1200
 
                                                 Filed July 21, 1988
 
                                                 DEBORAH A. DUBIK
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         BARBARA GRAY, Next of Friend,
 
         of Candice Tincher, A Minor
 
         
 
              Claimant,                           File No. 830216
 
         
 
         vs.                                      D E C I S I O N
 
         
 
         CASTLEROCK CONSTRUCTION,                      O N
 
         
 
              Employer,                         E Q U I T A B L E
 
         
 
         and                                A P P O R T I O N M E N T
 
         
 
         AETNA CASUALTY AND SURETY,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         -------------------------------
 
         BRIGITTE TINCHER, Individually
 
         and on Behalf of ANGELO DAVID
 
         SITZMAN and MARLON LEE
 
         SITZMAN,
 
         
 
         vs.
 
         
 
         BARBARA GRAY, Next Friend of
 
         Friend of CANDICE A. TINCHER,
 
         A Minor, CASTLEROCK
 
         CONSTRUCTION  COMPANY, employer
 
         and THE AETNA CASUALTY AND
 
         SURETY COMPANY,
 
         
 
         1200
 
         
 
              In a proceeding to determine the apportionment of 
 
         compensation benefits payable as a result of the death of Lyle 
 
         Tincher which arose out and in the course of his employment, it 
 
         was determined that his natural child and surviving spouse were 
 
         conclusively presumed dependants under Iowa Code section 85.42.  
 
         In addition, decedent lived with his surviving spouseOs two 
 
         children who were found to have been principally supported by 
 
         decedent and also found to have been conclusively dependent on 
 
         decedent under Iowa Code section 85.42.  Therefore, it was 
 
         determined that the surviving spouse and the natural child were 
 
         each entitled to a 30 percent share of the weekly compensation 
 
         payable and the two step-children were each entitled to a 20 
 
         percent share.
 
         
 
                                                
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                  BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         BARBARA GRAY, Next of Friend,
 
         of Candice Tincher, A Minor
 
         
 
              Claimant,                         File No. 830216
 
         
 
         vs.                                    D E C I S I O N
 
         
 
         CASTLEROCK CONSTRUCTION,                    O N
 
         
 
              Employer,                        E Q U I T A B L E
 
         
 
         and                              A P P O R T I O N M E N T
 
         
 
         AETNA CASUALTY AND SURETY,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         ------------------------------
 
         BRIGITTE  TINCHER,  Individually
 
         and on Behalf of ANGELO DAVID
 
         SITZMAN and MARLON LEE
 
         SITZMAN,
 
         
 
         vs.
 
         
 
         BARBARA GRAY, Next
 
         Friend of CANDICE A.TINCHER,
 
         A Minor, CASTLEROCK
 
         CONSTRUCTION COMPANY, employer
 
         
 
         and THE AETNA CASUALTY AND
 
         SURETY COMPANY,
 
         
 
         
 
         
 
                              STATEMENT OF THE CASE
 
         
 
              This is a proceeding to determine the apportionment of 
 
         compensation benefits payable as a result of the death of Lyle E. 
 
         Tincher which arose out of and in the course of his employment.  
 
         This matter came on for hearing before the undersigned deputy 
 
         industrial commissioner July 7, 1988.  The record was considered 
 
         fully submitted at the conclusion of the hearing.  The record in 
 
         this matter consists of the testimony of Barbara Ellen Gray, now 
 
         Lewis, Candice Ann Tincher, and Brigitte Tincher; and joint 
 
         exhibits 1 through 30, inclusive.
 
         
 
         
 
                                      ISSUES
 
         
 
              The issues in this matter are how the benefits resulting 
 
         from the death of Lyle Tincher should be apportioned, at what 
 
         rate, and whether interest on the benefits is to be awarded.
 

 
         
 
         
 
         
 
         GRAY V. CASTLEROCK CONSTRUCTION
 
         PAGE   2
 
         
 
         
 
                                  FACTS PRESENTED
 
         
 
              Barbara Ellen Gray, now Lewis, testified the decedent, Lyle 
 
         Tincher, was her first, of four, husbands.  She explained she and 
 
         Lyle were married January 27, 1973 and had one child, Candice Ann 
 
         Tincher, born March 19, 1973.  Barbara explained the two 
 
         separated in approximately November 1973 and a decree of 
 
         dissolution of marriage between she and Lyle was entered June 25, 
 
         1974.  By stipulation of settlement filed by the Ida County 
 
         District Court on the same date, Lyle was required to pay child 
 
         support for Candice Ann Tincher in the amount of $60 per month.  
 
         Barbara's second and current husband is Ricky Lewis with whom she 
 
         has one child that resides with Barbara's mother who, in return 
 
         for her care, is paid $100 per month by Ricky and $60 per month 
 
         by Barbara.  Barbara explained she and Candice currently reside 
 
         with Mr. Lewis at his home but do not contribute to any house 
 
         payments.  She testified their funds are not co-mingled with 
 
         Ricky's stating "what's his is his and what's mine is mine."  
 
         Barbara, who has work experience as a bartender, waitress, 
 
         nurse's aide and unit secretary, testified she is currently 
 
         employed at Casey's as pizza manager and brings home 
 
         approximately $450 per month.  She offered that from this amount 
 
         she pays approximately 80 percent of the grocery bill for the 
 
         household, the utility bills (electric, phone, water, sewer, 
 
         etc.), all car expenses on her 1982 Chevrolet S10 pickup truck 
 
         including the car loan, health insurance and her own personal 
 
         student loan.  She explained that prior to Candice's receipt of 
 
         social security benefits, funds were also expended for Candice 
 
         but that funds were so limited that few, if any, "extras" could 
 
         be provided.  She testified there is no money left at the end of 
 
         the month.
 
         
 
              Up until the time of her current marriage, Barbara explained 
 
         she received approximately $58 per month in social security 
 
         benefits.  She testified Candice now receives approximately $280 
 
         per month in social security benefits, all of which is used for 
 
         Candice's expenses and if anything remains, it is placed in a 
 
         savings account which has a current balance of $580.  She 
 
         explained Candice has medical problems with her bladder, 
 
         menstrual cycle, back and nerves, and needs special corrective 
 
         glasses that have required changing approximately,every six 
 
         months at a cost of between $218 to $250 each time they are 
 
         changed.
 
         
 
              Barbara acknowledged that Lyle was not prompt in making 
 
         child support payments and that the payments were, at best, 
 
         erratic and that as a consequence she received ADC payments at 
 
         certain periods of time.  She felt the relationship after the 
 
         divorce was friendly and that Lyle maintained contact with 
 
         Candice.  Although she acknowledged she never tried, through a 
 
         legal proceeding, to increase the amount of child support 
 
         payments, Barbara explained that approximately three weeks prior 
 
         to Lyle's death they had agreed on an increase in the amount of 
 
         support although no figure was mentioned.
 
         
 
              Candice Ann Tincher testified she is currently 15 years old 
 
         and about to enter her sophomore year of high school where she is 
 
         an average student.  She expressed an ambition to attend college 
 
         and eventually to work as a counselor for the hearing impaired.  
 

 
         
 
         
 
         
 
         GRAY V. CASTLEROCK CONSTRUCTION
 
         PAGE   3
 
         
 
         Candice explained she has a learning disability with regard to 
 
         reading and comprehension and that she has health problems with 
 
         her bladder, menstrual cycle, back, nerves and eyes.
 
         
 
              Brigitte Tincher testified she met David Sitzman while he 
 
         was in the army in West Germany, that they were married in 1975, 
 
         had one son, Angelo, currently age 12, and that she and David 
 
         divorced in 1979.  David was to pay  $275 per month in child 
 
         support payments but never did and Brigitte explained that that 
 
         amount was modified to $100 per month plus $50 per month back 
 
         support in 1984.  She acknowledged these payments, as modified, 
 
         are current.  Brigitte has another son, Marlon, age seven, to 
 
         whose father she was not married and whose paternity was 
 
         established by court action.  She testified she receives $90 per 
 
         month in child support for Marlon and acknowledged these 
 
         payments, too, are current.  Brigitte stated she married Lyle 
 
         March 17, 1985, after they cohabited for a period of seven or 
 
         eight months.  She explained that since the time of their 
 
         marriage, all funds have been co-mingled and jointly used for all 
 
         household and personal expenses of herself, Lyle, Angelo and 
 
         Marlon, including rent, vehicle loans, educational and medical 
 
         expenses, food and utilities.  Brigitte testified that she opened 
 
         a checking account which was intended to be jointly held, but 
 
         because Lyle was often gone from home and it was difficult to get 
 
         his signature, only her name is printed on the checks.  Brigitte 
 
         explained that Lyle, most often, would have sent her his entire 
 
         paycheck or partial check if he had to keep some of the money for 
 
         expenses and that upon receiving the check she would deposit the 
 
         sums into the account from which she paid all bills and expenses.  
 
         Brigitte, who works as a nurse's aide part time, and has 
 
         experience working in a packing plant, also deposited her salary 
 
         into the same account.  Brigitte and Lyle filed joint tax returns 
 
         and claimed only Angelo and Marlon as dependents.  Candice was 
 
         not claimed.  Brigitte, Angelo and Marlon each receive $280 per 
 
         month in social security benefits.
 
         
 
              Joint Exhibit 30 establishes that at the time of Lyle 
 
         Tincher's death, Aetna claims representative, Larry Camp, 
 
         calculated decedent's rate of compensation to be $329.25 per 
 
         week.  Based upon a proportionment share of child support 
 
         payments to gross weekly wages, $9.19 per week was paid to the 
 
         benefit of Candice Tincher and the remaining amount of $320.06 
 
         per week was paid to Brigitte Tincher.  Benefits, as prorated, 
 
         were timely commenced.  Benefits were so paid until September 15, 
 
         1987, when Deputy Industrial Commissioner Helen Jean Walleser 
 
         ruled that the sums due on account of the death of Lyle Tincher 
 
         be held by defendants in escrow for the benefit of interested 
 
         persons.  Pursuant to the order, defendants held the benefits due 
 
         in escrow in the vault at the law firm of Duncan, Jones, Riley 
 
         and Finley.  In response to a request that funds be placed in an 
 
         interest bearing account, counsel for defendants filed an 
 
         application to escrow funds on or about April 1, 1988.  That 
 
         application was granted but the issue of interest was held in 
 
         abeyance pending hearing on the matter.  Thereafter, defendants 
 
         attempted to contact counsel for claimants who could not or would 
 
         not reach an agreement that accruing of funds in any interest 
 
         bearing account would eliminate any further claim for interest 
 
         beyond that accruing in the account.  Since April 29, 1988, all 
 
         weekly indemnity checks have been timely issued and made jointly 
 
         payable to Mrs. Brigitte Tincher and the clerk of court for 
 

 
         
 
         
 
         
 
         GRAY V. CASTLEROCK CONSTRUCTION
 
         PAGE   4
 
         
 
         Woodbury County on behalf of Candice Ann Tincher.
 
         
 
         
 
                                  APPLICABLE LAW
 
         
 
              Iowa Code section 85.43 provides:
 
         
 
                 If the deceased employee leaves a surviving spouse 
 
              qualified under the provisions of section 85.42, the 
 
              full compensation shall be paid to the surviving 
 
              spouse, as provided in section 85.31; provided that 
 
              where a deceased employee leave a surviving spouse and 
 
              a dependent child or children the industrial 
 
              commissioner may make an order of record for an 
 
              equitable apportionment of the compensation payments.
 
         
 
                 If the spouse dies, the benefits shall be paid to 
 
              the person or persons wholly dependent on deceased, if 
 
              any, share and share alike.  If there are none wholly 
 
              dependent, then such benefits shall be paid to partial 
 
              dependents, if any, in proportion to their dependency 
 
              for the periods provided in section 85..31.
 
         
 
                 If the deceased leaves dependent child or children 
 
              who was or were such at the time of the injury, and the 
 
              surviving spouse remarries, then and in such case, the 
 
              payments shall be paid to the proper compensation 
 
              trustee for the use and benefit of such dependent child 
 
              or children for the period provided in section 85.31.
 
         
 
              Iowa Code section 85.42 provides, in part:
 
         
 
                 The following shall be conclusively presumed to be 
 
              wholly dependent upon the deceased employee:
 
         
 
              1.  The surviving spouse ....
 
         
 
                 ....
 
         
 
                2.  A child or children under eighteen years of age, 
 
              and over said age if physically or mentally 
 
              incapacitated from earning, whether actually dependent 
 
              for support or not upon the parent at the time of the 
 
              parent's death.  An adopted child or children shall be 
 
              regarded the same as issue of the body.  A child or 
 
              children, as used herein, shall also include any child 
 
              or children conceived but not born at the time of the 
 
              employee's injury, and any compensation payable on 
 
              account of any such child or children shall be.paid 
 
              from the date of their birth.  A stepchild or 
 
              stepchildren shall be regarded the same as issue of the 
 
              body only when the stepparent has actually provided the 
 
              principal support for such child or children.
 
         
 
              Iowa Code section 85.31 provides, in part:
 
         
 
                 1.  When death results from the injury, the employer 
 
              shall pay the dependents who were wholly dependent on 
 
              the earnings of the employee for support at the time of 
 
              the injury, during their lifetime, compensation upon 
 

 
         
 
         
 
         
 
         GRAY V. CASTLEROCK CONSTRUCTION
 
         PAGE   5
 
         
 
              the basis of eighty percent per week of the employee's 
 
              average weekly spendable earnings, commencing from the 
 
              date of death as follows:
 
         
 
                 a.  To the surviving spouse for life or until 
 
              remarriage, provided that upon remarriage two years' 
 
              benefits shall be paid to the surviving spouse in a 
 
              lump sum, if there are rio children entitled to 
 
              benefits.
 
         
 
                 b.  To any child of the deceased until the child 
 
              shall reach the age of eighteen, provided that a child 
 
              beyond eighteen years of age shall receive benefits to 
 
              the age of twenty-five if actually dependent, and the 
 
              fact that a child is under twenty-five years of age and 
 
              is enrolled as a full-time student in any accredited 
 
              educational institution shall be a prima facie showing 
 
              of actual dependency.
 
         
 
              Iowa Code section 85.44 provides:
 
         
 
                 In all other cases, a dependent shall be one 
 
              actually dependent or mentally or physically 
 
              incapacitated from earning.  Such status shall be 
 
              determined in accordance with the facts as of the date 
 
              of the injury.  In such cases if there is more than one 
 
              person, the compensation benefit shall be equally 
 
              divided among them.  If there is no one wholly 
 
              dependent and more than one person partially dependent, 
 
              the compensation benefit shall be divided among them in 
 
              the proportion each dependency bears to their aggregate 
 
              dependency.
 
         
 
              Iowa Code section 85.49 provides:
 
         
 
                 When a minor or mentally incompetent dependent is 
 
              entitled to weekly benefits under this chapter, chapter 
 
              85A or 85B, payment shall be made to the clerk of the 
 
              district court for the county in which the injury 
 
              occurred, who shall act as trustee, and the money 
 
              coming into the clerk's hands shall be expended for the 
 
              use and benefit of the person entitled to it under the 
 
              direction and orders of a district judge.  The clerk of 
 
              the district court, as trustee, shall qualify and give 
 
              bond in an amount as the district judge directs, which 
 
              may be increased or diminished from time to time.  If 
 
              the domicile or residence of the minor or mentally 
 
              incompetent dependent is within the state but in a 
 
              county other than that in which the injury to the 
 
              employee occurred the industrial commissioner may order 
 
              and direct that weekly benefits be paid to the clerk of 
 
              the district court of the county of domicile or 
 
              residence.
 
         
 
                 If the domicile or residence of such minor or 
 
              mentally incompetent dependent be outside the state of 
 
              Iowa the industrial commissioner may order and direct 
 
              that benefits to such minors or incompetents be paid to 
 
              a guardian, conservator, or legal representative duly 
 
              qualified under the laws of the jurisdiction wherein 
 

 
         
 
         
 
         
 
         GRAY V. CASTLEROCK CONSTRUCTION
 
         PAGE   6
 
         
 
              the minors or incompetents shall be domiciled or 
 
              reside.  Proof of the identity and qualification of 
 
              such guardian, conservator, or other legal 
 
              representative shall be furnished to the industrial 
 
              commissioner.
 
         
 
              Iowa Code section 85.30 provides:
 
         
 
                 Compensation payments shall be made each week 
 
              beginning on the eleventh day after the injury, and 
 
              each week thereafter during the period for which 
 
              compensation is payable, and if not paid when due, 
 
              there shall be added to the weekly compensation 
 
              payments, interest at the rate provided in section 
 
              535.3 for court judgments and decrees.
 
         
 
                                  ANALYSIS
 
         
 
              Of primary concern is which parties are entitled to share in 
 
         benefits payable as a result of the death of Lyle Tincher.  Under 
 
         Iowa Code section 85.42, the surviving spouse and children under 
 
         18 years of age, whether actually dependent for support or not 
 
         upon the parent at the time of the parent's death are 
 
         conclusively presumed dependents.  This provision is thus 
 
         applicable to Brigitte Tincher as the surviving spouse and 
 
         Candice Ann Tincher as decedent's child.
 
         
 
              A more difficult question arises with regard to Angelo David 
 
         Sitzman and Marlon Lee Sitzman.  Pursuant to the industrial 
 
         commissioner's decision in Ostwinkle v. M. P. Kluck & Sons, 33 
 
         Biennial Report of the Industrial Commissioner 12 (1977), Angelo 
 
         and Marlon would not be entitled to benefits so long as there are 
 
         other dependents receiving benefits unless it is shown Iowa Code 
 
         section 85.42 is also applicable to them.  To make such a 
 
         determination, it is necessary to focus on the situation at the 
 
         time of decedent's death.  Kramer v. Tone Bros., 198 Iowa 1140, 
 
         199 N.W. 985 (1924).
 
         
 
              Angelo and Marlon can be conclusively dependent under Iowa 
 
         Code section 85.42 "only when the stepparent has actually 
 
         provided the principal support..." Brigitte receives 
 
         approximately $240 per month in child support payments for the 
 
         support of Angelo and Marlon.  She, herself, contributed little 
 
         to no income to the household in 1985 and less than one-half of 
 
         the income during 1986 (which was her largest income year as a 
 
         result of temporary employment with the Hormel plant as a strike 
 
         replacement worker).  All funds in the Tincher household (i.e. 
 
         Lyle and Brigitte) were co-mingled and used to pay all household 
 
         and personal expenses of all household members regardless of 
 
         family origin.  This included Marlon's and Angelo's medical and 
 
         educational expenses.  Clearly, these Sitzman children relied on 
 
         the wages of Lyle Tincher as neither the child support payments 
 
         nor Brigitte's wages met the expenses Brigitte established the 
 
         family had.  Decedent had gross weekly wages of $557.83.  Savings 
 
         were minimal at the time of his death.  It cannot reasonably be 
 
         disputed that the principal source of support for this family 
 
         came from decedent's wages.  Therefore, it is accepted decedent 
 
         was providing the principal support for the Sitzman children at 
 
         the time of his death and that they, too, are entitled to share 
 
         in the benefits.  The focus now turns to how the benefits will be 
 

 
         
 
         
 
         
 
         GRAY V. CASTLEROCK CONSTRUCTION
 
         PAGE   7
 
         
 
         apportioned.
 
         
 
              Brigitte Tincher, as surviving spouse, will be awarded 30 
 
         percent of the weekly benefits.  This amount shall not change 
 
         until such time as Candice Ann Tincher is no longer eligible to 
 
         receive benefits at which time Brigitte will be entitled to a 60 
 
         percent share.  Candice Ann Tincher will also receive a 30 
 
         percent share with no change in that percentage to occur as long 
 
         as she is eligible to receive benefits.  Angelo David Sitzman and 
 
         Marlon Lee Sitzman will each receive a 20 percent share.
 
         
 
              The parties have stipulated to a gross weekly wage of 
 
         decedent of $557.83 and that his marital status was married at 
 
         the time of his death.  What is an issue then is the allowable 
 
         number of exemptions.
 
         
 
              Decedent's tax records establish that a joint tax return was 
 
         filed and that two exemptions, Angelo and Marlon, were claimed.  
 
         Decedent did not claim Candice as a dependent.  However, 
 
         testimony also establishes that Barbara did not claim Candice as 
 
         a dependent.  The industrial commissioner addressed a problem 
 
         similar to that presented herein in Biggs v. Charles Donner, 
 
         Appeal Decision filed April 22, 1982.  In Biggs, claimant was 
 
         living with his second wife and her two children.  He had three 
 
         biological children from the previous marriage whom he was under 
 
         court order to support although he was not doing so.  The 
 
         commissioner found claimant could claim his natural children as 
 
         exemptions for rate purposes thus concluding that claimant was 
 
         entitled to a rate calculated on a marital status with five 
 

 
         
 
         
 
         
 
         GRAY V. CASTLEROCK CONSTRUCTION
 
         PAGE   8
 
         
 
         exemptions.  Therefore, with Biggs as precedent, benefits will be 
 
         awarded computed on a marital status of married with three 
 
         exemptions.
 
         
 
              The final issue to be determined is whether or not any 
 
         interest is to be awarded on these benefits.  A review of the 
 
         evidence presented by defendants on this issue establishes 
 
         defendants have made every effort to pay the benefits when they 
 
         were due and that for a substantial period of time the defendants 
 
         were unable to receive the appropriate documentation and 
 
         information from any representative of Brigitte Tincher when she 
 
         refused to speak with defendants directly. in addition, efforts 
 
         made by defendants to communicate with claimant's original 
 
         counsel proved fruitless.  For 33 weeks, the checks were held in 
 
         escrow pursuant to an order of a deputy industrial commissioner.  
 
         Subsequent to that time, all checks have been issued jointly 
 
         payable in order to assure that no party's interests were 
 
         prejudiced.  Iowa Code section 85.30 provides that interest on 
 
         compensation is appropriate if the benefits are not paid "when 
 
         due."  It is clear in this case that defendants have made every 
 
         effort to and have issued all checks timely and have made every 
 
         effort to deliver them to the appropriate persons.  Claimants, 
 
         themselves, have not been able to properly cooperate with 
 
         defendants and defendants should not be penalized for claimants' 
 
         inaction.  Concomitantly, claimants should not be rewarded.  
 
         Therefore, no interest will be awarded.
 
         
 
         
 
                                 FINDINGS OF FACT
 
         
 
              Wherefore, based on all the evidence presented, the 
 
         following findings of fact are made:
 
         
 
              1.  Lyle Tincher's death on August 14, 1986 arose out of and 
 
         in the course of his employment.
 
         
 
              2.  Brigitte Tincher was married to Lyle Tincher at the time 
 
         of his death.
 
         
 
              3.  Brigitte Tincher has two children, Angelo David Sitzman 
 
         and Marlon Lee Sitzman, who were not biological children of 
 
         decedent but who lived with decedent and Brigitte Tincher in the 
 
         same household.
 
         
 
              4.  Brigitte Tincher received child support payments from 
 
         the biological fathers of her children.
 
         
 
              5.  Brigitte Tincher and Lyle Tincher filed joint tax 
 
         returns and claimed Angelo and Marlon as dependents thereon.
 
         
 
              6.  Brigitte Tincher and Lyle Tincher co-mingled all funds 
 
         and from these amounts paid all household and personal expenses 
 
         of all household members regardless of family origin.
 
         
 
              7.  Lyle Tincher provided the principal support for Angelo 
 
         and Marlon Sitzman.
 
         
 
              8.  Prior to his marriage to Brigitte, decedent was married 
 
         to Barbara Ellen Gray, now Lewis.
 
         
 

 
         
 
         
 
         
 
         GRAY V. CASTLEROCK CONSTRUCTION
 
         PAGE   9
 
         
 
              
 
              9.  The issue of the marriage between decedent and Barbara 
 
         is Candice Ann Tincher, who currently resides with her mother in 
 
         Correctionville, Woodbury County, Iowa.
 
         
 
             10.  The decedent's support of Candice Ann Tincher was 
 
         erratic.
 
         
 
             11.  Decedent had gross weekly wages of $557.83.
 
         
 
             12.  Defendants have made every effort to pay benefits when 
 
         due.
 
         
 
                                CONCLUSIONS OF LAW
 
         
 
              Wherefore, based on the principles of law previously stated, 
 
         the following conclusions of law are made:
 
         
 
              1.  Brigitte Tincher, Candice Ann Tincher, Angelo David 
 
         Sitzman, and Marlon Lee Sitzman are conclusively presented to be 
 
         dependents of decedent under Iowa Code section 85.42.
 
         
 
              2.  The proper rate of compensation in this matter is 
 
         $342.53.
 
         
 
              3.  An award of interest is not proper in this case.
 
         
 
         
 
                                      ORDER
 
         
 
              THEREFORE, IT IS ORDERED:
 
         
 
              Defendants are to pay unto Brigitte Tincher weekly benefits 
 
         equal to thirty percent (30%) of the rate of compensation or one 
 
         hundred two and 76/100 dollars ($102.76) per week for as long as 
 
         she is eligible to receive benefits with no change that 
 
         percentage to occur until such time as Candice Ann Tincher is no 
 
         longer eligible to receive benefits at which time Brigitte 
 
         Tincher will be entitled to a sixty percent (60%) share of the 
 
         benefits.
 
         
 
              Defendants are to pay unto the clerk of the district court 
 
         for Woodbury County, acting trustee, for Candice Ann Tincher 
 
         weekly benefits equal to thirty percent (30%) of the appropriate 
 
         rate of compensation or one hundred two and 77/100 dollars 
 
         ($102.77) per week until such time as she is no longer eligible 
 
         to receive benefits.
 
         
 
              Defendants are to pay unto the clerk of the district court 
 
         for Wapello County, acting trustee, for Angelo David Sitzman, 
 
         weekly benefits equal to twenty percent (20%) of the appropriate 
 
         rate of compensation or sixty-eight and 50/100 dollars ($68.50) 
 
         per week until such time as he is no longer eligible to receive 
 
         benefits.
 
         
 
              Defendants are to pay unto the clerk of the district court 
 
         for Wapello County, acting trustee, for Marlon Lee Sitzman, 
 
         benefits equal to twenty percent (20%) of the appropriate rate of 
 
         compensation or sixty-eight and 50/100 dollars ($68.50) per week 
 
         until such time as he is no longer eligible to receive benefits.
 
         
 

 
         
 
         
 
         
 
         GRAY V. CASTLEROCK CONSTRUCTION
 
         PAGE  10
 
         
 
              
 
              Should Brigitte Tincher remarry or should a child no longer 
 
         be eligible to receive benefits, those benefits shall be equally 
 
         divided among those individuals still eligible to receive 
 
         benefits at that time.
 
         
 
              Costs in this matter are assessed equally against the 
 
         petitioners pursuant to Division of Industrial Services Rule 
 
         343-4.33.
 
         
 
         
 
              Signed and filed this 21st day of July, 1988.
 
         
 
         
 
         
 
         
 
         
 
         
 
                                        DEBORAH A. DUBIK
 
                                        DEPUTY INDUSTRIAL COMMISSIONER
 
         
 
         Copies to:
 
         
 
         Mr. James M. Cosgrove
 
         Attorney at Law
 
         1109 Badgerow Bldg
 
         P 0 Box 1828
 
         Sioux City, IA 51102
 
         
 
         Ms. Lorraine J. May
 
         Attorney at Law
 
         404 Equitable Bldg
 
         Des Moines, IA 50309
 
         
 
         Mr. Fredd J. Haas
 
         Attorney at Law
 
         5001 SW 9th St
 
         Des Moines, IA 50315
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                    BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         DELORES A. MORTIMER,
 
         
 
              Claimant,                               File No. 830334
 
         
 
         vs.                                       A R B I T R A T I O N
 
         
 
         KEOKUK CONVALESCENT CENTER,                  D E C I S I O N
 
         
 
              Employer,
 
                                                         F I L E D
 
         and
 
                                                        MAR 28 1989
 
         LIBERTY MUTUAL INSURANCE CO.,
 
                                                    INDUSTRIAL SERVICES
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
                                  INTRODUCTION
 
         
 
              This is a proceeding in arbitration brought by Delores A. 
 
         Mortimer, claimant, against Keokuk Convalescent Center, employer, 
 
         and Liberty Mutual Insurance Company, insurance carrier, 
 
         defendants, for benefits as the result of an injury that occurred 
 
         on August 9, 1986.  A hearing was held in Burlington, Iowa, on 
 
         February 17, 1989, and the case was fully submitted at the close 
 
         of the hearing.  The record consists of the testimony of Larry E. 
 
         Mortimer, claimant's husband, Robby Brewer, claimant's son, 
 
         Delores A. Mortimer, claimant, Leona Varner, employer's 
 
         administrator and joint exhibits 1 through 12.  Defendants 
 
         ordered a transcript of the hearing and offered to provide the 
 
         original copy for the industrial commissioner's file.  Both 
 
         attorney s submitted excellent briefs.
 
         
 
                             PRELIMINARY MATTER
 
         
 
              At the hearing, defendants presented a fax copy of form 2A, 
 
         supplemental claim activity report and a fax copy of form 2B, 
 
         supplemental rate information and rate agreement.  Both of these 
 
         forms showed that they were prepared on February 15, 1989.  
 
         Neither form had been filed in the industrial commissioner's file 
 
         at the time of the hearing.  The parties stipulated that, (1) both 
 
         forms contained correct data, (2) could be added to the industrial 
 
         commissioner's file as of the date of the hearing, and (3) could 
 
         be used in the determination of this case.  These two sheets are 
 
         attached to and made a part of the prehearing report and order 
 
         approving same dated February 17, 1989.
 
         
 
                                 STIPULATIONS
 
         
 
              The parties stipulated to employer-employee relationship; 
 
         injury arising out of and in the course of employment; causal 
 
                                                
 
                                                         
 
         connection of both temporary and permanent disability; that 
 
         claimant's entitlement to temporary disability benefits was not 
 
         in dispute at this time; that the type of permanent disability 
 
         was industrial disability; that the commencement date of 
 
         permanent partial disability benefits is December 1, 1988; that 
 
         the rate of compensation is $92.26 per week; that medical 
 
         benefits are no longer in dispute; that defendants make no claim 
 
         for credit for nonoccupational group health plan benefits prior 
 
         to hearing; that defendants are entitled to a credit for 118 
 
         weeks and 3 days of workers' compensation benefits paid prior to 
 
         hearing at the rate of $92.26 per week and that there are no 
 
         bifurcated claims.
 
         
 
              It was further stipulated that claimant had been paid 
 
         healing period benefits for 1 week and 2 days from August 10, 
 
         1986 to August 18, 1986, and 16 weeks and 1 day of additional 
 
         healing period benefits for the period from September 10, 1986 
 
         through December 31, 1986, and that claimant had been paid 101 
 
         weeks of permanent partial disability benefits based upon a 20 
 
         percent impairment of the body as a whole.
 
         
 
                                   ISSUES
 
         
 
              The sole issue presented for determination at the time of 
 
         the hearing was whether claimant is entitled to permanent partial 
 
         disability benefits, and if so, the amount of benefits to which 
 
         she is entitled.
 
         
 
                              SUMMARY OF THE EVIDENCE
 
         
 
              Of all of the evidence that was introduced, the following is 
 
         a summary of the evidence most pertinent to this decision.
 
         
 
              Claimant is age 32, married and the mother of three children 
 
         ages 11, 8 and 5.  She graduated from high school in 1974.  She 
 
         graduated from cosmetology school in 1975 and received a 
 
         certificate to be a beautician, but was never licensed or 
 
         practiced.  She has worked as a waitress.  Claimant was in the 
 
         United States Navy in 1976 for a period of time, but received a 
 
         general discharge due to family hardship at that time.  Claimant 
 
         attended South Iowa Community College and received a certificate 
 
         as a nurse's aide in May of 1985.  She denied any back problems 
 
         prior to this injury (exhibit 12; transcript pages 18, 19, 28, 
 
         29, 32, 33 & 34).
 
         
 
              Claimant testified that she was employed by employer as a 
 
         nurse's aide on August 9, 1986.  On that date she injured her back 
 
         while helping a 150 pound patient get out of bed.  The patient's 
 
         legs gave out, the patient slipped and began to fall.  Claimant 
 
         tried to hold on to the patient as she fell to the floor.  
 
         Claimant testified that something snapped in her back when she 
 
         tried to prevent the patient from falling.  Claimant reported the 
 
         injury to employer.  She first saw William Schulte, M.D., and was 
 
         then referred to Dr. John Lee.  Claimant was then referred to 
 
         Rouben Mirbegian, M.D., an orthopedic surgeon, who performed 
 
                                                
 
                                                         
 
         surgery on her back (ex. 12, tr. pp. 18-21).
 
         
 
              Claimant testified that she returned to work after the 
 
         surgery in January of 1987 and continued to work as a nurse's 
 
         aide until May 1, 1987, when she quit because the work was too 
 
         hard for her back.  Claimant testified that after she returned to 
 
         work she was not able to work a five-day week.  She would call in 
 
         sick on the third or fourth day due to her back (tr. pp. 21 & 
 
         22).
 
         
 
              Claimant testified that she continued to receive physical 
 
         therapy from Dr. Mirbegian even after she terminated her 
 
         employment with employer.  Claimant said that she last saw Dr. 
 
         Mirbegian in September of 1988.  She has not seen any other 
 
         doctor since then for anything.  She testified that she takes 
 
         pain pills prescribed by Dr. Mirbegian approximately two times a 
 
         week. Claimant testified that she has not returned to work as a 
 
         nurse's aide since she quit.  Claimant related that she continues 
 
         to have problems standing, driving or even riding in a car for a 
 
         long period of time.  She can no longer shovel walks, lift heavy 
 
         items, work in the garden, bowl, wear tie shoes, wear blouses 
 
         that button in the back, move furniture, paint, remodel, perform 
 
         manual labor, mow the grass or wash windows (tr. pp. 23-28).
 
         
 
              Claimant said that Dr. Mirbegian imposed a 50 pound weight 
 
         lifting restriction but her own self-imposed weight restriction 
 
         was 30 pounds.  Claimant testified that she has an exercise bike 
 
         and exercises when she can.
 
         
 
              After the laminectomy, a postsurgery MRI showed that she has 
 
         two remaining bulging discs.
 
         
 
              Claimant testified that she has tried to get jobs in stores, 
 
         restaurants and through job service.  Claimant's answers to 
 
         interrogatories only specify one job application for a sales 
 
         clerk job (ex. 12).
 
         
 
              Claimant denied that she told employer that she quit to care 
 
         for her mother and denied that she ever cared for her mother 
 
         after she quit employer.
 
         
 
              Claimant admitted that she had a 15 year history of 
 
         depression, since she was approximately age 17.  She has not 
 
         taken any nerve medication for a year.  When she has a bout of 
 
         depression she gets moody and wants to get away from people for a 
 
         day or so.  The periods of depression last for approximately a 
 
         day or so.  Claimant acknowledged that in 1987 and 1988, she had 
 
         been depressed seven or eight times.  She admitted that 
 
         depression does interfere with her working "a little".  She 
 
         quickly added however, that it was her back and not her 
 
         depression that kept her from working (tr. pp. 35-39).
 
         
 
              Claimant denied that either Dr. Mirbegian or defendants' 
 
         evaluating physician, David J. Boarini, M.D., told her to lose 
 
         weight.  Claimant granted that she had gained about 30 pounds 
 
                                                
 
                                                         
 
         since the injury in 1986.  Claimant testified that she is now 5 
 
         foot 8 inches tall and weighs 197 pounds (tr. pp. 39 & 40).
 
         
 
              Claimant testified that at the present time she is a 
 
         homemaker and that she is raising three small sons (tr. p. 41).
 
         
 
              Larry E. Mortimer, claimant's husband of eight years, 
 
         testified that since the injury, claimant cannot bowl, ride a 
 
         bicycle, clean the house all at one time and she gets upset with 
 
         the children easily.  She cannot shovel the walk, garden, fast 
 
         dance, or sit in hard chairs.
 
         
 
              He admitted that claimant was hospitalized at St. Vincent's 
 
         Hospital in Toledo, Ohio, in June and July of 1980 for chronic 
 
         depression.  She was also hospitalized a second time at St. 
 
         Charles Psychiatric Floor in Toledo, Ohio, in July and August of 
 
         1982 for chronic depression.  He testified that she still gets 
 
         depressed, but not often.  He conceded that her depression would 
 
         affect her ability to perform housework, garden, bowl and dance.
 
         
 
              Robby Brewer, claimant's son, age 11, testified that since 
 
         the injury his mother is not able to play baseball with him in 
 
         the yard, change a tire on an automobile or move the toy shelf.  
 
         He said that he was born on March 19, 1977, and was 8 years old 
 
         at the time of the injury.
 
 
 
                              
 
                                                         
 
         
 
              Leona Varner testified that she was employer's administrator 
 
         on August 9, 1986.  She started to work for employer in April of 
 
         1986 and left in November of 1986 due to a change in management. 
 
         She testified that she knew claimant at the time of the injury. 
 
         Claimant returned to work after the injury in January of 1987 and 
 
         continued to work performing nurse's aide work for approximately 
 
         four months until May of 1987.  Varner testified that claimant 
 
         stated, to her and another employee, that she was going to quit 
 
         to take care of her mother and did not say anything about her 
 
         back. Claimant then resigned within a week after she made that 
 
         statement.  The witness did not recall how many days per week 
 
         claimant worked after she returned to work in January of 1987.
 
         
 
              A summary of the medical evidence is as follows:
 
         
 
              There are no specific medical reports from Dr. Schulte or 
 
         Dr. Lee.
 
         
 
              Dr. Mirbegian admitted claimant to Keokuk Area Hospital on 
 
         September 15, 1986.  A lumbar metrizamide myelogram was done on 
 
         September 24, 1986.  It disclosed a large extradural defect 
 
         eccentric to the left at the L4-5 interspace which markedly 
 
         compressed and effaced the exiting nerves on the left and mildly 
 
         effaced the exiting nerves on the right.  A metrizamide enhanced 
 
         CT scan performed three and one-half hours later revealed a large 
 
         soft tissue mass at L4-5 which effaced the dural sac and it was 
 
         markedly eccentric to the left.  The L5-S1 and L3-4 interspaces 
 
         were unremarkable.  The radiologist, R.L. Kimmell, M.D., said 
 
         that his impression was herniated soft disc L4-5 eccentric to the 
 
         left (ex. 3, pages 5 & 6).
 
         
 
              Dr. Mirbegian performed a L4, L5 decompression and 
 
         laminectomy on September 25, 1986 (ex. 3, pp. 8 & 9).  He said 
 
         that claimant recovered quite well and that she could return to 
 
         work at the beginning of 1987 (ex. 4, p. 15; ex. 2, p. 4).
 
         
 
              Dr. Mirbegian gave a deposition of April 26, 1988 (ex. 7).  
 
         He stated that he was a licensed orthopedic surgeon (p. 3).  
 
         Claimant was referred by her family physician with quite a bit of 
 
         low back pain going down both legs (p. 4).  Diagnostic tests 
 
         disclosed a big ruptured disc at L4, L5.  He did a complete 
 
         diskectomy on September 25, 1986 (p. 5).  Claimant had some 
 
         recurring back ache and pain and he continued to see her in 1987 
 
         and he prescribed physical therapy up to January of 1988 (pp. 6, 7 
 
         & 9).
 
         
 
              Dr. Mirbegian's office notes on October 21, 1986, November 
 
         18, 1986, December 16, 1986 and March 12, 1987, show that 
 
         claimant did well after the surgery.  On December 16, 1986, he 
 
         said she could return to work at the beginning of January of 
 
         1987.  On March 12, 1987, he said she was doing well, had lost 
 
         weight, was keeping up her exercises, walked good, had no pain, 
 
         tingling or weakness in her lower extremities, range of motion 
 
         was excellent, scar was well healed and he discharged claimant, 
 
                                                
 
                                                         
 
         but said he would like to see her at the end of one year (ex. 2, 
 
         p. 4).
 
         
 
              Dr. Mirbegian's next office note is on May 20, 1987.  He 
 
         reported that claimant had called him two or three weeks earlier 
 
         complaining that her back hurts, mostly on the right buttock. 
 
         Claimant reported that she experienced pain on the job and had 
 
         quit her job.  The doctor saw claimant in follow-up visits on 
 
         June 2, 1987, June 30, 1987, July 9, 1987 and August 17, 1987 
 
         (ex. 4, P. 14).
 
         
 
              A magnetic resonance imaging report (MRI) completed by 
 
         radiologist C.G. Wagner, M.D., on May 21, 1987, reported 
 
         extradural defects at all three lumbar levels.  He found perhaps 
 
         slight bulging of the annulus at L3, L4 and slight protrusion of 
 
         the disc material at L5, S1.  The defect at L4, L5 could be due 
 
         to postsurgical scarring and "buckling" of the posterior 
 
         longitudinal ligament (ex. 4, p. 13).
 
         
 
              On July 23, 1987, Dr. Mirbegian wrote to the insurance 
 
         carrier that claimant had a recurrence of her low back pain.  She 
 
         had quit her job and was receiving anti-inflammatory medications 
 
         and physical therapy again.  He said an MRI was performed at St. 
 
         Mary's Hospital at Quincy, Illinois.  It disclosed two additional 
 
         bulging discs at L3, L4 and L5, S1 which were not visualized on 
 
         the myelogram in September of 1986 prior to the surgery.  Dr. 
 
         Mirbegian said that he felt that she had acquired these new 
 
         bulges and the degeneration of disc material since the operation.  
 
         He did not feel comfortable operating on her, but was treating 
 
         claimant with physical therapy, anti-inflammatory medications and 
 
         epidural corticosteroid injections and that she was responding 
 
         quite well to this treatment.  He concluded as follows:
 
         
 
              Regarding her future disability, due to involvement of the 
 
              three discs levels and the loss of normal range of motion of 
 
              her lower back, I strongly believe that this lady definitely 
 
              will have a 25% permanent impairment of her back.  Our plan 
 
              is to continue her on a nonoperative treatment as long as 
 
              possible and this will be based on follow up [sic] 
 
              examination and patient response to the treatments.
 
         
 
         (ex. 4, p. 12)
 
         
 
              Continuing on with his deposition, Dr. Mirbegian said that 
 
         he thought that claimant had a 25 percent impairment of her back 
 
         which is the same as 25 percent of the whole person using the AMA 
 
         Guidelines (ex. 7).  He said that this 25 percent includes the 
 
         removal of one disc and two others that showed up on further 
 
         studies (pp. 10 & 11).  He said the injury was consistent with 
 
         helping patients at the convalescent center (p. 7).  His 
 
         restrictions were not lifting any heavy objects and continuing 
 
         her exercises to keep her back muscles in shape (p. 8).  He felt 
 
         she could return to work at the beginning of 1987 (p. 9).  He had 
 
         not seen her for several months, since January of 1988, and did 
 
         not know if she was taking medications or not (pp. 12 & 13).  Dr. 
 
                                                
 
                                                         
 
         Mirbegian testified in this deposition that the other two 
 
         ruptured discs would have been caused by the same event.  He 
 
         explained that they did not show up earlier because the MRI was 
 
         more precise than the metrizamide lumbar myelogram.  He did not 
 
         believe that she had suffered an intervening accident (pp. 13 & 
 
         14).  These other two discs did not require surgery (p. 14).
 
         
 
              Claimant was examined and evaluated by David J. Boarini, 
 
         M.D., on June 6, 1988, at the request of defendants.  He gave a 
 
         report on June 10, 1988.  He said claimant gave a history of 
 
         feeling her back snap while assisting a patient whose legs had 
 
         gone out.  He traced the history of the treatment for this 
 
         injury. He added that she does occasional back exercises and 
 
         takes Darvon when the pain is bothering her.  He said claimant 
 
         was slightly obese and had rather poor muscle tone.  Her gait was 
 
         normal, she could walk on her heels and toes without difficulty 
 
         and she could squat and rise without problems.  The surgical 
 
         incision was nicely healed.  She had normal range of motion of 
 
         the lower back in all directions.  Neurological examination 
 
         showed normal strength in all muscle groups in the lower 
 
         extremities.  There was a very slight amount of residual L5 
 
         hypesthesia on the left side. Reflexes at the knees and ankles 
 
         were symmetric and physiological. Straight leg raising was 
 
         negative bilaterally.
 
         
 
              Dr. Boarini said that claimant had no significant 
 
         neurological deficit.  In fact, her examination was quite normal. 
 
         A more vigorous exercise program is the only treatment that he 
 
         could recommend.  He gave claimant a 5 to 6 percent permanent 
 
         partial impairment rating based on the lumbar laminectomy with no 
 
         neurological deficit.  He did not think she could tolerate 
 
         extremely heavy lifting on a repetitive basis, but he did feel 
 
         that she could return to work as a nurse's aide (ex. 11, dep. ex. 
 
         2).
 
         
 
              Dr. Boarini gave a deposition on November 3, 1988 (ex. 11) 
 
         in which he stated that he is a board certified neurosurgeon (p. 
 
         4). His curriculum vitae is impressive (ex. 11, dep. ex. 1).  He 
 
         testified that claimant was not very physically fit for someone 
 
         her age because she does not get enough exercise and is a bit 
 
         overweight (p. 6).  He summarized his physical examination 
 
         findings in the deposition as described in the foregoing 
 
         paragraph (pp. 7 & 8).  Dr. Boarini said that claimant had no 
 
         problem from the other two discs based upon his clinical 
 
         observations because claimant only had back discomfort but no 
 
         problem in her legs (pp. 8 & 9).  He said it was common for a 
 
         person who has had back surgery to continue to have back pain.  
 
         He said that he told her that he thought her trouble was that she 
 
         was overweight and was not pursuing her back exercises (p. 9).
 
         
 
              Dr. Boarini said that the 5 to 6 percent rating was based on 
 
         the AMA Guidelines.  The Guides suggest a 5 percent impairment 
 
         rating for a laminectomy with no radicular and no neurological 
 
         findings.  He said that he added 1 percent for the low back pain 
 
         (p. 11).
 
                                                
 
                                                         
 
         
 
              Dr. Boarini said that he did not restrict her from nurse's 
 
         aide work.  He said that she could do it if she would improve her 
 
         physical condition, lose some weight and do some regular back 
 
         exercises (p. 12).  The only restrictions that he would impose 
 
         would be to lose weight and exercise before doing any sort of 
 
         labor at all.  Second, it would not be prudent for her to perform 
 
         heavy lifting with repetitive bending in factory line work where 
 
         she has to bend and lift parts.  She could lift 100 pounds if she 
 
         uses the proper lifting techniques, but she could not do it 
 
         repetitively or while bending over (pp. 15 & 16).
 
         
 
              Dr. Boarini felt that the impairment evaluation guide 
 
         published by the American Academy of Orthopedic Surgeons might 
 
         rate this injury at 10 percent because their rating scale is 
 
         about twice the AMA Guidelines, (p. 16).  The doctor said that he 
 
         refers to the American Academy of Orthopedic Surgeons guidelines, 
 
         but doesn't use them when he rates patients because it is 
 
         concentrated only on orthopedic injuries and does not take into 
 
         consideration other conditions that need to be rated.  As a 
 
         result it tends to give a higher rating for orthopedic injuries.  
 
         The orthopedic ratings are not consistent with the whole spectrum 
 
         of medical illnesses that have to be rated (p. 18).  He further 
 
         stated that the AMA Guides take into account objective findings 
 
         combined with pain; whereas the orthopedic manual has a specific 
 
         rating suggested for pain with no objective findings (ex. 19).
 
         
 
              Donald W. Blair, M.D., examined claimant on August 12, 1987, 
 
         and October 28, 1987 (ex. 2, pp. 2 & 3).  He thought it would be 
 
         advisable for claimant to consider some other type of work which 
 
         did not include heavy and repetitive lifting and bending 
 
         activities.  He felt that claimant's residual disability was 
 
         related to her postoperative status for removal of the ruptured 
 
 
 
                              
 
                                                         
 
         disc at L4, L5 level.  He did not think additional surgery was 
 
         indicated.  He concluded, "A permanent functional impairment 
 
         based on the information which we have reviewed at this time 
 
         would not be expected to exceed 20% of the body as a whole and 
 
         with the recommendation that she change to a lighter type of 
 
         physical work to lessen the possibility of recurrences." (ex. 2, 
 
         p. 2).
 
         
 
              Dr. Blair's qualifications to rate claimant were not placed 
 
         in evidence.  Dr. Blair did not comment on whether the L3, L4 or 
 
         the L5, S1 irregularities were caused by the initial injury on 
 
         August 9, 1986, or not.
 
         
 
                            APPLICABLE LAW AND ANALYSIS
 
         
 
              The claimant has the burden of proving by a preponderance of 
 
         the evidence that the injury of August 9, 1986, is causally 
 
         related to the disability on which she now bases her claim.  
 
         Bodish v. Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867 (1965).  
 
         Lindahl v. L.O. Boggs, 236 Iowa 296, 18 N.W.2d 607 (1945). A 
 
         possibility is insufficient; a probability is necessary.  Burt v. 
 
         John Deere Waterloo Tractor Works, 247 Iowa 691, 73 N.W.2d 732 
 
         (1955).  The question of causal connection is essentially within 
 
         the domain of expert testimony.  Bradshaw v. Iowa Methodist 
 
         Hospital, 251 Iowa 375, 101 N.W.2d 167 (1960).
 
         
 
              However, expert medical evidence must be considered with all 
 
         other evidence introduced bearing on the causal connection.  
 
         Burt, 247 Iowa 691, 73 N.W.2d 732.  The opinion of experts need 
 
         not be couched in definite, positive or unequivocal language.  
 
         Sondag v. Ferris Hardware, 220 N.W.2d 903 (Iowa 1974).  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).
 
         
 
              As a claimant has an impairment to the body as a whole, an 
 
         industrial disability has been sustained.  Industrial disability 
 
         was defined in Diederich v. Tri-City Railway Co., 219 Iowa 587, 
 
         593, 258 N.W. 899, 902 (1935) as follows:  "It is therefore plain 
 
         that the legislature intended the term 'disability' to mean 
 
         'industrial disability' or loss of earning capacity and not a 
 
         mere 'functional disability' to be computed in the terms of 
 
         percentages of the total physical and mental ability of a normal 
 
         man."
 
         
 
              Functional impairment is an element to be considered in 
 
         determining industrial disability which is the reduction of 
 
         earning capacity, but consideration must also be given to the 
 
         injured employee's age, education, qualifications, experience and 
 
         inability to engage in employment for which he is fitted.  Olson 
 
         v. Goodyear Service Stores, 255 Iowa 1112, 1121 125 N.W.2d 251, 
 
                                                
 
                                                         
 
         257 (1963).
 
         
 
              Initially, Dr. Mirbegian said on July 23, 1987, that he 
 
         believed this patient had acquired the two new bulges (L3, L4, 
 
         L5, S1) and the degeneration of the disc material since the 
 
         operation (ex. 4, p. 12).  Then, in his deposition Dr. Mirbegian 
 
         said that the two new bulges would be caused by the same event, 
 
         but were not detected by the lumbar myelogram in September of 
 
         1986, but were detected by the MRI on May 21, 1987 because the 
 
         MRI is more precise (ex. 7, p. 13).  It should be noted that the 
 
         CT scan in September of 1986 also failed to pick up the two 
 
         bulges in question.  It would appear that Dr. Mirbegian's later 
 
         testimony is in conflict and contradicts his earlier medical 
 
         report.  No explanation was given for this inconsistency.
 
         
 
              Dr. Blair did not address whether the L3, L4 and L5, S1 
 
         conditions were caused by the injury of August 9, 1986.  He did 
 
         say claimant's residual disability was related primarily to the 
 
         postoperative status for removal of the ruptured disc at L4, L5.
 
         
 
              Dr. Boarini said that he found no clinical evidence for a 
 
         L3, L4 and L5, S1 condition because claimant had no leg pain.
 
         
 
              Therefore, claimant did not sustain the burden of proof by a 
 
         preponderance of the evidence that the defects uncovered by the 
 
         MRI in May of 1987 were caused by the injury that occurred on 
 
         August 9, 1986.  The evaluation of Dr. Mirbegian and the 
 
         evaluation of Dr. Blair took into consideration the disc problems 
 
         at all three levels (ex. 4, p. 12; ex. 7, pp. 7 & 11; ex. 2, p. 
 
         3).  As a result, the rating of Dr. Mirbegian of 25 percent of 
 
         the body as a whole and the rating of Dr. Blair of 20 percent to 
 
         the body as a whole take into account the bulges showing on the 
 
         MRI at,L3, L4 and L5, S1 and these two opinions must be 
 
         discounted accordingly as to the percentage of impairment 
 
         applicable to this injury.
 
         
 
              Dr. Boarini's rating is more accurate in rating the proven 
 
         permanent impairment in this case.  In addition, Dr. Boarini gave 
 
         the most satisfactory explanation for his rating.  He explained 
 
         that the Guides to the Evaluation of Permanent Impairment, second 
 
         edition, published by the American Medical Association suggests a 
 
         5 percent rating for anyone who has had a laminectomy with no 
 
         radicular symptoms and no neurological findings.  Dr. Boarini 
 
         said he added 1 percent for pain and continued discomfort that 
 
         sometimes follows a lumbar laminectomy (ex. 7, pp. 11 & 12, dep. 
 
         ex. 1, p. 2).  Dr. Boarini's evaluation also is compatible with 
 
         the evaluation given by other physicians for lumbar laminectomies 
 
         in other cases.  Agency expertise may be employed in determining 
 
         industrial disability (Iowa Administrative Procedure Act, section 
 
         17A 14(5)].
 
         
 
              For these reasons Dr. Boarini's opinion is preferred over 
 
         that of Dr. Mirbegian and Dr. Blair.  Rockwell Graphics Systems, 
 
         Inc. v. Prince, 366 N.W.2d 187, 192 (Iowa 1985).  Furthermore, a 
 
         doctor's board certification and other factors contained in a 
 
                                                
 
                                                         
 
         curriculum vitae may accord his testimony greater weight.  
 
         Reiland v. Pelco, Inc., Thirty-second Biennial Report of the 
 
         Industrial Commissioner 56, 1975; Dickey v. I.T.T. Continental 
 
         Baking Co., Thirty-fourth Biennial Report of the Industrial 
 
         Commissioner 89 (1979).
 
         
 
              Claimant had not seen Dr. Mirbegian for several months prior 
 
         to the hearing and was not taking any medication except an 
 
         occasional Darvon for pain.
 
         
 
              Claimant did return to work at the convalescent home and 
 
         performed the job of nurse's aide for approximately four months, 
 
         from January to May of 1987.  Claimant testified that she worked 
 
         short weeks of only three or four days due to back pain.  Varner 
 
         said this was possible, but she was not aware of it from her 
 
         observation and recollection.  Dr. Boarini thought claimant could 
 
         perform the nurse's aide job.  Dr. Mirbegian never indicated that 
 
         she could not or should not perform this job.  On the contrary, 
 
         he released her to return to work in the beginning of 1987 
 
         without any restrictions, limitations or reservations.  Dr. Blair 
 
         suggested different work without heavy, repetitive lifting and 
 
         bending.  Claimant's job as nurse's aide does require lifting 
 
         patients and probably bending while lifting them.  However, 
 
         whether a nurse's aide does this on a repetitive basis would 
 
         depend upon the facts in each case.  Claimant did not testify how 
 
         often she bent and lifted patients in a given day or on the 
 
         average.
 
         
 
              Claimant may have been wise to abandon the nurse's aide work 
 
         in view of the one lumbar laminectomy and the fact that she has 
 
         two other defects which, while not having developed clinical 
 
         symptoms, are still detectable on the MRI scan.  Nevertheless, 
 
         claimant did not sustain the burden of proof by a preponderance 
 
         of the evidence that it was medically necessary to quit her job 
 
         due to this injury.  Apprehension or fear of a possible future 
 
         injury, unsupported by objective medical evidence, cannot be the 
 
         basis for impairment or actual disability.  This is analogous to 
 
         the statement that pain, not substantiated by clinical findings 
 
         is not a substitute for impairment.  Waller v. Chamberlain Mfg., 
 
         II Iowa Industrial Commissioner Report 419, 425 (1981).
 
         
 
              Varner testified that claimant said that she quit to take 
 
         care of her mother.  Varner testified that claimant did not say 
 
         that she quit due to her back injury.  Claimant did not testify 
 
         that she told Varner or employer that she quit due to her back 
 
         injury.
 
         
 
              Defendants clearly raised the possibility that a portion of 
 
         claimant's disability is due to her weight and failure to 
 
         exercise regularly as recommended by both Dr. Mirbegian and Dr. 
 
         Boarini. Claimant testified that she rode an exercise bicycle 
 
         sometimes, but she did not say how much.  She did not testify as 
 
         to any other exercise that she was engaged in.  She testified 
 
         that she has gained 30 pounds since 1986 when this injury 
 
         occurred.  She said that she is 5 foot 8 inches tall and weighed 
 
                                                
 
                                                         
 
         197 pounds at the time of the hearing.
 
         
 
              Claimant is 32 years old.  She is a high school graduate, a 
 
         graduate of cosmetology school and a graduate of Southeast Iowa 
 
         Community College with a certificate as a nurse's aide.  She has 
 
         demonstrated that she can learn new areas of endeavor.  As a 
 
         mother of three small children, she employs numerous skills from 
 
         hard labor to effective people management skills several times 
 
         daily.  At age 32 claimant is young enough to enter a complete 
 
         new field of endeavor.  The feasibility of retraining is a 
 
         consideration involved in the determination of industrial 
 
         disability.  Conrad v. Marquette School, Inc. IV Iowa Industrial 
 
         Commissioner Report 74, 78 (1984).
 
         
 
              It cannot be said that claimant's method of earning a 
 
         living, that she was performing at the time of the injury and in 
 
         the past, has been foreclosed to her.  Michael v. Harrison 
 
         County, Thirty-fourth Biennial Report of the Industrial 
 
         Commissioner 218, 220 (app. dec. January 30, 1979).  Dr. 
 
         Mirbegian released her to return to work in January of 1987 and 
 
         she did perform the work for approximately four months, from 
 
         January to May of 1987.  Dr. Boarini testified that claimant 
 
         could still return to work as a nurse's aide in his deposition 
 
         given on November 3, 1988, if she prepared with the proper body 
 
         conditioning.
 
         
 
              Claimant testified that she went to job service and inquired 
 
         about employment at a few places, but did not testify to or 
 
         demonstrate a determined effort to secure employment.  She did 
 
         not give details on who she had contacted or where she had made 
 
         job applications.  An employee making a claim for industrial 
 
         disability will benefit by showing a sincere attempt to find 
 
         work. Hild v. Natkin & Company, I Iowa Industrial Commissioner 
 
 
 
                            
 
                                                         
 
         Report 144 (app. dec. 1981) ; Beintema v. Sioux City Engineering 
 
         Co. , II Iowa Industrial Commissioner Report 24 (1981); Cory v. 
 
         Northwestern States Portland Cement Co., Thirty-third Biennial 
 
         Report of the Industrial Commissioner 104 (1976).
 
         
 
              Claimant's testimony about her restrictions and limitations 
 
         in everyday life are not supported by the medical evidence of any 
 
         of the three physicians who gave evidence in this case, Dr. 
 
         Mirbegian, Dr. Blair or Dr. Boarini.  Dr. Schulte and Dr. Lee did 
 
         not submit medical reports.
 
         
 
              Industrial disability can be equal to, less than, or greater 
 
         than functional impairment.  Lawyer and Higgs, Iowa Workers' 
 
         Compensation--Law & Practice,  13-5, p. 116 and 1988 supplement, 
 
         page 21.  Wherefore, based upon the foregoing considerations and 
 
         all of the factors used to determine industrial disability, it is 
 
         determined that claimant has sustained an industrial disability 
 
         of 20 percent of the body as a whole.
 
         
 
                                FINDINGS OF FACT
 
         
 
              Wherefore, based upon the evidence presented, the following 
 
         findings of fact are made.
 
         
 
              That claimant injured her back while assisting a patient at 
 
         work on August 9, 1986.  That the injury was the cause of a 
 
         lumbar laminectomy on September 25, 1986.
 
         
 
              That claimant sustained a 6 percent permanent partial 
 
         impairment of the body as a whole due to the injury and the 
 
         resulting lumbar laminectomy.
 
         
 
              That claimant can return to work and perform her former 
 
         employment as a nurse's aide if she performs the proper body 
 
         conditioning and loses some weight.  That claimant can be 
 
         retrained to learn other areas of endeavor.
 
         
 
              That claimant has sustained a 20 percent industrial 
 
         disability of the body as a whole.
 
         
 
                            CONCLUSIONS OF LAW
 
         
 
              WHEREFORE, based upon the evidence presented and the 
 
         principles of law previously discussed, the following conclusions 
 
         of law are made.
 
         
 
              That the injury of August 9, 1986, was the cause of 
 
         permanent impairment.
 
         
 
              That claimant is entitled to 100 weeks of permanent partial 
 
         disability based upon a 20 percent industrial disability to the 
 
         body as a whole.
 
         
 
              That defendants are entitled to a credit for 100 weeks of 
 
         permanent partial disability benefits paid prior to hearing.
 
                                                
 
                                                         
 
         
 
                                   ORDER
 
         
 
              THEREFORE, IT IS ORDERED:
 
         
 
              That no additional amounts are owed by defendants to 
 
         claimant as a result of this injury.
 
         
 
              That the costs of this action are charged to claimant 
 
         pursuant to Division of Industrial Services Rule 343-4.33, except 
 
         the cost of the transcript, which defendants ordered and offered 
 
         to pay for at the time of the hearing.
 
         
 
              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 28th day of March, 1989.
 
         
 
         
 
         
 
         
 
         
 
         
 
                                            WALTER R. McMANUS, JR.
 
                                            DEPUTY INDUSTRIAL 
 
                                            COMMISSIONER
 
         
 
         Copies to:
 
         
 
         Mr. James P. Hoffman
 
         Attorney at Law
 
         PO Box 1066
 
         Middle Road
 
         Keokuk, IA  52632-1066
 
         
 
         Mr. Walter Johnson
 
         Attorney at Law
 
         111 W 2nd St.
 
         PO Box 716
 
         Ottumwa, IA  52501
 
         
 
         
 
         
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
                                                
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                            1401, 1402.40, 1703, 1803, 
 
                                            2907
 
                                            Filed March 28, 1989
 
                                            WALTER R. McMANUS, JR.
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         DELORES A. MORTIMER,
 
         
 
              Claimant,
 
                                                      File No. 830334
 
         vs.
 
                                                   A R B I T R A T I O N
 
         KEOKUK CONVALESCENT CENTER,
 
                                                      D E C I S I O N
 
              Employer,
 
         
 
         and
 
         
 
         LIBERTY MUTUAL INSURANCE CO.,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         1402, 1402.40, 1703, 1803, 2907
 
         
 
              The sole issue was entitlement to permanent partial 
 
         disability benefits.  Claimant was awarded 20 percent industrial 
 
         disability, but had been paid 20 percent industrial disability 
 
         prior to hearing so netted out nothing and was ordered to pay the 
 
         costs of this action.
 
         
 
         
 
         
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
                                                
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                    BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         EDWARD E. MILLER,
 
         
 
              Claimant,
 
                                                File No. 830383
 
         vs.
 
                                             A R B I T R A T I O N
 
         HOODS SUPER VALU,
 
                                                D E C I S I O N
 
              Employer,
 
         
 
         and
 
         
 
         AMERICAN FAMILY INSURANCE
 
         GROUP,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         
 
                                   INTRODUCTION
 
         
 
              This is a proceeding in arbitration brought by Edward E. 
 
         Miller, claimant, against Hood's Super Valu, employer, and 
 
         American Family Insurance Group, insurance carrier, defendants, 
 
         for benefits as a result of an alleged injury on August 15, 1986.  
 
         On August 23, 1988, this case was heard by the undersigned in 
 
         Storm Lake, Iowa.  The case was considered fully submitted at the 
 
         completion of the hearing.
 
         
 
              The record consists of the testimony of claimant, the 
 
         testimony of Stanley Thorpe, a vocational specialist, the 
 
         testimony of John Hood, claimant's exhibits 1-3, employer's 
 
         exhibit A and joint exhibits 1-6.
 
         
 
                                      ISSUES
 
         
 
              The issues presented by the parties at the time of the 
 
         prehearing and hearing are whether claimant received an injury 
 
         which arose out of and in the course of employment; whether there 
 
         is a causal relationship between the alleged injury and the 
 
         disability; whether claimant is entitled to temporary disability/ 
 
         healing period benefits and/or permanent partial disability 
 
         benefits.
 
         
 
                                 FACTS PRESENTED
 
         
 
              Claimant was employed as a meat cutter in the meat 
 
         department at defendant's place of business from May 20, 1985 
 
         through August 15, 1986, the date of the alleged injury.  On that 
 
         date, claimant was unloading and stocking boxes of chuck roasts.  
 
         The boxes were piled four or five high.  Claimant was lifting an 
 
         80 pound box when he felt a sharp pain, like a pin prick, in his 
 
         back.
 
         
 
              The next day claimant reported the injury to his supervisor, 
 
         Dave Nelson, manager of the meat market.  Claimant was assigned 
 
         light duty for that day.  Claimant testified his condition 
 
         worsened over the weekend and he reported his injuries to John 
 
         Hood, store owner and manager.  With the knowledge and consent of 
 
         defendant, claimant went to the Christensen Chiropractic Center 
 
         for 13 treatment sessions. claimant returned to work for four or 
 

 
         
 
         
 
         MILLER V. HOODS SUPER VALU
 
         PAGE 2
 
         
 
         
 
         five days after the treatment sessions.  However, claimant 
 
         revealed he was advised by the chiropractor not to return to 
 
         work.  Later claimant was requested by defendants to see Joseph 
 
         Temple, M.D.  Claimant eventually had surgery for a herniated 
 
         disk.
 
         
 
              Claimant was refused subsequent employment by defendant, 
 
         once claimant obtained a release from his physician.  John Hood 
 
         testified claimant had presented work restrictions to him from 
 
         claimant's physician but there was no position available.
 
         
 
         
 
                                  APPLICABLE LAW
 
         
 
              An employee is entitled to compensation for any and all 
 
         personal injuries which arise out of and in the course of the 
 
         employment.  Section 85.3(l).
 
         
 
              Claimant has the burden of proving by  a  preponderance of 
 
         the evidence that he received an injury on August 15, 1986 which 
 
         arose out of and in the course of his employment.  McDowell v. 
 
         Town of Clarksville, 241 N.W.2d 904 (Iowa 1976); Musselman v. 
 
         Central Telephone Co., 261 Iowa 352, 154 N.W.2d 128 (1967).
 
         
 
              The injury must both arise out of and be in the course of 
 
         the employment.  Crowe v. DeSoto Consol. Sch.  Dist., 246 Iowa 
 
         402, 68 N.W.2d 63 (1955) and cases cited at pp. 405-406 of the 
 
         Iowa Report.  See also Sister Mary Benedict v. St. Mary's Corp., 
 
         255 Iowa 847, 124 N.W.2d 548 (1963) and Hansen v. State of Iowa, 
 
         249 Iowa 1147, 91 N.W.2d 555 (1958).
 
         
 
              The words "out of" refer to the cause or source of the 
 
         injury.  Crowe, 246 Iowa 402, 68 N.W.2d 63 (1955).
 
         
 
              The words "in the course of" refer to the time and place and 
 
         circumstances of the injury.  McClure v. Union et al. Counties, 
 
         188 N.W.2d 283 (Iowa 1971); Crowe, 246 IOwa 402, 68 N.W.2d 63 
 
         (1955).
 
         
 
              "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, 188 N.W.2d 283 (Iowa 1971); 
 
         Musselman, 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 August 15, 1986 is causally 
 
         related to the disability on which he now bases his claim.  
 
         Bodish v. Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867 (1965).  
 
         Lindahl v. L.O. Boggs, 236 Iowa 296, 18 N.W.2d 607 (1945).  A 
 
         possibility is insufficient; a probability is necessary.  Burt v. 
 
         John Deere Waterloo Tractor Works, 247 Iowa 691, 73 N.W.2d 732 
 
         (1955).  The question of causal connection is essentially within 
 
         the domain of expert testimony.  Bradshaw v. Iowa Methodist 
 
         Hospital, 251 Iowa 375, 101 N.W.2d 167 (1960).
 
         
 
              However, expert medical evidence must be considered with all 
 
         other evidence introduced bearing on the causal connection.  
 
         Burt, 247 Iowa 691, 73 N.W.2d 732.  The opinion of experts need 
 
         not be couched in definite, positive or unequivocal language.  
 
         Sondag v. Ferris Hardware, 220 N.W.2d 903 (Iowa 1974).  However, 
 
         the expert opinion may be accepted or rejected, in whole or in 
 
         part, by the trier of fact.  Id. at 907.  Further, the weight to 
 
         be given to such an opinion is for the finder of, fact, and that 
 
         may be affected by the completeness of the premise given the 
 
         expert and other surrounding circumstances.  Bodish, 257 Iowa 
 
         516, 133 N.W.2d 867.  See also Musselman, 261 Iowa 352, 154 
 

 
         
 
         
 
         
 
         MILLER V. HOODS SUPER VALU
 
         PAGE   3
 
         
 
         
 
         N.W.2d 128 (1967).
 
         
 
              The right of a worker to receive compensation for injuries 
 
         sustained which arose out of and in the course of employment is 
 
         statutory.  The statute conferring this right can also fix the 
 
         amount of compensation to be paid for different specific 
 
         injuries, and the employee is not entitled to compensation except 
 
         as provided by the statute.  Soukup v. Shores Co., 222 Iowa 272, 
 
         268 N.W. 598 (1936).
 
         
 
              An injury is the producing cause; the disability, however, 
 
         is the result, and it is the result which is compensated.  Barton 
 
         v. Nevada Poultry Co., 253 Iowa 285, 110 N.W.2d 660 (1961); 
 
         Dailey v. Pooley Lumber Co., 233 Iowa 758, 10 N.W.2d 569 
 
         (1943).
 
         
 
              Functional disability 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, 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 later to anatomical or 
 
         functional abnormality or loss.  Although loss of function is to 
 
         be considered and disability can rarely be found without it, it 
 
         is not so that a degree of industrial disability is 
 
         proportionally related to a degree of impairment of bodily 
 
         function.
 
         
 
              Factors to be considered in determining industrial 
 
         disability include the employee's medical condition prior to the 
 
         injury, immediately after the injury, and presently; the situs of 
 
         the injury, its severity and the length of healing period; the 
 
         work experience of the employee prior to the injury, after the 
 
         injury and potential for rehabilitation; the employee's 
 
         qualifications intellectually, emotionally and physically; 
 
         earnings prior and subsequent to the injury; age; education; 
 
         motivation; functional impairment as a result of the injury; and 
 
         inability because of the injury to engage in employment for which 
 
         the employee is fitted.  Loss of earnings caused by a job 
 
         transfer for reasons related to the injury is also relevant.  
 
         These are matters which the finder of fact considers collectively 
 
         in arriving at the determination of the degree of industrial 
 
         disability.
 
         
 
              There are no weighting guidelines that indicate how each of 
 
         the factors are to be considered.  There are no guidelines which 
 
         give, for example, age a weighted value of ten percent of the 
 
         total value, education a value of fifteen percent of total, 
 
         motivation - five percent; work experience - thirty percent, etc. 
 
          Neither does a rating of functional impairment directly 
 
         correlate to a degree of industrial disability to the body as a 
 
         whole.  In other words, there are no formulae which can be 
 
         applied and then added up to determine the degree of industrial 
 
         disability.  It therefore becomes necessary for the deputy or 
 
         commissioner to draw upon prior experience, general and 
 

 
         
 
         
 
         
 
         MILLER V. HOODS SUPER VALU
 
         PAGE   4
 
         
 
         
 
         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).
 
         
 
              In Parr v. Nash Finch Co., (Appeal Decision, October 31, 
 
         1980) the industrial commissioner, after analyzing the decisions 
 
         of McSpadden v. Big Ben Coal Co., 288 N.W.2d 181 (Iowa 1980) and 
 
         Blacksmith v. All-American, Inc., 290 N.W.2d 348 (Iowa 1980), 
 
         stated:
 
         
 
              Although the court stated that they were looking for 
 
              the reduction in earning capacity it is undeniable that 
 
              it was the "loss of earnings" caused by the job 
 
              transfer for reasons related to the injury that the 
 
              court was indicating justified a finding of "industrial 
 
              disability."  Therefore, if a worker is placed in a 
 
              position by his employer after an injury to the body as 
 
              a whole and because of the injury which results in an 
 
              actual reduction in earning, it would appear this would 
 
              justify an award of industrial disability.  This would 
 
              appear to be so even if the worker's "capacity" to earn 
 
              has not been diminished.
 
         
 
              For example, a defendant employer's refusal to give any sort 
 
         of work to a claimant after he suffers his affliction may justify 
 
         an award of disability.  McSpadden, 288 N.W.2d 181 (Iowa 1980).
 
         
 
              Similarly, a claimant's inability to find other suitable 
 
         work after making bona fide efforts to find such work may 
 
         indicate that relief would be granted.  McSpadden, 288 N.W.2d 181 
 
         (Iowa 1980).
 
         
 
         
 
                                     ANALYSIS
 
         
 
              Claimant is a 49 year old high school graduate who has been 
 
         primarily employed in the grocery and meat industries.  During 
 
         the course of his employment at defendant's establishment, 
 
         claimant was required to carry boxes of meat, cut roasts, and 
 
         chickens, clean and wrap meat, and to engage in meat counter work 
 
         while standing all day.  Claimant earned $6.00 per hour at the 
 
         time of his injury.  He worked at least 40 hours per week.
 
         
 
              After claimant's injury, he was treated by a number of 
 
         physicians, physical therapists and chiropractors.  In January of 
 
         1987, claimant was evaluated by Gene Swanson, M.D., an orthopedic 
 
         surgeon in Blue Earth, Minnesota.  Dr. Swanson performed an . 
 
         L4-L5 diskectomy on February 13, 1987.  Claimant was hospitalized 
 
         for approximately one week.  Four months after the surgery, 
 
         claimant was experiencing low back pain.  He saw Dr. Swanson 
 
         three times after the surgery.
 
         
 
              Dr. Swanson in his letter of July 8, 1988 writes:
 
         
 
              It is my impression that Mr. Miller sustained the 
 
              herniation of the lumbar disc in a work-related injury 
 
              on August 15th of 1986.  I have previously reviewed and 
 
              rated his disability level according to the standards 
 
              applicable for the state of Minnesota.  This has 
 
              resulted in an 11 percent permanent partial impairment 
 
              rating.  It is my understanding that AMA guidelines 
 
              differ somewhat and result in a somewhat lower rating, 
 

 
         
 
         
 
         
 
         MILLER V. HOODS SUPER VALU
 
         PAGE   5
 
         
 
         
 
              however, my impression would be that this individual 
 
              was involved in a work-related injury in the state of 
 
              Minnesota, and therefore, the ratings under the 
 
              Workers' Compensation Permanent Partial disability 
 
              schedule effective November of 1985 are in force for 
 
              this individual and would be appropriate.
 
         
 
              Because of claimant's lack of progress, defendants requested 
 
         claimant to see J. Michael Donohue, M.D., for purposes of 
 
         examination, evaluation and possible treatment at the Back 
 
         Rehabilitation Clinics of America.  Claimant was first seen by 
 
         Dr. Donahue on June 1, 1987.  Dr. Donahue recommended treatment 
 
         in the isokinetic rehabilitation program for a period of six to 
 
         eight weeks because of weaknesses in the extensor muscles of the 
 
         lumbar spine.
 
         
 
              Claimant participated in the therapy program per Dr. 
 
         Donohue's recommendation.  On August 12, 1987, Dr. Donahue 
 
         evaluated claimant for the fourth time.  Dr. Donahue, by way of 
 
         deposition, testified that as of the above date, he noted:
 
         
 
              A.  What I noted here that -- that -- I put in my note 
 
              that the patient had been neglecting instructions on 
 
              warming up and cooling down, which is what we feel an 
 
              important part of the rehabilitation program, and that 
 
              also he had moderate variations with respect to peak 
 
              torque values on the trunk extension-flexion unit.
 
         
 
              Q.  What -- These moderate variations, what did that 
 
              lead you to believe, if anything?
 
         
 
              A.  Again, that confirmed in my mind that the patient 
 
              was not giving a maximal effort.  And, for an example, 
 
              the variation present on one of the areas tested 
 
              between 8-10 and 8-12, which is only two days, was 
 
              almost 35 percent.
 
         
 
              Q.  What area, Doctor?
 
         
 
              A.  That would be testing and rehabilitating the 
 
              muscles that flex and extend the spine.  This was 
 
              present in two of the three speeds that he was tested.  
 
              And again the conclusion when there is greater than a 
 
              10 percent variation in a -- in a short period of time 
 
              like this is that the individual i!3 not giving a 
 
              maximal effort.
 
         
 
              Q.  Did you begin to discuss the amount of effort he 
 
              was putting into the program with Mr. Miller on August 
 
              12?
 
         
 
              A.  Yes, I did.  After examining him again, I noted 
 
              that -- I reviewed his discrepancies [sic] and related 
 
              the difficulty that he would have in improving the 
 
              situation with his current attitude.  I also documented 
 
              that the patient discussed with me that he had a poor 
 
              attitude with respect to his recovery and admitted that 
 
              this may be impairing his ability to participate in the 
 
              program.  We were at the point from when we attempted 
 
              the program of a little over seven weeks with no 
 
              significant improvement.  And based on this as well as 
 
              my observations during my personal examinations of the 
 
              patient, I didn't feel that any further rehabilitation 
 

 
         
 
         
 
         
 
         MILLER V. HOODS SUPER VALU
 
         PAGE   6
 
         
 
         
 
              would -- would improve his -- his situation.
 
         (Joint Exhibit 4, page 24, line 17 to page  26, line 2)
 
         
 
              Dr. Donahue opined claimant "would have an 80 percent 
 
         probability of significant improvement if he would have given a 
 
         maximal effort." (Jt. Ex. 4, page 32, lines 23-24)  Dr. Donahue 
 
         also believed claimant exaggerated his subjective symptoms.  Dr. 
 
         Donahue based his opinion on the positive pain responses he 
 
         received after he performed Waddell tests for non-organic signs 
 
         of low back pain. (Jt. Ex. 4, page 33).  Dr. Donahue did not 
 
         believe claimant was a candidate for further surgery.
 
         
 
              During his deposition, Dr. Donahue was asked under 
 
         cross-examination to provide an impairment rating.  He 
 
         testified:
 
         
 
              ... I can give a ballpark -- I would anticipate Mr. 
 
              Miller's permanent rating to be in the 6 or 7 percent 
 
              person based on previous lumbar surgery with 
 
              residuals.
 
         
 
              Q.  Okay. You still felt -- Let me ask it this way: 
 
              Even if your program would have been 100 percent 
 
              successful, which apparently it is in some situations, 
 
              you would not completely have eradicated the physical 
 
              impairment that Mr. Miller suffered.  Is that a fair 
 
              statement?
 
         
 
              A.  That's correct.
 
         
 
              Q.  So your best hope was to improve it, not to 
 
              eliminate it.
 
         
 
              A.  That's correct.
 
         
 
              Q.  Even with the optimal result, he'd still have 
 
              permanent partial impairment as a result of the injury 
 
              he sustained at the freezer at work.
 
         
 
              A.  That's correct.
 
         (Jt. Ex. 4, p. 55, lines 4-21)
 
         
 
              During redirect examination, Dr. Donahue testified:
 
         
 
              Q.  Mr. Fitzgibbons asked you what the whole body 
 
              disability rating would be in your opinion as of August 
 
              --
 
         
 
              A.  12th.
 
         
 
              Q. --12, 1987.  Doctor, are you able to express the 
 
              same opinion had Mr. Miller given a maximal effort to 
 
              your rehab program?
 
         
 
              A.  Yes.  By the AMA guidelines, an individual --That's 
 
              why I bring the book.  On page 57 of the AMA 
 
              guidelines, "intervertebral disk lesions," operated, 
 
              disk removed without residuals, 5 percent.  So, in 
 
              other words, as I was saying before, an excellent 
 
              result after disk surgery carries a 5 percent permanent 
 
              impairment rating, whereas in Minnesota it's 9 percent 
 
              for the identical situation.
 
         (Jt. Ex. 4, pp. 58-59, lines 21-10)
 

 
         
 
         
 
         
 
         MILLER V. HOODS SUPER VALU
 
         PAGE   7
 
         
 
         
 
         
 
              The opinion of Dr. Donahue as to claimant's functional 
 
         impairment is accorded great weight.  While he was not the 
 
         surgeon in the case at hand, he did examine and treat claimant on 
 
         four separate occasions.  Dr. Donohue's associate, Sue Stave, a 
 
         physical therapist, saw claimant three times a week for 
 
         approximately eight weeks.  During this time frame, Ms. Stave 
 
         held weekly conferences with Dr. Donahue concerning the progress 
 
         of their patients.  Various objective tests were given to 
 
         claimant to determine the extension/flexion of the trunk, as well 
 
         as five Waddell tests to determine subjective factors.
 
         
 
              Dr. Swanson, concurred with the rehabilitation which 
 
         claimant was receiving from Dr. Donahue.  Once claimant was seen 
 
         by Donahue, Dr. Swanson served only a secondary role.  Dr. 
 
         Swanson did write in his letter of September 29, 1987:
 
         
 
              Mr. Miller was re-evaluated in the office on September 
 
              23, 1987.  He states that he took the work restriction 
 
              slip which was given to him by Dr. Donahue as well as 
 
              by myself a month ago, or so, to his supervisor at the 
 
              grocery store and the supervisor just laughed at him 
 
              and told him there was no way that he could come back 
 
              to work with those types of limitations.  To review 
 
              those limitations, he was limited to 25 or 30 pounds of 
 
              lifting and not to have to do repetitive bending, 
 
              stooping, etc.  I would feel that it is only reasonable 
 
              that Mr. Miller be returned to a lighter type of job 
 
     
 
         
 
         
 
         
 
         
 
         MILLER V. HOODS SUPER VALU
 
         PAGE   8
 
         
 
         
 
              activity initially, although I anticipate that he may 
 
              well be able to work into 50 to 60 pound weight 
 
              restriction eventually.  I do not think that is 
 
              appropriate to do right at the initial onset of his 
 
              return to work.
 
         
 
              Secondly, he states that he still has some discomfort 
 
              in his back, particularly if he stands for a long 
 
              period at one time or else if he rides in the car for 
 
              any distance.
 
         
 
              In my opinion, he remains unable to return to his 
 
              completely normal work activity, but I do think he 
 
              could return to work activity of a somewhat lighter 
 
              nature.  In my opinion, further, he would be classified 
 
              under 5223.0070, Subpart 1, Lumbar spine, B. Herniated 
 
              intervertebral disc, (2) condition treated by surgery:, 
 
              (b) average results such as mild increase in symptoms 
 
              with bending and lifting, mild to moderate restriction 
 
              of activities related to back and leg pain resulting in 
 
              an 11% permanent partial disability level.
 
         
 
              I will be happy to review again in the future as seems 
 
              necessary and he was scheduled for a functional 
 
              capacities evaluation in order to put some hard numbers 
 
              on his exact limitations.
 
         
 
              Even claimant testified that as far as a release for work, 
 
         Dr. Swanson reported he would defer to Dr. Donahue.  Claimant 
 
         revealed he had not seen Dr. Swanson since September 29, 1987.  
 
         Therefore, much weight is given to the seven percent functional 
 
         impairment rating which was provided by Dr. Donahue.
 
         
 
              Claimant asserts he has an industrial disability which 
 
         exceeds any functional impairment rating.  At the time of the 
 
         injury, claimant was earning $6.00 per hour.  There is no 
 
         question defendants refused to place claimant back to work on a 
 
         light duty basis.  Mr. John Hood, in his deposition stated:
 
         
 
              Q.  Now, am I -- is it still your position you would 
 
              not be willing to have Mr. Miller back to work until he 
 
              could return to work without any medical restrictions?
 
         
 
              A.  Yes, sir.
 
         
 
                 ....
 
         
 
              Q. ...Do you really feel that Mr. Miller quit work?
 
         
 
              A. We felt that there -- after he was in in August,
 
              that there probably just was a separation at that
 
              time.
 
         (Jt. Ex. 6, p. 18, lines 22-25, p. 19, lines 12-14)
 
         
 
              Neither have defendants offered any type of vocational 
 
         rehabilitation or counseling to claimant.  In anticipation of 
 
         litigation, claimant hired Stanley Thorpe, a vocational 
 
         specialist to render an opinion as to claimant's employability.  
 
         Mr. Thorpe opined there were severe limitations as to claimant's 
 
         employability in his area of skill.  According to Mr.Thorpe, 
 
         there are now less jobs available to claimant based upon 
 
         claimant's severe physical limitations in his skill area, and 
 
         upon the general hesitancy of employers to hire employees with 
 

 
         
 
         
 
         
 
         MILLER V. HOODS SUPER VALU
 
         PAGE   9
 
         
 
         
 
         prior back problems.  Mr. Thorpe also indicated claimant's lack 
 
         of education is a hinderance as far as obtaining employment 
 
         outside of physically demanding occupations.
 
         
 
              Claimant testified since June of 1988, he has been employed 
 
         on a part-time basis at Central Graphics in Blue Earth, 
 
         Minnesota.  There he has bundled books and stacked them on 
 
         pallets for $4.00 per hour.  Claimant has been working 
 
         approximately 60 hours per month for Central Graphics.
 
         
 
              Claimant also testified he has been employed as a seasonal 
 
         worker at Green Giant.  This is only for a short period of time 
 
         processing the sweet corn harvest.
 
         
 
              Claimant stated he has completed several applications for 
 
         employment.  He commenced his job search before Christmas of 
 
         1987.  His search includes applications at Jack and Jill Grocery 
 
         Stores, Winnebago Drainage, Olson's Meat Market, Door to Door 
 
         Grocery, Rodge and Els Red Owl, and Jupper's Super Valu.  
 
         Claimant may not be as motivated as possible to secure other 
 
         employment.
 
         
 
              Claimant, under cross-examination, did reveal that since the 
 
         date of his injury, he has paneled his mothers living room, 
 
         pulled weeds, climbed a ladder and supervised a roofing project.  
 
         Claimant also reported the only medication he is currently taking 
 
         is an over-the-counter analgesic.
 
         
 
              In the case at hand, claimant has met his burden of proving 
 
         that he has an industrial disability greater than the seven 
 
         percent functional impairment of the body as a whole.  Claimant 
 
         has an industrial disability of 30 percent.  Claimant has 
 
         established there is a loss of earning capacity attributable to 
 
         the back injury.  Claimant has shown there has been a loss of 
 
         earnings since the 1986 back injury.  Claimant is not educated 
 
         beyond the high school level.  He is 49 years old.  He has been 
 
         away from the academic setting.  It would be difficult for 
 
         claimant to begin a college career in order to obtain a sedentary 
 
         position.  Claimant has few skills which can carry over to a 
 
         sedentary position.
 
         
 
                     FINDINGS OF FACT AND CONCLUSIONS OF LAW
 
         
 
              WHEREFORE, based on the evidence presented and the 
 
         principles of law previously stated, the following findings of 
 
         fact and conclusions of law are made:
 
         
 
              FINDING 1.  Claimant sustained injuries arising out of and 
 
         in the course of his employment on August 15, 1986.
 
         
 
              FINDING 2.  As a result of the August 15, 1986 injury, 
 
         claimant had back surgery on February 13, 1987.
 
         
 
              CONCLUSION A.  As a result of the August 15, 1986 injury, 
 
         claimant has a functional impairment of seven percent of the body 
 
         as a whole.
 
         
 
              FINDING 3.  Claimant is a 49 year old high school educated 
 
         man who has limited experience outside of physically demanding 
 
         employment.
 
         
 
              FINDING 4.  As a result of his August 15, 1986 injury, 
 
         claimant has only been able to secure part-time temporary 
 

 
         
 
         
 
         
 
         MILLER V. HOODS SUPER VALU
 
         PAGE  10
 
         
 
         
 
         employment.
 
         
 
              CONCLUSION C.  Claimant has met his burden of proving he has 
 
         a 30 percent permanent partial disability.
 
         
 
              FINDING 5.  Claimant was in the healing period from August 
 
         15, 1986 to September 28, 1987.
 
         
 
              CONCLUSION D.  Claimant is entitled to 54 weeks of healing 
 
         period benefits at the rate of $150.00 per week.
 
         
 
                                      ORDER
 
         
 
              THEREFORE, defendants are to pay unto claimant one hundred 
 
         fifty (150) weeks of permanent partial disability benefits at a 
 
         rate of one hundred fifty and no/100 dollars ($150.00) per week.
 
         
 
              Defendants are to pay unto claimant fifty-four (54) weeks of 
 
         healing period benefits at the rate of one hundred fifty and 
 
         no/100 dollars ($150.00).
 
         
 
              Payments that have accrued shall be paid in a lump sum 
 
         together with statutory interest thereon pursuant to Iowa Code 
 
         section 85.30.
 
         
 
              Costs of this action are assessed against the defendants 
 
         pursuant to Division of Industrial Services Rule 343-4.33.
 
         
 
              Defendants shall file a final report upon payment of this 
 
         award.
 
         
 
         
 
              Signed and dated this 24th day of October, 1988.
 
         
 
         
 
         
 
         
 
         
 
         
 
                                        MICHELLE A. McGOVERN
 
                                        DEPUTY INDUSTRIAL COMMISSIONER
 
         
 
         Copies To:
 
         
 
         Mr. Joseph L. Fitzgibbons
 
         Attorney at Law
 
         108 N. Seventh St.
 
         P. O. Box 496
 
         Estherville, Iowa  51334
 
         
 
         Mr. Bradley B. Howe
 
         Attorney at Law
 
         1823 Highway Blvd.
 
         P. O. Box 1032
 
         Spencer, Iowa 51301
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                                1803
 
                                                Filed October 24, 1988
 
                                                MICHELLE A. McGOVERN
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         EDWARD E. MILLER,
 
         
 
              Claimant,
 
                                              File No. 830383
 
         vs.
 
                                           A R B I T R A T I O N
 
         HOOD'S SUPER VALU,
 
                                              D E C I S I O N
 
              Employer,
 
         
 
         and
 
         
 
         AMERICAN FAMILY INSURANCE
 
         GROUP,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         
 
         1803
 
         
 
              Claimant awarded 30 percent industrial disability subsequent 
 
         to injury of claimant's back.
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                          1802,1803,1086,2207
 
                                          Filed May 10, 1990
 
                                          DAVID E. LINQUIST
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            DENNIS SANBORN,               :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :      File No. 732672
 
            GRISSEL COMPANY, INC.,        :               830408
 
                                          :
 
                 Employer,                :        A P P E A L
 
                                          :
 
            and                           :      D E C I S I O N
 
                                          :
 
            ROYAL INSURANCE COMPANY and   :
 
            IOWA CONTRACTORS WORKERS'     :
 
            COMPENSATION GROUP,           :
 
                                          :
 
                 Insurance Carriers,      :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
            1802, 1803, 1806, 2207
 
            Claimant experienced back problems dating back to 1968.  On 
 
            May 20, 1983 and October 8, 1984, claimant suffered two 
 
            distinct and separate injuries which resulted in his current 
 
            condition.  Claimant was able to return to defendant's 
 
            employ following the May 20, 1983 injury.  However, the 
 
            injury resulted in a decline of earning capacity.  Following 
 
            claimant's October 23, 1984 injury claimant had a 
 
            laminectomy and has experienced difficulties sitting and 
 
            studying for an extended period.  Claimant's lack of 
 
            motivation adversely impacted upon his overall rating.  
 
            Claimant's preexisting condition resulted in ten percent 
 
            permanent partial disability.  Claimant's May 20, 1983 
 
            injury resulted in twenty percent permanent partial 
 
            disability and October 8, 1984 injury resulted in thirty 
 
            percent permanent partial disability.  Claimant's industrial 
 
            disability is 60 percent.  The error in computation of 
 
            healing period was corrected.