BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
        
 
        
 
        JAMES FERRELL,
 
        
 
            Claimant,                  File No. 830446
 
        
 
        vs.                                A P P E A L
 
        
 
        J. I. CASE COMPANY,              D E C I S I 0 N
 
        
 
            Employer,
 
            Self-Insured,
 
            Defendant.
 
        
 
                                 STATE OF THE CASE
 
                                                
 
        Claimant appeals from an arbitration decision denying permanent 
 
        partial disability and temporary total disability benefits as the 
 
        result of an alleged injury on April 16, 1985.
 
        
 
        The record on appeal consists of the transcript of the 
 
        arbitration proceeding and joint exhibits 1 through 7. Claimant 
 
        filed a brief on appeal.
 
        
 
                                      ISSUES
 
        
 
        Claimant states the following issue on appeal: "Did Claimant's 
 
        work accident of April 16, 1985 cause a period of temporary total 
 
        disability and did it cause any permanent disability to 
 
        Claimant."
 
        
 
                                 REVIEW OF THE EVIDENCE
 
        
 
        The arbitration decision adequately and accurately reflects the 
 
        pertinent evidence and it will not be totally set forth herein.
 
        
 
        Claimant was off work for back problems for three months in 
 
        October of 1977; for 11 days in November of 1978 and for one week 
 
        in 1978 after a snow shoveling injury. The record also shows he 
 
        complained of back pain in January 1978; May 1978; November 1978; 
 
        September 1981; and September 1984. Claimant underwent ongoing 
 
        treatment from T. J. Kennedy, D.C., for these complaints.
 
        
 
        In 1978, claimant was in an auto accident which resulted in 2 
 
        neck injury and chiropractic treatment. In October of 1980, 
 
        claimant was involved in an auto accident which resulted in upper 
 
        back and neck strain. On July 26, 1982, claimant
 
        
 
        FERRELL V. J. I. CASE COMPANY
 
        Page 2
 
        
 
        
 
        was knocked to the ground when a wagon wheel ran over his foot. 
 
        On September 10, 1982, claimant fell in the shower. On October 
 
        16, 1982, claimant fell down some stairs. On January 24, 1984, 
 
        claimant slipped and fell on ice. In June 1984, claimant was 
 
        diagnosed as suffering from acute low back strain after a volley-
 
        ball injury. Claimant testified that after each of these 
 
        incidents, he was able to recover and return to work without 
 
        restrictions.
 
        
 
        On December 28, 1984, claimant injured his upper and lower back 
 

 
        
 
 
 
 
 
        in a third auto accident. Claimant treated for this injury with 
 
        Dr. Reinwein, and on April 15, 1985, the day before the onset of 
 
        pain at Case, claimant had seen Dr. Reinwein, who ordered a CT 
 
        scan in connection with his diagnosis of lumbar radiculopathy. 
 
        Dr. Reinwein's April 15, 1985 examination indicated claimant was 
 
        suffering from low back pain radiating into the left leg. 
 
        However, claimant testified that he did not have leg pain prior 
 
        to the April 16, 1985 incident.
 
        
 
        On April 16, 1985, claimant bent over to pick up a 30-40 pound 
 
        door when he felt a "pop" in his back and felt the onset of pain, 
 
        as well as losing control of his legs for a short time. The next 
 
        day claimant sought medical treatment from William D. Reinwein, 
 
        M.D., a board-certified orthopedic surgeon.
 
        
 
        Dr. Reinwein again examined claimant on April 27, 1985, and noted 
 
        a marked amount of spasm indicative of a recent injury to the low 
 
        back. Claimant's CT scans, which were conducted on April 19, 
 
        1985, revealed a herniated disc at the L5-51 level with some 
 
        bulging at the L5 and L4 levels. A second CT scan in June of 1985 
 
        revealed a possible extrusion of disc material into the canal. 
 
        
 
        Claimant underwent diskectomy surgery by Dr. Reinwein in July 
 
        1985, consisting of a diskectomy and laminectomy of the L4-L5 and 
 
        L5-51 discs. Dr. Reinwein reported that claimant's leg pain 
 
        abated after the surgery. Claimant returned to work at Case on 
 
        October 21, 1985. Claimant testified he was given a 30 pound 
 
        lifting restriction but chose not to report this to his employer 
 
        for fear of losing his job.
 
        
 
        Claimant testified he now has continuing pain in his low back, 
 
        especially after repetitive lifting of 40-50 pounds and 
 
        repetitive bending at the waist, a limited range of motion of the 
 
        torso, and experiences pain after prolonged standing, sitting, or 
 
        walking. Claimant continues to work for defendant Case, although 
 
        he stated there are some job tasks he cannot perform due to these 
 
        symptoms.
 
        
 
        Dr. Reinwein assigned claimant a 15 percent permanent partial 
 
        impairment to the body as a whole, and causally connected this 
 
        impairment to both the December 1984 auto accident and
 
        
 
        FERRELL V. J. I. CASE COMPANY
 
        Page 3
 
        
 
        
 
        the April 16, 1985 work incident, without apportionment. Dr. 
 
        Reinwein's medical records do not reflect claimant's prior back 
 
        problems other than his December 28, 1984 auto accident.
 
        
 
        Claimant was examined by F. Dale Wilson, M.D., in June of 1987. 
 
        Dr. Wilson reported that claimant related to him a history of 
 
        occasional backaches for three or four years prior to the 1984 
 
        auto accident, but claimant did not relate his two prior car 
 
        accidents or other back injuries or incidents of back pain. Dr. 
 
        Wilson gave claimant a 29 percent permanent partial impairment of 
 
        the body as a whole as a result of the April 1985 incident. After 
 
        being informed of claimant's prior back complaints, Dr. Wilson 
 
        stated he would need further information before continuing with 
 
        his earlier opinion as to causal connection.
 
        
 
                                 APPLICABLE LAW
 
        
 
        The claimant has the burden of proving by a preponderance of the 
 
        evidence that the injury of April 16, 1985 is causally related to 
 
        the disability on which he now bases his claim. Bodish v. 
 

 
        
 
 
 
 
 
        Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867 (1965). Lindahl v. 
 
        L.O. Boggs, 236 Iowa 296, 18 N.W.2d 607 (1945). A possibility is 
 
        insufficient; a probability is necessary. Burt v. John Deere 
 
        Waterloo Tractor Works, 247 Iowa 691, 73 N.W.2d 732 (1955). The 
 
        question of causal connection is essentially within the domain of 
 
        expert testimony. Bradshaw v. Iowa Methodist Hospital, 251 Iowa 
 
        375, 101 N.W.2d 167 (1960).
 
        
 
        However, expert medical evidence must be considered with all 
 
        other evidence introduced bearing on the causal connection. Burt, 
 
        247 Iowa 691, 73 N.W.2d 732. The opinion of experts need not be 
 
        couched in definite, positive or unequivocal language. Sondag v. 
 
        Ferris Hardware, 220 N.W.2d 903 (Iowa 1574). 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).
 
        
 
        An employee is not entitled to recover for the results of a 
 
        preexisting injury or disease but can recover for an aggravation 
 
        thereof which resulted in the disability found to exist. Olson v. 
 
        Goodyear Service Stores, 255 Iowa 1112, 125 N. W. 2d 251 (1963); 
 
        Yeager v. Firestone Tire & Rubber Co., 253 Iowa 369, 112 N.W.2d 
 
        299 (1961); Ziegler v. United States Gypsum Co., 252 Iowa 613, 
 
        106 N.W.2d 591 (1960). See also Barz v. Oler, 257 Iowa 508, 133 
 
        N.W.2d 704 (1965); Almquist v. Shenandoah Nurseries, 218 Iowa 
 
        724, 254 N.W. 35 (1934). 
 
        
 
        FERRELL V. J. I. CASE COMPANY
 
        Page 4
 
        
 
        
 
                                      ANALYSIS
 
        
 
        Claimant has appealed the deputy's determination that claimant 
 
        has failed to show that his present condition is causally 
 
        connected to an alleged work injury of April 16, 1985.
 
        
 
        Claimant's medical evidence contains the opinions of Dr. Reinwein 
 
        and Dr. Wilson. Dr. Wilson modified his opinion upon learning of 
 
        claimant's prior injuries. Dr. Wilson's original opinion was 
 
        based upon an incomplete history, and has now been repudiated. 
 
        This opinion is therefore given no weight. The record does not 
 
        show a revised opinion by Dr. Wilson causally connecting 
 
        claimant's present condition with his alleged work injury of 
 
        April 16, 1985.
 
        
 
        The only remaining medical opinion on the issue of causation is 
 
        that of Dr. Reinwein. Dr. Reinwein attributed claimant's present 
 
        condition to two factors, the April 16, 1985 incident and 
 
        claimant's 1984 Car accident. Dr. Reinwein did not distinguish to 
 
        what degree either event caused claimant's present condition. In 
 
        addition, Dr. Reinwein was not aware of claimant's other back 
 
        injuries and incidents of back pain. Although causal connection 
 
        is essentially within the domain of expert testimony, an expert's 
 
        opinion on causal connection is greatly affected by the history 
 
        provided to the expert. Claimant is not required to show that the 
 
        April 16, 1985 incident was the sole cause of his present 
 
        condition. However, claimant does bear the burden of proof to 
 
        show that his present condition was caused to some degree by the 
 
        April 16, 1985 work incident. As only one expert opinion provides 
 
        that causal connection, and that opinion is tainted by omission 
 
        of a significant portion of claimant's medical history, it will 
 

 
        
 
 
 
 
 
        be given little weight.
 
        
 
        Claimant argues on appeal that his prior injuries did not prevent 
 
        him from returning to work and performing his duties. However, 
 
        this argument goes to the degree to which claimant's present 
 
        disability might ultimately be apportioned between his injuries 
 
        prior to April 16, 1985 and the April 16, 1985 incident. It does 
 
        not rectify the absence of reliable evidence causally connecting 
 
        any portion of claimant's disability to the April 16, 1985 
 
        incident. Any of claimant's prior car accidents or other back 
 
        injuries are as likely a cause of his present back condition as 
 
        his injury of April 16, 1985.
 
        
 
        Claimant has failed to carry his burden to show that his present 
 
        condition is causally connected to his alleged April 16, 1985 
 
        work injury.
 
        
 
                                 FINDINGS OF FACT
 
                                                
 
        1. Claimant worked for defendant Case as a welder.
 
        
 
        FERRELL V. J. I. CASE COMPANY
 
        Page 5
 
        
 
        
 
        2. Claimant experienced severe back pain while holding a door he 
 
        was welding on April 16, 1985.
 
        
 
        3. Claimant was diagnosed as suffering from a herniated disc and 
 
        a bulging disc.
 
        
 
        4. Prior to April 16, 1985, claimant had suffered several back 
 
        injuries, including an injury during a volleyball game, a fall 
 
        down stairs, and three automobile accidents resulting in injury 
 
        to the neck or back.
 
        
 
        5. Dr. Wilson's opinion on causal connection was based on an 
 
        incomplete history that omitted references to claimant's back 
 
        injuries occurring prior to April 16, 1985.
 
        
 
        6. Dr. Reinwein's opinion on causal connection attributed 
 
        claimant's present condition to his 1984 auto accident and his 
 
        April 16, 1985 work incident, but was based on an incomplete 
 
        history omitting references to claimant's back injuries prior to 
 
        April 16, 1985 other than his 1984 auto accident.
 
        
 
        7. Claimant's testimony that he did not suffer leg pain prior to 
 
        April 16, 1985 was contradicted by the written report of Dr. 
 
        Reinwein.
 
        
 
        8. Claimant's car accidents and other back injuries prior to 
 
        April 16, 1985 may have caused all or part of claimant's present 
 
        back condition.
 
        
 
                                 CONCLUSION OF LAW
 
        
 
        Claimant has failed to show by a preponderance of the evidence 
 
        that his present condition is caused by the alleged work injury 
 
        of April 15, 1985.
 
        
 
        WHEREFORE, the decision of the deputy is affirmed.
 
        
 
                                      ORDER
 
        
 
        THEREFORE, it is ordered:
 
        
 

 
        
 
 
 
 
 
        That claimant shall take nothing from these proceedings.
 
        
 
        That claimant shall pay the costs of this action pursuant to 
 
        Division of Industrial Services Rule 343-4.33.
 
        
 
        Signed and filed this 31st day of January, 1989.
 
        
 
        
 
        
 
                                          DAVID E. LINQUIST
 
                                       INDUSTRIAL COMMISSIONER
 
        
 
        
 
 
         
 
 
 
 
 
 
 
 
 
 
 
                                        
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         JAMES FERRELL,
 
         
 
              Claimant,                          File No. 830446
 
         
 
         vs.                                       A P P E A L
 
         
 
         J. I. CASE COMPANY,                     D E C I S I O N
 
         
 
              Employer,                             F I L E D
 
              Self-Insured,
 
              Defendant.                           JAN 31 1989
 
         
 
                                          IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
                              STATEMENT OF THE CASE
 
         
 
              Claimant appeals from an arbitration decision denying 
 
         permanent partial disability and temporary total disability 
 
         benefits as the result of an alleged injury on April 16, 1985.
 
         
 
              The record on appeal consists of the transcript of the 
 
         arbitration proceeding and joint exhibits 1 through 7.  Claimant 
 
         filed a brief on appeal.
 
         
 
                                      ISSUES
 
         
 
              Claimant states the following issue on appeal:  "Did 
 
         Claimant's work accident of April 16, 1985 cause a period of 
 
         temporary total disability and did it cause any permanent 
 
         disability to Claimant."
 
         
 
                              REVIEW OF THE EVIDENCE
 
         
 
              The arbitration decision adequately and accurately reflects 
 
         the pertinent evidence and it will not be totally set forth 
 
         herein.
 
         
 
              Briefly stated, claimant worked for defendant J. I. Case 
 
         Company (hereinafter Case) as a welder.  Claimant was off work 
 
         for back problems for three months in October of 1977; for 11 
 
         days in November of 1978; and for one week in 1979 after a snow 
 
         shoveling injury.  The record also shows he complained of back 
 
         pain in January 1978; May 1978; November 1978; September 1981; 
 
         and September 1984.  Claimant underwent ongoing treatment from T. 
 
         J. Kennedy, D.C., for these complaints.
 
         
 
              In 1978, claimant was in an auto accident which resulted in 
 
         a neck injury and chiropractic treatment. In October of 1980, 
 
         claimant was involved in an auto accident which resulted in upper 
 
         back and neck strain.  On July 26, 1982, claimant was knocked to 
 
         the ground when a wagon wheel ran over his foot.  On September 
 
         10, 1982, claimant fell in the shower.  On October 16, 1982, 
 
         claimant fell down some stairs.  On January 24, 1984, claimant 
 
         slipped and fell on ice.  In June 1984, claimant was diagnosed as 
 
         suffering from acute low back strain after a volleyball injury.  
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         Claimant testified that after each of these incidents, he was 
 
         able to recover and return to work without restrictions.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              On December 28, 1984, claimant injured his upper and lower 
 
         back in a third auto accident.  Claimant treated for this injury 
 
         with Dr. Reinwein, and on April 15, 1985, the day before the 
 
         onset of pain at Case, claimant had seen Dr. Reinwein, who 
 
         ordered a CT scan in connection with his diagnosis of lumbar 
 
         radiculopathy.  Dr. Reinwein's April 15, 1985 examination 
 
         indicated claimant was suffering from low back pain radiating 
 
         into the left leg.  However, claimant testified that he did not 
 
         have leg pain prior to the April 16, 1985 incident.
 
         
 
              On April 16, 1985, claimant bent over to pick up a 30-40 
 
         pound door when he felt a "pop" in his back and felt the onset of 
 
         pain, as well as losing control of his legs for a short time.  
 
         The next day claimant sought medical treatment from William D. 
 
         Reinwein, M.D., a board-certified orthopedic surgeon.
 
         
 
              Dr. Reinwein again examined claimant on April  27,  1985, 
 
         and noted a marked amount of spasm indicative of a recent injury 
 
         to the low back.  Claimant's CT scans, which were conducted on 
 
         April 19, 1985, revealed a herniated disc at the L5-S1 level with 
 
         some bulging at the L5 and L4 levels.  A second CT scan in June 
 
         of 1985 revealed a possible extrusion of disc material into the 
 
         canal.
 
         
 
              Claimant underwent diskectomy surgery by Dr. Reinwein in 
 
         July 1985, consisting of a diskectomy and laminectomy of the 
 
         L4-L5 and L5-S1 discs.  Dr. Reinwein reported that claimant's leg 
 
         pain abated after the surgery.  Claimant returned to work at Case 
 
         on October 21, 1985.  Claimant testified he was given a 30 pound 
 
         lifting restriction but chose not to report this to his employer 
 
         for fear of losing his job.
 
         
 
              Claimant testified he now has continuing pain in his low 
 
         back, especially after repetitive lifting of 40-50 pounds and 
 
         repetitive bending at the waist, a limited range of motion of the 
 
         torso, and experiences pain after prolonged standing, sitting, or 
 
         walking.  Claimant continues to work for defendant Case, although 
 
         he stated there are some job tasks he cannot perform due to these 
 
         symptoms.
 
         
 
              Dr. Reinwein assigned claimant a 15 percent permanent 
 
         partial impairment to the body as a whole, and causally connected 
 
         this impairment to both the December 1984 auto accident and the 
 
         April 16, 1985 work incident, without apportionment.  Dr. 
 
         Reinwein's medical records do not reflect claimant's prior back 
 
         problems other than his December 28, 1984 auto accident.
 
         
 
              Claimant was examined by F. Dale Wilson, M.D., in June of 
 
         1987.  Dr. Wilson reported that claimant related to him a history 
 
         of occasional backaches for three or four years prior to the 1984 
 
         auto accident, but claimant did not relate his two prior car 
 
         accidents or other back injuries or incidents of back pain.  Dr. 
 
         Wilson gave claimant a 29 percent permanent partial impairment of 
 
         the body as a whole as a result of the April 1985 incident.  
 
         After being informed of claimant's prior back complaints, Dr. 
 
         Wilson stated he would need further information before continuing 
 
         with his earlier opinion as to causal connection.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
                                  APPLICABLE LAW
 
         
 
              The claimant has the burden of proving by a preponderance of 
 
         the evidence that the injury of April 16, 1985 is causally 
 
         related to the disability on which he now bases his claim.  
 
         Bodish v. Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867 (1965).  
 
         Lindahl v. L.O. Boggs, 236 Iowa 296, 18 N.W.2d 607 (1945).  A 
 
         possibility is insufficient; a probability is necessary.  Burt v. 
 
         John Deere Waterloo Tractor Works, 247 Iowa 691, 73 N.W.2d 732 
 
         (1955).  The question of causal connection is essentially within 
 
         the domain of expert testimony.  Bradshaw v. Iowa Methodist 
 
         Hospital, 251 Iowa 375, 101 N.W.2d 167 (1960).
 
         
 
              However, expert medical evidence must be considered with all 
 
         other evidence introduced bearing on the causal connection.  
 
         Burt, 247 Iowa 691, 73 N.W.2d 732.  The opinion of experts need 
 
         not be couched in definite, positive or unequivocal language.  
 
         Sondag v. Ferris Hardware, 220 N.W.2d 903 (Iowa 1974).  However, 
 
         the expert opinion may be accepted or rejected, in whole or in 
 
         part, by the trier of fact.  Id. at 907.  Further, the weight to 
 
         be given to such an opinion is for the finder of fact, and that 
 
         may be affected by the completeness of the premise given the 
 
         expert and other surrounding circumstances.  Bodish, 257 Iowa 
 
         516, 133 N.W.2d 867.  See also Musselman v. Central Telephone 
 
         Co., 261 Iowa 352, 154 N.W.2d 128 (1967).
 
         
 
              An employee is not entitled to recover for the results of a 
 
         preexisting injury or disease but can recover for an aggravation 
 
         thereof which resulted in the disability found to exist.  Olson 
 
         v. Goodyear Service Stores, 255 Iowa 1112, 125 N.W.2d 251 (1963); 
 
         Yeager v. Firestone Tire & Rubber Co., 253 Iowa 369, 112 N.W.2d 
 
         299 (1961); Ziegler v. United States Gypsum Co., 252 Iowa 613, 
 
         106 N.W.2d 591 (1960).  See also Barz v. Oler, 257 Iowa 508, 133 
 
         N.W.2d 704 (1965); Almquist v. Shenandoah Nurseries, 218 Iowa 
 
         724, 254 N.W. 35 (1934).
 
         
 
                                     ANALYSIS
 
         
 
              Claimant has appealed the deputy's determination that 
 
         claimant has failed to show that his present condition is 
 
         causally connected to an alleged work injury of April 16, 1985.
 
         
 
              Claimant's medical evidence contains the opinions of Dr. 
 
         Reinwein and Dr. Wilson.  Dr. Wilson modified his opinion upon 
 
         learning of claimant's prior injuries.  Dr. Wilson's original 
 
         opinion was based upon an incomplete history, and has now been 
 
         repudiated.  This opinion is therefore given no weight.  The 
 
         record does not show a revised opinion by Dr. Wilson causally 
 
         connecting claimant's present condition with his alleged work 
 
         injury of April 16, 1985.
 
         
 
              The only remaining medical opinion on the issue of causation 
 
         is that of Dr. Reinwein.  Dr. Reinwein attributed claimant's 
 
         present condition to two factors, the April 16, 1985 incident and 
 
         claimant's 1984 car accident.  Dr. Reinwein did not distinguish 
 
         to what degree either event caused claimant's present condition.  
 
         In addition, Dr. Reinwein was not aware of claimant's other back 
 
         injuries and incidents of back pain.  Although causal connection 
 
         is essentially within the domain of expert testimony, an expert's 
 
         opinion on causal connection is greatly affected by the history 
 
         provided to the expert.  Claimant is not required to show that 
 
         the April 16, 1985 incident was the sole cause of his present 
 
         condition.  However, claimant does bear the burden of proof to 
 
         show that his present condition was caused to some degree by the 
 
         April 16, 1985 work incident.  As only one expert opinion 
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         provides that causal connection, and that opinion is tainted by 
 
         omission of a significant portion of claimant's medical history, 
 
         it will be given little weight.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              Claimant argues on appeal that his prior injuries did not 
 
         prevent him from returning to work and performing his duties. 
 
         However, this argument goes to the degree to which claimant's 
 
         present disability might ultimately be apportioned between his 
 
         injuries prior to April 16, 1985 and the April 16, 1985 incident. 
 
         It does not rectify the absence of reliable evidence causally 
 
         connecting any portion of claimant's disability to the April 16, 
 
         1985 incident.  Any of claimant's prior car accidents or other 
 
         back injuries are as likely a cause of his present back condition 
 
         as his injury of April 16, 1985.
 
         
 
              Claimant has failed to carry his burden to show that his 
 
         present condition is causally connected to his alleged April 16, 
 
         1985 work injury.
 
         
 
                                 FINDINGS OF FACT
 
         
 
              1.  Claimant worked for defendant Case as a welder.
 
         
 
              2.  Claimant experienced severe back pain while holding a 
 
         door he was welding on April 16, 1985.
 
         
 
              3.  Claimant was diagnosed as suffering from a herniated 
 
         disc and a bulging disc.
 
         
 
              4.  Prior to April 16, 1985, claimant had suffered several 
 
         back injuries, including an injury during a volleyball game, a 
 
         fall down stairs, and three automobile accidents resulting in 
 
         injury to the neck or back.
 
         
 
              5.  Dr. Wilson's opinion on causal connection was based on 
 
         an incomplete history that omitted references to claimant's back 
 
         injuries occurring prior to April 16, 1985.
 
         
 
              6.  Dr. Reinwein's opinion on causal connection attributed 
 
         claimant's present condition to his 1984 auto accident and his 
 
         April 16, 1985 work incident, but was based on an incomplete 
 
         history omitting references to claimant's back injuries prior to 
 
         April 16, 1985 other than his 1984 auto accident.
 
         
 
              7.  Claimant's testimony that he did not suffer leg pain 
 
         prior to April 16, 1985 was contradicted by the written report of 
 
         Dr. Reinwein.
 
         
 
              8.  Claimant's car accidents and other back injuries prior 
 
         to April 16, 1985 may have caused all or part of claimant's 
 
         present back condition.
 
         
 
                                CONCLUSION OF LAW
 
         
 
              Claimant has failed to show by a preponderance of the 
 
         evidence that his present condition is caused by the alleged work 
 
         injury of April 16, 1985.
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
              WHEREFORE, the decision of the deputy is affirmed.
 
                                        
 
                                      ORDER
 
              THEREFORE, it is ordered:
 
              
 
              That claimant shall take nothing from these proceedings.
 
         
 
              That claimant shall pay the costs of this action pursuant to 
 
         Division of Industrial Services Rule 343-4.33.
 
         
 
              Signed and filed this 31st day of January, 1989.
 
         
 
         
 
         
 
                                               DAVID E. LINQUIST
 
                                            INDUSTRIAL COMMISSIONER
 
         
 
         Copies To:
 
         
 
         Mr. Allan Hartsock
 
         Attorney at Law
 
         4th Floor Rock Island Bldg.
 
         P.O. Box 4298
 
         Rock Island, IL  61204
 
         
 
         Mr. Larry L. Shepler
 
         Attorney at Law
 
         Suite 102, Executive Square
 
         400 Main Street
 
         Davenport, Iowa  52801
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
 
                                                 
 
 
 
 
 
 
 
 
 
 
 
                                                 1108.50
 
                                                 Filed January 31, 1989
 
                                                 DAVID E. LINQUIST
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         JAMES FERRELL,
 
         
 
              Claimant,                            File No. 830446
 
         
 
         vs.                                         A P P E A L
 
         
 
         J. I. CASE COMPANY,                       D E C I S I 0 N
 
         
 
              Employer,
 
              Self-Insured,
 
              Defendant.
 
         
 
         
 
         1108.50
 
         
 
              Claimant with prior back injuries from volleyball, from 
 
         falling in the shower, falling down stairs, and three prior car 
 
         accidents involving back injuries, and whose statement that he 
 
         did not suffer pain in his legs prior to the latest injury was 
 
         directly contradicted by a doctor who examined him the day before 
 
         the injury, failed to causally connect his present back condition 
 
         to the work injury.
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                     
 
                 BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         DENNIS L. JAYNE,
 
         
 
              Claimant,
 
                                                   File No. 830449
 
         vs.
 
                                                A R B I T R A T I O N
 
         ATLANTIC STEEL ERECTORS, LTD.,
 
                                                   D E C I S I O N
 
              Employer,
 
                                                      F I L E D
 
         and
 
                                                     JAN 6 1989
 
         THE IOWA CONTRACTORS WORKERS' 
 
         COMPENSATION GROUP,                 IOWA INDUSTRIAL COMMISSIONER
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
                                   INTRODUCTION
 
         
 
              This is a proceeding in arbitration brought by claimant, 
 
         Dennis L. Jayne, against his employer, Atlantic Steel Erectors, 
 
         Inc., and The Iowa Contractors Workers' Compensation Group, 
 
         insurance carrier, to recover benefits as a result of an injury 
 
         occurring on November 24, 1984.  This matter came on for hearing 
 
         before the undersigned deputy industrial commissioner in Council 
 
         Bluffs, Iowa, on November 17, 1988.
 
         
 
              The record in this proceeding consists of the testimony of 
 
         the claimant; of Mike L. Rehberg, Director, Iowa Criminalistic 
 
         Laboratory; joint exhibits 1 through 8; claimant's exhibits 1 
 
         through 7; and defendants' exhibits A through I.  Joint exhibit 8 
 
         is the deposition of Gary Jensen, and defendants' exhibit F is 
 
         the deposition of claimant.
 
         
 
                                   ISSUES
 
         
 
              The issues presented are:
 
         
 
              1.  Whether this injury arose out of and in the course of 
 
         employment;.
 
         
 
              2.  Whether there.is permanent partial disability;
 
         
 
              3.  Whether a causal relationship exists between claimant's 
 
         injury and his claimed disability;
 
         
 
              4.  Whether claimant is entitled to payment of medical 
 
         benefits 85.27; and
 
         
 
                                                
 
                                                         
 
              5.  Whether the employee was intoxicated and, if so, if the 
 
         intoxication was a substantial factor in the cause of the injury 
 
         pursuant to section 85.16(2).
 
         
 
                             REVIEW OF THE FACTS
 
         
 
              Claimant testified in person and also his deposition was an 
 
         exhibit.  Although his recollection of what occurred at the time 
 
         of the deposition often conflicted with his in person testimony, 
 
         the main difference is obviously the result of others refreshing 
 
         his memory after the accident.  It appears the accident caused 
 
         amnesia or loss of memory of many events around late morning on 
 
         the day of the accident until claimant awoke in the hospital that 
 
         same day.
 
         
 
              Claimant was required to go to Saturday meetings at the 
 
         employer's Atlantic office to go over various company business. 
 
         The owner and claimant did so Saturday, November 24, 1984. 
 
         Claimant was driving a company truck provided to him as a foreman 
 
         for business use only.  Claimant lived 20 miles north of 
 
         Atlantic. After the meeting, claimant purchased some oxygen at 
 
         N.A.P.A needed on the job the next week and then went with fellow 
 
         foreman, Gary Jensen, around noon to Irv's Elbow Room in Atlantic 
 
         and had lunch and three to four beers.  Claimant doesn't know or 
 
         recollect when he left and is rather blank after this.  Claimant 
 
         testified that he had been told by employer not to use the 
 
         company truck for personal use and also not to stop in at bars 
 
         when driving the truck.
 
         
 
              Somewhere around 7:30 p.m. while traveling alone, claimant 
 
         had an accident by leaving the normally traveled roadway and 
 
         traveling onto the hard gravel shoulder on a newly asphalted, 
 
         straight, unobstructed road.  Claimant stated he attempted to 
 
         return to the asphalt portion of the roadway when the truck he 
 
         was driving tipped over and rolled into the ditch.  Claimant was 
 
         thrown from the truck.  As a result of the accident, claimant had 
 
         a broken ankle, broken ribs, broken collar bone, internal 
 
         injuries and bleeding.  Claimant indicated at the time of his 
 
         accident he was on his way home to Extra, Iowa, 20 miles north of 
 
         Atlantic.
 
         
 
              Robert Abild, owner of defendant employer, testified that he 
 
         had instructed claimant not to use defendant employer's truck for 
 
         personal use or drive the truck to bars.  Abild testified that 
 
         the truck assigned to claimant was parked by Irv's Elbow Room 
 
         from 12:00 p.m. until 5:00 p.m. on the day of claimant's 
 
         accident.
 
         
 
              Gary  Jensen, 33, testified that he worked for Atlantic 
 
         Steel for approximately 12 years and was a foreman.  He knew 
 
         claimant approximately 30 years.  They were in the same grade 
 
         school and high school and Jensen helped claimant get the job at 
 
         Atlantic Steel.  On Saturday, November 24, 1984, Mr. Jensen went 
 
         to the employer's office at 10:00 a.m. where he met claimant.  
 
         Claimant and Jensen drove to N.A.P.A for oxygen for acetylene 
 
                                                
 
                                                         
 
         equipment and later after 12:00 noon went to Irv's Elbow Room, a 
 
         bar-restaurant in Atlantic and had lunch together.  Jensen 
 
         testified that while there, he had three to four beers but he did 
 
         not recall how many drinks.claimant had.  Claimant and Jensen 
 
         then went to Jensen's house in Lewis, Iowa around 1:00 or 2:30 
 
         p.m. and worked on some tools they use in the course of their 
 
         employment.  Jensen indicated they were at his house for a couple 
 
         of hours and each drank two to three beers.  Jensen opined 
 
         claimant left at 4:30 p.m. or 5:00 p.m.  Jensen testified that 
 
         they used claimant's truck and claimant drove Jensen to Irv's 
 
         Elbow Room and left him off alone.  Jensen said claimant did not 
 
         go into the bar. Jensen's truck was still at the company's 
 
         office.  Jensen testified that he left Irv's and went to the 
 
         hospital around 7:30 p.m. to see claimant as he had heard 
 
         claimant was in an accident.  Jensen opined that he did not think 
 
         claimant was intoxicated but doesn't have an opinion as to the 
 
         time they left Irv's Elbow Room.  Jensen stated that after they 
 
         left Jensen's, Jensen did not think claimant was intoxicated, but 
 
         Jensen testified he was under the influence but he was not 
 
         intoxicated at that time.  Jensen stated that from 12:00 p.m. 
 
         until 4:30 or 5:00 p.m., claimant and Jensen each consumed six to 
 
         seven Budweiser beers.
 
         
 
              Claimant's Cass County Hospital records have noted: 
 
         "[U]ncooperative, has been drinking....Strong smell alcohol."  He 
 
         was transferred via Life Flight to St. Joseph's Hospital in 
 
         Omaha, Nebraska.  Claimant consented to drawing blood alcohol at 
 
         9:20 p.m.
 
         
 
              Ray D. Gaines, M.D., in an April 22, 1987 report (joint 
 
         Exhibit 3), reviewed claimant's records indicating he first saw 
 
         claimant November 25, 1984 and treated him at St. Joseph's 
 
         Hospital through December 4, 1984.  The doctor stated:  "The 
 
         admitting laboratory work indicated an elevated white blood count 
 
         and blood alcohol level of 195."
 
         
 
              In Joint Exhibit 4, from Creighton University's pathology 
 
         laboratory, Henry C. Nipper, Ph.D., commented on 0.051 alcohol 
 
         test on the claimant versus the hospital's .195.  Dr. Nipper 
 
         wrote on June 4, 1987:  "Our current range of uncertainty would 
 
         indicate that the result on Mr. Jayne would have been in the 
 
         range 0.189-0.201.  This range of uncertainty on the aca has not 
 
         changed for some time."  As to the apparent discrepancy, Dr. 
 
         Nipper indicated the hospital records and work sheets are 
 
         destroyed after two years and one would need to know the time the 
 
         specimens were taken, the method used of analysis and the amount 
 
         of time that elapsed from the sample acquisition until analysis 
 
         performed.
 
         
 
              The hospital records indicate that the hospital performed a 
 
         blood alcohol test within minutes after the blood was taken from 
 
         claimant.  The doctor wrote:  "Whether Mr. Jayne's alcohol level 
 
         increased or decreased on the Life Flight ride depends on whether 
 
         he was still absorbing alcohol from the gastrointestinal tract, 
 
         or metabolizing and excreting the substance.  Either is 
 
                                                
 
                                                         
 
         possible." Joint exhibit 7 is a blood sample test results from 
 
         the Department of Public Safety DCI Criminalistics Laboratory, 
 
         Des Moines, Iowa, which indicated 0.051 gm or 51 mg. of alcohol 
 
         in 100 ml of blood.
 
         
 
                         APPLICABLE LAW AND ANALYSIS
 
         
 
              Claimant's credibility is affected by his inability to 
 
         remember and Jensen's credibility is affected by his admission 
 
         that he himself was under the influence of alcohol.
 
         
 
              Although there were discrepancies in blood tests, the 
 
         greater weight of the evidence indicates claimant was intoxicated 
 
         on November 24, 1984, the date of the injury.  The claimant's 
 
         intoxication was a substantial factor in contributing to the 
 
         claimant's injury.  The conditions of the road at the time of the 
 
         accident indicate other factors in the accident were relatively 
 
         minor or non-existent.
 
         
 
              As a result of this determination on claimant's 
 
         intoxication, it is not necessary to address the other issues 
 
         raised at the hearing.
 
         
 
              Iowa Code section 85.16(2) provides:  "No compensation under 
 
         this chapter shall be allowed for an injury caused:  2.  When 
 
 
 
                         
 
                                                         
 
         intoxication of the employee was the proximate cause of the 
 
         injury."
 
         
 
              The employer must also show that the intoxication was a 
 
         substantial factor in bringing about the accident.  The term "a 
 
         substantial factor" is the common term used to define proximate 
 
         cause.  Blacksmith v. All-American, Inc., 290 N.W.2d 348 (Iowa 
 
         1980).  For a cause to be proximate it must be substantial.  It 
 
         must exist to the degree that the event, in this case the 
 
         accident, would not have occurred in its absence.  A cause, in 
 
         order to be proximate, cannot be insignificant or trivial.
 
         
 
              There are a number of cases that have dealt with workers' 
 
         compensation and accidents where consumption of alcoholic 
 
         beverages was involved.  The case of Lamb v. Standard Oil Co., 
 
         250 Iowa 911, 96 N.W.2d 730 (1959), involved another person who 
 
         was involved in a fatal accident after drinking at the Top Hat in 
 
         Fort Dodge.  The case involved a blood alcohol level of .196 and 
 
         medical expert testimony that Lamb was intoxicated at the time of 
 
         the accident.  Lamb's car crashed into a tree after going out of 
 
         control on an icy road.  Other cases include Farmers Elevator 
 
         Co., Kingsley v. Manning, 286 N.W.2d 84 (Iowa 1979).  The common 
 
         thread that runs through all of the cases where benefits were 
 
         awarded is that some cause other than intoxication existed and 
 
         could have been the sole proximate cause of the accident. (New 
 
         law is "was a substantial factor" as of July 1, 1983).  Stull v. 
 
         Truesdale Coop Elevator Co., December 14, 1987, No. 780309; 
 
         Albertson v. County I-29 Diesel, File No. 745347, January 30, 
 
         1987.
 
         
 
                   FINDINGS OF FACT AND CONCLUSIONS OF LAW
 
         
 
              WHEREFORE, it is found:
 
         
 
              1.  Claimant was intoxicated within the meaning of Iowa Code 
 
         section 85.16.
 
         
 
              2.  The intoxication of claimant was a substantial factor in 
 
         causing the injury.
 
         
 
              THEREFORE, it is concluded:
 
         
 
              Claimant is not entitled to any benefits.
 
         
 
                                      ORDER
 
         
 
              THEREFORE, it is ordered:
 
         
 
              That claimant takes nothing as a result of this proceeding.
 
         
 
              That claimant pay the costs of this proceeding pursuant to 
 
         Division of Industrial Services Rule 343-4.33.
 
         
 
              Signed and filed this 6th day of January, 1989.
 
         
 
                                                
 
                                                         
 
         
 
         
 
         
 
         
 
         
 
                                            BERNARD J. O'MALLEY
 
                                            DEPUTY INDUSTRIAL 
 
                                            COMMISSIONER
 
         
 
         Copies to:
 
         
 
         Mr. James C. Wells
 
         Attorney at Law
 
         530 Jackson St.
 
         Wausau, WI  54401
 
         
 
         Mr. John A. Templer, Jr.
 
         Mr. Dean C. Mohr
 
         Attorneys at Law
 
         3737 Woodland, STE 437
 
         West Des Moines, IA  50265
 
         
 
         
 
         
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
                                                
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                            1601; 3700
 
                                            Filed January 6, 1989
 
                                            Bernard J. O'Malley
 
         
 
                 BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         DENNIS L. JAYNE,
 
         
 
              Claimant,
 
                                                   File No. 830449
 
         vs.
 
                                                A R B I T R A T I O N
 
         ATLANTIC STEEL ERECTORS, LTD.,
 
                                                   D E C I S I O N
 
              Employer,
 
         
 
         and
 
         
 
         THE IOWA CONTRACTORS WORKERS'
 
         COMPENSATION GROUP,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         1601
 
         
 
              Claimant's intoxication was a substantial factor in causing 
 
         claimant's injury 85.16(2).
 
         
 
         3700
 
         
 
              Claimant's credibility was affected by his loss of memory. 
 
         Claimant's loss of memory was affected by alcohol.
 
         
 
         
 
         
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
                                                
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            RALPH L. KEIFER,              :
 
                                          :
 
                 Claimant,                :         File No. 830461
 
                                          :
 
            vs.                           :      A R B I T R A T I O N
 
                                          :
 
            IOWA PUBLIC SERVICE COMPANY,  :         D E C I S I O N
 
                                          :
 
                 Employer,                :
 
                 Self-Insured,            :
 
                 Defendant.               :
 
            ____________________________________________________________
 
            
 
                              STATEMENT OF THE CASE
 
            
 
                 This is a proceeding in arbitration brought by Ralph L. 
 
            Keifer against Iowa Public Service Company, his former 
 
            employer, based upon an injury of December 2, 1985.  
 
            Claimant seeks additional compensation for healing period 
 
            and compensation for permanent disability.  The primary 
 
            issues to be determined are when the healing period ended 
 
            and determination of the extent of permanent disability.  
 
            Claimant seeks compensation for permanent total disability 
 
            and relies upon the odd-lot doctrine as a means of proving 
 
            his claim.
 
            
 
                 The case was heard at Waterloo, Iowa on March 27, 1991.  
 
            The evidence consists of testimony from Ralph L. Keifer and 
 
            Maxine Keifer.  The evidence also includes joint exhibits 1 
 
            through 12.
 
            
 
                                 findings of fact
 
            
 
                 Having considered all the evidence received, together 
 
            with the appearance and demeanor of the witnesses, the 
 
            following findings of fact are made.
 
            
 
                 Ralph L. Keifer is a 61-year-old married man who lives 
 
            at Waterloo, Iowa with his wife of nearly 40 years, Maxine 
 
            Keifer.
 
            
 
                 Ralph grew up in the Chicago, Illinois area and 
 
            attended two years of high school.  After entering the 
 
            United States Army, he took a high school equivalency test.  
 
            Following his honorable discharge from the Army, Ralph 
 
            worked briefly in a steel mill in Gary, Indiana.  In 
 
            September 1948, he acquired a business where he collected 
 
            raw milk from farmers and delivered it to the dairy in the 
 
            Raymond, Iowa area.  The work required handling milk cans 
 
            which weighed over 115 pounds when full.  Ralph sold the 
 
            business in 1955.
 
            
 
                 Following sale of his milk business, Ralph performed 
 
            plumbing and electrical wiring work with his brother-in-law 
 
            for a few years.  He also hauled bulk gasoline, heating oil 
 
            and diesel fuel when requested to do so.  From 1957 through 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            1959, Ralph worked for Chamberlain Trailers where he 
 
            installed lights and air brake systems on semi-trailers.  
 
            The work required minor welding.
 
            
 
                 In 1959, Ralph was hired by Iowa Public Service Company 
 
            where he remained employed until his recent retirement.  
 
            Ralph initially worked as a utility man where he performed a 
 
            wide variety of duties.  In approximately a year, he became 
 
            a fireman where he fired boilers from approximately 1960 
 
            through 1969.  Ralph became a welder in 1970 and later 
 
            became a certified welder.
 
            
 
                 Ralph's remarkable medical history prior to 
 
            commencement of employment with Iowa Public Service Company 
 
            consists of a fractured kneecap while in the Army.  He also 
 
            had pneumonia and yellow jaundice while operating the milk 
 
            business.
 
            
 
                 Ralph's first substantial injury occurred in 1972 when 
 
            he slipped and fell through grating.  He was subsequently 
 
            found to have two crushed vertebrae in his neck.  After a 
 
            period of medical treatment, Ralph returned to his customary 
 
            work as a welder.  He complained that his fingertips are now 
 
            numb and that he believes the condition is a result of the 
 
            crushed cervical vertebrae.
 
            
 
                 The employer's records show that Ralph reported back 
 
            injuries on November 30, 1981; January 29, 1982; August 13, 
 
            1982; and, April 30, 1984 (exhibit 10; deposition exhibits 
 
            1-8).
 
            
 
                 As a result of the 1984 injury, Ralph entered St. 
 
            Francis Hospital on September 27, 1984.  Diagnostic tests 
 
            showed him to have a herniated disc on the left at the L5 
 
            level of his spine.  He was treated with a chymodiactin disc 
 
            injection.  The treatment was successful and Ralph was 
 
            discharged from the hospital on October 4, 1984 (exhibits 
 
            9-2, 6 and 8).  Ralph remained off work for four or five 
 
            months following that injection surgery.  He stated at 
 
            hearing that it completely resolved his pain.  He eventually 
 
            returned to work at light duty and then resumed regular 
 
            duties.  The employer's records show that he reported back 
 
            pain from an incident on June 7, 1985 (exhibit 10; 
 
            deposition exhibit 9).
 
            
 
                 On December 2, 1985, approximately 14 months following 
 
            the date the injection surgery was performed, Ralph again 
 
            injured his back while pulling on a wrench to loosen a 
 
            coupling on a ceiling-mounted heater.  In conformity with 
 
            his prior incidents, he continued working while his 
 
            condition worsened.  Ralph eventually ceased work on January 
 
            2, 1986.  Ralph again entered St. Francis Hospital where 
 
            diagnostic tests again showed disc herniation at the L5 
 
            level of his spine.  He underwent laminectomy surgery on 
 
            January 3, 1986 for removal of the herniated disc (exhibits 
 
            1-34, 6-4, 8, 12, 17 and 19).  Claimant's treating physician 
 
            was James E. Crouse, M.D.  On May 1, 1986, Dr. Crouse 
 
            reported that Ralph's disability had ended and that he was 
 
            released to return to work with restrictions (exhibits 1-22 
 
            and 1-26).
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            
 
                 Ralph did return to work.  He was not allowed to resume 
 
            work as a welder and was sent to the office.  It was 
 
            initially planned that he would read utility meters, but his 
 
            supervisors determined that it would require excessive 
 
            bending and would otherwise be incompatible with the 
 
            condition of his back.  Ralph was then assigned work which 
 
            consisted of delivering utility service termination notices.  
 
            It required that he drive a vehicle in rural areas and 
 
            surrounding towns.  Ralph found that the constant driving 
 
            and getting in and out of the vehicle aggravated his back to 
 
            the extent that he was not able to continue performing the 
 
            work.  He also developed a personality conflict with his 
 
            supervisor.
 
            
 
                 At the suggestion of Ed Dreesman who had supervised 
 
            Ralph at the power plant, he retired, applied for and 
 
            received long-term disability benefits under the employer's 
 
            group plan (exhibit 12).  Ralph also qualified to receive 
 
            Social Security disability benefits commencing in June 1986.
 
            
 
                 Following the unsuccessful attempt to return to work, 
 
            it was noted by Dr. Crouse on May 29, 1986 that claimant was 
 
            progressing well and could return to work on Monday (exhibit 
 
            1-22).  He did not resume work, however.  On June 21, 1986, 
 
            a Saturday, it was noted that claimant should remain off 
 
            work and be rechecked in one month (exhibit 1-22).  In a 
 
            note dated July 10, 1986, Dr. Crouse reported that claimant 
 
            was making very little progress and should be placed on 
 
            long-term disability.  A follow-up appointment was scheduled 
 
            in six months.  The next entry in the medical records 
 
            showing any significant treatment is dated January 29, 1987 
 
            and recommended that claimant be placed into a work 
 
            hardening program (exhibit 1-20).
 
            
 
                 It is found that it was medically indicated on July 10, 
 
            1986 that further significant improvement from the injury 
 
            was not anticipated.
 
            
 
                 Subsequent to July of 1986, claimant has participated 
 
            in several therapy, work hardening or rehabilitation type of 
 
            programs with only transient success.  Claimant's testimony 
 
            is to the effect that his condition has worsened, rather 
 
            than improved.
 
            
 
                 In response to a written request, Dr. Crouse issued a 
 
            report on June 11, 1987 which stated that claimant had made 
 
            no significant improvement since July 10, 1986 and provided 
 
            an impairment rating of 20 percent of the body as a whole, 
 
            of which 6 percent was attributable to the most recent 
 
            injury (exhibit 1-9).  On April 11, 1988, Dr. Crouse 
 
            confirmed his 20 percent impairment rating (exhibit 1-4).
 
            
 
                 On April 13, 1988, Dr. Crouse issued restrictions.  He 
 
            stated:
 
            
 
                 I believe Mr. Keifer is not going to be able to 
 
                 return to his previous job.  I think that light 
 
                 work or sedentary work would be possible for him.  
 
                 He is not going to be able to do constant bending, 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
                 stooping or lifting.  He shouldn't do heavy 
 
                 lifting of more than 20 lbs. occasionally and only 
 
                 light weight articles more frequently.
 
            
 
            (Exhibit 1-3)
 
            
 
                 A functional capacity evaluation performed August 15, 
 
            1990 showed claimant to be quite limited (exhibit 2-1).
 
            
 
                 Vocational consultant John C. Suter, a certified 
 
            rehabilitation counselor, expressed the opinion that 
 
            claimant is employable, but would need assistance in 
 
            obtaining job placement (exhibit 4, pages 88 and 89).  Suter 
 
            had previously reported that claimant had a loss of access 
 
            to 77 percent of the jobs which had been available to him 
 
            prior to his injury (exhibit 3-1).  Suter also reported that 
 
            the median wage for the remaining jobs was approximately 
 
            equal to claimant's earnings with Iowa Public Service 
 
            Company.  Suter, in his deposition and report, did not show 
 
            the entry level wages for the jobs that would be available 
 
            to the claimant.  Suter did not show the likelihood that 
 
            claimant would be successful at being hired in a competitive 
 
            employment setting.  Suter did not investigate actual job 
 
            openings (exhibit 4, pages 39 and 50).
 
            
 
                 The assessment of claimant's case as made by Dr. Crouse 
 
            is accepted as being correct.  He is a treating physician 
 
            who is also a qualified orthopaedic surgeon.  His assessment 
 
            stands virtually uncontradicted and appears reasonable.  The 
 
            evidence from Suter is accepted as being correct with regard 
 
            to claimant being employable since Dr. Crouse expressed the 
 
            same opinion.  Suter's evidence that claimant has lost 
 
            access to 77 percent of the jobs to which he would have had 
 
            access if he had not been injured is accepted as being 
 
            correct.  Suter provided no guidance with regard to whether 
 
            or not it would be futile for claimant to seek employment or 
 
            as to the level of wages which he would be likely to 
 
            experience if he were able to find employment.
 
            
 
                 Ralph has not sought employment.  He is not aware of 
 
            any jobs which he feels are within his physical capability 
 
            of performing.  He has not been provided any assistance in 
 
            actual job placement or to identify jobs which might be 
 
            within his capabilities.  Under the circumstances, it is not 
 
            unreasonable for Ralph to have chosen to not waste his own 
 
            time or the time of potential employers by applying for jobs 
 
            which he would not be capable of performing, even if he were 
 
            able to convince a potential employer to hire him.  Ralph's 
 
            decision to retire was certainly reasonable under the 
 
            existing circumstances.  It is not an indication of lack of 
 
            motivation or industriousness for which he should be 
 
            penalized.
 
            
 
                 Ralph is now in the early part of the age group at 
 
            which individuals in our society customarily retire.  His 
 
            proximity to the younger end of the range was even more 
 
            pronounced at the time he actually retired in 1986.  He was 
 
            approximately 58 years of age.  It would be expected that 
 
            any jobs which he would be capable of performing and could 
 
            actually obtain would likely be part-time or pay in the area 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            of minimum wage.  As previously indicated, his decision to 
 
            retire appears reasonable and prudent.
 
            
 
                                conclusions of law
 
            
 
                 Healing period ends at the earlier of the three events 
 
            specified in Code section 85.34(1).  The point of maximum 
 
            improvement is not determined through hindsight.  It is 
 
            determined at the time when the physicians feel that further 
 
            improvement is unlikely.  Thomas v. William Knudson & Son, 
 
            Inc., 394 N.W.2d 124, 126 (Iowa App. 1984).  The healing 
 
            period generally terminates at the time the attending 
 
            physician determines that the employee has recovered as far 
 
            as possible from the effects of the injury.  Armstrong Tire 
 
            & Rubber Co. v. Kubli, 312 N.W.2d 60, 65 (Iowa App. 1981).  
 
            Healing period is often ended at the time when active or 
 
            aggressive medical treatment ceases.  Medical treatment 
 
            which is maintenance in nature, such as the physical therapy 
 
            claimant has received subsequent to July of 1986, does not 
 
            extend the healing period.  Derochie v. City of Sioux City, 
 
            II Industrial Commissioner Report 112 (1982).  In this case, 
 
            it appears as though Dr. Crouse had determined by July 10, 
 
            1986 that further significant improvement was not 
 
            anticipated.  While Dr. Crouse understandably retained some 
 
            hope for improvement, his recommendation that claimant seek 
 
            long-term disability benefits and a six-month lapse of time 
 
            before the next scheduled appointment clearly indicate that 
 
            active treatment had ceased and that significant improvement 
 
            was not expected.  It is therefore concluded that claimant's 
 
            entitlement to healing period compensation ended July 10, 
 
            1986.  It was at about this same time that claimant 
 
            qualified for Social Security disability benefits.
 
            
 
                 Since 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.2d 899, 902 (1935) 
 
            as follows: "It is therefore plain that the legislature 
 
            intended the term `disability' to mean `industrial 
 
            disability' or loss of earning capacity and not a mere 
 
            `functional disability' to be computed in the terms of 
 
            percentages of the total physical and mental ability of a 
 
            normal man."
 
            
 
                 Functional impairment is an element to be considered in 
 
            determining industrial disability which is the reduction of 
 
            earning capacity, but consideration must also be given to 
 
            the injured employee's age, education, qualifications, 
 
            experience and inability to engage in employment for which 
 
            he is fitted.  Olson v. Goodyear Service Stores, 255 Iowa 
 
            1112, 1121, 125 N.W.2d 251, 257 (1963).
 
            Industrial disability or loss of earning capacity is a 
 
            concept that is quite similar to impairment of earning 
 
            capacity, an element of damage in a tort case.  Impairment 
 
            of physical capacity creates an inference of lessened 
 
            earning capacity.  The basic element to be determined, 
 
            however, is the reduction in value of the general earning 
 
            capacity of the person, rather than the loss of wages or 
 
            earnings in a specific occupation.  Post-injury earnings 
 
            create a presumption of earning capacity.  The earnings are 
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            not synonymous with earning capacity and the presumption may 
 
            be rebutted by evidence showing the earnings to be an 
 
            unreliable indicator.  DeWall v. Prentice, 224 N.W.2d 428, 
 
            435 (Iowa 1974); Carradus v. Lange, 203 N.W.2d 565 (Iowa 
 
            1973); Holmquist v. Volkswagon of America, Inc., 261 N.W.2d 
 
            516 (Iowa App. 1977) A.L.R.3d 143; Michael v. Harrison 
 
            County, Thirty-fourth Biennial Report of the Industrial 
 
            Commissioner 218 (1979); 2 Larson Workmen's Compensation 
 
            Law, sections 57.21 and 57.31.
 
            
 
                 Compensation for permanent disability is intended to 
 
            reflect lost earning capacity.  Compensation benefits are 
 
            geared to weekly wage loss.  Actual earnings are a very 
 
            important factor when considering changes in earning 
 
            capacity.  Bearce v. FMC Corp., 465 N.W.2d 531 (Iowa App. 
 
            1991).  Normal rules of statutory construction require that 
 
            a construction be given which effectuates the intent of the 
 
            legislature.  A rational, workable meaning is desired.  City 
 
            of Mason City v. Pub. Employment Relations Bd., 316 N.W.2d 
 
            851, 854 (Iowa 1982); Iowa Beef Processors, Inc. v. Miller, 
 
            312 N.W.2d 530, 532 (Iowa 1981); Iowa Dep't of Transp. v. 
 
            Nebraska-Iowa Supply Co., 272 N.W.2d 6, 11 (Iowa 1978).  
 
            While the Workers' Compensation Act is to be construed 
 
            liberally in favor of the injured employee, Caterpillar 
 
            Tractor Co. v. Shook, 313 N.W.2d 503, 506 (Iowa 1981), there 
 
            is no legitimate purpose to be served by providing weekly 
 
            compensation benefits well beyond the time that the 
 
            individual would likely have retired from employment, 
 
            particularly when the determination of total disability is 
 
            based on the odd-lot doctrine or the fact that the 
 
            individual is no longer suited for performing manual labor.  
 
            The legislature did not intend to provide lifetime benefits 
 
            through workers' compensation awards as a supplement to 
 
            normal retirement benefits.  The loss of ability to perform 
 
            manual labor often accompanies the normal aging process.  It 
 
            is concluded that the proximity to normal retirement age is 
 
            a factor to be considered in determining loss of earning 
 
            capacity or industrial disability which is causally related 
 
            to the injury.  Becke v. Turner-Busch, Inc., Thirty-fourth 
 
            Biennial Report of the Industrial Commissioner 34 (App. 
 
            Decn. 1979); Cruz v. Chevrolet Grey Iron, Div. of Gen. 
 
            Motors, 247 N.W.2d 764, 775 (Mich. 1976).
 
            
 
                 When all the pertinent factors of industrial disability 
 
            are considered, it is determined that Ralph Keifer sustained 
 
            a 65 percent loss of earning capacity as a result of the 
 
            December 2, 1985 injury.  This entitles him to recover 325 
 
            weeks of compensation payable at the stipulated rate of 
 
            $325.24 per week commencing July 11, 1986.
 
            
 
                 While some of claimant's disability certainly 
 
            preexisted the December 2, 1985 injury, from the record it 
 
            appears as though all the disability had resulted from his 
 
            employment with this employer and there had been no prior 
 
            reduction of actual earnings.  For these reasons, there is 
 
            no basis for any apportionment of the current disability.  
 
            Bearce v. FMC Corp., 465 N.W.2d 531 (Iowa App. 1991); 
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
            Tussing v. George A. Hormel & Co., 461 N.W.2d 450 (Iowa 
 
            1990).
 
            
 
                 According to the stipulation contained in the 
 
            prehearing report, claimant has previously been paid healing 
 
            period compensation for the entire amount of healing period 
 
            awarded in this decision.  According to the same 
 
            stipulations, he has also been paid 125 weeks of permanent 
 
            partial disability compensation.  He is therefore entitled 
 
            to recover an additional 200 weeks of permanent partial 
 
            disability compensation as a result of this decision.
 
            
 
                                      order
 
            
 
                 IT IS THEREFORE ORDERED that Iowa Public Service 
 
            Company pay Ralph Keifer three hundred twenty-five (325) 
 
            weeks of compensation for permanent partial disability at 
 
            the stipulated rate of three hundred twenty-five and 24/100 
 
            dollars ($325.24) per week with four and three-sevenths (4 
 
            3/7) weeks thereof payable commencing May 6, 1986 and with 
 
            the remaining three hundred twenty and four-sevenths (320 
 
            4/7) weeks payable commencing July 11, 1986.
 
            
 
                 IT IS FURTHER ORDERED that the employer receive credit 
 
            for the one hundred twenty-five (125) weeks previously paid 
 
            and that all past due, accrued amounts shall be paid to the 
 
            claimant in a lump sum together with interest pursuant to 
 
            section 85.30 of The Code.
 
            
 
                 IT IS FURTHER ORDERED that the costs of this action are 
 
            assessed against the employer pursuant to rule 343 IAC 4.33.
 
            
 
                 IT IS FURTHER ORDERED that the employer file claim 
 
            activity reports as requested by this agency pursuant to 
 
            rule 343 IAC 3.1.
 
            
 
                 Signed and filed this ______ day of ____________, 1991.
 
            
 
                 
 
            
 
                 
 
                 
 
                                          ______________________________
 
                                          MICHAEL G. TRIER
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 

 
            
 
            Page   8
 
            
 
            
 
            
 
            
 
            
 
            Copies To:
 
            
 
            Mr. Robert D. Fulton
 
            Attorney at Law
 
            6th Floor, First National Building
 
            P.O. Box 2634
 
            Waterloo, Iowa  50704-2634
 
            
 
            Mr. Timothy A. Clausen
 
            Mr. William Kevin Stoos
 
            Attorneys at Law
 
            Jackson Plaza, Suite 300
 
            P.O. Box 327
 
            Sioux City, Iowa  51102
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                           1802; 1803; 1804; 4100
 
                           Filed June 27, 1991
 
                           MICHAEL G. TRIER
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
                      :
 
            RALPH L. KEIFER,    :
 
                      :
 
                 Claimant, :         File No. 830461
 
                      :
 
            vs.       :      A R B I T R A T I O N
 
                      :
 
            IOWA PUBLIC SERVICE COMPANY,  :         D E C I S I O N
 
                      :
 
                 Employer, :
 
                 Self-Insured,  :
 
                 Defendant.     :
 
            ____________________________________________________________
 
            
 
            1802
 
            Healing period ended at the time the treating orthopaedic 
 
            surgeon recommended that claimant seek long-term disability 
 
            benefits and did not schedule further appointments for six 
 
            months.  It was at approximately that same time that the 
 
            claimant received Social Security disability benefits.  The 
 
            fact that one year later the doctor issued a report, on 
 
            request of counsel, which provided an impairment rating and 
 
            stated that recuperation had ended at the earlier time did 
 
            not serve to extent the healing period to the date that the 
 
            report was issued.
 
            
 
            1803; 1804; 4100
 
            The effect of aging in proximity to normal retirement was 
 
            discussed.  Sixty-one-year-old claimant, who was 58 at the 
 
            time of injury, awarded 65 percent permanent partial 
 
            disability where he had not sought employment, but the 
 
            evidence indicated that any attempt to do so would likely be 
 
            futile.  Rules of statutory construction were discussed to 
 
            indicate that no purpose is served by providing permanent 
 
            disability benefits beyond normal retirement age through an 
 
            award of permanent total disability or use of the odd-lot 
 
            doctrine.