we assume 
 
              that the type of injury that he sustained was of enough 
 
              magnitude to cause an injury to his anterior cruciate 
 
              ligament, and this is documented either by an examination 
 
              under general anesthesia, versus arthroscopic surgery, then 
 
              his permanency from this injury to his anterior cruciate 
 
              ligament would be an additional 10% loss of physical 
 
              function to his knee, again assuming that his injury was of 
 
              enough magnitude to cause this as well as documented 
 
              evidence that the instability exists.
 
         
 
         (Jt. Ex. 10, p. 2)
 
         
 
              Claimant was eventually referred to William V. Watson, M.D., 
 
         in July 1988 after claimant continued "to have difficulty with 
 
         pain in the knee, clicking and popping."  Dr. Watson recorded his 
 
         impressions as "a degenerative arthritis of the lateral 
 
         component" and recommended rescoping the knee, which was done 
 
         July 25, 1988.  Claimant was released from care October 18, 1988 
 
         with "excellent range of motion and minimal discomfort."  On 
 
         September 20, 1988, Dr. Watson opined:
 
         
 
                 This letter concerns David Schossow.  He has a severe 
 
              injury in that he has lost his anterior cruciate ligament 
 
              and has an unstable knee.  He also has developed marked 
 
              degenerative arthritis of the patellofemoral joint and also 
 
              the medial compartment.  He has degenerative arthritis in 
 
              the lateral compartment down to bare bone.
 

 
              
 
 
 
 
 
 
 
 
 
 
 
              
 
                 In the future I think he will probably require a total 
 
              knee arthroplasty and the cost of this ranges from $10 - 
 
              $20,000.  He currently is doing fairly well.  He has a 
 
              pretty good range of motion but continues to show evidence 
 
              of-instability and degenerative
 
              
 
              
 
              
 
         SCHOSSOW V. IDA COUNTY, IOWA 
 
         Page 5
 
         
 
         
 
              changes.  Because of this I would think he would have about 
 
              a 43% disability rating of the right lower extremity.
 
         
 
         (Jt. Ex. 9, p. 1)
 
         
 
              Claimant was seen by Michael T. O'Neil, M.D., on November 
 
         14, 1988 for evaluation of right knee pain and instability.  Dr. 
 
         O'Neil, after reviewing claimant's medical history, opined:
 
         
 
                 I believe, with reasonable medical certainty, that this 
 
              man has sustained an injury to the right knee including a 
 
              tear of the posterior horn of the lateral meniscus and a 
 
              stretch injury of the anterior cruciate ligament which has 
 
              progressed to the point where he has an anterior curciate 
 
              [sic] instability or deficiency of the knee.  I believe he 
 
              will require further surgery in the future but not now.  I 
 
              do not know whether or not he will require a total knee 
 
              arthroplasty but this is a distinct possibility [sic].  At 
 
              this point in time, I believe that he has a 20% permanent 
 
              impairment of the right lower extremity as a result of the 
 
              knee injury with subsequent arthroscopy and partial lateral 
 
              meniscectomy and findings of an attenuated anterior cruciate 
 
              ligament.
 
              
 
         (Jt. Ex. 11, p. 2)
 
         
 
                           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(l).
 
         
 
              The claimant must prove by a preponderance of the evidence 
 
         that his injury arose out of and in the course of his employment. 
 
         Musselman v. Central Telephone Co., 261 Iowa 352, 154 N.W.2d 128 
 
         (1967).
 
         
 
              In the course of employment means that the claimant must 
 
         prove his injury occurred at a place where he reasonably may be 
 
         performing his duties.  McClure v. Union, et al., Counties, 188 
 
         N.W.2d 283 (Iowa 1971).
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
              Arising out of suggests a causal relationship between the 
 
         employment and the injury.  Crowe v. DeSoto Consolidated School 
 
         District, 246 Iowa 402, 68 N.W.2d 63 (1955).
 
         
 
              There is no dispute that on June 22, 1986, claimant, as a 
 
         deputy sheriff, was on duty as required by his employer and his 
 
         employment.  The crux of the first issue presented for resolution 
 
         is whether, when claimant agreed to participate in a "stunt" by 
 
         escorting a pilot to his plane, he deviated
 
         
 
         
 
         
 
         SCHOSSOW V. IDA COUNTY, IOWA
 
         Page 6
 
         
 
         
 
         from his employment so as to conclude he was no longer in the 
 
         course of his employment.
 
         
 
              Whenever an employee leaves the line of duty, compensation 
 
         coverage ceases.  Walker v. Speeder Mach. Corp., 213 Iowa 1134, 
 
         240 N.W. 725 (1932).  However, to disqualify the employee from 
 
         compensation coverage, the departure from the usual place of 
 
         employment must amount to an abandonment of the employment or be 
 
         an act wholly foreign to the usual work.  Crowe, 246 Iowa 402, 68 
 
         N.W.2d 63.  The mere fact that an employee happens to be a short 
 
         distance removed from the actual situation of his work does not 
 
         prevent recovery in a compensation proceeding.  Bushing v. Iowa 
 
         R. & L. Co., 208 Iowa 1010, 226 N.W. 719 (1929).  If an employee 
 
         deviates sufficiently from the line of duty so that his actions 
 
         are foreign to the employer's line of work, injuries which occur 
 
         to the employee may be outside the course of employment.  Sheerin 
 
         v. Holin Co., 380 N.W.2d 415 (Iowa 1986).  In determining whether 
 
         an employee was acting in the course of his employer's business, 
 
         the question of whether the activity was to the benefit of the 
 
         employer is a relevant factor.  Briar Cliff College v. Campolo, 
 
         360 N.W.2d 91 (Iowa 1984).
 
         
 
              A compensable injury must arise not only within the time and 
 
         space limits of the employment, but also in the course of an 
 
         activity related to the employment.  An activity is related to 
 
         the employment if it carries out the employer's purposes or 
 
         advances his interests directly or indirectly.  Under the modern 
 
         trend of decisions, even if the activity cannot be said in any 
 
         sense to advance the employer's interests, it may still be in the 
 
         course of employment if, in view of the nature of the employment 
 
         environment, the characteristics of human nature, and the customs 
 
         or practices of the particular employment, the activity is in 
 
         fact an inherent part of the conditions of that employment. 1A 
 
         Larson Workmen's Compensation Law SS 20.00 (1985).
 
         
 
              In McMullen v. Department of Revenue, decided by the Iowa 
 
         Court of Appeals on January 26, 1989, that court stated:
 
         
 
              Iowa courts have liberally construed the phrase "in
 

 
              
 
 
 
 
 
 
 
 
 
 
 
              the course of employment." In cases where the employment 
 
              activity was not required by the employer:
 
              
 
              An injury in the course of employment embraces all injuries 
 
              received while employed in furthering,.the employer's 
 
              business and injuries received on the employer's premises, 
 
              provided that the employee's presence must ordinarily be 
 
              required at the place of the injury, or, if not so required, 
 
              employee's departure from the usual place of employment must 
 
              not amount to an abandonment of employment or be an act 
 
              wholly foreign to his usual work.  An employee does not 
 
              cease to be in the course of his employment merely because
 
              
 
              
 
              
 
         SCHOSSOW V. IDA COUNTY, IOWA 
 
         Page 7
 
         
 
         
 
              usual work.  An employee does not cease to be in the course 
 
              of his employment merely because he is not actually engaged 
 
              in doing some specifically prescribed task, if, in the 
 
              course of his employment, he does some act which he deems 
 
              necessary for the benefit or interest of his employer.
 
         
 
         Farmers Elevator Co., 286  N.W.2d at 177 (court quoting Bushing 
 
         v. Iowa Railway &  Light Co., 208 Iowa 1010, 226 N.W. 719, 723 
 
         (1929) (citations- omitted)) (emphasis original).
 
         
 
              Clearly, claimant's actions in escorting the pilot to his 
 
         plane do not amount to an abandonment of his employment.  As will 
 
         be again discussed below, claimant's actions in escorting the 
 
         pilot to his aircraft took no more than ninety seconds, he 
 
         remained in uniform, with his walky-talky accessible in case of 
 
         emergency or any other situation that may have immediately 
 
         required his presence.  The escort path which claimant utilized 
 
         towards the aircraft was not so far from his duty on the flight 
 
         line as to constitute any type of abandonment.  Nor can the 
 
         undersigned conclude that claimant's actions were totally foreign 
 
         to his usual work as ample evidence in the record exists to stand 
 
         for the proposition that a regular part of a deputy sheriff's 
 
         responsibility is to engage in public relations and assist the 
 
         public in any necessary manner.  Former Sheriff Gebers could have 
 
         prohibited claimant's participation but elected not to.  Current 
 
         Sheriff Bremer acknowledged part of a deputy sheriff's job is to 
 
         be seen by the public.  It cannot be said claimant was not making 
 
         himself visible to those in attendance at the air show.  Claimant 
 
         was acting reasonably under the circumstances.  The undersigned 
 
         does not find it unusual that a deputy sheriff would act as an 
 
         escort for members of the public whether that be as part of a 
 
         community service project sponsored by the county or part of a 
 
         stunt from which the county, at least indirectly, derived some 
 
         benefit.  One could go so far as to consider the influx of people 
 
         into the area, the money spent and the fact that claimant's 
 
         salary, as a civil servant, is paid from tax dollars in 
 
         determining employer benefit.  The public, in general, may not 
 
         always have a favorable impression of law enforcement officers.  
 
         Seeing a law enforcement officer participate in a public spirited 
 
         event certainly is of benefit to the employer.  Consequently, the 
 
         undersigned cannot conclude claimant was not within the course of 
 
         his employment when he. fell.  See, generally, 1A Larson, 
 
         Workmen's Compensation Law SS 27.10-27.40 (1985).  However, even 
 
         if claimant was found to have in some way deviated from his 
 
         employment, the undersigned would still be bound to conclude that 
 
         claimant had sustained a compensable injury.  It is generally 
 
         held that an identifiable deviation takes an employee out of the 
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         course of his employment until he returns unless the deviation is 
 
         so small as to be disregarded as insubstantial.  See 1A Larson, 
 
         Workmen's Compensation SS 19.00-19.60 (1985).
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         
 
         
 
         SCHOSSOW V. IDA COUNTY, IOWA
 
         Page  8
 
         
 
         
 
              Claimant testified and there is no reason to doubt the 
 
         veracity of his testimony that his actions in escorting the pilot 
 
         to his aircraft took no more than ninety seconds and that at 
 
         least part of his escort route was on the regular flight line 
 
         patrol.  Claimant testified and Sheriff Gebers agreed that 
 
         claimant was capable of responding to any call for assistance and 
 
         that claimant's actions did not cause any gap in his duties or 
 
         obligations nor any inability to carry out his duty.  Joint 
 
         exhibit 16 demonstrates claimant's task and his regular patrol.  
 
         Considering claimant's actions, if a deviation existed, it would 
 
         have to be considered so small as to be disregarded as 
 
         insubstantial.  Accordingly, claimant has met his burden that on 
 
         June 22, 1986 he sustained an injury which arose out of and in 
 
         the course of his employment and the defendants are liable 
 
         therefor.
 
         
 
              The parties have stipulated and agreed claimant's injury is 
 
         the cause of both temporary (9.429 weeks) and permanent 
 
         disability to a scheduled member.
 
         
 
              Iowa Code section 85.34(2)(o) provides:
 
         
 
              The loss of two-thirds of that part of a leg between the hip 
 
              joint and the knee joint shall equal the loss of a leg, and 
 
              the compensation therefor shall be weekly compensation 
 
              during two hundred twenty weeks.
 
         
 
              Dr. Watson has rated claimant as having a 43 percent 
 
         disability to the right lower extremity based on claimant showing 
 
         continued evidence of instability and degenerative changes.  Dr. 
 
         Morrison found claimant's permanency to be 2 to 5 percent of the 
 
         knee and another 10 percent loss of physical function to the knee 
 
         based on certain assumptions.    Dr. Morrison, however, saw 
 
         claimant in April of 1988, prior to the operative procedure 
 
         performed by Dr. Watson on July 25, 1988.  Dr. O'Neil, who saw 
 
         claimant for an independent medical examination November 23, 
 
         1988, opined claimant has a 20 percent permanent partial 
 
         impairment of the right lower extremity as a result of the knee 
 
         injury with subsequent arthroscopy and partial lateral 
 
         meniscectomy and findings of an attenuated anterior cruciate 
 
         ligament.  Dr. Paulsrud also opined that claimant's permanent 
 
         impairment was 20 percent of the lower extremity in January of 
 
         1987.
 
         
 
              Because Dr. Morrison rendered his opinion prior to claimant 
 
         completing treatment and Dr. Watson appeared to have based his 
 
         opinion in part on what may happen to claimant in the future, it 
 
         is determined that Dr. O'Neil's opinion is entitled to the 
 
         greater weight.  Therefore, it is concluded that claimant, as a 
 
         result of the injury of June 22, 1986, has sustained a permanent 
 
         partial disability of 20 percent to the lower right extremity 
 
         entitling him to 44 weeks of permanent partial disabil-
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         
 
         
 
         SCHOSSOW V. IDA COUNTY, IOWA
 
         Page 9
 
         
 
         
 
         ity benefits.
 
         
 
            Iowa Code section 85.27 provides, in part:
 
         
 
                 The employer, for all injuries compensable under this 
 
              chapter or chapter 85A, shall furnish reasonable surgical, 
 
              medical, dental, osteopathic, chiropractic, podiatric, 
 
              physical rehabilitation, nursing, ambulance and hospital 
 
              services and supplies therefor and shall allow reasonably 
 
              necessary transportation expenses incurred for such 
 
              services.  The employer shall also furnish reasonable and 
 
              necessary crutches, artificial members and appliances but 
 
              shall not be required to furnish more than one set of 
 
              permanent prosthetic devices.
 
         
 
              As claimant has shown he sustained a compensable injury on 
 
         June 22, 1986, defendants are liable for expenses causally 
 
         connected thereto as provided in Iowa Code section 85.27. The 
 
         greater weight of medical evidence shows that the medical 
 
         expenses incurred were reasonably necessary and/or causally 
 
         related to the injury of June 22, 1986.  Defendants assert that 
 
         the expenses incurred are not authorized.  However, defendants 
 
         have denied the compensability of this claim since its inception.  
 
         Defendants' authorization argument is rejected as it has long 
 
         been an accepted principle of workers' compensation law in Iowa 
 
         that defendants cannot deny liability on the one hand and guide 
 
         the course of treatment on the other.  See Kindhart v. Fort Des 
 
         Moines Hotel, Appeal Dec. filed March 27, 1985, and Barnhart v. 
 
         Mag, Inc., I Iowa Indus. Comm'r Reps. 16, 17 (Appeal Dec. 1981).  
 
         Note is made that claimant claims entitlement to baby sitting 
 
         expenses as found on the addendum to the prehearing order 
 
         submitted June 14, 1989.  Such expenses are not provided for in 
 
         Iowa Code section 85.27 and will not be made part of any award.
 
         
 
                                 FINDINGS OF FACT
 
                                        
 
              Wherefore, based on all of the evidence presented, the 
 
         following findings of fact are made:
 
         
 
              1. Claimant is employed as a deputy sheriff for Ida County 
 
         and on June 22, 1986 was assigned duty on the flight line/fun fly 
 
         area at an air show.
 
         
 
              2. Claimant was requested by a pilot to escort the pilot 
 
         from the grandstand area 'to an airplane as part of a "stunt" for 
 
         the air show.
 
         
 
              3. Claimant agreed to act as the escort.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              4. The sheriff of Ida County was aware of claimant's part in 
 
         the stunt and raised no objection to it.
 
         
 
         
 
         
 
         SCHOSSOW V. IDA COUNTY, IOWA
 
         Page 10
 
         
 
         
 
              5. While walking toward the pilot claimant felt his right 
 
         knee give away, fell and sustained an injury.
 
         
 
              6. Claimant's actions do not amount to an abandonment of his 
 
         employment.
 
         
 
              7. Claimant's actions were not totally foreign to his usual 
 
         work as claimant regularly engaged in services to the general 
 
         public as he deemed necessary.
 
         
 
              8. Claimant was encouraged by the Ida County sheriff to 
 
         engage in public relations with the general public and provide 
 
         services as necessary.
 
         
 
              9. Claimant was acting reasonably under the circumstances.
 
         
 
              10. The employer had an interest in seeing deputy sheriffs 
 
         interact with the public in a favorable light.
 
         
 
              11. Claimant did not deviate from his employment in acting 
 
         as an escort but even if a deviation was found, it was so small 
 
         as to be disregarded as insubstantial.
 
         
 
              12. Claimant sustained an injury on June 22, 1986 which 
 
         arose out of and in the course of his employment.
 
         
 
              13. Claimant is entitled to healing period benefits for 
 
         9.429 weeks as a result of the injury of June 22, 1986 as 
 
         stipulated on the prehearing report and order.
 
         
 
              14. Claimant, as a result of the injury of June 22, 1986, 
 
         has sustained a permanent partial disability of 20 percent to the 
 
         lower right extremity.
 
         
 
              15. Defendants are liable for benefits as expounded in Iowa 
 
         Code section 85.27.
 
         
 
                                CONCLUSIONS OF LAW
 
                                        
 
              Therefore, based on the principles of law previously stated, 
 
         the following conclusions of law are made:
 
         
 
              1. Claimant sustained an injury on June 22, 1986 which arose 
 
         out of and in the course of his employment.
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
              2. Claimant is entitled to healing period benefits for 9.429 
 
         weeks covering the period from June 23, 1986 through July 7, 
 
         1986, December 8, 1986 through January 14, 1987, and July.26, 
 
         1988 through August 7, 1988.
 
         
 
              3. Claimant has sustained a permanent partial disability of 
 
         20 percent to the lower right extremity as a result of the
 
         
 
         
 
         
 
         SCHOSSOW V. IDA COUNTY, IOWA
 
         Page 11
 
         
 
         
 
         injury.of June 22, 1986.
 
         
 
              4. Defendants are liable for benefits pursuant to Iowa Code 
 
         section 85.27.
 
         
 
                                      ORDER
 
                                        
 
              THEREFORE, it is ordered:
 
         
 
              Defendants shall pay unto claimant forty-four (44) weeks of 
 
         permanent partial disability benefits at the stipulated rate of 
 
         two hundred thirty and 02/100 dollars ($230.02) per week 
 
         commencing August 8, 1988.
 
         
 
              Defendants shall pay unto claimant nine point four two nine 
 
         (9.429) weeks of healing period benefits at the stipulated rate 
 
         of two hundred thirty and 02/100 dollars ($230.02) per week for 
 
         the periods from June 23, 1986 through July 7, 1986, December 8, 
 
         1986 through January 14, 1987, and July 26, 1988 through August 
 
         7, 1988.
 
         
 
              Defendants are entitled to credit for benefits paid under a 
 
         nonoccupational group plan in the amount of one thousand one 
 
         hundred ninety-two dollars ($1,192).
 
         
 
              Benefits that have accrued shall be paid in a lump sum 
 
         together with statutory interest thereon pursuant to Iowa Code 
 
         section 85.30.
 
         
 
              Defendants shall pay disputed medical expenses pursuant to 
 
         Iowa Code section 85.27.
 
         
 
              Costs of this action are assessed against defendants 
 
         pursuant to Division of Industrial Services Rule 343-4.33.
 
         
 
              Signed and filed this 28th day of June, 1989.
 
         
 
         
 
                                         DEBORAH A. DUBIK
 
                                         DEPUTY INDUSTRIAL COMMISSIONER
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         Copies to:
 
         
 
         Mr. Edward Jacobsen 
 
         Attorney at Law 
 
         500 E. 2nd St
 
         Ida Grove, IA 51445
 
         
 
         Mr. James M. Cosgrove
 
         Attorney at Law
 
         1109 Badgerow Bldg
 
         P.O. Box 1828
 
         Sioux City, IA 51102
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
 
         
 
 
 
 
 
 
 
 
 
 
 
                                                      1100
 
                                                      Filed June 
 
         26,1989
 
                                                      Deborah A. 
 
         Dubik
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
                                        
 
           DAVID G. SCHOSSOW,
 
           
 
             Claimant,
 
           
 
           vs.                                       File No. 828098
 
           
 
           IDA COUNTY, IOWA                        A R B I T R A T I O 
 
           N
 
           
 
             Employer,                                 D E C I S I O N
 
           
 
           and
 
           
 
           NORTHWESTERN NATIONAL
 
           INSURANCE COMPANY,
 
           
 
             Insurance Carrier,
 
             Defendants.
 
           
 
         1100
 
         
 
              Claimant, a deputy sheriff, sustained an injury while 
 
         working at a flight show in Ida County.  The air show was not 
 
         directly sponsored by Ida County but claimant was directed  to 
 
         work there by the sheriff. While assisting a pilot in a stunt, 
 
         claimant fell and sustained an injury to his knee.  Claimant, 
 
         although not directly engaged in activities assigned to him by 
 
         the sheriff at the time of the injury, was found to have 
 
         sustained an injury arising out of and in the course of his 
 
         employment.  Claimant awarded medical benefits, healing period 
 
         benefits and permanent partial disability benefits of 20 percent 
 
         of the lower right extremity.