BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         JOYCE WERTH,
 
          
 
              Claimant,
 
          
 
          VS.                            File No. 828324
 
          
 
          DOUGLAS-LOMASON COMPANY,       A R B I T R A T I 0 N
 
          
 
              Employer,                  D E C I S I 0 N
 
          
 
          and
 
          
 
          AMERISURE COMPANIES,
 
          
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         
 
                                   INTRODUCTION
 
         
 
              This is a proceeding in arbitration brought by Joyce Werth 
 
         against her former employer, Douglas-Lomason Company, and its 
 
         insurance carrier, Amerisure Companies.  The case was heard and 
 
         fully submitted at Council Bluffs, Iowa on February 1, 1989.  The 
 
         record in this proceeding consists of testimony from Joyce Werth, 
 
         John Werth, Beverly Conner, Lynn Easterday, John Mullenix, Lyle 
 
         Schaaf, Carol Miller, and Shelly Skahill.  The record also 
 
         contains jointly offered exhibits 1 through 34.
 
         
 
                                      ISSUES
 
         
 
              Claimant seeks compensation for permanent total disability 
 
         as the result of an injury that she sustained on November 22, 
 
         1985 and the cumulative effects of continuing to work subsequent 
 
         to that injury until April 1, 1986.  Claimant also seeks to 
 
         recover medical expenses under the provisions of Code section 
 
         85.27.  The crucial issue in this case is whether the injury of 
 
         November 22, 1985, and the following day-to-day work activities, 
 
         were a proximate cause of the back condition which affected 
 
         claimant and which is responsible for the level of disability 
 
         which she currently experiences.  In the event that defendants 
 
         are held liable for the condition of claimant's back, the nature 
 
         and extent of her permanent disability is to be determined.  
 
         Claimant relies upon the odd-lot doctrine to establish her claim 
 
         of total disability.
 
         
 
                               SUMMARY OF EVIDENCE
 
         
 
              The following is a summary of evidence presented in this 
 
         case.  Of all the evidence received at the hearing, only that
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         
 
         WERTH V. DOUGLAS-LOMASON COMPANY 
 
         Page 2
 
         
 
         
 
         considered most pertinent to this decision is discussed.  
 
         Conclusions about what the evidence showed are inevitable with 
 
         any summarization.  The conclusions in the following summary 
 
         should be considered to be preliminary findings of fact.
 
         
 
              Joyce Werth is a 50-year-old, married lady who lives at Red 
 
         Oak, Iowa.  Her education ended when she completed the eighth 
 
         grade.  Since that time, she has been a housewife and has worked 
 
         a variety of jobs.  She worked for Union Carbide making batteries 
 
         on an assembly line for approximately five years ending in 1984.  
 
         Claimant had worked for Douglas-Lomason in the late 1960's or 
 
         early 1970's.  Claimant was rehired by Douglas-Lomason on 
 
         November 15, 1985 to work as a general laborer.
 
         
 
              On November 22, 1985, claimant was operating a press which 
 
         had the activating palm buttons mounted on a stand as shown in 
 
         exhibits 17 and 18.  A forklift operator brought claimant a 
 
         resupply of parts and while backing away, caught a line which 
 
         runs to the palm button stand with the forklift.  The stand was 
 
         pulled over striking claimant in the abdomen just below her 
 
         waistline.  Claimant stated that she fell backwards completely to 
 
         the floor and that the forklift operator, John Mullenix, helped 
 
         her get up and then went to get a foreman.  Claimant stated that 
 
         the wind was knocked out of her, but that she thought she would 
 
         be alright as soon as she caught her breath.
 
         
 
              Claimant testified that she was then placed on a different 
 
         machine, but that after operating it for approximately thirty 
 
         minutes, she was having severe pain in her stomach at the 
 
         location where the palm button stand had struck her.  Claimant 
 
         reported the pain to the foreman and was taken to Montgomery 
 
         County Hospital where she saw the company doctor, Redmond Smith, 
 
         M.D. Claimant stated that the doctor examined her, but did not 
 
         take any x-rays (exhibit 3, page 200).  The emergency room record 
 
         indicates that claimant denied back pain, but did complain of 
 
         nausea.  Contusions on her lower abdomen were observed (exhibit 
 
         4, page 254).  Claimant stated that she was then sent back to 
 
         work on light duty and worked the rest of her shift, 
 
         approximately six hours, despite the fact that she was sick to 
 
         her stomach and had pain in her stomach.
 
         
 
              Claimant testified that when she returned home at the end of 
 
         the shift, she told her husband what had happened and showed him 
 
         the scrape on her stomach.  She stated that the accident happened 
 
         on a Friday and that after resting over the weekend, she began to 
 
         feel better and returned to work on Monday.  Claimant stated that 
 
         she worked Monday through Wednesday, but was then off until the 
 
         following Monday for Thanksgiving.  Claimant related that she 
 
         continued to have problems over the Thanksgiving break and 
 
         because of the problems, did not go to her family Thanksgiving 
 
         gathering.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              Claimant testified that, on the Monday following 
 
         Thanksgiving, she went to work, but was still not over the 
 
         incident.  She
 
         
 
         
 
         
 
         WERTH V. DOUGLAS-LOMASON COMPANY 
 
         Page 3
 
         
 
         
 
         stated that her legs started aching, but that she attributed it 
 
         to standing on concrete.  Claimant stated that the discomfort 
 
         where her stomach was bruised went away.  Claimant stated that, 
 
         in December, she had severe leg aches and some backache and that 
 
         her husband would rub Icy Hot ointment on her back and legs.
 
         
 
              Claimant testified that, prior to the time of her injury, 
 
         she engaged in activities such as sewing, fishing, volunteer 
 
         work, and her church.  She stated that she and her husband went 
 
         out to supper and dancing nearly every Saturday night.  Claimant 
 
         related that, after November 22, 1985, they still went out to 
 
         eat, but that they did not go dancing.  She stated that she 
 
         ceased vacuuming and performed no heavy household work.  Claimant 
 
         stated that, on the evening of December 30, 1985, she fell on ice 
 
         leaving the Eagles Club injuring her face and left wrist.  She 
 
         was seen at the hospital and a splint was placed on her left arm.  
 
         The emergency room record indicates that claimant was seen by the 
 
         physician at 1900 (7:00 p.m.) (exhibit 4, page 255).  The records 
 
         show no complaints regarding claimant's back.
 
         
 
              Claimant stated that she returned to work on January 3, 1986 
 
         as scheduled and on February 10 was changed to the first shift, 
 
         7:00 a.m. to 3:30 p.m. Claimant stated that, while working 
 
         nights, she had operated a spin riveter machine and carried 
 
         buckets of rivets weighing 15-20 pounds once each shift.  She 
 
         also operated a Warco machine which involved moving boxes of 
 
         parts which were on rollers.  Claimant also performed some 
 
         painting activities which required reaching up and bending down.  
 
         At times she carried a bucket of water and used a putty knife and 
 
         rags to clean machines.  She handled weights of 8-10 pounds while 
 
         working on the riser pipeline.  After changing shifts, she worked 
 
         in the riser pack area where she handled one riser in each hand, 
 
         each weighing 10-12 pounds, and packed them into boxes.  She also 
 
         worked on the paint line for a couple of weeks.  Her job was to 
 
         remove cushions weighing 15-20 pounds from the line and place 
 
         them into boxes.  While on the paint line, claimant also had to 
 
         wipe excess paint from seats.  She stated that the work involved 
 
         a lot of bending.
 
         
 
              Claimant testified that her back and legs bothered and that 
 
         her condition kept getting worse, but that she kept working 
 
         because she did not want to miss work.  She stated that the only 
 
         time she missed work was for the flu.
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
              Claimant testified that, by the end of March, 1986, she was 
 
         working on the paint line wiping excess paint.  She stated that 
 
         on a Wednesday, she got up and was unable to bend down to tie her 
 
         shoes so her husband tied them for her.  She stated that he tried 
 
         to get her to stay home from work.  Claimant went to work, but 
 
         stated that she was unable to perform and that when she cried, a 
 
         coworker went for a foreman.  Claimant testified that she 
 
         experienced pain which was located 6-8 inches
 
         
 
         
 
         
 
         WERTH V. DOUGLAS-LOMASON COMPANY 
 
         Page 4
 
         
 
         
 
         above her tailbone and extended through to her stomach.  She 
 
         stated that she also had terrible leg aches.  Claimant stated 
 
         that the fall that occurred on December 30, 1985 was the only 
 
         other thing that happened to her after November 22, 1985.
 
         
 
              Commencing on April 1, 1986, claimant was seen by Edward 
 
         Piller, M.D., and hospitalized.  She was also seen by Kevin 
 
         Quinn, M.D. A number of tests and treatments were performed.  
 
         Claimant stated that she was unsure if she told Dr. Quinn at that 
 
         time about the November 22, 1985 work incident.  The history 
 
         recorded by Dr. Piller indicates that claimant had been admitted 
 
         in December, 1983 for what was apparently a kidney stone and that 
 
         she then began to have pain on Thursday of the preceding week 
 
         (March 27, 1986).  The pain was noted to be in the right lower 
 
         quadrant, an area where she had undergone previous abdominal 
 
         surgery.  The note indicates that she was unable to work because 
 
         motion irritated the pain, but that normally, the pain was not 
 
         irritated by motion.  It was felt that the pain may be radiating 
 
         from her back, but x-rays of her lumbar spine showed no 
 
         abnormalities other than some hypertropic spurring (exhibit 4, 
 
         pages 258, 260 and 261).  Claimant was also seen in consultation 
 
         by Glenn M. Skallerup, M.D., whose report indicates that claimant 
 
         told him that she had experienced similar pain over the past two 
 
         years and that while there was some back pain, the most severe 
 
         discomfort had always been in her abdomen.  His report contains 
 
         the following statement:
 
         
 
              In discussion with the patient, mention was made of the 
 
              possibility of a disc, although abnormal & high, it was 
 
              following this that the auto suggestion of the same produced 
 
              some complaints of pain now radiating in her leg.
 
         
 
              Dr. Skallerup indicated that there was a possibility that 
 
         mild skeletal factors may be responsible for claimant's 
 
         complaints (exhibit 4, page 262).  Claimant was discharged from 
 
         the hospital on April 6, 1986 with a final diagnosis of lumbar 
 
         back pain and osteoarthritis of the lumbar spine (exhibit 4, page 
 
         257).  The discharge summary indicates that while claimant was 
 
         hospitalized, the abdominal pain resolved (exhibit 4, page 257).
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
              Kevin Quinn, M.D., an internist who practices with Dr. 
 
         Piller, indicated on May 2, 1986 that claimant had been totally 
 
         disabled by lumbar pain since April 1, 1986 (exhibit 3, pages 149 
 
         and 150).
 
         
 
              Claimant was referred to H. Randall Woodward, M.D., an Omaha 
 
         orthopaedic surgeon.  Dr. Quinn's report dated June 26, 1986 
 
         indicates that claimant had low back pain for approximately three 
 
         months (exhibit 3, page 161).  A subsequent report of November 
 
         19, 1986 states that claimant's problems began in April of 1986 
 
         (exhibit 3, page 162).
 
         
 
         
 
         
 
         WERTH V. DOUGLAS-LOMASON COMPANY
 
         Page 5
 
         
 
         
 
              Dr. Woodward's notes indicate that claimant noted onset of 
 
         right low back and thigh discomfort on March 27, 1986 when she 
 
         got up from bed and had no problems prior to that (exhibit 3, 
 
         page 168).  His initial impression was that claimant had 
 
         musculoligamentous strain with a possible right L5 facet 
 
         irritation (exhibit 3, pages 168 and 175).  A myelogram and CT 
 
         scan were performed on May 27, 1986 which showed degenerative 
 
         changes with a prominent anterior bulge and defect at the L4-5 
 
         level.  It was also noted that claimant appeared to have a slight 
 
         spondylolisthesis at the L4-5 level.  On June 9, 1986, a 
 
         discogram was performed which showed the L5-S1 level to be 
 
         normal, but the L3-4 and L4-5 levels were degenerated.  On June 
 
         30, 1986, bilateral excision of the L4-5 disc was performed.  
 
         Claimant initially showed a good response to surgery, but she 
 
         continued to have back pain.  On August 15, 1986, x-rays showed 
 
         narrowing of the L3-4 and L4-5 levels, but the L5-Sl level was 
 
         still normal.  On December 3, 1986, claimant underwent a 
 
         posterolateral spine fusion of L3, L4 and L5.  A note of February 
 
         12, 1987 indicates that claimant continued to make gradual 
 
         improvement, but subsequent notes from April and June, 1987 
 
         indicate that claimant complained of pain with increased 
 
         activity.  By September, 1987, claimant indicated to Dr. Woodward 
 
         that she felt no better than she had prior to the first surgery.  
 
         By December 17, 1987, Dr. Woodward indicated that claimant had 
 
         reached maximum medical improvement (exhibit 3, pages 168-199).
 
         
 
              On December 21, 1987, Dr. Woodward issued a report to 
 
         defense counsel in which he stated that claimant had reached her 
 
         maximum healing and that she had a permanent partial impairment 
 
         of 30 percent of the whole man  [sic].  He recommended that she 
 
         avoid lifting more than an occasional 20 pounds and also that she 
 
         avoid twisting, turning, pushing and pulling.  He recommended 
 
         that she be able to change positions from standing to sitting and 
 
         limit the amount of walking which she performed (exhibit 3, page 
 
         200).
 
         
 
              On May 2, 1986, the same date as Dr. Quinn's statement that 
 
         claimant was disabled (exhibit 3, pages 149 and 150) due to 
 
         lumbar pain, claimant indicated on a group insurance form that 
 
         her condition was not related to her employment (exhibit 25).  At 
 
         hearing, claimant explained that she was not certain if the 
 
         problem was her back so she indicated it was not employment 
 
         related.  It is noted that she had already seen Dr. Woodward for 
 
         her back and was under his treatment on May 2, 1986.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              After the second surgery was unsuccessful, claimant applied 
 
         for and received Social Security disability benefits (exhibit 1). 
 
         Claimant receives $344 per month.  Claimant stated that. she has 
 
         not looked for work and would be unable to perform eight hours of 
 
         work.  She stated that if she were hiring, she would not hire 
 
         herself for a job.  Claimant testified that she is in pain for 
 
         which she takes muscle relaxers, Tylenol
 
         
 
         
 
         
 
         WERTH V. DOUGLAS-LOMASON COMPANY
 
         Page 6
 
         
 
         
 
         and uses a TENS unit.  She was hospitalized for eight days in the 
 
         summer of 1988 following attempting to vacuum her home.
 
         
 
              Claimant has been evaluated by Patrick W. Bowman, M.D., an 
 
         Omaha orthopaedic surgeon, who has indicated that patients with 
 
         claimant's problem typically have intractable pain and that the 
 
         only treatment would be symptomatic.  He indicated that her 
 
         prognosis is fairly poor and that she will certainly continue to 
 
         have major problems with her back (exhibit 3, pages 146-148).
 
         
 
              Claimant testified that she underwent a physical capacity 
 
         assessment which lasted one and one-half to two hours.  She 
 
         stated that when it was over, she was hurting so badly that she 
 
         was unable to bend over to tie shoes.  Claimant testified that 
 
         she declined to participate in work hardening because there were 
 
         no promises that it would be successful and she did not want to 
 
         endure the pain that would be involved.
 
         
 
              Claimant stated that she does a little driving in town, but 
 
         is unable to drive a distance of as much as seven miles.  She 
 
         stated that she is unable to carry groceries such as a gallon of 
 
         milk, but that she could lift five pounds, though not 
 
         continuously.  Claimant stated that extended sitting bothers and 
 
         that she lies down each morning and afternoon.  Claimant 
 
         testified that she would be unable to perform any job she has 
 
         previously held.  She attributes all of her problems to the 
 
         November 22, 1985 incident and the work that she performed 
 
         following that incident.  Claimant stated that she had received a 
 
         preemployment physical by Dr. Smith which found no physical 
 
         problems.
 
         
 
              Claimant testified that she did not complain at work because 
 
         she had been on a 90-day probation and did not want to lose her 
 
         job.  She stated that she had pain prior to the day that it 
 
         became severe on March 27, 1986.  She denied the occurrence of 
 
         any particular incident on that day.
 
         
 
              John Werth, claimant's husband of five years, testified that 
 
         prior to claimant's injury she was active and engaged in 
 
         activities such as gardening, dancing and attending garage sales.  
 
         He stated that she was primarily responsible for the housework in 
 
         their home.  John stated that claimant was in good physical 
 
         condition when claimant commenced employment at Douglas-Lomason.  
 
         He was not aware of her having any back problem prior to that 
 
         time.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              John Werth stated that claimant told him about the accident 
 
         that occurred on November 22, 1985.  He described her as nervous 
 
         and upset.  He observed bruises under her navel.  Claimant's 
 
         husband testified that the Saturday and Sunday following the 
 
         incident, she just lay around.  He stated that following that, 
 
         she had a lot of back and leg pains and that he began to help
 
         
 
         
 
         
 
         WERTH V. DOUGLAS-LOMASON COMPANY 
 
         Page 7
 
         
 
         
 
         with the housework and vacuuming.  He stated that when she would 
 
         come home from work, she would wake him up and that he would rub 
 
         her back and legs with Icy Hot.  Claimant's husband confirmed 
 
         that during that period of time, they ceased doing everything 
 
         except going to work.
 
         
 
              John Werth stated that, in early 1986, he tried to get 
 
         claimant to go to a doctor, but she refused.  He stated that she 
 
         was afraid she would be fired or laid off.  He stated that during 
 
         part of the time, she had not yet completed 90 days of 
 
         employment.  He described her condition as worsening to the 
 
         extent that on one morning in late March, he had to help her put 
 
         her shoes on.  He stated that he was surprised when she went to 
 
         the doctor on April 1, 1986.  He stated that she finally gave up.  
 
         John Werth testified that, prior to that date, her complaints had 
 
         become more frequent and more serious.
 
         
 
              John Werth testified that claimant has not recovered since 
 
         her surgeries.  He stated that she continues to complain of pain 
 
         and performs little in the way of housework.  He stated that she 
 
         has not looked for work because she would be unable to perform a 
 
         job.
 
         
 
              Beverly Conner, claimant's sister who is also employed at 
 
         Douglas-Lomason, stated that claimant was very active prior to 
 
         the fall of 1985.  Conner was aware of claimant's November 22, 
 
         1985 accident and observed bruises on claimant's abdomen.  Conner 
 
         confirmed that claimant had complained of her back, legs and 
 
         abdomen.  Conner stated that claimant ceased many of her 
 
         activities after that accident.
 
         
 
              Conner testified that claimant is not a complainer and can 
 
         endure a lot.  She stated that claimant had been reluctant to go 
 
         to a doctor in the past and that she did not consider it unusual 
 
         if claimant would not have complained to her employer or to have 
 
         refrained from going to a doctor in regard to this matter.
 
         
 
              Conner stated that claimant is limited in driving, walking, 
 
         shopping, carrying and performing household chores.  She stated 
 
         that claimant is in a lot of pain.  Conner stated that claimant 
 
         is unable to work.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              Kevin Quinn, M.D., is a physician who is board certified in 
 
         internal medicine.  When deposed, he stated that claimant was 
 
         initially hospitalized with abdominal complaints which were later 
 
         determined to be referred pain from her back (exhibit 11, pages 5 
 
         and 6).  Dr. Quinn stated that claimant has a history of 
 
         abdominal problems since 1981 (exhibit 11, page 40).  He stated 
 
         that claimant is unable to take aspirin and some aspirin-like or 
 
         anti-inflammatory medications (exhibit 11, pages 19 and 20).  He 
 
         stated that she has been prescribed a TENS unit (exhibit 11, page 
 
         21).  He felt that she has genuine pain, but that nothing has 
 
         been successful in controlling it (exhibit 11,
 
         
 
         
 
         
 
         WERTH V. DOUGLAS-LOMASON COMPANY
 
         Page 8
 
         
 
         
 
         pages 22 and 38).
 
         
 
              Dr. Quinn expressed the opinion that claimant is 
 
         unequivocally, totally disabled (exhibit 11, page 35).
 
         
 
              Dr. Quinn further stated that he is fairly certain that 
 
         claimant's condition is work related.  He felt that it was a 
 
         culmination of her work activities and the November 22, 1985 
 
         incident.  He stated that it is possible that the November 
 
         22,1985 incident caused the back problem without the cumulative 
 
         effect from her other work activities (exhibit 11, pages 33, 34, 
 
         47, 48, 51 and 52).
 
         
 
              Michael J. Morrison, M.D., an Omaha orthopaedic surgeon, 
 
         reviewed the medical records generated by Dr. Woodward and the 
 
         other medical and hospital records regarding the claimant.  Dr. 
 
         Morrison felt that there was no causal connection between the 
 
         back problem and the incident that occurred on November 22, 1985 
 
         because no record was made of any complaints regarding claimant's 
 
         back or of radiculitis at the time of the incident.  He stated 
 
         that if claimant had symptoms and sought medical care following 
 
         the November 22, 1985 incident, his answer would be different 
 
         from the one that he has given (exhibit 29, pages 6, 7, 12 and 
 
         13).
 
         
 
              Claimant was tested for flexibility and strength by Mark 
 
         Brandt, a physical therapist, on November 10, 1988.  Brandt 
 
         indicated that claimant manifested pain.  He stated that he found 
 
         her to have a very limited range of motion of her lumbar spine, 
 
         increased muscle tone of the lumbar and thoracic paraspinal 
 
         muscles, decreased lumbar curve, resistance to passive movement 
 
         of the hip and low back, and that she was deconditioned.  Brandt 
 
         stated that work hardening provides a possibility of improving 
 
         claimant's functional capacities.  He stated that, if motivated, 
 
         patients generally benefit from work hardening by increasing 
 
         their flexibility, endurance and range of motion, but that they 
 
         do not necessarily experience less pain (exhibit 9, pages 20-24, 
 
         26 and 34-36; exhibit 33).
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              Mark Adamson indicated that work hardening would be 
 
         appropriate for claimant (exhibit 33).
 
         
 
              Craig Ferguson, a vocational evaluation specialist, 
 
         evaluated claimant.  He indicated that she is not feasible for 
 
         competitive employment because her pain would cause her to be 
 
         unproductive.  He disagreed with a determination made by Lynn 
 
         Easterday which had indicated that claimant would be available 
 
         for light or sedentary work (exhibit 10, pages 16 and 18).  
 
         Ferguson relied upon the medical reports from Drs. Bowman and 
 
         Quinn (exhibit 10, pages 6-9 and 18).
 
         
 
              Lynn Easterday, a rehabilitation specialist, evaluated 
 
         claimant.  Easterday initially indicated that claimant would be 
 
         available for light or sedentary work, but when deposed,
 
         
 
         
 
         
 
         WERTH V. DOUGLAS-LOMASON COMPANY 
 
         Page 9
 
         
 
         
 
         Easterday agreed that, at the current time, claimant was unable 
 
         to perform light or sedentary work, but that there was a 
 
         possibility she could, in the future, become capable of 
 
         performing some types of work through a program such as work 
 
         hardening (exhibit 8, pages 24-26 and 38-40; exhibit 30; exhibit 
 
         31).
 
         
 
                           APPLICABLE LAW AND ANALYSIS
 
         
 
              The incident that occurred on November 22, 1985 and the 
 
         nature of claimant's work for Douglas-Lomason following that date 
 
         are all well established.  The work which claimant performed 
 
         involved some activities in the nature of bending and reaching, 
 
         but it was not heavy work.  The real issue in this case is 
 
         whether that incident or the work, or some combination of the 
 
         two, produced the lumbar abnormalities for which claimant was 
 
         treated.  The dispute regarding the "injury date" in this case is 
 
         somewhat academic since an injurious event clearly occurred on 
 
         November 22, 1985, but claimant did not miss any work (even 
 
         allegedly) due to that incident until April 1, 1986.  For 
 
         purposes of this case, it is determined that the correct date of 
 
         injury is November 22, 1985 since there was a specific trauma on 
 
         that date.  No physician has attributed claimant's back problems 
 
         solely to the cumulative effect of her work subsequent to 
 
         November 22, 1985.  This is a case where either November 22, 1985 
 
         or April 1, 1986 could be used as a date of injury.
 
         
 
              Claimant has the burden of proving by a preponderance of the 
 
         evidence that she received an injury on November 22, 1985 and/or 
 
         April 1, 1986 which arose out of and in the course of her 
 
         employment.  McDowell v. Town of Clarksville, 241 N.W.2d 904 
 
         (Iowa 1976); Musselman v. Central Telephone Co., 261 Iowa 352, 
 
         154 N.W.2d 128 (1967).
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              The injury must both arise out of and be in the course of 
 
         the employment.  Crowe v. DeSoto Consol. Sch. Dist., 246 Iowa 
 
         402, 68 N.W.2d 63 (1955) and cases cited at pp. 405-406 of the 
 
         Iowa Report.  See also Sister Mary Benedict v. St. Mary's Corp., 
 
         255 Iowa 847, 124 N.W.2d 548 (1963) and Hansen v. State of Iowa, 
 
         249 Iowa 1147, 91 N.W.2d 555 (1958).
 
         
 
              "An injury occurs in the course of the employment when it is 
 
         within the period of employment at a place the employee may 
 
         reasonably be, and while he is doing his work or something 
 
         incidental to it."  Cedar Rapids Comm. Sch.  Dist. v. 
 
         Cady, 278 N.W.2d 298 (Iowa 1979); McClure v. Union et al.  
 
         Counties, 188 N.W.2d 283 (Iowa 1971); Musselman v. Central 
 
         Telephone Co., 261 Iowa 352, 154 N.W.2d 128 (1967).
 
         
 
              The "arising out of" requirement is satisfied by showing a 
 
         causal relationship between the employment and the injury.  
 
         Sheerin v. Holin Co., 380 N.W.2d 415 (Iowa 1986).
 
         
 
              The incident of November 22, 1985 and the activities 
 
         claimant engaged in thereafter at her work all clearly were 
 
         performed
 
         
 
         
 
         
 
         WERTH V. DOUGLAS-LOMASON COMPANY 
 
         Page 10
 
         
 
         
 
         in the course of her employment and any injury which resulted 
 
         therefrom clearly occurred in the course of employment.  The 
 
         "arising out of" requirement is the critical issue in this case.
 
         
 
              The claimant has the burden of proving by a preponderance of 
 
         the evidence that the work injury is a cause of the disability on 
 
         which she now bases her claim.  Bodish v. Fischer, Inc., 257 Iowa 
 
         516, 133 N.W.2d 867 (1965).  Lindahl v. L.O. Boggs, 236 Iowa 296, 
 
         18 N.W.2d 607 (1945).  A possibility is insufficient; a 
 
         probability is necessary.  Burt v. John Deere Waterloo Tractor 
 
         Works, 247 Iowa 691, 73 N.W.2d 732 (1955).  The question of 
 
         causal connection is essentially within the domain of expert 
 
         testimony.  Bradshaw v. Iowa Methodist Hospital, 251 Iowa 375, 
 
         101 N.W.2d 167 (1960).
 
         
 
              However, expert medical evidence must be considered with all 
 
         other evidence introduced bearing on the causal connection.  
 
         Burt, 247 Iowa 691, 73 N.W.2d 732.  The opinion of experts need 
 
         not be couched in definite, positive or unequivocal language.  
 
         Sondag v. Ferris Hardware, 220 N.W.2d 903 (Iowa 1974).  However, 
 
         the expert opinion may be accepted or rejected, in whole or in 
 
         part, by the trier of fact.  Id. at 907.  Further, the weight to 
 
         be given to such an opinion is for the finder of fact, and that 
 
         may be affected by the completeness of the premise given the 
 
         expert and other surrounding circumstances.  Bodish, 257 Iowa 
 
         516, 133 N.W.2d 867.  See also Musselman v. Central Telephone Co.
 
         , 261 Iowa 352, 154 N.W.2d 128 (1967).
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              Dr. Quinn relates claimant's back problems and resulting 
 
         disability to her employment, while Dr. Morrison does not.  Dr. 
 
         Woodward, the treating orthopaedic surgeon did not address the 
 
         issue of causation.  Dr. Quinn has treated claimant for other 
 
         conditions in the past and is more familiar with her and her 
 
         individual personality than is Dr. Morrison.  On the other hand, 
 
         Dr. Morrison is an orthopaedic surgeon.  It is interesting to 
 
         note, however, that Dr. Morrison bases his opinion upon the time 
 
         at which claimant's symptoms began.  Simply stated, it was his 
 
         opinion, that if the onset of symptoms occurred on November 22, 
 
         1985, then a causal connection existed between that incident and 
 
         her back problems, but if the onset occurred later, then there 
 
         was no causal connection.  Claimant, her husband, and her sister 
 
         all testified as to the existence of symptoms beginning following 
 
         the November 22, 1985 incident and worsening thereafter.  Having 
 
         observed the appearance and demeanor of the claimant and her two 
 
         witnesses, they are determined to be generally credible.  This 
 
         finding recognizes the inconsistencies that appear in the record 
 
         of this case.  Claimant's statement that the pain became severe 
 
         or unbearable on March 27, 1986 is accepted as a plausible 
 
         explanation for why the medical practitioners used March 27, 1986 
 
         as the time for the onset of her symptoms.  Claimant's 
 
         explanation regarding exhibit 25, the group insurance 
 
         application, is not, however, reconcilable.  She clearly would 
 
         have known that the condition for which she
 
         
 
         
 
         
 
         WERTH V. DOUGLAS-LOMASON COMPANY 
 
         Page 11
 
         
 
         
 
         was off work was her back since she had already seen Dr. Woodward 
 
         for her back by the time that she signed the application form.  A 
 
         major inconsistency in the case is that claimant and her husband 
 
         testified that he rubbed Icy Hot on her back and leg during the 
 
         time that she continued to work, but when she was admitted to the 
 
         hospital, her primary complaint was abdominal.  Claimant had 
 
         experienced abdominal complaints for years prior to the time she 
 
         commenced employment at Douglas-Lomason.  The irrefutable 
 
         evidence in this case is, however, that claimant was physically 
 
         active and capable of engaging in many activities prior to the 
 
         time of the November 22, 1985 incident, that the incident, while 
 
         seemingly relatively minor, did involve trauma at approximately 
 
         the level of claimant's body where the spinal condition was 
 
         located, and that the back condition was objectively medically 
 
         diagnosed.  The record of this case contains no other trauma 
 
         which would be a likely source of the back condition.  There is 
 
         nothing to indicate that the December 30, 1985 fall affected 
 
         claimant's back.
 
         
 
              In spite of all the inconsistencies, the testimony from 
 
         claimant, her husband, and her sister is determined to be 
 
         credible and is relied upon to establish that claimant's symptoms 
 
         did in fact commence with the incident of November 22, 1985.  
 
         Therefore, the opinion expressed by Dr. Quinn is accepted as 
 
         being correct.  Claimant's demonstrated reluctance to seek 
 
         medical treatment is accepted as an explanation for why she did 
 
         not do so sooner.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              As claimant has an impairment to the body as a whole, an 
 
         industrial disability has been sustained.  Industrial disability 
 
         was defined in Diederich v. Tri-City Railway Co., 219 Iowa 587, 
 
         593, 258 N.W. 899, 902 (1935) as follows: "It is therefore plain 
 
         that the legislature intended the term 'disability' to mean 
 
         'industrial disability' or loss of earning capacity and not a 
 
         mere 'functional disability' to be computed in the terms of 
 
         percentages of the total physical and mental ability of a normal 
 
         man."
 
         
 
              Functional impairment is an element to be considered in 
 
         determining industrial disability which is the reduction of 
 
         earning capacity, but consideration must also be given to the 
 
         injured employee's age, education, qualifications, experience and 
 
         inability to engage in employment for which he is fitted.  Olson 
 
         v. Goodyear Service Stores, 255 Iowa 1112, 1121 125 N.W.2d 251, 
 
         257 (1963).
 
         
 
              Industrial disability or loss of earning capacity is a 
 
         concept that is quite similar to impairment of earning capacity, 
 
         an element of damage in a tort case.  Impairment of physical 
 
         capacity creates an inference of lessened earning capacity.  The 
 
         basic element to be determined, however, is the reduction in 
 
         value of the general earning capacity of the person, rather than 
 
         the loss of wages or earnings in a specific occupation.  
 
         Post-injury earnings create a presumption of earning capacity.  
 
         The earnings are not synonymous with earning capacity and the
 
         
 
         
 
         
 
         WERTH V. DOUGLAS-LOMASON COMPANY 
 
         Page 12
 
         
 
         
 
         presumption may be rebutted by evidence showing the earnings to 
 
         be an unreliable indicator.  Carradus v. Lange, 203 N.W.2d 565 
 
         (Iowa 1973); Holmquist v. Volkswagon of America, Inc., 261 N.W.2d 
 
         516 (Iowa App. 1977) A.L.R.3d 143; Michael v. Harrison County, 
 
         34th Biennial Report, 218 (1979): 2 Larson Workmen's Compensation 
 
         Law, sections 57.21 and 57.31.
 
         
 
              Claimant seeks an award of permanent total disability.  She 
 
         asserts the odd-lot doctrine.  The Iowa Supreme Court has ruled 
 
         that whenever an injured employee makes a prima facie showing of 
 
         total disability, the burden of proving that work within the 
 
         employee's capabilities is available shifts to the employer.  The 
 
         case adopts the odd-lot doctrine.  Guyton v.Irving Jensen Co., 
 
         373 N.W.2d 101 (Iowa 1985).  The agency has held that the only 
 
         way an injured employee can make a prima facie showing of total 
 
         disability is by conducting a bona fide good faith search for 
 
         employment without finding any.  The agency has held that without 
 
         conducting the search for work, the burden of proof does not 
 
         shift to the employer.  Collins v. Friendship Village, Inc., file 
 
         number 679258 (App.  Decn. 1988); Emshoff v. Petroleum Transp. 
 
         Services, file number 753723 (App.  Decn. 1987).  The undersigned 
 
         is obliged to follow agency precedent.  Claimant therefore cannot 
 
         avail herself of the odd-lot doctrine and its burden shifting 
 
         provisions since she has not sought employment.  The lack of 
 
         ability to rely upon the odd-lot doctrine does not, however, 
 
         necessarily prevent an award of total disability.  Total 
 
         disability under workers' compensation law is not utter and 
 
         abject helplessness.  The ability to earn some wages creates a 
 
         presumption that the person has earning capacity commensurate 
 
         with those wages, but the presumption is rebuttable. 2 Larson 
 
         Workmen's Compensation Law, section 52.21(d). The test of 
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         permanent total disability in a workers' compensation setting has 
 
         long been established and may be summarized as follows: When the 
 
         combination of the factors considered in determining industrial 
 
         disability precludes the worker from obtaining regular employment 
 
         in which he or she can earn a living, the disability is total 
 
         disability.  Guyton v. Irving Jensen Co., 373 N.W.2d 101, 103 
 
         (Iowa 1985), McSpadden v. Big Ben Coal Co., 282 N.W.2d 181, 192 
 
         (Iowa 1980); Diederich v. Tri-City R. Co., 219 Iowa 587, 594, 258 
 
         N.W. 899, 902 (1935).  Permanent disability means a disability 
 
         that is lasting for an indefinite and undeterminable period.  It 
 
         does not require proof of absolute perpetuity.  Wallace v. 
 
         Brotherhood, 230 Iowa 1127, 1130, 300 N.W. 322 (1941).
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              There are few individuals in our society whose earning 
 
         capacity is absolutely zero.  There are numerous examples of 
 
         individuals with severe physical impairments who are able to 
 
         produce some level of earnings.  Even if claimant were capable of 
 
         performing some types of part-time employment and earning some 
 
         wages, such would not compel a finding that she is not totally 
 
         disabled.  The test of total disability is whether the person has 
 
         the ability to be self-supporting.  Normally, that cannot be done 
 
         from part-time work.  In this case, Dr.
 
         
 
         
 
         
 
         WERTH V. DOUGLAS-LOMASON COMPANY 
 
         Page 13
 
         
 
         
 
         Quinn, Lynn Easterday and Craig Ferguson have all indicated that 
 
         claimant is totally disabled and is not capable of engaging in 
 
         competitive employment.  Dr. Bowman confirmed the seriousness of 
 
         her physical condition.  When claimant's education is considered 
 
         together with her work history, there is nothing to indicate that 
 
         she is qualified to perform most types of clerical or sedentary 
 
         employment.  The only conclusion which can be reached in this 
 
         case is that Joyce Werth is permanently and totally disabled.
 
         
 
              Since claimant has been found to be totally disabled, there 
 
         is no need to determine the end of the healing period, although 
 
         it would appear from the evidence found at exhibit 11, page 35 
 
         and exhibit 3, page 200 that it ended approximately one year 
 
         after her second surgery.
 
         
 
              The only real issue with regard to the medical expenses 
 
         which claimant seeks to recover as set forth in exhibit 2 is that 
 
         of the employer's liability.  Defendants are therefore 
 
         responsible for payment of the medical expenses as summarized at 
 
         exhibit 2, pages 97 and 98 in the total amount of $37,202.31.
 
         
 
                                 FINDINGS OF FACT
 
         
 
              1. On November 22, 1985, Joyce Werth was a resident of the 
 
         state of Iowa employed by Douglas-Lomason Company in the state of 
 
         Iowa.
 
         
 
              2. On November 22, 1985, Joyce Werth injured her back when a 
 
         palm button stand was pulled against her abdomen.  Thereafter and 
 
         until April 1, 1986, claimant continued to perform duties in her 
 
         employment which aggravated the injury that had been caused on 
 
         November 22, 1985, although those subsequent work activities were 
 
         not independently injurious.
 
         
 
              3.  Following the injury, claimant continued to work until 
 
         April 1, 1986 at which time it was medically indicated that she 
 
         was incapable of performing work in employment substantially 
 
         similar to that which she performed at the time of injury.  
 
         Claimant has not been capable of performing substantially similar 
 
         to that which she performed at the time of injury at any time 
 
         since April 1, 1986.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              4. Claimant reached the point that it was medically 
 
         indicated that further significant improvement from the injury 
 
         was not anticipated on December 21, 1987.
 
         
 
              5. Claimant, John Werth and Beverly Conner are credible 
 
         witnesses with regard to their descriptions of the onset of 
 
         claimant's symptoms and the progression of those symptoms up to 
 
         the time claimant actually sought medical treatment on April 1, 
 
         1986.
 
         
 
              6. The accident that occurred on November 22, 1985 injured 
 
         claimant's abdomen and lumbar spine.
 
         
 
         
 
         
 
         WERTH V. DOUGLAS-LOMASON COMPANY
 
         Page 14
 
         
 
         
 
              7. The accident that occurred on November 22, 1985, and the 
 
         injuries sustained in that accident, are a substantial factor in 
 
         producing the abnormality in claimant's lumbar spine for which 
 
         surgery was performed and the resulting disability which 
 
         currently affects claimant due to the condition of her lumbar 
 
         spine.
 
         
 
              8. Joyce Werth does not have sufficient residual earning 
 
         capacity, due to the limitations which her back condition has 
 
         produced, which would enable her to engage in gainful competitive 
 
         employment.  She does not have sufficient residual earning 
 
         capacity to earn sufficient wages with which she could be 
 
         self-supporting.
 
         
 
              9.  All medical expenses listed in exhibit 2, totalling 
 
         $37,202.31 were incurred in obtaining reasonable care for the 
 
         injury to claimant's back which occurred on November 22, 1985.
 
         
 
                                CONCLUSIONS OF LAW
 
         
 
              1. This agency has jurisdiction of the subject matter of 
 
         this proceeding and its parties.
 
         
 
              2. The current condition of claimant's lumbar spine was 
 
         proximately caused by an injury which arose out of and in the 
 
         course of her employment with Douglas-Lomason Company on November 
 
         22, 1985.
 
         
 
              3. Claimant is permanently and totally disabled as a result 
 
         of that November 22, 1985 injury within the meaning of Code 
 
         section 85.34(3).
 
         
 
              4. Defendants are responsible under the provisions of Code 
 
         section 85.27 for payment of the expenses of medical treatment in 
 
         the amount of $37,202.31 as itemized in exhibit 2.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
                                      ORDER
 
         
 
              IT IS THEREFORE ORDERED that defendants pay claimant weekly 
 
         compensation for permanent total disability at the rate of one 
 
         hundred sixty-one and 44/100 dollars ($161.44) per week payable 
 
         commencing April 1, 1986 and continuing for the balance of 
 
         claimant's life.
 
         
 
              IT IS FURTHER ORDERED that defendants pay the following 
 
         medical expenses:
 
         
 
         .Immanuel Medical Center        $17,453.96
 
          Diagnosis & Internal Medicine      521.00
 
          Midwest Medical Imaging Center, Inc.          1,013.50
 
          National Medical Homecare           74.40
 
          Orthopaedic Surgery, Inc.        6,284.00
 
          Northwest Anesthesia             1,917.00
 
         
 
         
 
         
 
         WERTH V. DOUGLAS-LOMAS0N COMPANY
 
         Page 15
 
          
 
          
 
              Red Oak Internal Medicine Clinic             1,427.50
 
              Montgomery County Memorial Hospital     5,850.25
 
              Keystone Pharmacy-Medicine Chest               404.08
 
              Orthotic & Prosthetic Center, Omaha       115.00
 
              Drs. Gross, Iverson, Kratochvil & Klein   115.00
 
              Foster Medical Corporation              1,059.40
 
              Nebraska-Iowa Radiology Consultants, Inc.      357.00
 
              Dr. Glenn Skallerup                       110.00
 
              Pathology Center                             32.70
 
              Total                                   $36,734.79
 
         
 
              IT IS FURTHER ORDERED that defendants pay claimant mileage 
 
         expense in the amount of four hundred sixty-seven and 52/100 
 
         dollars ($467.52).
 
         
 
              IT IS FURTHER ORDERED that all past due amounts of weekly 
 
         compensation shall be paid to claimant in a lump sum together 
 
         with interest from the date each payment came due computed at the 
 
         rate of ten percent (10%) per annum until the date of actual 
 
         payment pursuant to Code section 85.30.
 
         
 
              IT IS FURTHER ORDERED that defendants pay the costs of this 
 
         action pursuant to Division of Industrial Services Rule 343-4.33.
 
         
 
              IT IS FURTHER ORDERED that defendants file claim activity 
 
         reports as requested by this agency pursuant to Division of 
 
         Industrial Services Rule 343-3.1.
 
         
 
              Signed and filed this 26th of September, 1989.
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         
 
         
 
         
 
         
 
                                         MICHAEL G. TRIER
 
                                         DEPUTY INDUSTRIAL COMMISSIONER
 
         
 
         Copies To:
 
         
 
         Mr. Gary Gee
 
         Attorney at Law 
 
         112 South Elm Street 
 
         P.O. Box 177
 
         Shenandoah, Iowa 51601
 
         
 
         Mr. Philip Willson
 
         Attorney at Law
 
         35 Main Place, Suite 300
 
         P.O. Box 249
 
         Council Bluffs, Iowa 51502
 
         
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
 
         
 
 
 
 
 
 
 
 
 
 
 
                                         1108.50, 1804, 2209, 4100
 
                                         Filed September 26, 1989
 
                                         MICHAEL G. TRIER
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         JOYCE WERTH,
 
          
 
              Claimant,
 
          
 
          VS.                            File No.  828324
 
          
 
          DOUGLAS-LOMASON COMPANY,       A R B I T R A T I 0 N
 
          
 
              Employer,                  D E C I S I 0 N
 
          
 
          and
 
          
 
          AMERISURE COMPANIES,
 
          
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         1108.50
 
         
 
              Claimant's medical experts  attributed  her  back  condition 
 
         to what had initially been a seemingly minor injury that occurred 
 
         approximately four months before she ceased work.  Claimant, her 
 
         husband and her sister all testified to the effect that her 
 
         symptoms had started with that injurious incident and had 
 
         progressively worsened subsequently until they became unbearable 
 
         and she sought medical care.  Those witnesses were found to be 
 
         credible.  Defendants' medical expert expressed the opinion, 
 
         based on the lack of medical treatment for approximately four 
 
         months, that the original incident was not a cause of claimant's 
 
         back condition, but he also stated that if her symptoms had 
 
         started at that time, then it would be his opinion that the 
 
         original. incident was the cause of her back problems.  A causal 
 
         connection was therefore found to exist.
 
         
 
         2209
 
         
 
              There was an issue in the case with regard to whether the 
 
         injury date was the date of the original trauma or the date 
 
         claimant ceased working.  Claimant's medical evidence indicated 
 
         that the back problem was a culmination of the original trauma 
 
         and the continued work activities.  Where the work activities 
 
         appeared to be at most moderate in exertion, it was found that 
 
         the initial trauma was the precipitating factor and therefore the 
 
         injury date was found to be the date of the initial trauma, 
 
         rather than the date claimant ceased work.
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         WERTH V. DOUGLAS-LOMASON COMPANY
 
         Page 2
 
         
 
         
 
         1804, 4100
 
         
 
              The consensus of the opinions from the medical practitioners 
 
         and vocational consultants was that claimant was totally 
 
         disabled.  Permanent total disability was awarded.
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                   BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         STEVEN W. MINNER,
 
         
 
              Claimant,                             File No. 828393
 
         
 
         vs.                                          A P P E A L
 
         
 
         ADM,                                       D E C I S I O N
 
         
 
              Employer,
 
                                                      F I L E D
 
         and
 
                                                      NOV 29 1989
 
         OLD REPUBLIC INSURANCE CO.,
 
                                             IOWA INDUSTRIAL COMMISSIONER
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
                              STATEMENT OF THE CASE
 
         
 
              Defendants appeal from an arbitration decision awarding 
 
         claimant healing period benefits and permanent partial disability 
 
         benefits based on an industrial disability of 40 percent.
 
         
 
              The record on appeal consists of the transcript of the 
 
         arbitration hearing; joint exhibits A and B; claimant's exhibits 
 
         1 and 2; and defendants' exhibits 1 through 4.  Both parties 
 
         filed briefs on appeal.
 
         
 
                                   ISSUES
 
         
 
              The issues on appeal are whether there is a causal 
 
         connection between claimant's alleged work injury and the alleged 
 
         permanent disability and the extent of claimant's permanent 
 
         disability, if any.
 
         
 
                           REVIEW OF THE EVIDENCE
 
         
 
              The arbitration decision filed August 30, 1988 adequately 
 
         and accurately reflects the pertinent evidence and it will not be 
 
         reiterated herein.
 
         
 
                              APPLICABLE LAW
 
         
 
              The citations of law in the arbitration decision are 
 
         appropriate to the issues and evidence.
 
         
 
                                  ANALYSIS
 
         
 
              The analysis of the evidence in conjunction with the law in 
 
         the arbitration decision is adopted.
 
         
 
                                                
 
                                                         
 
                              FINDINGS OF FACT
 
         
 
              1.  Claimant began work for defendant employer in 1971.
 
         
 
              2.  Claimant received one to two chiropractic treatments per 
 
         year for lower neck and upper back problems from 1976 to 1985.
 
         
 
              3.  Claimant, from,nonwork activities, had lower cervical, 
 
         upper thoracic strain in July 1984 and had upper cervical strain 
 
         in August 1984.
 
         
 
              4.  Claimant received chiropractic treatment from Elvin 
 
         Lessenger, D.C., from January 1986 to June 21, 1986.
 
         
 
              5.  Claimant sought chiropractic treatment for pain in the 
 
         upper back as a result of heavy lifting at home on June 18, 
 
         1986.
 
         
 
              6.  Claimant received a treatment and a follow-up check from 
 
         Dr. Lessenger on June 19, 1986 and was treated by Francois 
 
         LeRoux, D.C., on June 26 and 27, 1986.
 
         
 
              7.  Dr. Lessenger indicated that claimant was experiencing 
 
         symptoms related to his right arm on June 19, 1986.
 
         
 
              8.  On June 29, 1986 claimant was shoveling corn mush at 
 
         work when he felt pain in the upper neck on the right side.
 
         
 
              9.  Claimant reported the incident of June 29, 1986 to the 
 
         employer and finished work that day and worked the following four 
 
         days at which time he took a week of vacation.
 
         
 
              10.  Claimant was seen by Eugene Herzberger, M.D., a 
 
         neurosurgeon on July 15, 1986.  Dr. Herzberger diagnosed disc 
 
         herniations at C6-7 and C5-6.
 
         
 
              11.  When seen by Dr. Herzberger claimant complained of pain 
 
         in the right shoulder and right upper extremity.
 
         
 
              12.  The history given to Dr. Herzberger did not include the 
 
         incident on June 18, 1986, did not include claimant's prior back 
 
         problems, and indicated that the symptoms started immediately 
 
         with the incident on June 29, 1986.
 
         
 
              13.  On December 29, 1987 claimant was examined by William 
 
         Robb, M.D., a board certified orthopedic surgeon.
 
         
 
              14.  Dr. Robb reviewed the medical records of claimant and 
 
         pertinent depositions and offered an opinion as to causal 
 
         connection.
 
         
 
              15.  It was Dr. Robb's opinion that heavy lifting was not a 
 
         causal factor but did aggravate claimant's condition.
 
         
 
              16.  Dr. Robb thought that the lifting episode on June 18, 
 
                                                
 
                                                         
 
         1986 would have aggravated claimant's condition if that incident 
 
         were the only traumatic event.
 
         
 
              17.  Dr. Robb thought that the onset of the disc herniations 
 
         preceded claimant's July 18, 1986 surgery by at least six weeks, 
 
         possibly two or three months.
 
         
 
              18.  Claimant's condition was materially aggravated by the 
 
         June 29, 1986 incident.
 
         
 
              19.  Dr. Robb could not quantify the degree of herniations 
 
         prior to and subsequent to the June 29, 1986 incident.
 
         
 
              20.  As a result of claimant's athletic endeavors and work- 
 
         outs he was in excellent physical condition at all times material 
 
         herein.
 
         
 
              21.  At no time prior to June 29, 1986 did any injury cause 
 
         claimant a loss of work or a substantial reduction in functional 
 
         activity.
 
         
 
              22.  The incident on June 29, 1986 was a substantial factor 
 
         in claimant's need for fusion surgery to relieve pain.
 
         
 
              23.  The incident on June 29, 1986 was the cause of a seven 
 
         to ten percent permanent impairment to the body as a whole and of 
 
         permanent restrictions consisting of avoidance of repetitive 
 
         lifting.
 
         
 
              24.  Claimant was 36 years of age on the date of the work 
 
         injury.
 
         
 
              25.  Claimant appears to possess above average 
 
         intelligence.
 
         
 
              26.  Although claimant returned to work after surgery and 
 
         was able to perform the work, claimant had to modify his work 
 
         activities to avoid pain and continue working.
 
         
 
              27.  At the time of the arbitration hearing claimant was 
 
         unemployed but was attending college.
 
         
 
              28.  The work injury of June 29, 1986 was the cause of a 40 
 
         percent loss of earning capacity.
 
         
 
                              CONCLUSIONS OF LAW
 
         
 
              Claimant has proved that there is a causal connection 
 
         between the alleged work injury on June 29, 1986 and his 
 
         permanent disability.
 
         
 
              Claimant has proved that the work injury of June 29, 1986 
 
         was the cause of an industrial disability of 40 percent.
 
         
 
              WHEREFORE, the decision of the deputy is affirmed.
 
                                                
 
                                                         
 
         
 
                                      ORDER
 
         
 
              THEREFORE, it is ordered:
 
         
 
              That defendants pay to claimant two hundred (200) weeks of 
 
         permanent partial disability benefits at the rate of three 
 
         hundred forty-one and 79/100 dollars ($341.79) per week from 
 
         March 14, 1987.
 
         
 
              That defendants (as stipulated) pay to claimant healing 
 
         period benefits from June 16, 1986 through March 13, 1987 at the 
 
         rate of three hundred forty-one and 79/100 dollars ($341.79) per 
 
         week.
 
         
 
              That defendants pay accrued weekly benefits in a lump sum 
 
         and receive a credit as stipulated in the prehearing report for 
 
         past payment of benefits.
 
         
 
              That defendants pay interest on weekly benefits awarded 
 
         herein as set forth in Iowa Code section 85.30.
 
         
 
              That defendants pay the costs of this action including the 
 
         costs of transcription of the arbitration hearing pursuant to 
 
         Division of Industrial Services Rule 343-4.33.
 
 
 
                              
 
                                                         
 
         
 
              That defendants file activity reports as requested by this 
 
         agency pursuant to Division of Industrial Services Rule 343-3.1.
 
         
 
              Signed and filed this 29th day of November, 1989.
 
         
 
         
 
         
 
         
 
         
 
                                               DAVID E. LINQUIST
 
                                            INDUSTRIAL COMMISSIONER
 
         
 
         Copies To:
 
         
 
         Mr. John J. Wolfe, Jr.
 
         Attorney at Law
 
         402 6th Ave. S
 
         Clinton, Iowa  52732
 
         
 
         Mr. Matthew J. Brandes
 
         Attorney at Law
 
         1200 MNB Building
 
         Cedar Rapids, Iowa  52401
 
         
 
         
 
         
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
                                                
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                            1803
 
                                            Filed November 29, 1989
 
                                            DAVID E. LINQUIST
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         STEVEN W. MINNER,
 
         
 
              Claimant,
 
         
 
         vs.
 
                                                     File No. 828393
 
         ADM,
 
                                                      A P P E A L
 
              Employer,
 
                                                     D E C I S I 0 N
 
         and
 
         
 
         OLD REPUBLIC INSURANCE CO.,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         
 
         1803
 
         
 
              Deputy's award of 40 percent industrial disability was 
 
         affirmed on appeal.  Claimant had a history of upper back 
 
         problems but did not miss work nor require extensive care until 
 
         work injury.  Claimant had disc herniations at two levels and 
 
         fusion surgery.  Potential success of claimant's educational 
 
         pursuits was not a factor to be considered in assessing 
 
         claimant's current industrial disability.
 
         
 
         
 
         
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
                                                
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                    BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         STEVEN W. MINNER,
 
         
 
              Claimant,
 
         
 
         vs.
 
                                                File No. 828393
 
         ADM,
 
                                             A R B I T R A T I O N
 
              Employer,                         D E C I S I O N
 
         
 
         and
 
         
 
         OLD REPUBLIC INSURANCE CO.,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         
 
         
 
                              STATEMENT OF THE CASE
 
         
 
              This is a proceeding in arbitration brought by Steven W. 
 
         Minner, claimant, against ADM Corn Sweetners, employer 
 
         (hereinafter referred to as ADM), and Old Republic Insurance 
 
         Company, insurance carrier, for workers' compensation benefits as 
 
         a result of an alleged injury on June 29, 1986.  On May 2, 1988 a 
 
         hearing was held on claimant's petition and the matter was 
 
         considered fully submitted at the close of this hearing.
 
         
 
              The parties have submitted a prehearing report of contested 
 
         issues and stipulations which was approved and accepted as a part 
 
         of the record of this case at the time of hearing.  Oral 
 
         testimony was received during the hearing only from claimant.  
 
         The exhibits received into the evidence at the hearing are listed 
 
         in the prehearing report.  According to the prehearing report the 
 
         parties have stipulated to the following matters:
 
         
 
              1.  There was an employer-employee relationship between 
 
         claimant and ADM at the time of the alleged injury;
 
         
 
              2.  Claimant's rate of weekly compensation in the event of 
 
         an award of weekly benefits from this proceeding shall be $341.79 
 
         per week;
 
         
 
              3.  If defendants are held liable for the injury, claimant 
 
         is entitled to healing period benefits from July 16, 1986 through 
 
         March 13, 1987;
 
         
 
         
 
              4.  If the injury is found to have caused permanent 
 
         disability, the type of disability is an industrial disability to 
 
         the body as a whole;
 
         
 
              5.  If permanent disability benefits are awarded, they 
 

 
         
 
         
 
         
 
         MINNER V. ADM
 
         PAGE   2
 
         
 
         
 
         should begin as of March 14, 1987; and,
 
         
 
              6.  All requested medical benefits have been or will be paid 
 
         by defendants.
 
         
 
         
 
                                      ISSUES
 
         
 
              The parties submitted the following issues for determination 
 
         in this proceeding:
 
         
 
              I.  Whether claimant received an injury arising out of and 
 
         in the course of his employment;
 
         
 
             II.  Whether there is a causal relationship between the work 
 
         injury and the claimed disability; and,
 
         
 
            III.  The extent of weekly disability benefits to which 
 
         claimant is entitled.
 
         
 
         
 
                             SUMMARY OF THE EVIDENCE
 
         
 
              The following is a summary of evidence presented in this 
 
         case.  For the sake of brevity, only the evidence most pertinent 
 
         to this decision is discussed.  Whether or not specifically 
 
         referred to in this summary, all of the evidence received at the 
 
         hearing was considered in arriving at this decision.  As will be 
 
         the case in any attempted summarization, conclusions about what 
 
         the evidence offered may show are inevitable.  Such conclusions, 
 
         if any, in the following summary should be considered as 
 
         preliminary findings of fact.
 
         
 
              Claimant testified that he worked for ADM from May 7, 1971 
 
         until August 11, 1987 in the corn milling division of ADM Corn 
 
         Sweetners in Clinton, Iowa.  Claimant said that most of the 
 
         mailing processes are automatic but there are frequent breakdowns 
 
         which spills cracked corn onto the floor.  When this occurs the 
 
         wet corn slurry must be scooped off the floor with a large 
 
         aluminum scoop shovel.  Claimant said that this was very heavy 
 
         work and required lifting from 35 to 50 pounds on a regular 
 
         basis.  Claimant stated at hearing that he left his employment at 
 
         ADM, to receive schooling primarily because of his life-long 
 
         hearing loss problem and to change his life direction.  Claimant 
 
         has a congenital 80 percent loss of hearing in the right ear.  
 
         Claimant is currently enrolled in the business department at the 
 
         University of Iowa.  Claimant said that he hopes to graduate in 
 
         December, 1989 with a degree in business marketing.
 
         
 
              The facts surrounding the work injury are not in real 
 
         dispute.  Claimant testified that while shoveling wet slurry corn 
 
         on the alleged date of injury, he felt a sharp pain in his upper 
 
         back and neck.  Claimant described the pain as feeling like a 
 
         needle had been stuck in his neck.  Claimant reported to the 
 
         foreman and to the plant nurse and was sent back to work with an 
 
         ice pack.  Claimant said that he continued to feel a stinging 
 
         sensation in his neck the rest of the day.  The next day claimant 
 
         sought medical attention and was referred to Dr. Roode (first 
 
         name unknown) with complaints of pain and weakness in the right 
 
         arm.  Dr. Roode referred claimant to Dr. Barnes (first name 
 
         unknown).  Dr. Barnes diagnosed a strain of the right trapezius 
 
         and prescribes strengthening exercises with a return to work.  
 
         After becoming alarmed by upper arm weakness and atrophy, 
 

 
         
 
         
 
         
 
         MINNER V. ADM
 
         PAGE   3
 
         
 
         
 
         claimant on his own went to a physical therapy department at a 
 
         local hospital where he had been previously treated for a thumb 
 
         ailment.  These therapists referred claimant to Eugene 
 
         Herzberger, M.D., a board certified neurosurgeon.  After his 
 
         examination on July 15, 1986 and following tests consisting of a 
 
         myelogram and a CT scan, Dr. Herzberger diagnosed that claimant 
 
         suffered from a disc herniation at the C5-6 and C6-7 levels of 
 
         claimant's upper spine.  Dr. Herzberger then performed surgical 
 
         surgery on the spine by removal of the two damaged discs and a 
 
         fusion of the intervertebral spaces.
 
         
 
              Claimant testified that he improved quickly after surgery.  
 
         Claimant said that he regained most of the function of his right 
 
         arm.  Claimant said that he returned to work after Dr. Herzberger 
 
         released him on March 14, 1987.  Claimant said that although the 
 
         work release from Dr. Herzberger contained no specific activity 
 
         restriction, Dr. Herzberger wanted him to return only to light 
 
         duty.  Dr. Herzberger said in his deposition that he knew 
 
         claimant would be compelled to return to heavy work eventually 
 
         but that claimant risked pain in his arms and shoulders when he 
 
         performed such activity because of severe damage to his nerve 
 
         roots subsequent to the surgery.  Claimant stated that he was 
 
         careful when he returned to work and used a smaller shovel in his 
 
         activities.  Dr. Herzberger also states in his deposition that he 
 
         knew claimant was soon going back to school and that he felt it 
 
         was a very good idea.  Dr. Herzberger opined that claimant 
 
         suffered from a 10 percent permanent partial impairment as a 
 
         result of the June 29, 1986 injury.
 
         
 
              At hearing, claimant admitted that he was having back 
 
         problems before June 29, 1986.  According to Dr. herzberger, 
 
         claimant did not mention this to him.  The medical evidence in 
 
         this case indicates that claimant first sought medical attention 
 
         for a lower neck and upper back problem in October, 1976, from 
 
         Richard Droste, D.C.  Upon a diagnosis of lower cervical and 
 
         upper thoracic syndrome, Dr. Droste treated claimant on and off 
 
         with chiropractic adjustments until October, 1985.  Dr. Droste 
 
         stated that he treated claimant for episodes of pain once or 
 
         twice a year.  These episodes would require three to five 
 
         adjustments before the pain was relieved.  According to Dr. 
 
         Droste the problem stemmed from claimant's lifting and shoveling 
 
         at work.  In October, 1984, claimant was also treated for a neck 
 
         problem following a fall at home.  Beginning in January, 1986 
 
         claimant was regularly treated by Elvin Lessenger, D.C., until 
 
         June 21, 1986.  Again claimant's lower cervical and upper back 
 
         was involved.  Claimant had approximately six treatments during 
 
         this time.  Two of these treatments occurred following a lifting 
 
         incident at home on June 19, 1986.  On June 26, 1986, Dr. 
 
         Lessenger sought a second opinion from Francois LeRoux, D.C., as 
 
         claimant was not improving as expected.  Dr. LeRoux treated 
 
         claimant twice on the 26th and 27th of June, only a few days 
 
         before the work injury in this case.
 
         
 
              At hearing claimant explained that although he had regular 
 
         treatment for back problems before June 29, 1986, he felt that 
 
         the problems were not extensive and that he usually recovered 
 
         after a few days.  Claimant attributes most of these back 
 
         problems to his heavy work over the years at ADM although he 
 
         admitted to falling at home in 1984 and lifted at home only 10 
 
         days before the alleged work injury.  Claimant points out that he 
 
         was always able to return to work during these prior episodes of 
 
         back pain even after the June 19, 1986 incident until the 
 
         shoveling incident at the time of the alleged work injury in this 
 

 
         
 
         
 
         
 
         MINNER V. ADM
 
         PAGE   4
 
         
 
         
 
         case.
 
         
 
              Two medical doctors, namely Dr. Herzberger, a board 
 
         certified neurosurgeon, and William Robb, M.D., a board certified 
 
         orthopedic surgeon, rendered causal connection opinions in this 
 
         case.  Dr. Herzberger testified in his deposition that although 
 
         he was unaware of the prior back problems, such prior problems 
 
         did not change his causal connection opinion that the most recent 
 
         event at work was the probable cause of the herniation.  He 
 
         explained that claimant could not have continued activity for 
 
         very long with such a large herniation.
 
         
 
              In his deposition, Dr. Robb stated that he personally 
 
         examined claimant as well as reviewed the records of Dr. 
 
         Herzberger and all of the records of the three chiropractors.  It 
 
         was his opinion that claimant's herniation was a combination of a 
 
         long series of traumas to the two discs over many years beginning 
 
         in 1980.  He stated that neither the incident of June 29 nor the 
 
         lifting incident at home on June 19, 1986 was the cause but both 
 
         were only contributing factors to this continuing injury process.  
 
         He placed some significance on the June 29, 1986 incident by 
 
         stating as follows with reference to shoveling at work:  "The 
 
         mechanics of what he was doing would be more apt to trip it off 
 
         than walking down the street or ... just standing and looking 
 
         straight ahead and lifting."
 
         
 
              Claimant also testified that prior to June 29, 1986 he was 
 
         quite athletic and participated in long distance running and 
 
         physical fitness programs.  He stated that he regularly runs 
 
         today but less extensively and works out with only 25 pound 
 
         weights.
 
         
 
              Claimant testified that his only past employment other than 
 
         at ADM was as a car wash attendant.  Claimant had earlier 
 
         attended college in 1980 with the assistance of a state 
 
         vocational rehabilitation agency.
 
         
 
              Claimant stated at the hearing that he is 38 years of age.  
 
         Jan Paulson of a state rehabilitation agency submitted a letter 
 
         which indicated that a neck problem would be significant for 
 
         claimant who needs to rotate his head to avoid being totally 
 
         dependent upon lip redoing.  However, Dr. Herzberger testified 
 
         that the location of claimant's fusion would not restrict his 
 
         neck rotation, only his flexion and extension movements.
 
         
 
              Claimant's appearance and demeanor at the hearing indicated 
 
         that he was testifying truthfully.
 
         
 
                           APPLICABLE LAW AND ANALYSIS
 
         
 
              1.  Claimant has the burden of proving by a preponderance of 
 
         the evidence that claimant received an injury which arose out of 
 
         and in the course of employment.  The words "out of" refer to the 
 
         cause or source of the injury.  The words "in the course of" 
 
         refer to the time and place and circumstances of the injury.  
 
         See Cedar Rapids Community Sch. v. Cady, 278 N.W.2d 298 (Iowa 
 
         1979); Crowe v. DeSoto Consol. Sch. Dist., 246 Iowa 402, 68 
 
         N.W.2d 63 (1955).  An employer takes an employee subject to any 
 
         active of dormant health impairments, and a work connected injury 
 
         which more than slightly aggravates the condition is considered 
 
         to be a personal injury.  Ziegler v. United States Gypsum Co., 
 
         252 Iowa 613, 620, 106 N.W.2d 591 (1960) and cases cited 
 
         therein.
 

 
         
 
         
 
         
 
         MINNER V. ADM
 
         PAGE   5
 
         
 
         
 
         
 
              It is not necessary that claimant prove his disability 
 
         results from a sudden, unexpected traumatic event.  It is 
 
         sufficient to show that the disability developed gradually or 
 
         progressively from work activity over a period of time.  McKeever 
 
         Custom Cabinets v. Smith, 379 N.W.2d 368 (Iowa 1965).  The 
 
         McKeever court held that the date of injury in gradual injury 
 
         cases is the time when pain prevents the employee from continuing 
 
         to work.  In McKeever the injury date coincides with the time 
 
         claimant was finally compelled to give up his job.
 
         
 
              In the case sub judice, claimant obviously had difficulty 
 
         with reliance upon the opinions of Dr. Herzberger as that doctor 
 
         was not fully aware of claimant's past history of back problems.  
 
         The undersigned would disagree that this is evidence of a 
 
         so-called intentional deception on the part of the claimant.  
 
         Claimant's contention that the incident of June 29, 1986 was 
 
         significantly different than anything he had experience in the 
 
         past is borne out by his actions.  Never before had he missed 
 
         work or reported a work injury and never before had the problem 
 
         been so extensive and lasted so long.
 
         
 
              The views of Dr. Robb, who was fully aware of claimant's 
 
         past history, support the finding of a work injury on June 29, 
 
         1986 under the theory of cumulative trauma.  Although the June 29 
 
         incident was not the only factor which precipitated surgery and 
 
         the impairment, it was a substantial contributing factor.  This 
 
         is ail that is requires to make the disability compensable 
 
         despite a long series of both work related and not work related 
 
         traumas.  Claimant was not absent from work until after the June 
 
         29, 1986 incident and he left work soon thereafter.  If we were 
 
         to place a highly technical application of the McKeever rule to 
 
         the facts of this case, the injury date probably should be a few 
 
         days later when claimant actually left work.  However, the plead 
 
         injury date is very close in time to the actual time of leaving 
 
         work and use of such a date would not be a material deviation 
 
         front the McKeever rule.  Therefore, claimant has shown by a 
 
         preponderance of the evidence a work injury on June 29, 1986.
 
         
 
             II.  The claimant has the burden of proving by a 
 
         preponderance of the evidence that the work injury is a cause of 
 
         the claimed disability.  A disability may be either temporary or 
 
         permanent.  In the case of a claim for temporary disability, the 
 
         claimant must establish that the work injury was a cause of 
 
         absence from work and lost earnings during a period of recovery 
 
         from the injury.  Generally, a claim of permanent disability 
 
         invokes an initial determination of whether the work injury was a 
 
         cause of permanent physical impairment or permanent limitation in 
 
         work activity.  However, in some instances, such as a job 
 
         transfer caused by a work injury, permanent disability benefits 
 
         can be awarded without a showing of a causal connection to a 
 
         physical change of condition.  Blacksmith v. All-American, 
 
         Inc.,Co, 290 N.W.2d, 288 N.W.2d 348, 354 (Iowa 1980); McSpadden 
 
         v. Big Ben Coal Co., 288 N.W. 2d 181 (Iowa 1980).
 
         
 
              The question of causal connection is essentially within the 
 
         domain of expert medical opinion.  Bradshaw v. Iowa Methodist 
 
         Hospital, 251 Iowa 375, 101 N.W.2d 167 (1960).  The opinion of 
 
         experts need not be couched in definite, positive or unequivocal 
 
         language and the expert opinion may be accepted or rejected, in 
 
         whole or in part, by the trier of fact.  Sondag v. Ferris 
 
         Hardware, 220 N.W.2d 903 (Iowa 1974).  The weight to be given to 
 
         such an opinion is for the finder of fact, and that may be 
 

 
         
 
         
 
         
 
         MINNER V. ADM
 
         PAGE   6
 
         
 
         
 
         affected by the completeness of the premise given the expert and 
 
         other surrounding circumstances.  Bodish v. Fischer, Inc., 257 
 
         Iowa 516, 133 N.W.2d 867 (1965).
 
         
 
              Furthermore, if the available expert testimony is 
 
         insufficient alone to support a finding of causal connection, 
 
         such testimony may be coupled with nonexpert testimony to show 
 
         causation and be sufficient to sustain an award.  Giere v. Aase 
 
         Haugen Homes, Inc. 259 Iowa 1065, 146 N W.2d 911, 915 (1966).  
 
         Such evidence does not, however, compel an award as a matter of 
 
         law.  Anderson v. Oscar Mayer & Co., 217 N.W.2d 531, 536 (Iowa 
 
         1974).  To establish compensability the injury need only be a 
 
         significant factor, not be the only factor causing the claimed 
 
         disability.  Blacksmith, 290 N.W.2d 348, 354.  In the case of a 
 
         preexisting condition, an employee is not entitled to recover for 
 
         the results of a preexisting injury or disease but can recover 
 
         for an aggravation thereof which resulted in the disability found 
 
         to exist.  Olson v. Goodyear Service Stores, 255 Iowa 1112, 125 
 
         N.W.2d 251 (1963).
 
         
 
              In the case at bar, the uncontroverted views of Dr. 
 
         Herzberger and Dr. Robb establishes that claimant suffered a 7 to 
 
         10 percent permanent partial impairment to the body as a whole as 
 
         a result of the June 29, 1986 work injury and resulting surgery.
 
         
 
            III.  Claimant must establish by a preponderance of the 
 
         evidence the extent of weekly benefits for permanent disability 
 
         to which claimant is entitled.  As the claimant has shown that 
 

 
         
 
         
 
         
 
         MINNER V. ADM
 
         PAGE   7
 
         
 
         
 
         the work injury was a cause of a permanent physical impairment or 
 
         limitation upon activity involving the body as a whole, the 
 
         degree of permanent disability must be measured pursuant to Iowa 
 
         Code section 85.34(2)(u).  However, unlike scheduled member 
 
         disabilities, the degree of disability under this provision is 
 
         not measured solely by the extent of a functional impairment or 
 
         loss of use of a body member.  A disability to the body as a 
 
         whole or an "industrial disability" is a loss of earning capacity 
 
         resulting from the work injury.  Diederich v. Tri-City Railway 
 
         Co., 219 Iowa 587, 593, 258 N.W. 899 (1935).  A physical 
 
         impairment or restriction on work activity may or may not result 
 
         in such a loss of earning capacity.  The extent to which a work 
 
         injury and a resulting medical condition has resulted in an 
 
         industrial disability is determined from examination of several 
 
         factors.  These factors include the employee's medical condition 
 
         prior to the injury, immediately after the injury and presently; 
 
         the situs of the injury, its severity and the length of healing 
 
         period; the work experience of the employee prior to the injury, 
 
         after the injury and potential for rehabilitation; the employee's 
 
         qualifications intellectually, emotionally and physically; 
 
         earnings prior and subsequent to the injury; age; education; 
 
         motivation; functional impairment as a result of the injury; and 
 
         inability because of the injury to engage in employment for which 
 
         the employee is fitted.  Loss of earnings caused by a job 
 
         transfer for reasons related to the injury is also relevant.  
 
         Olson, 255 Iowa 1112, 1121, 125 N.W.2d 251, 257 (1963). See 
 
         Peterson v. Truck Haven Cafe, Inc., (Appeal Decision, February 
 
         28, 1985).
 
         
 
              Claimant has been given a significant permanent impairment 
 
         rating to the body as a whole.  However, more importantly from an 
 
         industrial disability standpoint are his activity restrictions 
 
         which would restrict the type of work he could perform and affect 
 
         his earning capacity.  What is somewhat unclear in this case is 
 
         claimant's actual functional limitations apart from any 
 
         percentage of impairment.  Dr. Herzberger imposed no specific 
 
         work restrictions.  Claimant testified that Dr. Herzberger was 
 
         aware that he was to return to light duty work.  Claimant also 
 
         testified that he modified his work at ADM after the return to 
 
         work so that he was able to remain on the job.  Dr. Herzberger 
 
         indicates that claimant was at risk of reinjury and pain from 
 
         heavy work due to the damage to his nerve roots.  Consequently, 
 
         Dr. Herzberger encouraged claimant's decision to seek further 
 
         schooling in an effort to change vocations.  Such evidence 
 
         supports a finding that claimant probably could but should not 
 
         return to heavy duty work in the future to avoid back pain and 
 
         reinjury.
 
         
 
              Claimant is 38 years of age and should be at the prime of 
 
         his work career.  However, due to the work injury he is now 
 
         attempting to launch a new career late in life which may or may 
 
         not be successful.
 
         
 
              At the present time his economic future is highly uncertain 
 
         and depends largely upon his ability to retrain himself.  
 
         Claimant is motivated to better himself and his attending 
 
         college.  Defendants argue that it is likely that claimant's 
 
         earning capacity will increase upon completion of his college 
 
         education.  However, this agency has decided that an assessment 
 
         of future success of retraining is improper in an industrial 
 
         disability case.  Such an assessment is too speculative.  It is 
 
         only claimant's present earning capacity which is measured in 
 
         awarding permanent disability benefits.  At this point in time, 
 

 
         
 
         
 
         
 
         MINNER V. ADM
 
         PAGE   8
 
         
 
         
 
         it is too much to assume that claimant will complete college and 
 
         obtain suitable high paying employment upon a completion of this 
 
         education.  See Stewart v. Crouse Cartage Co., Appeal Decision 
 
         filed February 20, 1987; Umphress v. Armstrong Rubber Co., Appeal 
 
         Decision filed August 27, 1987.  Therefore, claimant's present 
 
         industrial disability will be fully compensated.  Certainly if 
 
         claimant's educational efforts eventually prove successful, this 
 
         agency is available upon proper petition by defendants to review 
 
         this award at a later time.
 
         
 
              After examination of all the factors, it is found as a 
 
         matter of fact that claimant has suffered a 40 percent loss of 
 
         earning capacity from his work injury.  Based upon such a 
 
         finding, claimant is entitled as a matter of law to 200 weeks of 
 
         permanent partial disability benefits under Iowa Code section 
 
         85.34(2)(u) which is 40 percent of 500 weeks, the maximum 
 
         allowable number of weeks for an injury to the body as a whole in 
 
         that subsection.
 
         
 
              Claimant is entitlement to healing period benefits as 
 
         resolved by stipulation of the parties.
 
         
 
         
 
                                 FINDINGS OF FACT
 
         
 
              1.  Claimant was a credible witness.
 
         
 
              2.  On June 29, 1986 claimant suffered an injury to his neck 
 
         which arose out of and in the course of his employment with ADM. 
 
          The injury consisted of a herniated disc at two levels in the 
 
         cervical spine.  The events of June 29, 1985, consisting of a 
 
         sharp pain upon shoveling wet cracked corn, was a combination of 
 
         a long series of minor traumas and cumulative injuries over 
 
         several years dating back to 1980.  These injuries involved the 
 
         neck and upper back and right arm, most of which were a result of 
 
         lifting at ADM, along with other non-work related injuries such 
 
         as a fall at home in 1984 and a lifting incident on June 19, 
 
         1986.  However, at no time prior to June 29, 1986 did any injury 
 
         cause a loss of work or a substantial reduction in functional 
 
         activity.  The shovel incident on June 29, 1986 was a trigger and 
 
         a substantial precipitating factor leading to the need for fusion 
 
         surgery to relieve pain and regain loss of function to the neck 
 
         and to the right upper extremity.
 
         
 
              3.  The work injury of June 29, 1986 was a cause of a seven 
 
         to ten percent permanent partial impairment to the body as a 
 
         whole and of permanent restrictions consisting of an avoidance of 
 
         repetitive heavy lifting.
 
         
 
              4.  The work injury of June 29, 1986 and resulting permanent 
 
         partial impairment was the cause of a 40 percent loss of earning 
 
         capacity.  Claimant is 38 years of age and appears to possess 
 
         above average intelligence.  Although claimant returned to work 
 
         and was able to perform the work, claimant had to modify his work 
 
         activities to avoid pain and continue working.  Given his fusion 
 
         surgery, claimant should restrict his future employment to light 
 
         work to avoid risk of reinjury and recurrence of pain due to 
 
         permanent nerve damage.  Claimant is currently unemployed but is 
 
         attending college in an attempt to retrain himself.  He expects 
 
         to graduate with a business degree in December, 1989 but his 
 
         graduation and success in locating suitable work is not assured.
 
         
 
         
 

 
         
 
         
 
         
 
         MINNER V. ADM
 
         PAGE   9
 
         
 
         
 
                                CONCLUSIONS OF LAW
 
         
 
              Claimant has established by a preponderance of the evidence 
 
         entitlement to the permanent partial disability benefits awarded 
 
         below.
 
         
 
         
 
                                      ORDER
 
         
 
              1.  Defendants shall pay to claimant two hundred (200) weeks 
 
         of permanent partial disability benefits at the rate of three 
 
         hundred forty-one and 79/100 dollars ($341.79) per week from 
 
         March 14, 1987.
 
         
 
              2.  As stipulated, defendants shall pay to claimant healing 
 
         period benefits from June 16, 1986 through March 13, 1987 at the 
 
         rate of three hundred forty-one and 79 dollars ($341.79) per 
 
         week.
 
         
 
              3.  Defendants shall pay accrued weekly benefits in a lump 
 
         sum and shall receive a credit as stipulated in the prehearing 
 
         report for past payment of benefits.
 
         
 
              4.  Defendants shall pay interest on weekly benefits awarded 
 
         herein as set forth in Iowa Code section 85.30.
 
         
 
              5.  Defendants shall pay the costs of this action pursuant 
 
         to Division of Industrial Services Rule 343-4.33.
 
         
 
              6.  Defendants shall file activity reports upon payment of 
 
         this award as requested by this agency pursuant to Division of 
 
         industrial Services 343-3.1.
 
         
 
         
 
              Signed and filed this 30th day of August, 1988.
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
                                       LARRY P. WALSHIRE
 
                                       DEPUTY INDUSTRIAL COMMISSIONER
 
         
 
         
 
         Copies To:
 
         
 
         Mr. John J. Wolfe, Jr.
 
         Attorney at Law
 
         230 4th Ave. S.
 
         Clinton, Iowa 52732
 
         
 
         Mr. Matthew J. Brandes
 
         Attorney at Law
 
         1200 Merchants National Bank Bldg.
 
         Cedar Rapids, Iowa 52401
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                                1803
 
                                                Filed August 30, 1988
 
                                                LARRY P. WALSHIRE
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         STEVEN W. MINNER,
 
         
 
              Claimant,
 
         
 
         vs.
 
                                                    File No. 828393
 
         ADM,
 
                                                 A R B I T R A T I O N
 
              Employer,
 
                                                    D E C I S I O N
 
         
 
         OLD REPUBLIC INSURANCE CO.,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         
 
         1803
 
         
 
              Claimant awarded a 40 percent industrial disability.  It was 
 
         held pursuant to agency precedent that speculation as to the 
 
         success of claimants educational pursuits was not a factor to be 
 
         considered in assessing claimant's current industrial 
 
         disability.
 
         
 
 
         
 
 
 
 
 
 
 
 
 
 
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         JOHN DALE SHEEHY,
 
          
 
               Claimant,
 
                                            File No. 828483
 
          VS.
 
          
 
          DUBUQUELAND DRYWALL, INC.,             A R B I T R A T I 0 N
 
          
 
               Employer,                      D E C I S I 0 N
 
          
 
          
 
          and
 
          
 
          AETNA CASUALTY & SURETY,
 
          
 
               Insurance Carrier,
 
               Defendants.
 
         
 
         
 
                              STATEMENT OF THE CASE
 
                                        
 
              This is a proceeding in arbitration brought by the claimant, 
 
         John Dale Sheehy, against his employer, Dubuqueland Drywall, 
 
         Inc., and its insurance carrier, Aetna Casualty & Surety, to 
 
         recover benefits as a result of an injury sustained on July 17, 
 
         1986.  This matter came on for hearing before the undersigned 
 
         deputy industrial commissioner in Dubuque, Iowa, on December 1, 
 
         1988.  The record in the proceeding consists of the testimony of 
 
         the claimant, John Dale Sheehy, and of joint exhibits A through 
 
         0, and defendants' exhibit 1.
 
         
 
              Pursuant to the prehearing report, the parties stipulated 
 
         that an employer-employee relationship exists; the injury arose 
 
         out of and in the course of employment; if an injury is found to 
 
         be causally connected, it is stipulated to be an industrial 
 
         disability to the body as a whole; that the date of injury is 
 
         July 17, 1986; that all requested medical benefits have been 
 
         paid; and that there will be credit for benefits already paid for 
 
         10 3/7 week healing period totaling $3,152.27, and 25 weeks of 
 
         permanent partial disability benefits totaling $7,556.50 which 
 
         have been based on a rate of $302.26 although as shown 
 
         thereafter, the rate is in dispute.
 
         
 
                                      ISSUES
 
                                        
 
              The issues remaining for resolution are:
 
         
 
              1. Whether there is a causal connection to the disability;
 
         
 
              2. The extent of temporary total disability/healing period.
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         SHEEHY V. DUBUQUELAND DRYWALL, INC.
 
         Page 2
 
         
 
         
 
              3. The extent of any permanent partial disability and the 
 
         commencement date; and,.
 
         
 
              4. The rate of compensation (the dispute involves the 
 
         determination of gross wages upon which to apply the rate).
 
         
 
                              REVIEW OF THE EVIDENCE
 
                                        
 
              Claimant testified that he was injured on July 17, 1986 
 
         while employed by defendant.  Claimant indicated that while 
 
         claimant and a co-worker were lifting 240 pounds of drywall 
 
         sheets off defendant's forklift, claimant felt a tear and burning 
 
         sensation in his back.  Claimant said that the next morning he 
 
         could not get out of bed and had severe pain in his low back.  He 
 
         then went to the Mercy Hospital emergency room that day.
 
         
 
              Claimant stated he was off work because of this injury from 
 
         July 18, 1986 through October 6, 1986 when Dr. Cairns released 
 
         claimant for light duty work with restrictions.  The claimant 
 
         testified that he was also off work from April 3, 1987 through 
 
         sometime in September 1987 due to a layoff.  Claimant testified 
 
         that he then went to work for a full service contractor doing 
 
         more variety of construction work than with defendant.  Claimant 
 
         stated he still had pains and was not able to do much bending 
 
         upon his return to work, but acknowledged that he was working as 
 
         much, as hard, and even doing more variety of construction work 
 
         since his return to work in 1987 to the October 1988 injury.
 
         
 
              Claimant testified that he was allowed to use some of the 
 
         employer's tools and materials on other types of jobs not 
 
         connected with defendant after his regular daily hours of 
 
         employment with defendant.' Claimant estimated the value of the 
 
         materials used at $140 and the use of the tools at $30 during the 
 
         seven months prior to the injury on July 17, 1987.
 
         
 
              Claimant acknowledged that his typical day before his 
 
         October 1988 injury and since he returned to work in September 
 
         1987 involved "significant bending and twisting, but he was in 
 
         pretty good shape at the end of the day."
 
         
 
              In October 1988, claimant said that he was injured and has 
 
         filed a workers' compensation action and is receiving workers' 
 
         compensation benefits through his employment with Tri-North 
 
         Builders.  Claimant said this new injury is also in the low back 
 
         but to a different disc.  Claimant is not presently working and 
 
         hasn't since this new October 1988 injury.  Claimant has been 
 
         paid at the rate of $302.26 for 10 3/7 weeks healing period 
 
         resulting from his July 17, 1980 injury amounting to $3,152.27, 
 
         and 25 weeks of permanent partial disability amounting to 
 
         $7,556.50.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         
 
         
 
         SHEEHY V. DUBUQUELAND DRYWALL, INC.
 
         Page 3
 
         
 
         
 
              R.Scott Cairns, M.,D.,.first treated claimant from July 21, 
 
         1986 until July 7, 1987.  Dr. Cairns stated that the findings 
 
         upon which he based claimant's rating of impairment at 5 percent 
 
         were "he had objective evidence of mechanical difficulties in his 
 
         back, and I have evidence of sciatic nerve irritation, and with 
 
         the passage of time I have developed radiological findings of 
 
         deterioration of one of the disks and measurable atrophy were the 
 
         permanency findings upon which I based my determination."  He 
 
         opined, "I think more likely the injury was an injury to the 
 
         disk, the L-4, 5 disks." Cairns opined the condition of claimant 
 
         was caused by the injury of July 17, 1986.  Dr. Cairns couldn't 
 
         recall but he thought he eventually lifted the weight 
 
         restrictions but did not have that reflected in his notes.  Dr. 
 
         Cairns testified that:
 
         
 
              Certainly people who have had a disk injury, I would 
 
              generally tell them to ' avoid heavy lifting on a permanent 
 
              basis, but most employers would not be very happy taking 
 
              someone back who has some specific restrictions placed on 
 
              them on any permanent basis, so I don't know what I can 
 
              really actually testify to exactly what I did in this case.
 
              
 
         (Cairns Deposition; Joint Exhibit N, page 10)
 
         
 
              Dr. Cairns said by heavy lifting, he meant "to limit their 
 
         lifting to fifty pounds or less." The doctor recommended that 
 
         claimant "avoid occupations which require repetitive bending, 
 
         twisting or lifting" and that these recommendations be permanent.
 
         
 
                           APPLICABLE LAW AND ANALYSIS
 
                                        
 
              Iowa Code section 85.34(l) provides that if an employee has 
 
         suffered a personal injury causing permanent partial disability, 
 
         the employer shall pay compensation for a healing period from the 
 
         day of the injury until (1) the employee returns to work; or (2) 
 
         it is medically indicated that significant improvement from the 
 
         injury is not anticipated; or (3) until the employee is medically 
 
         capable of returning to substantially similar employment.
 
         
 
              By the very meaning of the phrase, a person with a 
 
              "permanent disability" can never return to the same physical 
 
              condition he or she had prior to the injury .... See, 2 A. 
 
              Larson, The Law of Workmen's Compensation section 57.12 
 
              (1981).  The healing period may be characterized as that 
 
              period during which there is reasonable expectation of 
 
              improvement of the disabling condition," and ends when 
 
              maximum medical improvement is reached.  Boyd v. Hudson Pulp 
 
              & Paper Corp., 177 So.2d 331, 330 (Fla.1965). That is, it is 
 
              the period "from the time of the injury until the employee 
 
              is as far restored as the permanent
 

 
              
 
 
 
 
 
 
 
 
 
 
 
              
 
              
 
              
 
         SHEEHY V. DUBUQUELAND DRYWALL, INC.
 
         Page 4
 
         
 
         
 
              character of his injury will permit.  "Winn Drilling Company 
 
              v. Industrial Commissioner, 32 Ill.2d 144, 145-6, 203 N.E.2d 
 
              904,905-6 (1965).  See also W. Schneider, Schneider's 
 
              Workman's Compensation, section 2308 (1957).  Thus, the 
 
              healing period generally terminates "at the time the 
 
              attending physician determines that the employee has 
 
              recovered as far as possible from the effects of the injury.  
 
              Winn, 203 N.E. at 906 .
 
         
 
         Armstrong Tire & Rubber Co. v. Kubli, 312 N.W.2d 60, 65 (Iowa 
 
         1981).
 
         
 
              Iowa Code section 85.34(2) provides that compensation for 
 
         permanent partial disability shall begin at the termination of 
 
         the healing period.  Iowa Code section 85.34(2)"u" provides that 
 
         compensation for a nonscheduled or body as a whole injury shall 
 
         be paid in relation to 500 weeks that the disability bears to the 
 
         body as a whole.
 
         
 
              Claimant was off work from the July 17, 1986 injury from 
 
         July 18, 1986 through October 6, 1986 when he returned to light 
 
         duty and defendants paid claimant 10 3/7 weeks of healing period 
 
         benefits amounting to $3,152.27.
 
         
 
              There is a dispute as to the period of time between April 3, 
 
         1987 to sometime in September 1987 in which the claimant seeks a 
 
         second healing period.  The claimant alleges that the employer 
 
         laid the claimant off because the defendants heard claimant was 
 
         going to file a claim for workers' compensation benefits.  This 
 
         evidence is not only weak hearsay, but, in fact, claimant was 
 
         able to work and had been released by Dr. Cairns for light work 
 
         on September 22, 1986.  Claimant had gone back to work and was 
 
         actively working again for defendant on October 6, 1986 until his 
 
         layoff in April 1987.
 
         
 
              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).
 
         
 
              As a claimant has an impairment to the body as a whole, an 
 
         industrial disability has been sustained.  Industrial disability 
 
         was defined in Diederich v. Tri-City Railway Co., 219 Iowa 587, 
 
         593, 258 N.W. 899, 902 (1935) as follows: "It is therefore plain 
 
         that the legislature intended the term 'disability' to mean 
 
         'industrial disability' or loss of earning capacity and not a 
 
         mere 'functional disability' to be computed in the terms of 
 
         percentages of the total physical and mental ability of a normal 
 
         man."
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              The opinion of the supreme court in Olson v. Goodyear 
 
         Service Stores, 255 Iowa 1112, 125 N.W.2d 251 (1963) at 1121,     
 
         , cited with approval a decision of the industrial commissioner
 
         
 
         
 
         
 
         SHEEHY V. DUBUQUELAND DRYWALL, INC.
 
         Page 5
 
         
 
         
 
         for the following propcsition:
 
         
 
              Disability * * * as defined by the Compensation Act means 
 
              industrial disability, although functional disability is an 
 
              element to be consid-ered . . . In determining industrial 
 
              disability, consideration may be given to the injured 
 
              employee's age, education, qualifications experience and his 
 
              inability, because of the injury, to engage in employment 
 
              for which he is fitted. * * * *
 
         
 
         
 
              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 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
 
         
 
         
 
         
 
         SHEEHY V. DUBUQUELAND DRYWALL, INC.
 
         Page 6
 
         
 
         
 
         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).
 
         
 
              Dr. Cairns determined claimant had a 5 percent impairment to 
 
         the body as a whole.  Claimant is a 32 year old high school 
 
         graduate whose employment over the years since graduation has 
 
         been in the construction field.  He is a carpenter and drywaller 
 
         by trade.  He also has performed his trade as a self-employed 
 
         person.  During some of his eleven years of employment with the 
 
         defendant, claimant did odd jobs in his field after his normal 
 
         workday hours with the defendant.
 
         
 
              When Dr. Cairns released claimant on September 22, 1986 for 
 
         light duty, with a 50 pound or less weight restriction, claimant 
 
         went back to work and discovered he was able to lift 60 pounds 
 
         which was one-half of a normal piece of sheetrock drywall.  Prior 
 
         to his injury, he could lift one piece of sheetrock weighing 120 
 
         pounds.  Claimant's weekly gross earnings were similar to his 
 
         earnings prior to his injury.
 
         
 
              Dr. Cairns testified that claimant should avoid heavy 
 
         lifting and limit his lifting to 50 pounds or less and avoid 
 
         occupations which require repetitive bending, twisting or 
 
         lifting, on a permanent basis.
 
         
 
              The claimant did in fact return to an occupation with 
 
         another employer which involved the same type of work claimant 
 
         performed for defendant, plus more variety in carpentry 
 
         construction.  Claimant performed his work until he was again 
 
         injured on October 13, 1988 and has not worked since this date.
 
         
 
              Taking all the evidence into consideration,  claimant  has 
 
         an industrial disability in the amount of 20 percent.  Claimant's 
 
         healing period is July 18, 1986 through October 6, 1986.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              Claimant has not carried his burden of proof that there was 
 
         sufficient other monetary income or its equivalent received from 
 
         defendant employer that would increase the rate of $302.26. The 
 
         parties agreed that notwithstanding this dispute, the amount in 
 
         question would be diminutive for the most part.
 
         
 
         
 
         
 
         SHEEHY V. DUBUQUELAND DRYWALL, INC.
 
         Page 7
 
         
 
         
 
                                 FINDINGS OF FACT
 
                                        
 
              1.  Claimant was injured while.working for defendant 
 
         employer on July 17, 1986.
 
         
 
              2.  As a result of his July 17, 1986 injury, claimant has a 
 
         permanent impairment.
 
         
 
              3.  Claimant has incurred a loss of earning capacity of 20 
 
         percent as a result of his injury.
 
         
 
              4.  Claimant's healing period ended when he returned to work 
 
         on October 7, 1986.
 
         
 
              5.  The weekly benefit rate is $302.26.
 
         
 
                                CONCLUSIONS OF LAW
 
                                        
 
              THEREFORE, it is concluded:
 
         
 
              Claimant's injury of July 17, 1986 arose out of and in the 
 
         course of his employment.
 
         
 
              Claimant has sustained an industrial disability of 20 
 
         percent to the body as a whole as a result of his injury of July 
 
         17, 1986.
 
         
 
              Claimant's healing period ended October 6, 1986.
 
         
 
              Claimant is entitled to healing period benefits for the 
 
         period commencing July 18, 1986 through October 6, 1986.
 
         
 
                                      ORDER
 
                                        
 
              THEREFORE, it is ordered:
 
         
 
              Defendants shall pay claimant eleven and four-sevenths (11 
 
         4/7) weeks of healing period benefits at the rate of three 
 
         hundred two and 26/100 dollars per week.
 
         
 
              Defendant shall pay claimant one hundred (100) weeks of 
 
         permanent partial disability benefits at the rate of three 
 
         hundred two and 26/100 dollars ($302.26) per week from October 7, 
 
         1986.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              Defendants shall be given credit for ten and three-sevenths 
 
         (10 3/7) weeks of healing period benefits for the period July 18, 
 
         1986 through September 28, 1986 in the amount of three thousand 
 
         one hundred fifty-two and 27/100 dollars ($3,152.27) and 
 
         twenty-five (25) weeks of permanent partial disability in the 
 
         total amount of seven thousand five hundred fifty-six and 30/100 
 
         ($7,556.30) already paid,
 
         
 
         
 
         
 
         SHEEHY V. DUBUQUELAND DRYWALL, INC.
 
         Page  8
 
         
 
         
 
              Defendants shall pay medical travel expense reimbursement in 
 
         the amount of six and 16/100 dollars ($6.16).
 
         
 
              Defendants shall pay the costs of this action pursuant to 
 
         Division of Industrial Services Rule 343-4.33.
 
         
 
              Defendants shall file an activity report upon payment of 
 
         this award as required by this agency pursuant to Division of 
 
         Industrial Services Rule 343-3.1.
 
         
 
              Signed and filed this 14th day of February, 1989.
 
         
 
         
 
         
 
         
 
                                         BERNARD J. O'MALLEY
 
                                         DEPUTY INDUSTRIAL COMMISSIONER
 
          
 
          Copies to:
 
          
 
          Mr. Francis J. Lange
 
          Mr. Paul J. Kaufman
 
          Attorneys at Law
 
          750 Cycare Plaza
 
          Dubuque, IA 52001
 
          
 
          Mr. Larry L. Shepler
 
          Attorney at Law
 
          Ste 102, Executive Sq.
 
          400 Main St
 
          Davenport, IA 52801
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
 
         
 
 
 
 
 
 
 
 
 
 
 
                                           1802; 1803
 
                                            Filed February 14, 1989
 
                                            Bernard J. O'Malley
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         JOHN DALE SHEEHY,
 
          
 
               Claimant,
 
                                            File No. 828483
 
          VS.
 
          
 
          DUBUQUELAND DRYWALL, INC.,             A R B I T R A T I 0 N
 
          
 
               Employer,                       D E C I S I 0 N
 
          
 
          and
 
          
 
          AETNA CASUALTY & SURETY,
 
          
 
               Insurance Carrier,
 
               Defendants.
 
         
 
         
 
         1802; 1803
 
         
 
              Claimant injured his back while lifting 240 pounds of 
 
         drywall sheets with his coworker.
 
         
 
              Doctor opined a 5% impairment to the body as a whole and 
 
         recommended avoiding heavy lifting (50 pounds or less) and avoid 
 
         occupations which require repetitive bending, twisting or lifting 
 
         on a permanent basis.
 
         
 
              Twenty percent disability found.
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            DANIEL ARNEY,                 :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :         File No. 828511
 
            FISHER CONTROLS,              :
 
                                          :      A R B I T R A T I O N
 
                 Employer,                :
 
                                          :         D E C I S I O N
 
            and                           :
 
                                          :
 
            CIGNA,                        :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ____________________________________________________________
 
            
 
                              STATEMENT OF THE CASE
 
            
 
                 This is a proceeding in arbitration upon claimant's 
 
            petition filed June 16, 1988.  Claimant allegedly sustained 
 
            an injury to his back on October 17, 1985 while picking up 
 
            leaves at work.  He now seeks benefits under the Iowa 
 
            Workers' Compensation Act from defendant employer Fisher 
 
            Controls and defendant insurance carrier Cigna.
 
            
 
                 Hearing on the arbitration petition was had in Des 
 
            Moines, Iowa, on July 21, 1989.  The record consists of 
 
            claimant's exhibit 1, joint exhibits 1 through 19 and the 
 
            testimony of the following witnesses:  claimant, Colleen 
 
            Arney, James Arney, Gary Howard, Camella Smith and Larry 
 
            Jones.
 
            
 
                                      issues
 
            
 
                 Pursuant to the prehearing report, the parties have 
 
            stipulated:  that an employment relationship existed between 
 
            claimant and Fisher Controls at the time of the alleged 
 
            injury; that if claimant has sustained permanent disability 
 
            from a work injury, it is an industrial disability to the 
 
            body as a whole and the commencement date for permanent 
 
            partial disability benefits is October 21, 1986; that the 
 
            appropriate rate of weekly compensation is $374.59; that 
 
            defendants are entitled to credit under Iowa Code section 
 
            85.38(2) in the sum of $1,873.30.
 
            
 
                 Issues presented for resolution include:  whether the 
 
            claimant sustained an injury arising out of and in the 
 
            course of his employment on October 17, 1985; whether the 
 
            alleged injury caused permanent or temporary disability and 
 
            the extent of each; the extent of claimant's entitlement to 
 
            compensation for medical benefits; whether this claim is 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            
 
            
 
            barred under affirmative defenses set forth under Iowa Code 
 
            sections 85.23 and 85.26; taxation of costs.
 
            
 
                                 findings of fact
 
            
 
                 On October 17, 1985, claimant was working in a boiler 
 
            house.  Some of his duties included picking up leaves in a 
 
            small bucket.  Claimant has a history of back complaints for 
 
            which he has sought treatment.  Claimant has a history of 
 
            surgery to the cervical spine.  In any event, while cleaning 
 
            leaves, claimant apparently suffered some sort of an 
 
            incident that he described as involving a sharp pain like an 
 
            ice pick in his back.  Although claimant did not immediately 
 
            report the incident, he advised company nurse Camella Smith 
 
            on November 14, 1985, that he had sustained such an incident 
 
            on October 17.  Ms. Smith agreed in her testimony that she 
 
            was aware on this date that the incident occurred while 
 
            claimant was at work.
 
            
 
                 Defendant's absentee records reflect that claimant was 
 
            .3 of an hour tardy on October 18 and absent on October 23 
 
            and 30, November 2 (4 hours), and November 12, and again on 
 
            December 14 (3.8 hours), and December 18, 1985, in addition 
 
            to numerous occasions through July 15, 1986.  Claimant 
 
            alleges that most of these absences were due to back pain he 
 
            relates to the leaf-gathering incident, but conceded that he 
 
            gave different excuses when calling in sick.
 
            
 
                 Claimant was treated by Joel A. Beane, D.C., with 
 
            spinal adjustments on October 18 and November 13 and 22, 
 
            1985.  Although Dr. Beane's chart notes of October 18, 1985 
 
            do not mention any work incident, subsequent entries of 
 
            November 29, 1985 and January 22, 1986, indicate that Dr. 
 
            Beane was aware of the leaf incident at the time.  Claimant 
 
            advised his wife when he returned home on October 17 that he 
 
            had injured his back while bending and lifting leaves (as 
 
            per the testimony of Colleen Arney, although she may have 
 
            actually been told on the following day since they worked 
 
            different shifts).
 
            
 
                 Based on the foregoing, it is found that claimant did 
 
            suffer some nature of incident involving sharp pain to his 
 
            back while picking up leaves in the course of his employment 
 
            with Fisher Controls on October 17, 1985.
 
            
 
                 Claimant saw Robert A. Hayne, M.D., on July 15, 1986.  
 
            Dr. Hayne is a board-certified neurosurgeon and testified by 
 
            deposition taken December 3, 1988.  Claimant presented with 
 
            a serious back problem which resulted in a lumbar 
 
            laminectomy on July 31, 1986.  However, claimant did not 
 
            mention the October incident in his history, complaining to 
 
            Dr. Hayne only of recurrent pain with symptoms on this 
 
            occasion dating back three weeks to when he was carrying a 
 
            tractor part with four other people, following which pain 
 
            radiated to the back of his upper thighs and persisted.
 
            
 
                 Dr. Hayne opined that claimant's current condition of 
 
            disability resulting from back surgery was causally related 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            
 
            
 
            to the incident of carrying a tractor part, that opinion 
 
            being within a reasonable degree of medical certainty.  Dr. 
 
            Hayne specified that claimant did not give history of the 
 
            leaf incident in July, 1986.
 
            
 
                 Dr. Hayne indicated that his opinion as to causation 
 
            was based on the history of July 15 and the "absence at that 
 
            time of any history of strain of his back other than that."  
 
            He thought it was significant that claimant had sustained 
 
            such a severe herniation because, given that severity, it 
 
            was natural that the patient would seek medical treatment in 
 
            a short period after onset of pain (this being some nine 
 
            months after the work incident).  It was only in September, 
 
            1986 that claimant contacted Dr. Hayne to allege that pain 
 
            developed during the leaf incident, but even then this was 
 
            described as occurring about three weeks before the tractor 
 
            lifting incident.
 
            
 
                 A review of Dr. Beane's notes did not convince Dr. 
 
            Hayne otherwise.  Rather, he found the history of frequent 
 
            treatments in 1986 would confirm his own theory of 
 
            causation.
 
            
 
                 Claimant testified that he discussed his history in 
 
            depth with Dr. Hayne, agreeing that he had lifted a plastic 
 
            sprayer tank at Gary Howard's shop, but denied that he had 
 
            actually hurt himself on this occasion, indicating he felt 
 
            no pain when he actually lifted a sprayer tank (weighing 
 
            some 75-100 pounds) in conjunction with three or four other 
 
            people.  Similarly, Gary Howard and James Arney testified 
 
            that, while claimant carried a sprayer tank with three or 
 
            four others, he did not then give any indication that he had 
 
            hurt himself and Colleen Arney claimed never to have heard 
 
            of that incident.
 
            
 
                 What remains unexplained is the question of why 
 
            claimant, after having suffered a back injury severe enough 
 
            to require major surgery, gave Dr. Hayne a history of 
 
            injuring himself while carrying a tractor part (at a time 
 
            consistent with when he did carry the sprayer tank) which he 
 
            now claims resulted in no pain or injury at all, yet did not 
 
            mention the work incident which he now claims caused his 
 
            injury.  The clear answer to this observer is that claimant 
 
            in fact injured himself while lifting a tractor part or 
 
            sprayer (whether he did or did not contemporaneously advise 
 
            his friend, brother and wife) as he advised Dr. Hayne.  Any 
 
            testimony now to the contrary is without credibility.  The 
 
            seriousness of his injury and the likelihood that such an 
 
            individual would seek prompt treatment is consistent with 
 
            the history claimant gave and inconsistent with the claim 
 
            that the injury actually occurred some nine months earlier 
 
            (and not reported to the employer until the next month).
 
            
 
                                conclusions of law
 
            
 
                 Claimant has the burden of proving by a preponderance 
 
            of the evidence that he received an injury on October 17, 
 
            1985 which arose out of and in the course of his employment. 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            
 
            
 
            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 injury of October 17, 
 
            1985 is causally related to the disability on which he now 
 
            bases his claim.  Bodish v. Fischer, Inc., 257 Iowa 516, 133 
 
            N.W.2d 867 (1965).  Lindahl v. L. O. Boggs, 236 Iowa 296, 18 
 
            N.W.2d 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).
 
            
 
                 It has been found as fact that claimant suffered some 
 
            sort of an incident on October 17, 1985.  However, due to 
 
            his lack of credibility as a witness, he has failed to 
 
            establish any causal nexus between that incident and any 
 
            temporary or permanent disability.  The only medical opinion 
 
            as to causation is that claimant's condition of disability 
 
            relates to an incident when he lifted a tractor part (or, as 
 
            claimant says, perhaps a sprayer tank) several weeks before 
 
            July 15, 1986.  Whatever incident claimant may have 
 
            sustained in October 1985 has not been proven to be a 
 
            compensable work injury.  Claimant has not shown either 
 
            temporary or permanent disability causally related to that 
 
            incident.
 
            
 
                 Defendants have also asserted affirmative defenses 
 
            under Iowa Code sections 85.23 and 85.26.  Although 
 
            unnecessary to the resolution of this matter, those defenses 
 
            will be briefly discussed for the parties' benefit.
 
            
 
                 Under Iowa Code section 85.23, notice of the occurrence 
 
            of an injury must be given within 90 days from the date of 
 
            that injury.  Although claimant did not allege at the time 
 
            that he had sustained a compensable injury, it is clear that 
 
            he gave notice of the work incident to Camella Smith on 
 
            November 14, 1985.  This constitutes sufficient notice under 
 
            section 85.23.
 
            
 
                 Iowa Code section 85.26 requires commencement of an 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            
 
            
 
            action based on a work injury within two years from the date 
 
            of the occurrence.  Since this action was commenced on June 
 
            16, 1988, it is clearly untimely.  However, the "discovery 
 
            rule" has been adopted with respect to the two-year statute 
 
            of limitations in workers' compensation cases.  Orr v. Lewis 
 
            Cent. School Dist., 298 N.W.2d 256 (Iowa 1988).  That is, 
 
            the two-year period in which to file a claim does not start 
 
            running until the worker should know his injury is both 
 
            serious and work connected; in making that determination, 
 
            the agency should apply a reasonable-person standard and 
 
            take into account the intelligence and education of the 
 
            claimant.  Robinson v. Dep't of Transp., 296 N.W.2d 809 
 
            (Iowa 1980).  Claimant attributes much lost work to the 
 
            claimed back injury.  His wife testified that claimant 
 
            constantly complained and was so severely impaired that he 
 
            would even fall to the ground if he sneezed.  If these 
 
            allegations were to be accepted as factual, any reasonable 
 
            person of at least average intelligence (claimant seemed to 
 
            be of no less) would believe the injury to be serious.  
 
            Since this was a traumatic incident that occurred at work, a 
 
            reasonable person would also conclude it was work connected.  
 
            Therefore, the discovery rule is not applicable to avail 
 
            claimant.  The two-year bar under section 85.26 is a valid 
 
            defense.
 
            
 
                                      order
 
            
 
                 THEREFORE, IT IS ORDERED:
 
            
 
                 Claimant shall take nothing from this proceeding.
 
            
 
                 Costs of this action shall be assessed to claimant 
 
            pursuant to Division of Industrial Services Rule 343-4.33.
 
            
 
                 Signed and filed this ______ day of ____________, 1990.
 
            
 
                 
 
            
 
                 
 
                 
 
                                          ______________________________
 
                                          DAVID RASEY
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr. Theodore R. Hoglan
 
            Attorney at Law
 
            34 South First Avenue
 
            Marshalltown, Iowa  50158
 
            
 
            Mr. E. J. Giovannetti
 
            Attorney at Law
 
            Suite 111, Terrace Center
 
            2700 Grand Avenue
 
            Des Moines, Iowa  50312
 
            
 
            
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                               1402.30
 
                                               Filed August 20, 1990
 
                                               DAVID RASEY
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            DANIEL ARNEY,                 :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :         File No. 828511
 
            FISHER CONTROLS,              :
 
                                          :      A R B I T R A T I O N
 
                 Employer,                :
 
                                          :         D E C I S I O N
 
            and                           :
 
                                          :
 
            CIGNA,                        :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ____________________________________________________________
 
            
 
            1402.30
 
            Claimant had a minor lifting incident at work, but lost no 
 
            time and did not report it until one month later.  Nine 
 
            months later, he presented to a physician with a severe back 
 
            injury (one which would prompt most people to seek medical 
 
            care quickly) and gave history of a recent non-work 
 
            incident, which he later denied in his testimony.  Held:  
 
            claimant lacked credibility and failed to establish 
 
            compensable work injury causally related to his disability.